The Human Rights-Based Approach, the Right to Development, and the North-South Divide

Published on October 14, 2014

The north-south divide between member states at the Human Rights Council continued to intensify during its 27th session. Why has the growing polarisation between a cross section of global north and global south States come up in both formal events and informal negotiations?

This increasing division across the Council has led to a number of resolutions elevated into us versus them flashpoint issues, where each side clambers for the support of a shrinking minority in the middle. These seemingly flashpoint issues have surfaced in resolutions varying from the effects of foreign debt and safe drinking water and sanitation to preventable maternal mortality and morbidity and human rights, sexual orientation and gender identity, just to name a few.

 

The polarisation seems rooted in resentment toward the perceived Western imposition on developing countries – in terms of economic policies, social values and human rights policy. This has manifested in a clear divide between civil and political rights on the one hand and economic, social and cultural rights on the other.

How? When these two issues were debated in the 1960s, included in the Universal Declaration of Human Rights (UDHR), then codified into two respective conventions – the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) – the West attached more importance to civil and political rights, while the East (as it was then) argued that more importance be given to economic, social and cultural rights.

50 years on, the ICCPR/ICESCR divide is now playing out at the Human Rights Council between the global north and the global south. Central to the divide is the issue of progressive realisation. Progressive realisation takes into account a country’s lack of resources and capacity to meet obligations and immediately implement decisions when related to economic, social and cultural rights. When it comes to civil and political rights however, States are bound to implement decisions immediately.

The polarisation finds itself in a complex argument around the right to development – which resonates also at the UN General Assembly where issues related to development traditionally have their home i.e. the recently concluded discussions in the Open Working Group on Sustainable Development Goals, where goals and targets have largely dismissed a human rights-based approach.

 

The argument here is polarised between the two perceived-to-be competing issues: that of a right to development approach on the one side and that of a human rights-based approach on the other.

This standoff is hotly debated by both sides. Those from the global north are pushing for a human rights-based approach, fearing that a right to development approach would undermine and prevent the full range of human rights from being implemented. Examples of this are many. A case in point is the Council’s work on the death penalty. Led by France during the June 2014 Council session, Global north States pushed for a resolution that would denounce human rights violations resulting from the use of the death penalty.

Here is how this plays out politically:

  • The global north is telling the global south what to do and to do it now: this is a terrible human rights violation and since this is a civil and political rights obligation – and only economic, social and cultural rights are subject to progressive realisation – the resolution must be implemented immediately.
  • The global south responds by questioning the human rights-based approach and promoting the right to development approach, under which civil and political rights ARE subject to progressive realisation.

This is a convincing argument but human development cannot actually be achieved without a human rights-based approach, and human rights cannot be guaranteed until levels of development are in place to respect, protect and promote these very human rights.

In essence, both the human rights approach and the right to development approach are complementary, and one without the other is meaningless.

If a State is not going to protect the rights of the most marginalized because progressive realisation takes away the immediacy of that obligation, then there is a significant amount of human collateral damage. This means that those that are already marginalised are further marginalised. It means that civil and political rights are not implemented right away and a crackdown on civil society with untold reprisals by State authorities can be overlooked along with a host of countless other violations.

 

If we look at the current crop of resolutions debated during the 27th session of the Council, the divide is pretty clear and there seems no short-term fix. When mixed with history, political agendas, aid conditionality and influence swaying toward the south, it is difficult to see how this polarisation will be resolved.

Accusations that the global north has used its economic might to force global south States into voting and supporting specific resolutions against their will are now out in the open. During the adoption of the resolutions on maternal mortality and morbidity, South Africa specially signalled to the Council that “the human rights-based approach has been inappropriately levered for conditionality in international cooperation.” Mixed into this cocktail what do we have? A growing southern market economy led by the BRICS that is overtaking its rivals in the north whose financial and political influence is decreasing by way of the global recession, an inconvenient balance in the membership of the Human Rights Council as far as the global north is concerned, and a resurgence in the political influence of the global south on social and economic change at its own pace.

This has played out clearly at the Human Rights Council. Disagreement around extending the mandates of certain special procedures being pushed by the global south, like the Independent Expert on the promotion of a democratic and equitable international order, along with the creation of new mandates opposed by the global north, like a Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights, are clearly the result of a polarised Council.

Resolutions that have a sexual and reproductive health and rights component – of which there are many – are another familiar battle-ground at the Council and elsewhere. But bring this mix of ESCR and CCPR into the debate and arguments are more and more polarised.

It is where this polarisation dictates decision-making that it is most problematic. During the 27th session of the Human Rights Council for example, the resolution on Preventable Maternal Mortality and Morbidity endured a long debate on the issue of a human rights-based approach versus a right to development approach. The debate threatened to break consensus on what started out as a relatively uncontroversial text. South Africa, the most vocal in pushing for the right to development approach, supported the resolution but gave an explanation of position beforehand, highlighting that a human rights-based approach was not defined clearly enough. Meanwhile, European Union States only agreed to co-sponsor after persuading the lead sponsors to reinsert language on a human rights-based approach.

Through all of this, sexual and reproductive health and rights was yet again a political issue bargained out relatively early on and transformed into a narrow right to health approach rather than a substantive component of the text itself. Although central to preventing maternal mortality and morbidity, promoting and protecting the sexual and reproductive rights of an already marginalised group of people fell to the way side of a misguided debate on the right to development versus a human rights based approach.

The resolution on sexual orientation and gender identity is another example of the threat of the political divide. Though led by global south States, it was vigorously opposed by a number of members, including the Organization of Islamic Conference (OIC), who portrayed sexual and gender diversity as controversial and divisive Western concepts with no support in international human rights law. They also repeatedly cited diverse cultural, religious and ethical values as reasons why the resolution was unacceptable to them. Instead of acknowledging that human rights apply equally to all persons, that they have obligation to protect and promote these rights, and civil society movements pushing for social change in their countries, they hid behind the north-south debate of a human rights framework. The ugly truth about aid conditionality in policies related to sexual orientation and gender identity only served to deepen the divide.

One could easily be forgiven for thinking that the approaches used by both sides to gain political clout are more important than anything else. And with a global south that is becoming politically and financially stronger, and a weakening global north, it looks as if this fight will not be won over the short term. The interim will inevitably mean that some will lose out. Unfortunately, those will not be States themselves, but rather individuals and their human rights. People and their lives are the only real losers in the north-south divide over a financial and political upper hand in the emerging new world order.