Normative Esperanto? A Closer Look at the Proposed Indicatorisation of the Right to Development in the UN by Siobhán Airey, Human Rights Research and Education Centre, University of Ottawa. Reprinted by permission of Regarding Rights
There is now a very solid body of literature, both scholarly and practice-focused, on the relationship between indicators and human rights. It addresses pragmatic considerations (how indicators can develop precision on the normative content of human rights, especially for socio-economic human rights, and aid the monitoring of states’ duties to fulfill their international human rights obligations); political considerations (how the use of indicators can result in shifts in relationships between different policy spheres and their institutional mechanisms and human rights, and between human rights actors such as rights-holders and duty-bearers and those with responsibility for monitoring those institutions and actors); epistemological questions with normative effects (how indicators can foreground certain kinds of knowledge and ways of seeing the world and, through their use in a human rights context, can shape what we think a human right might be). This work can also illuminate the role of indicators, especially in a human rights context, in helping to solidify the “legality” of human rights norms (helping them become more “law-like”).
In my research on indicators and the human right to development, one aspect of this work that I’ve found fascinating is how indicators enable communications and facilitate relationships between: different organisations (such as international organisations focused on human rights, and international organisations focused on other agendas but whose work addresses human rights); actors (such as marginalised communities and people negatively affected by rights infringements and violations, “experts”, practitioners, researchers etc.); different normative frameworks (such as those on trade, on climate change, on human rights) and instruments (from formal standards to “softer” instruments such as monitoring frameworks and policy guidelines); and between the local, regional and the international.
I use the term “Esperanto” to capture this communicative and relationship-building aspect of indicators’ work in a human rights context, as it resonates with the benign impulse underpinning the turn to indicators. Esperanto is a constructed language that was created in the late 1880s by LL Zamenhoff. He was a Polish-Jewish ophthalmologist who lived at the time in Bialystock, what is now one of the largest cities in Poland near the Belarus border, but was part of the Russian Empire at the time. It was home to Germans, Russians, Poles, Jews and Christians, between whom relations were strained. In response to this, Zamenhoff created Esperanto to foster harmony between peoples. This impulse behind Esperanto – the idea of a shared language, fostering harmony and reducing conflict and tension through continued and ever more widespread practice over time – to me captures one of the roles that is either explicitly or implicitly ascribed to indicators in the human rights project.
However, this Esperanto role for indicators has implications for human rights discourse across all the areas I’ve identified above – pragmatic, political, epistemological-normative and so on. Depending on how indicators are devised and used, concepts developed with particular meanings in a non-human rights context can enter into a dedicated human rights domain and bring the normative meaning of that alternative context with it, with particular consequences for the human right being “indicatorised”.
One human right that has begun to be indicatorised recently is the Right to Development (RTD). The RTD has been among the more controversial rights in contemporary international human rights discourse. It was proclaimed in a Declaration within the UN in 1986, and if we take that Declaration as representing a moment of consensus on the content of the right, we can see the prominence of particular ideas about development and about equality as a key part of the right. It is thus a really interesting example of how concepts (such as development and equality in this case) that are central to the meaning of a human right become clarified and made more precise through indicatorisation.
The Declaration on the RTD and its approach to equality as a key aspect of the RTD
The Declaration contains the following ideas about development and equality. First, development is about the human person being the main participant and beneficiary of the RTD (Preamble and Article 2.1). This is in contrast to a predominant focus within current development policy discourse that identifies the promotion of economic growth as the prime goal and objective of development. Secondly, the Declaration places a strong focus on the centrality of equality which, in relation to people, includes the following three aspects: (i) Equality of Access – to “basic resources” in education, health services, housing, employment and other areas (Article 8.1—the Declaration does not qualify this with references to extenuating circumstances such as the existence of crises or other factors); (ii) Equality of Participation – the right of (and responsibility of) persons and peoples to participate in development processes (Articles 1.1, 2.1, 8.2 and Preamble). The Declaration also specifically recognised women’s participation in development processes (Article 8:1); (iii) Equality of Outcome – in relation to the “fair distribution of the benefits” of development (Article 2.3 and Preamble) and of income (Article 8.1), which, taken together (as the Declaration recognises in Article 1.1), lead to (iv) Equality of Condition – the enjoyment of “every human person and all peoples” of their human rights and fundamental freedoms. That the indivisibility of these four aspects of equality (along with other aspects of the Right) is central to the content of the RTD is recognised in Article 9.1 of the Declaration, which states that “[a]ll the aspects of the right to development set forth in the present Declaration are indivisible and interdependent and each of them should be considered in the context of the whole”.
Without a doubt, this was a normative milestone in two respects. The Declaration was one of the first international human rights instruments to recognise all the four elements of equality as part of a human right. Now, a human right constituted not only a right of access or a right of participation, but also a right to distributional fairness. Moreover, this approach to substantive equality, as opposed to formal equality, marked a distinct shift in the relationship between the normative content of a human right and that of equality.
After the pronouncement of the Declaration…
In the 1980s and ‘90s within the UN, various institutional mechanisms were used to clarify the nature of the right and figure out how to implement it. There was an Open-Ended Working Group and an Independent Expert. Later again, in 2004, a Task Force on the Implementation of the Right to Development began dedicated work focused on the implementation of the RTD. In order to further this, it decided to focus on developing “practical tools” such as guidelines and objective indicators in order to “translate… the human rights norms and principles into parameters accessible to policymakers and development practitioners.”
The indicatorisation of the RTD
Over several years, the Task Force on the Implementation of the Right to Development worked to elaborate the content of the norm, and from 2009 focused its attention on producing RTD criteria. The Task Force stated that there was a “core norm” that summarised the Right to Development, which it stated as follows:
The right to development is the right of peoples and individuals to the constant improvement of their well-being and to a national and global enabling environment conducive to just, equitable, participatory and human-centred development respectful of all human rights.
It then expanded this norm into three attributes, eighteen criteria, and sixty-eight sub-criteria. Each of the sub-criteria is linked to varying numbers of indicators.
The approach to equality in the indicatorised RTD
The Task Force’s table of attributes, criteria, sub-criteria and indicators includes two concepts – equity and equality. Equity is not defined by the Task Force. Instead, its sole reference in the table is as follows: “[e]quity, non-discrimination and right to development objectives in IMF, World Bank and WTO programmes and policies”.
Equality receives five references in the table – three as sub-criteria and indicators, and two within the endnotes.
The former three include two “attributes” of the RTD as follows:
3 (a) (i) Equality of opportunity in education, health, housing, employment and incomes.
3 (a) (ii) Equality of access to resources and public goods.
Thus, we can see from this initial examination that the Task Force’s approach to equality strongly reflects a classically liberal one, reflecting equality of access and opportunity, but not addressing elements of equality of participation, outcome and condition, as identified within the Declaration.
How might this significant omission have resulted from the careful and painstaking work undertaken by the Task Force? One answer, perhaps, lies in the process the Task Force used to determine appropriate criteria and indicators.
In order to ensure the “quality” of the criteria and indicators selected, the Task Force said it “integrate(ed) analytical work done by expert groups at the World Bank, the Organization for Economic Cooperation and Development, the United Nations Development Programme, the United Nations Conference on Trade and Development” and in other arenas. Thus, it went beyond organisations and institutions with a primary focus on and expertise in human rights for knowledge to develop the RTD indicators.
One of those sources of knowledge appears to have been the World Bank’s 2006 World Development Report (WDR), entitled Equity and Development, which the Task Force welcomed upon its release. The Task Force stated that the Bank’s report encapsulated the theme that development “had to be grounded in sound economic policies that fostered growth with equity” and that “recognition of the need to build complementarity into growth-oriented strategies and human rights was a response to the growing call by people for more empowerment, more ownership and more sustainability in development efforts”.
The World Bank’s approach to equity and development, however, is distinctly different that enunciated in the Declaration on the RTD. For the Bank, “equity” is defined as an expectation that “individuals should have equal opportunities to pursue a life of their choosing and be spared from extreme deprivation in outcomes” (2). Equity is viewed as complementary to “long-term prosperity” (18), with the relationship between both described as a “virtuous circle” (122). “Equity” is not a goal with an intrinsic value – rather the Bank’s argument is that “greater equity can in the longer term underpin faster growth” (17). In this view, we see a liberal, as opposed to substantive, approach to equality where equity is linked to formal equality of opportunity, but not equality of access, participation or outcome. Equity does not have its own intrinsic value; instead it is instrumental to growth-oriented development.
There are obvious tensions between this view of the normative content and role of “equity” in development, and international jurisprudence on the “minimum levels,” “core obligations,” and “progressive realisation” of socio-economic human rights. How are the latter elements to be reconciled with the “avoidance of extreme deprivation”? The Bank’s report is silent on this important question.
What changes to the meaning of the RTD are brought about by the Task Force’s inclusion of the term “equity” in the table of indicators for the RTD? What are the implications of its choice of a more minimal approach to equality than was present in the 1986 Declaration on the RTD for the current and future normative development and implementation of the RTD? As the Working Group on the RTD are continuing their own work on refining the indicators, it is as yet too early to say. However, I believe that the developments just outlined offer cause for concern from human rights activists and researchers engaged in understanding and implementing approaches to development informed by human rights discourse. The Working Group are in a period of reflection on the indicators developed by the Task Force. It will be interesting to see if those deliberations result in a “reverse transfer” of the normative ideas on equality from the 1986 Declaration to the RTD indicators, over those from the World Bank’s Equity and Development Report that appear, at this time, to be more prominent.
 UN HRC Working Group on the Right to Development high level task force on the implementation on the right to development, ‘Right to Development Report of the high level task force on the right to development on its sixth session Addendum Right to Development Criteria and Operational Sub-criteria’ A/HRC/15/WG.2/TF/2/Add.2, para 4.
 Ibid. 8, emphasis mine.
 The current version of the indicators lists 149, each having its own note, identifying the source of data for that indicator.
 UN HRC Working Group above n.1, 9.
 The endnotes clarify further sources of information for the indicators, or the focus of information sought for the indicators. The two references to equality in the endnotes refer first to information on inequalities between “identity groups,” such as groups with different ethnic identities (endnote 80), and, secondly, to policies on equality and non-discrimination by the WB, the WTO and IMF (endnote 35).
 Measured by the “Ratio of income of bottom quintile to bottom quintile population (by country)” (Endnote 127). UN HRC Working Group, above n 1, 21.
 See criteria 3 (a), UN HRC Working Group, above n 1, 4.
 UN HRC Working Group, above n 1, 3.
 Commission on Human Rights, “Review of Progress in the Promotion and Implementation of the Right to Development: Consideration of the Report of the High-Level Task Force on the Implementation of the Right to Development.” Report of the high-level task force on the implementation of the right to development, E/CN.4/2005/WG.18/2, 24 January 2005, para 31. Emphasis mine.
Siobhán Airey is a PhD student in Law. Her research analysis overseas development aid as an instrument of global governance through a focus on the emerging body of international law on development co-operation. Her research is interdisciplinary, bringing insights from critical legal theory, political economy and Foucault into conversation with law and development scholarship, and draws from empirical research undertaken in the EU and the East African region. She’s fascinated by how norms and practices become ‘law-like’ and their relationship to ‘law’ broadly defined. Hence, she recently side-tracked into analysing indicators and has been fortunate to work with an international research group focusing on ‘indicators as political spaces’. She also writes on the form and role of law in neoliberal government.
© Siobhán Airey