Human Rights and Development - A Comment On Challenges and Opportunities From A Legal Perspective

Human Rights and Development: a
Comment on Challenges and Opportunities

from a Legal Perspective*
SIOBHÁN MCINERNEY-LANKFORD
Abstract
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Human rights and development continue to reﬂect a separate evolution. This article
explores challenges which characterize the relationship between human rights and
development from a legal perspective suggesting reasons why the tensions and dis-
connects endure. It makes an obvious, but nevertheless underappreciated point:
human rights are the subject of binding international legal obligations and their rel-
evance to development can be understood in light of this. The ﬁrst part of this
article addresses the challenges of integrating human rights in development and the
divergences of discourse and policy frameworks. The consequences of these diver-
gences are examined, including a lack of prominence for legal duties for human
rights in development, the absence of a normative baseline against which to check
development processes and outcomes, an overall lack of policy coherence and a
potential undermining of human rights accountability. The article concludes by high-
lighting opportunities extant in the international human rights law framework. The
legal challenges and opportunities are viewed as interconnected: obstacles confronted
in integrating human rights in development may be to be rooted in a neglect of the
normative and legal dimensions of human rights, which in turn point to opportunities
for greater convergence and coherence around international legal frameworks.
Keywords: development; human rights; international law; obligations;

policy; treaties
Introduction
Although recognition of some link between human rights and development
is relatively well supported,1 there are ways in which the two persist in paral-
lel and continue to reflect a separate evolution (UNDP, 2000). The relation-
ship between human rights and development today is arguably defined more
by its distinctions and disconnects than by its points of convergence, despite
substantial evidence of the potential for mutual reinforcement (see, for
example, Robinson and Alston 2005: 11– 18). This article addresses the
interface of human rights and development, focusing especially on the inte-
gration of human rights into development (although the reverse is alluded to
* This article reflects the personal views of the author and should not be attributed to the
World Bank.
1 An early linkage can be found in the recognition of the right to development, see for
example, Proclamation of Tehran (1968) http://www.unhchr.ch/html/menu3/b/b_tehern.
htm. See also the Declaration on the Right to Development, Resolution 41/117 / 128
(4 December 1986).
Journal of Human Rights Practice Vol 1 | Number 1 | March 2009 | pp. 51–82 DOI:10.1093/jhuman/hun005
# The Author (2009). Published by Oxford University Press. All rights reserved.
Siobhán McInerney-Lankford 52
in parts). It looks at the uneven recognition of human rights in development,

particularly those which are directly relevant to or affected by development
processes and outcomes. It aims to explore the potential relevance of human
rights obligations as an overlooked but potentially worthwhile area to
explore: in this, the focus is on obligations under treaties to which states
have voluntarily acceded. As such, therefore, it sets out the parameters of the
legal and policy questions to invite further exploration of the opportunities

extant in the legal dimensions of human rights discourse and the potential
for their future application in development.
Whatever the view taken of how closely human rights and development can
and should be integrated, there can be no doubt that the two overlap substan-
tially and a number of international frameworks such as those discussed in this
article have begun to recognize the connections Sano, 2006. A premise of this
article is that human rights could be integrated more systemically into develop-
ment policy and practice, for three reasons. (1) They are intrinsically valuable
in aiming to protect human dignity (e.g. jus cogens) and may be (negatively)
affected by development so that development policy should identify ways to at
a minimum meet the ‘do no harm’ threshold. (2) They are also instrumentally
useful to enhance development processes, address certain types of social risk,
ensure accountability (Darrow and Tomas 2005), and ultimately secure more
equitable and sustainable development outcomes. (3) As a matter of public
international law, human rights treaty obligations are legally binding States
parties, and under custom bind all states other than persistent objectors: as
such they should be respected in all contexts, including development.
While the majority of development policies and frameworks incorporate
human rights concerns, many do so only implicitly: as a result, there may be
value in examining the use of explicit human rights language and reliance on
human rights obligations under international law. This article focuses on
human rights as the subjects of binding international legal obligations, and a
thorough a review of development policy, suggests that despite some incorpor-
ation of human rights in development policies, greater reliance on human
rights law might provide one effective way to promote a more systematic, expli-
cit and coherent approach to the integration of human rights in development.
Human rights law offers one way of bridging the divergence between human
rights and development,2 thereby enhancing coherence and human rights
accountability, highlighting potential risk and preventing human rights harm.
The Relationship Between Human Rights and Development

Convergence and divergence
The parameters of the overlap between human rights and development can
be described as occurring at three different levels: (1) factual or substantive
2 For an analogous discussion linking trade and labor standards, see Barry and Reddy (2006:
548).
53 Human Rights and Development
overlap, (2) convergent principles, and (3) obligations.3 This facilitates a

more systematic approach to the interface between the two, and a more pur-
poseful and transparent approach to the integration of human rights in
development.
At a factual or substantive level, one can identify a confluence of human
rights and development in the expanding range of functions, activities, and
policies of development agencies and international financial institutions

(IFIs) which overlap with the material provisions of human rights treaties,
particularly those of the International Covenant on Economic, Social and
Cultural Rights (ICESCR) but also those of the European Social Charter
(1961), the American Convention on Human Rights (1969), the Protocol of
San Salvador (1988), the African Charter of Human and Peoples’ Rights
(1981), and the European Union (EU) Charter of Fundamental Rights
(2001). Development projects and programmes now cover the gamut of
social and human development, much of which bear a direct relationship to
core economic and social rights, and connect to a number of civil and political
rights. Development institutions conduct a broad range of operations in the
fields of health, education, labour and social security, children and youth, and
food. They increasingly promote governance programs, anti-corruption strat-
egies, as well as justice reform and rule of law activities. However, while there
is much substantive congruence, this ‘factual overlap’ does not automatically
align with all the objectives of such operations and those of ‘corresponding’
human rights treaties. Such activities may not be assumed to reflect or
promote the realization of human rights, since few reference or mainstream
human rights in their designs and objectives. Moreover, such activities will
typically not address any impact on human rights – assessing whether they in
fact support human rights or result in human rights harm.
But the convergence occurs also in less fortuitous ways – there is a docu-
mented overlap between human rights and development evident in the prin-
ciples that are now prominent in the mainstream of development policy.
Principles like participation and consultation,4 inclusion, cohesion, good
governance, accountability and equality or equity, are well established in
development discourse, but they also constitute the tenets of a rights-based
approach to development with roots in human rights philosophy or conven-
tions. This convergence and proximity underscores the question of what
‘value-added’ human rights discourse brings (Sano, 2006), and that the
answer lies in the realm of obligations.
Equality provides a vivid example. Equality lies at the heart of the inter-
national human rights framework, underpinning entire instruments like the
3 This is the typology used in McInerney-Lankford (2007: 459).

4 Participation and consultation are central to the policies and practice of many development
agencies; see e.g. the World Bank Operational Policies on Environmental Assessment (OP
4.01), Indigenous Peoples (OP 4.20), Forests (OP 4.36) and Cultural Property (OP 4.11).
Convention on the Elimination of All Forms of Discrimination against

Women (CEDAW), the Convention on the Rights of Persons with
Disabilities (CRPD) and the Convention on the Elimination of All Forms of
Racial Discrimination (CERD). Equality is defining feature of other treaties
such as the International Covenant on Civil and Political Rights (ICCPR,
Articles 2 and 3), ICESCR (Article 2.2) and the European Convention on
Human Rights (ECHR, Article 14).5 Development discourse often embraces

equality principles, sometimes finding its analogues in the principle of equity
(see World Bank, 2006), sometimes in principles like inclusion, cohesion, or
empowerment. Equality may also be transposed more implicitly through
activities that foster inclusive development. This illustrates both the compat-
ibility of development and human rights; but also the ways in which the
development ‘equivalents’ fail to embrace human rights specifically. The con-
vergence around principle remains a limited one, which, in this example,
neglects structural or historical discrimination, and a more holistic and con-
textualized understanding of the factors that cause inequalities. It lacks the
normative and intrinsic justification of equality founded in human rights
law, and the concrete, enforceable standards it entails. Crucially, equity does
not entail duties, while equality as a right generates obligations. A stronger
integration of equality into development, including through the relevant legal
standards or through the guidance of interpretations of competent treaty
monitoring bodies, might strengthen development through fostering speci-
ficity, technical parameters and a solid normative foundation.
At the level of principle therefore, a concerted effort exists to integrate human
rights into development policy and practice, which has enriched development
discourse and improved development processes and outcomes through securing
greater participation, consultation, and equity. However, the source of those
principles, and their specific ramifications and interpretation are left to the dis-
cretion of institutions, so that their normative strength is left undetermined.
The third ‘level’ at which development and human rights intersect relates
to duty or obligation. It is potentially the most important, but also the least
established. It is common to encounter statements that assert a link between
human rights and development, or claims that development either contrib-
utes to the realization of human rights or creates the conditions under which
human rights can be realized. Such statements assume a positive correlation
and do not address the critical dimension of duty which human rights
necessarily entail, as well as the realm of legal obligations. An important dis-
tinguishing feature of human rights is the specification of obligations and
duty. At a philosophical level ‘rights require correlative duties’ (Eide, 2001:
22), and without duty there is no right.6 In public international law terms,
5 For a comprehensive discussion of international law provisions on equality and protection

against discrimination, see McKean (1983) and Fredman (2001).
6 On the ‘correlativity of rights and duties’, see Mayo (1967: 68, 72).
the obligations or duties may have their source in the three classic sources of
international law: treaties, custom (including principles of jus cogens 7 or
obligations erga omnes 8) and general principles of law.
While the overlaps at the first and second levels have been criticized as
‘mission creep’ or ‘rhetorical repackaging’ respectively (Uvin, 2004: 47), the
same cannot be said of the third (obligations), which concerns a source of
human rights that is independently undertaken and legally binding. In con-

clusion therefore, the relationship at a factual level evidences substantial
overlap; at the level of principles, a certain compatibility and convergence,
but at the level of obligations or duty, something more like divergence.
Reasons for the enduring disconnects and tensions

A number of reasons can be put forward to explain the enduring disconnects
between human rights and development despite the evidence of convergence.
Legal or mandate constraints

For many development agencies human rights are understood to lie outside
the legally established mandates of development institutions.9 The views are
often based on particular interpretations of provisions on political prohibi-
tion in the constitutive instruments of development agencies.10 They assert
that human rights are inherently political, and therefore, outside the per-
mitted realm of considerations for such institutions, as well as outside their
established mandate and competence. These views will sometimes be
coupled with arguments that human rights are properly the purview of more
openly political entities whose mandates provide explicitly for human rights.
The narrow definition of institutional mandates may also rest on a vision of
the specificity of tasks in a global context and the correct distribution of
responsibility between international institutions.
7 Jus cogens rules are those peremptory norms from which no derogation is permitted. They
protect the overriding interests and values of the international community of states, and due
to their affinity with natural law, are understood to include human rights.
8 The International Court of Justice (ICJ) recognized obligations erga omnes in the Barcelona
Traction, Light and Power Co. Ltd. Case, [1970] I.C.J. Rep. 3. There are certain inter-
national obligations which, by virtue of the importance of the rights involved, all states can
be held to have a legal interest in protecting. These include rules concerning the basic rights
of the human person.
9 See Articles III, Section 5, and Article IV, Section 10 of the International Bank for
Reconstruction and Development (IBRD) Articles of Agreement; and Shihata (1991: 761).
10 See Shihata (2000: 219). Under such a view, human rights considerations fall outside pro-
visions barring political considerations and amount to interference in the domestic affairs
of members. One may argue that such provisions should be interpreted in light of contem-
porary international law, which balances a protection of sovereignty with respect for prin-
ciples that underpin the international legal order and the Charter of the United Nations,
including human rights.
Political resistance and value-based objections

Beyond the formal legal constraints, or particular definitions of mandates,
human rights is not a concept around which there can be said to be consen-
sus, and at an international level it is one of inescapable political sensitivity,
with states fiercely protective of their human rights records and resistant to
rankings, assessments and censure. For these reasons, human rights is widely
perceived as a controversial subject in development agencies and IFIs, and

viewed cautiously because of its divisive potential, including at the level of
governing bodies. There may be widely differing viewpoints between
members from the North and the South, or between donors and partners;
but there may equally be variances between donors, and between partners.
Some resist a current broadened understanding of human rights (possibly
favouring particular domestic definitions or regional understandings, or an
emphasis on one or other category of right). Others resist being dictated to
on human rights through the lending instruments or development assistance
generally, and many oppose what they perceive as double standards and
hypocrisy when the dictates come from countries with economic power
rather than exemplary human rights records. It is also worth acknowledging
the disproportionate impact human rights-related conditionalities might have
on certain member countries – that is, beyond the disproportionate impacts
on borrowing countries (with no concomitant pressure on lenders), certain
countries may be able to resist such human rights oversight by refusing to
borrow from institutions that consider or impose human rights standards,
while others, usually the poorest and least powerful, may not have that
freedom.
Disciplines and approaches

The practice and policy that has evolved around development and human
rights is governed by divergent discourses at least in part due to the predomi-
nance in each of different disciplines and methodologies (see Seymour and
Pincus, 2008). At some fundamental level therefore, there is a perceived
incompatibility between the approaches and language of each, making cohe-
sion between them very challenging. Development has traditionally been the
purview of economists, social scientists and sectoral or technical experts,
while the human rights framework is predicated towards legal norms and
rules, which have been largely drafted and interpreted by lawyers.
Development institutions tend to rely on evidence-based approaches, while
human rights organs operate from normative precepts. These may be difficult
to reconcile, just as the ‘empirical’ case for respecting and protecting human
rights may be difficult to prove and whatever empirical evidence exists is
arguably equivocal or supportive of far narrower links (see, for example,
Banerji and Ghanem, 1997; Barro, 1997; Isham et al., 1997). This has
resulted in different discourses based on distinct disciplines, traditions and
institutional cultures which enjoy no obvious affinity. Thus, development
practitioners may approach issues in programmatic, forward-looking terms,

predicated towards practical solutions, trade-offs and the rendering of techni-
cal assistance, whether at a country, sector or project level. Human rights
practitioners likely start from a more explicitly normative baseline driven by
principles like indivisibility and universality. They possibly adopt a retrospec-
tive outlook, from which responsibility for non-realization of human rights
may be assigned and where poverty is viewed as a denial, or even violation

of human rights.
Practical problems of bridging these disciplines arise in the absence of a
solid evidence base demonstrating how rights-based approaches have suc-
ceeded, and where or how they have been successful in generating more sus-
tainable development. This may link to practical difficulties of assessing,
measuring and mainstreaming human rights, or to subtle forms of skepticism
based on cultural relativism and the difficulties of identifying and promoting
human rights norms in international contexts. There are also practical con-
siderations related to how development institutions ‘do business’ and the
ways in which human rights considerations, particularly where indexed to
human rights legal standards, could be perceived as effecting an obstacle to
disbursement and a burden on operations. Some development institutions
may simply not have clear operational entry points in their policies and
instruments to mainstream or integrate human rights considerations. This is
compounded by the absence of operational entry points in their policies and
instruments, and the existence of certain ingrained institutional imperatives
and internal incentive structures.
Institutional arrangements
Cleavages in disciplines and approaches are sometimes reflected in insti-
tutional arrangements or the structures within governments. Human rights
and development cooperation may be handled by separate teams within min-
istries of foreign affairs, or development cooperation may be managed by a
separate aid agencies altogether. In the field this may be reflected in indivi-
dual donors having human rights and policy dialogue conducted by their
embassies and development programs by their development agencies.
Similarly, participation in IFIs, multilaterals and development initiatives may
be dealt with separately from engagement with international human rights
bodies. Even within the United Nations, this is manifest in human rights
matters related to treaties being separate from those related to the
Millennium Development Goals (MDGs) or the right to development11 or in
the UN General Assembly, with second and third standing committees hand-
ling sustainable development and human rights, respectively. Within develop-
ment institutions, human rights may be recognized as an issue of
11 For example, the Office of the High Commissioner for Human Rights (OHCHR) is orga-
nized in four different branches, under which development and treaties are separate.
cross-cutting relevance, but may lack a dedicated institutional home and staff
responsible exclusively for it.
Consequences of the divergent discourse of development and human

rights
The consequences of this varied relationship between human rights and
development is an uneven recognition of human rights in development dis-

course, policy and operational frameworks and an underemphasizing of
their binding nature. This may also result in lost opportunities for human
rights treaties to positively inform development processes and programming
and provide relevant input where specific rights are in issue in the planning
or assessment of particular activities.
There may therefore be room for an approach that recognizes the mutual rel-
evance of human rights to development activities, principles and policies, but
that also recognizes the limits of the overlap. Certain human rights may be rel-
evant to particular development processes and activities, but the relevance
may not be generalized, nor involve all human rights. Moreover, human
rights-related activities in development are not necessarily equivalent to realiz-
ing human rights and to argue for any axiomatic link between the two may be
both inaccurate and unhelpful to both areas. Therefore, some clarity about the
nature and extent of the relevance of human rights at the above-mentioned
three levels (factual or substantive, converging principles, obligations),
especially the third, might facilitate a more meaningful engagement, and ulti-
mately encourage a more systematic and coherent approach to the integration
of human rights in development. Recognition of the relevance of human rights
obligations might ensure, to some extent, the place of human rights in devel-
opment as rights for which states have assumed responsibility.
Development Frameworks and the Incorporation of Human Rights

Development policy frameworks – convergence and divergence
transposed
The uneven relationship between human rights and development described
above, as well as the deeply entrenched reasons for its particular disconnects
render the process of integrating human rights in development policy
extremely difficult.12 While there are signs of greater recognition of the
legal dimensions of human rights in development (Dañino, 2006: 30), the
trend across policies of development agencies continues to evidence a
‘separability’. The tendency even among ‘bridging policies’ is to integrate
human rights in principles, perspectives or considerations rather than
obligations, and to leave them without specific anchorage in laws and
12 Organisation for Economic Co-operation and Development (OECD), Development
Assistance Committee (DAC) Human Rights Task Team (2006: 69– 89). Also see the
earlier, Hemlich and Borghese (1998).
treaties.13 Even policies that make reference to human rights instruments

tend to do so in a preambular way, or as framing propositions to identify the
general sources of human rights rather than as positive binding legal obli-
gations under international law. In this way, human rights may become part
of the general policy narrative, but rarely are the legal ramifications of specific
instruments articulated in development policies that reference them, potentially
limiting the degree to which human rights can in fact be integrated.

Frameworks that evidence the separation of development and human
rights
The following discussion traces the connection between human rights and
development at a policy level, identifying an evolution in the inclusion of
legal dimensions in development policy frameworks and arguing that a
stronger the legal dimension correlates with a more systematic integration of
human rights in development can be.
Millennium Development Goals

At a macro level, development policies of multilaterals are governed by pol-
itical goals and resultant policy frameworks that do not mention human
rights or the relevant human rights treaty frameworks. The Millennium
Development Goals (MDGs)14 are time-bound development targets that
emanate from the 2000 UN Millennium Summit, along with the Millennium
Declaration.15 The MDGs exemplify a framework in which, despite their
deep relevance to each Goal, specific human rights are not mentioned in the
Goals or their targets; this is to be contrasted with the provisions of the
Millennium Declaration which contain multiple references to human
rights.16 Global Monitoring17 is a monitoring framework that ‘focuses on
how the world is doing in implementing the policies and actions for achiev-
ing the MDGs and related development outcomes. It is a framework for
accountability in global development policy’,18 but despite its stated purpose
13 See, for example, UN Development Programme (UNDP) (2001: 2) describing an
rights-based approach (RBA) as one that is based on the ‘values, standards and principles’
of the UN Charter and Universal Declaration of Human Rights (UDHR) and subsequently
legally binding human rights conventions’.
14 http://www.un.org/millenniumgoals/
15 http://www.un.org/millennium/
16 OHCHR (2008a, b: 3) traces the links between human rights and the MDGs but also
underscores the broad disconnect between the two frameworks. Also see Alston (2005).
17 Global Monitoring emanated from a request of the Development Committee at the 2002
Bank-Fund Annual Meetings which called for determined implementation of the agreed
strategies and partnerships for reaching the MDGs and requested a framework by which to
monitor progress on the underlying policies and actions while recognizing the role of the
UN in MDG monitoring.
18 Another relevant framework that predates the MDGs, is the Comprehensive Development
Framework, available at http://go.worldbank.org/O3CN35INY0.
as a framework for accountability it does not expressly refer to rights or obli-

gations. The foregoing illustrates how in the view of some, ‘human rights
have not yet played a significant role in supporting and influencing
MDGs-based development planning’ (OHCHR 2008: vii).
At an institutional level, development agencies and IFIs have developed
frameworks like Global Monitoring19 to advance the attainment of the
MDGs. Others have developed polices to guide their work on poverty to

meet the Goals; examples include the World Bank’s Operational Policy 1.00
on Poverty Reduction,20 the United Nations Core Strategy on MDGs21 or
the Asian Development Bank’s Strategy 2020.22 Each reflects the disconnect
between development policy and human rights frameworks, with few, if any,
references to human rights, even those of direct relevance, and no express
linkage to human rights treaties or obligations.
Despite the multilevel relevance of human rights to development, the
shared focus on accountability and the substantive overlap of the MDGs
with areas covered by human rights treaties like CEDAW, the Convention on
the Rights of the Child (CRC) or the ICESCR, the MDGs and related frame-
works do not incorporate human rights or the relevant treaty obligations.
What may be lost in this is the opportunity to use the interpretations and
findings of treaty monitoring bodies where particular rights are at issue in
development activities, and thereby offer development agencies the relevant
expertise to help minimize risk and enhance development effectiveness and
sustainability. Such a cooperative and facilitative approach should not imply
new, monitoring functions for IFIs in respect of human rights, but rather
promote more coherent and effective development practice. Conversely, such
an approach might facilitate the exchange of relevant information and
improve the quality of data available to treaty bodies.
Aid effectiveness
The separability of frameworks is evident in relation to aid effectiveness, too.
Following the 2002 Monterey Financing for Development Summit, aid
agencies have forged ‘an operational consensus behind principles of aid har-
monisation’ (Marshall, 2008: 96). This led to the Rome Declaration (2003)
19 http://go.worldbank.org/UVQMEYED00
20 World Bank Operational Policy O.P. 1.00 on Poverty Reduction – it is ‘consistent with the
World Development Report 2000/2001 on Attacking Poverty, and with the multidimen-
sional vision of poverty reduction contained in the MDGs and the Bank’s commitment to
accelerating progress towards these goals’. See: http://go.worldbank.org/0K895K0TV0
21 This contains only two references to human rights, see: http://www.undp.org/mdg/core_s-
trategy.pdf
22 The Long-Term Strategic Framework of the Asian Development Bank 2008-2020, see
http://www.adb.org/documents/Policies/Strategy2020/Strategy2020-print.pdf or
Fighting Poverty in Asia and the Pacific: The Poverty Reduction Strategy, see http://www.
adb.org/Documents/Policies/Poverty_Reduction/Poverty_Policy.pdf
and the Paris Declaration (2005),23 which set out the commitments of multi-
lateral and bilateral development institutions as well as partner institutions
to harmonize ‘the policies procedures and practices of their institutions with
those of partner country systems to improve the effectiveness of development
assistance and thereby contribute to meeting the Millennium Development
Goals.’24 The Paris Declaration confirmed five core principles: ownership,
alignment, harmonization, managing for results and mutual accountability

to improve the quality of aid and its impact on development. It promulgated
a more detailed, operational framework based on actions in its 56 partner-
ship commitments and 12 indicators. Despite the ways in which aid modal-
ities can impact human rights and the ways in which human rights might
inform the principles set out to govern the delivery of aid, the Rome and
Paris Declarations remained silent on human rights and do not address the
mutual relevance of human rights and aid effectiveness. In this they reflected
a narrower, efficiency-based understanding of aid effectiveness concerned
with the technical processes of aid delivery rather than its substantive ramifi-
cations or overarching goals. They also failed to recognize that ‘Aid is only
effective if it achieves good development results, and good development
results are not possible if gender inequalities persist, environmental damage
is accepted, or human rights are abused’ (Robinson in OECD DAC HRTT
2008: 1).
This divergence persisted until the 2008 outcome document of the
High-Level Forum in Accra, known as the Accra Agenda for Action (AAA).
While the AAA notes respect for human rights as a cornerstone of develop-
ment,25 and cites human rights in its provision for an expanded policy dialo-
gue (Accra Agenda for Action, 2008: 13c), the question remains whether the
neglect of human rights hitherto will impede the implementation of those
commitments in the AAA.
Without including human rights explicitly in the principles, commitments
and indicators of the Paris Declaration, or in its monitoring and evaluation
frameworks (see Wood, et al. 2008), the impact of new aid delivery mechan-
isms on the realization of human rights cannot properly be assessed, nor can
the positive potential of human rights for Paris Declaration principles be
concretely explored. Moreover, the human rights context, including their
legal context, may be useful to inform donors’ choices of aid instruments to
help strengthen accountability and ensure that resources reach the poorest
and least powerful.
23 http://www.oecd.org/dataoecd/11/41/34428351.pdf
24 Rome Declaration on Aid Harmonisation (2002), http://www.oecd.org/dataoecd/54/50/
31451637.pdf
25 Paragraph 3 states: ‘Gender equality, respect for human rights, and environmental sustain-
ability are cornerstones for achieving enduring impact on the lives and potential of poor
women, men, and children. It is vital that all our policies address these issues in a more sys-
tematic and coherent way’.
Poverty reduction strategies

Poverty reduction strategies (PRSs)26 are a prerequisite for concessional
assistance from the International Development Association (IDA) and the
IMF, and debt relief under the Heavily Indebted Poor Countries (HPIC)
initiative of the World Bank and the International Monetary Fund (IMF).
Despite the overlap of human rights and poverty reduction strategies at a
factual or even principled level, human rights are not the subject of concrete

engagement within PRSs and do not influence their design in any discernable
way,27 and is at best only implicitly incorporated in the strategies (Nankani
et al., 2005: 475) or in the tools and documents that relate to these (e.g.
World Bank Sourcebook on PRSPs28 or Bank-Fund Joint Staff Advisory
Notes [JSAN]29). Occasional references to human rights exist in individual
PRSs, but few if any specific references are made to international human
rights treaties. Such references, unaccompanied by links to specific inter-
national human rights instruments, may result in human rights being incor-
porated only implicitly with little specific operational relevance. Some
commentators have remarked on the broader role potentially fulfilled by
PRSs. As comprehensive policy documents in many developing countries,
PRSs may play an important role as vehicles for furthering the realization of
human rights obligations of those countries (Tostensen 2008: 210). Under
this view, PRSs, and the tools, documents, frameworks and results tables
associated with them, could usefully include explicit references to relevant
human rights treaties in an effort to support developing countries realize
their human rights obligations as they pursue development.
Policy efforts to bridge development and human rights

While many development policies implicitly address human rights concerns
and principles (e.g. World Bank safeguard policies), most prominent policy
frameworks governing development and aid do not integrate human rights
systematically. However, significant efforts to link human rights and develop-
ment and aid do exist, including examples of policies that make explicit
reference to the international human rights law framework. Whatever the
26 http://go.worldbank.org/FXXJK3VEW0. The current nomenclature favors PRS rather
than PRSP, since most individual country strategies go beyond just fulfilling the require-
ment for a PRSP and include a country’s broader plan to reduce poverty.
27 For a critical review of PRSPs from a human rights perspective, see Stewart and Wong
(2005: 447). They also ask whether the mention of human rights in PRSP would materially
alter their conclusions, since the risk would be that human rights would simply remain
confined to the language without any consequence in reality.
28 http://go.worldbank.org/3I8LYLXO – ‘The Sourcebook is a guide to assist countries in
the development and strengthening of poverty reduction strategies. The Sourcebook reflects
the thinking and practices associated with the Comprehensive Development Framework, as
well as lessons emerging from the World Development Report on Poverty, and good inter-
national practices related to poverty reduction’.
29 http://povlibrary.worldbank.org/library/subtopic/3478/.
particular view taken of whether the integration of human rights into devel-
opment policy should take place, the approach to determining that question
should be systematic and coherent.
The rise in prominence of human rights in development discourse is
evident in a range of UN initiatives that link human rights and development,
locating the source of human rights in the core UN human rights treaties. A
rights-based approach is mandated as integral to the form and content of the
UN’s development policy,30 and is central to the approaches of both the

UNDP (UNDP, 2001, 2005) and the OHCHR (OHCHR 2006a, b, c),
including in relation to work on the MDGs (OHCHR, 2008a, b) and
poverty (OHCHR 2004, 2006a, b, c). Many UN policy frameworks and
statements make reference to international legal instruments as the source for
human rights in development, or as an overall guiding framework for inter-
national cooperation. This was reflected in ‘Action 2’31 and again in the UN
Secretary General’s 2005 Report ‘In Larger Freedom’, which underscored
the interrelationship of security, development and human rights.32 The 2003
UN Common Understanding on a Human Rights-Based Approach to
Development Cooperation33 is even more explicit linking development
cooperation, policies and technical assistance to the realization of human
rights ‘as laid down in the Universal Declaration of Human Rights and other
international instruments’. It also states that ‘human rights standards con-
tained in, and principles derived from, the Universal Declaration of Human
Rights and other international human rights instruments guide all develop-
ment cooperation and programming in all sectors and phases of the pro-
gramming process’.
More recently, the OECD DAC approved an Action-Oriented Policy Paper
on Human Rights and Development (2007), which concluded:
30 ‘All UNCTs [UN Country Teams] must use a human rights-based approach (HRBA) [. . .]
[A HRBA] puts the international human rights entitlements and claims of the people and
the corresponding obligations of the State in the centre of the national development debate,
and it clarifies the purpose of capacity development’. http://www.undg.org/index.
cfm?P=221
31 Report of the UN Secretary-General, Strengthening of the United Nations: An Agenda for
Further Change (A/57/387 of 9 September 2002) from which the strengthening and main-
streaming of human rights in the UN has come to be known as ‘Action 2’. ‘Action 2’
related to Strengthening UN Support for the Promotion and Protection of Human Rights
Worldwide. http://www.un.org/events/action2/. See further: Action 2 Interagency Plan of
Action - Strengthening Human Rights-related UN Action at Country Level (2003) adopted
by UN Development Group, Executive Committee on Humanitarian Assistance and
OHCHR pursuant to the Secretary-General’s report.
32 Report of the UN Secretary-General (Kofi Annan), In Larger Freedom: Towards
Development, Security and Human Rights for All (2005) at http://www.un.org/
largerfreedom/
33 http://portal.unesco.org/shs/en/ev.
php-URL_ID=7733&URL_DO=DO_TOPIC&URL_SECTION=201.html
The importance of human rights for development is widely recognized.

Human rights and equitable, sustainable development are mutually
reinforcing. Human rights have intrinsic value, and achieving them is
seen as an objective in its own right. But human rights are also a critical
factor for the long term sustainability of development.
Consistent with establishing a general policy linkage, the Action-Oriented

Policy Paper recalls the treaty base of international human rights in the
‘seven core international human rights treaties’ which establish the primary
legal obligations of states parties (subject to the relevant reservations). The
Paper’s first principle sets as an objective the building of a shared under-
standing of the links between human rights obligations and development pri-
orities through dialogue, confirming that partner governments’ existing
obligations should be the starting point for such dialogue (OECD DAC,
2007: paragraph 40 [1]).
In the context of aid effectiveness, efforts have been underway to highlight
‘the potential for the international human rights framework and the Paris
Declaration to reinforce and benefit from one another’ (OECD DAC, 2007:
paragraph 35).34 Human rights are widely recognized as a so-called cross-
cutting policy issues within the meaning of the Paris Declaration,35 and it is
therefore significant that the AAA (2008) notes respect for human rights as a
cornerstone for achieving enduring impact on the lives and potential of poor
women, men and children. It goes on to state that ‘[I]t is vital that all our
policies address these issues in a more systematic and coherent way’ (AAA
(2008) paragraph 3). Human rights are also referred to under the commit-
ment to broaden country-level policy dialogue.36
Several bilateral aid agencies have policies with explicit human rights foun-
dations with many highlighting the positive connection between human
rights and development. While such policies articulate a range of objectives
and principles to guide their development activities in order to promote or
mainstream human rights, few do more than mention human rights obli-
gations of either donors or partners (Netherlands Ministry of Foreign Affairs
34 In 2007, an influential DAC workshop was held in Dublin, Workshop on Aid Effectiveness
in Practice: Applying the Paris Declaration to Advancing Gender Equality, Environmental
Sustainability and Human Rights, Dublin (26–27 March 2007). A follow-up workshop
was held in London on Strengthening the Development Results and Impacts of the Paris
Declaration through Work on Gender Equality, Social Exclusion and Human Rights (12–
13 March 2008).
35 Paragraph 42 of the Paris Declaration provides ‘Similar harmonisation efforts are also
needed on other cross-cutting issues, such as gender equality and other thematic issues
including those financed by dedicated funds’.
36 13 (c) of the AAA states: ‘Developing countries and donors will ensure that their respective
development policies and programmes are designed and implemented in ways consistent
with their agreed international commitments on gender equality, human rights, disability
and environmental sustainability’ (Accra, 2008).
2007). Prominent examples of this type of development policy framework

include the 2006 Swiss Agency for Development and Cooperation Policy
(SDC, 2006), which highlights the human rights content of the 2000
Millennium Declaration and the principle of building capacity to realize
human rights obligations. Mainstreaming is a prevalent feature in this type
of policy (see GTZ, 2004, 2005), and although many are unequivocal in
affirming their human rights foundation, few highlight human rights

obligations.
A few notable examples can be found that link human rights and develop-
ment through an explicit application of human rights obligations under
international treaties. The Austrian Development Cooperation Human
Rights Policy Document (2006) locates the strength of the human rights
framework precisely in its foundation in a legally based framework. At their
strongest, these emphasize both partner and donor obligations and offer con-
crete operational entry points for their application in development policy
frameworks. New Zealand’s International Aid and Development Agency
document, Human Rights Policy Statement (2002) and its Human Rights
Implementation Plan of Action 2004– 2009 confirm the role of donor and
partner human rights treaty obligations in linking human rights and develop-
ment. Another example emerges in Canadian legislation: the 2008 Official
Development Accountability Act offers a definition of official development
assistance and accountability, and contains a human rights clause stating
that operations must be consistent with international human rights stan-
dards.37 In that case, the importance of human rights obligations to develop-
ment policy is confirmed and reflected in domestic legislation.
The centrality of human rights to EU development cooperation draws
explicitly on legal commitments that are both internal and external to the EU
itself.38
Human rights is at the forefront of EU Development Cooperation with

similar commitments to its humanitarian aid and Common Foreign and
Security Policy. The policies flow from the legal obligations of its
Member States, as well as from EU treaty provisions which recognize
human rights as common values underpinning EU partnership and dia-
logue with third countries.39
37 Canada 2008 Official Development Assistance Accountability Act which came into force
on 28 June 2008; C.17 O-2.8. It states in section 4. (1) that ‘Official development assist-
ance may be provided only if the competent minister is of the opinion that it (a) contributes
to poverty reduction; (b) takes into account the perspectives of the poor; and (c) is consist-
ent with international human rights standards’.
38 http://www.ihrnetwork.org/eu-development-policies_215.htm. Internal commitments are
based on the Treaty on European Union, and were confirmed in the Treaty of Amsterdam
and the EU Charter of Fundamental Rights and the European Instrument for
Democratization and Human Rights (2006).
39 http://www.ihrnetwork.org/eu-development-policies_215.htm
The EU has, since 1995, adopted ‘a distinct policy’ on human rights in its
external relations with a ‘human rights clause’40 being introduced into all
trade and development agreements with third countries or non-Members
(Cremona, 1996; Reidel and Will, 1999), making the protection of human
rights an essential element of the agreement.
The policies of the European Bank for Reconstruction and Development
(EBRD) and the New Partnership for Africa’s Development (NEPAD) illus-

trate the relevance of legal frameworks to link human rights and develop-
ment activities through obligations under international law treaties in the
former, and through connecting development and human rights institutions
and processes in the latter. Consistent with the reference to human rights in
the EBRD Articles of Agreement, its Environmental and Social Policy (2008:
paragraph 9) makes direct reference to international conventions, including
those related to human rights: ‘The EBRD will not knowingly finance pro-
jects that would contravene obligations under international treaties and
agreements related to environmental protection, human rights and sustain-
able development as identified through project appraisal’. The EBRD policy
also specifies that its country and sector strategies should summarize the
principal environmental, human rights, gender equality and other social
issues in the relevant country or sector, and set out the EBRD’s proposals for
taking these issues into account in its operations, where appropriate (para-
graph 47). In Africa, the NEPAD Framework Document (2005) contains
several references to human rights, as a foundation, objective and responsi-
bility of the mechanism. The African Peer Review Mechanism (APRM),41
which operates as part of the NEPAD, links the final stage of its review to
existing human rights mechanisms such as the African Commission on
Human Rights (APRM, 2003).42 In this, the African-led policy supports
macro-level coherence, and linkages between policy frameworks through
human rights obligations (Heyns, 2005).
40 ‘The essential element’ of an agreement, or ‘human rights essential element clause’. See EU
Council Decision 7255/95 Human Rights Clauses in Community Agreements with
Non-Member Countries, Brussels, 24 May 1995. Also the Commission Communication on
the Inclusion of Respect for Democratic Principles and Human Rights in Agreements
between the Community and Third Countries COM (95) 216 of 23 May 1995.
41 An important accountability related mechanism to the NEPAD, the APRM is a mutually
agreed instrument voluntarily acceded to by member states of the African Union (AU) as
an African self-monitoring mechanism. The APRM is central to the NEPAD process for
the socio-economic development of Africa.
42 APRM base document Article 25 states: ‘Six months after the report has been considered
by the Heads of State and Government of the participating member countries, it should be
formally and publicly tabled in key regional and sub-regional structures such as the
Pan-African Parliament, the African Commission on Human and Peoples’ Rights, the envi-
saged Peace and Security Council and the Economic, Social and Cultural Council
(ECOSOCC) of the African Union’. Available at: http://www.chr.up.ac.za/hr_docs/aprm/
docs/book3.pdf
Conclusions regarding development frameworks and the incorporation

of human rights
In general terms, the review of development policy reveals an uneven engage-
ment with human rights and a lack of express reference to human rights obli-
gations and the legal dimensions of human rights.
First, the discussion of divergence above reveals that in most development
institutions or agencies human rights are not characterized in legal or obliga-

tory terms. The lack of emphasis on the legal dimension of human rights in
development may be contrasted with the prominence of international treaty
obligations pertaining to well integrated issues like trade and environment
which are explicitly provided for in the policies and guidance of several
development institutions.43
Second, policies that recognize the interconnection of development policy
and international law tend to take a more holistic view of the participation
of states in various fora, and the interlinked nature of their duties in differ-
ent international contexts. Policies that evidence a separation between
human rights and development tend to neglect the legal dimension of the
former and states may content to keep their treaty obligations under
human rights instruments separate from the processes and policies that
determine their contributions to, or allocations from, development expendi-
tures. 710 Coherence and alignment between international law and policy
potentially puts the actions of international actors under scrutiny by outside
actors and processes, and may raise complex issues about the responsibility
of states and international organizations.44 Notwithstanding this, there are
signs that international law regimes and international development processes
may usefully inform one another in areas where the overlap is strong and
where rights under the former are directly at issue in the latter.
Third, even policies that bridge human rights and development are typi-
cally stronger at the level of discourse than they are in respect of assessment,
monitoring and evaluation. This may offer a partial explanation for the lack
of emphasis on the legal dimension of human rights: like other international
treaties, human rights law brings with it a full range of rules, assessments
and indicators, forcing questions of concrete application, monitoring and
even enforcement. Taking account of human rights obligations could poten-
tially lead to international development agencies having to consider their
members’ obligations, and even their own human rights obligations under
43 On trade, see Croome (1996: preface). On international environmental treaties, see the
World Bank O.P. 4.01 on Environmental Assessment (1999) which states: ‘EA considers
[. . .] obligations of the country, pertaining to project activities, under relevant international
environmental treaties and agreements. The Bank does not finance project activities that
would contravene such obligations, as identified during the EA’.
44 See H.G. Schermers and N.M. Blokker, International Institutional Law: Unity within
Diversity 4th ed. Martinus Nijhoff §1856–1859.
international law, in direct and concrete ways. From a different perspective,

however, the signs of bridging in certain policies point to ways in which the
work of international human rights bodies could be put to use in develop-
ment activities, and where the accumulated wisdom of states’ experience as
parties to international conventions could be brought to bear in particular
circumstances where human rights have a direct and obvious bearing.
Fourth, while there is no causality argued that neglect of the law results in

development policies’ failure to respect, protect and fulfill human rights,
there may be some weight to the reverse argument that recognizing the
importance of human rights law obligations would require positive human
rights outcomes in development and efforts to safeguard against human
rights harm where possible.
Legal Dimensions of Human Rights in Development Policy – Challenges

and Opportunities
The value of the law in safeguarding the place of human rights in
development
This section builds on the argument that respect for human rights ought, in
the words of the AAA (2008: paragraph 3), to ‘be clearly and systematically
integrated into development’ by describing the potential relevance of the law
and the role of legal accountability in that process.
Human rights law is founded on a set of stable, positive law commitments
into which states have voluntarily entered, binding them to put in place dom-
estic measures and legislation compatible with their treaty obligations.
Human rights treaty obligations have the benefit of being bounded and
voluntarily acceded to, with the specific parameters of states’ obligations
carefully negotiated, and circumscribed through reservation and derogation.
In this context, the fact that human rights treaties, like all international
treaties, are based on the consent of states is highly relevant since it
challenges the assumption that in development their ‘application’ amounts to
‘imposition’. This approach avails of the natural limits of the treaty under-
takings, thereby securing a clarity and legitimacy that approaches based on
principles and values or even general principles of international law may not
avail of as easily. Treaty-based obligations underpin the rights enshrined in
the nine core human rights treaties concluded under the auspices of the
United Nations,45 and the conventions concluded under the auspices of the
45 ICERD International Convention on the 21 Dec 1965 CERD

Elimination of All Forms of Racial
Discrimination
ICCPR International Covenant on Civil and 16 Dec 1966 CCPR
Political Rights
ILO46, and regional organizations like the Council of Europe47 and the
Organisation of American States (OAS).48 Human rights treaties are binding
international agreements - like trade agreements or environment treaties,
which enjoy greater recognition in development frameworks and have a
direct bearing on development. Like these other types of multilateral treaties,
human rights treaties enjoy high levels of ratification (Alston and Simma,
1992), but distinguish themselves in predating many and having long estab-

lished processes and monitoring bodies, as well as a growing body of practi-
cal tools and indicators.49 The processes include those of UN Charter-based
bodies (e.g. Human Rights Council and its Universal Periodic Review), UN
ICESCR International Covenant on Economic, 16 Dec 1966 CESCR

Social and Cultural Rights
CEDAW Convention on the Elimination of All 18 Dec 1979 CEDAW
Forms of Discrimination against
Women
CAT Convention against Torture and Other 10 Dec 1984 CAT
Cruel, Inhuman or Degrading
Treatment or Punishment
CRC Convention on the Rights of the Child 20 Nov 1989 CRC
ICRMW International Convention on the 18 Dec 1990 CMW
Protection of the Rights of All
Migrant Workers and Members of
Their Families
ICPAPED International Convention for the 20 Dec 2006
Protection of All Persons from
Enforced Disappearance
ICRPD Convention on the Rights of Persons 13 Dec 2006
with Disabilities
http://www2.ohchr.org/english/law/. This table does not include the relevant
Optional Protocols to both the ICCPR and the ICESCR.
46 For the full ILOLEX database of ILO conventions, see http://www.ilo.org/ilolex/english/

newratframeE.htm, and see especially the eight conventions that underpin the core labor
standards: Freedom of Association and Protection of the Right to Organize Convention,
1948 (No. 87); Right to Organize and Collective Bargaining Convention, 1949 (No. 98);
Forced Labour Convention, 1930 (No. 29); Abolition of Forced Labour Convention, 1957
(No. 105); Discrimination (Employment and Occupation) Convention, 1958 (No. 111);
Equal Remuneration Convention, 1951 (No. 100); Minimum Age Convention, 1973 (No.
138); Worst Forms of Child Labour Convention, 1999 (No. 182).
47 European Convention on Human Rights and Fundamental Freedoms (1950).
48 American Convention on Human Rights (1969).
49 OHCHR work on human rights indicators from 2006 to 2008, see e.g. Report on
Indicators for Monitoring Compliance with International Human Rights Instruments –
Summary HRI/MC/ 2006/7 and Report on Indicators for Promoting and Monitoring the
Implementation of Human Rights HRI/MC/2008/3.
human rights treaty monitoring bodies,50 as well as individual communi-

cations mechanisms, complaint procedures (Tomuschat, 2008: 193 – 229)
and special procedures,51 all of which continue to develop a substantial
body of expert knowledge.52
Despite the divisive politicization that plagues many human rights pro-
cesses, the specific contribution of approaches that integrate human rights in
development is that they make good practice and principles a matter of obli-

gation. Without offering a legal base to that obligation, it is not clear
whether human rights can deliver on the promise of this distinct contribution
since the source of human rights or the duties remains unclear. Without a
legal foundation, human rights commitments, values and principles are
potentially subject to variance, and to some extent remain subjective.
The fact that human rights have not been more systematically integrated
into development demands an examination of the approaches that have been
used, in particular non-legal, social science and principled-based approaches.
Several reasons may be offered for this, including the challenges of demon-
strating the ‘value added’ of human rights to development, the dearth of
empirical evidence connecting the two and a perception that human rights are
somehow voluntary. A legal approach offers a clear rationale for the relevance
of human rights to development, which is simply that it binds as a matter of
law and is therefore obligatory. A legal approach also offers a sound basis for
the principle of ‘do no harm’, and a risk-based outlook. It offers a concrete
baseline for ensuring the respect of human rights and preventing any lowering
of the standard of human rights enjoyment by development activities, which
can also be conceived of as a form of due diligence, to protect against political
and other forms of risk associated with human rights harms.
Normative baselines and the principle of ‘do no harm’

An outcome, related to the absence of a link between legal obligations and
accountability is the absence of an explicit normative standard against which
to assess development: ‘As such [human rights] represent agreed legal and
50 These include the following:
† Human Rights Committee (CCPR)
† Committee on Economic, Social and Cultural Rights (CESCR)
† Committee on the Elimination of Racial Discrimination (CERD)
† Committee on the Elimination of Discrimination Against Women (CEDAW)
† Committee Against Torture (CAT) and Optional Protocol to the Convention against
Torture (OPCAT) – Subcommittee on Prevention of Torture
† Committee on the Rights of the Child (CRC)
† Committee on Migrant Workers (CMW)
† Committee on the Rights of Persons with Disabilities (CRPD).
51 http://www2.ohchr.org/english/bodies/chr/special/index.htm. Also see Kedzia (2003: 3).
52 See, for instance, the work of the Committee on Economic, Social and Cultural Rights,
including its general comments, and concluding observations and comments, at: http://
www1.umn.edu/humanrts/esc/esc-page.htm
moral standards against which development strategies, processes and results

should be measured’ (OECD DAC HRTT, 2008: 1). A legal approach draws
human rights beyond the ‘narrative’ of development policy, into the realm of
practical application in development instruments and to concrete standards,
rules, tools and indicators. However, without anchorage in specific, binding
legal obligations such an application would appear difficult to undertake
and a normative assessment improbably upheld.

Development policies and activities tend to be evaluated by individual
institutions or agencies relative to internal accountability mechanisms or
systems of evaluation which lack a normative element grounded in separate
legal commitments. There are few external forms of assessments or evalu-
ation,53 and even fewer openly normative assessments of development. A
human rights legal standard potentially offers both, and does so based on a
shared value system inculcated in international treaties to which most of the
world’s countries are party, and to which they are bound under international
law. As the OECD DAC (2007: principle 1, paragraph 40 [1]) has noted, ‘A
shared understanding of human rights issues between donor and partner
countries is essential for the durability of aid partnerships and for the pre-
dictability and effectiveness of aid’.
Human rights law offers a normative baseline mandating non-regression
and a principle of ‘do no harm’, and uses this baseline to strengthen and
improve development practice. The incorporation of human rights legal stan-
dards mitigates human rights harms by providing a binding legal standard
against which development policies, processes and outcomes can be assessed
to (1) determine risk to human rights and whether development activities are
likely to, or in fact, result in harm; (2) ensure that development activities in
fact promote human rights or create the conditions for the realization of
human rights (World Bank, 1998: 1); (3) prevent and redress unintended
negative impacts on human rights in development processes and outcomes;
(4) better understand the claim that development advances human rights;
and (5) foster a deeper understanding of the relationship between the two
fields. In relation to aid effectiveness, the OECD DAC Human Rights Task
Team has written
[. . .] Human Rights and aid effectiveness framework should inform

each other, rather than progressing on separate, disconnected tracks. Its
principles of ‘do no harm’ and ensuring that the scaling up of aid is
conducive to human rights, highlight two complementary dimensions
of a key contribution that human rights can offer the aid effectiveness
53 Yet see OECD DAC Peer Review which reviews individual members’ policies and efforts in
the area of development co-operation. Each member is critically examined approximately
once every four years; this way five or six programmes are examined annually. (www.oecd.
org/dac/peerreviews). e.g. UNDP (2005) http://www.undp.org/eo/documents/
DAC-PeerReview.pdf
agenda (OECD DAC HRTT Human Rights and Aid Effectiveness,

2007).
In concrete terms, the challenge presented by an absence of legally estab-
lished normative baselines in development is potentially answered by human
rights law. This might imply the incorporation of the relevant human rights
legal standards in development policies and instruments, whether they
address the level of country strategies54 or institutional assessment55 at a

project level56, or analyze the likely effects and distributional impacts of
certain interventions or policy reforms on various groups or stakeholders.57
Reliance on human rights treaties in such assessments (rather than principles,
or other sources of international law) might provide the missing normative
element but also provide a natural limitation on the range of permitted con-
siderations and a legitimate source for standards. In practical terms, consider-
ation of the reports and recommendations of treaty monitoring bodies, or the
work of holders of special procedure mandates could help broaden the remit
of considerations open to development processes in particular instances.
Policy coherence
As the connections between actions in the fields of human rights, develop-
ment and aid effectiveness are increasingly understood as interconnected,
their effective and coherent linkage is also being recognized as serving
broader instrumental purposes, and as indispensable to ‘international policy
coherence’ (Salomon, 2007: 106): ‘Effectively linking human rights and devel-
opment policies is an important element in achieving policy coherence
between development and wider foreign policy objectives’ (NZAID, 2002: 6).
Policy coherence fosters the sustainability of policies by preventing dupli-
cation and avoiding contradiction through promoting coherence across
related subject matters and assessing the impacts of diverse areas of inter-
national policy on one another.58 It highlights complementarities between
frameworks designed and participated in by the same states, including the
most widely ratified international human rights instruments. Policy coher-
ence is also indispensable to the realization of human rights.
54 For example: United Nations Development Assistance Frameworks (UNDAF), World Bank
Country Assistance Strategies (CAS), PRS or Joint Assistance Strategies (JAS).
55 For example, UN Common Country Assessments (CCA), or World Bank Country Policy
Institutional Assessments (CPIA).
56 For example, social or environmental assessments or human rights tools.
57 For example, the World Bank’s Country Policy and Institutional Assessment. http://web.
worldbank.org/WBSITE/EXTERNAL/TOPICS/EXTPOVERTY/EXTPSIA/
0,,contentMDK:20454976~menuPK:1107972~pagePK:148956~piPK:216618~theSiteP-
K:490130,00.html
58 http://www.oecd.org/document/54/0,2340,en_2649_33721_35320054_1_1_1_1,00.
html. This idea has relevance also to efforts in the UN human rights machinery to enhance
coherence and harmonization between treaty bodies. See the UN Report of the Working
Group on Harmonisation of Working Methods of Treaty Bodies, 9 January 2007.
In practice, policy coherence supports a focus on existing obligations, and

applies to the institutional structures within which states, as traditional duty-
bearers, operate so that the actions of states in various institutional structures
and processes do not undermine human rights enjoyment. This may call for
coherence across policies governing different issues, as well as coordination
of a state’s positions and participation in a number of international organiz-
ations and processes.59 It may also require that states assess the impact of

policies in one area on other policy areas, including how actions in various
fora impact human rights, requiring that states act with consistency and at a
minimum, ‘do no harm’.
Human rights treaties respond to the challenge of policy coherence by pro-
viding an established legal platform around which to organize that
coherence:
The fact that both donors and partner countries have ratified the inter-
national human rights treaties provides a uniquely valuable reference
point for harmonisation efforts. A mutually agreed, universal normative
framework already exists, supported not only by political commitment,
but also by the force of legal obligation. As well, at the operational
level, there is growing convergence on the integration of human rights
in development. (OECD DAC HRTT 2007: 3)
Greater reliance on human rights treaty obligations in development and aid

harmonisation efforts might also promote coherence between states since
these represent shared legal commitments into which states have freely
entered and which apply equally to donors and partners. The equal applica-
bility of these commitments offers the international human rights framework
a special form of legitimacy and a unique value in the context of develop-
ment. Such coherence could support the general objectives of the Paris
Declaration and the Accra Agenda for Action, with their goals of maximiz-
ing efficiency, reducing duplication, inconsistencies and transaction costs.
Such coherence is also supportive of the principles of alignment, country
ownership,60 strengthened capacity, and ultimately of sustainability.
In practical terms the pursuit of such coherence through reliance on
human rights treaties would require legal assessments to be undertaken to
gain a comprehensive view of the legal obligations potentially in play in a
59 The definition provided by DFID captures these distinct dimensions: ‘Policy coherence for
development is achieved when policies across a range of issues (for example trade,
migration, security) support, or at least do not undermine, the attainment of development
objectives. There are two types of policy coherence of particular importance to DFID:
coherence across UK government policies; and coherence within multilateral institutions
such as the European Commission (EU)’. http://www.dfid.gov.uk/mdg/aid-effectiveness/
policy-coherence.asp
60 Rome Declaration (2003: paragraph 3); Paris Declaration (2005) principles of ownership
(paragraphs 14– 15); and Alignment (paragraphs 16– 31).
given context. It might also require the development of a strategic view of

the roles and responsibilities of international actors in respect of these obli-
gations, including any potential applications to themselves, and might call
for some process of resolution in the event of conflict or inconsistencies,
including possibly establishing a hierarchy of legal obligations. Were such
policy coherence to be pursued with respect to human rights, some basic
cooperation between the key international actors would be necessary, and

the mutual informing of guiding strategies indispensable.
A more unified accountability framework

Another significant consequence of the separation of these frameworks is the
absence of specific human rights accountability in development policy and
activities (Bradlow, 1996; Clark, 2002; Darrow, 2003; Skogly, 2001). It is
argued that accountability for human rights cannot properly be upheld
because human rights obligations are not factored into development policies,
such that states—as donors or clients—can pursue development activities
without any systematic assessments of their consequences in human rights
terms and without there being any effective legal recourse where those conse-
quences are negative. The absence of legal duties in development policy fra-
meworks undermines the possibility of the key contribution of human rights
– accountability – being upheld in the context of development with respect
to both process and outcome (Twomey, 2007).
This is so despite the increased prominence of accountability in the content
and emphasis of development or aid policies discussed above.61 While main-
taining separate accountability frameworks for different areas of inter-
national cooperation may be appropriate, there are ways in which extensive
substantive overlaps and the existence of several disconnected frameworks of
accountability is in itself potentially problematic, creating obvious risks of
duplication and inconsistency.62 Moreover, the proliferation of overlapping
frameworks, with separate accountability mechanisms, in an era of heigh-
tened emphasis on harmonization, alignment and coherence is somewhat
perplexing.
Second, while accountability frameworks such as those governing the Paris
Declaration63 fulfill essential functions, and are not a priori inconsistent with
human rights accountability, their parallel existence, without any
61 In addition, accountability mechanisms or compliance functions that operate within devel-
opment institutions may have an important bearing on the discussion of accountability,
including human rights accountability. For an overview, see Bradlow (2005).
62 One may argue by analogy from the aid effectiveness context that the multiplicity of moni-
toring frameworks undermines accountability and effectiveness. Rome Declaration (2003:
paragraph 2).
63 Paris Declaration (2005: paragraphs 47 –50) principle of mutual accountability: ‘donors
and partners are accountable for development results’. At: http://www.oecd.org/docu-
ment/18/0,2340,en_2649_3236398_35401554_1_1_1_1,00.html
corresponding recognition of human rights obligations or impacts presents a

risk to the latter. The Paris Declaration constitutes a mechanism through
which donors and partners are held mutually accountable: these same
countries are accountable for human rights that are directly relevant to, and
potentially impacted by, harmonization efforts.
Third, the accountability propounded through development frameworks is
not equivalent to the legal accountability upheld through human rights law.

Rather, it is an accountability centered on principles, political commitments
and policy frameworks rather than specific, binding legal obligations under
public international law. One may argue that the human rights accountabil-
ity lacuna is compounded rather than mitigated by the existence of various
forms of non-legal accountability mechanisms in development contexts.
These are not a substitute for human rights accountability, and without
recognizing and complementing it, they risk undermining it.
That complementarity could be promoted if the processes connected with
human rights treaties could be connected in some way to development pro-
cesses, and if human rights treaty obligations could become a part of existing
accountability mechanisms, whether through policy frameworks or com-
plaints mechanisms. Human rights law norms could deepen and ground
existing accountability mechanisms and help fill some of the perceived
accountability gaps in both horizontal (state to state) and vertical (state to
citizen) relationships.
Conclusions
This article has sought to underscore some obvious but nevertheless over-
looked strengths of the human rights law framework in the context of devel-
opment. While it does not argue for human rights conditionalities it aims to
highlight in a preliminary way, some of the opportunities presented by the
international human rights framework as a shared, stable and clear structure
of international treaties with substantial and, in some cases near universal
ratification. These offer a legal and normative baseline founded on the volun-
tarily undertaken commitments of states, which bind them under public
international law and which may support them in the pursuit of sustainable
development.
In summary, for development practitioners aiming to promote the inte-
gration of human rights more systematically into development, this article
proposes that the international law framework offers one way to do this by
providing a binding and legitimate starting point to establish the connec-
tions, and a body of rules, principles, indicators and processes to assist the
integration of human rights in development. Recognition of the treaty base
of international human rights in the context of development refocuses atten-
tion on the fact that (1) human rights are not voluntary or just rhetorical,
they are the subject of legally binding commitments; (2) human rights may
add value and fundamentally change how development is pursued, what it
pursues and what it can achieve; (3) realizing human rights may be different
from undertaking good development practice – the former is done out of
legal obligation, the latter might not be; (4) human rights are intrinsically
valuable and therefore worth protecting in development; (5) human rights
can play an instrumental role in fostering sustainable development through
adverting risk and focusing on ways in which development can support the
realization of human rights. It is submitted that the failure to recognize the

legal dimensions of human rights may indeed be connected with the wider
failure to recognize the distinct value of human rights for development.
Acknowledgements
This article represents the author’s personal views and should not be attribu-
ted to the institution for which she works. I am indebted to Nathan
Lankford, Charles Di Leva, Saskia Fronabarger, Maurizio Ragazzi and Jordı́
Agusti-Panareda for comments on earlier versions of this article.
Responsibility for errors or omissions remains my own. This work is dedi-
cated to Kristina Celich.
SIOBHÁN MCINERNEY-LANKFORD
World Bank
smcinerney@worldbank.org
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Human Rights and Development: a

Comment on Challenges and Opportunities

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Keywords: development; human rights; international law; obligations;

in parts). It looks at the uneven recognition of human rights in development,

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The Relationship Between Human Rights and Development

overlap, (2) convergent principles, and (3) obligations.3 This facilitates a

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3 This is the typology used in McInerney-Lankford (2007: 459).

Convention on the Elimination of All Forms of Discrimination against

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5 For a comprehensive discussion of international law provisions on equality and protection

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Reasons for the enduring disconnects and tensions

Legal or mandate constraints

Political resistance and value-based objections

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Disciplines and approaches

practitioners may approach issues in programmatic, forward-looking terms,

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Consequences of the divergent discourse of development and human

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Development Frameworks and the Incorporation of Human Rights

treaties.13 Even policies that make reference to human rights instruments

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Millennium Development Goals

as a framework for accountability it does not expressly refer to rights or obli-

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Poverty reduction strategies

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Policy efforts to bridge development and human rights

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The importance of human rights for development is widely recognized.

Consistent with establishing a general policy linkage, the Action-Oriented

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2007). Prominent examples of this type of development policy framework

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Human rights is at the forefront of EU Development Cooperation with

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Conclusions regarding development frameworks and the incorporation

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international law, in direct and concrete ways. From a different perspective,

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Legal Dimensions of Human Rights in Development Policy – Challenges

45 ICERD International Convention on the 21 Dec 1965 CERD

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ICESCR International Covenant on Economic, 16 Dec 1966 CESCR

46 For the full ILOLEX database of ILO conventions, see http://www.ilo.org/ilolex/english/

human rights treaty monitoring bodies,50 as well as individual communi-

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Normative baselines and the principle of ‘do no harm’

moral standards against which development strategies, processes and results

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[. . .] Human Rights and aid effectiveness framework should inform

agenda (OECD DAC HRTT Human Rights and Aid Effectiveness,