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
Special Adviser to the United Nations High Commissioner for Human Rights on the Millennium Development Goals
Professor of Law, and Faculty Director, NYU Law School,
Center for Human Rights and Global Justice
Table of Contents
1. Introduction 1
Overcoming the Historical Legacy 9
2. Human Rights Critiques of the MDGs 18
Responding to the Critiques 24
The Privatization of Rights 29
3. Comparing the MDGs with Human Rights 34
(a) The Legal Status of the MDGs versus that of Human Rights 35
(b) The Internationalization of Responsibility 43
(c) The Role of Civil and Political Rights within the MDG Framework 50
(d) The Relationship Between Economic, Social And Cultural
Rights and the Equivalent MDGs 62
(i) Poverty as a Human Right 63
(ii) The Role of ESCR 71
4. The Role Currently Accorded to HR in MDG Reporting 75
(a) The Theory 75
(b) The Practice 84
(c) Explaining the Gap between Theory and Practice 96
5. Can ‘Human Rights-based Approaches’ Provide the Solution? 101
6. Identifying the Key Characteristics of an Integrated HR/MDG
Approach at the National Level 124
7. Monitoring and Accountability: The Role of the UN’s Human
Rights Mechanisms 139
The Roles of the CHR and of Special Rapporteurs vis-à-vis MDGs 145
Treaty Bodies MDGs Role 152
MDGs and the Treaty Bodies up to 2004 156
A Future Role for the Treaty Bodies 157
Recommendations to the treaty bodies 165
8. Conclusions 173
In a number of respects there would appear to be a natural fit between the MDGs and a limited range of specific human rights norms. Yet neither the human rights nor development communities have unreservedly embraced a marriage between the two approaches. It is important to understand why. The first set of reasons is of general applicability and concerns the historical division between the two communities, reflecting different disciplinary assumptions, the influence of the Cold War, and competing institutional and jurisdictional claims. In recent years efforts to promote ‘rights-based approaches to development’ have made considerable headway within the UN system, but progress has been more impressive on paper than in practice. It has, however, served to underscore the potential commonality of efforts to ensure HR/MDG synergies.
The second set of reasons explaining the reluctance relates to concerns on the part of the human rights community about the nature of the MDG project as a whole. Not much can be done about essentialist critiques that would impugn any selective, numerically focused, and essentially pragmatic approach such as the MDGs. But other human rights-related critiques can and should be addressed. They are directed at: the perceived technocratic nature of the process, the limited goals which are set (e.g. only halving poverty, rather than eliminating it), the lack of a full human rights framework especially in relation to civil and political rights, a failure to address the private sector, the perception that a commitment to the MDGs would absorb too much of the time, energy and resources currently devoted to human rights campaigns (including those focused on women’s rights and children’s rights), and inadequate monitoring and follow-up.
This report suggests that most, if not all, of these critiques can be dealt with by specific, targeted measures. It then reviews some of the reasons why the development community should consider making the necessary adjustments so that the MDG campaign can benefit fully from the advantages offered by incorporating the human rights dimension. These include: the advantage of building upon legal obligations already voluntarily undertaken by governments which have ratified human rights treaties; the mobilizational potential of rights discourse; the added value and credibility brought to the MDGs by applying norms of non-discrimination and equality to ensure that aggregated approaches do not neglect individuals; the specificity given to vague terms such as participation and empowerment when particular civil and political rights norms are invoked; the potential role of human rights institutions which already exist at the national level in many countries; and the potential contribution of increasingly sophisticated international accountability mechanisms in the human rights arena.
The paper then examines the legal status of the MDGs, and particularly the claim that they reflect customary international law and are thus binding on all governments. It concludes that a plausible claim can be made that at least some of the MDGs enjoy this status. It is, however, very difficult to argue that a human rights-based obligation has emerged which would require wealthy countries to provide specific assistance to any developing country which is unable to meet the economic and social rights of its citizens. On the other hand, the case is potentially much stronger in favour of the gradual emergence over time of such an obligation linked to the MDG commitments which have been reaffirmed so often by developed countries and the much more limited, specific and feasible nature of any such obligations. An important step in this direction is to report upon and monitor specific undertakings given by developed countries in the MDG context.
The paper next considers the relationship between the MDGs as currently promoted and the two sets of human rights. In relation to civil and political rights the text of the Millennium Declaration contains a significant number of important references but these are not reflected in any of the specific MDGs. By taking the BWI’s Global Monitoring Report 2004 as a test case the study concludes that there remains strong resistance to the inclusion of human rights within the MDG framework, that while rule of law-type issues are addressed they are defined restrictively, and that instrumentalism – rather than principles or obligations – is the main reason why such issues are included at all. In relation to economic, social and cultural rights, consideration is given to whether poverty is, per se, a human rights violation, the extensive overlap between these rights and the key MDG targets is noted, and the importance of an approach which integrates both sets of human rights is emphasized.
The paper then considers the role currently accorded to human rights in reporting on the MDGs. It contrasts the markedly human rights-conscious approach reflected in the theory – represented by the UNDP Human Development Reports and the UNFPA State of World Population 2004 Report – with the treatment accorded in practice to human rights, as illustrated by the great majority of national MDG reports, in which the issue is either absent or rates a tokenistic reference. The few exceptions serve mainly to demonstrate what could be done but is not. The paper considers some of the reasons for this neglect and argues that a failure to remedy it will reinforce the concerns of those who see the MDGs as a human rights-free zone.
Against this background the report tackles the two major issues of how the MDG process can be made more human rights-aware and how the human rights framework can enhance the effectiveness of the MDG initiative. Several critiques of existing ‘human rights-based approaches’ are identified: they not infrequently tend to gloss over the complexities, idealize the characteristics of the human rights mechanisms, are overly demanding, and are poorly attuned to the need for operational priorities. Human rights advocates need to prioritize, stop expecting a paradigm shift, and tailor their prescriptions more carefully. The key elements in a new approach to ensuring effective complementarity between HR and the MDGs are: (i) overt recognition of the relevance of human rights obligations; (ii) ensuring an appropriate legal framework; (iii) encouraging community participation but doing so in a realistic and targeted way; and (iv) promoting MDG accountability mechanisms. All of these elements should avoid being too prescriptive. Instead, what is needed is faith in the dynamism and self-starting nature of the rights framework once it is brought inside the gates.
The final part of the paper notes the new emphasis on accountability in the development literature which highlights the potential relevance of international human rights accountability mechanisms. But research shows that the UN Commission on Human Rights and its Special Rapporteurs have taken minimal account of the MDGs, despite a rhetorical embrace. The treaty bodies which monitor states’ human rights obligations have also largely ignored the MDGs and the paper sets out various ways in which this might be changed.
(i) There are clear synergies and commonalities of interest between the human rights and development communities in relation to the MDGs. Both sides need to make a greater effort to identify an acceptable modus operandi (para. 16).
(ii) The human rights community should take the MDGs much more seriously. It is the single most important and pressing initiative on the international development agenda and provides an opportunity for collaboration which has no parallel (para. 16).
(iii) Human rights proponents have put forward many critiques of the MDGs. These should be acknowledged (paras. 18-23), and systematically responded to (paras. 24-28).
(iv) The role of private actors, especially corporations, in relation to the MDGs should not be neglected. The main responsibility rests with the state and the Human Rights Committee has spelled out ways in which the situation can be approached (paras. 29-33).
(v) The claim of at least some of the MDGs to the status of customary international law norms should be promoted within the MDG framework (paras. 40-42)
(vi) The best way to advance the claim that developed countries have international responsibility for ensuring that all states can meet the MDGs is for the industrialized countries to accept clear reciprocal undertakings (para. 49).
(vii) Efforts to meet the MDGs should be conceptualized and presented within a clear human rights framework. While the Millennium Declaration itself does this, the vast majority of analyses produced by the development community entirely neglect this dimension (paras. 50-61).
(viii) While the slogan that ‘poverty is a violation of human rights’ is potentially justified, the legal foundation for such a statement is a qualified one and care should be taken in using the slogan (paras. 63-70).
(ix) Wherever possible the various MDGs ought to be presented in terms that highlight their status as universally recognized economic, social and cultural rights (e.g the right to education and the right to food) (paras. 71-74)
(x) The MDG National Reports reveal a highly unsatisfactory approach to the human rights dimensions of the issue (paras. 84-95). Efforts should be made to ensure that future reports contain a separate section addressing a specific list of human rights issues that are of essential relevance to the MDG campaign (paras. 96-100).
(xi) Human-rights based approaches to development have made a major contribution to understanding the issues involved but for the most part they are overly ambitious and fail to set clear priorities (paras. 101-123).
(xii) The way forward is for the human rights component of the MDG initiative to emphasize four elements. Thus, MDG strategies and reports should:
expressly recognize the relevance of the country’s national and international human rights obligations to the MDG effort (paras. 126-31);
define what is considered to be the appropriate legal framework within which the MDG targets can be met in a context which respects human rights (para. 132);
affirm that broad-based and meaningful participation in decision-making will be sought, and spell out what this means in practice. Where any international human rights body has indicated that any aspect of the freedom of individuals to participate is currently limited in the country concerned this should be noted and addressed (para. 135); and
identify domestic institutional arrangements for monitoring MDG processes and outcomes. Ideally a clear role in this respect should be accorded to the national human rights commission or equivalent agency (paras. 136-38).
(xiii) Monitoring and accountability mechanisms are essential, as has been emphasized very clearly in the major reports by the World Bank, IMF and UNDP published in 2004 on the PRSP initiative. These organizations should be urged to consider how the relevant and extant human rights monitoring arrangements might be relevant in this respect.
(xiv) In this context the UN Commission on Human Rights, its relevant Special Rapporteurs and the UN human rights treaty monitoring bodies have important roles to play to ensure that human rights monitoring is adapted to take full account of the MDG commitments. Since their contributions to date have been disappointing it is recommended that: the Commission should adopt an explicit resolution calling for closer collaboration, where appropriate, between the various mechanisms that report to it and the MDGs; the Special Rapporteurs should focus more systematically on the MDGs in all aspects of their work and especially in the context of country missions; and that the treaty bodies should adopt a range of initiatives designed to promote the MDGs while also reinforcing their own efforts (paras. 165-72).
A HUMAN RIGHTS PERSPECTIVE ON THE
MILLENNIUM DEVELOPMENT GOALS
1. Are the aims, assumptions and processes of the Millennium Development Goals [MDG] initiative entirely consistent with those of international human rights law? Or are they more accurately characterized as being: (ii) potentially complementary; (iii) not necessarily inconsistent; (iv) duplicative; or (v) competing alternatives? All of these characterizations have been put forward in the now burgeoning literature.
2. The 2003 Human Development Report made the case in a nutshell for the first option: The Millennium Development Goals not only ‘mirror the fundamental motivation for human rights’, but they also ‘reflect a human rights agenda – rights to food, education, health care and decent living standards’.1 And the UN High Commisssioner for Human Rights reported in 2002 that ‘[t]he strategies to reach the Millennium human rights goals and the Millennium development goals reinforce and complement each other.’ Indeed, in her view, [m]ost if not all of the strategies to achieve the [MDGs] operate within a human rights framework.’2
3. Indeed it is often assumed that the MDGs and human rights are not just significantly overlapping and mutually reinforcing, but fully compatible and complementary. They are seen as a natural fit, driven by the same objectives, using very similar means, facing common obstacles, and relying on closely related constituencies and political dynamics in order to make progress. As Jahan has put it, the MDGs ‘are solidly anchored, both in terms of substance as well as process, into human rights’.3
4. It would be a mistake, however, to take this love-in too far, either at the conceptual or empirical level. In fact the MDGs reflect only a partial human rights agenda and a clear challenge exists to ensure that there is full mutual compatibility. Merely wishing it so will not make it so. While an ideal version of the MDGs is certainly compatible, a barebones version which is sometimes put forward might accord only a token role to civil and political rights and endorse a very limited portion of the overall economic, social and cultural rights agenda. Thus the differences need to be acknowledged and strategies need to be identified for ensuring authentic compatibility.
5. If the natural synergies that would seem to exist within the MDG/HR equation are to be realized there is a great deal that needs to be done. The existing situation is far from exploiting those synergies and it is by no means clear that the constituencies which support and promote either of the two sides of the equation are yet convinced of the value of close collaboration.
6. On the MDG side, references to human rights are relatively fleeting, rarely rely on any precise formulations and generally content themselves with an occasional reference to the Universal Declaration of Human Rights or the Declaration on the Right to Development. As we shall see below, there are precious few references to human rights terms or concepts in the 60 or so national MDG reports prepared to date.4 And in these and other analyses there seems to be an enduring predilection for the use of alternative terms, one of the principal attractions of which is that they have no fixed normative content, at least when seen from a human rights perspective. Terms such as governance, equity, participation, dignity have much to be said for them but unless rooted in identified standards their meaning is conveniently open-ended, contingent, and too often subjective.5
7. The response to the MDGs on the human rights side has not been perfect either, as detailed below. The MDGs have drawn remarkably limited attention in the context of either the General Assembly’s deliberations on human rights matters, or those of the Commission on Human Rights. While some of the latter’s Special Rapporteurs have made occasional reference to the Goals, their focus has been neither systematic nor sustained, and none of them has sought to make strong use of them as a basis for his or her work. The human rights treaty monitoring bodies have also paid only scant attention to the Goals, and human rights NGOs, while not hostile, seem to have been wary of them. The major NGOs have acknowledged their existence but done little more, many women’s rights groups have engaged directly with them but a significant number has also expressed strong reservations about the desirability of full engagement, and children’s rights groups have generally failed to make systematic use of the MDGs, although an increasing number of critiques is starting to emerge.
8. Nevertheless, the resulting picture is far from being entirely negative and there are some grounds for optimism. The strong support manifested in UNDP’s Human Development Report 2003, the openness of the Millennium Project to human rights in general and women’s rights in particular, and the extent to which there really is a natural potential fit between the two frameworks, should lead us to see the overall picture as one in which both sides are open to closer collaboration. The shared interests between the MDGs and the HR framework are strong and the challenge is to devise means by which to effectively realize the potential synergies. The conclusion reached by the Human Development Report 2000 remains entirely apposite to the MDG/HR relationship:
Human development and human rights are close enough in motivation and concern to be compatible and congruous, and they are different enough in strategy and design to supplement each other fruitfully. A more integrated approach can thus bring significant rewards, and facilitate in practical ways the shared attempts to advance the dignity, well-being and freedom of individuals in general.6
Overcoming the Historical Legacy
9. In many respects the relative reluctance of both sides on the HR/MDG equation to embrace one another is no more than a continuation of the separate paths taken by human rights and development issues in the course of the first 45 years or so of the post World War II era. In fact, the analysis contained in the present report provides a convenient and useful lens through which to survey the current state of the HR and development relationship in general.
10. For several decades after the proclamation of the UN Charter, with its path-breaking human rights provisions, and the subsequent adoption of the Universal Declaration of Human Rights in 1948, the energy invested by the international community into the promotion of a development agenda and a human rights agenda resulted in products that were deliberately kept entirely apart from one another. Rare was the development context in which it was considered appropriate, productive, or politically acceptable to make mention of human rights considerations. Development economists, as well as the leading institutional generators of development policy, did little to undermine the resulting artificial separation.
11. The end of the Cold War and a range of associated factors opened the doors to change, and the work of Amartya Sen in some respects epitomized the new approach. Within the United Nations system UNICEF took the lead in the mid-1990s in linking children’s rights and operational development programs7 and in embracing the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination against Women as foundations for the Organization’s work. This process also has relevance to the focus of the present paper because in some respects the goals that had been agreed upon at the 1990 World Summit for Children were subsequently understood and promoted in terms of the specific legal obligations undertaken by countries which had ratified the CRC.
12. UNDP’s Human Development Reports were also at the cutting edge from 1990 onwards in terms of bringing human rights issues in out of the cold. In particular, the publication of the Human Development Report 2000, which developed the theme of human rights and development in considerable depth, constituted a definitive watershed by bestowing an essential legitimacy on efforts to explore and understand the links between the two policy agendas. These innovations were also reflected elsewhere in the international development community. The much-cited World Bank report Voices of the Poor, 8 based on interviews with over 60,000 persons and the subsequent World Development Report 2000/2001 highlighted new approaches to poverty analysis. While the latter’s approach was built upon the three ‘pillars’ of opportunity, empowerment and security, the former served to highlight the importance of addressing questions of empowerment and not only the availability of goods and services.9 The ten ‘assets and capabilities’ identified by the interviewees in the Voices report had very clear analogues within the human rights framework. In the past few years this evolution in thinking has given rise to a substantial number of efforts within and among UN agencies designed to promote a creative synthesis between the human rights and development approaches. These are epitomized in the ‘Common Understanding on the Human Rights Based Approach to Development Cooperation’ adopted in 200310 at a meeting involving some ten UN agencies and a wide range of other development agencies,11 which gave an imprimatur of sorts to such analyses and approaches. The three main elements of the ‘Common Understanding’ were:
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 ‘duty-bearers’ to meet their obligations and/or of ‘rights-holders’ to claim their rights.12
13. But despite the adoption of such statements and programmatic efforts to give them substance, the level of engagement on both sides has nevertheless continued to be uneven at best. In a recent analysis Darrow and Tomas concluded that the ‘continued credibility of rights-based approaches demands a higher degree of conceptual rigour and clarity than has prevailed in the past, along with a frank appraisal of their relative strengths and limitations.’13
14. We return below to some of the reasons why the apparent embrace of human rights-based approaches to development have a long way to go if they are to succeed in transforming practical approaches pursued by international agencies and their national level interlocutors.14 For present purposes, it must suffice to note that while the relationship between human rights and development is now much more clearly understood than was the case ten years ago, and a great deal has been written about human rights-based approaches to development, the operationalization of such approaches has been extremely uneven. As a result, many development practitioners remain unconvinced of their utility even when they are favourably disposed in principle.
15. It is against this general background that the HR/MDG debate has emerged in the past couple of years. Unsurprisingly, it is not a debate which is without its mutual suspicions on the part of the chief protagonists. But the process of rapprochement has at least begun and human rights NGOs, at both the national and international levels, are now paying some attention to the MDGs. Thus, for example, the Secretary-General of Amnesty International observed in her foreword to Amnesty’s Annual Report 2004 that ‘there is a real risk that the targets of UN Millennium Development Goals … will not be achieved because international attention and resources have been diverted to the “war on terror”.’15 But this statement also illustrates the tendency of human rights groups to see the MDGs through a particular lens which relates more to other issues that they are tackling rather than to view them in a sustained or programmatic ways which would relate the Goals to economic, social and cultural rights, or to civil and political rights. In the same report, Amnesty acknowledges that ‘despite the increasing discourse on the indivisibility of human rights, in reality economic, social and cultural rights are neglected, reducing human rights to a theoretical construct for the vast majority of the world’s population’.16 There are, nonetheless, grounds for limited optimism in the sense that some of the major human rights groups are beginning to focus their attention on economic and social rights.17
16. The result of the limited convergence between the MDG and human rights agendas is that while a potential commonality of interest has been acknowledged, not enough has yet been done in concrete terms to explore the exact nature of the relationship. From the perspective of the human rights community this amounts to a major missed opportunity given that the realization of the MDGs is arguably the single most important and pressing initiative on the international development agenda and that there are a great many possible points of mutual reinforcement. From a development perspective it is equally problematic given the extent to which the MDG agenda could be promoted in the context of the multifarious activities undertaken at both the domestic and international levels to promote respect for human rights. Yet there are obvious synergies and commonalities of interest between the two and there is potentially much to be gained if progress can be made towards identifying an acceptable modus operandi.
17. Much of the focus of this paper, therefore, is on the ways in which the human rights community might be encouraged or persuaded to mobilize itself to make a contribution to the MDG campaign and to ensure that the relevant effort is undertaken in ways which contribute to advancing the human rights agenda. Consideration is also given to the ways in which the development community might better respond to the critiques and concerns which have been expressed, from a human rights perspective, in relation to the MDGs.