The International Journal of Human Rights Vol. 13, No. 1, February 2009, 29–43
The Millennium Development Goals and the human rights based approach: reflecting on structural chasms with the United Nations system Elvira Domı´nguez Redondo Department of Law, Middlesex University, London Security, development and human rights are identified as the three pillars of the UN. However, it seems that in practice there is no political will to ensure the complementarity of these three elements. The purpose of this paper is to shed light on the impact that the structure of the organisation has had on the separate development of the two discourses, namely that of development and human rights. This is arguably reflected at all levels of the organisation, and is most clearly visible in the recent attempt towards reforming the United Nations on the occasion of its 60th anniversary. Keywords: Millennium Development Goals (MDGs); human rights based approach; UN reform; UN special procedures
Introduction At the theoretical level it can be argued that the interdependence between security, development and human rights has been well founded and established by scholars of different disciplines.1 Furthermore, it would appear that the significant challenge of the current state of affairs in the international community lies in finding a way to appropriately address these three issues in a concerted manner. In the words of Charlotte McClainNhalpo: what is needed is sustainable economic growth, which must focus on the poor, with human rights at the centre. In short, a comprehensive approach and a coordinated strategy that tackles many problems simultaneously across a broad front.2
After stressing the fact that ‘all paradigm shifts in the development of human rights were the result of human rights disasters’ (such as the Nazi Holocaust, the apartheid or the genocide in Bosnia and Herzegovina), Manfred Nowak states that: I am afraid that the present human rights violations (increasing poverty, undermining of human rights by counter-terrorism strategies etc.) need to further deteriorate until governments finally wake up and realise that the implementation of the Millennium Development Goals and the safeguarding of human security demand a new paradigm shift in the protection of human rights.3
Email: E.Dominguez-Redondo@mdx.ac.uk
ISSN 1364-2987 print/ISSN 1744-053X online # 2009 Taylor & Francis DOI: 10.1080/13642980802532317 http://www.informaworld.com
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The necessary link between these three components is present in the political discourse at international level and conforms to the so-called ‘three pillars’ of the Organisation of the United Nations. In the context of the last attempt to reform the United Nations on the occasion of its 60th anniversary, the former UN Secretary General, Kofi Annan emphasised that ‘. . . we will not enjoy development without security, we will not enjoy security without development, and we will not enjoy either without respect for human rights’.4 This illustrates an increased awareness about the need to close the gap between the socalled ‘human rights based approach’ to development and the ‘development approach’ to human rights not only by scholars and activists, but also within the UN structures charged with the implementation of the Millennium Development Goals (MDG), other internationally agreed development goals and the spread of human rights.5 Therefore the efforts made at international level to promote and protect human rights and to advance in the implementation of the development agenda should take into account those theoretical factors. Conversely it seems that at institutional level the commitment to bringing the human rights and the development approach together remains mostly rhetorical. This paper addresses this gap from the institutional perspective; in particular, it discusses the lack of appropriate institutional support to implement a human rights approach to development within the current UN structures where discussions on human rights and development are kept compartmentalised. First of all it will be argued in this paper that human rights and development need to be tackled coherently from the overall institutional perspective of the UN. Therefore, at the very minimum, all the institutions of the same organisations at the same level (in this paper at universal level, i.e., the UN and specialised agencies and the Breton Woods Institutions) must take a coordinated approach when tackling human rights and development. Secondly, the recent reform of the UN can be seen as a litmus test for the existing political will to reduce the discrepancy between rhetorical references to the interlink between human rights and development as compared to the actual design of the programs and institutions. However, the latest reform process represents – as did previous attempts to reform the UN – yet another missed opportunity to: (1) strengthen the role of the Economic and Security Council (ECOSOC) and (2) establish a coherent and stable channel of communication between UN organs working in the field of development and in the field of human rights, despite the stated aim of such a process in the literature justifying the reform. The disconnection of the human rights mandate from under the auspices of the ECOSOC suggests instead a serious attempts to remove human rights mechanisms dealing with development issues within the newly created Human Rights Council: a disconnect that risks being augmented by the reform. Several proposals have been advanced as to possible strategies to guarantee closer cooperation between the Human Rights Council, the UN High Commissioner for Human Rights6 and the other UN bodies active in the field of development and poverty reduction such as ECOSOC, the United Nations Development Programme (UNDP) and other institutions such as the World Bank. While this increased cooperation is possible at least at UN secretarial level, it is unlikely to resolve the substantial issue that keeps human rights and development initiatives compartmentalised into different bodies and policies. Whatever the official discourse emanating from the UN may be, there is no consensus among countries (or other human rights/development practitioners) about the position that human rights activities and development should hold within the UN. The paper will conclude that this is the main obstacle to taking a coherent human rights/development approach.
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The reform of the United Nations: widening the institutional disconnect between human rights and development As a corollary of the interdependence between human rights, security and development, it has been emphasised elsewhere how MDGs and human rights are complementary and interdependent; how a human rights approach can help sharpen the strategies for achieving the MDGs and other internationally agreed development goals; and how a development approach can help the fulfilment of human rights. Furthermore, as Salil Shetty argues, the Millennium Declaration, from which the MDGs derived ‘. . . leaves no room for doubt or negotiation. The Millennium Goals are about realising the Right to Development within a broader human rights framework’.7 Nonetheless, until recently, development and human rights practitioners performed their day-to-day activities in a ‘splendid isolation’.8 To ensure that those responsible for the implementation of development programmes are informed by the human rights framework and that human rights practitioners are cognisant of development goals, it is crucial that a coherent institutional approach to development and human rights is instigated. The fact remains that at the level of the UN and its specialised agencies, the bodies dealing with human rights and development are not only separate from each other but they also lack any real mechanisms enabling them to coordinate their respective activities. The recognition of the transversal nature of human rights and the requirement of mainstreaming them within the structure of the UN, as stipulated in the organisational reforms of 1997, has only resulted in limited change, with its impact restricted to the secretariat of the Organisation of the UN; i.e., it did not change how the political decisions were made.9 Therefore, while these, among other changes introduced by Kofi Annan, have modified in significant ways the internal working of the Organization, they have had relatively little impact either on the way intergovernmental decisions are made or on the way others perceive the world body.10
The most salient result of the call of the Secretary General to mainstream human rights has probably been the attempt by different development agencies to adopt a common interpretation of the human rights based approach to development. In particular, the UN bodies participating in the ‘Interagency Workshop on a Human Rights Based Approach in the context of UN Reform’ on 3 – 5 May 2003 adopted a statement entitled The Human Rights Based Approach to Development Cooperation: Towards a Common Understanding Among the UN Agencies. The ‘Common Understanding’ for the human rights based approach to the development cooperation and development programming by UN agencies reads as follows: (1) All programmes of development co-operation, policies and technical assistance should further the realisation of human rights as laid down in the Universal Declaration of Human Rights and other international human rights instruments. (2) 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. (3) Development cooperation contributes to the development of the capacities of ‘dutybearers’ to meet their obligations and/or of ‘rights-holders’ to claim their rights.11 The Office of the High Commissioner for Human Rights (OHCHR) has been actively engaged in the task of providing technical assistance to development agencies and
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programmes on the practical implementation of this ‘Common Understanding’ and the integration of a human rights approach in general.12 One of the main outcomes of the OHCHR in this regard is its publication, Principles and Guidelines for a Human Rights Approach to Poverty Reduction Strategies.13 The objective of these Principles and Guidelines, which are focused on the role of the State in poverty-reduction strategies, is: to provide policymakers and practitioners involved in the design and implementation of poverty reduction strategies (PRSs) with guidelines for the adoption of a human rights approach to poverty reduction.
Despite this enunciation it remains difficult to assess how the cross-cutting agenda of human rights is implemented by all the UN programmes, agencies and funds and what this means in operational terms.14 Moreover, the meaning of what can be considered ‘cross-cutting’ or ‘a transversal issue’ within UN policies, programs and operations remains obscure, as evidenced by a paper prepared on 30 August 2006 by the Office for ECOSOC Support and Coordination (OESC) which was intended to clarify this terminology.15 In particular, the paper provides four examples: (1) The report of the Commission on Sustainable Development (UN ECOSOC doc. E/ 2003/29, Annex Table, 2003) which uses the terminology ‘cross cutting issue’ identifying the following topics: poverty eradication, changing unsustainable patterns of consumption and production, protecting and managing the natural resource base of economic and social development, sustainable development of small island developing States, sustainable development for Africa, other regional initiatives, means of implementation, institutional framework for sustainable development, gender equality and education. (2) The 2005 World Summit Outcome Document (UN GA doc. A/60/1, 2005) in paragraph 169 identifies its ‘horizontal policy themes’ as: sustainable development, human rights and gender. (3) The Secretary General Report entitled Towards achieving internationally agreed development goals, including those contained in the Millennium Declaration (UN ECOSOC doc. E/2005/56, 2005) enumerates a long list of ‘Core challenges and Key instruments repeatedly emphasised in the major UN conferences and summits’. In particular the issues distinguished as cross-cutting themes underpinning the MDGs are: advancing gender equality and the empowering of women, human rights and sustainable development. (4) Finally, the ECOSOC papers use the Draft Proposal of the G7716 that proposed, among others, the following as ‘cross-cutting issues to the conferences and summits’: means of implementation, trade, financing for development, science and technology for development, or employment. In conclusion this paper reflects that, depending on the document used as a reference, and the author of the relevant document, the terminologies and the issues identified vary widely. However, while development-related issues seem to be always present this is not the case for human rights. Beyond the confusing array of terminology and implementation of so-called ‘transversal’ issues such as development and human rights across the UN, it seems that little or no effort is being dedicated to the task of integrating human rights and development, or more particularly the MDGs, under a single or at least coordinated institutional heads. So, while
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the reform package launched by the Secretary General in 2005 insisted on the mutually interdependent nature of peace, security and human rights within the UN, and despite the fact that that reform addressed basic structural reforms, its results so far seem remote from the original purposes. First of all, this reform the UN on the occasion of its 60th anniversary has resulted in a milestone development in the history of human rights institutions: the abolition of the Commission on Human Rights (henceforth the Commission) and its replacement by the Human Rights Council on 15 March 2006.17 Besides any other rhetorical statement leading to this reform and the real reasons behind the disappearance of the erstwhile Commission and its replacement by the Human Rights Council, any serious attempt to make a substantive difference to the human rights institutions ought to have implied the introduction of proper competence to guarantee the proclaimed interdependency between human rights, peace and security and development. The preamble of the Resolution creating the Council clearly states: that peace and security, development and human rights are the pillars of the United Nations system and the foundations for collective security and well-being, and [recognizes] that development, peace and security and human rights are interlinked and mutually reinforcing.18
It is not the purpose of this paper to highlight how this attempt to reform the UN has once again resulted in a failure to provide the Human Rights Council at the very least with the competence to make direct recommendations to the Security Council. However, it may be pertinent to remember that some proposals have been made to bring together the activities of the ECOSOC and those of the Security Council. In that regard, a proposal19 has been put forward for converting the ECOSOC to a subsidiary body of a ‘unified leadership group’ that would merge an enlarged Security Council and a reformed G8 (the new G20).20 At a superficial level it may appear that something is being achieved on the ‘development/human rights’ front given that the Human Rights Council has been endowed with specific competence regarding development. The operative paragraph 4 of the resolution creating the Council expressly states: that the work of the Council shall be guided by the principles of universality, impartiality, objectivity and non-selectivity, constructive international dialogue and cooperation, with a view to enhancing the promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development.21
However, the other UN structural changes achieved alongside the creation of the Human Rights Council appear to accentuate the differences between the UN activities devoted to human rights and those devoted to development. The most obvious one is the detachment of the new Council from ECOSOC. Born to replace the former UN Commission on Human Rights, probably the most welcomed and uncontroversial result of this reform has been the ‘upgrading’ of the most important body of the UN devoted to human rights. Instead of a subsidiary body of the ECOSOC, the new body has instead been made a subsidiary to the General Assembly. This puts an end to the last clear institutional connection between organs dealing with human rights and development within the UN structures. Of course in reality this is only a superficial outcome, since the ECOSOC had mostly delegated all its competence over human rights issues to the erstwhile Commission, acting merely as a rubber stamp of the decision made
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by that body. Nonetheless, the disconnection between the bodies shows that the general trend of the reform is far from integrating human rights and development inside the organisation. The symbolic value of the detachment of ECOSOC and the main organ of the UN devoted to human rights increases if we take into account several reforms aimed at strengthening ECOSOC and specifically addressing its performance in achieving development goals. Another factor that will hinder any attempt to adopt a common approach for UN development and human rights activities at structural level is the size and number of UN bodies and actors with competences on development. The different bodies devoted to development within the UN, its specialised agencies and the Bretton Woods Institutions constitute an ever growing, intricate machinery, one that was already qualified by Sir Robert Jackson in 1968 as ‘incapable of intelligently controlling itself . . . unmanageable . . . becoming slower and more unwieldy, like some prehistoric monster’.22 Although he did not consider it within the realm of possibilities he thought that the solution would be to consolidate the whole machinery under one single head.23 Whether feasible or not, the proposals to consolidate the UN bodies in charge of development programmes abound. In the context of the ongoing discussions on ‘system-wide coherence’, developed countries are pressing an agenda that would imply the centralisation of all the activities and agencies involved in development. Hence, among the proposals circulated for the reform of the UN, 13 developed countries24 presenting themselves under the name of donor countries (G13) have insisted in integrating all the development agencies of the UN under one single head as part of what they suggest are the ‘key issues to strengthening the UN Operational System’.25 Other less radical proposals, but with similar spirit, have also been advanced by the United Kingdom and Belgium in different papers.26 For their part, the G77 and other actors (UNCTAD and UNICEF) immediately affected by this possible reform are opposing such a result, mainly due to the fact that it would undermine the concept of ownership at local level and deprive weak and marginalised groups (children, women, poor countries) from a voice within the UN system.27 Despite this opposition, a pilot project testing the UN ‘Delivering as One’ concept for development assistance was launched in eight countries in February 2007.28 One of the objectives of this project is to test whether MDGs can be better achieved by establishing a consolidated UN presence with one programme, one budgetary framework, one leader and one office. As the specialised organs of the UN are created according to their own treaties and enjoy autonomy, the kind of complete centralisation long proposed by the developed countries and others is quite unfeasible without major reform not only of the Organisation but also of all its specialised organs. This does not seem imminent nor is it likely to happen in the foreseeable future.29 In any case, it seems that in the current state of affairs while there is some level of coordination of UN human rights activities, primarily following the creation of the High Commissioner for Human Rights and its Office, this remains lacking of UN activities devoted to development. This has led to some scholars questioning the existence of a ‘UN system’ for development’.30 Since ECOSOC is the main body of the UN in charge of coordinating UN activities in the field of development, its reinforcement has been seen for years as a centrepiece of past and current attempts to reform the coherence within the UN vis-a`-vis its economic and social activities. In addition its role in the field of development has been shrinking over the past 60 years. The recent history in the UN era has shown that the Bretton Woods institutions have had far greater impact in addressing fundamental socio-economic questions, while ECOSOC as an organ has remained relatively inert. Many have defended an enhanced ECOSOC that can provide a more
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transparent and democratic structure than institutions such as the International Monetary Fund (IMF), World Bank or the World Trade Organisation (WTO). The first step (in the reform of ECOSOC) was enhancing its mandate during the UN 2005 World Summit, particularly in terms of monitoring the achievement of the MDGs. In November 2006, the General Assembly approved Resolution 61/16 entitled ‘Strengthening the Economic and Social Council’. This resolution effectively designated two new functions for ECOSOC: the Annual Ministerial Review and the Development Cooperation Forum. The Annual Ministerial Review (AMR) will be integrated in the high-level segment of the ECOSOC sessions. The AMR will focus on different thematic issues ‘common to the outcomes of the major UN conferences and summits in the economic, social and related fields, including the MDGs and other internationally agreed development goals’ (for instance, 2007 was devoted to the topic ‘Strengthening efforts to eradicate poverty and hunger, including through the global partnership for development’). Also, the AMR will ‘review progress made in the implementation of those conferences and summits and their follow-up processes and assess its impact on the achievement of the goals and targets of the conferences and summits . . .’31 In addition ECOSOC will biennially hold the Development Cooperation Forum, which aims to bring together representatives from all interested stakeholders on development. This includes not only state representatives, relevant UN bodies and other governmentally controlled organisations such as the Breton Woods Institutions, but also representatives of civil society and the private sector. It is still early to evaluate how much the addition of these two functions to the mandate of ECOSOC (AMR32 and Development Cooperation Forum) will reinforce its role vis-a`-vis the implementation and coordination of the UN activities that aim at achieving the MDGs and other internationally agreed development goals. However, the radical reform of the human rights system through the creation of the Human Rights Council raises doubts about the seriousness of strengthening the relationship between human rights and development since it has implied the removal of the human rights competence that was hitherto explicitly within the mandate of the ECOSOC.33 Thus the only UN organ dealing with both questions of development and of human rights will henceforth be the General Assembly. More significantly, there remains no official channel of communication between the Human Rights Council and other human rights mechanisms and ECOSOC. Oddly enough, the on-going debate on the reform of the Security Council remains an (albeit improbable) opportunity to provide an institutionally integrated platform for the enhancement of the effectiveness of human rights implementation within the UN linking the work of the Security Council, the ECOSOC and the Human Rights Council. While negotiations around the competence and configuration of the Human Rights Council and ECOSOC are closed until further review, there remain states that are defending the incorporation of human rights and development issues in the work of the Security Council thorough the implementation of a proper institutional relation between this organ and the Human Rights Council. As noted in the report of the ‘Five Facilitators to the President of the General Assembly’ on ‘The Question of Equitable Representation on an Increase in the Membership of the Security Council and Other Matters Related to the Security Council’,34 during the consultations it was suggested35 that a regularised, substantive dialogue should be established between the Security Council, the ECOSOC, the Human Rights Council and the Peace Building Commission (also in the implementation of their respective mandates).
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The substantial issues underpinning the inadequacy of the institutions dealing with human rights and development The last attempt to reform the UN seems to have relied on a basic misconception: that the problems the UN is facing are not political but institutional. This misconception cannot be attributed solely to Kofi Annan, the main sponsor of that initiative.36 As has been discussed in previous paragraphs, many states and scholars have shared this perspective and have advanced different proposals on the assumption that UN deficiencies are well known and the real tasks ahead are not to identify the ‘what’ or ‘why’ of change needed but the ‘how’.37 It seems logical that any serious attempt to work towards the realisation of human rights with a ‘development approach’ or vice versa necessitates some form of institutional coherence. However, these structures cannot exist without a basic political agreement about the interdependence of human rights and development and, more specifically, about their compatibility. UN structures currently reflect this lack of political agreement that translates directly into the difference in the normative tools used to advance and promote development and human rights. The disconnect between the bodies dealing with human rights and development is linked to the normative values associated with each of these fields. One of the most heated debates on efficient strategies for the implementation of human rights is the one that divides those who defend the usefulness of a ‘shaming and naming’ strategy against those who believe that this strategy will only lead to politicisation and selectivity. Related to this, there is a growing mistrust of human rights campaigners, both of governmental and of nongovernmental origin, among those countries and actors that have been ‘shamed and named’. Different strategies have been used to advance progress in the field of human rights and development, but typically ‘naming and shaming’ strategies are associated with human rights mechanisms while ‘technical cooperation’ or similar strategies are more often used to promote development. This is linked to the lack of legal force attached to development goals versus the legal force that attaches to (at least some) human rights.38 Since the strategies and the mechanisms are perceived as being different, the corresponding bodies that are considered appropriate to deal with these issues are also different. Because human rights have a normative force, some degree of ‘punishment’ ought to be associated with a failure of compliance. However, due to the fact that international human rights bodies do not generally have the authority to enforce their decisions, the only source of power remaining to them, and where their effectiveness is perceived as resting, is in ‘shaming’ those countries identified in their different reports and decisions. Studies attempting to determine the effectiveness of this have not led to clear conclusions.39 On the other hand, the absence of binding standards in the context of development goals has resulted in policies focused on technical cooperation within and outside the UN. It is interesting to note that all the developed countries that have advanced proposals with regard to instigating major restructuring of the UN and the consolidation of all development agencies under a centralised unit are in favour of the creation and support of UN mechanism to investigate human rights violations and the use of publicity as a deterrent and a ‘punishment’ for poor human rights records. However, the same countries have a different view of what strategy seems to be better suited to achieve development goals. A commentator states that: In terms of issues that the UN should be involved in, a reading of the papers and speeches of the reform advocates indicate that the UN’s development work will in future comprise mainly technical assistance, focusing on the poorer countries, and in so-called ‘niche’ areas such as conflict prevention and post-conflict reconstruction, domestic governance, and gender.40
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It appears that reliance on ‘technical assistance’ is the prevailing strategy. Moreover, one of the obstacles hindering the incorporation of a human rights approach by development practitioners or aid agencies is the absolute value attached to human rights that makes them ‘ill-suited to the difficult choices and trade-offs necessary in development’.41 The criticisms targeted at ‘conditionality clauses’, largely used by the European Union, are proof of the difficulty associated with imposing human rights standards as pre-conditions for the delivery of aid or any other goods related to development. In the context of the UN reform, many developing countries have expressed their concern that a human rights approach to development would be a way ‘to impose conditionalities on the delivering of development assistance to developing countries and particularly on UN development programmes which are primarily based in those States’.42 Legal status, and with it accountability, seems to be an important added value of the human rights approach to development precisely due to its binding force; compared to the non-binding force associated with the MDGs and other International Agreed Development Goals. The struggle to render economic, social and cultural rights and the so-called third-generation rights or solidarity rights justiciable is the most obvious reason that many human rights activists have entered into the arena of development.43 The possibility of using legal tools to achieve goals in the development arena has also been tested in practice, precisely through an innovative use of human rights mechanisms. Some illustrative examples of progressive approaches adopted by judges in countries such as Colombia, India and South Africa have illustrated the potential for making rights that are directly related to poverty and development legally enforceable by courts.44 However, these developments remain exceptions, examples of good practice, which are not always exportable to other situations. The dilemma remains as to how to maintain the absolute legal force of human rights while concomitantly making them more suitable for developmental purposes, where the main actors involved in their implementation strongly advocate a practical and flexible approach. Furthermore, it has not been proved thus far that the legal techniques used at international level to implement human rights are really effective. The studies focused on the efficacy of the advances made by human rights bodies have not (at best) yielded clear conclusions;45 nor have those devoted to a study of the implementation of the development agenda. As shown by the Millennium Development Goals 2007 Report, at the midpoint of the 15-year period to achieve the worlds agreed eight MDGs, it is not obvious that all, or even some, of them will be achieved on time. Furthermore, only one of the eight regional groups evaluated in the report seems to be on track.46 Paradoxically enough, the UN Public Special Procedures and other UN Charter-based human rights mechanisms that are under strong attack from developing countries such as those that form the Like Minded Group, the Asian Group, the African Group or the Organisation of Islamic States are also the only bodies flexible enough in the system to truly address human rights issues with a development perspective. This highlights another irony: the view that the Goals are binding has been put forward most vigorously by some of the private groups that are hostile to the UN and to what they see as its ambitions towards world government. In their view, the MDGs have been ‘automatically [incorporated] into international law’ as a result of the signature of the Millennium Declaration by 152 heads of state.47
Since public special procedures are born from political negotiations without a clear legal framework, their work often involves a mixture of diplomatic and legal skills.48 This may be the only viable approach that can result in a more coherent tackling of human rights issues and development. Many of these procedures deal with issues directly linked to the
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MDGs such as the mandates on the effects of economic reform policies and foreign debt on the full enjoyment of human rights, particularly economic, social and cultural rights, or extreme poverty; or the mandates on the rights to education, adequate housing, food and health. Some of the other mandates are focused on vulnerable groups that are also targeted by the MDGs, that is, children and women (violence against women, trafficking). Whilst there is great potential for the effective incorporation of the MDGs within the UN human rights activities of Special Procedures, their contribution has been considered disappointing,49 although significant improvements in this regard can be seen in recent years. As the paper by Professor Joshua Castellino in this collection highlights, the independent expert on minority rights has devoted one of her reports precisely to the relationship between the MDGs and the rights of minorities.50 This is not an isolated case. An increasing number of reports from special procedures not only mention or take into consideration the role of MDGs in helping to fulfil their mandates but also see the MDGs as a central element of their monitoring activities.51 Since these procedures have been created within the realm of a human rights body, all the mandate holders have shown a rights based approach when dealing with economic, social and cultural rights, rights of vulnerable groups, or rights usually classified as ‘third-generation’ rights (solidarity rights, such as environmental rights or the right to development). Therefore, in performing their tasks of standard-setting and the development of guidelines for implementation of the issues under their mandate the special procedures have helped raise the profile of rights considered ‘soft law’ or viewed as less justiciable than traditional ‘core’ rights (such as torture or the freedom of expression). The special procedures have also taken up communications on violations of rights under their mandate, many concerning rights for which no alternative mechanism for redress exists, due to the dearth of mechanisms dealing with socio-economic and cultural rights violations.52 The flexibility inherent in these mechanisms has made them unique in their ability to maintain interaction with those non-state actors who remain particularly relevant to their mandate. Furthermore, some of these special procedures have been created precisely to deal with the human rights implications of the activities of non-state actors (as in the case of the recently created procedure on human rights transnational corporations and other business enterprises). The discussions or so-called ‘interactive dialogues’ between the aforementioned mandate holders and governments during the sessions of the former UN Commission on Human Rights and now the Human Rights Council indicate that, despite the fact that many of these mandate holders develop techniques almost identical to those of mandate holders responsible for procedures addressing civil and political rights, their interactions with governments are often less confrontational.53 This could be attributed to the less adversarial approach adopted by mandate holders who are not in charge of civil and political rights. Therefore it would appear that there exist mechanisms capable of accommodating within their framework of activities the most sophisticated and interventionist techniques developed by legal human rights bodies: i.e. the study and processing of cases of violations and the performance of country visits; while at the same time also using other more diplomatic tools aimed at fostering a cooperative approach with governments by eschewing ‘naming and shaming’ oriented processes. Of course incorporating a human rights approach to MDGs at a UN institutional level in a coherent manner by avoiding contradictions between the political discourse and the actual practice can only constitute a limited contribution to the human rights based approach to MDGs. However, the lack of specific monitoring mechanisms to follow up the achievement of MDGs can be partly covered thorough a human rights perspective using the already existent human rights machinery within the UN.
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Conclusions In conclusion, many achievements can be highlighted vis-a`-vis the incorporation of a human rights based approach to MDGs. Among these are: (1) a recognition of the importance and advantages of applying this approach for development; (2) its incorporation in the theoretical and political discourse by stakeholders from both human rights and development fields; (3) the analysis and understanding of the elements underpinning the gap between theory and practice when it comes to an implementation of a human rights approach to MDGs; and (4) the formulation of strategies to overcome that gap integrating human rights and Millennium Development Goals approaches. This paper addressed the latter two points from the perspective of the work performed by the UN in seeking to synthesise its human rights work and MDGs focus within its own structures. Whatever the official discourse may be, there is no consensus among countries (or other human rights/development practitioners) about the position that human rights activities and development should hold within the UN. This remains the main obstacle to the establishment of a coherent human rights/development approach at institutional level. As argued, the different value and status attached to the human rights agenda and the development agenda are projected onto the UN structures set up to address both realms of activities. The 2005 reform has accentuated this divide by dispensing with the link between the ECOSOC and the new Human Rights Council. While this is arguably of little practical relevance, it nonetheless highlights that the stakeholders involved in the reform have not fully considered how the creation of a Human Rights Council could be achieved while maintaining links with the work performed within ECOSOC with a view towards realisation of the MDGs through a human rights framework. The proclaimed interdependence between security, peace and development remains merely rhetorical for many states, who instead appear to more clearly support and advocate a compartmentalised consideration of these areas and their associated standards and activities. Despite this lack of institutional support, human rights mechanisms can play an important role in introducing the MDGs into their work. This is particularly true for public special procedures, since the flexible configuration of their mandates and the flexibility of their working methods puts them in a particularly good position to familiarise human rights bodies with the language of the MDGs and engage them in their monitoring and implementation from a human rights perspective.
Notes 1.
2.
As is well known, the work of the Nobel prize-winner Amartya Sen (particularly Development as Freedom (Oxford: Oxford University Press, 1999)) has not only influenced the understanding of the link between poverty and human rights at conceptual level; it has strongly influenced the work of the bodies working in the field within the framework of both development and human rights. This is the case with UNDP and its Indexes on Human Development and Poverty. For the influence underlying the discussion on the relationship between poverty and human rights in the Office of the High Commissioner for Human Rights see OHCHR, Human Rights and Poverty Reduction: A conceptual Framework (New York: United Nations, 2004). For these and other examples of bodies and international development agencies that have endorsed both the capability approach to poverty as well as human rights to their policies on development and poverty reduction, see: Ulrik Halsteen, ‘Human Rights as a Means and an End to Poverty Reduction’, in The Human Rights Council: Challenges and Opportunities, ed. Jessica Almqvist and Felipe Go´mez Isa (Madrid: FRIDE, 2006), 111–23 at 113 –5. Charlotte McClain-Nhalpo, ‘Dialogue on Progress, Challenges and Opportunities for Achieving the Internationally Agreed Development Goals’, in Achieving the Internationally Agreed
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3. 4.
5.
6. 7. 8. 9.
10. 11.
12. 13. 14.
E. Domı´nguez Redondo Development Goals. Dialogues at the Economic and Social Council (New York: UN Department of Economic and Social Affairs, 2005), 67–72, 68. Manfred Nowak, ‘From the Human Rights Commission to the New Council’, in The Human Rights Council: Challenges and Opportunities, ed. Jessica Almqvist and Felipe Go´mez Isa (Madrid: FRIDE 2006), 19– 29, 29. Report of the UN Secretary-General, In Larger Freedom: Development, Security And Human Rights For All, UN doc. A/59/2005, 21 March 2005, para. 17. See also paras 13– 6. Furthermore, an important claimed element of the ‘Plan of Action’ designed by the OHCHR as called for in the Secretary General report In Larger Freedom (and included as Addendum 3 of that report) was to integrate human rights into UN development, peace and humanitarian activities. See also High Commissioner’s Strategic Management Plan 2008–2009 and 2007–2008 (Geneva: OHCHR, 2007/2008) Many are the recent UN documents and analytical reports from different organs and agencies of the Organisation underlying this. See for instance, UNDP, ‘Human Rights and Development’, Human Development Reports 2000 (New York: UNDP, 2000); Human Development Report 2003: Millennium Development Goals: A Compact Among Nations to End Human Poverty (New York: UNDP, Oxford University Press, 2003); OHCHR, Frequently Asked Questions on a Human Rights-Based Approach To Development Cooperation (Geneva: OHCHR, 2006); World Bank: Development and Human Rights: the Role of the World Bank (Washington: The International Bank for Reconstruction and Development/The World Bank, 1998.) Nowak, ‘From the Human Rights Commission to the New Council’, 27. Salil Shetty, ‘Millennium Declaration and Development Goals: Opportunities for Human Rights’, SUR-International Journal on Human Rights 2, no. 2 (2005): 6–21, 10. Peter Uvin, Human Rights and Development (Bloomfield, CT: Kumarian Press, 2005), 1. All UN Departments, Offices, Funds and Programmes were divided in five sectorial areas, namely: (1) Peace and Security; (2) Economic and Social Affairs, (3) Development Cooperation, (4) Humanitarian Affairs and (5) Human Rights. An Executive Committee was established for the first four areas while human rights was designated as a cross-cutting issue with participation in each of the other four sectors. Therefore, ostensibly human rights have been incorporated into all the institutional structures of the UN since then. See UN docs. A/51/829, secc. A, Strengthening of the United Nations System Programme Budget for the Biennium 1996–1997 (17 March 1997) and A/52/584, para. 26, United Nations Reform: Measures and Proposals (10 November 1997). Also: Ernst Sucharip and Englebert Theuermann, ‘The New United Nations and Human Rights Perspective in the Integrated Follow-up to United Nations Conferences and in the UN Reform Process’, Austrian Review of International and European Law 2, no. 2 (1997): 239– 59, 246–54. Edward C. Luck, Reforming the United Nations: Lessons from a History in Process (New Haven: Academic Council on the United Nations System, 2003), 27. Furthermore, the following elements are identified as ‘necessary, specific, and unique to a human rights-based approach’ to provide ‘good programming practices’ with human rights based approach: (a) assessment and analysis identify the human rights claims of rightsholders and the corresponding human rights obligations of duty-bearers as well as the immediate underlying and structural causes of the non-realisation of rights; (b) programmes monitor and evaluate both outcomes and processes guided by human rights standards and principles; (c) programming is informed by the recommendations of international human rights bodies and mechanisms, The Human Rights Based Approach to Development Cooperation: Towards a Common Understanding Among the UN Agencies, Outcome document from Second Inter-agency Workshop in the context of UN Reform (Stamford, CA: United Nations, 2003). Halsteen, ‘Human Rights as a Means and an End to Poverty Reduction’, 119 –21. OHCHR doc. HR/PUB/06/12 (2006). A recent book compares how successfully the UN Children’s Fund (UNICEF), the World Bank and the World Health Organisation (WHO) have actually fulfilled this mandate of integrating human rights standards in their operations. See Joel Oestreich, Power and Principle. Human Rights Programming in International Organizations (Washington DC: Georgetown University Press, 2007). The success of this human rights mainstreaming in the work of specialised agencies such as the Food and Agriculture Organisation (FAO), UNDP, UNICEF, the UN Development Fund for Women (UNIFEM) and the WHO has been studied in: Andre´ Frankovits, Mainstreaming Human Rights. The Human Rights-Based Approach and the United Nations
The International Journal of Human Rights
15. 16.
17. 18. 19. 20.
21.
22. 23. 24. 25. 26. 27.
28. 29.
30. 31. 32.
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System. Desk Study Prepared by UNESCO (March 2005). See also Andrew Clapham, ‘Mainstreaming human Rights at the United Nations: The Challenges for the First High Commissioner for Human Rights’, Collected Courses of the Academy of European Law 7, no. 2 (1999): 159 –233. This paper is available at ReformtheUN.org website, ,http://www.reformtheun.org/index. php/united_nations/c470?theme¼alt2. (accessed February 2008). Although 133 countries belong to this Group, they are still known as G77 due to the origin of the Group link to the signature of the ‘Joint Declaration of the Seventy-Seven Countries’ of 15 January 1967 at the end of the first session of the UN Conference on Trade and Development. This coalition of states tries to articulate and promote the collective economic interest of the developing countries. The Human Rights Council was established with the adoption by the General Assembly of the resolution 60/251 on 15 March 2006 with 170 votes in favour, 4 against (Israel, USA, Palau and Marshall Island). GA Resolution 60/251, preamble. Simon Maxwell, ‘How to help reform Multilateral Institutions: An Eight-Step Program for More Effective Collective Action’, Global Governance 11 (2005): 415–24, 415, 421. The G20 includes the countries of the G8 with the addition of other countries with a strong potential in the market (emerging-market countries). The official website of the G20 is ,http://www.g20.org/. (accessed January 2008). Currently integrated by 23 developing countries, the G20 was established on 20 August 2003 with the aim of having a stronger voice within WTO negotiations, particularly in the field of agriculture. Also in the Preamble, the Resolution creating the Council reaffirms that the decision to create the Human Rights Council has the end ‘. . . to strengthen the United Nations human rights machinery, with the aim of ensuring effective enjoyment by all of all human rights, civil, political, economic, social and cultural rights, including the right to development’. Resolution of the GA 60/251, 15 March 2006, preamble. Study by Sir Robert Jackson, A Study of the Capacity of the United Nations Development System, UN document DP/5, 2 vols. (Geneva: United Nations, 1969), ii [citation from Luck, Reforming the United Nations: Lessons from a History in Process, 19]. Ibid., 20. The G13 countries are: Belgium, Canada, Denmark, Finland, France, Germany, Ireland, Luxemburg, the Netherlands, Norway, Sweden, Switzerland, and the United Kingdom. Letter to the Prime Minister of Norway, Co-Chair of the Panel on UN Wide-System Coherence, sent by the G13, 23 February 2006, ,http://www.reformtheun.org/index.php/issues/ 2063?theme¼alt4. (accessed July 2007). See Martin Khor, ‘Developed Countries Press for Big change in UN structure’, South-North Development Monitor (SUNS), 26 March 2006. Torild Skard, ‘Frontal Attack on the UN’, Dagbladet, 28 April 2006; G77 and NAM, Joint Statement by G-77 and NAM on Informal Consultations of the General Assembly on United Nations System-Wide Coherence: UN Delivering as One at Country Level and Funding. UN document, New York, 3 August 2007; Martin Khor, ‘Don’t Use Reform to “Collapse” Or Merge Agencies, Says G77’, South-North Development Monitor (SUNS), 7 June 2006. See also: UNICEF, Assessment of UNICEF’s Contribution to UN Reform and its Impact on UNICEF: UN Reform Under the UN Development Group (New York: UNICEF, 2004), particularly 72, 73. Albania, Cape Verde, Mozambique, Pakistan, Rwanda, Tanzania, Uruguay, and Viet Nam. The change of the Secretary General may also influence the final result of these discussions, since it does not seem that the successor to Kofi Annan has the same interest as their predecessor in pushing forward the reform process. See Martin Khor, ‘S-G Ban Gives Mixed Response to Coherence Panel Report’, South-North Development Monitor (SUNS), 17 April 2007. Inmaculada Gonza´lez Garcı´a, ‘¿Existe un verdadero sistema de las Naciones Unidas en el a´mbito de la cooperacio´n internacional para el desarrollo?’, Anuario de la Asociacio´n de las Naciones Unidas, no. 7 (2005): 161 –201. Resolution 61/16, para. 8. However, it has to be highlighted that the short life of this Review is already marked by conflict, since the G77 and China have denounced the absence of developed-country presentations on their implementation status of the international commitments on development, in particular
42
33. 34.
35. 36. 37. 38.
39.
40. 41. 42. 43.
44.
45. 46. 47. 48.
E. Domı´nguez Redondo the MDG 8 (developing global partnerships for development). See comment by Celine Tan and Riaz K Tayob, ‘North should be subjected to ECOSOC Review’, South-North Development Monitor, 5 July 2007. See Article 68, Charter of the UN, 1945. Report of the Facilitators to the President of the General Assembly on the Consultations Regarding ‘The Question of Equitable Representation on an Increase in the Membership of the Security Council and Other Matters Related to the Security Council’ (New York: United Nations, 19 April 2007). Ibid., 18. About this misjudgement of Kofi Annan launching the reform, see: Luck, ‘How not to reform the United Nations’: 404 –14. Maxwell, ‘How to help reform Multilateral Institutions’, 415. Notwithstanding this, there is a growing school of thought that suggests a ‘legal status’ for MDGs. See: Philip Alston, ‘A Human Rights Perspective on the Millennium Development Goals’, Paper prepared as a contribution to the work of the Millennium Project Task Force on Poverty and Economic Development (Geneva: OHCHR, 2004) especially paras 34 –49. These studies are very limited for any kind of human rights body or activities but particularly scarce when it comes to the so-called ‘Charter-bodies’ of the UN and their human rights activities. Recently, based on a doubtful methodology (since it focuses on very few political and civil rights during a very short period), David Forsythe and Baekkwan Park have argued about the lack of impact of the activities of the former UN Commission on Human Rights (‘Turbulent Transition: From the UN Human Rights Commission to the Council’, paper presented at Conference The Protection of Human Rights by the UN Charter Based Bodies, organised by the Hebrew University of Jerusalem, University of Potsdam, Irish Centre for Human Rights (NUI), Potsdam, 25– 27 August 2007 (in author’s files)). See also James Lebovic and Erik Voeten, ‘The Politics of Shame: The Condemnation of Country Human Rights Practices in the UNCHR’, International Studies Quarterly 50, no. 4 (2006): 861–88. Some analyses focused on the effectiveness of human rights treaties also seem quite pessimistic in their results. See Todd Landman, Protecting Human Rights: A Comparative Study (Washington DC: Georgetown University Press, 2005); Hattaway, ‘Do Human Rights Treaties Make a Difference?’, Yale Law Journal 111, no. 8 (2002): 1935–2042. Khor, ‘Developed Countries Press for Big change in UN structure’. Uvin, Human Rights and Development, 30, 31. Non-Aligned Movement and G77, Joint Statement by G-77 and NAM on Informal Consultations of the General Assembly on United Nations System-wide Coherence, UN document, 24 July 2007. See for instance, Fons Coomans, ed., Justiciability of Economic, Social and Cultural Rights. Experiences from Domestic Systems (Antwerp: Intersentia, 2006); Merali Isfahan and Valerie Oosterveld, Giving Meaning to Economic, Social and Cultural Rights (Philadelphia: University of Pennsylvania Press, 2001); or Magdalena Sepu´lveda Carmona, The Nature of the Obligations under the International Covenant on Economic Social and Cultural Rights (Antwerp: Intersentia, 2003). For the role of the Indian Supreme Court judiciary in pushing the development on socio-economic rights see S.P. Sathe, Judicial Activism in India: Transgressing Borders and Enforcing limits (Oxford: Oxford University Press, 2002). A selection of relevant case-laws within these (India, South Africa, Colombia) and other countries has been compiled by ESCR-Net. See: ESCR-Net Caselaw Database: A database of Economic, Social and Cultural Rights, related jurisprudence, cases and other decisions, ,http://www.escr-net.org/about/about_list.htm?cat_id¼1393. (accessed February 2008) See bibliography cited above in note 39. This report is according to its own words ‘the most comprehensive global assessment of progress to date’, Millennium Development Goals Report 2007 (New York: United Nations, 2007). Alston, ‘A Human Rights Perspective on the Millennium Development Goals’, para. 36. The development of standard-setting considered as ‘soft-law’ in the context of the now disappeared Sub-Commission for the Promotion and Protection of Human Rights and the UN Commission on Human Rights has also allowed these bodies to be the first employing expressions such as ‘right to development’ or to develop human rights standards on extreme poverty. See Halsteen, ‘Human Rights as a Means and an End to Poverty Reduction’, 116 –8.
The International Journal of Human Rights 49. 50. 51. 52.
53.
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Alston, ‘A Human Rights Perspective on the Millennium Development Goals’, paras 165–72. UN doc A/HRC/4/9, 2007. See also the Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health submitted to the UN General Assembly, UN doc. A/59/422, October 2004. According to the Fifth Issue of the Special Procedures Bulletin in only the period April to June 2007 the mandate-holders have sent 275 communications concerning 84 countries and covering 521 individual cases. Available at: ,http://www.ohchr.org/english/bodies/chr/special/docs/ spb_bulletin5.pdf. (accessed 25 July 2007). There are also exceptions. For instance, the current mandate holder of the procedure on the right to food, Jean Ziegler, has been object of ferocious criticisms from governments in recent years, accusing him of pursuing his own agenda.