Human rights impact assessments

Netherlands Quarterly of Human Rights

Volumn 27, Issue 2, 2009, Pages 139-166

  de Beco, Gauthier ^a  

^a UNIVERSITÉ CATHOLIQUE DE LOUVAIN   (Belgium)

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EID: 74849115872     PISSN: 01693441     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (91)

1. See, in general, Vanclay, F. and Bronstein, A. (eds), Environmental and Social Impact Assessment, John Wiley & Sons, Chichester, 1995.
2. Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment, 27 June 1985. The Directive was amended in 1997: Council Directive 97/11/ EC amending Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment, 3 March 1997.
3. According to the International Association of Impact Assessment (IAIA), human rights are one of the core values to be considered by social impact assessments. See IAIA, Social Impact Assessment: International Principles, IAIA Special Publications Series No. 2, IAIA, Fargo, 2003, at p. 5
4. Aim for Human Rights, Health Rights of Women Assessment Instrument, Aim for Human Rights, Utrecht, 2008. This is an updated version of the instrument. The last version dates back from 2006, and an earlier draft version from 2005.
5. Bruins, M. and Van Erkel, J., Het opheffen van tippelzones in grote steden en het recht op gezondheid van vrouwen [The closing down of street prostitution areas in large cities and the right to health of women], Johannes Wier Stichting, Amersfoort, 2005.
6. Refugee Organisations in the Netherlands (VON), Female Genital Mutilation in the Netherlands, a Matter of Human Rights? The Policy on Combating Female Genital Mutilation Assessed according to Human Rights Obligations, VON, Amsterdam, 2007.
7. Jenkins, V. and Rainey, B., "Moving into the Mainstream: An Analysis of Regulatory Responses to Impact Assessment in Equality and Sustainable Development', Northern Ireland Legal Quarterly, Vol. 58, No. 1, 2007, pp. 78-107
8. McCrudden, C., 'Mainstreaming Human Rights', in: Harvey, C. (ed.), Human Rights in the Community: Rights as Agents for Change, Hart Publishing, Oxford, 2005, pp. 9-28, at pp. 20-21
9. McKeever, G. and Ni Aolain, F., "Thinking Globally, Acting Locally: Enforcing Socio-Economic Rights in Northern Ireland', European Human Rights Law Review, No. 2, 2004, pp. 158-180, at pp. 170-172.
10. Wubben, A., Violations of Human Rights in the Netherlands. HeRWAI Analysis on the Consequences of the Implementation of the Draft Bill, Modification Health Care Insurance Law (31 249), on the Access to Obstetrician Care for Uninsured and Undocumented Pregnant Migrants in Amsterdam, Women's Global Network for Reproductive Rights, Amsterdam, 2008.
11. Humanist Committee on Human Rights (HOM), Legal Protection at Risk-the Cumulative Impact of Anti-terror Legislation, HOM, Utrecht, 2005.
12. The Committee of the Rights of the Child requested that States set up a "continuous process of child impact assessment (predicting the impact of any proposed law, policy or budgetary allocation which affects children and the enjoyment of their rights) and child impact evaluation (evaluating the actual impact of implementation)'. See Committee on the Rights of the Child, General Comment No. 5, General measures of implementation of the Convention on the Rights of the Child (arts. 4, 42 and 44, at para. 6), UN Doc. CRC/GC/2003/5, 3 October 2003, at para. 45.
13. See, inter alia, Committee on the Rights of the Child, Concluding Observations: The Netherlands, UN Doc. CRC/C/15/Add.114, 26 October 1999, at para. 13; and Committee on Economic, Social and Cultural Rights, Concluding Observations: United Kingdom of Great Britain and Northern Ireland, UN Doc. E/C.12/1/Add.19, 4 December 1997, at para. 33.
14. See ECHR, 8 July 2003, RJD 2003-VIII, Application No. 36022/97, at para. 128.
15. See ECHR, 2 November 2006, unpublished, Application No. 59909/00, at para. 83.
16. See ECSR, 7 November 2003, Complaint No. 13/2002, unpublished, at para. 53.
17. See Hunt, P. and MacNaughton, G., "Impact Assessments, Poverty and Human Rights: A Case Study Using the Rights to the Highest Attainable Standard of Health' (Paper submitted to UNESCO), 31 May 2006, at p. 11, www.humanrightsimpact.org/fileadmin/hria_resources/unesco_hria_paper.pdf
18. Landman, T., Studying Human Rights, Routledge, London, 2006, at pp. 127-128.
19. Human European Consultancy and Migration Policy Group, "Comparative Analysis of Existing Impact Assessments of Anti-discrimination Legislation. Mapping Study on Existing National Legislative Measures-and their Impact in-Tackling Discrimination outside the Field of Employment and Occupation on the Grounds of Sex, Religion or Belief, Disability, Age and Sexual Orientation', December 2006, VT/2005/062, at p. 7, http://ec.europa.eu/employment_social/fundamental_rights/pdf/pubst/stud/mapstrand2_en.pdf.
20. See, Annex I. Australia also assesses the human rights impact of its mental health legislation. See Watchirs, H., Application of Rights Analysis Instrument to Australian Mental Health Legislation. Report to Australian Health Ministers' Advisory Council Mental Health Working Group, Commonwealth Department of health and Age Care, Canberra, 2000.
21. See de Beco, G., "National Human Rights Institutions in Europe', Human Rights Law Review, Vol. 7, No. 2, 2007, pp. 331-370, at pp. 352-354.
22. Hiebert, J., "Parliament and the Human Rights Act: Can the JCHR Help Facilitate a Culture of Rights?', International Journal of Constitutional Law, Vol. 4, No. 1, 2006, pp. 1-38
23. at p. 18. Since the Joint Committee on Human Rights (which is not a national human rights institution) is competent for assessing the human rights compliance of draft legislation in the UK, the recently established Commission for Equality and Human Rights has not been given this mandate. The Equality Act 2006, however, rather confusingly provides in Section 11(2)(d) that the Commission may "advise central or devolved government about the likely effect of a proposed change of law'.
24. European national human rights institutions proposed to develop an impact assessment model based on the jurisprudence of the European Committee of Social Rights. See Athens Declaration 2006 (adopted at the Fourth Round Table of European National Human Rights Institutions for the Promotion and Protection of Human Rights and the Council of Europe Commissioner for Human Rights, 27-28 September 2006), 20 November 2006, CommDH/NHRI(2006)10, at para. 4.
25. See Humanist Committee on Human Rights (HOM), "Reinvigorating Human Rights in the Barcelona Process': Using Human Rights Impact Assessment to Enhance Mainstreaming of Human Rights (Paper presented at the occasion of the Fifth Mediterranean Social and Political Research Meeting, 24-28 March 2004, Florence), HOM, Utrecht, 2004, at p. 13.
26. Jenkins and Rainey, at p. 78.McCrudden, (note 7), at p. 14
27. McCrudden, C., Benchmarks for Change: Mainstreaming Fairness in the Governance of Northern Ireland. A Proposal, Committee on the Administration of Justice, Belfast, 1998, at p. 11.
28. De Schutter, O., 'Mainstreaming Human Rights in the European Union', in: Alston, P. and De Schutter, O. (eds), Monitoring Fundamental Rights in the EU. The Contribution of the Fundamental Rights Agency, Hart Publishing, Oxford/Portland, 2005, pp. 37-72, at p. 47.
29. See Sano, H.-O., "Good Governance, Accountability and Human Rights', in: Sano, H.-O and Alfredsson, G. (eds), Human Rights and Good Governance. Building Bridges, Martinus Nijhoff Publishers, The Hague, 2002, pp. 123-146
30. Sen, A., Un nouveau modèle économique. Développement, Justice, Liberté [A new economic model. Development, justice, liberty] (translation: M. Bessières), Editions Odile Jacob, Paris, 1999, at p. 62.
31. McCrudden, Benchmarks for Change: Mainstreaming Fairness in the Governance of Northern Ireland. A Proposal, Committee on the Administration of Justice, Belfast, 1998, , at p. 17.
32. OHCHR, Draft Guidelines: A Human Rights Approach to Poverty Reduction Strategies, UN, Geneva, 2002.
33. Jenkins and Rainey, (note 7), at p. 93.
34. Hunt and MacNaughton, (note 15), at p. 31.
35. O'Keefe, E. and Scott-Samuel, A., "Human Rights and Wrongs: Could Health Impact Assessment Help?', Journal of Law, Medicine & Ethics, Vol. 30, No. 4, 2002, pp. 734-738
36. Douglas, M. and ScottSamuel, A., "Addressing Health Inequalities in Health Impact Assessment', Journal of Epidemiology and Community Health, Vol. 55, No. 7, 2001, pp. 450-451
37. Gostin, L. and Mann, J., "Towards the Development of a Human Rights Impact Assessment for the Formulation and Evaluation of Public Health Policies', Health and Human Rights, Vol. 1, No. 1, 1994, pp. 58-80.
38. See Human European Consultancy and Migration Policy Group, (note 16).
39. Scotland's Commissioner for Children and Young People (SCCYP), Children's Rights Impact Assessment: The SCCYP Model, SCCYP, Edinburgh, 2006; Swedish Ministry of Health and Social Affairs and Swedish Ministry of Foreign Affaires, Child Impact Assessment. Swedish Experience of Child Impact Analyses as a Tool for Implementing the UN Convention on the Rights of the Child, Swedish Ministry of Health and Social Affairs and Swedish Ministry of Foreign Affairs, Stockholm, 2001.
40. th meeting of chairpersons of the human rights treaty bodies and the seventh Inter-Committee Meeting of the human rights treaty bodies), UN Doc. HRI/MC/2008/3, 6 June 2008, at para. 10. This idea is outlined in more details in Malhotra, R. and Fasel, N., Indicators for Monitoring the Implementation of Human Rights-A Conceptual Framework (Background paper prepared for the OHCHR expert consultation on indicators for monitoring compliance with international human rights instruments, Geneva, 29 August 2005), upublished, at pp. 12-15 (on file with the authors).
41. The OHCHR identified the major attributes of the human rights for which it created relating indicators. See UN Doc. HRI/MC/2006/7, (note 34), Annex; Chairpersons of the Human Rights Treaty Bodies and Inter-Committee Meeting of the Human Rights Treaty Bodies, Report on Indicators for Promoting and Monitoring the Implementation of Human Rights, (note 34), Annex 1.
42. The OHCHR identified the major attributes of the human rights for which it created relating indicators. See UN Doc. HRI/MC/2006/7, (note 34), Annex; Chairpersons of the Human Rights Treaty Bodies and Inter-Committee Meeting of the Human Rights Treaty Bodies, Report on Indicators for Promoting and Monitoring the Implementation of Human Rights, (note 34), Annex 1.
43. See Committee on Economic, Social and Cultural Rights, General Comment No. 14, The right to the highest attainable standard of health (art. 12), UN Doc. E/C.12/2000/4, 11 August 2000, at para. 12
44. Bruins and Van Erkel, (note 5), at p. 19.
45. Wubben, (note 8). The number was brought to 100 percent, thanks to the lobby of the Women's Global Network of Reproductive Rights.
46. Regarding economic, social and cultural rights, the obligations provided for in Articles 2(2) and 3 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which relate to non-discrimination, are, in contrast to those falling under Article 2(1) of the Covenant, not subject to progressive realisation. In addition, Article 26 of the International Covenant on Civil and Political Rights (ICCPR), which also prohibits discrimination, can be relied upon autonomously from the other provisions of the Covenant-which means that no violation of latter is required to establish its violation-and is moreover not limited in scope to the rights protected by that Covenant. See Human Rights Committee, General Comment No. 18, Non-discrimination, UN Doc. HRI/GEN/1/ Rev.6, 10 November 1989, at para. 12. Finally, the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC) apply in the same way to both civil and political and economic, social and cultural rights
47. Equality is an important issue in social impact assessments. See Burdge, R. and Vanclay, F., "Social Impact Assessment', in: Vanclay and Bronstein (eds), (note 1), pp. 31-65, at p. 57; and IAIA, , at p. 3. It is also an essential part of health impact assessments. See Douglas and Scott-Samuel, at pp. 450-451.
48. Categories to be considered are gender, race, ethnicity, and age, but also, depending on the policy under examination, rural-urban, region, income, disability, language, nationality, sexual orientation, and so on. These categories might have to be disaggregated on their turn, since people sometimes belong at the same time to different categories and are as a result disadvantaged several times by the same policy, a phenomenon called multiple discriminations.
49. See Bruins and Van Erkel, at pp. 6 and 20.
50. Fredman, S., "Human Rights Transformed: Positive Duties and Positive Rights', Public Law, Autumn 2006, pp. 498-520, at p. 510.
51. Wubben, op.cit. (note 8).
52. rd ed., University of Pennsylvania Press, Philadelphia, 2006, pp. 201-211, at p. 207; Hunt and MacNaughton, loc.cit. (note 15), at p. 14; Burdge and Vanclay, loc.cit. (note 41), at pp. 47-48; Douglas and Scott-Samuel, loc. cit. (note 31), at pp. 450-451; and Gostin and Mann, loc.cit. (note 31), at pp. 63-69.
53. Bruins and Van Erkel, op.cit. (note 5), at p. 19.
54. Refugee Organisations in the Netherlands (VON), op.cit. (note 6), at p. 5.
55. See Fredman, loc.cit. (note 44), at pp. 516-517.
56. Jenkins and Rainey, loc.cit. (note 7), at p. 89.
57. McCrudden, op.cit. (note 23), at p. 14.
58. As mentioned earlier, the government in the UK has the obligation to make statements on the human rights compliance of draft legislation. It has been suggested to precede the HRIAs by initial impact assessments to determine the human rights issues to be dealt with by them. See JUSTICE, Auditing for Human Rights Compliance. Developing a Human Rights Approach to Parliamentary Scrutiny, JUSTICE, London, 1991, at pp. 3-4.
59. Landman, op.cit. (note 15), at p. 127; Humanist Committee on Human Rights (HOM), Human Rights Impact Assessment in Practice. Conference Report-Text Version, HOM, Utrecht, 2007, at p. 26; and idem, Matching Practice with Principles. Human Rights Impact Assessment: EU Opportunities, HOM, Utrecht, 2002, at p. 14.
60. Humanist Committee on Human Rights (HOM), Matching Practice with Principles. Human Rights Impact Assessment: EU Opportunities, op.cit. (note 53), at pp. 15-16.
61. Such restrictions must be established by law, serve specified legitimate aims, and be proportionate to these legitimate aims.
62. Humanist Committee on Human Rights (HOM), Legal Protection at Risk-the Cumulative Impact of Anti-terror Legislation, op.cit. (note 9).
63. McCrudden, op.cit. (note 23), at p. 15; Hunt and MacNaughton, loc.cit. (note 15), at p. 40; and McKeever and Ni Aolain, loc.cit. (note 7), at p. 172.
64. Ortolano, L. and Shepherd, A., "Environmental Impact Assessment', in: Vanclay and Bronstein (eds), op.cit. (note 1), pp. 3-30, at p. 14. As a result, when policy-makers fear that HRIAs might show that a policy should not be adopted, they might decide to quit or even not start a HRIA.
65. Goodwin, R., 'Laundering Preferences', in: Elster, J. and Hylland, A. (eds), Foundations of Social Choice Theory, Cambridge University Press, Cambridge, 1986, pp. 75-101, at pp. 86-87.
66. Habermas, J., Morale et Communication [Moral Consciousness and Communicative Action] (translation: C. Bouchindhomme), Les Editions du Cerf, Paris, 1986, at p. 111.
67. Gutman, A. and Thomson, D., Democracy and Disagreement, Harvard University Press, Cambridge, 1996, at pp. 17-18. Amy Gutman and Dennis Thompson identify two principles regulating the content of agreements: basic liberty and opportunity.
68. Cohen, J., 'Deliberation and Democratic Legitimacy', in: Hamlin, A. and Pettit, P. (eds), The Good Polity. Normative Analysis of the State, Basil Blackwell, Oxford, 1989, pp. 17-34.
69. Andreassen, B. and Sano, H.-O., What's the Goal? What's the Purpose? Observations on Human Rights Impact Assessment, Norwegian Centre for Human Rights, Oslo, 2004, at p. 18.
70. Hunt and MacNaughton, loc.cit. (note 15), at p. 44.
71. Landman, op.cit. (note 15), at p. 137.
72. Koh, H.H., 'The 1998 Frankel Lecture: Bringing International Law Home', Houston Law Review, Vol. 35, 1998-1999, pp. 623-682, at p. 648.
73. According to Martha Nussbaum, although this could sound paternalistic, policy-makers should try to give everyone equal opportunities to live a decent life. See Nussbaum, M., Women and Human Development. The Capabilities Approach, Cambridge University Press, Cambridge, 2000, at pp. 58-59.
74. Elster, J., "The Market and the Forum: three Varieties of Political Theory', in: Elster and Hylland (eds), op.cit. (note 59), pp. 103-132, at p. 118.
75. The Carr Center for Human Rights Policy (in collaboration with the Program in Criminal Justice Policy and Management Kennedy School of Government), Workshop on Measurement and Human Rights, Harvard University, Harvard, 2006, at p. 20, www.ksg.harvard.edu/cchrp/programareas/measurement/Measurement_Report_12_18.doc.
76. According to Michael Edwards, civil society can be defined in three ways. First, it can be understood as associational life, which is distinct from States and markets. Second, civil society can be considered as the good society, which is a society based on values. Third, civil society can be regarded as the public sphere, which is an arena where deliberations take place. He concludes that civil society is as the same time the three of them. See Edwards, M., Civil Society, Polity Press, Cambridge/Malden, 2004.
77. Walzer, M., "The Civil Society Argument', in: Mouffe, C. (ed.), Dimensions of Radical Democracy. Pluralism, Citizenship, Community, Verso, London/New York, 1992, pp. 89-107
78. De Schutter, O., 'Europe in Search of its Civil Society', European Law Journal, Vol. 8, No. 2, 2002, pp. 198-217
79. See de Beco, loc.cit. (note 18).
80. National human rights institutions have also a third function, namely to investigate alleged human rights violations, which is however optional and not the focus of European national human rights institutions
81. Defined at the International Workshop on National Institutions for the Promotion and Protection of Human Rights held in Paris from 7-9 October 1991, endorsed by Comm. Res. 1992/54, UN Doc. E/CN.4/RES/1992/54, 3 March 1992 and GA Res. 48/134, UN Doc. A/RES/48/134, 20 December 1993.
82. National human rights institutions organise meetings to ensure the follow up to the concluding observations of treaty bodies. They invite key actors involved in the implementation of human rights treaties, representatives of both the public administration and civil society organisations in particular, and act as facilitators between them. See Seidensticker, L., Examination of State Reporting by Human Rights Treaty Bodies. An Example of Follow-Up at the National Level by National Human Rights Institutions, German Institute for Human Rights, Berlin, 2005.
83. Article 25 ICCPR.
84. Committee on Economic, Social and Cultural Rights, op.cit. (note 37), at paras 11, 17 and 54.
85. See HRC, Ilmari Länsman vs Finland, 8 November 1994, UN Doc. CCPR/C/52/D/511/1992, Communication No. 511/1992, at para. 9.5. To arrive at this conclusion, the Committee referred to its General Comment No. 23 in its communication. See Human Rights Committee, General Comment No. 23, The rights of minorities (Art. 27), UN Doc. CCPR/C/21/Rev.1/Add.5, 8 April 1994, at para. 7
86. See ECHR, Guerra and others vs Italia, 19 February 1998, RJD 1998-I, Application No. 14967/89, at para. 60.
87. See Hatton and others vs United Kingdom, supra note 12, at para. 128.
88. The participation of affected people in impact assessments can take two forms: consultation and implication. While consultation allows people to express their opinion on policies, implication means their taking part in decision-making. However, it is preferable to limit participation to the former, because decision-making requires political accountability which affected people do not have. Participation is therefore only understood as consultation in this article. On the different kinds of participation in impact assessments, see Roberts, R., "Public Involvement. From Consultation to Participation', in: Vanclay and Bronstein (eds), op.cit. (note 1), pp. 221-246, at p. 224; and IAIA, Public Participation. International Best Practice Principles, IAIA Special Publications Series No. 4, IAIA, Fargo, 2006, at p. 1.
89. Roberts, loc.cit. (note 82), at pp. 224-225.
90. See Bruins and Van Erkel, op.cit. (note 5), at p. 19.
91. They simply thought that by closing the tippelzones prostitution would disappear, showing their lack of knowledge on this issue when adopting the policy.