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Human Rights-Based Approaches to Development: Concepts, Evidence, and Policy

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Abstract

This article aims to organize thinking around human rights-based approaches to development (HRBAs) and to review available empirical evidence regarding their benefits, risks, and limitations. We propose a typology distinguishing four types of rights-based approaches: global compliance based on international and regional treaties; human rights-based programming on the part of donors and governments; rights talk; and legal mobilization. The article briefly reviews the politics of the first three modalities before examining legal mobilization for social and economic rights in greater detail. Litigation for social and economic rights is increasing in frequency and scope in several countries, and exhibits appealing attributes such as inclusiveness and deliberative quality. Still, there are potential problems with this form of human rights-based mobilization, including middle class capture, the potential counter-majoritarianism of courts, and difficulties in compliance. The conclusions to each section lay out the key research questions regarding HRBAs.

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Notes

  1. Douglass C. North, John J. Wallis, and Barry R. Weingast, Violence and Social Orders: A Conceptual Framework for Interpreting Recorded Human History (Cambridge: Harvard University Press, 2009).

  2. For descriptions of HRBAs or RBAs, see Dan Banik, Poverty and Elusive Development (Oslo, Norway: Universitetsforlaget, 2010); Peter Uvin, Human Rights and Development (Sterling, VA: Kumarian Press, 2004); OHCHR, Frequently Asked Questions on a Human Rights-Based Approach to Development Cooperation (Geneva, Switzerland: United Nations Pub., 2006); Urban Jonsson, “A Human Rights-Based Approach to Programming?” in Reinventing Development, ed. Paul Gready and Jonathan Ensor (New York: Zed Books, 2005), 47–62; Mac Darrow and Amparo Tomas, “Power, Capture, and Conflict: A Call for Human Rights Accountability in Development Cooperation,” Human Rights Quarterly 27 (2005): 471–538.

  3. See http://www2.ohchr.org/english/law/.

  4. Charles R. Beitz, The Idea of Human Rights (New York: Oxford University Press, 2009).

  5. Erik Voeten, “The Impartiality of International Judges: Evidence from the European Court of Human Rights,” American Political Science Review 102 (2008): 417–33.

  6. It has been noted, however, that certain clauses, articles, and interpretations of the international and regional instruments, such as Article 28 of the UDHR General Comment 14 on the ICESCR (on “The right to the highest attainable standard of health”), do speak to the obligations of rich countries. And other international agreements and declarations, such as the Millennium Development Goals and the Monterrey Consensus on Financing for Development, 2002, also frame such obligations. The Declaration on the Right to Development was adopted by the UN General Assembly in 1986; and while proponents have attempted to put together a binding international instrument, that effort has not succeeded. For the text see http://www2.ohchr.org/english/law/rtd.htm. For a history and analysis see Arjun Sengupta, “On the Theory and Practice of the Right to Development,” Human Rights Quarterly 24 (2002): 837–89.

  7. An exception is the recent World Bank Inspection Panel case on the Land Management and Administration Project in Cambodia, Request RQ 09/08. In this case, the Center for Housing Rights and Evictions (COHRE) argued that residents of the Boeung Kak Lake area in central Phnom Penh, forcibly resettled to make way for a private development, should have been included in a World Bank sponsored land titling program. Documentation is available at the following site: http://web.worldbank.org/WBSITE/EXTERNAL/EXTINSPECTIONPANEL/0,,contentMDK:22512162~pagePK:64129751~piPK:64128378~theSitePK:380794,00.html.

  8. See, for instance, arguments regarding human rights and the compulsory licensing of essential medicines: Hochen Sun, “The Road to Doha and Beyond: Some Reflections on the TRIPS Agreement and Public Health,” European Journal of International Law 15 (2004): 123–50. See also the literature on obligations to cancel “odious debt”: Joseph Hanlon, “How Much Debt must be Cancelled?” Journal of International Development 12 (2000): 877–901. Finally, see also the literature on obligations of multinational companies: John G. Ruggie, “Business and Human Rights: The Evolving International Agenda,” American Journal of International Law 101 (2007): 819.

  9. Thomas W. Pogge, World Poverty and Human Rights: Cosmopolitan Responsibilities and Reforms (Malden, MA: Polity Press, 2002).

  10. Malcolm Langford, Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (New York: Cambridge University Press, 2008).

  11. Darren G. Hawkins and Wade Jacoby, “Partial Compliance: A Comparison of the European and Inter-American Court of Human Rights,” Journal of International Law and International Relations 6 (2010): 35–86.

  12. Stephen D. Krasner, “Sovereignty, Regimes, and Human Rights,” in Regime Theory and International Relations, ed. Volker Rittberger and Peter Mayer (New York: Oxford University Press, 1993), 139–67.

  13. Beth A. Simmons, Mobilizing for Human Rights: International Law in Domestic Politics (New York: Cambridge University Press, 2009).

  14. Emilie M. Hafner-Burton, “Sticks and Stones: Naming and Shaming the Human Rights Enforcement Problem,” International Organization 62 (2008): 689–716.

  15. Eric Neumayer, “Do International Human Rights Treaties Improve Respect for Human Rights?” Journal of Conflict Resolution 49 (2005): 925–53.

  16. Laurence R. Helfer and Anne-Marie Slaughter, “Toward a Theory of Effective Supranational Adjudication,” Yale Law Journal 107 (1997): 273–391.

  17. Emilia J. Powell and Jeffrey K. Staton, “Domestic Judicial Institutions and Human Rights Treaty Violation,” International Studies Quarterly 53 (2009): 149–74.

  18. Andrew Moravcsik, “Taking Preferences Seriously: A Liberal Theory of International Politics,” International Organization 51 (1997): 513.

  19. Varun Gauri, “The Cost of Complying with Human Rights Treaties: The Convention on the Rights of the Child and Basic Immunization,” The Review of International Organizations 6 (2011): 33–56.

  20. Laurence R. Helfer, “Overlegalizing Human Rights: International Relations Theory and the Commonwealth Caribbean Backlash against Human Rights Regimes,” Columbia Law Review 102 (2002): 1832–909.

  21. Oona A. Hathaway, “Do Human Rights Treaties Make a Difference?” Yale Law Journal 111 (2002): 1935–2042.

  22. Beth A. Simmons, Mobilizing for Human Rights: International Law in Domestic Politics (New York: Cambridge University Press, 2009).

  23. Thomas Risse, Stephen C. Ropp, and Kathryn Sikkink, The Power of Human Rights: International Norms and Domestic Change (New York: Cambridge University Press, 1999).

  24. Harold H. Koh, “How Is International Human Rights Law Enforced?” Indiana Law Journal 74 (1999): 1397–417.

  25. Ryan Goodman and Derek Jinks, “International Law and State Socialization: Conceptual, Empirical, and Normative Challenges,” Duke Law Journal 54 (2005): 983–98.

  26. See, for example, UNESCO, World Education Report 2000: The Right to Education: Towards Education for All Throughout Life (Paris, France: UNESCO, 2000). Summary reviews are Brigitte I. Hamm, “A Human Rights Approach to Development,” Human Rights Quarterly 23 (2001): 1005–31; Laure-Helene Piron, “Rights Based Approaches and Bilateral Aid Agencies: More Than a Metaphor?” IDS Bulletin 36 (2005): 19–30.

  27. WHO, 25 Questions and Answers on Health and Human Rights (Geneva, Switzerland: WHO, 2002).

  28. UNESCO, World Education Report 2000.

  29. Varun Gauri, “Redressing Grievances and Complaints Regarding Basic Service Delivery,” Washington, DC: World Bank Policy Research Working Paper No. 5699, 2011.

  30. Paul Gertler, Harry Patrinos, and Marta Rubio-Codina, “Empowering Parents to Improve Education: Evidence from Rural Mexico,” Journal of Development Economics 99 (September 2012): 68–79.

  31. David Banisar, Freedom of Information Around the World 2006: A Global Survey of Access to Government Information Laws (Privacy International 2010), available at: http://www.freedominfo.org/documents/global_survey2006.pdf.

  32. For example, the World Bank's Nordic Trust Fund is financing pilot human rights and development projects related to local government in Africa, strengthening human rights in Colombia's peace and development zones, corporate social responsibility, a citizens’ report card in Vietnam, and refugees in the Middle East and North Africa. A description is available at: http://siteresources.worldbank.org/PROJECTS/Resources/1171NTFReportProof8.pdf.

  33. Ritva Reinikka and Jacob Svensson, “Fighting Corruption to Improve Schooling: Evidence from a Newspaper Campaign in Uganda,” Journal of the European Economic Association 3 (2005): 259–67.

  34. Abhijit V. Banerjee, Rukmini Banerji, Esther Duflo, Rachel Glennerster, and Stuti Khemani, Pitfalls of Participatory Programs: Evidence from a Randomized Evaluation in Education in India (Cambridge, MA: National Bureau of Economic Research, 2008).

  35. Enrique Peruzzotti and Catalina Smulovitz, Enforcing the Rule of Law: Social Accountability in the New Latin American Democracies (Pittsburgh, PA: University of Pittsburgh Press, 2006).

  36. Sally E. Merry, “Rights Talk and the Experience of Law: Implementing Women's Human Rights to Protection from Violence,” Human Rights Quarterly 25 (2003): 343–81.

  37. Marie-Benedicte Dembour, “Human Rights Talk and Anthropological Ambivalence,” in Inside and Outside the Law: Anthropological Studies of Authority and Ambiguity, ed. Olivia Harris (New York: Routledge, 1996), 19–40.

  38. Although HRBAs typically focus on the rights-holders, they can also affect duty-bearers by activating their moral obligations. They might directly influence developing country officials and politicians when they formulate and implement government policies on topics such as school fees, child labor, taxation, and social assistance. They might also influence governments in rich countries to increase development assistance, or to change rules that govern the cross-national flows of goods, services, capital, and people. Human rights norms might also change the practices of multinational firms and donors, making them more responsive to the needs of poor people in developing countries.

  39. Hanna Pitkin, “Justice: On Relating Public and Private,” Political Theory 9 (1981): 327–52.

  40. Harri Englund and Francis B. Nyamnjoh, Rights and the Politics of Recognition in Africa (London: Zed Books, 2004).

  41. Rogers M. Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History (New Haven, CT: Yale University Press, 1997).

  42. William H. Sewell, Jr., “Ideologies and Social Revolutions: Reflections on the French Case,” The Journal of Modern History 57 (1985): 57–85.

  43. Thomas Risse-Kappen, Steve C. Ropp, and Kathryn Sikkink, The Power of Human Rights: International Norms and Domestic Change (New York: Cambridge University Press, 1999).

  44. Neta Crawford, Argument and Change in World Politics: Ethics, Decolonization, and Humanitarian Intervention (Cambridge: Cambridge University Press, 2002).

  45. César A. Rodríguez Garavito and Boaventura de S. Santos, Law and Globalization from Below: Towards a Cosmopolitan Legality (Cambridge: Cambridge University Press, 2005).

  46. Ibid.

  47. Risse-Kappen et al., The Power of Human Rights.

  48. Varun Gauri, Michael Woolcock, and Deval Desai, “Intersubjective meaning and collective action in ‘fragile’ societies: theory, evidence, and policy implications,” World Bank Policy Research Paper No. 5707 (2011).

  49. Dan Banik, Poverty and Elusive Development (Oslo, Norway: Universitetsforlaget, 2010).

  50. Mobilization based on social and economic rights enshrined in national constitutions may also be focused on quasi-legal bodies such as ombudsmen, human rights commissions, or administrative bodies. But it can also target and be used by political and electoral institutions, such as political parties. It should be noted that constitutional litigation for social and economic rights may also be based on obligations to international legal norms.

  51. Malcolm Langford, Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (New York: Cambridge University Press, 2008).

  52. On the right to food litigation in India, see the website of the Right to Food campaign http://www.righttofoodindia.org/index.html; on HIV/AIDS litigation in South Africa see the work of the AIDS Law Project http://www.aidslawpa.org/; on the Colombian right to health litigation, see Alicia Ely Yamin and Oscar Parra-Vera “How Do Courts Set Health Policy? The Case of the Colombian Constitutional Court,” PLoS Medicine 6 (2009): 147–50.

  53. Varun Gauri and Daniel M. Brinks, “Human Rights as Demands for Communicative Action,” Journal of Political Philosophy, for a pre-publication view, see http://onlinelibrary.wiley.com/journal/10.1111/(ISSN)1467-9760/earlyview.

  54. Sandra Fredman, Human Rights Transformed: Positive Rights and Positive Duties (Oxford: Oxford University Press, 2008).

  55. César Rodríguez Garavito, Cortes y Cambio Social: Cómo la Corte Constitucional Transformó el Desplazamiento Forzado en Colombia (Bogotá, D.C: Dejusticia, 2010).

  56. Michael W. McCann, Law and Social Movements (Aldershot, England: Ashgate, 2006).

  57. Shylashri Shankar and Pratap B. Mehta, “Courts and Socioeconomic Rights in India” in Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World, ed. Varun Gauri and Daniel M. Brinks (New York: Cambridge University Press, 2008), 146–82.

  58. Upendra Baxi, Law and Poverty: Critical Essays (Bombay, India: N.M. Tripathi, 1988), 387–415.

  59. Marc Galanter, “Why the ‘Haves’ Come Our Ahead: Speculations on the Limits of Legal Change,” Law and Society Review 9 (1974): 165–230.

  60. Michael W. McCann, Law and Social Movements (Aldershot, England: Ashgate, 2006).

  61. Víctor Abramovich and Christian Courtis, Los Derechos Sociales como Derechos Exigibles (Madrid, Spain: Editorial Trotta, 2002).

  62. Gauri and Brinks, Courting Social Justice.

  63. Alicia E. Yamin and Siri Gloppen, ed., Litigating Health Rights: Can Courts Bring More Justice to Health? (Cambridge: Harvard University Press, 2011).

  64. The larger picture shows that many of the countries that have been at the forefront with regard to social rights litigation are middle-income countries marked by huge inequalities (such as Colombia, Brazil, and South Africa, which are among the most unequal countries in the world). More generally, countries with significant state capacity—including a reasonably well-functioning judiciary—but where large sections of the population are socially marginalized and the ruling elite is perceived as unresponsive—seem to provide particularly fertile grounds for social rights litigation.

  65. Octavio L. M. Ferraz, “Harming the Poor through Social Rights Litigation: Lessons from Brazil,” Texas Law Review 89 (2011): 1643–68.

  66. Daniel M. Brinks and Varun Gauri, “The Law's Majestic Equality? The Distributive Impact of Litigating Social and Economic Rights,” Washington, DC: World Bank Policy Research Working Paper No. 5999, 2012.

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For their comments and guidance, the authors thank the members of the American Political Science Association Task Force on Democracy, Economic Security, and Social Justice in a Volatile World, especially Michael Goodhart. The findings, interpretations, and conclusions expressed in this paper are entirely those of the authors. They do not necessarily represent the views of the International Bank for Reconstruction and Development/World Bank and its affiliated organizations, or those of the Executive Directors of the World Bank or the governments they represent.

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Gauri, V., Gloppen, S. Human Rights-Based Approaches to Development: Concepts, Evidence, and Policy. Polity 44, 485–503 (2012). https://doi.org/10.1057/pol.2012.12

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