Creating a Human Rights Culture of Aid
Senior Lecturer, University of Birmingham
Deputy-Director, Oxford Human Rights Hub
Overseas Development Aid (ODA) recognises global inequalities and through the transfer of resources aims to alleviate and ultimately end the human suffering inherent in poverty. Global efforts to end poverty through ODA can and do have a range of human rights impacts. At the positive end of the spectrum, life-saving interventions funded through ODA can respect, protect and fulfil the right to life of thousands of individuals. In the past five years, ODA funding from the UK supported 5.3 million girls accessing their right to education and protected thousands of women’s right to health and life through maternal health interventions. At the other end, ODA can precipitate or exacerbate human rights violations. The UK’s funding of for-profit private education has had negative ripple consequences for the right to education throughout East Africa.
Despite the human rights impacts of ODA, there is resistance to framing ODA in terms of human rights and duties. The successes and failures of ODA are not consistently expressed in the legal language of fulfilling or violating human rights. Rarely are human rights doctrines deployed to evaluate the impact of ODA. This is a missed opportunity. Human rights can enhance the allocation, design, delivery and implementation of ODA. There have been in-roads to using human rights values to guide development policies, but legal human rights concepts and accountability mechanisms have not yet fully addressed ODA. The promise of human rights law is tantalizing. It moves ODA from a purely charitable act and disciplines it against a legal framework and requires both donor and recipient states to justify decisions and uses of ODA against a human rights framework. Creating and implementing a human rights-based culture of ODA can enhance the transparency, accountability, participation, equality and effectiveness of ODA so that it is more tailored to meet its ultimate goal of eliminating global poverty.
There have been tentative steps at the domestic and international level to develop a human rights-based approach to ODA. This submission canvasses the role of law in ODA, highlighting the strength of adopting a human rights-based approach to ODA.
Domestic legal regulation of ODA ranges from ‘extensive and detailed’ laws to legislative silence. Germany, one of largest donors, has no law on ODA but uses a series of internal departmental policy documents. Many states, however, have some form of statutory regime to govern ODA. This section focuses on three jurisdictions which have passed ODA legislation, the UK, US and Canada and examines the drive to subject ODA to legal regulation and the limits to the current approaches.
(i) Legal Governance of the Aims of ODA
The core aim of the legislation in the UK, US and Canada is to ensure that ODA is only spent on approved legislative purposes. Historically the allocation of ODA has ‘largely been a matter of ministerial and bureaucratic discretion.’ There are critiques that the executive has not always been purely motived by altruistic notions of enhancing human development but has used ODA to strengthen political and economic interests at the expense of eliminating poverty in the recipient State. The domestic statutory interventions into ODA are aimed at prohibiting the use of ODA as a geo-political tool. In the UK, under the International Development Act 2002, the Minister must be ‘satisfied that the provision of the assistance is likely to contribute to a reduction in poverty’. This is a step forward as the Minister must subjectively believe that the provision of ODA will reduce poverty. Notably absent is any requirement that ODA be consistent with international human rights standards or that ODA enhance the enjoyment of human rights in recipient States. The Minister must only be satisfied the allocation of ODA will likely contribute to eliminating poverty. This is a broad goal and still leaves ample discretion to the Minister. There are many ‘very different views about what it is likely to contribute to a reduction in poverty’ and ‘one can argue that [almost] anything does…reduce poverty.’ McAuslan explains that the UK legislation essentially allows ‘the Minister the power to do what she wants, how she wants, when she wants’ and characterises the legal obligations as a form ‘benign imperialism.’
The US and Canada go a step further and incorporate human rights into the allocation of ODA. Section 116 of the Foreign Assistance Act (US) prohibits providing ODA to a recipient state which ‘engages in consistent pattern of gross violations of internationally recognized human rights…unless such assistance will directly benefit the needy people in such country.’ The lack of respect for human rights is meant to act as a brake on the provision of ODA. Similar to the UK, the US legislation has not operated to inoculate a culture of human rights into ODA. Scholars have argued that the US exploits the textual ambiguity on what constitutes “gross violation” or a “consistent pattern” to continue to fund human rights violating regimes that support US interests or alternatively the US argues that all funds are directly benefit the poor in the recipient State. And in Canada, ODA must contribute to poverty reduction; take into account the perspectives of the poor; and be consistent with international human rights standards. This is the strongest formulation of the legal duty as the Canadian legal framework requires a human rights-based approach to development and emphasizes the participatory and collaborative relationship between donor States and recipients of ODA. However, in practice, it is ‘a modest form of…mainstreaming…that is limited to civil and political rights’ and less attention is paid to ODA and socio-economic rights or third generation rights, such as a sustainable living environment.
(ii) Limited Legal Accountability for ODA
One of the strengths of adopting a legal human rights culture to ODA is to harness the strengths of legal accountability mechanisms. The domestic governance of ODA, however, still largely leaves accountability for ODA in the political realm and there are few, if any, legal sanctions for failing to meet ODA commitments enshrined in legislation. In the UK, there is very minimal role for legal accountability. Under the International Development Act, accountability is theoretically available through judicial review of the Minister’s exercise of discretion. However, as mentioned above, the grant of discretion is so broad that the allocation of ODA is in essence ‘judge proof’ and no meaningful case has proceeded through the courts. As a further example of the weak enforcement of domestic law on ODA, the Overseas Development Aid Target Act 2015 (UK) (ODAT) requires that the Minister ensure that ‘the target for ODA to amount to 0.7 percent gross national income [GNI] is met.’ The courts are specifically ousted from reviewing any failure to meet the 0.7 GNI target in ODAT and accountability is only through annual reports to Parliament justifying the failure to meet the legal target.
On a more positive note, Section 5 of ODAT, establishes the Independent Commission for Aid Impact (ICIA) which reports to Parliamentary International Development Committee. ICIA has provided a detailed and critical assessment of ODA, particularly on the use of corporate partners in ODA, and recommendations on how it can be improved. These recommendations, however, have no legal force.
A similar pattern of accountability through political reporting is evident in the US and Canada. In the US, under the Foreign Aid Transparency and Accountability Act of 2016, the heads of various government departments must report quarterly to Secretary of State on ODA and this information must be published on the ForeignAssistance.gov website. If the government departments fail to report, the Office of Management and Budget must submit a report to the appropriate congressional committee explaining why the information on ODA has not been reported or made public. In Canada, the Minister submits a report to Parliament on ODA. These reports have been criticized for failing to embrace the spirit of the law. For instance, information on the perspectives of the poor merely refers to discussions without any specific detail and the government only pays lip service to aligning ODA with international human rights standards.
International Human Rights Law on ODA
The UN international human rights system is also taking initial steps at creating a human rights-based approach or culture to ODA. The UK has ratified a series of UN treaties that require States to cooperate to realise human rights. The treaty bodies, the independent bodies that monitor the implementation of the respective treaty, are interpreting duties of international cooperation and assistance to evaluate whether the design, delivery and implementation of ODA is consistent with human rights. The UN Committee on Economic, Social and Cultural Rights has been particularly pioneering the relationship between human rights and ODA. This subsection canvasses the prominent international obligations to cooperate and considers how the Committee is using this obligation to hold States accountable against human rights norm for ODA.
(i) A Duty of International Co-operation
Threaded throughout the International Covenant on Economic, Social and Cultural Rights is a duty of cooperation. Article 2(1) requires:
Each State Party…undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the…Covenant…
Cooperation is the fulcrum of Article 11:
1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.
And Article 15(4) requires:
The States Parties to the present Covenant recognize the benefits to be derived from the encouragement and development of international contacts and co-operation in the scientific and cultural fields.
Although the Sustainable Development Goals (SDGs) are non-binding political goals, they are high-profile and very influential. The SDGs also make a clear connection between cooperation and ODA. Target 2 of Goal 17—Partnership for the Goals requires that:
Developed countries to implement fully their official development assistance commitments, including the commitment by many developed countries to achieve the target of 0.7 per cent of ODA/GNI to developing countries and 0.15 to 0.20 per cent of ODA/GNI to least developed countries ODA providers are encouraged to consider setting a target to provide at least 0.20 per cent of ODA/GNI to least developed countries.
(ii) Development by the Committee
The duty of international assistance and cooperation is under-developed. But in light of the inter-connected nature of COVID-19, the UN treaty bodies are renewing calls for global solidarity and expressing a greater recognition of the need for cooperation to realise human rights. The UN Committee on Economic, Social and Cultural Rights (CESCR) is beginning to develop a human rights-based approach to ODA.
It is using human rights law to urge States to provide ODA. CESCR uses the UN standard, reflected in both the SDG and the Overseas Development Aid Target Act 2015 (UK) of earmarking 0.7 per cent of GNI for ODA. It regrets that ODA levels are below the internationally agreed commitment to 0.7 per cent of GNI. And it encourages these States to ‘accelerate the increase of the level of its [ODA], with 0.7 per cent benchmark’. To fulfil the duty of cooperation and to realise socio-economic rights around the world, developed donor States need to ensure a sufficient level of ODA.
CESCR is evaluating whether the design and delivery of ODA upholds rights. In contrast to the Canadian approach, which narrowly focuses on civil and political rights, CESCR is directing States to ensure to ODA fulfils socio-economic rights. It calls on States to ensure ODA is directed towards specific socio-economic rights such as water, sexual and reproductive health and scientific education and research.
On the other side of the coin, CESCR is critical of States when the design or implementation of ODA violates or undermines human rights. France is taken to task by CESCR for failing to ensure that its ODA does not perpetuate environmental or social harm. CESCR also warns that ODA should not be used to push recipient States into any particular model of public service delivery, and CESCR cautions against using ODA to require recipient States to privatize health care. As mentioned above, CESCR expresses concern that ODA from is financially supporting private actors in education ‘which may have contributed to undermining the quality of free public education and created segregation and discrimination among pupils and students.’ Similar to the domestic approaches with respect to the allocation of ODA, CESCR requires that design of ODA should not be used to promote beliefs or ideologies that can jeopardize the realisation of socio-economic rights.
One of the core strengths of a human rights culture to the ODA is the analytical precision rights can bring to ODA. CESCR is paying attention to the intersection of ODA and the right to equality and non-discrimination. The implementation of ODA should not be discriminatory nor exacerbate pre-existing patterns of disadvantage. CESCR expresses concern that the implementation of ODA was undermining the traditional lifestyles of Indigenous peoples. CESCR urges donor States not to exclude sexual and reproductive health services that women need from ODA funding. This implicitly addresses the ‘Global Gag Rule’, the prohibition, instated under US Republican governments, of providing ODA to organisations that promote, provide or even give information on abortion. Failing to align ODA with women’s right to equality is having devastating impacts on the right to equality, education and health for girls and women. ODA must fully adopt an intersectional perspective and take seriously the right to equality of individuals and groups in recipient States.
CESCR recommends that donor and recipient States undertake human rights impact assessments prior to any ODA project. This can be an invaluable tool for enhancing collaboration and participation between donor and recipient States. There should be independent and effective monitoring mechanisms to assess the human rights impact of ODA policies and projects. It is not enough to merely conduct an impact assessment, but donor and recipient States should adapt ODA policies in light of the assessment and take remedial measures when required. For example, in the context of business and human rights, CESCR has urged the UK to undertake risks assessment prior to granting license for the export of arms and to refuse a license when there are risks that arms could violate human rights. Consistent with human rights-based accountability, CESCR recommends that ODA should have complaint mechanisms for violations of socio-economic rights in development cooperation projects.
ODA can enhance the exercise of human rights, but it also has the potential to cause or exacerbate grave and systemic violations of human rights. At both the domestic and international level there is a burgeoning recognition of the value of legal and human rights frameworks in ODA. This nascent culture of human rights can be strengthened in the UK.
The legal regulation of the allocation of ODA can be more expressly aligned with human rights, emphasizing the importance not only of ensuring ODA upholds civil and political rights but also sustainably fulfils social, economic, and cultural rights.
The design and delivery of ODA can adopt an intersectional and equality driven human rights-based approach to ensure policies and programmes do not exacerbate disadvantage. Meaningful and robust human rights impact assessments which are participatory and evidence-based can be a useful tool.
And lastly, a human rights culture to ODA can compliment political accountability with legal accountability. This approach to ODA does not inherently preclude reducing the levels of ODA spending or redesign programmes and policies, but it does require the government to justify decisions on ODA against a human rights human rights framework, is evidence-based and proportionate Legal accountability can create a strong deliberative discourse on ODA where competing human rights norms and values are openly debated and considered.
 Independent Commission for Aid Impact (ICAI), ‘Assessing, Staying and Succeeding Basic Education—UK’s Aid Support to Marginalised Girl’ (2016) [4.36] <https://icai.independent.gov.uk/wp-content/uploads/ICAI-review-Accessing-staying-and-succeeding-in-basic-education-UK-aids-support-to-marginalised-girls.pdf> accessed 10 July 2019; ICAI, ‘Assessing DFID’s Results in Improving Maternal Health: An Impact Review’ (2018) [4.23]-[4.27] <https://icai.independent.gov.uk/wp-content/uploads/ICAI-review-Assessing-DFIDs-results-in-improving-Maternal-Health-.pdf> accessed 10 July 2019.
 UN Committee on Economic, Social and Cultural Rights, ‘Concluding Observations: UK’ (2016) E/C.12/GBR/CO/6 .
 Philp Alston, ‘Ships Passing in the Night: The Current State of the Human Rights and Development Debate Through the Lens of the MDGs’ (2005) 27(3) Human Rights Quarterly 755, 813-828.
 OECD, ‘DAC Guidelines and Reference Series: Managing Aid’ (2005) 24 <https://www.oecdilibrary.org/docserver/9789264007635en.pdf?expires=1567004932&id=id&accname=guest&checksum=615C3BFB1E55C01BA3922D63B060166D> accessed 28 August 2019.
 Philipp Dann, The Law of Development Cooperation (CUP 2014) Chapter 3.
 Clair Apodaca, ‘Foreign Aid as Foreign Policy Tool’ in Cameron Thies (eds), The Oxford Encyclopaedia of Foreign Policy Analysis (OUP 2017) 472.
 Carol Lancaster, Foreign Aid: Diplomacy, Development, Domestic Politics (UCP 2006) 64; R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd  EWCH 1 (Admin).
 Section 1(1).
 Patrick McAuslan, ‘The International Development Act, 2002: Benign Imperialism or a Missed Opportunity’ (2003) 66 Modern Law Review 563, 601.
 Derek McKee, ‘The Official Development Assistance Accountability Act: Global Justice and Managerialism in Canadian Law’ (2015) 48(2) UBC Law Review 446, 490.
 McAuslan (n 9) 596.
 22 U.S.C. ch. 32 § 2151.
 Clair Apodaca, ‘US Human Rights Policy and Foreign Assistance’ (2005) 3 Ritsumeikan International Affairs 63, 67.
 Official Development Assistance Accountability Act (SC 2008 c 17) s 4.
 McKee (n 10) 508.
 McAuslan (n 9) 600.
 Section 1(1).
 Sections 2-3.
 Section 5.
Section 4, 22 USC 2151 note. 22 USC 2394c note.
 McKee (n 10) 492-95, 507-08.
 (adopted 16 December 1966, entry into force 3 January 1976) 993 UNTS 3.
 Articles 4, 17(b), 22, 24(4), 45 of the Convention of the Rights of the Child (adopted 20 November 1989, entry into force 2 September 1990) 1577 UNTS 3.
 Articles 2, 32, 37 and 38 of Convention on the Rights of Persons with Disabilities A/RES/61/106.
 CESCR, ‘Statement on the COVID-19 pandemic and economic, social and cultural rights’ (2020) E/C.12/2020/1.
 CESCR, ‘Concluding Observation: South Korea’ (2017) E/C.12/KOR/CO/4 ; CESCR, ‘General Comment No 22 on the right to sexual and reproductive health’ (2016) E/C.12/GC/22 .
 ‘Concluding Observation: South Korea’ (n 29) .
 CESCR, ‘General Comment No 15 on the right to water’ (2003) E/C.12/GC/15; ‘General Comment No 22’ (n 27); CESCR, ‘General Comment No 25 on science’ (2020) E/C.12/GC/25.
 CESCR, ‘Concluding Observations: France’ (2016) E/C.12/FRA/CO/4 .
 ‘General Comment No 22’ (n 27) .
 ‘Concluding Observations: UK’ (n 2) .
 ‘General Comment No 22’ (n 27) , .
 A Starrs, ‘The Trump Global Gag Rule: An Attack on US Family Planning and Global Health Aid’ (2017) 389 (10068) Lancet 485.
 Jerome A Singh and Salim S Abdool Karim, ‘Trump’s “Global Gag Rule”: Implications for Human Rights and Global Health’ (2017) 5(4) Lancet PE387.
 CESCR, ‘Concluding Observations: Cameroon’ (2020) E/C.12/CMR/CO/4 [17(b)]; ‘Concluding Observations: UK’ (n 2) .
 ‘Concluding Observations: UK’ (n 2) .
 ibid .