111. HUMAN RIGHTS ARE CENTRAL OBJECTIVES OF THE DEVELOPMENT PROCESS; IT IS UTTERLY INSUFFICIENT TO REFER TO THEM AS ONE OF THE SEVERAL ‘CROSS-CUTTING’ ISSUES.

Claudio Schuftan and Urban Jonsson
cschuftan@phmovement.org
October, 2011

Biographic sketches:
Claudio Schuftan, M.D. (pediatrics and international health) was born in Chile and is currently based in Ho Chi Minh City where he works as a freelance consultant. He is an Adjunct Associate Professor in the Department of International Health, Tulane School of Public Health, New Orleans, LA. He received his medical degree from the Universidad de Chile, Santiago, in 1970 and completed his residency in Pediatrics and Nutrition in the Faculty of Medicine at the same university in 1973. He studied nutrition and nutrition planning at the Massachusetts Institute of Technology (MIT) in Cambridge, MA in 1975. Dr. Schuftan is the author of 2 books, ten book chapters and over fifty five scholarly papers published in refereed journals plus over four hundred other assorted publications. His positions have included serving as Long Term Adviser to the PHC Unit of the Ministry of Health (MOH) in Hanoi, Vietnam (1995-97); Senior Adviser to the Dept. of Planning, MOH, Nairobi (1988-93); and Resident Consultant in Food and Nutrition to the Ministry of Economic Affairs and Planning, Yaounde, Cameroon (1981). He is currently an active member of he Steering Group of the People’s Health Movement and coordinates PHM’s global right to health campaign.

Urban Jonsson, PhD, is a recognised leading international expert on the Human Rights-Based Approach to Development, particularly on issues related to health, nutrition, education and justice. After many years in leading positions in UNICEF, including as the Regional Director for East and Southern Africa Region where he was instrumental in the development of a Human Rights-Based Approach to Development for UNICEF as a whole. He is now working as the Executive Director of The Owls, a consultancy company providing professional assistance to governments and organizations in the area of human rights and development, based in Nairobi. He has facilitated over 50 training workshops on human rights and development, particularly of senior UN staff. He is widely sought after as a resource person, facilitator and consultant in all areas where the human rights-based approach is being adopted and used and has written extensively on this subject. Dr Jonsson passed away in March 2016.

Abstract
Human rights are not one of many equally important cross-cutting concerns. Why? Because the human rights framework puts demands for the fulfillment
of human rights squarely on the shoulders of claim holders –and this has implications for foreign aid in health. Why? Because:
• Donors emphasize ‘equal opportunities’ and ‘the effectiveness of aid’ rather than ‘equal results’, and ‘the realization of human rights’; in human
rights work, it is results that ultimately count.
• Donors avoid human rights commitments, because they reject it is an obligation for them to provide and to increase aid.

Inasmuch, realizing the fulfillment of the human right to health must be much more than just an outcome in health planning. Why? Because human right to health goals (such as those in the Millennium Development Goals – MDGs) can hardly be achieved and sustained in programs that have not formally mainstreamed a human rights-based approach. (1) In this vein, a critique is made here of the Paris Declaration on Aid Effectiveness (March 2005) because (2, 3):
• UN agencies were not involved in its genesis from the start.
• Human rights are barely mentioned in it leaving us with the question: What should the place of human rights in foreign aid be?
• It has a pitifully narrow and technocratic focus, fails to address asymmetries in power and gives little attention to the governance context, and
• It has the same legitimacy gap than the Bretton Woods institutions’ policies.

The human rights framework offers a good starting point for a political dialogue between donors and partner countries. Such a dialogue has regrettably not happened openly. Donors have to be moved beyond broad political statements and only generic references to human rights. Civil society’s capacity to hold donors accountable needs to be

We think it is time to move from declarations of aid effectiveness to declarations
of development effectiveness by defining development as the progressive realization of everybody’s human rights.

Running Head: Human rights, donors, Paris Declaration

Disclaimer:

It is appropriate to start this article with a disclaimer: The systematic use of the word ‘rights’ (like right to health) instead of ‘human rights’ (like human right to health) reflects a lack of understanding of their differences in human rights work. ‘Rights’ emphasize and reflect universal moral codes and, often, this does not refer to International Human Rights Law. Conversely, ‘human rights’ include both the ethical/moral and the international legal aspects. Human rights thus reflect both morality and legality plus the political connotations regarding the obligation of countries that have ratified human rights treaties codified in international human rights law.

The latter notwithstanding, a caveat is due here though: A disproportionate emphasis on the legal framework that sanctions obligations and on the legal avenues for claiming human rights can act as a barrier or a deterrent to the motivation and mobilization of groups whose rights are being violated who may not trust the legal system to apply the human rights framework in their favor.

Applying the human rights-based framework in the health planning process:

In pursuing greater social justice, the ultimate challenge we face, when applying the human rights-based framework, is to significantly sharpen our focus on the reduction of disparities in health by incorporating the human rights perspective in all health interventions, i.e., a perspective that fully reflects the aspirations and demands of people who are poor and marginalized.

The analytical steps followed when applying the human rights-based framework actually stand out clearly, primarily because these steps lead us to ask the right questions. Unfortunately, we know that most health development programs are not prepared as human rights-based programs despite the fact that there is an unequivocal international agreement on the need to apply the human rights-based framework in health programming. This being so, what are the right questions we really need to ask? In this day and age, to ask and to respond to the latter question, health planners have no choice but to include human rights standards and principles (as ratified in Human Rights Treaties and Economic, Social and Cultural Rights General Comments) in preparing their development plans.

Most donors and their partner countries have both ratified international human rights covenants and conventions; these are legally binding. As a corollary, in applying the human rights-based framework, there is no doubt about who is accountable and accountable for what. It reminds everybody that no one is above the law and that, therefore, no one should escape with impunity.

What does the above, then, call for?:
• We need to set up participatory dialogues at all levels that allow claim holders and duty bearers to assess and analyze the violations to the human right
to health that need to be overcome. There is plenty evidence that the active claiming of rights is an efficacious way to achieve better health outcomes.
• These dialogues represent an indispensable contribution to the development of a social consensus about those outcomes and about the processes needed
to reach those outcomes. (4)
• We thus need –but have, so far, failed– to better and more widely explain to the different actors in the health field why a human rights-based
programming process has a better chance of achieving the human right to health with sustainable health outcomes.

Why are these three key points central? Because governments’ relevant human rights commitments need to be explicitly included and referenced in their respective health plans –and also, importantly, need to be included in the goals and in the process indicators they choose to pursue and monitor. There are good reasons for thinking that results-monitoring-systems that put the accent on results-as-rights or results-which-are-fulfilled-rights are more successful in mobilizing domestic pressures for better performance than systems that use the dry and technical language of the monitoring and evaluation tools of the World Bank. For example, as regards the MDGs, evaluating aid effectiveness needs to be integrally linked to supporting human rights (including gender equality), democratic governance and environmental sustainability –which the Bank does not systematically do in the sense that each of them separately is necessary, but not sufficient.
We therefore need:
• To change the health monitoring system and move it out of the realm of the World Bank and into the realm of human rights where both outcomes and
processes are monitored.
• To ensure that indicators are framed in human rights terms, for example, by linking them to specific components of each identified violated health right.
• To define both outcome indicators (related to human rights standards) and process indicators (related to human rights principles).
• To proactively promote the inclusion of an explicit human rights perspective in health programming, both through dialogue and through the promotion
of broad-based national participation, including a representative array of health, development and human rights organizations.

Furthermore, despite the fact that human rights work focuses more on public sector reform than on public finances reform, there remains the challenge to align the financing of human rights components in national health plans with the existing government budgetary system –and this will not always be easy in practice.

Additionally, in non-democratic countries, human rights ownership should be more citizen-based than government-based. This split in favor of government clearly exists and should be recognized and proactively addressed. But although the human rights perspective is geared towards promoting citizen-based ownership, be reminded that there are several degrees of ownership, simply because optimal conditions require substantial institutional capacity that often does not exist at the base. This then provides us guidance on how program ownership ought to be operationalized. In other words, for their progressive realization, modest human rights initiatives in health, those within reach of the existing capacity stand a better chance of success than grandiose schemes.

The call for us health workers is thus to strengthen the relationship between the citizenry and the state, i.e., a move towards democracy since that is what democracy is all about. This represents a challenge only achievable by helping claim holders gain a growing bargaining power. This, keeping in mind that the human rights perspective needs to strengthen country ownership rather than government ownership; we better never forget that, in non-democratic regimes, Ministries of Health, of Planning or of Finance do not represent the people.

The role of claim holders and duty bearers

In the fulfillment of human rights and of the right to health, duty-bearers are accountable in many ways: through the budgetary allocations they make, through the capacity building they fund on skills needed to realize specific rights, as well as through securing rule-of-law in general and, more specifically, securing judicial-enforcement mechanisms for human rights.

In this context, it is further important to understand that, in demanding duty bearers’ accountability, any issue pursued with them is an actual right only if it
has been codified in a Human Rights Covenant or Convention (and/or its respective General Comment). This then means that all people have that right –in human rights parlance they are bona-fide rights-holders. If a country (state party) has ratified that convention or treaty, individuals move from being just rights-holders to being a claim-holders with valid claims on others, i.e., the correlative duty-bearers. This forms a ‘claim-duty pattern’ in society, in which, most often, the state is the ultimate duty-bearer . So, remember: It is claim holders that support the indispensable demand side of human rights!

Donors as duty bearers?

Donors have done pretty much as they wished for quite some time now, and this has too often not been of benefit to the recipient countries.

It is interesting to note that donors in the field of health consistently choose the term and pursue ‘equal opportunities’ rather than ‘equal results’. It can be argued that the second term is more human rights-reflective than the first since, in human rights work, it is results that ultimately count.

It is not surprising then that, in donor meetings, discussions avoid taking a stand on either of the two currently competing trends in the emerging paradigm struggle of international development cooperation, namely ‘the aid effectiveness’ and ‘the realization of human rights’ paradigms. (5)

A major reason for donor countries to avoid human rights commitments and even, in some cases, human rights language (and the right to health, in particular), is
their rejection of the idea that there is an obligation of donor countries to provide and to increase their aid. We further note that WHO very seldom uses the term ‘The Right to Health’; instead it prefers to talk about “Health and Human Rights”.

Additionally symptomatic is the fact that human rights and the right to development are not mentioned in the OECD Paris Declaration on Aid Effectiveness of March 2005, in spite of the fact that MDG 8 is precisely about developing a global (one would hope human rights-based) policy for donors. The Declaration does not address any of the seven targets of MDG 8 either.

So, after March 2005, we were left with the question that should have been answered in Paris in the first place, namely: What is, and what should be, the place of human rights conditions and indicators in the frameworks governing the flow of donor funds?

Not to be forgotten is the fact that the human rights framework is an excellent starting point for a political dialogue between donors and partners to define the ‘inner’ (in-country) and ‘outer’ (extra-territorial) boundaries of acceptable behavior with respect to human rights and related political governance issues.

Such a dialogue has regrettably not happened. Strong pronouncements thus need to be made by civil society and by poor countries’ governments to move donors beyond broad and vague political statements, including only generic references to human rights.

The Paris Declaration and Human Rights

The Paris Declaration is not a human rights document. One could maybe even say that the Paris Declaration is an anti-human rights document in that it systematically missed any reference to human rights at a point in time when most development-oriented documents did make such a reference. (In all honesty, the Paris Declaration implicitly does ‘refer’ to human rights in just a few places). By now, it is thus openly admitted that the Paris Declaration does not provide any ready-made and fully-consensual framework for the integration of the human rights framework in foreign aid. This is regrettable.

The issue of mutual accountability, for instance, is the least developed of the Paris Declaration principles; it places most accountability on the recipient countries; it would have benefited from a human rights perspective. Civil society’s capacity to hold donors accountable thus needs to be strengthened. Therefore, capacity development in human rights and on the right to health (i.e., Human Rights Learning) for civil society and health staff is, again and again, a key challenge.

Actually, the most prominently missing element in the Paris Declaration is its almost total lack of attention to the governance context. Let us be clear: Only by
integrating human rights into the Paris Declaration principles can we compensate for the low attention it gives to governance; only such an integration will:
a) strengthen the link between aid effectiveness and the achievement of desirable development and health outcomes, and b) compensate for the pitifully narrow and
technocratic focus of the Paris Declaration. The remaining challenge thus is to find the practical way to bring the human rights perspective to the implementation aspects of the Paris Declaration: a task still to be undertaken.

On the one hand, the Paris Declaration does offer good potential entry points for human rights-inspired approaches by promoting a model of partnership that explicitly addresses accountability gaps and focuses on stronger and more balanced mutual accountability mechanisms. But, on the other hand, it fails to provide institutional mechanisms to address ever-present asymmetries in power. That leaves out the discussion of the serious democracy and legitimacy deficits everybody can see in the present aid architecture, dominated as it is by donor countries of the OECD, the World Bank and regional development banks. Note that the UN lacks any leverage to promote its priorities in the Paris Declaration since it was not involved in its genesis to begin with!

Through the back door, the Paris Declaration brings-in quite a bit of what developing countries had already turned down before. Why? Because it really does not distance itself from the Bretton Woods institutions so that it suffers from the same credibility and legitimacy gap than those institutions.

In short, the relationships between the human rights principles of equality/non-discrimination, participation/inclusion, transparency and accountability, and the five Paris Declaration Principles (ownership, alignment, harmonization, mutual
accountability and management for results) must be somehow merged in a formal way –beyond the perception that human rights are one of many equally important
’cross-cutting’ concerns. We think it is time to move from declarations of aid effectiveness to declarations of development effectiveness by defining development as the progressive realisation of everybody’s human rights. (6, 7)

Furthermore, the Paris Declaration makes little mention of the donors home-based, domestic accountability to its citizens, in a way ignoring that human rights can contribute to strengthened domestic accountability in both donor and partner countries.
Bottom line, human rights thinking and practice do have the potential to help in filling the rather substantial gaps that exists for the operationalization of the Paris Declaration.

As an afterthought here, let it be pointed out that, for the reasons given above, it became extremely difficult to include any type of human rights language in the Accra Agenda for Action that reviewed the Paris Declaration in 2008. Even if human rights are mentioned in a few places in the Accra Agenda for Action, this does not, in any way, qualify the Agenda to be a ‘human rights document’ or even a document that has included the ‘human rights perspective’. At best, it gives it rhetorical lip-service –mostly to please some of the critical civil society organizations that attended.

Accountability in foreign aid

Foreign aid has, for long, been part and parcel of health planning and programming, let alone its financing. The international legal regime established through the various human rights treaties is the existing global accountability
framework which we should be drawing upon much more when holding donors accountable.

Efforts to increase the type of foreign aid that strengthens human rights accountability of the recipient institutions aid supports should go in tandem with the actual disbursement of foreign aid funds. But is this really the case?

As mentioned earlier, mutual accountability is the least developed Paris Declaration principle; it would definitely benefit from a human rights perspective. Civil society’s capacity to hold donors and their own governments accountable simply needs to be strengthened.

A number of the deep-seated problems in the current foreign aid system stem from an imbalance of accountabilities –with ‘upwards’ accountability to donors prioritized over ‘downwards’ accountability to the recipient countries and to the people aid is supposed to help. Such an accountability towards the ultimate recipients of aid is simply missing.

Domestic accountability requires a certain level of democracy and of functioning institutions for individuals to be able to claim their rights and to participate in decision-making. In a democracy, this duty must be met by the recipient government. But, as long as many governments are far from democratic, it is legitimate to expect the donors to take up such a duty.

In the donor countries, citizens can better hold (and have a history of holding) their government to account for the way their money is spent and by providing leverage for the negotiation of human rights issues. So, through demanding
greater human rights accountability of donor agencies, leverage can be used to demand the respect of human rights standards and principles in foreign aid, as well as the setting of annual benchmarks to measure progress in that aid. Sweden is a good example of a country that has done this very consistently for 30 years. (8)

Complicating things is the ever-present pressure on donors to show results. This turns accountability further outwards instead of supporting national, inwards processes necessary for achieving ownership and domestic accountability.

Aid darlings and aid orphans

It is true that aid is not the route to development anyway; it creates dependency and erodes self-reliance. To make things worse, we have to recognize the
existence of aid darlings and aid orphans and must, for now, improve the unfair global allocation of aid resources; health is no exception.

Many of the bilateral donor agencies and development banks use the phrase ‘respect, protect and promote’ instead of the correct phrase ‘respect, protect and fulfill’. The omission of ‘fulfill’ is deliberate reflecting these countries rejection of

the Human Right to Development which is seen by them as an acceptance of an obligation to provide development assistance. (9)

If we see development today within the realm of the human rights framework, we would contend development assistance must now be seen as a right rather than an instrument of solidarity –especially in health.

Ultimately, human right to health work exposes the political dimension of aid and of poverty. This being so, it is the claim holders who have to ensure that the
technical assistance on offer through foreign aid is truly demand-driven. For this, both donor and partner patterns of behavior must change; but this will only happen if the underlying incentives shift. As said earlier, country ownership of health and development programs should not be equated with government ownership. So, for example, if gender equality is not an explicit national priority (and in many cases it is not), the incentive is not there. The rhetorical question here is: Would gender equality then be entirely excluded from donor agendas …as human rights in general are? (10, 11)

The emphasis in foreign aid so far has been too centered on the ‘plumbing’ or ‘mechanisms’ of the aid delivery system and not enough on reducing poverty through the reduction of disparities if the aim really is to achieve equity and equality –as called for by the human rights approach to development. (12)

Under the pretext of making aid more effective, the aid effectiveness paradigm has become a form of ‘collective colonialism’ by donor countries when engaging with developing countries that, through weakness, vulnerability or psychological dependency, allow themselves to be literally subjected to this kind of aid.

In short, there is simply no aid effectiveness without development effectiveness and, for that, the gender equality, environment and human rights perspective must
be crucially incorporated to even have a chance to achieve this and future decades’ health development goals.

In closing:

The lessons to be learned here are quite dramatic. There is a need for more human rights training; especially the political economy connotations of it. The fact is that there is a fundamental misunderstanding in multilateral and bilateral agencies, governments, NGOs and other civil society organizations; it is about the real need for this training. The move from a traditional basic needs or human development program thinking to an understanding of the human rights-based framework to development and to development programming requires a total mind shift. This cannot be achieved by one or two four-day workshops; it requires at least such workshops several times a year for 2-3 years. For political reasons we all know well, no agency or government has come close to that, and it is in good part this lack of serious training that has hindered an accelerated adoption of the human rights-based framework in the health sector. This challenge can indeed be addressed!

References:

(1) United Nations, Claiming the Millennium Development Goals: A Human Rights Approach, United nations, New York and Geneva, 2008.
(2) OECD/DAC (2005), The Paris Declaration on Aid Effectiveness, http://www.oecd.org/dataoecd/11/41/34428351.pdf (accessed September 30, 2011).
(3) Tandon, Y. The Paris declaration and aid effectiveness, 2008 www.pambazuka.org/en/category/feature/486.34 (accessed September 30, 2011).
(4) Stammers, N. Social movements and the social construction of human rights. Human Rights Quarterly 21:980-1008 1999.
(5) Jonsson, U. The rise and fall of paradigms in world food and nutrition policy. World Nutrition 1:3, July 2010.
(6) Foresti, M., D. Booth and T. O’Neill. Aid effectiveness and human rights – strengthening the implementation of the Paris Declaration, ODI, London, September 2006.
(7) OECD/DAC. Draft Guiding Principles for Human Rights and Aid Effectiveness, September 2009.
(8) Government of Sweden. Democracy and Human Rights in Sweden’s Development Cooperation, Government Communication SKR 1997/98:76, and Government of Sweden. Human Rights in Swedish Foreign Policy, Government Communication 2003/04:20, October 30, 2003.
(9) Piron, L.-H. and T. O’Neil. A Synthesis and Analysis of Donor Experiences with Human Rights-Based Approaches to Development and Integrating Human Rights into Development Programming, ODI, London, August 2005.
(10)AWID and WIDE. Aid Effectiveness and Women’s Rights Series: Making Women’s Rights and Gender Equality a Priority in the Aid Effectiveness Agenda, Primer No.5, 2007.
(11) OECD/DAC No.2, and OECD/DAC. DAC Guiding Principles for Aid Effectiveness, Gender Equality and Women’s Empowerment, 2007 and 2008.
(12) OHCHR. Human Rights and Poverty Reduction. A Conceptual Framework, UN, New York and Geneva, 2004.

Footnotes AVAILABLE FROM THE AUTHOR

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