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The Human Rights-Based Approach as a Conceptual Framework for Ascertainment of Indigenous Customary Law

Copyright © 2021 By Dr. Leesi Ebenezer Mitee, PhD in International Human Rights Law, Legal Information Technology (Legal Informatics), Indigenous Customary Law and Indigenous Rights

Excerpts from the book, The New Human Rights-Based Huricompatisation Model of Ascertainment of Indigenous Customary Law: Strategies for Adequate Local and Global Public Access, Volume 2 of the  Human Right of Free Access to Public Legal Information Book Series (Publisher: Koinonia Legal Research and Book Publishing, Tilburg, The Netherlands 2021).

The human rights-based approach (HRBA) emerged in 1995 from ‘The Right Way to Development: Human Rights Approach to Development Assistance’ published the Human Rights Council of Australia.[1] The United Nations Sustainable Development Group (UNSDG)[2] adopted The Human Rights Based Approach to Development Cooperation Towards a Common Understanding Among UN Agencies statement in 2003[3] (shortened as ‘the Common Understanding’). One of the items of the Common Understanding states: ‘All programmes of development co-operation, policies and technical assistance should further the realisation of human rights as laid down in the Universal Declaration of Human Rights and other international human rights instruments.’[4]

The United Nations defines ‘human rights-based approach’ as ‘a conceptual framework for the process of human development that is normatively based on international human rights standards and operationally directed to promoting and protecting human rights.’[5] The United Nations’ three HRBA strategies are as follows:

  •  As development policies and programmes are formulated, the main objective should be to fulfil human rights.[6]
  • A human rights-based approach identifies the rightsholders and their entitlements and the corresponding duty-bearers and their obligations, and works towards strengthening the capacities of rights-holders to make their claims and of duty-bearers to meet their obligations.[7]
  • Principles and standards derived from international human rights treaties should guide all development cooperation and programming in all sectors and in all phases of the programming process.[8]
  • Other HRBA strategies include rights talk to promote awareness of the rights of a group and legal advocacy or mobilisation through litigation in domestic courts to enforce and promote human rights.[9]

[1] Sakiko Fukuda-Parr, ‘Human Rights and Politics in Development’ in Michael Goodhart (ed), Human Rights: Politics and Practice (2nd edn, Oxford University Press 2013) 161, 166.

[2] Also referred to as United Nations Development Group (UNDG).

[3] UNSDG ‘The Human Rights Based Approach to Development Cooperation Towards a Common Understanding Among UN Agencies’ (adopted the United Nations Sustainable Development Group in 2003) <https://undg.org/document/the-human-rights-based-approach-to-development-cooperation-towards-a-common-understanding-among-un-agencies/> accessed 27 November 2020 (UN Statement of Common Understanding 2003).

[4] Ibid

[5] UN Office of the High Commissioner for Human Rights, Frequently Asked Questions on a Human Rights-Based Approach to Development Cooperation (HR/PUB/06/8, United Nations 2006) 15 <https://undg.org/wp-content/uploads/2016/09/FAQen2.pdf> accessed 1 June 2019 (UN Human Rights-Based Approach 2006).

[6] Ibid 15.

[7] Ibid

[8] Ibid 16.

[9] Paul J Nelsona and Ellen Dorsey, ‘Who Practices Rights-Based Development? A Progress Report on Work at the Nexus of Human Rights and Development’ (2018) 104 World Development 97, 99 <https://doi.org/10.1016/j.worlddev.2017.11.006> accessed 13 April 2018.