HRBA-and-Human-Rights-Principles-Applied-to-Local-Legislation

HRBA and HUMAN RIGHTS PRINCIPLES APPLIED TO LOCAL LEGISLATION : 

HRBA and HUMAN RIGHTS PRINCIPLES APPLIED TO LOCAL LEGISLATION Atty. Anita M. Chauhan HRBA in Local Legislation March 4-5,2009 ORT, San Fernando City

Topics : 

Topics The Role of Legislation in Human Rights Promotion and Protection The Human Rights Based Approach to Local Legislation The Human Rights Principles Applied to Local Legislation

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The Role of Legislation in Human Rights Promotion and Protection

Role of Legislators : 

Role of Legislators a fundamental role in establishing the rule of law, overseeing transparent government processes, and representing peoples views in the policy making process. Parliaments are also crucial to effecting a separation of powers and institutionalizing a system of checks and balances essential to democratic governance. This includes the promotion and protection of human rights.

Why a rights based approach to legislation? : 

Why a rights based approach to legislation? The rationale for adopting a human rights-based approach to parliamentary development programming is that doing so will enhance the contribution of parliament, its bodies and its members to human rights through parliamentary processes. Parliaments have significant responsibility for promoting, protecting and realizing human rights through their functions of law-making, oversight, and representation. Parliaments can demonstrate the key tenets of democratic governance and the universal principles that underpin human rights through their exercise of inclusive participation, their accountability to citizens, and their influence over the equitable allocation of resources. Strong parliamentary institutions help to ensure democracy, the rule of law, and human rights.

The National Human Rights Protection Systems : 

The National Human Rights Protection Systems National human rights protection systems consist of the legal framework that enshrines human rights; the statutory and non-statutory bodies charged with advancing, protecting, and monitoring human rights; and the mechanisms and procedures for addressing violations.

Dimensions of a human rights-based approach to parliamentary development: : 

Dimensions of a human rights-based approach to parliamentary development:

Dimensions of a human rights-based approach to parliamentary development: : 

Dimensions of a human rights-based approach to parliamentary development: Human Rights Values and Principles that both demonstrate and activate human rights include universality and indivisibility, equality and non-discrimination, participation and the inclusion of vulnerable groups, accountability and the rule of law. Most of these principles form part of the constitutions of most states and should guide and direct the work of parliaments and legislators in their law-making, oversight and representation responsibilities.

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Human Rights Standards of human rights contained in international human rights instruments guide national development and should be adhered to and utilized by parliaments and legislators in their day-to-day work. This can take the form of ensuring that human rights standards are applied to national issues such as gender equality, the rights of internally displaced persons, minorities, indigenous peoples, the disabled, the aged, or those suffering from HIV/AIDS. Dimensions of a human rights-based approach to parliamentary development:

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Human Rights Claim Holders refers to people as holders of rights that can be claimed through participation in parliamentary processes. The right to vote, the holding of public hearings, the ability for citizens and organizations to participate in the development of legislation and the role for public inputs to the national budget process all demonstrate how claim holders can participate in parliamentary processes and thus actively assert their rights. Dimensions of a human rights-based approach to parliamentary development:

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Duty-bearers refers to legislators as individuals and parliaments as governance institutions with responsibilities and obligations to respect protect, promote and realize human rights principles and standards through the legislative, oversight and representational functions and through the execution of parliamentary procedures and practices. HOW? raising public awareness about human rights laws, procedures, and remedies empowering public scrutiny of parliamentary processes and performance. monitoring of adherence to human rights laws and of the progressive realization of human rights in the implementation of national laws. Investigating and monitoring allegations of human rights violations Conducting parliamentary hearings issuing parliamentary White Papers on human rights issues Dimensions of a human rights-based approach to parliamentary development:

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Human Rights Remedies address the structural inequalities that prohibit or limit the realization of human rights, including the right to development. Through the articulation and application of a human rights-based approach to its mandate, parliaments can address structural inequalities and be more effective in closing deficits in both democratic governance and human rights. FORMS OF REMEDIES: Judicial measures administrative measures All forms of legal remedies require legislative action, sometimes by changing the law, or by changing the implementation and application of the law. Addressing human rights issues related to budgetary, resource allocation and resource utilization processes, (including Poverty Reduction Strategy Programmes and the achievement of the Millennium Development Goals), all constitute remedies. Dimensions of a human rights-based approach to parliamentary development:

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The Human Rights Based Approach to Local Legislation

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A human rights approach adds value because it provides a normative framework of obligations that has legal power to render governments accountable. – Mary Robinson World Summit on Sustainable Development, 2002

Human developmentis the process of enhancing people’s capabilities to expand choices and opportunities so that each person can lead a life of respect and value freedom and dignity need the legal guarantees of human rights to avoid being threatened : 

Human developmentis the process of enhancing people’s capabilities to expand choices and opportunities so that each person can lead a life of respect and value freedom and dignity need the legal guarantees of human rights to avoid being threatened The linkages between… …and Human rights… All people have claims to social arrangements that protect them from the worst abuses and deprivations-and that secure the freedom for a life of dignity The realization of human rights requires capacities that development can make possible

Development is an inalienable Human Right. : 

Development is an inalienable Human Right. DEVELOPMENT HUMAN RIGHTS The Vienna Declaration situates development within the human rights framework. The World Conference on Human Rights reaffirms the right to development as established in the UN Declaration on the Right to Development, as a universal and inalienable right and an integral part of fundamental human rights.

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It is a mainstreaming process to link human rights to development. It is a conceptual framework for the process of human development that is normatively based on international human rights standards and operationally directed to promoting and protecting human rights As an approach to development, it essentially integrates the norms ,standards and principles of the international human rights system into plans,policies and processes of development. what is HRBA?

Features of RBA to Development : 

Features of RBA to Development First, a rights-based approach to development is based on a framework of rights and obligations. The U.N. Development Program issued a “Statement of Common Understanding” in May 2003, explaining that “in a human rights-based approach, human rights determine the relationship between individuals and groups with valid claims (rights-holders) and State and non-state actors with correlative obligations (dutybearers). It works towards strengthening the capacities of rights-holders to make their claims, and of dutybearers to meet their obligations.

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Second, a rights-based approach should encompass the full range of indivisible, interdependent and interrelated rights (i.e., civil, cultural, economic, political and social rights). This in turn requires a framework that reflects internationally guaranteed rights, such as those related to health, education,housing, justice, personal security and political participation. By definition, such an approach would be incompatible with development policies, projects or activities that have the effect of violating rights. In other words, trade-offs between development and rights should never be made. ENCOMPASSES FULL RANGE OF INDIVISIBLE, INTERDEPENDENT AND INTERRELATED RIGHTS

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Third, a rights-based approach focuses on raising levels of accountability and transparency in the development process by identifying rights-holders (and their claims) and corresponding duty-bearers (and their obligations). The approach thereby addresses both the “positive” obligations of duty-bearers (to recognize, respect, protect, promote and provide rights) and their “negative” obligations (to abstain from rights violations). A rights-based approach also provides for the development of adequate laws, policies, institutions, administrative procedures, practices and mechanisms for redress and accountability that can ensure the realization of entitlements and respond to the violation of rights. It calls for the “translation” of universal standards into locally determined benchmarks for measuring progress and enhancing accountability. RAISING LEVELS OF ACCOUNTABILITY AND TRANSPARENCY

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A fourth critical feature of a rights-based approach is that it requires a high degree of participation. According to the U.N. Declaration on the Right to Development, such participation must be “active,free and meaningful.” In other words, mere formal or ceremonial contacts with beneficiaries is not sufficient. A rights-based approach emphasizes access for rights-holders to development processes, institutions, information and mechanisms for redress and complaints. In the context of development work, this means that the partners in and beneficiaries of development have access to a development project’s mechanisms. Rather than development agendas that pursue externally conceived “quick fixes” and imported technical models, the norm would be to adopt process-based development methodologies and techniques HIGH DEGREE OF PARTICIPATION

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Finally, a rights-based approach must give particular attention to issues of discrimination, equality, equity and vulnerability. This means that development efforts must engage vulnerable groups, such as women, minorities, indigenous peoples and prisoners. Because vulnerable populations vary by context, a rights-based approach requires program designers and other staff to consider local circumstances when identifying vulnerable populations. To do this, the development community needs data that is disaggregated (to the greatest degree possible) by race, religion, ethnicity,language, sex and other categories related to humanrights. ATTENTION TO ISSUES OF DISCRIMINATION, EQUALITY, EQUITY AND VULNERABILITY

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HRBA to development and governance is: A vision A set of tools In which HR can be the means, the end the mechanism of evaluation central focus of sustainable human development

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The development process is normatively based on international HR standards and principles It recognizes human beings as rights-holders and establishes obligations for duty-bearers. It focuses on discriminated and marginalized groups It aims for the progressive achievement of all human rights It gives equal importance to the outcome and process of development

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As development policies and programmes are formulated, the main objective should be to fulfil human rights. A human rights-based approach identifies rightsholders and their entitlements and corresponding duty-bearers and their obligations, and works towards strengthening the capacities of rights-holders to make their claims and of duty-bearers to meet their obligations.

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RIGHTS-BASED APPROACH (RBA) The RBA is founded on the Declaration on the Right to Development & on the various International Human Rights Instruments to which the Philippines is a state party Development should provide the processes And enabling environment for Realization Of Human Rights And Fundamental Freedoms; The Economic, Social, Cultural And Political Development Processes Should Enable The Full Realization Of Human Rights And Freedoms.

Legal Framework of HRBA in Philippine Setting : 

Legal Framework of HRBA in Philippine Setting International -Philippines as founding member of United Nations - Philippines as State Party to no less than 24 international human rights treaties including the eight (8) core human rights international treaties

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National -Philippine Constitution -Creation of CHRP -Creation of PHRC -Human rights related structures created by laws promulgated by Congress -Human rights laws and related laws promulgated by Congress

The Philippine HRBA Framework in Development and Governance : 

The Philippine HRBA Framework in Development and Governance * Economic * Social * Cultural * Political * Environmental National/International Human Rights Framework --Human Rights Principles -State Obligations -Individual Duties -Normative Content of HR Governance Economic Governance Political Governance Administrative Governance HUMAN RIGHTS KEY GOVERNANCE STAKEHOLDERS Government,Civil Society And Private Sector DEVELOPMENT

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The Human Rights Principles Applied to Local Legislation

Human Rights Standard : 

Human Rights Standard The minimum normative content of the right: the type of claims and obligations that the right implies at the minimum in practice Human Rights standards and principles improve the quality of outcomes and processes Human rights standards delineate the ‘playing field’ in which development takes place Human rights standards define the content of the development objectives. National legislation (national constitution, laws and regulations, jurisprudence…) can establish higher standards than international law

2) Human rights principles should guide all parliamentary processes. : 

2) Human rights principles should guide all parliamentary processes. HR Principles guide the development process. HR principles provide the “playing rules” for the development process. Human Rights Principles ensure that the development process creates a favourable environment and does not harm the realization of human rights

Human Rights Principles : 

Human Rights Principles Universality and inalienability Indivisibility Interdependence and Inter-relatedness Equality and non-discrimination Participation and inclusion Accountability and rule of law Content oriented Process oriented

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EMPOWERMENT Universality Indivisibility Interrrelatedness and interdependence Non-discrimination Equality Accountability Attention to vulnerable groups Equity People’s participation Independence of the judiciary Legislative capacity and rule of law Transparency Human Rights Principles That Guide Development Rights related Governance related PROGRESSIVE REALIZATION

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Principles of Universality & Inalienability HR principle of Universality requires: That no one is left out or excluded from human rights Human rights belong to everyone, everywhere and are based on the inherent dignity of every person. Principles of Equality & Non-Discrimination Equality and Non-discrimination obliges states to: Eradicate Legal, institutional, interpersonal and structural discrimination

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Indivisibility and Interdependence: All rights are equally important. One right cannot be addressed in isolation from the context of related rights, or to the detriment of another. Furthermore, different rights supplement one another (for example, rights to political participation help to safeguard economic rights and the right to adequate food and shelter). Our enjoyment and exercise of a particular human right are dependent on our enjoyment-or non enjoyment- of other human rights HR principles of inter-relatedness and indivisibility and interdependence requires: Equal recognition and protection of rights

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Accountability: Human rights recognize people as active subjects and claim-holders, establishing duties and obligations on others to ensure that needs are met. Duty-holders are held accountable for their actions, or lack of actions Principle of Accountability requires: States and other duty bearers to be answerable for the observance of human rights Accessible, effective and independent mechanisms and procedures of redress Free and independent media, and groups of human rights defenders representative of men, women and marginalized or excluded groups

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Equality All persons should enjoy human rights on an equal basis, and in their totality. Equality demands women and men equally enjoy and exercise all fundamental rights and freedoms. Equality does not mean identical treatment in every instance. Equity In the guarantee of fundamental rights and freedoms, equity is FAIRNESS,JUSTICE AND IMPARTIALITY

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Participation: Participation is an essential principle of the international human rights framework; every person and all Peoples are entitled to participate in, contribute to, and enjoy development in which all human rights can be recognized. Participation is notjust desirable for local ownership and sustainability, but rather a right in and of itself. HR principles of Participation require: FREE, ACTIVE, MEANINGFUL and INCLUSIVE PARTICIPATION

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Rule of Law: Rights are protected by national and/or international law. Any disputes about rights are to be resolved not through an arbitrary process but through adjudication by competent, impartial and independent processes that will ensure full equality and fairness to all parties, and determine questions in accordance with clear principles. The rule of law ensures that no one is above the law and that there is no impunity for human rights violations.

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Progressive Realization: Within the human rights framework, states must take steps, individually and through international co-operation, to progressively achieve the full realization of recognized rights. A lack of economic development cannot be invoked as a justification for violations of human rights. Human rights require commitments and continual progress on enlarging freedoms and the enjoyment of rights by governments.

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Attention to Vulnerable Groups Great importance must be given to the promotion and protection of the human rights of persons belonging to groups that have been rendered most vulnerable. Empowerment Power to act for and on their own behalf to claim their rights. Emphasis on efforts of the people themselves to bring about the necessary changes towards the full realization of all human rights.

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Independence of the Judiciary The judiciary should decide all matters before them with impartiality. Independence oif the judiciary should be guaranteed Legislative Capacity Human rights standards must be guaranteed by law. The legislature must enact laws that aim always and only to uphold the inherent dignity of every person. A fair and just legal framework coupled with the impartial and effective implementation of law- is essential for the exercise and enjoyment of all human rights.

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Allows all persons to see openly into all activities of government. Involves full, free and public disclosure of decisions, policies, rules,etc,. Decisions taken by government-and their enforcement- must be done in a manner that follows rules and regulations. Information must be freely available and directly accessible to those who will be affected by public decisions and enforcement. Enough information in easily understandable forms and on a timely basis must be provided. Transparency