But these are your prodigies

The Commission on Human Rights is cracking down on its own creations

The Commission on Human Rights (CHR) does not recognise the right to education.

Sounds bland, but coming from Katarina Tomasevski, it's a whiplash. The feisty Special Rapporteur on the right to education raised a storm this year when she recommended that her mandate not be renewed. If the Commission on Human Rights refuses to consider education a human rights issue, she pointed out, then it makes no sense having a mandate on the right to education (see interview in this issue). "Ambiguous and under-funded mandates have been created," she charged, "so member States can stand back and watch them fail".

The Special Procedures are the CHR's offspring, so to speak, having been created by CHR resolutions. In that sense, they have had an unusual childhood. The CHR sent them out to report on violations, and when they returned, task completed, the parents didn't want them anymore. They won't toe the line, they talk back at us, the progenitors complain.

And so, the punishment began, not always blatantly, but the implication was clear. The Special Procedures, States have argued from the beginning, are overstepping the line, going to places they have no business in, saying things they are not supposed to. In 1998, the United States lashed out at the Special Rapporteur on extrajudicial executions who had expressed his views on the use of the death penalty by the US. Five years later, attitudes have only hardened. In 2003, Washington did not agree to a request for a visit by the Working Group on Arbitrary Detention to Guantanamo Bay, saying the ICRC was on the job and that the Working Group lacked the competence to address what the US considered law-of-armed-conflict issues, not international human rights matters. It further failed to respond to communications sent by the Working Group regarding four detainees at Guantanamo.

Cuba won't allow the Personal Representative of the High Commissioner Christine Chanet to enter the country. In the interests of transparency, we presume. India has not extended invitations to any of the Special Procedures during the past ten years. Who said democracies have nothing to hide?

Australia, meanwhile, touched a  new low, rejecting the Working Group on Arbitrary Detention's report of its visit to the country in 2002. This, despite the fact that the Human Rights Committee had reached the same conclusions as the Working Group on Australia's mandatory immigration detention system.

The hostility has increased, the reactions have begun to sound more like accusations. This year, John Dugard, Special Rapporteur on Palestine, was accused by Israel of being biased and of having a "political agenda".

And last week, India commented acidly on Special Rapporteur on Torture Theo Van Boven's remark that he was yet to receive a response to his request to visit India. Was the Rapporteur assuming that only by inviting him would India be able to demonstrate its commitment to human rights and democracy, the eminent academic was asked.

The substantive battle against the Special Procedures, however, is being fought in the informal meetings on draft resolutions. The draft resolution this year proposes to expand the scope of the earlier resolution on thematic procedures by including all the Special Procedures. Cuba and the LMG have already expressed their reservations to the expanded scope, the former observing that including both kinds of mechanisms in the resolution was "like mixing oil with vinegar". Sour metaphors apart, Havana also has major reservations regarding the exhortation to States to ensure that persons cooperating with the Special Procedures are not subjected to adverse treatment. It is unclear why Cuba bothers to raise objections in the first place, since it is not about to invite any of the Rapporteurs to the country.

Another concern of the LMG - and Cuba, their comrade-in-arms - is with including references to "independence, impartiality and non-selectivity" in the work of the Special Procedures.

To those unfamiliar with the LMG's devious ways, this may seem innocuous. After all, it was with those prerequisites in mind that the Special Procedures system was devised. However, for the LMG and its African allies in Room XVII, the attacks on the Special Procedures are part of a bigger plan - to weaken and ultimately do away with the Special Procedures system. They have already managed to emasculate the Sub Commission. A direct assault on the Special Procedures system was a natural progression.

Finally, yet another issue on which Asia, Africa, the US, Russia and Australia find themselves agreeing with each other - we should now stop acting surprised at such occurrences - is that term which could only have been devised by someone who loved to scare children: Standing Invitations. Cuba and the LMG have great fun playing with the suggestion, and coming up with innovative - but inadequate - counter-suggestions, such as "[u]rge States to consider welcoming the Special Procedures…". The rest of the bunch, however, yells "Sovereignty!" before they start running. It is as if they expect the Special Procedures to descend, Mars Attack style, hell-bent on invading Earth, which, in Washington, is merely a synonym for the US.

A final bone of contention is the suggestion that the Special Procedures interact more frequently with the Security Council. Cuba and the LMG argue that this goes beyond the scope of the Security Council's mandate which is international peace and security. However, as many observers aver, gross human rights violations have the potential to result in threats to peace and security. The sponsors appear to be working hard on alternative formulations; however, the impact is being felt already. Those attending the informal discussions on the draft resolution on arbitrary detention found that the text of last year's resolution - sponsored by France - encouraging governments to "invite" the Working Group on arbitrary detention had already been watered down in the new draft to "welcome the Working Group", presumably to accommodate not just the LMG and Cuba but also allies such as the US, Australia and Russia.

Despite the obvious hostility, the Special Procedures appear to be holding firm, as they should. As the CHR continues to back down from its responsibilities, it is the Special Procedures - holding up a body that clearly lacks a spine - that inspire hope. Those who heard the Special Rapporteurs, Independent Experts and Chairs of Working Groups last week got a glimpse into what human rights was all about, and were inspired by it. Hope and inspiration, sentiments that take flight the moment you walk into Room XVII. It is time now for the parents to be worthy of their children.

End of impunity

Although combating impunity for Ba'athist human rights violations was not the stated justification of the Coalition's action, it could be a fortunate consequence of the war.

There is, however, a gulf between the US and the rest of the world's democracies in the perception of legitimacy of international justice mechanisms. The current US administration now strongly distrusts the UN and IGOs and has strenuously resisted international input in Iraq that could have provided know-how and other important resources necessary for building institutions capable of carrying out legitimate and effective justice for the past regime's crimes.

One aspect of the criminal accountability process that would have benefited from increased utilisation of international expertise is the protection and forensic exhumation of mass gravesites. In the first months after the end of major military operations, the Office of Reconstruction and Humanitarian Assistance (ORHA, predecessor of the CPA) was under orders to "assist local authorities" in exhumation of gravesites. ORHA did not secure the gravesites, provide forensic teams, or inform Iraqis about planned procedures. Coalition casualness resulted in hurried and unprofessional exhumations by understandably emotional Iraqis. In the process, evidence and the identity of many of the remains was inadvertently destroyed in gravesites near al-Malawil, around Basra, south of al-Hilla, and near al-Birigisia.

Mass gravesites of this kind almost always result from natural disasters or mass atrocities, and will undoubtedly provide key evidence in criminal trials if they are handled properly. After initially bungling the coordination of mass gravesites, the CPA now has an organised strategy that demonstrates the utility of seeking input from the international community. The Coalition estimates there are over 250 gravesites around the country and key sites have been identified that are likely to be related to major incidents of atrocities; such as the 1988 Anfal campaign and the 1991 and 1999 massacres of Shi'a in the south. Swedish, Finnish, Danish and German forensic teams are being employed to process select sites.

When trials of the former regime begin, which quite clearly they must, one of the major concerns is the need to avoid the taint of victor's justice. Under international humanitarian law, all legislation enacted by the interim Governing Council is under the authority of the CPA, including the Statute of the Iraqi Special Tribunal. As a result, the Tribunal will lack the appearance of legitimacy and objectivity to many Iraqis, Arabs and other members of the international community.

The Tribunal Statute fails to strike the proper balance between protecting Iraqi interests and utilising international standards and expertise. While the Statute laudably provides a prominent role for Iraqi law and Iraqis as prosecutors and judges, the role for Iraqi victims needs further clarification.

From the outset, the CPA was strongly encouraged to consult a UN Commission of Experts on international criminal law, as existed for the ad hoc international tribunals and other special courts. Instead, the Tribunal Statute was drafted in a secret and insular process, and contains numerous problematic provisions that should be corrected.

While many of the Statute's provisions are taken from the ICC Statute, several taken from Iraqi Criminal Law are vague or ill-defined and could lead to prosecutorial abuse. A discussion paper by the NGO Redress indicates that the Statute does not explicitly provide for jurisdiction for individual acts of torture, and that the standard of proof for guilt is not specified. Several incorporated provisions of Iraqi criminal law violate international law. For example, the Statute permits the death penalty, coerced confessions, and in some circumstances the exclusion of lawyers during questioning.

Regrettably, the Statute provides only a limited role for international prosecutorial and judicial expertise. A few commentators have suggested there is sufficient capacity within Iraq to pursue and prosecute violations of domestic and international law, but most suggest this is not the case. It has also been argued that applying local justice is consistent with the ICC Statute's principle of complementarity. However, the Rome Statute calls for an objective review of domestic juridical capacity, which has not occurred in Iraq. Prosecutors and judges with experience trying complex international crimes should be given greater roles. Perhaps most importantly, the Special Tribunal should be structured so that it effectuates a transfer of skills and resources to the rest of Iraq's legal system during and after its period of operation.

In addition, a necessary prerequisite to accounting for past crimes and for securing the future rule of law is an overhaul of the Iraqi criminal justice system. Some positive steps have been taken already. The Revolutionary Court, State Security Court, and Special Provisional Court - all instruments of repression under Saddam Hussein's regime - have been disbanded. CPA Order 7 suspends the death penalty, prohibits torture, cruel, inhuman and degrading treatment or punishment, and prohibits discrimination. CPA Order 31(2) suspends provisions of the Iraqi Penal Code and Code of Criminal Procedures that were contrary to human rights standards. The CPA now claims that more than 600 vetted Iraqi judges are adjudicating cases in over 500 Iraqi courts.

Several new instruments of judicial oversight have been created under the Coalition. A Central Criminal Court has been created to prosecute Iraq's most serious offenders, including loyalists to the past regime who have committed crimes against Coalition forces. Prosecution in the court is under amended Iraqi criminal law. CPA Order 15 and Order 35 create bodies with the capacity to review judicial appointments and tenure. Amnesty International has, however, pointed out that eligibility for judicial appointment is not entirely in conformity with the Basic Principles of Judicial Independence, because unmarried or naturalised candidates are discriminated against.

Accountability of Coalition forces

De-Ba'athification of public institutions

African Court: Cause for celebration?

THE entering into force of the African Court on Human and Peoples' Rights ("the African Court") on 25 January 2004 ushers in a hopeful new era for the protection of human rights in the African continent. The Court received its fifteenth ratification on 26 December 2003 from the Union of Comoros. The additional countries which have deposited instruments of ratification or accession are: Algeria, Burkina Faso, Burundi, Côte D'Ivoire, Gambia, Libya, Lesotho, Mali, Mauritius, Rwanda, South Africa, Senegal, Togo, and Uganda.

The creation of the Court stems from the generally perceived ineffectiveness of the African Commission on Human and Peoples' Rights, the only body currently empowered to receive complaints regarding violations of the African Charter on Human and Peoples' Rights . As explained in the Preamble to the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights, the member states of the Organization of African Unity (OAU) believe that the "attainment of the Objectives of the [Charter] requires the establishment of [the Court] to complement and reinforce the functions of the [Commission]."

The Court offers the promise of an authoritative regional juridical body to interpret the rights and guarantees of the African Charter, as well as the possibility of a venue for individual Africans to seek redress of their grievances. However, there are a number of issues that could hamper the Court's effectiveness.

Individual Access to the Court

Individuals and NGOs with observer status before the African Commission may only bring cases if the State Party involved submitted a declaration accepting such competence at the time of ratification (Articles 5(3) and 34(6)). As of 31 March 2004, the Institute for Human Rights and Development in Africa reported that only Burkina-Faso has acceded to such jurisdiction. As the Association for the Prevention of Torture (APT) has commented, in this regard "the African system is fully in line with the procedural law of other human rights systems which also restrict the individual's right of access to international human rights organs." However, the APT further notes "[i]t would have been more respectful of the rights of the individual if, at the very least, it were incumbent upon the State which does not recognize the competence of the Court to make a declaration to that effect". This is particularly true given the additional hurdles that individual complaints must overcome to be heard by the Court.

First, the acceptance of cases lodged by individuals falls to the Court's discretion, even if the State has acceded: "[t]he Court may entitle relevant [NGOs] with observer status before the Commission, and individuals to institute cases directly before it . . ." (Article 5(3)).

Second, in ruling on the admissibility of cases the Court must take into account the guidelines provided to the Commission under Article 56 of the Charter. These requirements include, among others, that no complaints may be submitted anonymously, complaints cannot be "written in disparaging or insulting language directed against the State concerned and its institutions or to the [AU]", and that local remedies must be exhausted "unless it is obvious that this procedure is unduly prolonged."

The merit of these two qualifications remains to be seen. On the one hand, as one commentator has noted, the Court "should not be viewed as a forum for offering individual justice to victims of human rights violations . . . it is by all means impossible. The court can act neither as a forum of first instance, nor as the mandatory court of appeal for all cases. Cast in this role, the court would be paralyzed by a torrential caseload." Instead, the Court should serve the role of taking "those cases that have the potential to expound on the African Charter and make law that would guide African states in developing legal and political cultures that respect human rights."

On the other hand, as APT has noted, as a consequence of the "lack of a significant number of declarations recognizing the Court's competence to examine individual requests, its jurisdiction would basically be reduced to the mere examination of inter-state communications." In this regard, the experience of the Commission is not at all promising; from 1996-2002, the Annual Activity Reports of the Commission do not reveal the existence of a single inter-state complaint. Restrictive individual access coupled with a dearth of inter-state complaints would create an institution that is dead-on-arrival.

Independent judiciary

Amnesty International reports that the Assembly of Heads of State and Government of the African Union ("Assembly"), at its Third Ordinary Session in July 2004, will be making a number of decisions regarding the Court, including the selection of its first eleven judges. The selection of qualified judges and the guarantee of their independence are crucial to the formation of a Court capable of rendering objective opinions that will be respected by State Parties. (see box)

The importance of maintaining the independence of the judges is codified in the Protocol. Article 17 provides several principles to ensure judicial independence: it "shall be fully ensured in accordance with international law"; no judge may hear a case in which he or she has previously taken part; judges will enjoy the equivalent of diplomatic immunity under international law; and judges may not be held liable for decisions or opinions rendered. Article 18 further provides that the position of judge on the Court "is incompatible with any activity that might interfere with the independence or impartiality of such a judge or the demands of the office, as determined in the Rules of Procedure of the Court."

Funding woes

One of the most daunting obstacles to a functioning Court will be ensuring adequate funding from the AU. The statements of the African Commission in its Annual Activity Reports provide an illustration of the seriousness of the funding problems it faces.

The African Commission relies extensively on outside donations to carry out its activities. In its 14th Annual Activity Report (covering 2000-2001), the Commission noted that "[i]n order to complement the limited resources allocated by the OAU, the Commission had to solicit financial and material assistance". Again, in its 15th Annual Activity Reports (covering 2001-2002), the Commission noted that "[i]n order to complement the limited resources allocated by the OAU, the Commission continues to solicit for financial and material assistance."

Clearly, the AU's resources will be stretched even more thinly with the need to fund another major institution. It will therefore be necessary for the international community to continue giving financial support to the institutions of the AU if the Court is to have an opportunity to function properly and to achieve its potential.

'Complementarity'

The foundational steps of the Court are all the more important because it will face further challenges in defining its role in the African human rights system and in creating viable African human rights jurisprudence. As mandated in the Protocol, the Court must find a means of operating in a manner complementary to the Commission in the implementation of the rights and protections of the Charter. While the Protocol does not specifically describe the nature of the complementary role the Court is to play, the contours of its relationship with the Commission can be inferred from the powers granted to it under the Protocol.

Most significantly, the Court possesses enforcement powers that the Commission has been sorely lacking. Under Article 27(1), if the Court finds there has been a violation of a human or peoples' right "it shall make appropriate orders to remedy the violation, including the payment of fair compensation or reparation." In addition, under Article 27(2), if the Court is confronted with a case of "extreme gravity and urgency" it must issue provisional measures it deems necessary to avoid "irreparable harm to persons." While the Court does not possess any independent powers to ensure compliance with its judgments or provisional measures, Article 30 provides that "States parties to the present Protocol undertake to comply with the judgment in any case to which they are parties within the time stipulated by the Court and to guarantee its execution." Furthermore, under Article 31, the Court is to specify "cases in which a State has not complied with the Court's judgment" in its annual report to the Assembly.

The Court's enforcement power amounts to little more than "naming and shaming". If  recalcitrant states fail to heed the judgments of the Court, the ability of the Assembly to pressure states into complying with Court judgments will be of critical importance. This, however, is a flaw shared by other regional courts.

Fortunately, the Court does not have the same restrictive confidentiality requirements faced by the African Commission. Under Article 59 of the Charter, "[a]ll measures taken within the provisions… of the Charter shall remain confidential until such a time as the [Assembly] shall otherwise decide." The lack of such a prohibitive restriction on the Court should result in much greater transparency in the interpretation of the provisions of the Charter as well as its decisions. Indeed, Article 29 of the Protocol provides that judgments "shall be transmitted to the Member States of the OAU [AU] and the Commission" as well as the Council of Ministers.

The African Court has the potential to serve as a means of improving both the protective and interpretive mandates of the African Commission, which should leave the Commission to focus on its promotional mandate, including encouraging States to incorporate rights guaranteed under the Charter into their domestic legal systems. The Court's ability to give transparent and legally binding judgments should make it a more effective mechanism for protecting rights under the African Charter than the African Commission has proved to date, provided that issues such as judicial independence, admissibility of individual complaints and funding are addressed according to the spirit of the Court's Protocol.

THE complex political history of the nation of Tajikistan, the smallest and poorest of the former Central Asian Republics, is as rough as the geography of the Pamir Mountains themselves. The mountainous landscape that dominates the country has a history of bringing groups together and pushing others apart. The country was shaken by a civil war from 1992 to 1997, in which between 60,000 and 100,000 people were killed and the economy was crippled. A peace agreement between the communist-led government and the United Tajik Opposition was reached in 1997 and has enabled the country to move toward its current state of stability. However, the country remains largely in transition from an authoritarian, highly-centralised Soviet state to a democratic society and a market economy.

Sharing a 1200-kilometre border with Afghanistan, Tajikistan has been called on to play a new role in the "war against terrorism", and has attracted more international funding from the United States and Europe. However, the international community ought to exercise caution because although Tajikistan is currently enjoying internal stability, the country is headed towards a crisis. President Emomali Rakhmanov's increasing control over state politics, coupled with Tajikistan's precarious economic situation, have the potential to destabilise Tajikistan and create larger problems for the entire region.

The Role of the OHCHR

In March 2003, the then Deputy High Commissioner for Human Rights - now Acting High Commissioner - Mr. Bertrand Ramcharan, visited Tajikistan as part of a Central Asian tour. While in Tajikistan, Mr. Ramcharan addressed various human rights issues, calling upon the government to submit outstanding reports to UN treaty bodies, to enhance the protection of human rights by law enforcement officials and to provide further support for the OHCHR's regional project for Central Asia. The larger goal of the official visit was to "enhance dialogue and technical cooperation" between Tajikistan and the OHCHR.

The regional project itself is an attempt by the OHCHR to further engage the five Central Asian republics by providing greater access to education with respect to human rights, democracy, civic education and the rule of law, establishing national and regional dialogues and networks amongst policy makers, experts, educators and the international community, and to create an OHCHR Regional Advisor who can ensure a "high level of human rights expertise…from a non-adversarial source." The OHCHR's appointed advisor, Professor Rein Mullerson, arrived in Kazakhstan on 9 March 2004.

Although the Deputy High Commissioner's visit and the arrival of Professor Mullerson represent steps taken by OHCHR to enhance dialogue and cooperation with Tajikistan (and Central Asia in general), it remains evident that the upper echelons of the Tajik Government are more concerned with perpetuating their own rule than ensuring the fundamental human rights of their citizens.     

Government Shake-up

Opposition groups and Rakhmanov's own political coalition are already gearing up for the elections scheduled for 2005. Two political parties, the Democratic Party and the Social Democratic Party, formed an election bloc in late 2003 for the upcoming elections. This new coalition is significant in that it is the first new election bloc since the 1997 peace accord. On 12 March 2004, four members of the Taraqqiyot opposition party began a hunger strike to protest the government's refusal to register their organisation, and a recent attempt was made by a group of parliamentarians from the Islamic Renaissance Party (IRP) and the Communist Party to reform the laws that govern the country's electoral process. Although these recent developments demonstrate the desire for change within Tajikistan, political pluralism seems distant when one considers Rakhmanov's recent government shake-up, and the use of criminal prosecutions to remove political rivals.

On 12 January 2004, the deputy leader of the IRP, Shamsiddin Shamsiddinov, was sentenced to 16 years in prison for illegally crossing the border, polygamy, and involvement with an armed criminal group during the Tajik civil war. Shamsiddinov's trial was completely closed, and fears have been expressed that he has been subjected to torture since being detained.

The extradition of the former Interior Minster of Tajikistan, Yakub Salimov, was approved by the Russian government on 24 February 2004. He has been charged with conspiring against the President. The Russian government also detained Khabibullo Nasrulloev, who was also formerly a member of the Tajikistan government, in August 2003 on charges of murder and crimes against the state. Nasrulloev and his son, who was also arrested, have applied for political asylum in Russia.

On 19 January 2004, Rakhmanov replaced the country's Deputy Prime Minister and the Director of State Broadcasting and Statistics, and on 26 January Rakhmanov reorganised the Presidential Guard by removing political ally and guard commander Lt. Gen. Ghaffor Mirzoyev. Rakhmanov has also recently replaced the Head of the State Television and Radio Committee, the new chief editor of the PDP party's newspaper, Minbar-I Khalq, and the head of the state owned Khovar news agency.

According to the Tajik government, these new appointments represent an attempt to fight and curtail government corruption. However, the timing of Shamsiddinov's arrest and the government shake-up raises questions regarding the true motivations behind these actions. Control over broadcasting and news sources represents control over information. Control over the presidential guard solidifies presidential control and tightens military action, reducing the risk of possible coup attempts.

At this point, one can only speculate over the possible motivations behind the recent government shake-up. However, the control it grants Rakhmanov over his power base and the larger political process in the lead-up to the upcoming elections is a cause for serious concern.

Crackdown on Free Speech

Similar concerns have been raised over the amount of control the government exercises over the independent media. The National Association of Independent Media of Tajikistan, an independent Tajik organisation, recorded one hundred possible media-related rights violations in 2003. In late December 2003, the government stopped the distribution of two papers - Nerui Sokhan and Ruzi Nav - known for their critical coverage of the government. Although the government closed both papers on the grounds of tax evasion, various sources argue that the move was politically motivated. The editors of the two papers see the government's actions as an attempt to close or silence publications critical of the President and state authorities. The government also blocked access to an opposition news website prior to the elections in 2003.

The use of harassment and intimidation by state authorities to force journalists' compliance is well documented, and self-censorship is common. Those who cross the official line face criminal charges and uncertain punishment. In October 2002, three young journalists were temporarily conscripted into the army's communication department for their role in producing a documentary critical of forced army conscription at a journalist workshop.

The main problem with respect to media freedom is the government's use of official means (i.e. taxation, registration, etc.) to suppress those who are outspoken. A significant example of this is the government's use of official registration requirements to obstruct the registration of the country's first independent radio station, Asia Plus. The station had to wait four years until their application for registration was officially approved. Another example is the state's harassment of the newspaper Nerui Sokhan for not providing details of where the paper was printed. Papers that do not use state-run printing houses face an uphill battle, and new legislation passed in November 2003 makes newspapers liable for printing any information considered to harm national security. Unfortunately, such ambiguous legislation opens the door for abuse in a country like Tajikistan. 

Precarious Balance

It appears that as long as the country remains politically stable in the short term, Rakhmanov's treatment of, and control over, political opposition groups will remain largely overlooked by the international community. The lack of political and economic reform within Tajikistan is driven in part by the international community's reliance and acceptance of short-term stability. Such reliance, through accepting President Rakhmanov's control over state politics and Tajikistan's economic dependence in the short term, has the potential to further destabilise Tajikistan.

There is no doubt that the balance of stability and reform is a delicate process, one that Tajikistan and the international community should approach with caution. However, while the international community assists Tajikistan in its transition from humanitarian-based assistance to larger-scale development, it should pay close attention to the political maneuvering of Rakhmanov as Tajikistan approaches its next election. Future aid to the Rakhmanov regime should be tied to genuine reform and serious human rights improvements. It is evident that stability remains a double-edged sword in Tajikistan, but silence by the international community should not be an option.

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RIGHT TO DEVELOPMENT

When the poor are left behind

IN 1995, the Government of Egypt noted in the introduction to its National Report to the World Summit on Social Development: "Social development with all its economic, cultural and political aspects takes precedence in Egypt over other concerns and is given top priority owing to numerous important factors. Since the Declaration on the Right to Development, development has become a universal, inalienable and integral human right. In fact, it is the only option for developing countries including Egypt to overcome problems caused by decline in economic growth rates. It is also the best solution to eliminate core social issues, namely ignorance, poverty, disease and their consequences. Therefore, social development has become the only legitimate cause to adopt in order to achieve progress and prosperity for the future". But, do the facts on the ground bear out Egypt’s claim? The short answer is no.

The right to development includes three components: (1) the expansion of all human rights; (2) participation and accountability in development policy; and (3) the absence of trade-offs between rights. The progressive realisation of rights is assessed in light of existing resources and the capacities of governments. Thus, a poor country does not fulfil the right to development not because it is poor per se but if, given existing resources, a higher level of enjoyment of human rights could have been achieved with an alternative policy without sacrificing any rights. In other words, the right to development approach calls for governments to judge the outcome of development policy in terms of human development rather than strictly in terms of economic growth.

After years of slow growth between 1987 and 1995, the Egyptian economy rebounded in the late 90s. It is in this context of higher economic growth that we analyse the performance of Egypt on the right to development. The first task is to question human development indicators. It is important to scrutinise aggregate indicators on performance for misreporting and discrepancies. For example the fact that, in 2001, according to UNDP's Egypt Human Development Report 2003, 100 percent of the urban population and 99 percent of the rural population is held to be covered by healthcare services is highly questionable. But we also have to look more closely at indicators of trends at the local and regional levels in order to assess the right to development.

First, it is clear that poverty declined as a whole in the second half of the 1990s. Overall indicators of performance in reducing poverty may however hide important regional and sectoral differences. It is on those differences in the prevalence of poverty that we should focus our attention. El-Laithy, Lokshin, and Banerji (2003), in a World Bank working paper, show that, according to a variety of poverty measures, most of the poor are concentrated in Upper Egypt - a disproportionate amount considering the population of the region. The lowest level of poverty is found in urban areas, and especially the Metropolitan area. While the Lower region experienced both an increase in expenditures and a reduction of inequality, the Upper region, in the period 1995-2000, was marked by a drop in per capita expenditure and a worsening of inequality. In the Metropolitan region rising per capita expenditures reduced poverty but failed to reduce inequality. Overall, the authors conclude, decreasing poverty in the Lower and Metropolitan regions masks increasing deprivation in Upper Egypt.

These findings are consistent with the result of surveys conducted in 1997 and 1999 by the International Food Policy Research Institute (2002) that showed declining household consumption, especially in rural Upper Egypt. The findings are corroborated by the 2002 Poverty Reduction in Egypt report co-authored by the World Bank and the Ministry of Planning. The report also notes that the urban-rural gap in indoor access to drinking water and a widening gap in access to sewage systems driven mainly by widening gaps in Upper Egypt.

Has the poverty reduction strategy of the government been adequate? First, it is important to note that the prevalence of poverty in every region is affected by the reliance of the poorest on government employment. Richard Adams (2002), a researcher at the World Bank, shows that, in rural areas, non-farm income, of which government employment is the largest part, is the central factor in reducing inequality. In its 1997 Country Assistance Strategy for the Arab Republic of Egypt, the World Bank already noted (as did a previous World Bank working paper of 1985) that the primary social safety net had been government employment. However, as Adams notes, this policy has limits when public services are already overextended and the budget deficit enlarges. In those circumstances Adams advises that Egypt put more emphasis on unskilled labour in order to improve the well-being of the poorest rural households and decrease poverty. In the end, the literature indicates that Egypt's policy for reducing poverty is unsustainable and that soon the country could face a major social crisis. 

In addition, poverty levels, as calculated by the authors are positively affected by child labour. Since the various authors do not measure the attainment of rights directly but instead rely on money income or expenditures, the wages brought home by children working in agriculture actually improves the picture on poverty. Human Rights Watch (2001; HRW) points to the continuing use of over one million children between ages 7 and 12 in agricultural cooperatives, and documents especially their role in cotton pest management. Despite adopting the Child Law in 1996, the Government of Egypt has not taken effective measures to enforce it in agricultural cooperatives. HRW notes that children employed in removing cotton egg worms are frequently subjected to maltreatment and exposure to toxic pesticides. This state of affairs is even more deplorable when we consider the fact that agricultural cooperatives are effectively under the control of the State and managed by public servants.

Furthermore, World Bank's Egypt Structural and Social Review (2001) notes: "In general, health and education indicators present a mixed picture of the quality of life in Egypt compared to other low income countries". For example, in 2001, the literacy rate in Egypt was 56.1 percent as opposed to an average of 85.7 percent for other middle income countries. It is important to note, however, that both health and education expenditures have risen as a share of GDP throughout the 1990s. And aggregate health indicators show steadfast improvement from 1990 to 2001. But, Ahmed Gamal (2003) of the Egyptian Center of Economic Studies argues that increasing per capita expenditures and improved access hide disparities in provision, poor quality of service and inefficiencies in reaching the poor. First, health expenditures as a percentage of GDP do not compare well with other countries at similar levels of development - in 2000, 3.8 percent of Egypt's GDP went to healthcare against 5.3 percent countries with similar income. Moreover, health expenditures are, according to the World Bank, skewed toward expensive curative diseases services rather than communicative diseases that predominately affect the poor. Second, overall increases in health expenditures are affected by the increasing proportion of private provision and private financing of healthcare. The effect of greater reliance of the private sector in health threatens access of the poor to quality healthcare.

This assessment is corroborated by the detailed analysis of Rannan-Eliya, Blanco-Vidal and Nandakamar (2000) who note in their USAID sponsored Partnership for Health Reform working paper: "Overall, the distribution of combined health expenditures favours the higher income groups. This is a consequence of a distribution of private health expenditures which is skewed towards the highest income groups, and a distribution of public health expenditures which moderately favours the higher income groups." Moreover, they show that the geographical allocation of health expenditures also largely favours richer regions. Finally, they note that health expenditures consistently exhibit male-bias, in large part due to imbalances arising out of the Health Insurance Organisation which is restricted to the urban formal sector workforce that pays a contribution - it is also partly financed by public expenditures. These inequities are inconsistent with the right to development.

For both health and education expenditures, Gamal and World Bank reports concur that there is also a clear lack of efficiency. Evidence of the high teaching to non-teaching staff ratio and the low occupancy rate of hospital beds point in the same direction: an overemphasis on overheads in education, and investment in healthcare, indicating an increase in public expenditures has no effect on reducing poverty in Egypt. Higher public expenditures should now go into increasing quality to have any effect in increasing the well-being of the poorest.

In this context, it is not surprising that the World Bank notes: "Allocation of public expenditures on health and education could be improved to increase delivery to low income groups and reduce regional variation."

While the Government of Egypt was so intent on investing in large hospitals it neglected more crucial investments in reducing poverty. Although Egypt has avoided outright privatisation of water services, it has allowed private distribution in the many marginalised urban areas which are not covered by the public system. Alexandria University's Samia Gala Saad (2003) notes that water sold by private vendors is ten times more expensive than public water and often of poor quality. He further notes that women are particularly affected by the problem since they manage most household tasks. The poor quality of water also poses serious threats to health, particularly of children.

The UNDP's Egypt Human Development Report 2003 highlights innovative practices in terms of participation adopted by the Egyptian government. In particular, it is worth noting the achievements of the Integrated Rural Development Program (Shorouk), which since its inception in 1994, has put to the fore grassroots participation in the design, implementation, and monitoring of development programs. However, those initiatives suffer from lack of training of administrative staff, lack of funding, and diversion of resources by powerful individuals. Moreover, it is unclear how accountable the government can be when, as noted by the World Bank (2001), its budgeting process is organised in such a way that it is impossible to prioritise, budget transparency is limited at all stages, and the budget is not related to outcomes.

In other words, participation has been introduced at the margins while government accountability on development policy is limited. With a relatively weak civil society and a political party system dependent on the State, Egypt has a long way to go to satisfy the criteria of participation and accountability with respect to the right to development. In spite of its professed commitment to the right to development, the record of Egypt is disappointing, for several reasons. First, poverty has worsened in the Upper region in spite of increased economic growth at the national level.

Two, income poverty is artificially alleviated by substantial and unsustainable government employment, thereby questioning the capacity of the government to fight poverty presently and in the future, and by child labour in agriculture.

Third, the provision of education and healthcare is unequally shared along income, regional, and gender lines, and is being weakened from an already low point of efficiency.

Finally, participation will not be meaningful until the government improves budget transparency and creates the conditions for a vibrant and informed civil society.

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RIGHT TO DEVELOPMENT

Rights approach: ‘Duty bearer is the key’

INTERVIEW

Arjun Sengupta

The Independent Expert on the right to development, ARJUN SENGUPTA, speaks to HUMAN RIGHTS FEATURES… 

Human Rights Features (HRF): A main concern has been with the notions of equity and social justice… I am not too sure where it stands in the report.

Arjun Sengupta (AS): I think the issues of equity and social justice are at the core of human rights. If somebody asks me what is the principal message of a human rights approach to any activity, [it] is that it talks about equity and social justice. And that is the fundamental point. So when we talk about the human rights-based [approach], or human rights in development, what we really mean is a process of development that guarantees equity and justice. And this is the basis from which we start. (…)You have to have the standard of human rights based on equity, based on participation, accountability, and non-discrimination, which are all elements of the package. This is a very central part of the whole [issue].

HRF: But how far do you bring equality in and notions of distributive justice?

AS: Now as economists, we do not talk about equality in the sense of equal income… that is the result. It's basically equality of opportunity. And this is… now… in terms of the language of Sen - that Amartya Sen has introduced. It is capability. Every individual must have equal opportunity to build up capability, to build up the freedom to choose. Capability is nothing but the freedom to choose. And that is where equality comes in. Equality of what? Equality of opportunity.

HRF: So, does that mean there is no right to redistributive policy? In terms of the analysis of social policy, where does the right to development make a difference?

AS: I am glad that you mention that. The rights are to be obtained… objective. Those are the things we want to do. Policies are instruments. You have a right to certain advantages, certain privileges, certain freedoms, and that is the essential approach to a rights-based development. Development is seen as fulfilling certain freedoms, certain privileges, certain special powers given to people. This is, in Sen's language, capability. Obligation is part of that. The obligation part is a development policy. The policies are obligations. You don't make policies as a right. Policies follow from the fulfillment of right. Now, the right to development implies a policy of development where distributive justice is an essential condition. You cannot have a fulfillment of human rights if the policy is not based on principles of distributive justice.

HRF: Another issue of concern - when you mention the responsibility of the international community. Then we look at the international financial institutions. And in the World Bank and the IMF, it is not about the international community, it is about the donors. Those who have a say on the decisions in those institutions are those that provide money. Is there a difference between calling on the international community to uphold the right to development and calling on donors?

AS: Donors would be part of the international community. The whole notion of the rights approach is that there are duty bearers…and the duty bearers who have obligations to have the right kind of development policy. Among the duty bearers, there are different kinds. Some duty bearers are directly involved. Some duty bearers can actually form policies, like states, within the restrictions in which the individual lives. But there are some duty bearers - those we call the international community - whose actions, whose policies, have an enormous impact. Among the duty bearers there are different [kinds] - IMF, World Bank and others are members of the international community whose policies have a tremendous impact on individual developing countries. But also multinationals,  they have also a major role in this. Donor countries directly or donor countries through the IMF and the World Bank…that is a category of agents. So, we have to identify the duty-bearer according to the duty and according to the policy that they should follow.

So when we talk about the international community, we talk about the whole gamut, all the different agents, of which some agents are more important, not because they are more important than any other philosophically, but because their actions have more impact. In our developing countries framework, particularly those who are not dependent on the IMF-World Bank, maybe international investors are much more important because foreign investment now has become a major source of growth… (…)

(The State) is the primary duty bearer because it formulates laws, it formulates policies. But the others are equally, and sometimes quite much more than the state, responsible. Because the state does not have the autonomy [any longer]. Say, in the matter of trade, it is the international regime which is much more important than the individual countries.

HRF: There is the argument that the South was underdeveloped by the North. So now there is an obligation upon the North to compensate for the underdevelopment of the South.

AS: I do not say that. Because that is too simplistic, unidirectional. The world is complex. I mean it is true that there are histories - many countries in the South were exploited. But that is not the full story. These countries themselves had governments that, at the sources of power, were responsible for violations of human rights. To say that is only unidirectional, it is not capturing the whole thing.

What is more important is when you are actually trying to change you must know who should play what role. I am not interested in identifying who has done what in the past. I am intere