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The World Bank, in its 2004 World Development Report, Making Services Work for Poor People, recognized that accountability among citizens, service providers, and policy makers was key to understanding the failure or success in the delivery of basic services to poor people. Since then, the concepts of social contract, voice, and accountability have gained prominence in development policy and discourse. These concepts are closely connected with a number of human rights principles that have become embedded in the policies of development actors and consolidated into more explicit policy frameworks known as “human rights–based approaches” (HRBAs) to development.1 These human rights principles constitute a set of policy principles that imply neither a clear legal foundation nor legal obligations. As such, they remain loosely defi ned and conceptualized.
PART I Human Rights and Development Human Rights and Service Delivery A Review of Current Policies, Practices, and Challenges AXEL MARX, SIOBHÁN MCINERNEY-LANKFORD, JAN WOUTERS, AND DAVID D’HOLLANDER The World Bank, in its 2004 World Development Report, Making Services Work for Poor People, recognized that accountability among citizens, service providers, and policy makers was key to understanding the failure or success in the delivery of basic services to poor people Since then, the concepts of social contract, voice, and accountability have gained prominence in development policy and discourse These concepts are closely connected with a number of human rights principles that have become embedded in the policies of development actors and consolidated into more explicit policy frameworks known as “human rights–based approaches” (HRBAs) to development.1 These human rights principles constitute a set of policy principles that imply neither a clear legal foundation nor legal obligations As such, they remain loosely defined and conceptualized This chapter analyzes these principles and offers a critical analysis of HRBAs by situating them in the context of broader donor efforts to integrate human rights considerations into development It assesses the strengths and weaknesses of a HRBA as a policy concept in light of the human rights principles on which it is founded, and considers whether and how these principles are in fact realized to secure more effective service delivery processes (and outcomes) Implicit in the adoption of HRBAs is an emphasis on the “how” (processes to deliver services) of development rather than exclusively on the “what” (service being delivered) The chapter first charts the emergence of HRBAs Next, it offers conceptual clarification around the common characteristics of a HRBA In a third section, two contentious issues are identified: the difficulty of measuring the impact of a HRBA, and the organizational and institutional challenges linked to adopting a HRBA The chapter concludes The views expressed in this chapter are those of the authors and not necessarily reflect the views of the Board of Executive Directors of the World Bank or the governments they represent Responsibility for errors or omissions remains with the authors Axel Marx, Jan Wouters, and David D’Hollander acknowledge support by the Flemish government (Policy Research Centre) and the European Commission–FRAME project (grant agreement no 320,000) for research on human rights and development cooperation It should be noted that, in principle, a HRBA can apply to any development service, including a service initiated by a government for its own citizens However, this chapter discusses the notion of HRBA in the context of bilateral or multilateral development cooperation 39 40 The World Bank Legal Review with a discussion of how the underlying principles of a HRBA have been integrated into other development policies and processes that are not explicitly based on human rights The Emergence of Human Rights–Based Approaches Human rights and development work have long been viewed as operating in “parallel streams,” addressing similar problems and sharing compatible goals but existing relatively independent of one another.2 Both the human rights and development communities avail themselves of progressive and transformative self-understandings, and share the aim to “bring into being new worlds that are more prosperous, more humanly fulfilling, and more just.”3 More often than not, the operational focus of development and human rights activities is focused on the same target groups and subject areas.4 Despite this convergence, more explicit synergies between human rights and development policy began to take root only in the early 1990s Since then, the more deliberate integration of human rights in development policy has been pursued by donors in various ways.5 Although there is an increasing awareness of development challenges in the human rights community, perhaps more fundamental is the shift in perceptions about the role of human rights within the international development community Beyond being “moral considerations,” human rights are recognized as having a potential instrumental role in making development interventions more efficient through improving the governance processes that underpin service delivery.6 As a result, a growing convergence is evident between development and human rights on a number of levels,7 and several strategies have been developed to integrate human rights in development cooperation policies Human rights, democracy, and good governance have traditionally been the subjects of various forms of M Darrow & A Tomas, Power, Capture, and Conflict: A Call for Human Rights Accountability in Development Cooperation, 27(2) Human Rights Q 471–538 (2005); S McInerney-Lankford, Human Rights and Development: A Comment on Challenges and Opportunities from a Legal Perspective, 1(1) J Human Rights Practice 51–82 (2009) R Archer, Linking Rights and Development: Some Critical Challenges in Rights-Based Approaches to Development: Exploring the Potential and Pitfalls 26 (S Hickey & D Mitlin eds., Kumarian 2009) H.-O Sano, Development and Human Rights: The Necessary, but Partial Integration of Human Rights and Development, 22(3) Human Rights Q 734, 735 (2000) Org Econ Co-Operation & Dev & World Bank, Integrating Human Rights into Development: Donor Approaches, Experiences, and Challenges, 2nd ed (Org Econ Co-Operation & Dev.; World Bank 2013) Id., at 74 McInerney-Lankford, supra note 2, identifies (a) an overlap in obligations, as the right to development is increasingly, but not unanimously, recognized as a human right; (b) a factual or substantive overlap, as human rights organizations and development agencies address similar problems regarding poverty, inequality, and exclusion; and (c) an overlap or convergence of principles, such as participation, transparency, and equality, which are currently shared by both the development and the human rights communities Human Rights and Service Delivery 41 “targeted support,” separate from “traditional” development sectors such as agricultural development, infrastructure, or education.8 Donors established separate organizational units and funding instruments, but human rights and democratic governance were not necessarily considered a core aspect of development work in other intervention areas.9 To make human rights an integral aspect of their development work, several donors have moved toward more comprehensive approaches to integrating human rights into development, shifting away from addressing human rights as merely a subcomponent of democracy promotion or “political aid.” Policies for human rights mainstreaming have since been developed to ensure that human rights are accounted for in all types of development interventions, in some cases to promote greater policy coherence or to draw more systematically on human rights tools and methodology This move toward more comprehensive approaches is often characterized as “mainstreaming,” which the European Commission defines as “the process of integrating human rights and democratization issues into all aspects of EU policy decision making and implementation.”10 HRBAs take mainstreaming a step further by aiming to provide a more coherent framework toward integrating human rights across all sectors of development policy, and by reconceptualizing development processes in terms of rights and duties Within the UN system in particular, the concept of a HRBA was born out of the need to have a more comprehensive, coherent, and systematic understanding of “mainstreaming” human rights across agencies.11 To harmonize the various experiences within the United Nations, a UN Common Understanding (UNCU) on a HRBA was agreed on at the working level in 2003 and subsequently adopted by the UN Development Group (UNDG).12 According to the UNCU, a HRBA requires that All programmes of development cooperation, policies, and technical assistance should further the realization of human rights as laid down in the Universal Declaration of Human Rights and other international human rights instruments; P Uvin, Human Rights and Development (Kumarian 2004); Sano, supra note European Commn., Thematic Evaluation of the European Commission Support to Respect of Human Rights and Fundamental Freedoms (Including Solidarity with Victims of Repression), vol 1: Final Report 70 (Evaluation commissioned by the European Commn 2011), h p://ec.europa.eu /europeaid/how/evaluation/evaluation_reports/2011/1298_docs_en.htm 10 European Commn., The European Union: Furthering Human Rights and Democracy across the Globe 13 (European Commn., Directorate-Gen External Rel., Luxembourg 2006) 11 G Oberleitner, A Decade of Mainstreaming Human Rights in the UN: Achievements, Failures, Challenges, 26(3) Netherlands Q Human Rights 359, 361 (2008) 12 The United Nations Statement of Common Understanding on Human Rights-Based Approaches to Development Cooperation and Programming can be consulted at h p://hrbaportal.org/the-human -rights-based-approach-to-development-cooperation-towards-a-common-understanding -among-un-agencies#sthash.Vk4JorX7.dpuf 42 The World Bank Legal Review Human rights standards contained in, and principles derived from, the Universal Declaration of Human Rights and other international human rights instruments guide all development cooperation and programming in all sectors and in all phases of the programming process; Development cooperation contributes to the development of the capacities of “duty-bearers” to meet their obligations and/or of “rights-holders” to claim their rights The Office of the High Commissioner for Human Rights (OHCHR) further defines a HRBA as “a conceptual framework for the process of human development that is normatively based on international human rights standards and operationally directed to promoting and protecting human rights.”13 An increasing number of development actors, including UN development agencies and several bilateral European donors, have adopted HRBAs Recently, the European Union, the world’s largest donor, adopted a HRBA.14 Other donors have also adopted similar policies and strategies By definition, HRBAs are founded on normative and legal justifications (states have a legal duty to respect, protect, and fulfill human rights, including beyond their domestic territory), but they may also be underpinned with instrumental objectives.15 Such instrumental perspectives see a HRBA as a way to increase the impact and effectiveness of service delivery by amplifying the “voice” of citizens and enhancing the responsiveness and accountability of service providers HRBAs are therefore essentially about supporting “active citizens” who are aware of, and able to claim, their rights.16 As phrased by the Swedish International Development Cooperation Agency (SIDA), raising the standard of living for the poor can be achieved more easily through working with HRBAs, because they can “make cooperation more efficient through contributing to the identification of the people who are discriminated against and the power structures in society that affect poor people’s lives.”17 13 Off U.N High Commr Human Rights, Frequently Asked Questions on a Human RightsBased Approach to Development Cooperation’ Strategies 15 (U.N High Commr Human Rights 2006) 14 Council of the European Union, EU Strategic Framework and Action Plan on Human Rights and Democracy 10 (Council of the European Union 2012), h p://www.consilium.europa.eu /uedocs/cms_data/docs/pressdata/EN/foraff/131173.pdf 15 Org Econ Co-Operation & Dev & World Bank, supra note 5; Darrow & Tomas, supra note 2; L.-H Piron, Rights-Based Approaches and Bilateral Aid Agencies: More Than a Metaphor?, 36(1) IDS Bull 19–30 (2005) 16 A Cornwall, & C Nyamu-Musembi, Pu ing the “Rights-Based Approach” to Development into Perspective, 25(8) Third World Q 1415–37 (2004) 17 Swedish Intl Dev Cooperation Agency & Swedish Ministry For Affairs, A Democracy and Human Rights Approach to Development Co-operation (policy document adopted by the Swedish Intl Dev Cooperation Agency & Swedish Ministry For Affairs 2001) Human Rights and Service Delivery 43 HRBAs within the Broader Context of Donor Approaches to Integrating Human Rights in Development A HRBA is one of several approaches to integrating human rights into development It is, moreover, not a unitary concept; rather, it covers a range of definitions and interpretations.18 Donors define their human rights priorities in different ways and, equally, approach human rights in their policies and activities in distinct manners A range of policy strategies exists among donors that explicitly espouses human rights Although these strategies are evolving, sometimes overlapping, and often undertaken simultaneously, at least four basic categories can be identified First, at the policy level, human rights have been integrated into policies on aid allocation, which have in turn been made conditional on compliance with human rights obligations and adherence to democratic governance Second, donors undertake human rights dialogues with partners to complement development interventions Third, several donors support human rights projects that may target the realization of specific rights, the protection of particular groups, or the support of human rights organizations or processes Fourth, donors have developed human rights mainstreaming policies under which donors integrate human rights and thematic terms across a range of sectors, or with respect to particular groups such as children, women, persons with disabilities, or indigenous peoples Given these different policy reforms and initiatives, it is therefore possible for development actors to integrate human rights without having adopted a rights-based approach as a full-fledged, explicit policy position Although HRBAs are understood to cover all of the aforementioned policy options, they also refer to a more specific approach to planning development interventions This chapter relies on that moreconfined interpretation of a HRBA as the reference point for analysis In addition, it should be noted that some donors not rely explicitly on the human rights framework but nevertheless can be said to integrate human rights more implicitly through a range of human rights–related interventions The interplay and overlap between such implicit approaches and HRBAs are discussed next Implementing Human Rights–Based Approaches: Policies and Practices The policy documents of donors and development agencies in which a HRBA is adopted are often aspirational and prescriptive, remaining vague about operational and organizational changes they imply Inasmuch as a HRBA is an “umbrella concept,” it covers a broad variety of practices, from which 18 It is for this reason that this chapter refers throughout to “HRBAs” or “a HRBA” rather than to “the HRBA.” 44 The World Bank Legal Review donors tend to pick and choose combinations of elements to put into use.19 Despite the comprehensive transformation proposed in theory, the adoption of a HRBA does not in practice imply an “all or nothing choice,” as there are “many degrees and levels of engagement.”20 Notwithstanding the conceptual complexity, authors and agencies have tried to capture the essential features of a HRBA and apply them in a range of distinct mechanisms, instruments, and tools.21 A feature common to different interpretations of HRBAs is the application of human rights principles throughout the process of development These principles, as defined by the UNCU, are universality and inalienability, indivisibility, interdependence and interrelatedness, equality and nondiscrimination, participation and inclusion, and accountability and rule of law.22 The principles are derived from human rights treaties, and their application is determined on the basis of their functionality (i.e., the extent to which they gear the development process more directly toward the realization of human rights) and their practicality (i.e., the extent to which they provide development practitioners with clear and effective guidance).23 While each of these human rights principles has relevance for development, a distinction can be drawn between structural and operational principles Structural principles describe features of human rights law and affirm the universality and inalienability, indivisibility, interdependence, and interrelatedness of human rights These principles apply more generally to all human rights requiring that all donor (and partner) actions comply with the international legal human rights framework, and mandate certain key elements in the framework’s interpretation, such as the equal importance of all human rights (indivisibility) or the applicability of human rights in all contexts (universality).24 The operational principles derived from human rights pertain more to their application in context; they include participation, accountability, nondiscrimination, inclusion, and rule of law Although this categorization is not strict and there may be significant overlap between them, the la er group of principles relates more to the “how” than the “what.” This group of prin19 H Miller, From Rights-Based” to “Rights-Framed” Approaches: A Social Constructionist View of Human Rights Practice, 14(6) Intl J Human Rights 915, 919 (2010) 20 Swiss Dev Cooperation, Integrating Human Rights and Poverty Reduction: Towards a Human Rights Based Approach for SDC 20 (working paper, Swiss Dev Cooperation 2004) 21 Off U.N High Commr Human Rights, supra note 13; Cornwall & Nyamu-Musembi, supra note 16; V Gauri & S Gloppen, Human Rights Based Approaches to Development: Concepts, Evidence, and Policy (Policy Research Working Paper No 5938, World Bank 2012) 22 These are sometimes summarized in the acronym PANEL (participation, accountability, nondiscrimination, empowerment, and linkages to human rights standards) 23 For an elaborate discussion of how these principles are derived from the human rights framework, see Darrow & Tomas, supra note 2, at 501 24 B I Hamm, A Human Rights Approach to Development, 23(4) Human Rights Q., 1005, 1012 (2001) Human Rights and Service Delivery 45 ciples evidences a greater degree of convergence with development work and is especially relevant in the context of a HRBA In addition, through the work of UN treaty bodies or special procedures, other human rights principles have emerged providing more specific operational guidance on the interpretation and implementation of particular rights (particularly economic, social, and cultural rights) These principles include accessibility, adaptability, acceptability, and affordability The following discussion explores the operational principles in greater detail, because these are the principles most commonly included in HRBAs adopted by donor agencies Nondiscrimination and Equality Among the principles that have direct operational implications for development policy and programming, revealing the strongest elements of convergence between development and human rights, are nondiscrimination and equality These principles relate to the concepts of social exclusion and deprivation, whereby certain groups or individuals are denied basic entitlements due the entire population but enjoyed only by the rest of the population These particular principles require a focus on development processes and scrutiny of how a development initiative is implemented; who it includes and excludes; how it takes account of representation, voice, and dissent; and, ultimately, who benefits from it HRBAs introduce a clear normative and legal basis for development practitioners to systematically address discrimination and its underlying causes, including making allowances for affirmative action and “special measures.”25 In the first instance, this can imply using disaggregated data on development indicators to enhance the identification of patterns of exclusion faced by poor people, vulnerable groups, and minorities Donors adopting a HRBA have emphasized the establishment of “equitable” and “inclusive” service delivery systems at the country level In addition to women’s rights and gender equality, a HRBA urges donors to consider all forms of discrimination, thereby broadening the scope of inquiry and scrutiny for other suspect classifications and other vulnerable groups Moreover, unequal access to basic services is often caused by lack of finances to pay for services and transport, creating pa erns of exclusion that may become entrenched but are potentially less obvious.26 A principal critique of the Millennium Development Goals (MDGs) from a human rights perspective was precisely this framework’s inability to account for different forms of inequality within a given national context or to address development goals beyond aggregate targets, thereby potentially failing to reach the poorest and most vulnerable groups.27 The OHCHR has encouraged the application of a 25 Darrow & Tomas, supra note 2, at 505 26 Org Econ Co-Operation & Dev Network on Governance, Linking Human Rights and Aid Effectiveness for Be er Development Results: Practical Experience from the Health Sector 17 (Org Econ Co-Operation & Dev Network on Governance 2008) 27 M Darrow, The Millennium Development Goals: Milestones or Millstones? Human Rights Priorities for the Post-2015 Development Agenda, 15 Yale Human Rights & Dev L J 65–66 (Mar 2012) 46 The World Bank Legal Review HRBA to the MDG framework, which could imply creating additional targets for particular groups and disaggregating indicators.28 In addressing discrimination and exclusion in development planning, some donors use a “targeted approach,” designing new programs that target specific vulnerable or excluded groups In doing this, donors adopt different priority groups and demographics In its human rights strategy for foreign policy, the Dutch Ministry of Foreign Affairs identified discrimination against religious minorities as well as discrimination based on sexual orientation as key action points.29 The Danish development cooperation agency, however, has invested considerably in the area of indigenous peoples’ rights and has adopted this as a transversal theme in its strategy.30 In some instances, initiatives address structural or systemic discrimination against certain groups by encouraging legal reform UNICEF, for example, takes as an objective the elimination of discriminatory laws that allow girls to marry before the compulsory school-leaving age or prescribe different school-leaving ages for girls and boys.31 In addition to “targeting,” donors have endeavored to embed the principle of nondiscrimination by developing safeguard mechanisms and “inclusion policies” within sector-wide programs to ensure equal access to public services Participation and Empowerment Instead of mere consultation, a HRBA requires donors to enable “active, free and meaningful participation” in any development intervention undertaken, not just those directly related to political governance Accordingly, participation becomes both a means and an aim of development.32 In SIDA’s human rights strategy, participation is conceived as a way to ensure sustainable results as well as a goal in itself; it helps people be more aware that “they have the right to demand change and social justice.”33 Participation in this sense implies “empowerment.”34 The objective of a HRBA is to embed and institu- 28 Off U.N High Commr Human Rights, Claiming the Millennium Development Goals: A Human Rights Approach 9–10 (2008) 29 Dutch Ministry For Affairs, Naar een Menswaardig bestaan: Een mensenrechtenstrategie voor het buitenlands beleid [Toward a dignified existence: Human rights strategy for foreign affairs] (Dutch Ministry For Affairs 2007) 30 Danish Intl Dev Agency, Strategy for Danish Support to Indigenous Peoples (Ministry For Affairs 2004) 31 UNICEF, A Human Rights-Based Approach to Education for All: A Framework for the Realization of Children’s Right to Education and Rights within Education 53 (UNICEF 2007) 32 Off U.N High Commr Human Rights, supra note 13 33 Swedish Ministry For Affairs, Change for Freedom: Policy for Democratic Development and Human Rights in Swedish Development Cooperation, 2010–2014 (Swedish Ministry For Affairs 2010) 34 According to the World Bank’s Sourcebook on Empowerment and Poverty Reduction, “empowerment” refers to the “expansion of assets and capabilities of poor people to participate in, negotiate with, influence, control, and hold accountable institutions that affect their lives.” See World Bank, Empowerment and Poverty Reduction: A Sourcebook 11 (World Bank 2002) Human Rights and Service Delivery 47 tionalize participation in a way that it becomes self-sustaining.35 The inclusiveness and transparency of the participatory process become a central concern, as poor and excluded groups are often not equally represented in participatory processes, because of practical impediments, lack of awareness, or more structural legal and institutional obstacles Investing in the capacities of poor and disadvantaged groups to participate becomes crucial.36 Transparency and access to information—for example, by making information available in accessible formats and minority languages—comes to the fore as key elements in fostering meaningful participation.37 Participation can be enhanced by creating new channels and mechanisms and/or building the capacity of existing community-based or civil society organizations to work with human rights.38 Illustrative of the first approach is the Department for International Development’s (DFID’s) Participatory Rights Assessment Methodologies (PRAMs) project, which presents a working method to facilitate people’s own identification and assessment of their rights and open up new channels of institutional engagement between citizens and duty bearers.39 Organizing participatory spaces and supporting local organizations or NGOs to engage in rights-based participation are common strategies Investing in participation and inclusion through local organizations implies that these organizations are themselves representative and functioning in a participatory manner.40 Hence, in the selection of local partner organizations, more a ention should be paid to inclusiveness and local embeddedness The la er has gained increased a ention, as several authors argue that donors should not try to impose an “artificial” associational model, but should focus on working with existing practices of self-organization within local communities.41 One of the consequences, and challenges, of the “rights-version” of participation and empowerment is that it can potentially “sharpen the political edges” of development.42 Accordingly, programs have been canceled for political reasons, for example, when a partner government perceives funding as support for the opposition.43 Moreover, the efficiency of the “confrontational” 35 Darrow & Tomas, supra note 2, at 506 36 Id., at 510 37 U.N Dev Programme, Mainstreaming Human Rights in Development Policies and Programming: UNDP Experiences (U.N Dev Programme, Bureau Dev Policy 2012) See also consultation requirements in World Bank safeguards as well as the access to information policy, which illustrate how this can be secured without HRBA 38 Off U.N High Commr Human Rights, supra note 13, at 26–27 39 J Blackburn et al., Operationalising the Rights Agenda: Participatory Rights Assessment in Peru and Malawi, 36(1) IDS Bull 91, 93 (2005) 40 U.N Dev Programme, supra note 37 41 D Booth & D Cammack, Solving Collective Action Problems 115 (Zed 2013) 42 Cornwall & Nyamu-Musembi, supra note 16, at 1418 43 Overseas Dev Inst DFID Human Rights Practice Review Synthesis Report (Overseas Dev Inst 2008) 48 The World Bank Legal Review use of human rights has also been questioned; in several contexts it may not be constructive or result in greater vulnerability for already vulnerable groups.44 Uvin notes that in some contexts the adoption of human rights language with a clear political tone might endanger the local personnel and the complex network of local relationships on which development agencies rely.45 Longerterm research indicates that framing demands for accountability in terms of human rights standards can lead to increased legitimacy of citizen demands, but in some cases it can also “backfire.”46 Accountability, Transparency, and Rule of Law The principle of “accountability” is central to all iterations of a HRBA.47 Within the development community, the notion of “accountability” is often understood as the capacity of donors to hold NGOs and governmental partners answerable for their performance, although it may also define the ability of partners to hold donors to account, or citizens of both donor and partner countries to hold their governments to account In the context of a HRBA, accountability is defined as the capacity of beneficiaries (i.e., rights-holders) to actively claim their rights and hold their own government, as well as donors and other actors, accountable Instead of supporting an indefinite number of isolated technical interventions, a HRBA underlines the need for development actors to address structural change and the potential of “transforming state-society relations,” with the final aim of “strengthening the social contract.”48 As stated by the OHCHR, “the most important source of added value in the human rights approach is the emphasis it places on the accountability of policy-makers and other actors.”49 More generally, it has been argued that the very essence of the contribution made by integrating human rights into development is the introduction of accountability through the notion of rights and duties, and the introduction of legal accountability through the underpinning of international human rights law.50 44 S Patel & D Mitlin, Reinterpreting the Rights-Based Approach: A Grassroots Perspective on Rights and Development in Rights-Based Approaches to Development: Exploring the Potential and Pitfalls (S Hickey & D Mitlin eds., Kumarian 2009) 45 Uvin, supra note 8, at 149 46 Decade of Collaborative Research on Citizen Engagement, Blurring the Boundaries: Citizen Action across States and Societies: A Summary of Findings from a Decade of Collaborative Research on Citizen Engagement 44 (Dev Research Ctr Citizenship, Participation & Accountability, Brighton 2011) 47 P Uvin, From the Right to Development to the Rights-Based Approach: How “Human Rights” Entered Development, 17(4–5) Dev Practice 597, 601–2 (2007) 48 Piron, supra note 15, at 22 49 Off U.N High Commr Human Rights, Draft Guidelines: A Human Rights Approach to Poverty Reduction Strategies para 31 (2002) 50 S McInerney-Lankford, Human Rights and Development: A Comment on Challenges and Opportunities from a Legal Perspective, 1(1) J Human Rights Practice 51–82 (2009) Human Rights and Service Delivery 49 While direct support for human rights and democracy focuses mostly on political accountability (e.g., support for fair and transparent electoral processes and strengthening multiparty systems), a HRBA aspires to make enhanced accountability the main outcome in any area of development programming This requires insight into various political, legal, and institutional dimensions of development work Practitioners within agencies such as UNDP are therefore expected to develop a thorough understanding of the legal dimensions of their operating context, which includes national legislation, adherence to regional charters or agreements, and ratification of human rights treaties or other international agreements.51 A strategy adopted by some donors is to advocate for the alignment of national legislation with the relevant provisions of the international human rights framework For example, the Austrian Development Agency supports states in codifying the right to water and sanitation in laws and regulations.52 Closely linked to the issue of accountability is the principle of redress and the focus on effective rule of law and a functional justice system Several development agencies use the human rights framework as a standard for justice reform and the performance of judiciaries.53 Working with a HRBA broadens the scope of rule of law programs by addressing structural barriers and emphasizing access to justice or legal empowerment for excluded people.54 This generally implies some awareness-raising activities about human rights and making legal services accessible in terms of language, procedures, affordable legal aid and lawyers, or the integration of informal and traditional legal systems A HRBA implies a focus not only on formal legal accountability but also on informal processes of accountability.55 Donors can enhance accountability through nonlegal means, sometimes under the label of “social accountability,” which is applied by many donors, including ones not explicitly accepting of a HRBA approach The la er includes initiatives as different as participatory budgeting, administrative procedures acts, social audits, citizen report cards, organizing public debates, or other approaches to greater citizen participation in public service delivery.56 In the health sector, experiences with these types 51 U.N Dev Programme, supra note 37 52 Austrian Dev Agency, Focus: Right to Water and Sanitation (Austrian Dev Agency 2012) 53 A Tomas, Reforms That Benefit Poor People: Practical Solutions and Dilemmas of Rights-Based Approaches to Legal and Justice Reform in Reinventing Development? Translating Rights-Based Approaches from Theory into Practice (P Gready & J Ensor eds., Zed 2005); Swedish Intl Dev Cooperation Agency, A Guide to Equal Access to Justice Programmes (Swedish Intl Dev Cooperation Agency 2010) 54 Donors who work on legal empowerment or access to justice programs, such as the U.S Agency for Intl Dev and the World Bank, not refer explicitly to the human rights framework See Org Econ Co-Operation & Dev & World Bank, supra note 5, at 231 55 Darrow & Tomas, supra note 2, at 487–88; Off U.N High Commr Human Rights, supra note 13, at 24 56 Darrow & Tomas, supra note 2, at 488; J Ackerman, Human Rights and Social Accountability (Soc Dev Papers: Participation and Civic Engagement, Paper No 86, World Bank 2005) 50 The World Bank Legal Review of social accountability57 processes in East Africa have included supporting the capacity of local organizations to monitor the rights of patients and the management of the health budget.58 While the concept of social accountability is closely related to applying a HRBA, it may not always provide legal recourse, may suffer from a lack of bo om-up engagement, and may remain concentrated on localized dynamics.59 In this sense, social accountability initiatives, such as the use of citizen scorecards, are ideally integrated into a more comprehensive HRBA.60 Finally, in adopting a HRBA, donors acknowledge the need to be held accountable themselves by the recipients of aid,61 which is reflected in the principle of mutual accountability in the Paris Declaration on Aid Effectiveness Hence, human rights norms and standards can be part of the mutual accountability frameworks between partners, whereby both sides are held accountable for their contributions to the realization of human rights.62 On the project level, accountability to beneficiaries can lead to the establishment of redress and complaint mechanisms This is evident in UNDP’s Water Governance Facility program in Kenya, where communities and consumers were enabled to voice their dissatisfaction and address corruption in water services through complaints mechanisms.63 The extent to which donors are legally accountable for their human rights impacts is a contested issue,64 and, accordingly, the integration of human rights into accountability mechanisms for development projects is still largely uncharted terrain For example, the Danish International Development Agency enables people experiencing adverse consequences from its development policy to complain directly to Danish embassies.65 57 Social accountability can be understood as “a form of accountability which emerges from actions by citizens and civil society organizations (CSOs) aimed at holding the state to account, as well as efforts by government and other actors (media, private sector, donors) to support these actions.” See U.N Dev Programme, Fostering Social Accountability: From Principle to Practice—Guidance Note (U.N Dev Programme 2010) 58 Org Econ Co-Operation & Dev., Network on Governance, supra note 26, at 59 Ackerman, supra note 56, at 60 Id., at 26–27 61 L.-H Piron, Human Rights and Poverty Reduction: The Role of Human Rights in Promoting Donor Accountability (Overseas Dev Inst 2005) 62 Org Econ Co-Operation & Dev & World Bank, supra note 5, at 84 63 Kenya Water for Health Org., Human Rights Based Approach to Reforms in the Kenya Water Sector (Kenya Water for Health Org 2009) 64 Org Econ Co-Operation & Dev & World Bank, supra note 5, at 84 65 Danish Intl Dev Agency, The Right to a Be er Life: Strategy for Denmark’s Development Cooperation 11 (Ministry For Affairs of Denmark 2012) Human Rights and Service Delivery 51 A Human Rights–Based Approach to Service Delivery: Issues and Challenges The value added of human rights policies is still debated within the development community The tension between the more technical outlook of “traditional” development programming and the normative underpinnings of HRBAs is most evident at the evaluation stage.66 This has gained prominence in recent times as concepts such as evidence-based or results-based management and “value for money” in aid collections have become influential Several stakeholders have raised concerns that this might lead donors to be increasingly driven toward “what’s measureable” instead of “what ma ers.”67 There is arguably growing pressure on human rights policies and HRBA programming to prove their effectiveness and impact This section explores a number of challenges confronting a HRBA to development, including measurability and organizational challenges Measuring the Impact of HRBAs Although the concept of a HRBA to development is now more than a decade old, the evidence of its operational impact is scarce and its “added value” remains contested.68 Even for donors that have explicitly commi ed themselves to adopting a HRBA, the evidence of whether it has achieved the policy goals it aimed to advance is limited Applying quantitative measurement methods to HRBAs and other human rights policies presents several theoretical and operational difficulties Chief among these is the challenge of measuring concepts such as human rights, which are the subject of competing and context-dependent definitions, or the challenge of establishing a causal nexus between the adoption of legal or policy norms on human rights, on the one hand, and a particular outcome in a development intervention, on the other Empirical evidence and evidentiary tools related to human rights themselves are scarce, which further compounds the challenges of measurement However, the UNCU emphasizes the importance of including “measurable goals and targets.”69 Similarly, OHCHR underlines that there is no inherent 66 L T Munro, The Human Rights-Based Approach to Programming: A Contradiction in Terms?, in Rights-based Approaches to Development: Exploring the Potential and Pitfalls (S Hickey & D Mitlin eds., Kumarian 2009) 67 Intl Council Human Rights Policy, No Perfect Measure: Rethinking Evaluation and Assessment of Human Rights Work (Intl Council Human Rights Policy 2012) 68 S Kindornay, J Ron, & C Carpenter, Rights-Based Approaches to Development: Implications for NGOs, 34(2) Human Rights Q 472, 497 (2012) Few empirical studies exist which provide an in-depth assessment of the implementation of a HRBA in a recipient country An interesting exception is a study by Hisayo Katsui et al on a human rights–based approach in Finland’s development cooperation with special focus on gender and disability in Ethiopia and Kenya See Hisayo Katsui et al., Reducing Inequalities: A Human Rights-Based Approach in Finland’s Development Cooperation with Special Focus on Gender and Disability—A Case Study on Ethiopia and Kenya (Åbo Akademi University, Inst Human Rights 2014) 69 U.N Common Understanding, The Human Rights Based Approach to Development Cooperation: Towards a Common Understanding among UN Agencies (Stamford Interagency Workshop on a 52 The World Bank Legal Review contradiction between a HRBA and results-based management.70 As a HRBA aims to strengthen the relationship between citizen (rights-holder) and state (duty-bearer) in all thematic areas of development, the central question becomes whether integrating a HRBA in areas such as education or health contributes to the achievement of outcomes related to health and education In addition to such outcome goals, a HRBA also provides a new layer of evaluation as it puts emphasis on the integration of human rights principles throughout the process of an intervention Both HRBA outcomes and process goals face a measurement challenge The challenge of how to measure the “HRBA quality” of development processes at the program/project level has emerged as a key issue Development actors commi ed to HRBAs recommend the development and use of “process indicators” to meet the challenge However, there are significant conceptual, methodological, and practical challenges in using indicators to measure the quality of development processes Innovative evaluation practices that assess governance processes through quantitative methods are emerging,71 but such long-term, rigorous evaluation efforts seem to remain the exception rather than the rule Donors have also explored adjusting evaluation frameworks in order to advance the integration of human rights–based outcome goals This implies incorporating human rights indicators, but also the collection and analysis of disaggregated data, and the use of more participatory methods of monitoring and evaluation interventions.72 Various indicators are currently used by donors to assess human rights performance, mostly as part of a larger set of traditional development (and human development) indicators.73 Depending on which strategy is applied to integrate human rights into development policy, donors will rely on different sets of indicators.74 Progress in reconciling human rights programs and programming with results-based management has led to the progressive development of evaluation methods75 and resultsbased human rights indicators.76 Human Rights-Based Approach in the Context of UN Reform 2003) 70 Off U.N High Commr Human Rights, supra note 13, at 31 71 M Humphreys, R Sanchez de la Sierra, & P Van der Windt, Social and Economic Impacts of Tuungane: Final Report on the Effects of a Community Driven Reconstruction Program in Eastern Democratic Republic of Congo (Columbia University Press 2012) 72 Off U.N High Commr Human Rights, supra note 13, at 31 73 S McInerney-Lankford & H Sano, Human Rights Indicators in Development: An Introduction 31 (World Bank report, 2010) 74 Id., at 40 75 U.N Dev Group, Results-Based Management Handbook: Strengthening RBM Harmonization for Improved Development Results (U.N Dev Group 2010), h p://www.un.cv/files/UNDG%20 RBM%20Handbook.pdf 76 McInerney-Lankford & Sano, supra note 73, at 40 Human Rights and Service Delivery 53 However, a strong focus on measurement risks obscuring the fact that one is measuring very different contexts with different temporal dimensions The prevalent “evaluation culture” preoccupied with “technical, quantitative checklists” has been criticized as incapable of capturing the long-term impacts of human rights–based development cooperation.77 Instead, evaluation formats based on quantitative and qualitative data, covering diverse outcomes and impacts on legislation, policy, and the behavior of society as a whole would be required.78 A more qualitative approach may be more appropriate to unravel the complexities and added value of a HRBA, but it would make comparability between projects more difficult One should also note that change induced by HRBA processes is by definition incremental and additive, which makes it potentially difficult to capture by an evaluation at the project level As a recent study by Andrews clearly demonstrates, structural institutional change, which a HRBA aims to advance, is in no way linear A sustained series of projects, interventions, and initiatives, which build on one another and generate learning effects, is necessary to bring about structural institutional reform.79 Donors with a short-term, “programmatic” vision of development cooperation might be ill-advised to engage with such nonlinear processes This is not to argue against the use of more quantitative assessment, but rather to caution against relying on it exclusively In addition, evaluations should not be interpreted in isolation, and aggregated data are needed over longer periods of time in order to allow conclusions to be drawn HRBAs and the Challenge of Organizational Reform A HRBA redefines development challenges as legal and political issues that might otherwise be seen through a purely technical lens This structural or institutional approach implies a shift toward a view of service delivery as a complex process of interaction between citizens and service providers, underpinned by an intricate web of formal and informal institutions and governance dynamics Instead of temporarily satisfying needs through “simple” service delivery, a HRBA methodology identifies rights and duties, explores why these cannot be realized, determines what action is needed to realize the rights or to discharge the duties, and assesses the “capacity gap,” and seeks to close that gap by developing local capacities that outlast the donor’s intervention.”80 Traditional human rights work is often associated with support to civil society and grass-roots organizations As a more comprehensive concept, a HRBA brings together “state-centered and society-centered inter- 77 P Gready, Reasons to Be Cautious about Evidence and Evaluation: Rights-Based Approaches to Development and the Emerging Culture of Evaluation, 1(3) J Human Rights Practice, 383 (2009) 78 Id., at 399 79 M Andrews, The Limits of Institutional Reform in Development: Changing Rules for Realistic Solutions (Cambridge U Press 2013) 80 Org Econ Co-Operation & Dev & World Bank, supra note 5, at 85–86 54 The World Bank Legal Review ventions” and underlines how “state institutions need to be strengthened and citizens need to be empowered.”81 The transformation toward a HRBA implies an organizational shift and reform on multiple levels If donors commit to human rights in their policies, they “must be willing to apply the rights agenda to all of their own actions.”82 A HRBA therefore requires “inward looking change” with significant organizational commitments and consequences ranging from the strategic to the operational.83 Some organizations endorse a HRBA on paper but have not invested in the necessary institutional transformation to implement it.84 Indeed, various authors have argued that the adoption of HRBAs has been more rhetorical than anything else.85 To adequately analyze the strategic, organizational, and operational implications, institution-wide assessment is required To date, only a handful of donors have commissioned self-assessments that shed light on this issue Some donor agencies have also established new focal point positions or recruited external experts to capacitate staff on the operational implication of working with human rights However, the internal capacity of most donors remains limited in this regard, whereby a small number of staff, backed by weak organizational structures, are tasked with mainstreaming human rights or a HRBA across an entire organization.86 An evaluation of the European Commission’s human rights mainstreaming policy found that systems to monitor and evaluate progress on mainstreaming were absent, and the responsible unit faced structural limitations and a lack of highlevel support.87 A review of UNICEF’s policy found considerable variation in staff understanding of a HRBA.88 The report concluded that, despite more than 10 years of experience of working with human rights in development, the implementation of a HRBA is still a “work in progress” within UNICEF Finally, decentralization presents another organizational obstacle, as considerable efforts are needed to bridge the gap between the human rights policy designed at headquarters and its practical application at the country and local levels A review of DFID’s human rights policy revealed that the use of human 81 Piron, supra note 15, at 25 82 Uvin, supra note 47, at 604 83 W Vandenhole et al., In Lieu of a Conclusion: Some Cross-Cu ing Issues and Their Policy Implications, in Human Rights and Development in the New Millennium: Towards a Theory of Change 295 (P Gready & W Vandenhole eds., Routledge 2014) 84 Org Econ Co-Operation & Dev & World Bank, supra note 5, at 24–25 85 Uvin, supra note 47; Kindornay, et al., supra note 68, at 497 86 Org Econ Co-Operation & Dev & World Bank, supra note 5, at 100–101 87 European Commn., Thematic Evaluation of the European Commission Support to Respect of Human Rights and Fundamental Freedoms (Including Solidarity with Victims of Repression), vol 1: Final Report 19 (evaluation commissioned by the European Commn 2011), h p://ec.europa eu/europeaid/how/evaluation/evaluation_reports/2011/1298_docs_en.htm 88 UNICEF, Global Evaluation of the Application of the Human Rights-Based Approach to UNICEF Programming 39 (UNICEF 2012) Human Rights and Service Delivery 55 rights principles is highly dependent on country context and country team.89 A study on the adoption of a HRBA by three large NGOs found that the planned transition to a HRBA at headquarters resulted in widespread incoherence and was only partially implemented at the level of country offices.90 Evaluations of donor policies identify similar issues regarding the “dilution” of the human rights component at lower organizational levels.91 For certain country/field offices, a human rights policy might be more difficult to apply because of the political or cultural context Here, a flexible and adaptable understanding of a HRBA may be more efficient Nevertheless, this further complicates the questions of how to effectively operationalize and institutionalize a comprehensive HRBA for a significant number of countries The question of the adaptability to local contexts has gained increased a ention.92 A HRBA faces the challenge of generating sufficient ownership by local stakeholders In certain country contexts or specific sectors within a country, donors have found strong resonance with local stakeholders in introducing a HRBA In other contexts, the adoption of a HRBA has remained largely a donor-driven effort Both the nature of the local “policy space” as well as the capacity of local actors can constrain or enable the integration of human rights into development initiatives Indeed, when “domestic constellations of power and interests” not favor human rights–based reforms, the process is likely to remain superficial.93 Conclusion: Human Rights in Development Projects and Service Delivery This chapter explored the concept of a HRBA to development cooperation, including its challenges and potential benefits While in doctrinaire terms, a HRBA implies a foundation in legal obligations and legal accountability, the principles (particularly nonstructural) of the UNCU have themselves found expression in a far wider set of contexts As Sano recently argued, “there are strong overlaps between human rights- and governance-based development policies, often to a degree that it remains impossible to distinguish one from the other.”94 89 L.-H Piron, & F Watkins, DFID Human Rights Review: A Review of How DFID Has Integrated Human Rights into Its Work 78 (Overseas Dev Inst 2004) 90 S Plipat, Developmentizing Human Rights: How Development NGOs Interpret and Implement a Human Rights-Based Approach to Development Policy 295 (Ph.D dissertation, U Pi sburgh 2005) 91 European Commn., supra note 87, at 17 92 Booth & Cammack, supra note 41 93 L Pritche , M Woolcock, & M Andrews, Looking Like a State: Techniques of Persistent Failure in State Capability for Implementation (CID Working Paper No 239, Ctr Global Dev., Harvard 2012) 94 H.-O Sano, The Drivers of Human Rights Change in Development, in Human Rights and Development in the New Millennium: Towards a Theory of Change, 35 (P Gready & W Vandenhole eds., 56 The World Bank Legal Review In addition to this, the UNCU augurs the possibility of distinguishing between “unique” and “essential” elements of a HRBA Unique elements are those related directly to the nature of human rights and their correlative duties.95 These include using the recommendations of international human rights bodies and mechanisms, assessing the capacity of rights-holders to claim their rights or duty-bearers to fulfill their obligations, and developing strategies specifically aimed at building those capacities Essential elements include recognizing people as autonomous actors, central to their own development (not passive recipients of services or charity); valuing participation; promoting empowerment; and linking such bo om-up demands for be er governance with enhanced responsiveness from service providers Many of these elements, both unique and essential, are features of development policy and are considered part of good development practice.96 The widespread reflection of these elements signal the possibility of identifying a broader convergence between human rights and development at the level of principles, and also indicate the potential for a far wider set of development actors to contribute to human rights realization through their policies and activities For organizations that have not adopted a HRBA and not work explicitly on human rights, these principles provide reference points for integrating human rights into their work, even if only in implicit terms However, this also presents the risk of what Uvin has called “rhetorical repackaging”: the superficial use of human rights language to reframe development activities In a similar vein, characterizing any intervention undertaken in the spheres covered by a human rights treaty as supporting the realization of rights may be criticized for presuming or overstating the positive influence of development on human rights At the same time, too rigid or formalistic an approach toward what constitutes human rights–based development work risks undervaluing the substantial, albeit indirect, positive impacts of projects undertaken with an implicit human rights approach An independent review of the Australian aid program found it rich with activities that advanced human rights, but it also concluded that the program needed to communicate more clearly its connection to human rights.97 Some development actors frame entire programs or approaches in terms of human rights principles, underscoring both the la er’s intrinsic and instrumental importance For instance, a recent World Bank report on inclusion observes: “inclusion has both intrinsic and instrumental value for development and shared prosperity.”98 This is consistent with the emphasis on nondiscrimination inherent to HRBAs Routledge 2014) 95 B Mayo, What Are Human Rights?, in Political Theory and the Rights of Man 72 (D D Raphael ed., Indiana U Press 1967) 96 Org Econ Co-Operation & Dev & World Bank, supra note 5, at 73 See also U.N Common Understanding, supra note 69 97 Australian Ministry For Affairs, Independent Review of Aid Effectiveness (Australian Ministry For Affairs 2011) 98 World Bank, Inclusion Ma ers: The Foundation for Shared Prosperity 249 (World Bank 2013) Human Rights and Service Delivery 57 Participation is another principle that evidences significant overlaps, and to which a wide range of donor activities can be said to offer support, even without embracing it explicitly as a human rights principle In addition, participation is linked to improved accountability through enabling redress mechanisms to function The international human rights framework offers an accountability framework at the international level, emphasizing the need to document and monitor practices regularly, providing recommendations and opportunities for redress or compensation, and demanding justification for noncompliance Development actors, for their part, have increasingly emphasized accountability, whether through the programs they fund or the mechanisms they have established to ensure compliance with their own policies and accountability for their own operations (e.g., the World Bank Inspection Panel) The question of donor accountability can also relate to a variety of internal and “programmatic” solutions for providing various forms of (nonlegal) accountability mechanisms (e.g., complaint mechanisms at the project/program level) Similarly, the issue of citizen-state accountability and its impact on the effective delivery of services to poor people is addressed by a number of donors that have not formally adopted a HRBA Social accountability initiatives undertaken by the World Bank are one practical example of this More generally, innovative methods for understanding and tackling governance problems within development work are contributing to an expanding field of perspectives and tools for tackling institutional change in developing countries.99 These approaches and practices imply human rights principles, particularly through their focus on enhancing accountability in service delivery, but without framing the approach in terms of rights-holders and dutybearers or linking processes of change to obligations within the human rights framework However, while donors working with such implicit approaches often rely on human rights principles in their development activities, donors who have adopted a HRBA commit themselves, at least in theory, to so systematically as a legal and normative imperative 99 Andrews, supra note 79