Human Rights-Based Approach

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edit  ·  Toolkit Human Rights-Based Approach (HRBA) to Water Governance
UNDP Regional HRBA to Water Programme for Europe & CIS

Detailed documentation: Background | Regional aspects | Regional Programme | Methodology
PHASE 1: Checklist (Bosnia and Herzegovina | Georgia | Moldova | Tajikistan | Turkey | Ukraine)
PHASE 2: Country Sector Assessments and Proposed Projects (Bosnia and Herzegovina | Tajikistan | Kosovo | Serbia) | Bibliography

Legal Framework: The Rights to Water and Sanitation in International Law | Regional Law | National Law
WaterWiki-resources:Rights to Water and Sanitation: A Handbook for Activists | UN Human Rights Council Resolution on Water and Sanitation | UN Recognises Access to Clean Water as a Basic Human Right | Human Rights-Based Approach | Applying a HRBA to Water:A Case Study | Water-related Legislation and Conventions | The Right to Water - WHO Publication | A UN Convention on the Right to Water - An Idea Whose Time Has Come | International Conference on the Right to Water and Sanitation in Theory and Practice | Q&A: The Right to Water | General Comment 15 (2002) | Q&A: Water Governance | Water and Health | Equitable Access to Water and Human Rights | European Union Water Framework Directive | Essay: What exactly is “The Right to Water”? | Protocol on Water and Health | Protocol on Water and Health/Q&A | Lessons Learned From Rights-Based Approaches in the Asia-Pacific Region | Human Rights-Based Approach Strategies adopted by UNICEF Laos | Utility Privatisation through the Lens of Human Rights | The Right to Water - From Concept to Implementation | The Human Right to Water:Translating Theory into Practice | Report of the Seminar on Human Rights and MDGs, May 2009
External resources: HRBA and Water Governance Fast Facts - UNDP | Applying a HRBA to Developing Cooperation and Programming (UNDP, 2006) | COHRE Manual on the Right to Water and Sanitation | Protocol on Water and Health - Full Document) | COHRE Monitoring Implementation of the Right to Water: A Framework for Developing Indicators | Sub-commission guidelines for the realisation of the right to drinking water and sanitation (2005) | UNFPA - A HRBA to Programming, Practical Implementation Manual and Training Materials (2010) | Operational Guidelines for Implementing a Rights-Based Approach in Water and Sanitation Programming (CoHRE,2008) | COHRE Monitoring Implementation of the Right to Water: A Framework for Developing Indicators | FAQs on a HRBA to Development Cooperation | The Human Rights-Based Approach to Development - The Right to Water | UN Independent Expert Report on the issue of human rights obligations related to water and sanitation 2009 | UN Independent Expert Report on MDGs and right to water and sanitation 2010
Websites: The Rights to Water and Sanitation Information Portal | UN Independent Expert on Right to Water and Sanitation Webpage

Contents

The UN Common Understanding on HRBA

Since the call of the Secretary General to mainstream human rights into all the work of the UN in 1997[1] a growing number of development agencies have been applying an HRBA to their work. In 2003, various agencies met to develop a ‘Common Understanding’ on an HRBA. This UN Common Understanding provides a first step in reaching conceptual clarity on an HRBA within the UN and the wider development community.

UN Common Understanding on a Human Rights-Based Approach[2]
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.

* The human rights principles to guide development programming identified in the UN Common Understanding are:
  • universality and inalienability
  • indivisibility
  • inter-dependence and inter-relatedness
  • equality and non-discrimination
  • participation and inclusion
  • accountability and rule of law


The principles

The first guiding principle of the UN Common Understanding relates to the goal of development programmes and policies: the ultimate objective must be the greater realization of rights. The second relates to the process of development programmes: these should be guided by human rights principles and standards, and this should happen for all development strategies, in all sectors and phases of the programming cycle. The third principle refers to the underlying structure that characterises an HRBA: As human rights give rise to corresponding obligations, a relationship between the State as the primary duty-bearer and the people as rights-holders can be established. Both, capacity development of rights-holders to claim their rights as well as of duty-bearers to fulfil their obligations are the focus of strategies. Human rights thus influence both the objectives and process of development cooperation. Using the framework of the UN Common Understanding, the following sections will first explore the relevant human rights in the context of development cooperation in the water and sanitation sector. It will then outline the implications of applying human rights principles the to water and sanitation sector.

Furthering the Realisation of Human Rights – The Human Right to Water and Sanitation

Applying an HRBA would further the realisation of human rights. In the water sector, this relates to the human right to water that has become increasingly recognised in recent years. However, it is not only the right to water and sanitation itself that will be furthered through improving access to water and sanitation, but also other human rights, such as the right to education, health, food, housing, an adequate standard of living and freedom from discrimination. The standards enshrined in all of these rights can help set criteria for what programmes and policies in the water and sanitation sector should aim to achieve.


Human Rights Principles guiding development interventions in the Water and Sanitation Sector

From the human rights principles identified by the UN Common Understanding, non-discrimination and equality, participation and inclusion as well as accountability and the rule of law are the most relevant for development interventions. These are considered in more detail below.

Equality and Non-discrimination

The twin principles of equality and non-discrimination are among the most fundamental elements of the international human rights framework. They are of particular importance in the water sector where control over water resources often reflects existing power structures. Integrating these principles into policy and programmes requires a specific effort to identify the individuals and groups most marginalised and vulnerable in regard to access to water and sanitation. It also requires that proactive measures are taken to ensure that programmes include these groups and make them the focus of interventions. Groups that are potentially vulnerable or marginalised include: women, children, inhabitants of rural and deprived urban areas as well as other poor people, nomadic and traveller communities, refugees, elderly, indigenous groups, persons living with disabilities, people living in water scarce-regions and persons living with HIV/AIDS. Developing thoroughly disaggregated data on access to water and sanitation according to specific groups is essential to identify which groups are most marginalised in a given context and to ensure that they are targeted in programming. Special measures may also be required in the programming process, such as making planning information available in accessible formats or minority languages, affirmative action programmes for women, and focusing programme activities on areas hardest to reach.

To address the structural reasons that lie behind the lack of access to water, it may be necessary to tackle broader social, cultural, political and legal issues by taking an integrated approach that reaches beyond the water sector. For example, women’s discrimination in other sectors such as land rights, inheritance, education and access to employment impact their access to water.

A particular concern for some marginalised groups – especially poor people in rural and deprived urban areas – is the affordability of water services. Regardless of whether water is supplied by public or private providers, States have the responsibility to ensure that water is affordable to all people, even those who do not have the capacity to pay for water services. States have to put into place the necessary regulatory framework if water services are privatised. Measures to achieve affordability can include the provision of a minimum amount of water for free, a rising block tariff system, other cross-subsidisation mechanisms and targeted subsidies.

Participation

Participation is a basic operational principle of development programmes and projects. It is also a fundamental human right[3]. Such participation has to be active, free and meaningful. It provides for all persons to be given a genuine opportunity to influence and enhance policy formulation and improvements in the water and sanitation sector. Different participatory instruments and processes will have to be employed on different levels, ranging from overall policy decisions to, for example, decisions on community level on the type of infrastructure. In any case, it is essential that civil society organisations and communities are involved early in the process instead of simply being informed at too late a stage to influence any position already adopted. Leaving affected groups out of decision making and planning brings the risk that when services are provided, they do not match the needs and priorities of the people, are technically inappropriate, too costly or that payment options are unrealistic. Participation is thus not only a human rights principle and goal per se, but also supports the effectiveness of development intervention.

To allow for active participation, people must be provided with correct, timely and transparent information on (draft) programmes, policies, regulations and legislation. Marginalised and vulnerable groups might also need training and capacity development in communication and negotiation skills as well as education on their rights. Linking activities in the water sector with activities related to strengthening democratic systems and institutions will therefore be necessary.

Accountability

A core feature of HRBA is its focus on accountability. States are legally responsible for keeping to the obligations they have committed to under international human rights treaties and their own national constitutions and legislation. By focusing on the explicit link between rights-holders and their entitlements and duty-bearers and their obligations, an HRBA underlines the accountability of States for lack of access to water and sanitation services. And it aims to develop the capacity of the state to be held to account (more accessible and responsive public officials or institutions) and strengthening the capacity of right holders to claim their rights.

Figure 1 - The relationship between rights-holders and duty-bearers
Figure 1 - The relationship between rights-holders and duty-bearers

The human right to water and sanitation (and the criteria of quantity, quality, accessibility, affordability and acceptability) act as standards against which the State’s and development agencies’ efforts to realise access to water for all people can be measured and evaluated. To measure progress, specific indicators and benchmarks related to these standards can be established[4].

Situational Analysis - Identification of Rights-holders and Duty-bearers

To address the issue of accountability, the first step is identifying the relevant rightsholders and duty-bearers. Competencies, roles and responsibilities have to be clearly assigned and clarified.

Developing the Capacity of Rights-Holders and Duty-Bearers

Once rights-holder and duty-bearers have been identified, emphasis has to be put on building capacity at both levels: communities, individuals and civil society (right-holders) as well as institutions, authorities and State officials (duty-bearers).

On the side of rights-holders, there is a need to develop their capacity to claim their entitlements, through education on their rights, information on the project, opportunities to participate in the policy making and management process, training in negotiation and advocacy skills and familiarisation with different accountability mechanisms.

Rights-holders can use a wide array of measures to hold the State accountable for improving access to water and sanitation, such as lobbying, advocacy, public campaigns and political mobilisation. The human right to water and sanitation can act as a powerful advocacy tool that legitimates claims to access water and sanitation. Residents in Kathmandu, Nepal, succeeded in having several standpipes installed by approaching the local authorities with a copy of General Comment No. 15. Other complaint mechanisms can also be used, such as working with national human rights institutions and ombudsmen. The knowledge that claims for improved access to water and sanitation are based on legal entitlements greatly strengthens their legitimacy. While UN agencies may not be able to support all of these accountability mechanisms directly, they can collaborate with NGOs, community-based organisations and national human rights institutions that support such capacity building activities.

To ensure that duty-bearers are responsive to the claims and views of right-holders, strengthening their capacity (in terms of skills, authority, resources and knowledge) at the same time as working with right-holders, is essential. In these efforts, it is important that attention is also given to macro-level reform: to the institutions and systems that shape government response.


Addressing Corruption in the Water Sector through an HRBA in Kenya
The pilot programme supported by UNDP’s Water Governance Facility aims to demonstrate

the practical impact of an HRBA in addressing corruption in the water sector. Applying an HRBA to addressing corruption in water has been strengthened at ministry level and there is improved coordination between Kenya National Commission on Human Rights (KNCHR) and the Ministry for Water and Irrigation. The two entities perceive the programme as a valuable contribution to how water as a human right can be operationalised in Kenya.

The programme also seeks to strengthen the capacity of communities and civil society organisations and has specifically targeted the strengthening of consumers and local water services providers in addressing issues of integrity and transparency to promote equitable and more efficient water services provision. A complaints redress mechanism has been developed that allows consumers to voice their dissatisfaction in cases of corruption or mismanagement as one possible accountability mechanism.

Accountability of UN and Other Development Agencies

Not only the accountability of States, but also that of the UN and other development agencies is important. Their process of decision making has to be transparent and information on the project accessible. Benchmarks and indicators have to be identified from the outset to help monitor and evaluate the project. The different groups involved and affected by the project should also be part of the M&E process.

CHALLENGES AND LIMITATIONS OF A HUMAN RIGHTS-BASED APPROACH

It is important to be realistic about the limits of an HRBA. It will not resolve all the difficulties and complexities in ensuring water and sanitation for all. However, it can complement and strengthen existing development strategies. Some of the major practical challenges in adopting an HRBA to water and sanitation include:

Overload of ‘Mainstreaming’ Activities

Human rights are not the only cross cutting issue in development programming. Others include gender and capacity development. So as not to overload development practitioners it is important that human rights are not perceived as an add-on, but as an overarching framework that addresses these issues. Gender aspects can be addressed under the human rights framework as women’s rights are also human rights and the Convention on the Elimination of All Forms of Discrimination against Women is central to the HRBA framework. Moreover, an HRBA aims to challenge power imbalances that result in the unequal access to water and sanitation and to ensure that women play a central part in water management. Capacity development is also at the heart of HRBA. Unless the capacity of rights-holders to claim their rights and duty-bearers to fulfil their obligations is developed, human rights will go unrealised.

Synergies between Integrated Water Resources Management (IWRM) and HRBA

IWRM promotes the coordinated development and management of water, land and related resources with a view to maximising economic and social welfare in an equitable manner without compromising the sustainability of vital ecosystems. In IWRM, water is recognised both as a social and economic good, and effective water governance is a central aspect of the approach. As such, it is based inter alia on principles of equity, participation, transparency and accountability. IWRM is an approach that may help to inform and address HRBA to water. It can do this by helping to balance issues of (human) rights with efficiency and sustainability through practical opportunities and measures leading to an environment within which rights to water can better be realized. Similarly, an HRBA may contribute to the IWRM approach by institutionalising approaches to participation, clarifying key social/equity aims as well as environmental goals, and putting a focus on building the capacity of States and other entities to fulfil their obligations as well as on citizens to know and claim their rights. Linking and gaining synergies between the two approaches poses some challenges of clarifying perceived conflicts between the approaches and identifying ways to align them in practice. Exploring the potential synergies and alignment of the two paradigms is one objective of the aforementioned UNDP-GWP Rights-Based Approaches and Integrated Water Resources Management Initiative.

Practical Issues of Meaningful Implementation

An HRBA to water and sanitation, and recognising the right to water and sanitation, can have significant positive influence on water-relevant policy, advocacy and development efforts, as discussed above. But questions about practical mechanisms and operational measures for effective implementation still remain. Translating an HRBA and the right to water and sanitation into practice is tied to complex water governance reform processes, and more broadly the governance environment beyond the water sector.

Time

Addressing not only the symptoms, but also the underlying causes for the lack of access to water and sanitation takes time. Changing behaviour, attitudes and cultural norms is a long term process. And institutional capacities and awareness of human rights in some contexts can be very low. Moreover, addressing these issues might be politically sensitive. Hence, tackling the crisis in water and sanitation has to be linked to long term improvements in governance and interventions that aim to strengthen democratic processes and institutions.

SUMMARY: THE BENEFITS OF A HUMAN RIGHTS-BASED APPROACH

It has been argued that empowerment, participation as well as non-discrimination and equality are among the criteria for effective water governance and are already part of good programming practice. So does an HRBA to water supply and sanitation go beyond mere ‘repackaging’ of these terms? And what is its ‘added value’?

While it is too early to conclude on the practical benefits of an HRBA for development interventions in the water and sanitation sector, some lessons are emerging from the practice to date:

A Coherent Normative Framework for Ensuring Participation, Non-discrimination and Equality

While principles such as participation and non-discrimination are not new to development interventions, anchoring these practices in the human rights framework strengthens and extends these practices. Recognising these as rights makes them non-negotiable, consistent and legitimate.

Increasing Accountability

Sharpening accountability is central to the HRBA. The human right to water and sanitation can act as a performance standard against which progress in realising access to water and sanitation can be measured and evaluated. It also clearly identifies who is responsible for providing these services and focuses on strengthening their capacity to meet these obligations. Through strengthening participatory mechanisms, access to information, human rights awareness and capacities of poor and marginalized groups, it further strengthens the lines of accountability between the duty-bearers and right-holders.

Creating Ownership to Ensure Sustainability of Results

Active, free and meaningful participation from the beginning of the decision-making process increases the sustainability of water interventions. Programmes are more likely to meet local preferences and needs, use local knowledge and technology and match local capabilities to sustain the projects. As informed citizens and genuine stakeholders, individuals feel committed to maintaining the services when the development agencies have left.

Prioritising Vulnerable and Marginalised Groups

Vulnerable and marginalised groups often suffer disproportionately from unequal access to water and sanitation. An HRBA focuses on the situation of the most poor and marginalised and thus contributes significantly to the broader aim of poverty reduction and equality in rights.

Empowerment by Human Rights: Addressing the Structural Causes

Human rights lend legitimacy to demands to access to water and sanitation. As such they have the potential to empower people. Moreover, analysing water and sanitation issues through the human rights lens allows for a better understanding of how laws, social norms, traditional practices and institutional actions positively or negatively affect access to water and sanitation. This leads to more focused strategic interventions, which address the underlying systemic biases and causes for the lack of access to water supply and sanitation: issues such as power, poverty and inequality.

MAIN LESSONS

Stakeholder Perspectives

  • Stakeholders actively welcome the HRBA as a new, innovative and promising approach for improving access to water and governing it in an effective and sustainable manner.
  • Stakeholders believe the HRBA fills an important gap in development approaches aimed to improve water governance/access to water and sanitation. Many highlighted the infrastructure projects of the past have led to little improvement in the number of people with access to safe drinking water, partly due to civil war damage in the 1990s in both countries. They expect the HRBA to complement existing projects to ensure real and long-lasting impact on the ground.
  • Stakeholders perceive the level of commitment from duty-bearers to be higher than normal in the application of the HRBA, and maintain a HRBA addresses water access and governance challenges in a more comprehensive way.

Lessons for National Programming

  • The normative HRBA framework informed by international human rights principles and standards is not always totally applicable to the country situation, but has to be tweaked to develop a pragmatic, context-specific approach. (A useful acronym for remembering the HR principles that should inform programming is PANEL: Participation, Accountability, Non-discrimination, Empowerment and Legislation).
  • Anchoring human rights principles into programming and recognising them as rights, makes them non-negotiable, consistent and legitimate. Whilst a development practitioner might typically think about participation and inclusion in the programming cycle, a HRBA forces one to consider the added dimensions of accountability and the rule of law, and the interdependence and interrelatedness of the ‘right to water’ with all other human rights. That is a project focusing on the ‘right to water’ might appear narrow in scope, but is actually helping towards the full realization of all human rights. It is important that this is emphasised, especially in getting NGOs on board who claim they deal only with first generation human rights as they deem those of most importance.
  • It became clear during the missions that as active subjects, citizens do not only have rights, but also responsibilities; i.e. they have a right to sustainable access to safe potable water, but they simultaneously have responsibilities in water management (e.g. a willingness to pay affordable tariffs and to not pollute watercourses with rubbish or open defecation). It is paramount that both rights and responsibilities are recognised and emphasised.
  • In Bosnia and Herzegovina, responsibility for water service delivery is widely dispersed in the public sector, as a result of the post-civil war constitutional settlement. As a result, it would have been very difficult to make an impact of any significance using water governance projects of conventional design. However, the HRBA approach, by focusing on the rights and responsibilities of a group subject to various forms of discriminatory deprivation, opened up a new angle to approach local government bodies which has a good chance of success.
  • Adopting a HRBA with its explicit priority target group of the most marginalised/disadvantaged/excluded groups, really helped to clearly define and justify the beneficiaries of the programme activities.
  • It became clear from the missions that weak water governance was not an outcome of duty-bearers unwillingness to provide efficient and effective water service delivery to all in their country, but rather that they were unable to with the resources available to them.

Positive changes brought about by a HRBA compared to more “traditional” approaches

  • Adopting a HRBA alters the mission formulation. Water Governance and HRBA experts were both needed, and additional stakeholders from the human rights field had to be included in the list of stakeholder meetings on the mission agenda. For example, it was necessary to meet with not only Ministries, NGOs and other organisations dealing with water, but with Ministries of Human Rights, the national Ombudsman, OHCHR representatives in country, government departments dealing with constitutional rights and Human Rights NGOs. In terms of NGOs, experience has shown very few specifically deal with third generation human rights such as the ‘right to water’, but rather prioritise first generation human rights.
  • Projects designed from a HRBA specifically target the most vulnerable and marginalised groups in terms of their access to safe potable water, which is not necessarily the case in development projects not adopting a HRBA, as fewer resources are needed and greater results are generally achieved by targeting those not in most need. Efforts to improve the lives of the poorest of the poor/most marginalised tend to more challenging, and resource-intensive.
  • In a standard water supply and sanitation programme beneficiaries have no active claim to ensure that their needs will be met, and there is no binding obligation or duty for anybody to meet these needs. In contrast, the rights-based approach recognizes beneficiaries as active subjects or “claim-holders” and establishes duties or obligations for those against whom a claim can be held. Thus the HRBA changes the conception of people as passive beneficiaries of State policies and development projects, to being active participants in their own development.
  • A larger impact is made by the HRBA as compared with a conventional water programme. Both aim to improve water governance, but the former also aims for the programme activity to have an impact in terms of contributing to the further realization of human rights and protecting the dignity of all people. A HRBA therefore aims for more than material outcomes such as improved access to safe water, to include qualitative values such as human dignity and ethics.
  • A conventional Water Governance programme largely focuses on capacity building in the form of improving governance at central and/or local government levels via a top-down approach. A HRBA to Water Governance does the same, focusing on strengthening the capacity of government and other duty-bearers to meet their water service delivery obligations. But the HRBA approach further aims for simultaneous capacity building of individuals in civil society so they are able to actively and effectively claim and exercise their ‘right to water’. It therefore utilises both a top-down and bottom-up approach to capacity development.

References

  1. While the UN Common Understanding is based on an interagency agreement, the basis for mainstreaming human rights in development work has been reinforced by the 2005 World Summit Outcome Document. It reads: “We resolve to integrate the promotion and protection of human rights into national policies and to support the further mainstreaming of human rights throughout the United Nations system.” Cf. A/Res/60/1, 20 October 2005, Paragraph 126. Available at: www.un.org/summit2005/documents.html. In so far, the UN Common Understanding can be regarded as a first step to translate this call for mainstreaming human rights into practice.
  2. The Stamford Inter-Agency Workshop statement of ‘Common Understanding’ on a human rights-based approach to development cooperation. Available at: www.undg.org/documents/3069-Common_understanding_of _a_rights-based_approach.doc
  3. Art. 25 of the International Covenant on Civil and Political Rights, states that: ‘every citizen has the right to take part in the conduct of public affairs … and the right to have access to public service.’ Also a number of procedural rights as well as freedom of expression, freedom of association, freedom of press and access to information show close links to participation.
  4. Cf. Virginia Roaf, Ashfaq Khalfan and Malcolm Langford, Monitoring Implementation of the Right to Water: A Framework for Developing Indicators, Global Issue Paper No. 14, Heinrich Boell Foundation, October 2004

See also

A Human Rights-Based Approach (HRBA) to Improve Water Governance in Europe & CIS

External Resources

UNDG Common Learning Package on HRBA

HRBA Portal

HRBA Publications

HRBA's theoretical roots

Status of Ratficication of Principal International Human Rights Treaties

Attachments

 Applying HRBA To Development Programming.pdf

 CoHRE Monitoring Implementation of the Right To Water, A Framework for developing indicators.pdf

 Operational Guidelines for Implementing Rights-based approach to water and sanitation programming.pdf

 CoHRE Manual on the Right to Water and Sanitation.pdf

 FAQs on a HRBA to Development Cooperation.pdf

 OHCHR Human Rights and the MDGs.pdf

 Sub-commission guidance on the realisation of the right to water and sanitation.pdf

 The Implications of Formulating a Human Right to Water.pdf

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