ESIL-International Human Rights Law Symposium: Human Rights and Development Regimes – Reflections on Convergence and Influence

Human rights and development interact in a range of ways. They occupy many of the same spheres and this has increased due to the expanding reach of the development policy and activities alongside the proliferation of IHRL. Moreover the overarching goals of human rights and development regimes may be argued to enjoy a purposive affinity, particularly in areas of social and human development. Despite this interaction and affinity however, the relationship between these regimes evidences an evolution along separate tracks and development regimes’ relative autonomy from human rights law and general law may exemplify the fragmentation of international law.

This comment considers the degree to which human rights law has influenced development regimes, exploring the place of international human rights obligations in development policies and their impact in operational terms. Despite substantive overlaps and certain affinities, when assessed from the perspective of obligations, the uptake has been inconsistent and the direct influence quite limited. Viewed from the perspective of principles however, the uptake and influence are more extensive: the place of human rights principles such as participation, accountability, inclusion, equality and non-discrimination and attention to vulnerable groups is now rarely contested, even within mainstream development regimes.

What are the reasons for this differentiated influence? There are important qualitative differences between the frameworks governing human rights and development regimes. Law and legal accountability are defining hallmarks of human rights, which remain a quintessentially legal concept. As Coomans, et al. have written “[L]aw has remained central to the notion of human rights. […] it is law that authoritatively defines a society’s understanding of what are human rights.” Development, for its part, is underpinned by global goals such as the Millennium Development Goals (MDGs) or the Sustainable Development Goals (SDGs), and by the policy frameworks and strategies of development institutions, which do not generally rely upon international legal norms in direct or explicit terms. The binding legal frame of reference for development cooperation emerges either at the level of the constitutive instruments of development agencies (between member countries) or at the transactional level of individual legal agreements governing particular operations (between the agency and a client country). While each of these instruments is an international treaty under public international law few international development policy frameworks are defined in terms of international legal obligations: the text of both the MDGs and the new SDGs evidence this.

The divergence may be reinforced by the fact that the relevant frameworks have emerged at different times, by the existence of parallel responsibilities of different institutions and by the perception that these regimes were designed to fulfill different, and perhaps complementary, technical roles within the international legal order. In addition, philosophical differences exposed between countries in international human rights bodies are sometimes replicated in development contexts, making the elaboration of common approaches to human rights all the more challenging.

In terms of substantive approaches, development regimes have historically been either indifferent or resistant to the influence of IHRL. The reasons for this are complex and multifaceted, varying across institutions and evolving over time. They may be connected with long established understandings of institutional roles and mandates that do not include human rights. In some cases, this has resulted in development agencies taking the view that they lack the legal authority to interpret, much less enforce, IHRL. Some agencies are constrained by prohibitions on political activities and remain committed to politically neutral approaches in their policies and operations. Relatedly, agencies’ approaches may be influenced by a self-understanding of institutional independence and a concern with preserving autonomy within the international system. Other reasons may include the predominance of non-legal disciplines, premises and values within development regimes, and the predominant influence of economists and technical experts rather than lawyers in development agencies. Human rights law is also poorly understood in many development contexts, often associated simply with ‘naming and shaming’ or with human rights conditionality.

Notwithstanding the foregoing, the past 30 years have seen a marked shift in the discourse around human rights and development. Apart from early, influential milestones such as the 1986 Declaration on the Right to Development or the 1993 Vienna Declaration and Program of Action and a range of soft law measures emanating from the UN linking human rights and development, it is the emergence of human rights-based approaches to development that has played perhaps the most significant role in increasing the influence of the human rights in development regimes.

Among multilaterals, the UN system’s human rights-based approach and its guidance in development programming is widely considered to be based on human rights treaty obligations, even if the broader question relating to the UN’s own human rights obligations remains contested. The 2011 UN Principles on Business and Human Rights confirm the place of human rights in business and development finance underscoring the role of states as members of multilateral institutions in upholding the business responsibility to respect and the state duty to protect. Within the OECD, the Development Assistance Committee’s 2007 Action-Oriented Policy Paper on Human Rights and Development is based explicitly on IHRL obligations.

EU development cooperation draws explicitly on both internal and external human rights frameworks, anchoring human rights operationally in the treaty obligations of Member States. Article 9 of the Cotonou Agreement makes the respect of human rights an essential element of the agreement based on international human rights obligations. This explicit commitment to linking development cooperation with IHRL is likewise evident in the 2015 EU Action Plan on Human Rights and Democracy (2015-2019). Other EU measures like the 2007 EU European Instrument for Democracy and Human Rights also draw directly on IHRL, and the European Investment Bank (EIB) it is bound in its operations by the EU Charter of Fundamental Rights.

The 2001 New Economic Partnership for Africa’s Development (NEPAD) framework document makes several references to human rights and their links to development, confirming that African leaders will take joint responsibility for “promoting and protecting democracy and human rights in their respective countries and regions, by developing clear standards of accountability, transparency and participatory governance at the national and subnational levels” the illustrating the influence of human rights in a regional development regime.. In operational terms the NEPAD is directly linked to the regional human rights regime under the African Peer Review mechanism (APRM), with the final stage of review involving the African Commission on Human Rights.

The bilateral aid regimes of Austria, Denmark, New Zealand and Sweden among others have embraced HRBAs, adopting policies that contain explicit links to IHRL. At their strongest such policies emphasize that human rights are rooted in a shared legal framework, highlighting both partner and donor obligations under international human rights law and establishing operational entry points for their application in development activities.

Canada’s 2008 Official Development Accountability Act exemplifies the direct influence of IHRL, requiring development operations financed by Canada to be consistent with international human rights standards. Among the multilateral development banks, the EBRD is unique in its mandate explicitly including human rights. Its 2008 Environmental and Social Policy establishing human rights as a minimum standard defined in accordance with IHRL.

‘The EBRD will not knowingly finance projects that would contravene obligations under international treaties and agreements related to environmental protection, human rights and sustainable development as identified through project appraisal,’

Similarly, operating under the aegis of the Council of Europe, the Council of Europe Development Bank (CEB) is required to ensure that projects conform with the provisions of the ECHR and the European Social Charter, and the CEB Environmental Policy requires that “the CEB will not knowingly finance projects which are identified as undermining human rights.”

The interaction of human rights and development regimes is therefore significant even if the legal and policy approaches adopted in its face remain widely divergent. It is difficult to discern an automatic or direct consequence from the explicit inclusion of human rights in a development policy framework; certainly the mere mention of human rights does not imply support for or the adoption of a human rights-based approach to development Moreover, the adoption of a human rights based approach or a human rights mainstreaming policy cannot be equated with a compliance requirement vis-à-vis IHRL, and even donors with a long-standing and explicit commitment to human rights in development cooperation can be ambivalent about their own human rights obligations in the context of development activities.

Nevertheless, the influence of IHRL on a range of development regimes is discernable, whether in the affinity of their overall goals, or in functional terms where IHRL obligations operate as a standard for assessment. The influence of IHRL is even clearer in less formal legal terms through the increasing integration of human rights principles such as participation, accountability, inclusion and equality or non-discrimination. In addition to the uptake of these principles in environmental and social policies, a further sign of influence is the emergence of an inchoate duty to ‘do no harm’ among development actors and partners. This can be observed even for agencies whose mandates do not include human rights.

Despite efforts to promote greater international policy coherence around IHRL norms, the trend across development regimes is far from uniform. While there are points of convergence and evidence of the influence of IHRL, the prospects for systemic integration around IHRL obligations remain elusive. Thus, while human rights principles have effected a broad and enduring influence on development regimes, the limits of that influence remain apparent in respect of IHRL obligations.