EssayonDevelopment%Policy Strengths%and%Challenges%of ... · Abbreviations% BMZ! Federal!Ministry!for!Economic!Cooperation!and!Development(Germany)! CIS! Commonwealth!of!IndependentStates!

Essay on Development Policy

Strengths and Challenges of a Human Rights-‐Based Ap-‐

proach to Programming in the Water and Sanitation Sector

Manuel Gysler

NADEL MAS-‐Cycle 2010 -‐ 2012

March 2012

Table of Contents Abbreviations ........................................................................................................................................ 3

1. Introduction: Evolution of the HRBA to development ............................................................ 3

2. The human right to water and sanitation ................................................................................. 5

3. Efforts to operationalise the HRBA to programming ............................................................... 6

4. Value-‐added of the HRBA to programming in the water and sanitation sector ................ 10

5. Challenges of the HRBA to programming in the water and sanitation sector ................... 13

6. Conclusions .................................................................................................................................. 16

Annex 1: Diverse understandings of a HRBA ......................................................................... 18

Annex 2: The normative content of the human right to water ............................................. 19

Annex 3: An HRBA Checklist for Programming by UNDP ....................................................... 21

Annex 4: Outcome Linkages of the UNDP/UNICEF Joint Programme “Economic

Governance – Securing Access to Water through Institutional Development

and Infrastructure” in Bosnia and Herzegovina ..................................................... 22

Annex 5: UNDP Checklists for Assessment and Monitoring Implementation

(of a HRBA to Water Supply and Sanitation and Water Governance) .................... 23

Annex 6: Needs for further research & guidance identified at the workshop “The Human

Right to Water and Sanitation – Translating Theory into Practice” ....................... 30

Annex 7: The contributions of human rights to the realisation to MDG 7c – Aligning targets

and indicators with human rights ........................................................................... 31

Annex 8: Strategies to develop right-‐holders’ and duty-‐bearers’ capacities ......................... 34

Annex 9: Some tips for HRBA programming by UNESCO ...................................................... 35

Annex 10: Common misunderstandings of the human right to water and sanitation ........... 36

Annex 11: Rights and responsibilities of water users ............................................................. 37

References ........................................................................................................................................... 38

Abbreviations BMZ Federal Ministry for Economic Cooperation and Development (Germany)

CIS Commonwealth of Independent States

GIZ German International Cooperation

GTZ German Technical Cooperation

HRBA Human Rights-‐Based Approach

Lao PDR Lao People’s Democratic Republic

MDG Millennium Development Goals

NGO Non-‐Governmental Organisation

OECD Organisation for Economic Co-‐operation and Development

RBA Rights-‐Based Approach

RBEC Regional Bureau for Europe and the Commonwealth of Independent States

SDC Swiss Agency for Development and Cooperation

UN United Nations

UNDG United Nations Development Group

UNDP United Nations Development Programme

UNESCO United Nations Educational, Scientific and Cultural Organization

UNGA United Nations General Assembly

UNICEF United Nations Children’s Fund

WES Water and Environmental Sector

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1. Introduction: Evolution of the HRBA to development For a long time human rights and development had been considered as two distinct and

separated fields – the first dominated by lawyers and the latter by economists – that seemed

to be free of any interdependence. In 1997 former UN Secretary General Kofi Annan spear-‐

headed the integration of human rights into development in the context of the UN reform

(Filmer-‐Wilson 2005: 215). This task has been addressed in various ways by differing multi-‐

and bilateral agencies as well as NGOs. Piron and O’Neil (2005) suggest a typology distin-‐

guishing five different existing approaches:

Table 1: Five-‐part typology of the approaches to integrate human rights into development Piron and O’Neil (2005: vi).

This essay focuses on the Human Rights-‐Based Approach (HRBA) which has been increasingly

discussed, conceptualized and applied by a variety of organisations in diverse sectors during

the last ten to fifteen years. There is still a considerable lack of knowledge both about the

HRBA’s challenges and limitations, as well as its value-‐added, understood as the benefits it

offers vis-‐à-‐vis other approaches (such as needs-‐based approaches) in view of development

effectiveness. Even if focusing on the water and sanitation sector, existing contributions1

identify strengths and challenges that are valid not only within that sector but rather in gen-‐

eral for the HRBA as a programming approach. Since this fact cannot be overcome complete-‐

ly this essay will also present aspects of more general application. However, a critical

perspective is taken on existing arguments, and referring to the right to water and sanitation

sector-‐specific strengths and challenges of the HRBA are identified and discussed.

1 Such as mainly Emilie Filmer-‐Wilson (2005) and UNDP (2008a). The latter lists benefits, challenges and limita-‐tions of the HRBA related to human rights principles such as participation, accountability, equality and non-‐discrimination but not to the core normative content of the human right to water and sanitation.

4

In 2003 the United Nations Development Group (UNDG) adopted the Common Understand-‐

ing on a HRBA2 with the aim to apply this approach in a consistent way to processes com-‐

mon to UN agencies, funds and programmes. According to this understanding the HRBA is

defined by the following three elements:

1. All programmes of development co-‐operation, policies and technical assistance should further the re-‐

alization of human rights as laid down in the Universal Declaration of Human Rights and other interna-‐

tional 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 pro-‐

gramming 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.

Box 1: Three elements of an HRBA according to the UN Common Understanding (UNDG 2003).

The Common Understanding gives some further explanations regarding these three key cri-‐

teria. It clarifies that among the human rights principles to be integrated into programming

are universality and inalienability, indivisibility, interdependence and inter-‐relatedness, non-‐

discrimination and equality, participation and inclusion, accountability, and the rule of law.

Furthermore, these principles are explained, and aspects of good programming practices

which are important to the HRBA are listed along with the following elements which in turn

“are necessary, specific, and unique to a human rights-‐based approach (UNDG 2003)”:

• Assessment and analysis in order to identify the human rights claims of rights-‐holders and the corre-‐

sponding human rights obligations of duty-‐bearers as well as the immediate, underlying, and structural

causes of the non-‐realization of rights.

• Programmes assess the capacity of rights-‐holders to claim their rights, and of duty-‐bearers to fulfil

their obligations. They then develop strategies to build these capacities.

• Programmes monitor and evaluate both outcomes and processes guided by human rights standards

and principles.

• Programming is informed by the recommendations of international human rights bodies and mecha-‐

nisms.

Box 2: Necessary, specific and unique elements of an HRBA (Opus cit.).

2 http://www.hreoc.gov.au/social_justice/conference/engaging_communities/un_common_understanding_ rba.pdf (19.11.2011).

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Despite this push for a common approach, Nyamu-‐Musembi and Cornwall (2004) found on

the one hand considerably diverse understandings of the HRBA among different actors, not

just in degree, but rather more fundamentally. On the other hand, they argue that the dis-‐

tinction between a Rights-‐Based Approach (RBA) and an HRBA was still fuzzy and incon-‐

sistent when they compared different UN, bilateral and NGO approaches in 2004 (Opus cit:

12). The most obvious distinction could be drawn between organisations following a more

“legalistic approach” putting the protection, promotion, and fulfilment of human rights in

the centre of projects, and others applying a more broad-‐based approach which sees the

realization of human rights as the foundation of development itself (Opus cit: 45).3

In even other cases, certain practices are presented as HRBA projects only by referring to

one or several human rights principles they have accorded special emphasis (OECD 2006:

135-‐6, Nyamu-‐Musembi and Cornwall 2004: 36 and 45). The fundamentally diverse concepts

and practices organisations refer to as an HRBA, the possibility of repackaging what has al-‐

ways been done in a new language, and even wrong associations between the HRBA and

certain practical elements of projects fuel the risk that the HRBA turns into a buzz word.4

2. The human right to water and sanitation When talking about the HRBA to water and sanitation it is vital to have a look at the norma-‐

tive content of the right to water and sanitation and the process that led to its recognition in

the UN General Assembly on 28 July 2010. One of the first milestones in this process at UN

level was the Committee on Economic, Social and Cultural Rights’ General Comment No. 15

(UN Economic and Social Council 2003) issued on 20 January 2003. Therein the normative

content of the right to water is defined based on the following key elements: Basically, “the

human right to water entitles everyone to sufficient, safe, acceptable, physically accessible

and affordable water for personal and domestic uses (Opus cit: art. 2).”5 Interestingly, acces-‐

sibility is divided into physical, economic and information accessibility for all and free of dis-‐

crimination whereby economic accessibility seems to be synonymous to affordability. It is

also made clear that personal and domestic uses have to be accorded priority in allocation

3 Nyamu-‐Musembi and Cornwall’s argumentation (2004: 46-‐47) leads to the distinction of four approaches. They argue that human rights can be deployed in RBAs to development 1) as a set of normative principles, 2) as a set of instruments, 3) as a component to be integrated into programming, or 4) as the underlying justification for interventions aimed at strengthening institutions. 4 For further information about the different approaches, repackaging and wrong associations see Annex 1. 5 For further explications regarding the normative criteria mentioned refer to Annex 2.

6

vis-‐à-‐vis other water uses. States parties’ obligation of progressive realization and their du-‐

ties to respect, protect and fulfil the right to water as well as related international obliga-‐

tions are presented along with clarifications about violations, and obligations of actors other

than States. Later these key elements related to the right to water have been further elabo-‐

rated and additional related topics have been discussed.6

While early reports tend to focus on the right to water and at best consider the right to sani-‐

tation7 as an inherent part of it, Catarina de Albuquerque, Special Rapporteur on the human

right to safe drinking water and sanitation, defines the normative content of the right to san-‐

itation using the same criteria as for the right to water:

• Availability (A sufficient number of sanitation facilities)

• Quality (Hygienic and technical safety)

• Physical accessibility (In the immediate vicinity of each household, health or educational institution,

public institutions and places, and the workplace. At all times accessible without threatening physical

security)

• Affordability (Available at a price that is affordable for all people without compromising their ability to

pay for other essential necessities)

• Acceptability (Culturally acceptable including privacy and dignity concerns as well as gender-‐specific fa-‐

cilities).

Box 3: Standards of the human right to sanitation (UNGA 2009: arts. 69-‐80).

3. Efforts to operationalise the HRBA to programming Some of the clearest efforts to operationalise not a selective but a comprehensive version of

the HRBA to programming have been made by UN agencies such as UNICEF and UNDP.

There may be a whole lot of efforts made by other organisations which are less readily ac-‐

cessible or visible for the public and are not included here.

6 Such as participatory rights (UNGA 2005: art. 8), remedies and monitoring (opus cit: art: 9 and UNGA 2007: art. 43), rights and duties associated with the right to water (UNGA 2006), State obligations, responsibilities of non-‐State service providers, and main challenges from a HR perspective in cases where service provision is delegated to non-‐State actors (UNGA 2007: arts. 52-‐3 and 2010a), the question of disconnections and due process (UNGA 2007: arts. 57-‐9), and human rights obligations in the context of trade and investment agree-‐ments (opus cit: arts. 63-‐4). 7 Catarina de Albuquerque, independent expert on the issue of human rights obligations related to access to safe drinking water and sanitation and after 28 July 2010 Special Rapporteur on the human right to safe drink-‐ing water and sanitation, understands sanitation “as a system for the collection, transport, treatment and dis-‐posal or reuse of human excreta and associated hygiene (UNGA 2009: art. 63).” She also “considers that wastewater, which flows from toilets, sinks and showers, is included in this description of sanitation insofar as water regularly contains human excreta and the by-‐products of the associated hygiene (Opus cit.).”

7

UNICEF is the UN agency with the longest experience with an HRBA. Its initial focus on the

Child Rights Convention had been broadened during the 1990s, and progressively applied to

different sectors, “beginning with protection, and moving to education, health and, more

recently, water and sanitation programmes (OECD 2006: 102-‐4).” Since the HRBA was de-‐

clared an institutional priority in 1998, UNICEF has invested considerable efforts both in de-‐

fining practical aspects for its implementation, and in staff training (OECD 2006: 103 and

105). The core of UNICEF’s guidance on an HRBA is its integration into the agency’s Commu-‐

nity Capacity Development strategy. The result is a five step approach, which can also be

found in UNDP’s guidance documents using a partly different terminology. The five steps

established by UNICEF (Jonsson 2003: 46-‐66) are:

1) Causality analysis

2) Role or pattern analysis (or obligation analysis in UNDP terminology)

3) Analysis of capacity gaps (or capacity analysis in UNDP terminology)

4) Identification of candidate actions

5) Programme design

While the first step is a common causality analysis the second step looks into “the complex

web of relationships between claim-‐holders and duty-‐bearers (Opus cit.: 47).” Based on the

resulting pattern the different dimensions of capacities are assessed both for the identified

rights-‐holders, regarding their capacity to claim their rights, and the duty-‐bearers, regarding

their capacity to fulfil their duties. Programmes and projects should then be designed in or-‐

der to strengthen these capacities.

Since the UN Common Understanding holds that human rights standards and principles

should guide the entire programming process, both UNICEF and UNDP have tried to clarify

what this means in practical terms not only for the stages of analysis and project design but

also for management, implementation, monitoring and evaluation. The key arguments made

are that management and implementation processes must themselves “respect human

rights and the values of nondiscrimination, dignity, accountability and participation (UNDP

2006a: 56)”. Moreover, the quality of these processes has to be monitored and evaluated

along with the level of achievement of the results and the level of increased capacities (Jons-‐

son 2003: 101, UNDP 2006a: 60-‐2). Another key guidance is the call for an independent mon-‐

itoring mechanism, where possible, which necessarily involves full stakeholder

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representation and participation. These criteria should also be taken into account in evalua-‐

tion plans and both monitoring and evaluation should strictly adhere to HRBA principles

(UNDP 2006a: 60-‐2). UNDP has also recognised the lack of human rights indicators, which

are needed for a successful HRBA to programming. In order to advance this topic, a separate

users’ guide on “Indicators for Human Rights Based Approaches to Development in UNDP

Programming” including specific indicators for the water and sanitation sector was prepared.

The users’ guide provides general guidance and recommendations for the use and develop-‐

ment of four different sets of indicators for:

• Understanding the human rights situation at the country level

• Assessing the capacities of rights holders and duty bearers

• Assessing the human rights impacts of specific development policies, programs and

projects

• Assessing process and ensure that human rights (especially participation, transparen-‐

cy, accountability, cooperation and coordination, and capacity-‐building) are respect-‐

ed and protected in all developmental decision-‐making processes and in all

development activities (UNDP 2006b: 12-‐17 and UNDP 2006a: 65).

For a basic but well guided orientation, UNDP elaborated a checklist for HRBA program-‐

ming8. UNDP further manages the online platform “HRBA Portal”, a collaborative effort be-‐

tween 19 UN organisations, agencies and programmes which offers tools, learning materials

and room for e-‐discussions between practitioners.

On a practical level, UNICEF has supported the introduction and discussion of HRBA princi-‐

ples with 70 central, provincial and district level government representatives from the water

and environmental sector in Lao PDR. Specifically, the programme has promoted community

participation and dialogue, e.g. through strengthening community water user committees

“to both monitor water and sanitation systems and to provide regular feedback to district

Nam Saat authorities on issues such as quality of service provision and maintenance UNESCO

(2008: 17).” However, the programme does not claim to strictly utilise an HRBA in all phases

of the programming cycle, and a specific focus on marginalised and vulnerable groups can-‐

not be noted in the consulted document (Opus cit: 7 and 18). GIZ9 and UNDP10, have some

8 See Annex 3 for the “HRBA Checklist for Programming (UNDP 2006a: 9).” 9 The German-‐Kenyan Programme “Reform of the Water Sector” aims at increasing the sustainable access of the urban poor to water and sanitation and to improve the management of water resources. It started in 2003

9

interesting experience applying an HRBA in the water and sanitation sector in Kenya where

the government has shown commitment to guide its water sector reform along the human

right to water during the last years. Furthermore, UNDP has been working with an HRBA to

water and sanitation sector assessments in Tajikistan and Bosnia and Herzegovina11 and has

been active in expanding this practice in Europe and CIS. An important initiative in this re-‐

gard is its regional programme “A Human Rights-‐Based Approach (HRBA) to Improve Water

Governance in Europe & CIS”, which was launched by UNDP Bratislava Regional Centre in

2009. This programme aimed at defining “new areas of opportunities in the RBEC12 region

for the development of new projects in the cross-‐cutting field of human rights and water

governance, with the ultimate goal to bridge the gap between theory and practice with re-‐

gard to the right to water.”13 In this context, a methodology14 was developed which focused

on eight steps in four different phases starting with country assessments and continuing

with the definition, design and implementation of specific projects and activities in different

countries in the region. Especially interesting are the checklists15 to assess and monitor im-‐

plementation which were elaborated as a part of that methodology. The checklists do not and is expected to run until 2013. The programme adopted the HRBA as a part of its advisory services and in 2005/06 the pro poor-‐focus at policy level was turned into a HRBA, and human rights standards were turned into indicators integrated into sector strategies. The programme has been working e.g. through intensive dia-‐logue and familiarization of key stakeholders with the contents of the UN General Comment Nr. 15 to over-‐come worries and misunderstandings related to the right to water and sanitation. The establishment of a Water Services Trust Fund, orienting of tariff setting towards criteria harmonised with human rights standards, and the promotion of quality and price controlled water kiosks were supported, and water companies are now required to take measures related to customer service and complaints (GTZ 2009a, 2009b). 10 UNDP’s programme “Improving Water Governance through a Human Rights Based Approach (HRBA)” also builds on the commitment the Kenyan Government has shown by orienting its sector reforms towards the right to water. The programme’s goal is to improve water services by: a) Establishing feedback and complaint re-‐dress mechanisms between right-‐holders and duty bearers particularly at the local community level; b) Develop tools to strengthen anticorruption activities for effective water governance informed by rights based approach principles; c) Strengthen capacity of water actors (both duty bearers and right holders) to understand and par-‐ticipate effectively and meaningfully in the water sector reforms and utilize proposed tools; d) Improve infor-‐mation sharing and dissemination to local level actors for effective engagement with sector reform processes. 11 The UNDP/UNICEF joint programme “Economic Governance – Securing Access to Water through Institutional Development and Infrastructure” in Bosnia is an interesting example for a HRBA to Water and Sanitation. It was started in 2009 and defines the following Outcomes: Outcome 1: Strengthened inclusion of citizens in the par-‐ticipative municipal governance of Water access; Outcome 2: improved economic governance in water utility companies for better services to citizens in targeted municipalities; Outcome 3: Strengthened capacity of gov-‐ernment for evidence-‐based policy making and resource planning for equitable water related service provision (UNDP/UNICEF in Bosnia and Herzegovina 2008). This programme is particularly interesting as it promotes interlinkages between the three outcomes (see Annex 4) promoting cooperation between duty-‐bearers and rights-‐holders. 12 Regional Bureau for Europe and the Commonwealth of Independent States (RBEC). 13 http://waterwiki.net/index.php/A_Human_Rights-‐Based_Approach_(HRBA)_to_Improve_Water _Governance_in_Europe_%26_CIS (03.01.2012). 14 Milieu Ltd drafted this document titled “A Methodology for Implementing a Human Rights-‐Based Approach to Water Supply and Sanitation and Water Governance at country level” in 2008. 15 The checklists can be found in Annex 5.

10

intend to be exhaustive but to “ensure the necessary level of details for an informed as-‐

sessment of the country’s situation (Milieu Ltd 2008: 1).”

In 2008 a workshop on the HRBA to water supply and sanitation was held at UNDP Oslo

Governance Centre. It sought to explore how an HRBA and the right to water and sanitation

can be applied in practice by providing a first step to developing guidance, and exchanging

experience of participants representing different donors, agencies and organisations (UNDP

2008b: 3). In the end suggestions for next steps were collected and summarised in the work-‐

shop report.16 Most suggestions called for more guidance in operationalising the approach,

such as the need for a guidance note, diagnostic tools, clarification fact sheets, indicators,

case studies and e-‐networks for the exchange of experience and tools.

4. Value-‐added of the HRBA to programming in the water

and sanitation sector Since the HRBA is still a rather young approach discussions have understandably laid a

stronger focus on its conceptual value-‐added than on practical challenges. When referring to

human rights principles that should guide programming it could be argued that there is noth-‐

ing new about an HRBA that would not be part of good programming practice. It is true that

principles like participation and accountability have been hot topics in development cooper-‐

ation for a long time. However, the specific value-‐added of the HRBA related to human rights

principles is that it provides a coherent normative framework which turns principles such

as participation, non-‐discrimination and equality from means into rights and thereby

makes them “non-‐negotiable, consistent and legitimate (UNDP 2008a: 15).”

Another strength is that an HRBA sharpens accountability. There is not much doubt that this

applies to the identification and addressing of lacking capacities and awareness both of duty-‐

bearers and rights-‐holders since accountability needs to be demanded in order to be effec-‐

tive. It has been pointed out that “the human right to water and sanitation can act as a per-‐

formance standard against which progress in realizing access to water and sanitation can be

measured and evaluated (Opus cit.).” Less clear seems to be the answer to the question

where donors position themselves on the lines of accountability between rights and duties.

Taking serious the UN Common Understanding and guiding all phases of programming by

human rights standards and principles as it is promoted by UNDP and several other donors 16 The respective tables from the workshop report can be found in Annex 6.

11

goes in this direction. However, further ethical questions about the extent of accountability

assumed by donors such as the ones named by Nyamu-‐Musembi and Cornwall can be

brought up:

What then is the position of the funding government: does it also invite upon itself ob-‐

ligations to monitor the recipient government’s disbursement and use of its funds to

ensure that it is consistent with human rights principles? Does it take responsibility for

any negative human rights impact flowing from projects it has funded? None of these

implications of rights-‐based approaches are explained clearly in any agency’s policies

(Nyamu-‐Musembi and Cornwall 2004: 11-‐12).

As eight years have passed since Nyamu-‐Musembi’s and Cornwall’s text had been published

it should be re-‐examined whether the last statement is still valid. However, taking this argu-‐

ment to reflect and evaluate its own practice might be interesting for any donor.

Thirdly, an HRBA prioritises vulnerable and marginalized groups “and thus contributes sig-‐

nificantly to the broader aim of poverty reduction and equality in rights (UNDP 2008a:

15).” This focus is based both on the recognition that all human beings are equal and enti-‐

tled to their human rights without discrimination, and on the fact that development pro-‐

cesses tend to focus on groups that are easy to reach while “vulnerable and marginalised

groups often suffer disproportionately from unequal access to water and sanitation (Opus

cit.).”

Furthermore, in the last five years a discussion about the relationship between the HRBA

and aid effectiveness has developed. Several OECD and other publications17 discuss linkages

between the human rights framework and the Paris Declaration and point out the poten-‐

tial for both to reinforce and benefit from each other. For instance, the fact that both donor

and recipient countries ratified the international human rights treaties is seen as a uniquely

valuable reference point for harmonization. This, in turn, tells something about national pri-‐

orities of recipient countries in view of their ownership (OECD 2007b: 3). Understanding ac-‐

tive, free and meaningful participation as a right, and therefore both a means and an end,

which should guide all phases of the programming cycle, has the potential to ensure sustain-‐

ability of results through the achievement of “meaningful and inclusive citizen-‐based owner-‐

ship (Opus cit.).” Finally, all the benefits of an HRBA discussed above potentially increase

17 E.g. Forest et al. (2006), OECD (2007a, 2007b, 2008a, 2008b).

12

effectiveness and sustainability of development interventions by addressing the underlying

systemic biases and causes for the lack of realization of human rights, such as power, pov-‐

erty and inequality (UNDP 2008a: 15).

Referring to the right to water and sanitation another aspect should be highlighted: its

contributions to the realisation of the Millennium Development Goals (MDGs). In fact, the

MDGs are global goals that tend to be adopted unchanged in national strategies and can be

too ambitious or too easy to achieve for different States. The MDG 7c sets a very grounded

and operational target of a 50 per cent reduction in the lack of access until 2015. By con-‐

trast, the right to water and sanitation requires a progressive realisation of all their criteria

for every individual. Progressive realization is “a more fluid concept requiring States to take

constant steps towards fully ensuring human rights (A/65/254: art. 15).” Therefore, the Spe-‐

cial Rapporteur concludes that:

The formulation of new or revised global goals, targets and indicators and their adap-‐

tation at the national level must be guided by human rights standards and principles,

including the normative content of the rights to water and sanitation, as well as non-‐

discrimination, participation and accountability (Opus cit: art. 63, para. g).

This argument is well-‐grounded in her analysis of the extent to which target 7c and the cor-‐

responding indicators measure the standards of the human right to water and sanitation.

The articles 22-‐3518 in the cited report show unmistakably that the current indicators for

MDG 7c do not measure the majority of these standards convincingly and some of them not

at all. Discussion about the relationship between human rights and the MDGs are ongoing19,

and it will take some time until the standards of the right to water and sanitation will poten-‐

tially be more broadly included in global development goals and in national strategies.

Therefore, the argument about the contributions of the HRBA to MDG 7c may be considered

a challenge at the present time. However, referring to the right to water and sanitation in

development programmes is also a value-‐added since it takes into account criteria that are

not or not sufficiently addressed by MDG 7c, and may therefore enhance development ef-‐

fectiveness.

18 Find these articles in Annex 7. 19 In the context of ongoing discussions about linking human rights and MDGs in practice the HuriLink web portal (refer to: http://hurilink.org/) is a particularly interesting platform. It was developed by UNDP Oslo Gov-‐ernance Centre and features experiences from the field, practical tools, resources and information about news and events.

13

5. Challenges of the HRBA to programming in the water

and sanitation sector While it is still difficult to name clear limitations of the HRBA as it is still a young approach it

would be appropriate to focus on its practical challenges. Discussions about this issue are

still quite far from being systematic, comprehensive and well-‐grounded in practical experi-‐

ences.

One of the challenges identified e.g. in the background paper for the workshop “A Human

Rights-‐based Approach to Water Supply and Sanitation” is the perceived overload of main-‐

streaming activities. Here a UNDP background paper argues that it is important to say that

unlike other cross cutting issues, such as gender, an HRBA should not be handled as an add-‐

on but as an overarching framework through which gender and other mainstreaming con-‐

cepts can be addressed (UNDP 2008a: 13). However, even if there is a difference between

the overarching framework of the HRBA to programming and mainstreaming approaches,

such as suggested by Piron and O’Neil (2005) in table 1, some doubts remain about that ar-‐

gument. As many development practitioners are not specifically trained in human rights is-‐

sues it is realistic to expect that project planners are challenged or even overwhelmed when

asked to orient their projects towards human rights standards and principles. Since pro-‐

gramming staff will likely have to consult human rights specialists for their specific

knowledge and human rights institutions are become stakeholders from the beginning of the

programming cycle the HRBA is likely to result in an add-‐on in practice.

A second and closely related challenge is the constant need for further understanding the

HRBA and enhancing staff capacity of donors, implementing organisations, partners, state

actors and any other development actors to translate the HRBA into practice. After dec-‐

ades of clear separation of human rights work and development programming, development

specialists may face difficulties when asked to move human rights to the core of their pro-‐

grammes and projects. Many organisations have made efforts to increase in-‐house capaci-‐

ties: UNDP (UNESCO 2006: 30), UNICEF (OECD 2006: 106), UNESCO20 and others claim to

have recognized this challenge and made capacity building of their staff in implementing the

HRBA a priority. However, it has to be taken into account that staff trainings need to re-‐

spond to the constant capacity development needs fed by staff turnover.

20 See http://www.unesco.org/new/en/social-‐and-‐human-‐sciences/themes/human-‐rights/advancement/human-‐rights-‐based-‐approach-‐to-‐programming/

14

Another challenge should be seen in the political sensitivity of applying an HRBA to water

and sanitation or in any other sector. On the one hand, the point has been made that the

fact that donor and partner countries ratified the international human rights treaties and

therefore voluntarily committed themselves to respect, protect and fulfil the human rights

established therein is a clear sign of their ownership. The good experience made e.g. by

UNDP and GIZ applying an HRBA to water and sanitation in Kenya21 builds at least partly on

the Kenyan government’s commitment to include the right to water and sanitation into its

sector reform. Piron and O’Neil argue that in other cases such ownership has not been

reached:

[…] aid agencies have found engagement with national partners difficult because of

the need to overcome weak capacities in implementing human rights and in overcom-‐

ing political barriers, in particular when partners’ commitment is weak or when there is

overt resistance to human rights (Piron and O’Neil 2005: vii).

Against this background, it is pertinent to ask how far governments can be pressured to in-‐

clude the right to water and sanitation into their legal and policy framework and strategies

or in development cooperation with donors. In the sake of the ideals of the Aid Effectiveness

Agenda donors should abstain from pressuring partner countries, and try to be active

through a sensitizing role about the interlinkages of human rights and development. In case

the government is the main partner it may be necessary for a donor to partner with NGOs

active in advocacy only with the government’s consent. Furthermore, the possible activities

to develop right-‐holders’ and duty bearers’ capacities are broad,22 and should be well select-‐

ed. Arguably, approaches that clearly promote dialogue between right-‐holders and duty-‐

bearers rather than confrontation may be considered more constructive by governments. In

this regard, reference can be made to the UNDP/UNICEF Joint Programme in Bosnia and

Herzegovina described or to the UNICEF project “Application of Human Rights-‐Based Ap-‐

proach to Programming in the Water and Environmental Sector (WES) in Lao PDR” both

sketched in chapter 3.

Bringing such successful case studies up in dialogues with government partners can also in-‐

centivise their acceptance of an HRBA. Of course, it should not be overseen that any donor

21 Refer to footnotes 10 and 11. 22 A list of possible strategies can be found in Annex 8.

15

or implementing agency suggesting an HRBA in their programmes needs to send messages of

credibility by successfully applying an HRBA and effectively respecting human rights itself.

As reported in the findings of the UNICEF 1998-‐2003 HRBA review, resistance to an HRBA

goes beyond governments and can be uttered by local communities who sometimes reject

human rights as something from outside their culture. In such cases responses focused on

communication strategies and the need to pay special attention to the cultural context

(OECD 2006: 106). UNESCO (2008: 25 and 33) provides some strategic guidance to address-‐

ing cultural contexts23 along with other tips for HRBA programming.

This last argument is closely related to another challenge of the HRBA to programming in the

water and sanitation sector, i.e. to the frequent misinterpretations of the right to water

and sanitation. SDC (2008: 9), GTZ (2009: 3) and BMZ (2010) have all provided information

about frequent misunderstandings and suggested correct interpretations of the right to wa-‐

ter and sanitation.24 These rectifications are based on the work of the Special Rapporteur

who has made progress in defining and clarifying the normative content of the right to water

and sanitation and the obligations derived from it. Development specialists and many part-‐

ners can be informed, sensitized, and capacitated regarding a correct understanding of the

right to water and sanitation. On the contrary, it can be extremely challenging to achieve a

comprehensive and correct understanding in communities, possibly even when simplified

and culturally blended summaries of such legislation are used.

I see a related difficulty in the potential tendency towards a one-‐dimensional understanding

of the contraposition of rights-‐holders and duty-‐bearers. If the pattern analysis in water and

sanitation programming is not done in a multidimensional way the main relationship will

probably be identified as local governments in the role of duty-‐bearers and water users as

right-‐holders. However, it is important to take into account that local governments are not

only duty-‐bearers but also rights-‐holders and water users have responsibilities – such as not

to pollute the resource, not to waste water, etc – along with their rights.25 This is important

because an HRBA in order to be effective should identify and address not only lacking 23 Find the respective passages in Annex 9. 24 The most comprehensive summary of common misunderstandings among the three publications listed is the one provided by GTZ, and can be found in Annex 10. 25 The lesson learnt that duty-‐bearers can simultaneously be right-‐holders was brought-‐up in (Jonsson 2003: 57). SDC (2008: 5) names the rights and responsibilities of water users that should be taken into account in an HRBA to water and sanitation based on a publication by the World Water Council (see Annex 11). An earlier attempt (a written statement submitted to the Human Rights Council in 2006 by a non-‐governmental organisa-‐tion in general consultative status) listed the rights and duties of both citizens and public authorities (A/HRC/Sub.1/58/NGO/1*).

16

knowledge and motivation of duty-‐bearers to fulfil their duties but also their potentially

missing authority and resources for this purpose.

One of the challenges brought up in the UNDP background paper is time. Addressing under-‐

lying causes for the lack of access to water supply and sanitation, such as power, poverty

and inequality, and focusing on groups that are hard to reach takes time and “has to be

linked to long term improvements in governance and interventions that aim to strengthen

democratic processes and institutions (UNDP 2008a: 14).”

Related to this challenge it is interesting to bring up the question to what extent a focus on

the groups that are the hardest to reach is feasible vis-‐à-‐vis utilitarian-‐driven approaches

which aim at designing low cost-‐high impact projects. In times of results-‐orientation and

with regard to efficiency considerations it may be more attractive for donors to focus on

the groups that are easy to reach in order to potentially achieve more visible results that

might be considered as a stronger message of accountability towards parliaments and tax-‐

payers. The same argument can be made regarding the focus on and monitoring of process-‐

es along with results in development programming. Parliaments and tax-‐payers are definite-‐

ly interested in results but probably not so much in processes. If a donor sees the value of a

monitoring mechanism to effectively generate lessons learned and steer projects and pro-‐

grammes it will make efforts to lay a special focus on process. In case it sees monitoring only

as a means for accountability towards parliament or tax-‐payers it will probably hold monitor-‐

ing efforts minimal, and potentially leave aside the focus on process.

6. Conclusions This essay aimed at contributing critical reflections to the existing discussions about

strengths and challenges of an HRBA to programming in the water and sanitation sector.

Translating the HRBA from theory into practice remains a difficult task and practitioners con-‐

tinue asking for further practical guidance. Two important points can be made here: on the

one hand, any organisation lacking practical tools and knowledge will face an even stronger

challenge in implementing the HRBA in a meaningful way; on the other hand, challenges

remain even where conceptual efforts exist, such as in the case of UNDP, and this does not

necessarily say anything about the extent to which the HRBA is effectively applied. Existing

case studies about an HRBA in the water and sanitation sector as well as other sectors are

still weak. They usually point to merely a few aspects, human rights standards or principles

17

related to the HRBA in the respective sector, i.e. they do not allow a clear conclusion about

the extent to which a project applied a comprehensive HRBA in all phases of the program-‐

ming cycle. Hence, drawing on case studies to accentuate and illustrate the arguments made

was possible only to a limited degree in this essay. Further critical reflection that needs to be

well-‐grounded in more comprehensive analyses of best practices is required to enrich future

discussions about the strengths and challenges of an HRBA to programming in the water and

sanitation sector.

18

Annex 1: Diverse understandings of a HRBA The following information is mainly based on Nyamu Musembi and Cornwall (2004). As sev-‐

eral years passed since their analysis it is likely agencies have changed their approaches. The

intention of the following box is to illustrate Nyamu Musembi’s and Cornwall’s argument.

Although the HRBA may still be interpreted in varied ways, an in-‐depth study would be re-‐

quired to re-‐evaluate the arguments made by Nyamu Musembi and Cornwall.

A legalistic HRBA

When Nyamu Musembi and Cornwall (2004) analysed the Swedish International Development Cooperation

Agency (Sida) in 2004 they noted that this agency’s link between human rights work and broader concerns

with democratization leaved less space at their intersection for efforts to promote participation but focused

on strengthening formal institutions and mechanisms

A broad-‐based HRBA

Nyamu Musembi and Cornwall considered UNICEF, UNDP, CARE and ActionAid as using the term “HRBA” in

way as to potentially describe “an arena for engagement and intervention that is far broader than those con-‐

ventionally associated with “human rights” (Nyamu Musembi and Cornwall 2004: 46).”

A human rights principles-‐based HRBA

Referring to DFID’s practical application of a HRBA Nyamu-‐Musembi and Cornwall also state that although it is

difficult to generalise, “it does appear to be the case that there is less use of human rights standards per se

than the broad principles informed by a human rights perspective (Nyamu-‐Musembi and Cornwall 2004: 36).”

Repackaging

Nyamu-‐Musembi and Cornwall argue that “the World Bank’s 1998 Development and Human Rights report

touts existing World Bank activities, including macroeconomic reform programmes, as part of the agenda of

realizing economic and social rights (Opus cit: 14).” As a further example, Nyamu-‐Musembi and Cornwall

quote a passage from a DFID publication where they see a “euphemistic use of ‘reproductive health’ to re-‐

package family planning with the use of rights language as attractive-‐looking packaging for ‘business as usual’

(Opus cit: 35).”

Wrong association

Here Nyamu-‐Musembi and Cornwall refer to a joint World Bank/Netherlands water partnership programme

that argues to stimulate rights-‐based systems for the allocation of water. Although such a system is justified,

Nyamu-‐Musembi’s and Cornwall’s critique points at the partnership’s apparently exclusive focus on a system

of tradable permits in water allocated through market mechanisms whereas no reference is made “to the

need to first secure a minimum level of entitlement that should be available to all before the proposed market

mechanisms are considered, if at all (Opus cit: 26).”

19

Annex 2: The normative content of the human right to water

20

(UN Economic and Social Council: 2003).

21

Annex 3: An HRBA Checklist for Programming by UNDP

(UNDP 2006a: 9).

22

Annex 4: Outcome Linkages of the UNDP/UNICEF Joint Programme “Economic Governance – Securing Access to Water through Institutional Development and

Infrastructure” in Bosnia and Herzegovina

(UNDP/UNICEF in Bosnia and Herzegovina 2008: 75). Further interesting information about

this programme’s Results Framework and activities can be found in the same source (Opus

cit: 26-‐32, 62-‐71).

23

Annex 5: UNDP Checklists for Assessment and Monitoring Implementation (of a HRBA to Water Supply and Sanitation and Water Governance)

24

25

26

27

28

29

(Milieu Ltd 2008: 2-‐13).

30

Annex 6: Needs for further research & guidance identified at the workshop “The Human Right to Water and Sanitation – Translating Theory into Practice”

(UNDP 2008b: 14-‐5).

31

Annex 7: The contributions of human rights to the realisation to MDG 7c – Aligning targets and indicators with human rights

32

33

(UNGA 2010b: arts 22-‐35)

34

Annex 8: Strategies to develop right-‐holders’ and duty-‐bearers’ capacities UNDP says on hrbaportal.org regarding accountability and possible strategies to develop

right-‐holders’ and duty-‐bearers’ capacities:

[…] Ensuring accountability can be difficult in practice, particularly where national capacities are weak or duty-‐

bearers are unwilling to act. There are no ready answers for all situations. Strategies can be supportive or confronta-‐

tional and could include:

§ Raise awareness of rights and responsibilities, and develop the capacities of duty-‐bearers at central and local

levels to fulfil their obligations. Understanding and ownership by duty-‐bearers can be built by involving

stakeholders in analysis, programme planning, implementation and reviews.

§ Build relationships between rights-‐holders and dutybearers by working together.

§ Increase the incentives for better performance by duty-‐bearers, through educating people about their rights,

creating broader alliances for social change in society, promoting transparent budgeting and building capaci-‐

ties for budget analysis, supporting advocacy for information and statistics necessary to monitor the realiza-‐

tion of human rights, building capacities for policy analysis and social impact assessment, encouraging media

freedom, and building the capacities of claim-‐holders to demand their rights.

§ Strengthen central and local accountability mechanisms— judicial, quasi-‐judicial and administrative. Informal

justice mechanisms, including traditional and indigenous justice systems, should be factored in together with

the formal justice system, seeking alignment with international standards regarding the administration of

justice.

§ Strengthen the capacities of national human rights institutions, including their capacities to monitor the real-‐

ization of economic and social rights.

§ Ensure that national laws are harmonized with international human rights treaty standards, with duties

spelled out as clearly as possible at national, provincial, district and local levels.

§ When duty-‐bearers are private corporations or non-‐ Government actors (for example, when governance

functions are privatized), advocate adherence to international human rights norms and voluntary codes of

conduct, monitor performance and publicize the results. Ensure that duties are made clear in national laws

and policies, and that the regulatory framework includes provision for redress in the event of violations.

§ Where weak institutions are being re-‐established, such as in post-‐conflict States, development actors should

strengthen not only State institutions but also those institutions that fulfil a servicing and monitoring role.

§ Foster greater knowledge of and buy-‐in into the national reporting processes under the international human

rights treaties in force in the country concerned, widely publicizing the treaty bodies’ recommendations.

§ Encourage greater recourse to human rights “special procedures” and international petition procedures

available under the international human rights treaties.

http://hrbaportal.org/faq (24.11.2011).

35

Annex 9: Some tips for HRBA programming by UNESCO

(UNESCO 2008: 25).

(Opus cit: 33).

36

Annex 10: Common misunderstandings of the human right to water and sanitation

(GTZ 2009b: 3).

37

Annex 11: Rights and responsibilities of water users SDC (2008: 5) says the following about the rights and responsibilities of water users that should

be taken into account in an HRBA to water and sanitation:

(SDC 2008: 5).

38

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