The Importance of a Human Rights Framework

It is now to ask what the added value of human rights for impact assessments is. In particular, what, if any, is the added value of a human rights impact assessment compared with SIAs or EIAs? And are there potential tradeoffs for using an explicit human rights framework?

2.4.3.1 Potential Benefits of Explicit Human Rights Frameworks

First, human rights terminology emphasizes that the assessment takes place within a normative framework of binding obligations and not just social aspirations (normativity argument). An HRIA can, therefore, be based on a solid and legally binding framework.²³⁸ Such a legal frame-work can translate IA-practice – as identified by the SIA core values – into legal obligations.²³⁹ People have a legitimate expectation that public authorities will comply with human rights and thus human rights can provide for a legitimate basis of impact assessments.²⁴⁰ This, in turn, could ideally cause a “legitimacy pull”, and as human rights assign even judicially enforceable duties, HRIAs could help to incentivize or encourage duty-bearers to protect the rights of right-holders.²⁴¹

Second, a human rights framework is universal and comprehensive.²⁴² Considering the indivisibility of human rights, it would include not only civil and political but also economic, cul-tural, political social dimensions which are largely accepted worldwide. HRIA could “locate con-clusions and recommendations within the context of legal obligations that states have voluntari-ly undertaken”²⁴³ (universality argument).

Third, an explicit human rights framework enables those who conduct Impact Assessments to rely on objective human rights standards instead of using the status-quo as the baseline scenar-io²⁴⁴ (objective standards argument). HRIAs allow identifying existing deficits. Such a normative framework limits the option to “trade” certain negative impacts against other positive impacts, in other words, to apply a utilitarian approach to impact assessments. Human rights, it has been argued, leave little room for these trade-offs.²⁴⁵ Rather, a human rights impact assessment rec-ognizes a special legal status of individuals and would place the individual and his/her rights at the center of the analysis. For example, instead of only gathering data and information about people’s state of health and the public health system, a right to health impact assessment would also look at how their right to health is protected. This can make an actual difference: an initia-tive that does not lead to a rise in prices of existing but only new life-saving drugs might not have a negative impact on the status quo of access to health services, but it would count as a negative impact considering that the right to health implies the state’s commitment to progressive

238 Walker, The Future of Human Rights Impact Assessments of Trade Agreements (above, n. 28), p. 43.

239 MacNauthon and Hunt, ‘A human rights-based approach to social impact assessment’ (above, n. 22), p.

365.

240 Ibid., p. 366.

241 Paul Hunt and Gillian MacNaughton, ‘Impact Assessments, Poverty and Human Rights: A Case Study Using the Right to the Highest Attainable Standard of Health’, World Health Organization, in: Health and Human Rights Working Paper Series, No 6, p. 15.

242 Walker, The Future of Human Rights Impact Assessments of Trade Agreements (above, n. 28), p. 43.

243 Ibid., p. 48.

244 Ibid., p. 191.

245 Sarfaty, Values in Translation (above, n. 13), p. 127.

zation. While sustainability impact assessments may be more comprehensive insofar as envi-ronmental impacts are concerned irrespective of the human rights relevance, HRIA can be more comprehensive in other ways. For example, a trade SIA would often leave out political and cul-tural impacts:²⁴⁶ In the EU-Mercosur Trade-SIA, impacts were assessed on the basis of “equity”;

however, equity was only analyzed in terms of income and gender. Human rights impact as-sessments would require the consideration of other aspects, including non-discrimination in relation to indigenous peoples, persons with disabilities, or migrant workers.²⁴⁷

Another difference – even though this might not be welcomed by everybody – is what one could call the discursive function of an explicit human rights framework for impact assessments (dis-course argument). Especially in international law, human rights can serve as the contemporary

“lingua franca”,²⁴⁸ a normative language which allows communicating across borders and is as such necessary (and unlikely to diminish soon).²⁴⁹ Such a discursive element is particularly im-portant for hard cases, namely those situations where it is difficult to evaluate certain impacts from a human rights perspective. In these cases, a diligent analysis would require to consider not only human rights treaties and case law, but also other sources eminent in international hu-man rights law, such as the General Comments or Concluding Observations of the UN Huhu-man Rights Committees or the “teachings of the most highly qualified publicists of the various na-tions” (Article 38 ICJ Statute). It thus enables a discourse between different parts of the “human rights community”.

Another function concerns the generation of information and knowledge (the knowledge argu-ment). As such, an explicit human rights framework would open the impact assessment to a broader range of knowledge sources. It might require considering data and information provid-ed by human rights organizations or to involve human rights experts. It might also imply that recommendations, concluding observations or other soft-law norms issued by UN human rights bodies must be taken into account. At the same time, many human rights principles – such as participation, transparency, and accountability – are also regarded as having an efficiency-enhancing effect: they will enable institutions to take better (informed) decisions and can thus enhance the effectiveness of projects and policies alike.²⁵⁰ This might also reassure those skep-tics in international financial institutions who emphasize that they are not human rights experts and have no human rights mandate. It is exactly for that reason that information and knowledge provided by external actors – UN human rights organizations or human rights “experts” - should also be considered.

246 Walker, The Future of Human Rights Impact Assessments of Trade Agreements (above, n. 28), p. 188.

247 MacNauthon and Hunt, ‘A human rights-based approach to social impact assessment’ (above, n. 22), p.

367; Walker, The Future of Human Rights Impact Assessments of Trade Agreements (above, n. 28), 188 et seq.

248 Cited in: Joseph Raz, ‘Human Rights Without Foundations’, in: Samantha Besson and John Tasioulas (eds.), The Philosophy of International Law, p. 321.

249 Brownsword and Goodwin, Law and the Technologies of the Twenty-First Century (above, n. 56), p. 226.

250 MacNauthon and Hunt, ‘A human rights-based approach to social impact assessment’ (above, n. 22), p.

367.

2.4.3.2 Potential Trade-Offs of an Explicit Human Rights Framework

The critics of human rights analysis can be divided into those who regard it as inefficient and those who regard it as counterproductive. Here, only the latter will be addressed. The added val-ue of human rights and the idea that more “human rights”-based approaches are better to pro-tect humans’ interests have been challenged.²⁵¹ Koskenniemi points out that there is the risk of human rights as ideology: Empowering human rights preferences in policy design can mean to set the wrong focus, especially as human rights experts are often not experts in technology or economics and might therefore not adequately understand the consequences of different op-tions. Therefore, “reliance on rights translates into dogmatic recourse to past institutional expe-rience, ignoring the particularities of the situation where one is acting”.²⁵²

Mainstreaming human rights through the institutionalization of human rights impact assess-ments can also lead to institutional as opposed to individual empowerment. One concern is that economic institutions such as the World Bank could capture and shape the human rights agenda.

A similar effect has been observed in international environmental law: external environmental-ists criticized that the World Bank, in implementing its environmental policies, “captured” and reframed the environmental agenda of social movements. ²⁵³ Institutions may not only influence the human rights agenda but may also shape human rights discourse concerning individual initi-atives. In particular if IAs are based on complex economic modelling, it is difficult for affected or interested individuals to understand and challenge the assumptions and conclusions. This makes it easy to end debates about the expected effect by referring to the expert-based in-depth impact analysis conducted in advance. Precisely for this reason, HRIAs can not only legitimize acts of public authority but also in themselves be an exercise of authority that requires legitimi-zation.

In addition, the supporters of an explicit human rights framework tend to over-emphasize the alleged objectivity and specificity of standards. For example, the use of disaggregated data under the non-discrimination standard is not uncontroversial as it might conflict with constitutional privacy rights insofar as sensitive data are concerned.²⁵⁴ It can also create new identities or strengthen perceived differences between different groups. Other critics fear that human rights language will dominate other valuable normative approaches such as ethics.²⁵⁵

251 David Kennedy, The Dark Sides of Virtue (Princeton, NJ: Princeton Univ. Press, 2005); Koskenniemi,

‘Human Rights Mainstreaming as a Strategy for Institutional Power’ (above, n. 202).

252 Ibid., p. 55.

253 In this sense: Sarfaty, Values in Translation (above, n. 13), p. 34; Balakrishnan Rajagopal, International Law from Below (Cambridge, U.K, New York: Cambridge University Press, 2003), p. 126.

254 Morgane Donse and et. al., ‘Disaggregated Data and Human Rights: Law, Policy and Practice’, University of Essex Human Rights Centre Clinic, p. 10; see already footnote 234.

255 Brownsword and Goodwin, Law and the Technologies of the Twenty-First Century (above, n. 56), p. 227;

concerned but still optimistic on the interaction between human rights and medical ethics: Thomas Faunce, ‘Will international human rights subsume medical ethics?: Intersections in the UNESCO Universal Bioethics Declaration’, Journal of Medical Ethics, 31 (2005), pp. 173–178; However, ethic or moral argu-ment and human rights do not necessarily compete, but can generally mutually reinforce each other:

Thomas W. Pogge, World Poverty and Human Rights (Cambridge: Polity Press, 2008), 2nd ed demonstrates that it is possible to combine moral argument and human rights.

Human rights “mainstreaming” in public institutions can end up in a “repackaging of existing practice”, as some World Bank employees expressed their concerns.²⁵⁶ Critics like Koskenniemi, therefore, emphasize the value of human rights advocacy and expertise as watchdogs outside administrative procedures as opposed to institutional mainstreaming.²⁵⁷ However, I will argue that the institutionalization of HRIAs through public law can respond to many of these potential downsides, in particular if legal rules and principles governing these HRIAs contain sufficient safeguards against regulatory capture or institutional empowerment, such as transparency and participation rules or review mechanisms that enable affected individuals and NGOs to hold de-cision-makers accountable.