Annex II. The Prospects of a Rights Based Approach to Mine Action

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Thematic Study of the Evaluation of Danish Support to Mine Action

1. Introduction

The following study constitutes a part of the evaluation of Danish assistance to mine action. Its aim is to provide ideas on how to further improve Danish support to mine action by assessing the strengths, weaknesses and opportunities and constraints of rights based approaches to mine action.

Human rights are not new to mine action. Human rights organisations provided the core of the international campaign to ban landmines. Despite this and the fact that many of the organisations undertaking mine action have experience of a rights approach to development (e.g. UNICEF, UNDP and DanChurchAid), a rights perspective on mine action appears to be minimal – except in the case of victim assistance. This study has tried to outline what a rights approach is, what its strengths are, how it can be useful for enhancing mine action and what some of the difficulties may be for mine action organisations applying a rights based approach.

In the following section, the methodology, activities and the output of the study are explained.

Chapter 2 provides an overview of the concept of a rights based approach and its basic principles and compares it with conventional approaches to development aid. The chapter wraps up with a brief review of the rights based approaches of DanChurchAid and the UN system.

Chapter 3 clarifies the link between landmines/UXO and human rights and analyses the extent to which rights are considered in the mine sector by reviewing GA resolutions, guidelines and policies. While abstaining from providing a strictly legal analysis of human rights and mine action, the chapter gives an account of the human rights context in relation to mines in the five countries of focus for the evaluation and discusses the relevance of the linkages between human rights and mine action to Danish policies. Finally, the chapter summarises some stakeholder perspectives on rights based approaches and mine action.

Chapter 4 concludes the study by assessing the strengths, weaknesses and opportunities and constraints of rights based approaches to mine action and provides recommendations for Danish policy on mine action.

1.1 Methodology
The study has been undertaken in three parts. The first part consisted of a desk study. The second part consisted of three country case studies and entailed field visits to the three countries visited by the evaluation team. The third part synthesised the findings and conclusions established during the first two phases. To the extent relevant, the study draws on the working documents, findings and conclusions established during the evaluation process. The consultant has undertaken the following:

1. Reviewed and analysed the civil, political, social, economic and cultural rights and the twin principles of equal rights of men and women and the prohibition of discrimination of any kind. Assessed their potential relevance to mine action.

2. Reviewed and documented established rights based approaches – in particular those of DanChurchAid and the UN system – both of whom are active within mine action.

3. Reviewed and assessed the human rights framework (treaties and declarations signed, ratified) of the three case study countries from a mine action perspective.

4. Established the perspectives on rights based approaches to mine action using a semi-formal interview technique with:

• Danish mine action NGOs;
• Mine action actors in the three countries visited by the Evaluation Team; and,
• National human rights bodies (e.g. human rights commissions, prominent human rights NGOs, etc.) in the three countries to be visited by the Evaluation Team.

Interviewed beneficiaries and participated in some focus groups organised by the Evaluation Team to establish the relative importance of specific rights from the perspective of the mine-affected people.

2. The Rights Based Approach

The following chapter examines the basis and principles of a rights based approach and compares the approach with more conventional aid approaches. While there are variations of the rights based approach, the study has taken departure in the Human Rights Council of Australia’s project, “The Rights Way to Development” funded by the Ford Foundation. The chapter ends with a section on the experience of rights based approaches to date.

2.1 The Basis¹
A rights based approach to development assistance is 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. It comprises the integration of the norms, standards, and principles of the international human rights system into plans, policies and processes of development. The norms and standards are those contained in the international treaties and declarations such as the International Bill of Rights which comprises the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights. They include a broad range of guarantees, addressing virtually every aspect of human life and human development.

The realisation of human rights is basically about enabling and ensuring access – except in those cases where people are unable to provide for themselves. In this effort a rights approach to development uses international human rights law as a comprehensive guide for:

• appropriate official development assistance;
• the manner in which it should be delivered;
• the priorities it should address;
• the obligations of both donor and recipient governments; and,
• the way that official development assistance is evaluated².

International law on human rights is drafted, debated and adopted by the member states of the United Nations. Evidence as to the consensus of this framework is the wide acceptance of the Universal Declaration of Human Rights most lately testified by the more than 160 world leaders who came together to endorse the United Nations Millennium Declaration in 2000 and resolved to “spare no effort to promote democracy and strengthen the rule of law, as well as respect for all internationally recognised human rights and fundamental freedoms, including the right to development”. The consensual nature of international human rights law is very pertinent here:

In the human rights approach to development assistance we expect no more and ask no more of governments than what they have formally committed themselves to do³.

This includes the commitment to international co-operation which is i.a. outlined by Article 2 of the Covenant on Economic, Social and Cultural Rights:

Each State Party to the Present Covenant undertakes to take steps, individually and through international assistance and co-operation especially economic and technical, to the maximum of its available resources with a view to achieving progressively the full realisation of the rights in the present Covenant. (Our italics).

In sum, human rights values, standards and principles apply as much to donors as to recipient governments and thus have programmatic implications for both.

2.2 The Principles
Rights based approaches are founded in the conviction that every human being, by virtue of being human, is a holder of rights. Hence, a rights based approach involves a process of enabling and empowering those people that do not enjoy their rights to enjoy or claim their rights by recognising the human person as the active subject and claim-holder. It further identifies the duties and obligations of those against whom a claim can be brought to ensure needs are met. A rights based approach can potentially empower people by participation and transform the poor and disadvantaged from beggars into claimants.

The principles of the international human rights system include those of universality and indivisibility, equality and equity, accountability, and participation, empowerment, and obligation.

2.2.1 Universality and indivisibility
The principle of universality and indivisibility of human rights means that every woman, man, child is entitled to enjoy his or her rights simply by virtue of being human. The principle of universality requires that no particular group, such as geographically remote communities, be left out of the reach of development assistance programmes. Resources, action and advocacy should focus as a priority on those most deprived of their rights. Also, human rights are indivisible; i.e. enjoyment of one right is indivisibly interrelated to the enjoyment of other rights. While all human rights – civic, political, economic, social and cultural should be treated with the same importance, depending on the specific context – certain rights will take priority depending on the context.

2.2.2 Equality
The principle of equality is a primary principle of human rights. Human rights are for everyone, as much for people living in poverty and social isolation as for the visible and articulate. Equality requires that all persons within a society enjoy equal access to the available goods and services that are necessary to fulfil basic human needs. Equality before the law prohibits discrimination in law or in practice in any field regulated and protected by public authorities. Thus, the principle on non-discrimination applies to all state policies and practices, including those concerning healthcare, education, access to services, travel regulations, entry requirements and immigration.

2.2.3 Participation
The principle of participation – which is recognised as a right in itself⁵ – means that every person and all peoples are entitled to participate in, contribute to, and enjoy civil, economic, social and political development in which all human rights and fundamental freedoms can be fully realised. It also means that all people are entitled to participate in society to the maximum of their potential. This in turn, necessitates taking steps to facilitate participation including the provision of supportive environment to enable people to develop and express their full potential and creativity.

The Human Rights Council of Australia sees participation as an “essential oil” for realising human rights where participation is understood as control and should not be confused with “involved”, “consulted”, “empowered” or even “ownership”⁶ – people are the active players who determine and freely pursue their social, economic and cultural development.

This does not necessarily mean that stakeholders should be consulted endlessly – in a number of aid efforts participation is unfortunately interpreted this way. In fact governments and aid organisations do not have the prerogative to determine the purpose, form and extent of participation without reference to those concerned:

It may well be that people concerned will decide that they only want to be involved in certain decisions or that they would prefer to have their views represented by chosen members of their community. They may well choose to say to an aid project team: yes, you are technicians we trust you to decide the type, make and capacity of the … (aid effort)⁷.

2.2.4 Accountability
The principles of accountability are essential for securing an enabling environment for development. States have the primary responsibility to create this environment in which all people may enjoy all human rights, and have the obligation to ensure that respect for human rights norms and principles is integrated into all levels of governance and policy-making. Human rights do not simply define the needs of the people, but also recognise people as active subjects and claimholders, thus establishing the duties and obligations of those responsible for ensuring that the needs are met. In addition, accountability means opening the doors to full participation and providing avenues for challenging and seeking redress for decisions or actions negatively affecting rights.

2.2.5 Obligation
A rights based approach focuses on the relationship between a state and its citizens. The principal duty holder of human rights is the state. The state has to comply with its obligations deriving from the rights contained in the human rights covenants. The full implementation of the human rights covenants requires the state orienting its policies to comply with its human rights obligations. Human rights in general, and economic, social and cultural rights in particular, oblige the state to respect, protect and fulfil these rights for all citizens. Hence, human rights give concrete rules and guidance for state action with relation to the people living on its territory⁸.

Moreover, the International Covenant on Economic, Social and Cultural Rights (ICESCR) also obligates states to international cooperation, meaning that states do not only have national but also international obligations⁹.

Although governments must take the lead in protecting human rights, other actors have obligations under the Universal Declaration of Human Rights to respect human rights.

Now, Therefore THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction¹⁰. (Our italics)

Hence, not only the state but also organisations and individuals are obliged to live up to human rights obligations. In a globalised world, the state-centred model of human rights accountability becomes somewhat out of step with time. Other actors may assume a still greater role in the promotion and protection of human rights. In cases where state parties may not be in a position to secure the rights of its citizens, or not be the ones that violate human rights, an even greater responsibility rests with individuals and organisations to uphold human rights.

The widespread application, effect and prominence of obligations provide a basis for elaborating a human rights framework for the actions of non-state actors.

2.3 RBA vs. Conventional Approaches
Many prevailing development policies – whether they aim at poverty reduction, social justice or plain economic development – view the concept of development as causally linked to socio-economic growth. In fact, it appears that most development discourse takes place within this context. Conventional approaches define poverty in economic terms and are based on a common belief that economic growth will inevitably lead to poverty reduction. This stance has been questioned and refuted by for instance Nobel Laureate Amartya Sen. Studies by the World Bank 12 years ago have shown that the impact of social development on later economic growth was much greater than the impact of economic growth on later social improvement¹¹.

In conventional approaches, a natural focus is placed on economic aspects of development while other aspects of development such as the civil and political, social and cultural aspects often receive relatively limited focus. This is not to say that conventional aid approaches do not address human rights – often they do. The human rights issue is typically regarded a cross-cutting issue, like environment and gender. Usually, rights are considered in connection with democracy and mainly concern civil and political rights. In other cases, the link between development and human rights has consisted of conditionality placed on recipient governments by donors. In most cases, although the promotion of human rights are considered a natural bi-product of aid and implicitly considered in aid projects, rights are not regarded as inherently linked to development.

A rights based approach recognises the indivisibility and interdependence of human rights – including the human right to development itself. As a consequence, development and rights cannot be considered distinct or separate – but rather development is a subset of human rights.

2.3.1 Basis for Support
Conventional provision of development assistance and a rights based approach to development differ in terms of basis for support: the latter is a coherent framework grounded in agreed international principles, priorities and obligations. Human rights are legally binding under international law and clearly recognise that there is an obligation on governments to actively work for the rights they encompass. In contrast, conventional approaches, which are usually based on government interests, goodwill, charity and conditionality, come across as rootless and arbitrary.

2.3.2 Perspectives on People
In contrast to conventional aid assistance, from a rights perspective, people are not envisaged as mere recipients of services or beneficiaries of protective measures. They are instead subjects of rights and participants in actions affecting them.

Policies and programmes which rest primarily on a perception of need and powerlessness subtly reinforce the powerlessness of the recipient who are seen as being given justice rather than as receiving their rights. The recognition of entitlement is in itself an act of empowerment¹⁴.

2.3.3 Participation
According to many practitioners of rights based approaches, participation in the rights based framework is seen as an entitlement guaranteed by international law¹⁵. The central issue is that participation as a right makes definite demands on the states involved – that is both recipient and donor governments – an by extension their development agents – government agencies, consultants, companies, local authorities and NGOs. Participation is not optional in the rights framework – it is imperative.

Participatory approaches have become common in many poverty reduction efforts today. While these approaches may consider people as active players who determine and freely pursue their economic, social and cultural development, an important reasoning behind participatory approaches is usually to improve effectiveness and sustainability. While this is an excellent reason for participation, it would not be enough from the perspective of a rights based approach.

2.4 Examples of Rights Considerations in Organisations involved in Mine Action
The concept of a rights based approach is not new. It is increasingly becoming a central element in development discourse – it is no longer a radical idea. In fact, the International Labour Organisation (ILO) has used rights based approaches for more than half a century – before the very existence of the United Nations. Human rights are still more often referred to, better understood as a concept and have become an important part of international relations. There is a growing appreciation among the international community, the UN system, the donor community, and NGOs of the new dimensions and added value that a human rights perspective can bring to aid policy formulation, dialogue, programming processes and prioritisation.

Below are some examples of how rights are considered by some of the actors of the mine sectors.

The United Nations System
One of the central purposes of the UN is promoting and encouraging respect for human rights and fundamental freedoms for all, as outlined in Article 1 of the UN Charter:

The Purposes of the United Nations are: To achieve international co-operation in solving international problems of an economic, social, cultural or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.

The development work of the UN organisation is no exception in this regard. The Secretary General’s 1997 UN reform process within the UN emphasised human rights as a priority for the United Nations system as a whole and that United Nations agencies at country level should cooperate closely within a coherent framework to mainstream human rights in programming. Thus, in a number of countries the UN’s Common Country Assessments (CCA) and the United Nations Development Assistance Framework (UNDAF) have been established with a rights based approach.

UNICEF
Following the widespread ratification in the 1990s of the Convention on the Rights of the Child (CRC), UNICEF has become a central actor within the field of human rights, incorporating the principles of the Convention and of other human rights treaties into its programmes. UNICEF’s focus is no longer limited to meeting children’s needs, but on the recognition and realisation of their human rights.

On the rhetorical level UNICEF’s approach to rights is well developed. UNICEF has produced a Human Rights Conceptual Framework for UNICEF and increasingly incorporates rights language in programming. The guiding principles of the CRC insist on a new ethical attitude towards children.

UNDP
UNDP plays an important role in the protection and promotion of human rights, both in its country activities and through its participation in national, international and multilateral meetings and conferences. Promotion of human rights is seen as a cross cutting issue of all UNDP’s focus areas: democratic governance, eliminating poverty, crisis prevention and recovery, energy and environment, information and communications technology, HIV/AIDS.

HURIST
Human Rights Strengthening (HURIST), a joint programme of UNDP and OHCHR, supports the implementation of UNDP’s policy on human rights as presented in the policy document, Integrating Human Rights with Sustainable Human Development. Its primary aim is to test guidelines and methodologies. This includes identifying best practices and learning opportunities in the development of national capacity for the promotion and protection of human rights, and in the application of a human rights approach to development programming.

DanChurchAid
In its effort to reduce poverty, DanChurchAid has opted to introduce a rights based approach in its programmes, taking point of departure in the poor and most needy people. The approach is based on the notion that poverty and human rights are intimately and complexly interconnected – violations of human rights may lead to poverty but poverty may also act as a barrier in the enjoyment of rights. Within the organisation the definition and practical implementation of a rights based approach is still in the process of being developed.

3. The Relationship Between Mines/UXOs and Human Rights

Each year, tens of thousands of innocent men, women and children are killed and maimed by anti-personnel landmines/UXO. Being designed to and capable of killing and maiming people, destroying and/or blocking access long after a conflict is over, the presence of mines and UXO constitutes a violation of human rights. In fact, the mere suspicion of mines is an infringement on rights – since it creates fear and blocks people from normal activity – be it economic, social, cultural and political. Some examples include:

• Mines and UXO deter communities from collecting fuel and water, planting crops, moving between villages, grazing livestock and returning to their homes due to the presence of mines.
• Mines and UXO deny access to land, lakes and rivers and prevent the use of irrigation canals.
• Mines and UXO cut access to communal resources and facilities such as waterpoints and wells, schools, clinics, police posts, buildings of civic authorities, market places and land for settlement.
• Mines and UXO sever communication and transport networks between villages, local and metropolitan markets. Roads, waterways, rail connections and airports can be rendered unusable by the presence of even a few mines in strategic locations.
• Mines and UXO prevent the use of, and rehabilitation or maintenance of, war-damaged housing, infrastructure such as bridges, power-lines and water pipes and sanitation structures.
• Mines and UXO also destroy livestock – high numbers are lost in many mine-affected countries.
• By restricting access to and from communities, mines and UXO hinder political participation and thereby impact on the legitimacy of governments.
• Mines and UXO block cultural, religious and social activities – vital aspects for a community’s identity, dignity, selfesteem, ultimately, its development.

In the world today mines and UXO infringe upon a number of human rights. These include the:

• right to life and physical integrity;
• right to adequate food;
• right to a standard of living adequate for mental and physical health and well-being;
• right to education;
• work and favourable working conditions;
• right to adequate housing;
• right to development;
• freedom of movement;
• right to take part in the governance of the country;
• right of equal access to public service;
• freedom of association;
• freedom to participate in the cultural and religious life; and
• the right to development.

Which rights and freedoms are violated naturally varies from context to context depending on the nature of the mine/UXO contamination and the geographical, socio-economic and cultural conditions.

Recognising that human rights are indivisible interrelated and while all human rights, civic, political, economic, social and cultural should be treated with the same importance, certain rights will take priority depending on the specific context. For instance, for a society that relies on livestock for its survival, freedom of movement may be a more pressing issue than for a sedentary agricultural community.

3.1 Mine-Related International Law, GA Resolutions, Guidelines and Policies
Since there is a wide acceptance that mine action is about people a connection between human rights and mine action seems obvious. However, the meagre reference to rights in the mine sector is startling. The team has analysed:

• • General Assembly resolutions and Secretary General reports relating to mine action;
• • The UN strategy 2001-2005 and policy papers on mines and mines/UXO;
• • The Bad Honnef guidelines; and
• • The Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (a.k.a. Ottawa Convention or the Mine Ban Treaty).

In the sections that follow, our findings are discussed.

3.1.1 United Nations documents
From 1996 the General Assembly resolutions on Assistance in Mine Clearance briefly refer to the rights of the child and makes references to resolutions concerning the rights of the disabled. However, as far as the team could assess, there is no reference to the rights of mine affected people in any report of the Secretary General, the UN policy on Mine Action, UNDP’s policy on mine action or in the UN strategy 2001-2005.

Although the UN 2001- 2005 mine action strategy is “designed to be consistent with existing treaties, protocols and resolutions relevant to mine action, including, but not limited to, the anti-personnel mine ban treaty, the Convention on Certain Conventional Weapons and its Protocols, the 1949 Geneva Conventions and Additional Protocols of 1977, the Convention on the Rights of the Child, and the standard rule for disabled”¹⁶, it does not mention human rights of affected people other than those of children and the disabled.

After what the team deems is a near-exhaustive search at three levels (UN resolution, policy and country level) the following explicit links between rights and landmines have been made in UN documents:

• The 1994 addendum of the Secretary General’s report mentions that the Special Rapporteur of the Commission on Human Rights, on the situation of human rights in Afghanistan, recommends “every effort should be made to broaden and accelerate the process of mine clearing” implying that they impinge on human rights.
• In the section on the information from member states in the Report of the Secretary General on an International Agreement to Ban Antipersonnel Landmines of 1997, the Government of Panama “expresses its concern about anti-personnel landmines and their adverse effects upon the effective development of human rights”.
• The 2002 February Report of the Secretary-General on the Situation in Afghanistan and its Implications for International Peace and Security states that human rights and a rights based approach are central to the UN’s work in Afghanistan and that the national recovery and reconstruction priorities are rights based and gender-sensitive. The team could however, not find evidence that a rights based approach is being incorporated in the UN’s mine action programme in Afghanistan.
• The CCA and UNDAF documents for Mozambique takes point of departure in rights. The CCA states that “landmines exacerbate the human security, especially for rural people and reduce people’s opportunities to fulfil their right to a sustainable livelihood”. Meanwhile the CCA and UNDAF of Nicaragua, which also take departure in a rights based approach, do not mention landmines.
• The Human Development Report of 2000 briefly touches upon the link between rights and landmines. In considering how to promote rights in development, disarmament (of, among other things, landmines) is considered an important policy instrument to prevent conflict and foster development. The report stresses two implications of preventing war and conflict for human rights applying also to the disarmament of landmines: 1) the direct effect of reducing a primary source of gross human rights violations; and 2) the indirect effect of freeing up resources so that the world community can shift its focus away from peacekeeping operations towards human development (HDR 2000, p. 121).
• The UNICEF report, A Child Rights Guide to the 1996 Mines Protocol establishes the link between landmines and the human rights of children. The report is intended as a straight-forward handbook for people wishing to know more about the legal protection of children from landmines and it encourages aid agencies, the media and NGOs to identify how the sales of the small arms and mines used in civil wars impact on human rights. However, the report does not as such discuss or provide a guide to a rights based approach to the mine action programming. UNICEF has yet to prepare a similar document for the Ottawa Convention.
• The external evaluation of UNICEF’s UXO awareness education activities in Laos¹⁷ stresses that, the presence of UXO in Laos constitutes a violation of many of the articles of the CRC – including a child’s rights to survival, food security, and access to education and health services. The evaluation sets up a list of the CRC articles which particularly lend themselves to providing protection for children against landmines and UXO.
• In UNDP’s 1998 appeal for funds for Cambodia’s mine action programme it is stated that mines may constitute a potential threat to human rights.
• The phase II project document of the UXO LAO Unexploded Ordnance Project in Xieng Khouang province that is funded by Danida via UNDP, points to human rights as a special consideration in the project and addresses Article 3 of the Universal Declaration of Human Rights which states “Everyone has the right to life, liberty and security of person”¹⁸.

3.1.2 NGO policies
The linkage between the contamination of landmines/UXO, the people it affects and human rights is seldom explicitly expressed by NGOs. In spite of having reviewed several documents and internet homepages of prominent human rights organisations involved in mine action, such as the ICBL and the Human Rights Watch, the evaluation team has not come across any analysis or direct mention of the linkage between landmines/UXO and human rights. While the link between human rights and other issues are often explicitly discussed, it is as if the link between rights and landmines is either taken for granted or not perceived of in terms of rights. Discussions are instead focused on discussing, for instance, the blockage of “access” instead of the violation of a certain right.

The Bad Honnef Framework, which was adopted by the International Campaign to Ban Landmines (ICBL – of which over 1300 organisations are members) in 1997, aims to provide guidelines for mine action programmes from a development-oriented point of view. The guidelines emphasise that “the need and aspirations of people affected by mines are the starting point for mine action programmes”, and introduce a rights aspect by noting that:

As much as any human being, mine affected people and communities have the right to shape their own lives and to participate in political and economic decision making which concerns their interest.

While the quote is the only of its kind in the Framework¹⁹, it appears to offer an opportunity to elaborate a concept of a rights based approach to mine action.

3.1.3 Ottawa Convention
The primary emphasis of the Convention on the Prohibition of the Use, Stock-piling, Production and Transfer of Anti-Personnel Mines and on their Destruction lies in the responsibility of state parties in terms of disarmament rather than on the individual right to life and well-being. When it does refer to socio-economic aspects, it portrays them as mere “implications” of states parties’ responsibilities but not as rights of individual as such.

This study fully recognises the incredible achievement the Ottawa convention is and does not in any way want to undervalue its results. However, probably in the interest of speed, easy acceptance, and in taking advantage of the global momentum at the time, the Convention is quite removed from International Human Rights Law.

Article 6 promotes international co-operation and humanitarian assistance to state parties relating to mine action. It states that “each state party has the right to seek and receive assistance”. Legalistically speaking, this is not a right but an obligation of state parties. Phrased in this way the sentence becomes legal nonsense. Furthermore, it is always possible for any state to ask for assistance or co-operation in mine clearance processes in terms of funding or new technologies or UN assistance.

It is beyond the scope of this study to examine the negotiation process related to the Landmine Ban. However, the failure of relating mines to human rights in the Ban begs a lot of questions. Were efforts mainly focused on banning the use, stockpiling, production and transfer of mines? Being a result of the failure of the Convention on Conventional Weapons talks, was the Ottawa process too entrenched in humanitarian law and thereby left little room for reflections regarding International Human Rights Law? Were NGOs voicing the rights of all mine affected people or mainly those of victims? Or did they “pick their battle” and prefer to focus on a total ban? Were the issues of human rights too sensitive to bring in because it would probably result in major cases of economic compensation? Would reference to rights mean that the pill would have been much harder to swallow politically and the chances of broad ratification minimal?

Nevertheless, the fact remains that while the Landmine Ban is an extraordinary achievement, it is not a document that has promoted the concept of the human rights of all people affected by mines. Considered by many stakeholders as a “humanitarian instrument” that aims to protect victims by endeavouring to limit the suffering caused by war, the Ottawa Convention has no doubt contributed to the concept of mine action being a humanitarian function instead of an activity related to human rights which is relevant in conflict as well as in peacetime situations.

3.2 Human Rights and Mine Action – Relevance to Danish Policies
Neither Danish mine action assistance or Denmark’s mine action policy touch upon the issue of the rights of mine affected people and the victims of mines and UXO. However, according to the Danish development policy human rights should be an integral element of Danish support. Human rights are to be a central element in the political dialogue with developing countries and in negotiations in the international system. Furthermore, a priority of Danida’s humanitarian strategy is the assessment of the consequences assistance may have for human rights.

This not only establishes that Denmark’s underlying policy framework is coherent with a rights perspective or a rights approach to mine action, the overall policy framework actually compels Danida to address mine action from a human rights point of view:

Danish development policy is an integral part of Denmark’s foreign policy, in which the promotion of common security, democratic government and respect for human rights together with the fostering of economically, socially and environmentally sustainable development form the overriding objectives.²⁰

3.3 Rights Impact in the Four Case Study Countries
Based on the focus group discussions and interviews undertaken during the country case studies (Nicaragua, Eritrea, Laos and Somaliland), this study has analysed how landmines may impact on rights. Except in a couple of cases in Nicaragua, mine affected people did not express the impact of mines in terms of rights. Nevertheless, frequently the needs and aspirations of the mine affected people implicitly related to rights and can therefore often be interpreted from a rights perspective.

Among the beneficiaries that the team could access (over 400 people in four countries – Eritrea, Laos, Nicaragua and Somaliland), the most important impact of mines/UXO on human rights appears to be the impact on the rights to life, security of person and physical integrity. In all countries, the fear for ones life or that of family members was emphasised several times. In all four countries, the villagers mentioned the great fear they have for the lives of their children. Even though the risk of landmines to human lives in Nicaragua is low compared to that of e.g. Laos, Somaliland and Afghanistan, Nicaraguans still consider the threat mines pose to life and physical integrity as the most important impact.

In Eritrea and Laos, farmers held that mines and UXO hampered their ability to feed themselves. In Laos focus group participants, who were almost all subsistence farmers, claimed that the food production was slowed down considerably because farmers had to take extra care. In Eritrea some participants expressed that if they did not die from a mine, they risked dying from starvation since the presence of mines hampered them from producing the food and/or income required to acquire food. In all countries affected populations mentioned the death of livestock as a result of mines and UXO. These findings suggest that the right to adequate food was infringed upon.

Apart from the risk mines entail regarding physical and mental health, there were indications that the fear of mines and UXO directly affected mental health of some affected people. According to their own accounts, explosions appeared to have trauma-like impact on some people and the concern for the safety of their children resulted in what focus group participants expressed as a constantly stressed state of mind. In discussions, affected populations also mentioned that injured survivors did not receive the assistance they needed either in terms of medical assistance or social reintegration. These findings indicate that mines and UXO breach the right to a standard of living adequate for mental and physical health and well-being as well as the rights of disabled people as confirmed by UN resolutions.

In Nicaragua, Somaliland and Laos the team came across cases of the right to education being violated by the presence of mines. School buildings were mined or access to schools was hampered. Children were often discouraged from going to school by their parents if it was suspected that they had to walk over mine-contaminated areas.

In Eritrea and Nicaragua there were examples among focus group participants who could not return to their homes because of mines and UXO. In Eritrea this meant living in camps for displaced people. In these cases, the right to adequate housing may be violated.

Among many of the affected people encountered, mines violated the right to favourable working conditions. For example, tilling a field in Laos posed a considerable risk for farmers. Likewise, herding livestock in Somaliland and Eritrea in mine contaminated area resulted in dangerous working conditions.

As a result of mines and UXO, collecting the necessities of life – wood and water – was often a dangerous task and can be seen as a violation of the right to an adequate standard of living for well-being.

In all countries the landmine/UXO contamination constitutes a violation to the right to freedom of movement. In Somaliland, this should be seen in light of the fact that the vast majority of Somalilanders originate from a nomadic culture where movement is not only an economic necessity but also a lifestyle. Even city-dwellers roamed the countryside in their free time and considered this an important cultural activity. This suggests that in this respect the freedom to participate in cultural life was adversely affected.

Some participants of focus groups, particularly in Eritrea and Laos, expressed that mines were hampering the socioeconomic development of the community. In this regard, mines and UXO violate the human right to development as laid down by the Declaration on the Right to Development.

3.4 Summary of Some Stakeholder Perspectives
Different stakeholders had different views on human rights. Among those interviewed there was a general tendency that nationals (government officials, representatives of national NGOs, beneficiaries) of mine affected countries tended to have an easier time relating to the concept of human rights and its linkages with landmines and UXO. Meanwhile, mine action operators tended to have difficulties in seeing this connection.

In Nicaragua virtually all stakeholders encountered were positive the concept of integrating human rights in mine action. The Nicaraguan army believes that the consideration of human rights is implicit in their clearance activities – human rights were regarded as an obvious concern. In Somaliland, two ministers relevant to mine action asserted that prioritising mine action in line with human rights was highly relevant. They explicitly expressed a deep concern about the mine danger and their assaults on their right to life, their rights to health, protection and a safe environment for work and leisure, and for the freedom of movement.

National NGOs encountered were positive to the concept of a rights based approach. In Nicaragua, for example, a rights based approach to mine action was seen as potentially useful because although Nicaragua will soon be declared mine free, there will still be a risk of mines. Empowering communities at the local level could improve the prioritisation process within the CND, which NGOs argued did not sufficiently represent the grassroots. Therefore, it was considered a necessity to empower communities. In Somaliland, NGOs concerned with peace-building saw opportunities of addressing reconciliation and reconstruction through mine action based on human rights concerns

Although some UN agencies in some countries had difficulties seeing the advantages that a human rights approach or a rights perspective to mine action might bring in terms of prioritisation and impact, in other cases thought had been applied to the concept. For instance, one UN agency representative in Laos believed that it was essential to take human rights into account when considering mine action and prioritisation of land to be cleared or populations to be reached with MRE. Such an approach was considered especially relevant in Laos, where the UXO problem is enormous and the sparse resources for mine action need to be directed at villages/persons that are the most vulnerable and in most need of clearance. At the same time, a strictly socio-economic approach was doubted in terms of effectiveness because of the risk that the weakest groups in need are over-looked.

At headquarters and field level many mine action operators were sceptical to the idea of developing approaches based on human rights. They held they were still struggling with applying socio-economic approaches to prioritisation. Except in Nicaragua, the concept of mine affected people as rights holders seemed foreign to many mine clearance operators in the field. Some considered that a rights based approach would just entail another bureaucratic process which at most would amount to a mere change in terminology – a new buzzword. Resources and energies should instead be focused on removing mines.

A couple of mine action operators were supportive of the concept of applying human rights to mine action processes. However, they expressed concern regarding the additional costs of applying a new approach. Although effectiveness may be enhanced, efficiency might be negatively affected resulting in poorer competitiveness of the organisation.

Although human rights organisations and non-mine action NGOs were interviewed for this study, few had practical experience of applying a rights based approach. It appears that the development and application of rights based approach is still in its infancy.

4. Conclusions & Recommendations – the Prospects of a Rights Based Approach

4.1 Conclusions

1. There is a growing understanding in the aid community that by focusing on rights and freedoms (all rights – not just civil and political rights) poverty reduction, economic growth and welfare will naturally follow. Although rights based approaches are fairly developed at a general rhetorical level, there are not many examples of it being applied in development assistance.
2. There is a clear link between mine action and human rights. Landmines and UXO constitute a source of gross human rights violations since they kill and maim people, create fear and block people’s opportunities to fulfil their right to a sustainable livelihood. Because the realisation of human rights is also intricately linked with sustainable peace, a human rights perspective to mine action is even more relevant in the fragile peace of a post-conflict country.
3. Mine action, in its broad sense, has the potential of an important contributor to the protection, promotion and fulfilment of human rights; both in reducing risk and assisting victims but also in advocating for the total ban of landmines and in informing affected communities about their rights in relation to mines. However, the rights of mine affected people have to a large extent been neglected in mine action. Although several mine action organisations such as UNICEF, UNDP and DanChurchAid are involved in applying a rights perspective to assistance in other sectors, the incorporation of rights in mine action is still rare.
4. There is very little reference to human rights in mine action – apart from a few exceptions, policies, UN resolutions, strategies and programme documents do not mention rights of mine affected people. Human rights organisations do not either appear to have made significant advocacy efforts relating mine action to human rights.
5. Among many mine clearance operators the understanding of the connection between rights and mines is limited and not deemed relevant. The concept and application of a rights based approach is often dismissed. Many mine action practitioners tend not to consider mine affected people as rights holders – at best they participate marginally late in mine action by pointing out where the mines are. However, among country level stakeholders such as NGOs, human rights organisations and even government authorities, there is a greater understanding of the relationship between mine action and human rights. They tend to consider a human rights perspective on mine action to be relevant.
6. A rights approach to mine action would contribute to enhancing the quality of mine action. In particular, it offers an agreed international framework consisting of a coherent body of norms and principles that gives practical meaning for development cooperation. In addition, given the recognition that people are at the centre of the development process and the intricate relationship between human rights and poverty, such an approach has the potential of leading to more effective, more sustainable and more genuine development processes. Moreover, manifestly linking human rights and mine action will strengthen the concept that mine action is about people and mines and would constitute a relevant way of addressing the needs of mine affected people and mine victims.
7. A rights based perspective or approach to mine action provides a distinctive basis for measuring impact and prioritising mine action. With regards to implementation it is important to recognise that very right of every mine affected person cannot realistically be embraced. Thus implementation must be incremental where efforts are first concentrated on people who have the least rights fulfilled. Although there is no hierarchy of rights and although all rights are equally important, interrelated and indivisible, this is not inconsistent with prioritising efforts according to the most urgent human rights violations in the specific national and sub-nation context. In fact, such an approach to prioritisation would enhance effective and ensure the best use of available resources. However, it requires an accurate assessment and understanding of the situation of mine affected people.
8. A rights based perspective or approach to mine action would therefore require an analytical as well as a cultural shift within the mine action community. It would also have to be based on significant trust between the authorities and mine action organisations and must recognise the primacy of the participation of affected communities. Mine affected communities would also be expected to fulfil their obligations and take responsibility in the mine action effort, by, for instance, participating in setting community priorities for mine action, abstaining from removing marking material for mined areas and engaging in the diffusion of mine risk education.
9. However, since a rights based approach to mine action is “new territory”, developing practical ways forward will be a challenge requiring further indepth analysis of, for instance, applied examples from other sectors. Many organisations will not have the required capacity to embark on a full-fledged rights based approach. On the other hand, integrating a rights based perspective that consists of analysing the impact of landmines and UXO in terms of human rights and undertaking prioritising accordingly would be feasible for most organisations.

4.2 Recommendations

1. At a minimum Danida should insist on the integration of human rights perspectives in mine action. The UN should be encouraged by Denmark to review its strategy in this light. Organisations willing to develop full-fledged rights based approach should be viewed in a positive light by Danida.
2. The understanding between human rights and mine action should be further studied by the mine action community. The UN and GICHD could have an important role to play in this regard.
3. Human rights training should be included in the management training of mine action staff as a matter of course. For this purpose, the expertise of OHCHR and UNDP, who have trained aid UN staff in human rights for several years, could be drawn upon.
4. Mine action organisations on the ground should be encouraged to advocate for the rights of mine affected persons and to establish partnerships with organisations on the ground with a solid and practical understanding of human rights.
5. Organisations such as UNICEF, UNDP and DanChurchAid that have a tradition of rights based approaches or are starting to develop rights based approaches should be encouraged to apply its knowledge and experience in this field to mine action.

1) This section and the following two draw heavily on The Human Rights Council of Aus-tralia Inc. The Rights Way to Development. 2001.

2) The Human Rights Council of Australia. The Rights Way to Development. 2001. Page 11.

3) Ibid. page 12.

4) Rights are often divided into civil and political rights (CP) and economic, social and cultural rights (ESC). While this division is a fully valid approach used by many international actors, it has some disadvantages: 1) It often leads to a situation where the analysis of CP rights overshadows the ESC rights; 2) Separating ESC rights from CP rights may fail to highlight that the two are intimately linked.

5) For instance, the Declaration on the Right to Development states in its first article by virtue of their inalienable right to development “every human person and all peoples” are entitled to participate in (and contribute to and enjoy) development”

6) Page 52.

7) Page 30

8) Sida. Working Together. The Human Rights Based Approach to Development Cooperation, Stockholm Workshop, 16 – 19 October, 2000. Part 1., p.25 – 26.

9) International Covenant of Economic, Social and Cultural Rights, Part II, article 2.1.

10) The Universal Declaration on Human Rights, preamble.

11) World Bank, 1990.

12) Declaration on the Right to Development, General Assembly Resolution 41/128, 1986.

13) The Human Rights Council of Australia. The Rights Way to Development. 2001.

14) Michael Dodson. First Report 1993. Australian Government Publishing Service, Canberra. p.6.

15) Declaration on the Right to Development, General Assembly Resolution, article 1, 1986.

16) (UN Mine Action Strategy, IV Framework: sect. 11)

17) Amy Delneuville UXO Awareness Education Activities supported by UNICEF in the Lao PDR. External Evaluation, June - July 2000.

18) Unexploded Ordnance Project in the Xieng Khoung Province, Laos Phase II. p. 14

19) The framework does mention the human rights of war victims and disabled, but not the rights of mine affected people in general.

20) Source: Denmark’s development policy – strategy, Partnership 2000.

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