Human Rights-Based Change

The Institutionalisation of Economic and Social Rights

Maija Mustaniemi-Laakso, Hans-Otto Sano

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781315459431
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book provides different analytical perspectives into how human rights-based approaches to development (HRBADs) contribute to change. Based on the understanding that HRBADs are increasingly integrated into development and governance discourse and processes in many societies and organisations, it explores how the reinforcement of human rights principles and norms has impacted the practices and processes of development policy implementation. To reflect on the nature of the change that such efforts may imply, the chapters examine critically traditional and innovative ways of mainstreaming and institutionalising human right in judicial, bureaucratic and organisational processes in development work. Attention is also paid to the results assessment and causal debates in the human rights field. The articles discuss important questions concerning the legitimacy of and preconditions for change. What is the change that development efforts should seek to contribute to and who should have the power to define such change? What is required of institutional structures and processes within development organisations and agencies in order for human rights integration and institutionalisation to have transformative potential? This book was previously published as a special issue of the Nordic Journal of Human Rights.

Failures and Successes of Human Rights-Based Approaches to Development: Towards a Change Perspective

Wouter Vandenhole

Professor, Faculty of Law, University of Antwerp, Belgium

Paul Gready

Professor, Centre for Applied Human Rights, University of New York, USA

Human rights-based approaches to development (HRBADs) seem to be grounded in assumptions of change that remain implicit and therefore often undebated. These assumptions of change play at two levels, i.e. that of organisational change and that of social change. The main emphasis of this article is on organisational change as the logical precursor to social change. Explanatory factors for the challenges in introducing HRBADs in development organizations include the different legitimizing anchors that both use (normative versus empirical), as well as the differences in disciplinary backgrounds of staff and in role definition (confrontation versus collaboration with the state). An important finding is that result-based management and HRBADs may be more difficult to reconcile than often believed. The tension between both may be illustrative of the fundamental differences that continue to characterize development and human rights approaches, notwithstanding the rapprochement that has taken place over the past decade(s). We argue that more empirical work is needed in order to better understand organisational and social change through HRBADs.

The relationship between human rights and development has been framed in multiple ways.¹ From a legal perspective, there are three major conceptualisations: the right to development; transnational human rights obligations; and human rights-based approaches to development (HRBADs). The former two represent a rather fundamental overhaul of human rights thinking, as they introduce new substantive rights and corresponding obligations and, even more importantly, new duty-bearers.² HRBADs may be said to be more pragmatic and less ambitious, in that they do not envisage fundamental changes to the human rights framework. They are much more practice-orientated, i.e. they seek to introduce human rights principles into development thinking and practice.³ This more practical orientation does not make HRBAs easier or more simple though. In particular, their interplay with change is complex and under-researched.

HRBADs seem to be grounded in assumptions of change that remain implicit and therefore often undebated. These assumptions of change play at two levels. First of all, it is often assumed that the formal adoption of an HRBAD by an organisation implies that that organisation really applies an HRBAD. What seems to be ignored is that the introduction of any new policy requires organisational change which often provokes considerable internal resistance or is met with lethargy and bureaucratic attitude. This challenge applies all the more to the introduction of an HRBAD which can be considered a rather legal or even legalistic approach to fundamental social or economic questions despite its focus on principles. Secondly, whether and how social change takes place depends on a complex interplay of actors, institutions and policies. A straightforward causal relationship between an HRBAD and the envisaged social change is often presumed, however, in particular within result-based paradigms. Whereas organisational and social change are to be distinguished analytically, in practice they are often intrinsically linked. For a start, it is unlikely that the envisaged social change will occur if the organisation fails to adopt and implement its HRBAD policy properly in the first place.⁴ Secondly, the way an organisation thinks about effecting social change as part of the adoption of an HRBAD will inevitably impact on whether and how it achieves social change.

In what follows, we shall first succinctly introduce HRBADs and the role of law and legal institutions therein. We shall then look into the transformative potential of (human rights) law in society. Although much more empirical research is needed before anything meaningful can be said about the contribution of HRBADs to social change, we do not completely omit this point given its intrinsic link with organisational change in practice. However, logically, purposive social change may only be effected by an HRBAD to the extent that an organisation has really managed to introduce such an approach more or less successfully. The main emphasis of this article is therefore on organisational change as the logical precursor to social change. In section 3, we shall draw out what it took in particular for an international organisation like UNICEF to introduce an HRBAD, based on empirical case studies that have been conducted by others. By way of contextualisation, we include an exploratory investigation into the introduction of an HRBAD by the United Nations at the country level, by states (Norway and Sweden) and by non-governmental organisations (ActionAid) from the perspective of organisational change.

The nature and scope of the exercise is obviously limited due to the fact that we could only draw on existing empirical work (rather than undertake empirical work ourselves), but that methodological limitation does not pose a fundamental obstacle at this stage, where the main purpose is that of drawing more attention to the change perspective in understanding the limited headway HRBADs have made so far. To the extent that the available empirical data allow for it, we shall use a similar analytical matrix. In particular, we shall pay attention to internal reflection and planning, and leadership and true believers⁵ as explanatory entry points for organisational change following the introduction of an HRBAD.⁶ In addition to these drivers of change, we shall look into frequently mentioned spoilers of change, such as lack of capacity and staff turnover. At the interplay of organisational and societal change is the tension between result-based management and HRBADs.

By drawing attention to the (often naïve or simply wrong) assumptions of organisational and social change in HRBADs, we do not seek to dismiss them. Rather, this exercise seeks to gain a better understanding of when and why an HRBAD works. After two decades of mainly promotional literature on HRBADs stressing their added value,⁷ the time may have come to strengthen the knowledge base on HRBADs and to address the hard questions more explicitly.⁸ This piece is a modest attempt to contribute to that research agenda setting exercise. Further detailed empirical research will be needed to corroborate or dismiss the hypotheses that we advance here.

I. HRBADs and the Role of Law and Legal Institutions

There is no single or universal definition or practice of HRBAD, hence the word is used in the plural. Nevertheless, some common characteristics of HRBADs can be identified. The Office of the High Commissioner for Human Rights (OHCHR) correctly emphasises that HRBADs are both about process and outcomes: whereas HRBADs are operationally directed to promote and protect human rights as envisaged outcomes, their normative grounding in human rights standards also draws attention to the process through which the outcomes are achieved.⁹ So, HRBADs claim to change the way development work is done (process), and also put forward full human rights realisation as the goal of development work (outcomes). In both respects, change is a central notion: a change is proposed as to how development is carried out (which has inevitable implications on organisations involved in development work), and the objective of full human rights realisation will require fundamental social change.

The grounding in human rights means first and foremost that HRBADs often draw on the legal codification of human rights norms and standards in United Nations and regional treaties, as well as in municipal law, and on the work of human rights monitoring bodies and courts. A degree of commonality may be found in the fact that HRBADS share some human rights principles, which may be aptly summarised by the acronym PANEL: participation, accountability, non-discr...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright
• Contents
• Citation Information
• Notes on Contributors
• Introduction
• 1. Failures and Successes of Human Rights-Based Approaches to Development: Towards a Change Perspective
• 2. Participatory Approaches to Socio-Economic Rights Adjudication: Tentative Lessons from South African Evictions Law
• 3. Modernisation of Maternity Care in Malawi
• 4. Education in Pursuit of the Development Dream? Effects of Schooling on Indigenous Development and Rights in Bolivia
• 5. Mainstreaming Human Rights in Development Programmes and Projects: Experience from the Work of a United Nations Agency
• 6. Evidence in Demand: An Overview of Evidence and Methods in Assessing Impact of Economic and Social Rights
• Index