Access to Rights and Governance in the Context of Fragile States

By Désiré Assogbavi

It is universally accepted that human rights are indivisible and interdependent. It is not enough that rights are recognized in national law or policy rhetoric: there should be mechanisms for their full exercise by citizens with no discrimination. But how shall we deal with access to rights in fragile states?

A fragile state has a government is not able to deliver core functions to the majority of its populations. This is true for a wide range of situations, but usually involves a combination of weak administrative capacity and territorial reach, lack of state control over the use of violence, and the lack of accountability to populations, particularly poor and marginalized people. A state is fragile when it is unable to provide for the security and development of a majority of its citizens. A decade ago, most countries in fragile situations were low-income; today, a good number of them are middle-income countries.

The majority of citizens in highly fragile states are known to be poor, experience repeated violence, and suffer economic exclusion and inequality. Is fragility ever an excuse for a lack of respect for human rights, then?

Despite all principles supporting human rights, the reality is that in conflict and post-conflict situations, or other contexts of fragility, there is a breach of individual rights and personal security. In most cases, this includes the violation of a number of other rights due to weak state institutions and state’s inability (but also lack of political will) to meet the basic needs of the population.

Which rights must be met and which should be met, and when and by whom?

The very first step should be the observance of the core principles of human rights: equality, non-discrimination, participation, empowerment, and accountability. Inclusivity and non-discrimination, as well as transparency, are particularly helpful in reducing the tensions and frustration of rights holders, even when state institutions are not able to provide all the rights they are due. This is particularly true when various constituencies including civil society are given the chance to participate in the realization of rights and to promote the inclusive design and organization of democratic institutions such as electoral processes, so as to ensure and facilitate the involvement and participation of socially and economically marginalized and vulnerable groups. Such reform should include measures to support the ability of such groups to exercise their freedoms of association, assembly, and expression.

Prioritization and sequencing?

The International Bill of Human Rights – including the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights – indicates a series of rights. But there is no guidance as to which comes first, especially today, when we are strongly convinced of the interdependency of those rights.

Some rights cannot be derogated

Some rights cannot be derogated: Article 4 (2) of the International Covenant on Civil and Political Rights sets out those groups of rights which can never be restricted or derogated. These include the rights to be free from arbitrary deprivation of life; torture and other ill-treatment; slavery, retroactive penalty, and the violation of freedom of thought, conscience, and religion. Article 4 provides for the derogation of other rights during periods of national emergency, under strictly limited circumstances.

In certain situations of the state’s incapacity or even total failure, it may not be possible to restore all services and meet all needs immediately. We are then forced to prioritize and determine which rights must be met first and which are to be realized over a certain timeframe. This is the concept of the progressive realization of rights.

The Covenant on Economic, Social and Cultural Rights allows for the progressive realisation of those rights over time, subject to some limitations (mentioned above). Some economic rights must be met at all times, however, including basic requirements for food and shelter.

Whose responsibility?

Unless we get to a situation of the total inexistence of a government, the state has the responsibility to respect the fundamental rights of citizens regardless of the situation. Fundamental rights are not favors given by the state or the government; they are duty, and those in power must account for this duty.

Fragile states may not have the institutional means to meet all of their rights obligations in a particular period, but it has become common to see other actors taking over some of the duties of the state in terms of meeting basic rights. This seems to be the only way to deal with the situation, and there is still room for improvement.

Different UN bodies have the duty to ensure the protection of rights, depending on the situation. These include the Security Council, with or without the consent of national authorities, the General Assembly, ECOSOC, etc. This protection is normally provided through various forms of intervention within the framework of “peace missions”: Human Rights Rapporteurs, ad hoc Commissions of Inquiry, etc. The UN can also send a mission to assume administrative authority in the state (Côte d’Ivoire, Kosovo, East Timor). But political and ideological interests should have a diminishing influence on any of the solutions, and only a better configuration of the UN Security Council can allow this to happen.

Responsibility of other actors?

Civil Society/NGOs: Because of their flexibility and ability to rapidly respond to crises (less bureaucratic, less driven by politics and interests, ability to mobilize resources) coupled with their experience as well as professional staff, NGOs are playing a growing role in the realization of rights in all situations, especially in fragile contexts. They must be encouraged and empowered to continue playing that role in the post-2015 era. The current shrinking of their space, especially in Africa, must be strongly combatted by all means national, regional and international.

The watchdog role of CSOs in monitoring public and private actors should be of great interest, as it can catalyze accountability for the respect or implementation of human rights, particularly in the context of fragility. It must be strongly supported by all stakeholders.

What about business? The UN Guiding Principles require business, as specialized organs of society performing specialized functions, to comply with all applicable laws, including international laws, and to respect human rights. This applies regardless of a state’s ability and/or willingness to fulfill its own human rights obligations. But when businesses have become part of the problem, then something must be done to change their accountability as we enter the post-2015 zone. Multinationals occur in an number of fragile contexts, and have been seen taking advantage of these areas in a variety of ways, mostly in conflict zones, as catalyzers or perpetuators of the fragility of the state. Their actions have included deal making with arms groups and governments in the Democratic Republic of Congo, Central African Republic, South Sudan, and others.

Every year, fifty billion US dollars disappear from Africa through illicit financial flows. At least 70% of these outflows are from extractive industries, some of them in fragile states where national budgets do not meet basic economic rights. Countries like the United States have taken interesting steps to tackle this issue, but we need global coordinated action.

About the Author

Desire Assogbavi is a Lawyer from Togo and currently the Resident Representative of Oxfam International to the African Union in Addis Ababa, Ethiopia. He was formally a Commissioner at the National Human Rights Commission and the National Inter-Ministerial Commission on International Humanitarian Law of Togo

The views expressed in the article are entirely those of the author and are not necessarily the views of his organization.

How to Finance Africa Sustainable Development Post 2015?

Public Debate – Towards the Third Financing for Development Conference in July 2015 – Tuesday 19 May 2015 from 14:00  @ African Union Commission Headquarter

My Opening Remarks

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Excellency, Ladies and Gentlemen, all protocol observed,

Thank you for joining this public debate co-hosted by the African Union Commission’s Department for Economic Affairs and Oxfam Liaison Office to the African Union

The Third International Conference on Financing for Development (FfD) will take place on 13-16 July 2015, in Addis Ababa, Ethiopia.

We expected the conference to be held at the highest possible political level, including Heads of State or Government, relevant ministers – ministers for finance, foreign affairs and development cooperation – and other special representatives.

This conference will set the scene for governments’ efforts to mobilize development finance to achieve the Sustainable Development Goals (SDGs) set for the period 2016 – 2030.

Decisions of the  FfD must be bold, visionary, and lead to transformative change if today we are to create universal equitable and sustainable prosperity within planetary boundaries, and fulfil international human rights obligations for future generations.

FFD must build on the foundations of the previous FfD in 2002 in Mexico which is “to eradicate poverty, achieve sustained economic growth and promote sustainable development as we advance to a fully inclusive and equitable global economic system.”

The Third FFD Meeting will be then crucial to ending extreme poverty and tackling inequality everywhere. The conference will also lay the foundation for an agreement in September in New York on the new sustainable development goals, and for a binding climate-change agreement in December in Paris

The Financing for Development process come at a critical time, and must deliver on a number of issues for other crucial global agreements to bear fruit.

This conference will be the 3rd to be organized. The last one happened in Monterrey in Mexico in 2002.

The Addis Ababa event will have a different dimension compare to the previous FFD in Monterrey

  • Monterrey took place after agreement had been reached on the MDGs, while Addis will happen before formal the adoptions of the Sustainable Development Goals
  • Monterrey was focused on a government-to-government agreement but a larger number of stakeholders will be involved in Addis Ababa, including businesses, academics, civil society, scientists, and local authorities.

The conference should unlock finance from many different sources, including but not exclusively aid, to implement the upcoming Sustainable Development Goals.

Addis Ababa meeting will take place in the context of a slow global growth, in a world being devastated by conflicts and facing serious natural disasters and climate issues.

Agreements should have significant consequences for successful implementation of the SDGs at national, regional and global level.

Recommendations should be clearly actionable, with next steps in implementation that are easy to understand, easy to confirm and easy to tract.

There are other previous commitments already made which have not yet been met. There is a need for renewed efforts to meet these commitments; such commitments include meeting the target to provide 0.7% of Gross National Income in Official Development Assistance (ODA).

Given the high expectations placed on the FFD3 and the need to deliver tangible results, it is expected that the Addis Ababa Agreement mobilize international action around specific initiatives focusing on education, health, smallholder agriculture and nutrition, infrastructure etc.

The global scene and challenges have changed since the setting up of the MDGs.

We now have more scientific knowledge about climate change, rapidly growing tax evasion, unsustainable debt burdens, and the impact of trade agreements on domestic resource mobilization in developing countries.

Least Developed Countries (LDCs) have faced many of the greatest challenges in making progress toward the MDGs.

With limited trade and financial links to the rest of the world, LDCs have not gained substantial benefits from globalization, yet they are bearing many of the costs of global progress, such as climate change.

Since the FfD3 process began, lines seem to be drawn, between the global South and the global North.

The Group of 77 and China (G77) the African Group, the Least Developed Countries, Brazil, India, and other states and blocs consistently defend the right to development.

Developed countries including the European Union, the United Kingdom, the United States, Japan and others assert that all countries have to take responsibility.

FFD must result in finding resources for the upcoming SDGs: This must include both financial resources, non-financial measures including technology transfer and capacity building, as well as international systemic issues of finance, trade, tax etc.

Ladies and Gentlemen,

Radical change is needed in the development finance architecture to make it fair and just…

For every $1 dollar developing countries gain from development partners, they lose around $2 dollars (especially in illicit financial flows and debt repayments).

Aid figures are minimized by outflows from corporate tax dodging and illicit flows, lending to developed countries, and profits to private investors.

To rebalance the terms of international financing, to ensure developing countries get their just and fair share, courageous decisions must be taken in Addis Ababa.

As a priority, governments must create a system that ensures multinational companies pay tax where the economic activity takes place and limit discretionary tax incentives so that the hundreds of billions in potential tax revenue credit governments’ budgets.  

 

A Few Questions to Ourselves:

How are we going to deal with Domestic Public Finance?

Are we seeing it as Primary source of development, or complement to aid?

How do we mobilize it, How do we manage it properly?

How do we ensure accountability and transparency on the use of our national resources in order to finance our development?

Who has the responsibility to track and stop Illicit Financial Flows?

What about those assets illegally taken from Africa mostly through practices of tax evasion, trade and services mispricing as well as transfer pricing abuses by transnational corporations?

How do we deal with the lost of  $50-$60 billion a year in illicit financial outflows from Africa. An amount that is more or less equal to the total foreign direct investment (FDI) and more than the total Development Assistance that the continent receives annually?

How do we respond to Domestic and International Private Business and Finance, being promoted by western partners?

Are the current rules of International Trade favourable for Sustainable Development?

Ladies and Gentlemen, these are some of the questions on the table…

Make sure your opinion and your voice are heard in this debate.

The outcome of this discussion will be compiled in a report to be widely disseminated.