Today’s guest blogger, Tim Ogden, is the editor-in-chief of Philanthropy Action.
Bill Easterly has been a frequent critic of the rights-based approach to development, most recently in his article in the FT focusing on the “right to health.” For as long as I’ve known about the rights-based approach I’ve agreed with him. Recently, though, I’ve seen the light.
For those unfamiliar with the rights-based approach to development, it starts with defining inalienable human rights—and then seeks to ensure that those rights are enforced. The idea is that if you help people assert their rights and strengthen relevant institutions to respect those rights, everyone wins.
My epiphany on the rights-based approach came during a conversation with a friend on why practices in some areas are susceptible to evidence while others are not. My friend mentioned a conversation he had recently had with a cardiologist who noted that the practice of cardiology has essentially changed completely in the last five years. Why? Because the fear of malpractice suits made all cardiologists pay close attention to the latest research and adjust their practice accordingly. Simply not keeping up with the latest innovations was grounds for a costly lawsuit. We began joking about how the field of education would change if a parent could sue a school district because their child wasn’t taught to read the using the techniques proven most effective.
That’s when the hidden brilliance (brilliance, I tell you!) of the rights-based approach hit me. As Bill has shown in his books and the Aid Watch blog, practices that have proven ineffective and even harmful remain staples of the development industry for decades. No amount of evidence, or lack thereof, seems to have much impact on practice.
But if we adopt the rights-based approach, think of what we could accomplish! Right now, the poor can’t sue an aid agency or NGO for malpractice, no matter what they’re doing. But if we recognized the rights of the poor as expressed by the rights-based approach, then they could hold aid agencies accountable by suing for having their rights violated. I wonder how many aid programs wouldn’t be covered under the right to freedom from “arbitrary interference with privacy, family, home or correspondence.”
It goes further. Imagine a world where Ethiopians sue USAID for delivering in-kind food aid because their rights (specifically the right to adequate food) have been violated. Or Kenyans sue DfID because its support for education hasn’t been adjusted to reflect the latest research on what actually helps children learn more (surprise, it’s making teachers accountable to their communities not the civil service!)
Dare we hope for a day when the poor from around the world file a class action suit against the UN High Commissioner for Human Rights for advocating a rights-based approach to development without evidence that it does anything other than perpetuate bureaucratese and wasted aid dollars? Finally making aid accountable to the poor is just a few rights away!
All we need now is to really adopt the rights-based approach—and of course a new NGO to handle all the class action suits. Anybody got a catchy acronym?
33 Comments
Is this another satirical post?
On the off-chance it’s not, I’d like to point out the basic flaw: in cardiology, the standard of research and evidence on what works and why is much better.
Also, in development, context matters much more. What works in one place might not work in another. Culture doesn’t make that much difference to the physiological workings of the heart, but may make significant differences to what kind of education system is most effective.
To sue someone, you need a high standard of proof that the intervention should have been designed a different way. In very few instances would such evidence be available to an acceptable standard.
Of course, the other thing it would do is completely disincentivize any real evaluation of projects and make number-fiddling far more prevalent than it already is.
I hope that I am simply too dense to have caught the sarcasm of this posting because if Mr. Ogden is seriously proposing what he seems to be, it is the product of some deeply twisted moral reasoning.
First he seems to have had his “epiphany” for pragmatic rather than idealistic reasons. Normally this is not a problem but “rights” by their very definition cannot be pragmatically chosen, but arise from a deeper moral understanding of what people can expect from each other. By definition they are (often inconvenient) realities, not choices. Therefore I do not choose that people have the “right to life,” rather I am compelled to believe it because of my moral principles. This is the usual definition of a “right.” Now certainly we can argue over moral principles but we can’t (or at least shouldn’t) do what Mr. Ogden seems to be suggesting, i.e. treat “health” or “adequate food” as rights for pragmatic reasons regardless of whether we really believe them to be actual rights. To do so would simply be dishonest.
In fact if this is Mr. Ogden’s serious argument then it seems to me that, if he would reflect, he might come to the realization that he has never really been against a rights-based approach properly understood. If he really believes that it would be moral to sue the USAID based upon an Ethiopian’s opportunistically endowed “right to adequate food” then I then I find it hard to believe that his motivations are purely pragmatic, rather than more ideologically grounded.
With that said it is perfectly acceptable for someone, based upon their clearly stated moral principles, to argue that Ethiopians do indeed have a “right to adequate food” just as one, based upon a different set of moral principles, could argue that they do not. But, at the very least, people on both sides have the obligation to honestly state their positions.
There are always immoral means (say for example torture) to morals ends (stopping some disaster), but most people think it wise not to employ them. I am not a fan of a lot of development work, the USAID and DfiD included, but the means by which we seek to improve that work must be as moral as our desire for it to be done.
The potential impact of aid is again grossly overestimated here.
When there is a problem with “rights” in education or food provision or anywhere else, it is always caused by a hopeless government that doesn’t give a shit about the well-being of its citizens and takes terrible decisions, sets bad rules, etc.
Whatever the aid agencies do or not do, those actions are just symptoms and side-effects, but not the cause of the problems.
Perhaps the world bank/IMF force policies onto governments, but ultimately it remains the government’s responsibility/liability.
And even today, you can sue NGO’s for malpractice if this malpractice damages you, why not?
But nobody does it, probably because any NGO’s actions are irrelevant for and unknown to most people.
My guess: 99% of poor people are too busy with their own troubles and have never heard of the existence of USAID/DFID, etc, let alone do they know that these organisations are supposed to “help” them.
This is so obviously satire folks! Nicely done, too. You had me going for awhile.
Had to read this post a few times (and look up Tim Odgen) – and agree with the others, that this must be satirical…and if so – I’m impressed…nicely done.
If not (but I think it is), then I agree with responses by Ranil Dissanayake and Justin Kraus. Further, it is obvious that in any area with issues regarding poverty, lack of resources, employment, education etc., and ipso facto, likely with governments that either rule as extremes (dictatorships to those which ‘delegate’ all responsibility to NGOs) then having the ability, resources, money, time (in short – capabilities) needed to secure a lawyer (if they are even allowed and/or exist in a non-democratic or poverty-stricken area) is highly questionable. If a lawyer (which would clearly be the profession to go into!) was found, who would pay them, if said people were lacking ‘rights’ (which often can be read as therefore also poor, lacking in education etc.). If finally, a lawyer was available (which is so likely given the abundance of teachers in much of the developing world!?), and money was there to secure one, and said lawyer – an individual – could somehow secure the ‘rights’ for said people in a country that has thus far denied them due to issues including, among others, governance, social, cultural, economic or resource (etc) – then it is likely that said ‘rights’ (which are not absolutes and without grey areas in what they mean and how they can/should be applied) would have to be won via lengthy court cases (which would necessitate the need for more lawyers and judges).
But, of course – the post was satirical!
Regardless of whether this post is satire or nor, it certainly muddles the waters rather than bring some clarity to the debate that started here, and was pursued here, here and here.
Unfortunately, neither Bill nor his supporters in this particular debate seem to adapt at all to contrary arguments: they don’t counter them, they don’t adjust their own arguments to take into consideration the counter-arguments, they just keep on building up straw men, and ripping them apart.
I’m not going to rehash the arguments I spent time explicating in previous comments.
There definitely is a link between rights-based approaches to development and the current ‘best understanding’ of what works (and what doesn’t) in development, or in the delivery of public goods in general, or of particular services.
That by no means suggests that one can go around suing development agencies, as implied. There is a huge difference between cardiological malpractice suits, founded on domestic tort law, and enforcing the right to food, or to housing. There is, by the way, a huge debate within the human rights law literature about the need to ‘de-judicialize’ human rights practices, and focus on human rights within public policies: it is far more effective — and cheaper — to prevent HR violations from arising than remedying them after a public policy is set in motion. Hence the idea, for instance, of integrating human right concerns in development planning to avoid, inter alia discriminatory outcomes, disenfranchisement of vulnerable groups, or nonreactive/non-participatory policies.
Human rights in development, therefore, are not only — or mainly — about courts making allocation decisions under scarcity (although courts might have a roll to play in some cases), but about recognizing that certain things — minimum access to food, water, healthcare — are not a matter of (reversible) public charity, but a matter of human dignity that states are obliged under (international and domestic) law to take into consideration when setting their objectives.
Americans seem, singularly at a loss when it comes to trying to understand economic, social and cultural rights (and this is certainly due to the particularities of their own constitutional experience). The messy public debate on universal access to healthcare, an issue that has for long been settled in all other developed nations, is an indication of that. The startling thing is that the malaise with healthcare somehow coexists with a perfectly settled social agreement on the need for public provision of education for all, for instance. Both are social rights, but one seems acceptable whereas the other seems incomprehensible.
In the rest of the world, people look at housing, health, and food — just to name a few — as settled rights, as issues for which denial of access must give raise to remedies (although these need not be judiciary). I don’t see what’s so hard to understand here.
By drawing the wrong analogies from ‘rights-based approaches’ in other domains — such as medical malpractice in tort law — the debate just gets clutterred with useless noise. I’m looking forward to read posts in this blog where human rights are taken seriously…
Avam’s comment above is just proof that the debate has been muddled by the wrong linkage between ‘human rights’ on the one hand, and ‘courts and lawyers’ on the other.
Human rights are not the exclusive preserve of a profession, and the courts are not the only way to ensure respect for human rights. Parliamentary politics, protest, and other democratic forms of expression all have to do with human rights. Public participation in law-making, in budgeting, in controlling how expenses are carried out, all these are also human rights issues.
Social rights were the outcome not of ‘enlightened’ lawyers and judges plying their trade, but of social struggle, sometimes bloody, by citizens — women, minorities, workers and other activists.
It is only proper that the realization of rights be not contained exclusively in the straightjacket of judicial procedure, and be — on the contrary — the center of a public debate at all levels: in government, in parliament, in the streets and — when necessary — in Courts as well.
I insist, human rights are not only trumps that are used to block public initiatives in Court (although this function is certainly important). They are the backbone of what a society considers to be the minimum content of human dignity, that for which the State — and hence the body politic — must strive, and incrementally realize.
Being a European, I consider all posts praising american-style lawsuits satire.
1. Yes folks, it’s satire.
2. I do think, with a little consideration, that it clarifies rather than muddies the water. The simple point is that aid should be more accountable to the poor. Doing that based on “rights” however you decide to semantically parse the word, is a terribly complex, and therefore easily abused, approach to making aid more accountable.
3. Being an American, I consider all posts praising american-style lawsuits to be satire.
Re: Mathias – “Avam’s comment above is just proof that the debate has been muddled by the wrong linkage between ‘human rights’ on the one hand, and ‘courts and lawyers’ on the other.”
I assume you are joking? you aren’t actually making the vast and, might I add, extremely arrogant and wrong assumption that my post about lawyers was 1) meant to be taken that seriously (as I had pointed out at the beginning of my post I assumed the original post was satirical and was responding – I thought quite obviously! – with a lighthearted response in that vein) and 2) that my post – on a opinion blog – was, somehow representative of my Entire view on the role of rights and development?
I suggest Matthias, you have rather a large opinion of yourself. By the way I’m not american, and would agree with Tim Odgen’s last post (points 2 & 3).
Good to hear that it was satire, I was about to make a crack about it must being April Fool’s Day today, and I didn’t realize it.
However, in a perverse sort of way this might work. Imagine someone could actually sue an NGO, or sue the IMF or World Bank or USAID. I think the most likely response from the NGO’s would be, “Screw this crap, I’m no longer providing “aid” to this country at all”.
If every government stopped funding “aid” to poor countries as a result of being liable to being sued for providing ineffective “aid”, then the kleptocratic governments of these countries would be without their main source of funds which they store away in Switzerland. How are they to become rich if they can’t simply steal aid from Norway and the UK etc.?
The governmental heads of these countries then would have to look inwards for opportunities to become rich. But how t do it? You can’t squeeze blood from a stone. But what you can do is siphon off some taxes from a healthy growing economy. So all of a sudden they have the incentive to set up the institutions needed to have a thriving, high growth economy like China or India.
If those taxes aren’t too taxing, and there aren’t all sorts of other deadweight loss inducing institutions hanging around (such as bribery and coercion and insane amount of red tape needed to start a business), then the economy will indeed grow rapidly.
Especially since the best and brightest in the country will no longer be engaged in the negative externalities of working for NGO’s or gaming the aid money, and will instead become entrepreneurs or work for foreign multinationals, which in turn will likely appear because all of a sudden they can actually create wealth in the country and keep most of their market based rent from doing so.
Re: Matthias – I have to add….re your comment that my singular short post was “proof” that the entire “debate” has been muddled by wrong linkages is worrying. And extremely ironic given the nature of your posts.
If you are looking for “proof” through one-off posts on an opinion blog (is this possible!?) – when you do not know the background of posters no less – and then state your opinions, in relation to said “proof”, as the ‘correct answer’ (if there is such a thing in development) – seems to me to lack the critical rigor you are so quick to label others as not having.
The simple point is that aid should be more accountable to the poor.
I think we can all agree to that. But what does ‘accountabilty to the poor’ actually mean? What you mean by ‘making aid more accountable’ is the crux of the matter.
Doing that based on “rights” however you decide to semantically parse the word, is a terribly complex, and therefore easily abused, approach to making aid more accountable.
The idea of accountability itself relies on the notion that there is a standard against which you evaluate processes and outcomes, i.e. (at least) a standard of (economic) efficiency. It also implies that there is a forum where policy-makers can be held accountable.
A standard of efficiency is not a legally defined right, of course. And it could be ‘enforced’ by donors, by national development agencies, by parliament, or by any number of other actors (including courts). But the moment you start a public evaluation of policy, you’re already promoting a human rights-based approach to development (HRBA).
A rights-based approach doesn’t determine what a ’standard of efficiency’ should be. On the other hand, it requires that:
1) the provision of minimum levels of public goods be seen as a duty of state, and not as a discretionary policy;
2) that policies to ensure those minimum levels be established in a participatory manner (via democratic institutions);
3) that policies be non-discriminatory in their design and outcomes (e.g., exclude girls from education out of respect for ‘tradition’)
4) and that when policies fail to materialize that beneficiaries (rights-holders) be empowered to seek a remedy; this remedy need not necessarily be a court.
Requirements (1)-(4) in no way imply the ridiculous things that some people claim HRBA implies: for instance, that (i) courts will decide development policy; (ii) one kind of public good will trump another (anti-retroviral HIV treatment vs. polio vaccination); or that (iii) economic ‘aid effectiveness’ criteria will be discarded in favor of some fuzzy and unspecified ‘rights-based’ criterion.
Contrary to what Easterly and others have claimed, economic, social and cultural rights are owed by the state, and not some indeterminate actor. There is a clear duty-bearer.
ESC rights are subject to progressive realization, which means in practice that the right to food, to name one ‘controversial’ right, does not require that food insecurity disappear from one day to the next, nor does it empower courts to rewrite government budget as they see fit.
States will not be criticized for not having resources, although they can be criticized for using their resources in a manifestly bad way (either because it is [economically] inefficient, or because it promotes discriminatory or non-participatory processes or outcomes).
These requirements in no way contradict good development policy. Or am I missing something?
Avam,
I am sorry if I misunderstood the sarcasm in your comment. Please accept my apologies.
As they say in Vietnamese (and Chinese, too, I think…), “The joke is always half true.”
Despite obvious practical and logical failings, I a rights-based approach can provide a very useful lens through which to examine what it is that we do. Even though it will never actually happen, I think we should still be asking ourselves, “what if we could get sued for aid malpractice?”
This is actually a fine, fine piece of satire. You had me there.
I agree with Bill’s position (how brave!) – there are important negative rights that should be enforced, but positive rights muddy the water horribly and are contradictory (my right to education is a right to someone else’s time and resources – what about their rights?). The development undermines itself by being so explicitly naive and unrealistic to discuss rights separately from discussing resources and trade offs. If we’re helping to provide the developing world with plans and idelogies that are entirely delinked from resources and trade offs is only a few stages further on from sending them some lyrics from John Lennon or maybe Michael Jackson.
That said, credit to Matthais – Bill when will you respond to his points?
Am I the only person here who:
1: Supports a HRBA but a real one that doesnt ignore the ‘violator’ from the equation as most development agencies do.
2: Thinks it would be a damn fine thing if development agencies were (at least at risk of being) sued by those living in poverty – becuase that’s what hard-edged accountability means. Although that of course also implies access to a functioning judicial mechanism, itself an indication both of the inter-dependence of rights and why the division of positive and negative rights is often artificial.
3: Still realises it was satire and had a laugh.
Yes, Martin — you are the only one.
Think of all the things those living in poverty could do and buy with the settlements they would receive from such lawsuits… millions of development dollars in the hands of the poor themselves.
The inherent problem here is that the small NGO would be at risk when methods fail, but again, that could be represented as accountability. Maybe if those in poverty were considered the leading experts in eradication strategies, these risks could be mitigated.
Accountability is always a bad thing for the violator — and always a good thing for those violated.
Anyone here ever sued a much bigger, richer organisation?
Anyone used the court system in a developing country to do so?
Anyone done so on a income of $2 a day?
If so I’ll set up a facebook group to lobby for you to be World Bank president immediately.
@Matthias
I’m not so sure I understand (or certainly agree) with you automatic assumption that we should be ‘accountable to the poor.’ In fact, I’ll just say it. I disagree.
If the poor don’t want it, don’t take it. If you want it, take it and don’t cry later about it. NGO’s are accountable to those who sponsor them, period. Although, since NGOs are mostly wrapped up in gov’t beaurocracy, it’s a whole mess of crap.
This all brings up another item Bill or a poster pointed out a while back….
If we go with these assumptions that we all have ‘rights’ to these things. Why does the US not give out free food, housing, etc. to it’s own people. Do only ‘poor’ people have rights? ‘Rich’ people then have no rights? So now rights are no longer a matter of humanity, rather a matter of money. So poor people have a right to money, and they have the right to take it from rich people, since the rich people do not have the right to money.
Oh1 Socialism. Hah! Funny how we got there. Isn’t Utopia great.
Are you tracking with me?
19 comments and still not a single suggestion for a catchy acronym for an NGO to coordinate the lawsuits.
I guess I’ll have to call this post a failure.
If the poor don’t want it, don’t take it. If you want it, take it and don’t cry later about it.
The rights we are talking about exist, and should be upheld, regardless of the source of their funding: states have the duty to provide them with their own resources, or — when circumstances allow it — through international cooperation. Aid is just a part of that cooperation (although a very significant part for some LDCs).
The availability of funds determines the level of ambition and, to a certain extent, the margin of choice states have in the implementation of their policies. States with nothing cannot violate their duties for the simple reason that one cannot be obliged to do the impossible. But from the moment resources for the implementation of policies exist, the HRBA can serve the purpose of establishing whether a proposed course of action does not violate HR principles such as non-discrimination. That’s all there is to it. Nothing fancy or revolutionary.
If we go with these assumptions that we all have ‘rights’ to these things. Why does the US not give out free food, housing, etc. to it’s own people. Do only ‘poor’ people have rights?
From a strictly technical point of view, the US has not ratified the UN International Covenant on Economic, Social and Cultural Rights and therefore is not under the obligation to ensure the rights enshrined in that treaty to its own population. 160 states have ratified it (including all EU member-states, Japan, Australia, New Zealand, China, India, Brazil, etc.) and therefore have assumed the legal obligation to realize those rights within their territory and in their mutual cooperation.
‘Rich’ people then have no rights? So now rights are no longer a matter of humanity, rather a matter of money.
The US can grant/recognize whatever rights it chooses to with respect to its own population. Those states that have ratified the ICESCR, however, must ensure the progressive realization of those rights to everyone within their territory, regardless of class/caste, race, gender, age, etc.
So poor people have a right to money, and they have the right to take it from rich people, since the rich people do not have the right to money.
I really don’t know where this came from. It’s certainly not part of human rights law or its attendant practice.
But, going back to a point I made in an earlier topic, every system for allocating rights has considerable distributive consequences: they use taxes to fund a specific concept of what rights deserve protection. The minimal state is a right-allocation arrangement wherein those with little property subsidize the protection of the property of those with a lot of it. Under this arrangement, poor people with no property pay taxes to ensure that wealthier people’s property is secured by police, fire departments, courts and disaster relief agencies. Whether this is a ‘fair’, or an ‘efficient’ allocation is a subject deserving a discussion of its own.
For the purposes of the argument I’ve been trying to make, however, the issue is not whether ESC rights requires ’socialism’ — they do not, as Western Europe amply demonstrates — but whether recognizing things as ‘health’ or ‘food’ as rights is useful in development policy.
My position has been that it is useful, for political and moral reasons mainly, as it structures the debate around these topics in terms of state duties, and not in terms of (reversible) policy preferences.
In the same way I find it unacceptable to renege the prohibition of torture on policy grounds (‘it would be practical to torture these suspects!’), at the same time I would oppose suspending democratic freedoms because they are ’slowing down the rate of growth/development’, I would also oppose denying that the right to food is an essential requisite for autonomous personhood, i.e. human dignity.
On this ground alone — regardless of what instrumental value a better fed population might have — ensuring food security should be seen not as a matter of charity, but as an issue of individual rights and state obligations.
On his blog, Duncan Green, head of Oxfam GB’s Research, reviews a new book,Courting Social Justice.
“The book asks if resort to the legal system makes governments more accountable (because they are forced to fulfil their promises) or less (because courts are often the preserve of the rich). The trade-offs can be complicated: in Costa Rica, a single decision by the Supreme Court led to an 80% reduction in mortality rates among AIDS patients, but on the other hand just after the court review, the health system needed to spend 8% of its medicines budget to treat just 0.012% of its patients”
and
“What the research reveals is that the courts do not go off on their own and start trying to force governments to do things they can’t afford (or if they do, they have very little success). Instead, they have become a part of an iterative policy-making process in which ‘litigation upsets the status quo, creating the context for a joint search for new solutions’ in areas such as access to medicines for new diseases, or shifts in public opinion on issues such as the right to food or work.”
Continue reading here
A catchy name?
Docks for Development
Scratch that:
Lawyers without borders
Thanks Mathias, no offense taken (and yes, I was being sarcastic with the lawyer post).
re “catchy acronym” – Lawyers without Borders gets my vote.
I’m afraid you were beaten to it:
http://www.lawyerswithoutborders.org/Pages/Default.aspx
How about “Lawyers Without Morals”?
Just opened the link, interesting – and not that surprising really. It looks like a good and well-needed org.
I think the issue about human rights approaches to development is complex (as evidenced in much of the current writing on it), and clearly cannot be reduced to lawyers/judges/courts or simplistic views regarding what defines a right in one area to one group of people, without taking on board the myriad of other variables that affect this (social, cultural, economic/resource, accountability etc.) But, even taking account of all the criticism surrounding ‘rights’ – I would agree with Matthias that fundamentally at some level – regardless of culture, tradition, resource use etc, “they are (or should be) the backbone of what a society considers to be the minimum content of human dignity, that for which the State — and hence the body politic — must strive, and incrementally realize” .
That said, courts and those that work in the field of law play an equally important role as any other sector (and more than some), so I don’t buy into this idea (joking aside) that a lawyer is intrinsically “without morals” as Happy juggler implies (e.g that they have no valid or worthwhile role to play in the governing of civil society).
What about “Lawyers Without Morals”?
Thats a pleonasm.
Only if you truly believe they have no morals; if you are that jaded then a further one could be “development critic without morals”, and the list could go on ad nauseum. Unless, you are meaning pleonasm in terms of a phrase that is overused to the point of meaningless?
So, ‘Lawyers without morals’ = lawyers are inherently working against the good of others OR ‘Lawyers without morals’ – pleaonastic because Lawyers inherently have morals, to the same degree (some more than others) as any other individual in a profession, and to state otherwise is cliched and without basis in reality.
Same phrase, but could have two very different meanings. My money is on the second choice.
I think this time it was you who missed the irony in the phrase, Avam.
Being a lawyer myself, I consider the phrase to be a bit of self-derision, to lighten the talk a bit…
I’m sure ‘morality’ isn’t lacking more among lawyers than in other professions, and certainly not economists… it was just a light joke.
Ahh – ok, that makes more sense. I did wonder – so you’d also be going with the second choice then
Ever done any pro-bono work with ‘lawyers without borders?”..