‘Rights-based approach’ amid COVID-19 crisis: 4 questions answered

You may have rolled your eyes. “There they go again.” 

But, if you are a citizen who has felt shortchanged in any way during the COVID-19 crisis, the rights-based approach actually tells you that it is rightful for you to feel dissatisfied and even to call out the authorities that failed to deliver.

We understand how volatile the topic of rights – particularly, human rights – has become in the Philippines. In his tenure, President Rodrigo Duterte has come at odds with critical values and institutions. The casualties have included the concept of human rights; the United Nations (UN), which first attempted to define it; and the national instrument ensuring the Philippines is makng good on its commitments, the Commission on Human Rights.

You may be asking: Why talk about a stressful matter amid a health crisis? The answer lies in its being crucial, especially right now. Literally every UN body and thousands of agencies released guidelines to ensure human rights are respected during the pandemic, reflecting how critical it is. But not to worry. We at Ramento Project for Rights Defenders have made the topic easier to understand with four questions.

First things first, what does a rights-based approach mean?

The rights-based approach, or human rights-based approach, is a principle in human development that believes human rights should always be respected, protected and fulfilled, even during a crisis like the COVID-19 pandemic. Operatively, this means human rights principles must be present in all plans, policies and processes.

It is important at this point to take up human rights. It must be upheld by the Philippine government because it is enshrined in the Constitution’s Bill of Rights (Article III) and the United Nations’ (UN) International Bill of Human Rights, of which the country is a signatory. The latter includes the Universal Declaration of Human Right (UDHR), the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights. The UDHR, signed in 1948, is composed of 30 articles stating the common standards to uphold the dignity of all people.

Human rights are defined by the UN as “rights inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion, or any other status.” These are intrinsic to all people (universal) and cannot be transferred or taken away without due process (inalienable). These cannot be treated as separate parts (indivisible). Instead, the fulfillment or violation of one piece can affect all the other provisions (interdependent and interrelated). 

This concept acknowledges each person as a rights-holder, who should be able to claim their entitlements especially when these are violated by the duty-bearer. For Filipinos, the duty-bearer is the Philippine government, including its officials and workers at any level. Violations may be committed by misconduct, inefficiency, inaction or condonation, among others.

By extension, the rights-based approach respects the abovesaid principles. The UN noted that there is no universal recipe for the approach but three essential attributes: (1) that programs are undertaken with the main objective of fulfilling human rights; (2) that there is a dynamic that involves empowered rights-holders and responsible duty-bearers; and (3) that international human rights treaties are the standard at all levels. 

Why do we need a rights-based approach?

It is best to understand this concern by revisiting what the rights-based approach replaced. 

Most development workers had been into the needs-based approach. However, in 1997, the rights-based approach started taking over because some specialists had become concerned about the flaws of the earlier approach. Take a slum area pummeled by a storm. The apparent need would be a relief effort. But that would not help survivors emerge from poverty or become more resilient to disaster in the long term.

There is a problem with terminology. Needs may differ subjectively depending on your source; rights are a fixed set of ideals. The needs-based approach is also transactional: There is a need, meet it; there is a disease, cure it. The latter believes the process is as important as the outcome, and that the outcome may unpack another concern.

The second issue is practice. The needs-based approach has consulted experts more than people who have experienced an issue first-hand. This has resulted in a problematic belief that issues like poverty, marginalization and disease originated in personal behavior. It cultivated a thinking that anyone who seeks to help is better or higher in status or morality, intervening out of charity. Such is a common case for poverty alleviation in the Philippines. People tend to see initiatives from a “mas mabuti kaysa wala” (better than nothing) standpoint. 

The rights-based approach, on the other hand, claims that “almost is never enough.” The needs of the poor may be part of a bigger issue; and desperation, no matter how grave, is no excuse to provide less or treat them with less respect. A program for their benefit is out of a responsibility to stop rights violations. Moreover, the approach delves into historical inequalities. According to the UN: “It seeks to analyze inequalities which lie at the heart of development problems and redress discriminatory practices and unjust distributions of power that impede development progress.”

Ultimately, the rights-based approach is more comprehensive, more just and more sustainable. It understands that an action may be a mere step in the right direction, not the ultimate solution. It sees consultation, dissent and redress as part of the process. Finally, the rights-based approach speaks to the need for duty-bearers to respect, protect and fulfill people’s rights, and to educate the rights-holders to defend themselves from violations.

It’s a pandemic. Surely there are greater things to worry about than human rights, right?

By greater things, you may be referring to the very real needs for food, work, etc. Well, if you read the international and domestic documents outlining your human rights, you will find all these mentioned there. Thus, when you are encountering difficulties on these fronts due to COVID-19, it may be rightful to seek assistance from your duty-bearer, your government.

“But, that’s not what we mean.” Alright, you are saying activism and all forms of dissent – even just those posted on social media – should be penalized. Those who break the law deserve death tokhang-style, etc. We understand the irregularity. We understand the confusion. But savagery is not an option.

UN High Commissioner for Human Rights Michelle Bachelet reminded the global community last April 27: “Emergency powers should not be a weapon governments can wield to quash dissent, control the population, and even perpetuate their time in power… They should be used to cope effectively with the pandemic – nothing more, nothing less.”

She said the “highly militarized” Philippine response led to the arrest of some 120,000 curfew violators. This policy, she noted, was “unnecessary and unsafe” as jails could expose people to the coronavirus. 

What if implementing human rights fully is impossible? There are, in fact, long-held parameters to guide countries in weighing their policies. Essentially, objectives should be met with the least intrusive measures. No right should be toyed with.

To help nations navigate this gray area, the Office of the United Nations High Commissioner for Human Rights (OHCHR) released “Emergency Measures and COVID-19: Guidance.” Among others, it states that no restriction should be made unless it is necessary to address COVID-19. These may include the freedom of movement and peaceful assembly.

Other criteria include: 

  • Legality: the national law of general application, which is in force at the time the limitation is applied. The law must not be arbitrary or unreasonable, and it must be clear and accessible to the public.
  • Proportionality: The restriction must be proportionate to the interest at stake, i.e. it must be appropriate to achieve its protective function; and it must be the least intrusive option among those that might achieve the desired result.
  • Non-discrimination: No restriction shall discriminate contrary to the provisions of international human rights law. 

Some rights absolutely cannot be suppressed, as laid out in “The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights.” 

These rights include the right to life, the right to be free from torture and other inhumane or degrading treatment or punishment, the right to be free from slavery or servitude, and the right to be free from retroactive application of penal laws. You cannot be killed for being positive for COVID-19 or be taken as a slave by anyone for taking you in during the lockdown or paying your hospital bills. The lockdown also cannot be used to crack down on activists and rights defenders, in hopes to taunt them or torture information out of them.

Methods to manifest the freedom of thought, conscience and religion may be limited but the freedom itself cannot be prohibited, as part of the Siracusa document. Thus, while a rally on EDSA may be prohibited during a lockdown, a protest from home or any expression of dissent that conforms with lockdown guidelines cannot be met with punishment.

So, just so we are clear, human rights cannot all together be cancelled out just to address issues like COVID-19. In fact, the very concept should guide the response. It is still possible to attain a rights-based response no matter how difficult times may be. 

How is the Philippine COVID-19 response doing? Is it a rights-based approach?

You decide – but do continue reading.

The rights-based approach can be used to guide projects of any size, from a developmental experiment in a school or neighborhood setting to a national and even international intervention. In fact, it has tell-tale signs. Development workers use the mnemonic guide PANEL to explain rights-based approach in practice. The Scottish Human Rights Commission explains it thus:

  • Participation: People should be involved in decisions that affect their rights.
  • Accountability: There should be monitoring of how people’s rights are being affected, as well as remedies when things go wrong.
  • Non-Discrimination and Equality: All forms of discrimination must be prohibited, prevented and eliminated. People who face the biggest barriers to realizing their rights should be prioritized.
  • Empowerment: Everyone should understand their rights and be fully supported to take part in developing policy and practices which affect their lives.
  • Legality: Approaches should be grounded in the legal rights that are set out in domestic and international laws.

You can measure if a governmental approach is rights-based by asking PANEL-related questions like: Is the government talking with vulnerable populations like the poor, gender minorities, people in conflict areas, etc.? How does it treat criticism? Amid the lockdowns, are policies applied impartially? In the first place, does the government support human rights? Do policies negate human rights standards?

It could also help to assess the Philippine response with already available documents and checklists. 

Let’s unravel the issue: COVID-19 is a medical crisis. All governments set their emergency policies on the pretext of protecting the right to health. How is the Philippines performing according to this right? Has the government prioritized testing, triaging, prevention and treatment, among others? Have healthcare workers received support proportionate to their importance? How is the healthcare system holding up?

There’s also an undeniable humanitarian crisis. People have lost their means of income and cannot support their needs. How is the government addressing this? How is it treating sectors that have already been vulnerable before COVID-19? How will the adversely affected citizens recover?

Finally, how do the medical and humanitarian programs fare against the other steps which, to some observers, make up a “highly militarized” COVID-19 playbook?

The worst is not behind us. If you had to take away anything from this explainer on the rights-based approach, hopefully it’s that, moving forward, holding duty-bearers to task for their obligations is right. 

So, how are we doing? 

(Photo from Aljazeera)

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