Agenda items 110 b) c) & e) : Human rights questions 

Statement by Mr. Ajaya Kumar Sarnaik, M.P. November 10, 1998 
_________________________________________________________________ 

Mr. Chairman, 

Given the vast scope of the agenda item before us, we intend to confine our
statement to three or four issues that appear to us to require special comment this
year because of their topicality. These relate to the ‘rights-based' approach, the
right to development, and the report of the High Commissioner for Human Rights. 

The past year has seen a rapid development of the ‘rights-based' approach within
the UN system of which the report of the High Commissioner (A/53/36/Suppl)
provides a useful survey. In our view, its exact contours and reach would vary
depending upon its legal basis and scope in relation to development, children,
women, or any other context that it can be applied to. While the legal basis for
the rights of the child and the human rights of women are clearly spelt out in
relevant conventions, and the former also contains some clear international
obligations, the declaration on the right to development provides the principal
guidance for the rights-based approach to development. 

In general, the rights-based approach is clear in relation to such basic civil rights
as non-discrimination and equality whose application is typically at the national
level, and which apply to the exercise of all rights. But when applied to economic,
social and cultural rights, particularly in developing countries, the implications of
the ‘rights-based' approach to resources for development, the ‘social and
international order' in which all human rights can be enjoyed (Article 28 of the
UDHR), and the sharing of obligations at the national and international levels, is
not sufficiently developed. Though the scope of the right to development is
broader than economic, social and cultural rights, the right to development could
also be understood as the collective counterpart of the individual rights enshrined
in particular in the ICESCR. 

In principle, India endorses and shares the rights-based approach in so far as it
clearly implies that human rights, and that includes civil and political rights, as
well as economic, social and cultural rights, are ‘rights' inherent to the individual
and not something conferred on the individual, or the collective, as the case may
be, by an act of welfare or charity. We also accept the rights-based approach as
based upon an accepted corpus of laws, entitlements, duties, and/or norms which
can be claimed by right, codified in law, and adjudicated by law. We further
acknowledge that respect of human rights is independent of the level of
development of a country. India has never mortgaged democracy for development
or eradication of poverty, or made human rights contingent on development. To
the extent the rights-based approach means that development process should
respect human rights and integrate basic human rights values such as political
participation and gender empowerment, our national experience vindicates such
an approach. Other essential ingredients of the rights-based approach would be
non-discrimination on any grounds, distributive justice, and rights for vulnerable
sections. The rights-based approach to development is, for India, a national
choice. 

The question is how far does recognising or proclaiming that rights are inherent,
codified in law, and enforceable and that they are independent of resources,
guarantee the full enjoyment of all human rights, particularly the rights contingent
on development? 

Failure to guarantee the rights enshrined in law can be on two counts. It could be,
or be seen to be, a function of failure of enforcement of laws, in which case the
state should initiate remedial measures. But it could also be a function of lack of
development and the environment for development. 

Seen in the latter context, the rights-based approach has an inadequacy. Firstly,
that rights-based approach to the question of resources for development (which,
in turn, promotes the fuller enjoyment of all human rights), is unclear. Where the
lack of enjoyment of rights are related to under-development, rights alone are not
sufficient. It is also imperative that we articulate and elaborate with greater
clarity the imperative of development for human rights provided, of course, such
development itself is based on democracy and popular participation. Rights need
to be backed and supported by resources and development initiatives. And such
resources need to be based on rights. The true test of the rights-based approach
would be that the resources required in this regard are a matter of right and not
charity. If the rights-based approach cannot be extended to resources, we in fact,
return to where we started from. The rights-based approach would then appear as
an attempt to avoid or evade commitment of resources. The resources required to
guarantee rights would not be a right, but an act of charity. Since the obligations
to the state are better defined than those on the international community, the
realisation of economic, social and cultural rights would almost exclusively be
national problems. The international community's role would primarily be a matter
of monitoring and enforcing civil and political rights, but not jointly addressing
poverty and underdevelopment with the same urgency. 

In her report, the High Commissioner observes (para 6) that "most States
understand the value of the principle of international cooperation for human
rights..." as manifested in "the acceptance of human rights assistance, monitoring,
and human rights field presences." But while there is an increasing realization, to
quote the Permanent Representative of Bangladesh, that "(P)overty constitutes the
biggest threat to the effective enjoyment of human rights", and such concern is
admirably reflected in the High Commissioner's report (para 4), the failure of the
international community to react to hunger, malnutrition and other violations of
economic, social and cultural rights with the same outrage, assistance, and
solidarity remains puzzling. The approach of the Minister of international
development and human rights of Norway at the recent symposium in Oslo, that 
"commitment to development (should be) identical to the commitment to the
implementation of human rights.....based on one premise: respect for dignity and
inherent worth of every human being" would appear to us to be the more
consistent approach. 

In short, the adoption of rights-based approach does not absolve us of the need to
address resources for development. There continues to be a tension between rights
and resources especially insofar as they concern economic, social and cultural
rights and the right to development whose fulfilment and enjoyment require
progressive realisation, additional resources, and greater international
cooperation. There are several factors in the international order, not least of a
structural and macro-economic nature, which limit the fulfillment of human rights
by countries affected. These factors include the debt burden, poor terms of trade,
lack of technology and managerial expertise etc. The rights based approach must
also address these problems. 

The VDPA recognises that human rights is a legitimate concern of the
international community. ‘Concern' for human rights, especially civil and political
rights, is not enough in itself. Concern needs to be complimented by solidarity that
can translate into international cooperation, including cooperation for
development. To develop an insight of the French scholar, Karel Vasak, if civil and
political rights correspond to the idea of ‘liberty' and economic, social and cultural
rights correspond to the idea of ‘equality', the right to development would
correspond to the theme of ‘fraternity'. 

That is why the right to development is so important to the developing world.
While there is now a greater realisation of the importance of the right to
development, and mechanisms are in place to pursue the right to development a
the country level, particularly through institutions such as planning institutions in
developing countries created to take development to the people, greater efforts
need to be made to translate the idea at the international level as well. There is,
however, still much wilful mystification of the right to development, leading to
repeated calls for its clarification. 

In fact, there is nothing mysterious about the purpose of the right to
development. It is clearly defined and expressed in the Declaration on the Right
to Development which was intensively negotiated and adopted by an
overwhelming majority. The right to development is very simply the right of those
lacking development, to develop and fully realize their human rights. It is the right
of the poor to escape poverty. They may be individuals. They may be large groups
of individuals or regions or the people that make up a con and all peoples are
entitled to participate in, contribute to, and enjoy economic, social cultural and
political development, in which all human fundamental freedoms can be fully
realized". It is an individual and collective right. The idea of the right to
development is admirably presaged in the preamble of the UN Charter in the
phrase "to promote social progress and better standards of life in larger freedom." 

The right to development is not merely an individual claim vis-a-vis the State.
The right to development at the country level can address the question of access
to development resources under existing conditions and at existing levels. But it is
equally important to address the imbalances and distortions at the international
level that affect the right to development at both an individual and collective
level. The right to development at a low level of national development can only
result in a small slice of a small national cake. The right to development in richer
countries would yield a bigger slice of a bigger cake. 

The right to development is not just about getting a fair share of that cake
regardless of its size. It is also about addressing and creating the conditions under
which developing countries and their citizens, collectively and individually, can
enlarge their cake, ensure a larger slice of the cake for their citizens, and in the
long run, close the difference between the small cake of the developing countries
and the larger cake of the developed world. This is not, as it is sometimes
understood or made to appear, a question of more aid, or more OD. OD, even if it
reaches the magical figure of 0.7 % instead of the current 0.22 %, by itself will not
eradicate poverty. OD itself is a notional or token acknowledgement that the poor
have a right to improve their standard of living, and that the wealth of the
wealthy owes something to the poverty of the poor. Not that the right to
development is a claim for compensation for the exploitation of the developing
world for the prosperity of the developed as a result of colonialism or other forms
of exploitation though such a claim cannot be ruled out as a corollary of the
rights-based approach. But neither is it an act of charity. Rather, it is a question of
acknowledging that poverty has something to do with history (and not only poor
governance or management), that it implies a joint responsibility, that the
wealthy have a duty to the poor based not on charity, but a right to life in dignity.
The rights-based approach to development must include advocacy vis-a-vis the
countries concerned, by the UN, including in particular, the HCHR, the CHR and all
other relevant bodies. The moral force they command will be critical in infusing
the rights-based approach to development with credibility and meaning,
particularly amongst the countries who value and need the right to development. 

It is also imperative that when indicators and benchmarks are drawn up in an
effort to give economic, social and cultural rights some objective reference points,
care is taken not only to recognize varying levels of development, but also
incorporate national and international obligations, translated into indicators and
benchmarks for cooperation. Indicators and benchmarks should be instruments for
joint action not just another mechanism, modelled on monitoring of civil and
political rights, to strip the poor, the disabled, the weak, the vulnerable and the
disadvantaged of the little dignity that they have by holding up to them images of
the more robust as a measure of their inadequacy. 

Time does not permit us, Mr. Chairman, to comment on a number of important,
and occasionally disturbing, reports before us. But I would, before I conclude, like
to touch briefly on two. Firstly, we would like to express our support for the work
of the Special Rapporteur on Religious Intolerance and would support his
recommendations. In particular, we support his holistic and balanced approach to
his mandate. We support his recommendation to redesignate his mandate to focus
not merely on religious intolerance, as this often provides a distorted vision, but
to cover the framework of freedom of religion or belief. 

More worrying is the report of the Special Rapporteur on the situation on human
rights in Afghanistan. Even though the report concentrates on events that took
place over a short period and the human rights violations of a particular minority
(Hazara) community, and though questions may be raised about the veracity of a
report without a visit to Afghanistan, the grim reality of the situation, the chilling
detail of the accounts, and other independent reports that appear to corroborate
the accounts of the Special Rapporteur, clearly put th to this Committee last year,
we had alluded to the ‘complex' challenge to human rights that we are witnessing
in Afghanistan that cannot be addressed by traditional methods. But an adequate
approach does not appear to have been thought of and none appears to be in sight.
The international community cannot maintain an ostrich-like position on the
situation ostensibly because it is too distant or because other economic interests
are at stake. A strong resolution on the situation of human rights in Afghanistan
should be the beginning of a concerted strategy to bring about a more acceptable
situation in this country. 

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