Applying a HRBA to development programming :

1. Applying a HRBA to development programming: Lessons from UNDP Asia Pacific Rights and Justice Initiative (AP-A2J)

2. Presentation Overview • Background: UNDP Asia Pacific Rights and Justice Initiative (AP-A2J) • Some clarifications on a HRBA • Rationalefor applying a HRBA in AP-A2J • “Substantive” and “Process” value of applying a HRBA to justice programming • Lessons learned

3. Background: Asia Pacific Rights and Justice Initiative (AP-A2J) KNOWLEDGEPROBLEM KNOWLEDGESTRATEGY INTENDED OUTCOME Growing recognition of justice sector as key for peace and development, but insufficient impact of existing programmes on MDGs and poverty eradication Development of regional “community of practitioners” on access to justice Strengthened UNDP’s niche, knowledge and capacities on justice for MDGs and poverty eradication • Bottom-up process • Use of a HRBA

4. PRACTITIONERS’ GUIDE to entry points– and other programming tools Extraction of case studies/lessons learnt A2J PRIMER – Concise introduction Network of practitioners Outsourced research KNOWLEDGE MAP – Research tool Participatory assessments WEBPAGE - Home base Workshop with external partners COMMUNITY OF PRACTITIONERS Background: Asia Pacific Rights and Justice Initiative (AP-A2J) PRODUCTS PROCESS V W I O S R I K O S N H I O N P G CREDENTIALS- Communication Tool SURF Facilitation • Facilitation of network • Backstopping of activities • Desk research • External and internal communication • Coordination of toolkit production)

5. Some clarifications on a HRBA • Human Rights vs. Human Development • HRBA vs. Human Rights • HRBA builds on Human Development and Capacity Development Human Rights-based approach (HRBA):A framework for the process of human development that is normatively based on, and operationally directed to, the development of capacities for the realisation of human rights

6. Rationale for the use of a HRBA in AP-A2J NORMATIVEUN Charter 1945 UN Reform 1997, 2002 1998 UNDP Policy Millennium Declaration 2000 INSTRUMENTALShift towards development effectiveness Development Effectiveness: “processes that produce results, especially results that are pro-poor and promote equity” (UNDP DER, 2003)

7. Why a HRBA?Dealing with increasing inequalities Persistence of poverty, insufficient progress towards MDGs Growing inequalities Elite capture Increase in violent conflict Need for EQUITY Universal NORMATIVE guidance for development processes and results • Accountability • Non-discrimination AP-A2J: “When fairness only reaches some, justice is absent”

8. HRBA’s value added to development programming

9. Putting disadvantaged people at the centre Prior to applying a HRBA: When applying a HRBA: Poverty reduction and other MDGs Poverty reduction and other MDGs Economic growth DISADVANTAGED PEOPLE MARKET Access to justice: helps people to protect themselves against abuses from those with more power, hold political leaders accountable, and resolve conflicts that are individual or collective without restoring to violence Rule of Law: Reduces political risks to investors and cuts down transaction costs, promoting businesses and investments and therefore alleviating poverty

10. Definition of “Access to Justice” • Identifies justice with remedies, not simply with services • Distinguishes supply and demand side of justice (different capacities but both needed) • Explicit about the quality of justice (respectful of human rights) • Recognizes both formal and traditional justice mechanisms HRBA’s ADDED VALUE

11. Normative Protection (International Law, Constitution, Laws & Regulations, Customary Law, Jurisprudence) A2J SUBSTANTIVE MODEL • Legal Empowerment • (Demand for remedies) • Legal awareness • Legal aid and counsel • Other empowerment-related • capacities (etc. security, • financial risk) Scope of analysis • Provision of Effective Remedies (Supply of remedies) • Adjudication mechanisms (formal and traditional) • Enforcement (police, prisons) • Civil society oversight Definition Access to justice = ability of people to seek and obtain a remedy respectful of basic human rights

12. ENFORCEMENT AND CIVIL SOCIETY OVERSIGHT NORMATIVE PROTECTION GRIEVANCE LEGAL AWARENESS ENFORCING NAMING WINNING BLAMING RISK = 0 CLAIMING ADJUDICATION LEGAL AID AND COUNSEL

13. NORMATIVE PROTECTION OF RIGHTS LEGAL EMPOWERMENT CAPACITY TO PROVIDE EFFECTIVE REMEDIES Legal awareness Accessible adjudication By International and Constitutional Law Judicial System BANGLADESH NEPAL PHILIPPINES MONGOLIA INDONESIA FIJI IRAN INDIA RRRT FIJI INDONESIA NEPAL IRAN SRI LANKA CHINA MONGOLIA RRRT CAMBODIA IRAN NEPAL INDONESIA PHILIPPINES FIJI RRRT Quasi-judicial bodies NEPAL MONGOLIA INDONESIA SRI LANKA BANGLADESH PHILIPPINES By legal and regulatory frameworks Legal counsel Indigenous/ traditional systems INDONESIA CHINA NEPAL CAMBODIA BANGLADESH VIETNAM RRRT BANGLADESH IRAN CHINA INDIA Enforcement Police Prison System INDIA RRRT Other empowerment-related capacities By Customary Law Civil Society Oversight INDIA SRI LANKA PHILIPPINES

14. NORMATIVE PROTECTION OF RIGHTS LEGAL EMPOWERMENT CAPACITY TO PROVIDE EFFECTIVE REMEDIES Legal awareness Accessible adjudication By International and Constitutional Law Judicial System BANGLADESH NEPAL PHILIPPINES MONGOLIA INDONESIA FIJI IRAN INDIA RRRT FIJI INDONESIA NEPAL IRAN SRI LANKA CHINA MONGOLIA RRRT CAMBODIA IRAN NEPAL INDONESIA PHILIPPINES FIJI RRRT Quasi-judicial bodies NEPAL MONGOLIA INDONESIA SRI LANKA BANGLADESH PHILIPPINES By legal and regulatory frameworks Legal counsel Indigenous/ traditional systems INDONESIA CHINA NEPAL CAMBODIA BANGLADESH VIETNAM RRRT BANGLADESH IRAN CHINA INDIA NEPAL, EAST TIMOR, PHILIPPINES Enforcement Police Prison System INDIA RRRT BANGLADESH PHILIPPINES Other empowerment-related capacities By Customary Law INDIA INDONESIA SRI LANKA Civil Society Oversight INDIA SRI LANKA PHILIPPINES PHILIPPINES INDIA INDONESIA

15. HRBA’s SUBSTANTIVE VALUE in justice programming WHAT TO PROGRAMME? • Focus on most disadvantaged groups and their entitlements as human beings • Strengthens Human Development and Capacity Development perspectives • Brings process of development to the forefront PARADIGM SHIFT Change in the ASSUMPTIONS underlying justice programmes, and thus in their SCOPE

16. HRBA’s PROCESS VALUE in justice programming HOW TO PROGRAMME? • Improves assessment and analysis • Actively seeks inclusion of most disadvantaged people • Improves accountability systems • Expands partnerships and strengthens communication flows DEVELOPMENT EFFECTIVENESS “processes that produce results, specially results that are pro-poor and promote equity” (UNDP DER, 2003)

17. AP-A2J’S ASSESSMENT AND ANALYSIS: Legal Aid example CAPACITY ANALYSIS HR STANDARDS ENTRY POINTS Immediate causes Underlying causes Legal aid is not available Improving legal education while expanding services (e.g. law clinics) Strengthening public defense systems Improving pro-bono lawyering Expanding paralegal activities Promoting alternative lawyering and developmental legal aid Expanding the coverage of “legal aid” to include financial and psycho-social support in the legal process Doesn’t know the remedy exists and how to access it ROLE/ PATTERN ANALYSIS Her entitlement to remedies is not recognized by formal or traditional law Legal Aid is not affordable Cannot access skilled assistance to pursue the legal process Available legal aid is inadequate Cannot afford physical, social and economic risks involved in demanding justice Does not have the capacity to claim a recognised remedy Internal factors: Isolation, Illegality, weak organizational capacities LACK OF ACCESS TO JUSTICE Institutions do not have capacity to provide a remedy when sought Discouraged by institutional and structural obstacles, resulting in lack of confidence that remedies can be reached

18. Seeking the inclusion of most disadvantaged people HRBA’s IMPLICATIONS IMPACT ON AP-A2J STRATEGIES • Focus on disadvantaged people (disaggregation during assessment and analysis) • “Meaningful” participation – Requires adequate capacities • Strengthen/create channels of communication between claim-holders and duty-bearers • Expanded partnerships • Target groups: urban/rural poor, women, indigenous people and ethnic minorities, migrant and IDPs, people living with HIV/AIDs, people with physical/mental impairment • Partnershipswith NGOs/academe • Participatory research(India) • Guidelines forparticipatory consultationson access to justice

19. A HRBA strengthens accountability systems • Risk management: • A HRBA reveals conflictive dimensions in empowering processes and deals with them: Implementation of A2J framework demands: • Developing capacities to claim and fulfil simultaneously • Assessing impact on focus groups and other disadvantaged groups affected • Minimizing risks of claiming rights – cross-cutting implications • Providing for mediation • Results-orientation: • Clear framework of entitlements and obligations for process and results • Refined Monitoring and Evaluation (M&E) systems • Systematic inclusion of civil society oversight and strengthening of communication flows

20. Sample outcome indicators for justice programmes

21. Lessons Learned (1) A HRBA can help to do “better development”, and it is relatively simple to apply in programming, but: • A HRBA is still an approach in the making, although increasingly concrete (UN Common Understanding 2003) • The impact of a HRBA on poverty eradication remains to be assessed • A HRBA does not guarantee the realisation of human rights: Realising human rights requires both willingness and capacity: A HRBA seeks to develop capacities (e.g. UNDP), human rights monitoring to promote willingness (e.g. CCPR, OHCHR). • A HRBA requires practitioners’ deeper understanding of (a) impact of inequalities on development, (b) human rights norms and (c) conflict management • A HRBA calls for developing practitioners mediation and communication skills, particularly with most disadvantaged groups • The implementation of a HRBA demands improving existing tools (e.g. logical frameworks, programming guidelines, indicator systems)

22. Lessons Learned (and 2) Full implementation of a HRBA faces important challenges regarding: • Sensitivity of human rights and questioning of power relationships • Obstacles to active, free and meaningful participation of most disadvantaged groups • Financial and time constraints to ensure development results • Need to strengthen existing human rights framework

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