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The complex terrain of rights-based approaches:

from the renewal of development practices to
depoliticisation

Etienne Roy Grégoire, Bonnie Campbell & Marie-Christine Doran

To cite this article: Etienne Roy Grégoire, Bonnie Campbell & Marie-Christine Doran (2017)
The complex terrain of rights-based approaches: from the renewal of development practices
to depoliticisation, Canadian Journal of Development Studies / Revue canadienne d'études du
développement, 38:2, 169-183, DOI: 10.1080/02255189.2017.1318049

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 CANADIAN JOURNAL OF DEVELOPMENT STUDIES
REVUE CANADIENNE D’ÉTUDES DU DÉVELOPPEMENT, 2017
VOL. 38, NO. 2, 169–183
https://doi.org/10.1080/02255189.2017.1318049

The complex terrain of rights-based approaches: from the

renewal of development practices to depoliticisation
Etienne Roy Grégoirea, Bonnie Campbellb and Marie-Christine Dorana
a
School of Political Studies, University of Ottawa, Ottawa, Canada; bDépartement de science politique,
Université du Québec à Montréal, Montreal, Canada

ABSTRACT ARTICLE HISTORY

In the field of development, the rights-based approach has been Received 21 December 2016
advocated as a radical and necessary change as much as it has Accepted 26 March 2017
been criticised for legitimising the status quo. Its more recent
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KEYWORDS
diffusion into other spheres offers the opportunity to analyse, Rights-based approach;
from a historical perspective, the political function of human human rights; development
rights – as a tool for emancipation or depoliticisation. Emphasising policies and practices;
the highly political nature of these issues, the contributions in this citizenship; power relations
special issue underscore the indeterminate nature of these
processes and the importance of public debate for renewing
development practice and realising the emancipatory potential of
human rights.

RÉSUMÉ
Dans le domaine du développement, l’approche par les droits a été
défendue comme un changement radical et nécessaire et critiquée
comme légitimation du statu quo. Sa diffusion plus récente dans
d’autres sphères offre l’occasion d’analyser, dans une perspective
historique, la fonction politique des droits humains – comme outil
d’émancipation ou de dépolitisation. Insistant sur la nature
éminemment politique de ces enjeux, les contributions de ce
numéro spécial soulignent ainsi la nature indéterminée des
processus et l’importance du débat public pour le renouvellement
des pratiques de développement et la réalisation du potentiel
émancipateur des droits humains.

Revisiting rights-based approaches

In recent decades, the decidedly mixed results of reforms introduced in the name of “good
governance” have generated a large body of research, which increasingly finds that such
reforms are not conducive to improving governance, nor do they promote respect for
human rights. In response, scholars and policy makers have tried to articulate better
the normative framework of rights with the content of reforms and public policies (see
Alston and Robinson 2005a; Cornwall and Nyamu-Musembi 2004). These efforts have
been especially visible in the field of aid. The United Nations Development Programme
(UNDP) adopted the rights-based approach (hereinafter RBA) to development in 1998
(UNDP 1998); UNICEF elaborated a comprehensive RBA for its programming and

CONTACT Etienne Roy Grégoire eroyg046@uottawa.ca

© 2017 Canadian Association for the Study of International Development (CASID)
 170 E. ROY GRÉGOIRE ET AL.

procedures the same year (see Darrow and Tomas 2005, 480) and released its Human
Rights Approach to Development Programming in 2003 (Jonsson 2003); while at the
same time some 10 UN and other development agencies adopted a “Common Under-
standing on the Human Rights-Based Approach to Development Cooperation” (see
Alston 2005, 799). The Office of the High Commissioner for Human Rights, for its
part, proposed a RBA for donors for the development of poverty reduction strategies
(OHCHR 2004a, 2004b). UNESCO has since underlined the usefulness of a RBA as an
operational framework for the same purpose (UNESCO 2007), and the OECD and
World Bank’s report Integrating Human Rights into Development: Donor Approaches,
Experiences and Challenges underlines the need to take account of human rights in aid
and development strategies (OECD and World Bank 2013). Many NGOs and governmen-
tal development agencies also employ RBAs (Darrow and Tomas 2005, 480).
Certain analysts have pointed out that such an approach would not only help improve
development cooperation policies, but contribute to a radical reformulation of the policies
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themselves (Alston and Robinson 2005b). More broadly, a RBA clearly has the potential to
open the door to the reconfiguration of power relations, as the centring of rights directly
questions top-down approaches and leads to more deliberative approaches based on maxi-
malist notions of citizenship (Lautier 2009, 19–36). However, these reformulations and
reconfigurations are not unequivocal. At one end of the spectrum is the RBA’s potential
to question asymmetries in social and political relations and to open new political space
for the redefinition of the responsibilities, obligations and rights of the actors concerned,
including those of citizens in their relations with each other and with the state.
At the other end of the spectrum, however, is the possibility that RBAs amount to little
more than a discursive strategy aimed at maintaining the status quo and re-legitimising
intervention and conditionality (Matthews 2013), thus consolidating power asymmetries
in general and in the field of aid in particular. The jury is still out with regard to the aid
sector, and the issue still generates an abundance of academic and “grey” literature (for an
overview of this literature, see Décary-Secours 2017).
The language of rights and RBAs is becoming common among actors in other fields
than aid and development cooperation – transnational companies, government agencies
and social movements, for example. As the different arenas of global governance
become increasingly intermingled, some analysts suggest that human rights are now
part of a vocabulary shared by actors with contrary interests and strategies – a common
vocabulary, but one used with diverging underlying “grammars” (Blouin Genest and
Paquerot 2016; Mayer 2009). The ever-wider adoption of the language of rights has
been disparaged by González Armijo (2015, 198) as having been “picked up, chewed,
and spit out by different frameworks that allow financial institutions and the private
sector to continue pursuing the dynamics and flows of capital”. It is thus time to revisit
the debates raised by rights-based approaches to development and to assess how the gen-
eralisation of “rights discourse” may be transforming the issues to which it is being
applied, far beyond the field of aid.
As is well known, there is a strong underlying tendency towards technocratisation of
contemporary global governance, as reforms and institutional progress in different
sectors over the last decades have increasingly been evaluated by techniques such as
using “governance indicators” (Campbell 2010, 210). The risk lies in the attempt to
capture extremely complex issues and processes, which have been historically constructed
 CJDS / LA REVUE 171

and are country-specific, using concepts such as “government effectiveness”, “regulatory

quality” or “voice and accountability”, which are themselves constantly evolving, contro-
versial and innately subjective (Campbell 2010, 210). This trend contributes to depoliticis-
ing key substantive issues by treating them as administrative and procedural matters. Seen
from this perspective, in certain contexts rights discourse and strategies (for example,
human rights certification schemes) end up creating opportunities for the legitimisation
and consolidation of practices which may well be contrary to the realisation of the
rights they claim to protect.
This special issue presents three sectoral analyses and three case studies undertaken in
Africa and Latin America in order to examine closely the implications of the increasing
references to human rights in development policies (in the fields of natural resource gov-
ernance, public health, land, housing and indigenous rights) for social struggles more gen-
erally. The case studies reveal unsuspected nuance in evolving practices and discourse, and
their findings more varied effects than might be expected – from the gradual opening of
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political spaces, the creation of new politico-legal fields and professional markets, to the
instrumentalisation of discourse, and even to the criminalisation by the state of certain
rights claimants.
In putting this special issue together, we hope to contribute to efforts to overcome com-
partmentalisation among disciplines and approaches based on a single sector, by placing at
the centre of the analysis the idea of a necessary re-politicisation of issues of governance
and development more generally. With re-politicisation, we mean bringing back in citi-
zens’ views and debates over development, something the anti-poverty strategies of the
past 15 years have clearly been avoiding (Campbell, Doran, and Kazi-Aoul 2005; Peñafiel
2015; Rist 2007).
Depoliticising of issues is of course a political act in itself. It is an attempt to abstract
situations from any historicised readings of power relationships by pretending to apply
neutral and technical diagnostics and solutions. Depoliticisation has many dangerous
effects: it renders controversies invisible, delegitimises dissent and prevents self-critical,
reflexive and morally grounded stances on the part of the actors involved. As a result, it
tends to reinforce power asymmetries rather than mitigate them. Ultimately, depoliticisa-
tion can lead to such phenomena as the criminalisation of social protest which targets
freedom of expression and association in many countries As Olarte (2014, 142) explains
very clearly:
The increasing criminalization of social protest that we are witnessing today entails a form of
depoliticization understood as neutralization in political terms. Legal dispositions criminaliz-
ing protest, whether directly or indirectly, provide a legal form inside which the autonomy
and immunization of economic decisions are determined.

Politicising issues, on the contrary, aims to illuminate the diversity of interests, postures
and underlying asymmetries of power and questions their legitimacy. “Solutions” are then
presented for what they are: political decisions which imply privileging some interests over
others and that may represent breaks or continuities in historicised social processes, modi-
fications or perpetuations of structures of power. Our perspective is thus explicitly anti-
teleological in that the special issue’s case studies reveal an irreducible diversity of possible
historical trajectories, while their careful and well informed analyses underline the many
ways in which human rights are articulated with political processes.
 172 E. ROY GRÉGOIRE ET AL.

Critiques of depoliticisations are not new to the development literature. In his classic
work, Ferguson (1994) identified “regimes of truth” deployed by institutions such as the
World Bank, in which countries “can be represented [as having] a geography, but no
history; people, but no classes; values, but no structures; administrators, but no rulers;
bureaucracy, but no politics” (66). The pioneering work of Jayasuriya and Hewison
(2004) on the “antipolitics of good governance” in Asia makes the same argument:
The thread that runs through the global social policy is a distinctly political project that uses
the liberal language of participation and empowerment as a strategy of “antipolitics” that
marginalizes political contestation. (571)

What the contributions in this special issue illustrate, however, is how the language of
human rights – arguably introduced precisely to re-politicise the development field – can
still be instrumentalised by some actors, to make techniques of power not only presentable
but also more sophisticated and efficient. The perspective we aim to develop in this special
issue is in agreement with Haughney’s (2007) observation about the newly democratic,
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neoliberal Chile: the re-politicisation dynamics coming from the appropriation of rights
by social actors may be hobbled by “neoliberalism’s narrow definition of the proper
scope of politics and rights” (154).
In fact, the relationship of different maximalist or minimalist versions of human rights
with political dynamics raises a number of important empirical and theoretical questions.
If, as suggested by Doran, the invocation of human rights may stem from processes of
democratisation, more specifically the appropriation of legal dynamics through “a
concept of justice which brings together institutional justice […] and social justice”
(Doran 2010, 9), the political function of human rights may be seen as specific to each
of the situations analysed in this special issue. The diversity of concrete historical situ-
ations thus underlines a multiplicity of conceptual and practical issues: How do human
rights relate to particular forms of normativity – which authors such as Rodríguez-
Garavito (2011) consider characteristic of neoliberal governance – that set aside substan-
tive conflicts in favour of strictly procedural issues? How much does the mobilisation of
human rights language outside legal enforcement mechanisms consolidate efficiency as
a normative justification (Berns 2011), thereby undermining the moral imperatives that
underlie the legitimacy of human rights in the first place? In view of the proliferation
of normative projects or arguments advanced by different actors, what is left of the hier-
archy of norms, often put forward as a necessary condition for the implementation of
human rights (Alston 2005, 19)? If the actions and strategies of actors are motivated
above all by logics that are pragmatic or instrumental, what is left of the need for an exter-
nal (extra-legal) legitimation, with which human rights were attributed after the Second
World War and its atrocities, committed with the complicity of the law (Israël 2009,
14)? And to the extent that disenfranchised actors invoke human rights to defy the
reduction of their humanity to legal categories (Montesinos Coleman 2015; Supiot
2005, 11), how do they reconcile the paradoxical imperatives of rights entitlement with
that of open-ended political identities, a condition for emancipatory political arrange-
ments? What kinds of social contracts are implied by concurrent invocations of human
rights?
All of these questions are addressed, to varying degrees, in this special issue. In the
remainder of this introduction, we shall situate them within the context of the
 CJDS / LA REVUE 173

generalisation of RBAs in the field of international development and beyond. We contend

that this process calls for the definition of new sites of study, including sites of depolitici-
sation of the ideas of rights and citizenship, as some of the case studies show.

RBAs and development institutions

As indicated above, rights-based approaches to development have been put forward as a
response to the mixed results of “good governance” reforms and must thus be considered
in light of wider criticism of neoliberal policies.
Cornwall and Nyamu-Musembi (2004) have described very well the disagreement
between those who consider that recourse to human rights language necessarily leads
to the re-politicisation of development, and those who consider this as merely a new
rhetoric whose object is precisely not to modify current practices (see also Uvin 2007,
599). Cornwall and Nyamu-Musembi point out that “a rights-based approach would
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mean little if it had no potential to achieve a positive transformation of power relations

among development actors” (2004, 1432). In order for this to happen, it is necessary to
consider the accountability mechanisms (whether established or not) concerning of
human rights discourse. These authors note that, while a RBA is likely to encourage
some development actors to exercise their agency reflexively in favour of discriminated
or marginalised groups, it is also correct to assert that “international development
agencies – to varying degrees – use the language of [RBAs] largely to invoke the discur-
sive power of the concept of rights, without intending to bear the weight of the entirety
of consequences that flow from it” (Cornwall and Nyamu-Musembi 2004, 1433). Their
critique can apply equally to violations of human rights that result from the actions of
development agencies themselves, as illustrated eloquently by the Special Rapporteur on
extreme poverty and human rights (United Nations 2015) with regard to the World
Bank.
Consequently, if human rights, as an important part of the RBA, were seen as an oppor-
tunity to re-politicise certain issues (participation, for example), when considered histori-
cally, since the 1970s and 1980s, they have also offered supporters of the status quo the
opportunity to fend off the demands of the countries of the South (Cornwall and
Nyamu-Musembi 2004, 1423–1425). Indeed, most of the contributions in the influential
volume by Alston and Robinson (2005a) (see Wolfenson 2005; Kaufmann 2005;
Nankani, Page, and Judge 2005) underline the convergence of “the human rights
agenda” and “the development agenda” without referring to the inherently contested
nature of both agendas. Uvin’s (2007) assessment saw much of the human rights discourse
as a “quest for the moral high ground” rather than any fundamental change in power or
resources (603).
On the other hand, Uvin also warned against excessive cynicism:
Major change always starts small, and even rhetorical gains sometimes turn out to be the
snowballs that set in motion fresh avalanches[.] [T]here are organizations and people, in
both rich and poor countries, who are courageously rethinking their long-held ideologies
and practices in terms of human rights. And there are many more development practitioners,
everywhere, who debate these questions in a new manner and try to add layers of account-
ability, transparency, and organization to their own work. Much more can be done with
human rights. (Uvin 2007, 603)
 174 E. ROY GRÉGOIRE ET AL.

It is therefore against a background of intense self-interrogation on the part of many

analysts in this area and one characterised at present by a certain scepticism about the
potential of RBAs to achieve a positive transformation of power relations among develop-
ment actors that this collective scholarly initiative was undertaken.
Décary-Secours (2017) opens this special issue with a careful exploration of the heritage
of the rights discourse (a genealogy) and an overview of current trends concerning RBAs
in development. He concludes that the multiplication of competing definitions concerning
rights-based approaches does not detract from the importance of human rights in devel-
opment, but rather raises the political saliency of this notion and its support for a rethink-
ing of development. He distinguishes between two conceptions of the law, emancipatory
and conservative, with the latter provoking a technicisation of law rather than its politici-
sation and hence favouring the maintenance of a stable and predictable environment. He
underlines that the spread of RBAs represents a theoretical deepening of the interdepen-
dence of notions of “development”, “human rights”, “freedom” and “democracy”, as pro-
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posed by Sen (1999) in his influential book, Development as Freedom. However, the
recognition of this interdependence can either favour the status quo or signal a fundamen-
tal paradigm shift. Decary-Secours notes a tension in the literature between the political
objectives of a RBA – advocating the acquisition of political power by the marginalised
and questioning the power relationships between people and their governments, as well
as between populations and development agencies – and the analytical framework and
the legal instruments that are introduced to bring about those political objectives.
Decary-Secours then reviews how different ways to integrate RBAs in development
imply different decisions about both the foundations (mission, values, long term objec-
tives) and activities and strategies.
The effect of institutional inertia and the cohabitation of competing practices and logics
under the apparent consensus on rights are well illustrated in the contribution by Robert,
Lemoine and Ridde (2017). In the global health sector, outdated practices survive and
adapt to the general embrace of RBAs even if the latter inevitably colours debates and
decisions at the international level. Beyond the generalised recognition of health as a
right, tensions persist both with regard to the means necessary to achieve this right and
the commitment of the various actors to actually ensure it becomes effective. The
authors underline that there is a desire on the part of the actors of the international com-
munity to adopt a RBA in order to ground collective action in a robust consensus.
However, there are differences both over the concept of universal access to health care
and the modalities of implementation, in particular the issues of accountability and par-
ticipation. Who is to be held accountable, and how? If in theory the consensus on universal
health coverage implies a re-centring of the state in service provision, in practice the inter-
national community seems incapable of guaranteeing or proposing procedures to ensure
the accountability of public actors in the area of the right to health. Who participates, and
for what purpose? Here various conceptions of participation seem to work at cross-pur-
poses: some view it as a means to the empowerment of populations, some as an essentially
economic concern and some even argue in favour of the involvement of private actors in
the delivery of health care.
In fact, global health actors are not totally polarised with regard to accountability and
participation; rather, their world visions are fragmented, with two contrasting currents of
thought: holistic and biomedical. The latter current reflects a linear perspective on
 CJDS / LA REVUE 175

development that depends on economic growth in a context in which the state assumes the
role of the allocator of scarce resources, which must be used as effectively as possible
(results-based financing). As documented by the authors, this way to finance universal
health care perpetuates various risks, both political (weak popular support for a solution
which does not concern the majority, social stigmatisation) and technical (selection errors)
practices which a RBA might be able to avoid.

Beyond aid: the political functions of human rights

The ambiguous political role of law is part of its very nature: lodged a priori on the side of
order, it can also be a tool to contest it (Israël 2009, 71). And although it can advance pro-
cesses of emancipation as a legal idiom that adversaries can agree on, law can also serve to
transform substantive demands into terms which are strictly procedural, and in so doing
make them more acceptable and manageable for the more powerful actors of global gov-
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ernance (Rodríguez-Garavito 2011). Moreover, by reducing a complex political reality,

which is both contested and constructed, to a series of ontological categories and represen-
tations, the law can lead to the reification of notions such as property, participation or the
subject – the political subject and the subject of law (Sieder 2011, 11). The “strategic rei-
fications” determined by the structure of political and legal opportunities can in fact lead
to the restructuring of communities by destabilising their very political and social
dynamics (Wicomb 2015; also Burawoy 2015, 357). Consequently, competing legal prac-
tices configure a space in which meaning is contested, and law is consequently “constantly
negotiated and reshaped in a dynamic dialectic between hegemonic projections and
counter-hegemonic actions” (Sieder 2011, 242). Since RBAs have found proponents in
other sectors beyond aid and development, what new meanings are brought forward as
a result of the call for recourse to law in these other sectors of global governance?
In the body of socio-legal literature, the problems raised by the relation between law
and politics have been studied in depth in the context of the juridification of struggles
and demands (for example, Sieder, Schjolden, and Angell 2010). Within this framework
is, as Israël points out, on the one hand, the recourse to law as a shield against the arbitrary
use of power, the judicial arena as a public space, the trial as the staging of the contradic-
tions of a social order, and consequently the questioning of its legitimacy (Israël 2009, 13,
73). On the other hand, she shows that the process of juridification contributes to the
legitimacy of the regimes that are contested and can transform political causes through
the constraints and the opportunities for action which result from legal expertise (Israël
2009, 85–88).
However, the courts and judicial arenas represent only one of the scenes where the law
is implemented. In contrast to other normative orders, human rights – and all the more so
rights-based approaches – maintain a very complex relationship with litigation and the
judicial arena. In the different contexts described in this special issue, human rights are
often promoted, as a discourse, by actors who are rarely challenged by legal action
(NGOs, United Nations agencies, international financial institutions, government devel-
opment agencies). These agencies benefit from the advantage of a large power asymmetry
in the context of litigation or they intervene in the form of transnational networks, which
allows them to partially bypass national accountability mechanisms (as is the case for
transnational companies). Doran’s article (2017) on Chile’s implementation since 2009
 176 E. ROY GRÉGOIRE ET AL.

of the International Labour Organisation’s (ILO) Convention 169 concerning indigenous

peoples’ right to consultation, is an interesting case. Although the convention imposes
precise legal obligations on governments, Chile considers these obligations only for devel-
opment issues of lesser importance. Meanwhile, grave conflicts over natural resources,
involving the entailing criminalisation of dissent, are taking place with indigenous
nations both in the extreme north and south of the country, conflicts that relate to
struggles for the national and international legitimation of recent Chilean governments.
The spread of RBAs consequently entails the deployment of human rights in spaces
which are structured a priori by other logics – market forces and de-territorialised
regimes (Frydman and Chérot 2012; Szablowski 2007), or expanded “spaces of govern-
mentality” (Sawyer and Gomez 2008). Each of these political arenas (Dabène 2008) can
be expected to exhibit a different articulation of the political and the legal.
According to Liora Israël, human rights are an answer to the need for an external refer-
ence point for law, as opposed to an autonomous and self-referential law (Israël 2009, 14).
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Human rights therefore necessarily refer to a legitimacy which is potentially greater than
that conferred by institutional and legal arrangements, on the basis of which they are
invoked, and as a result of which their relationship to constituted and constituent powers
is therefore ambiguous. The special issue’s article by Chris Beyers (2017), analysing the
tension between the implementation of the right to housing and the right to land in post-
apartheid South Africa, provides a perfect illustration of the contradictory political strategies
to which this ambiguity can give rise. Indeed, Beyers suggests that human rights in South
African society play two contradictory roles. On the one hand, when invoked as a result
of the victorious struggle against apartheid, human rights are used by the state to sustain
civic nationalism, elicit consent for developmental state policies or manage conflicts
between groups over resources and influence, thus legitimising constituted power. On the
other hand, for actors concerned with civil protest as the means to ending apartheid,
human rights claims refer to the constituent power vested in the people. In practice, as
Beyers shows, human rights as an extension of state power are articulated differently
from human rights as a contestation of the state’s legitimacy. In the first case, where the
“trade-off between adhering to human rights and maximising development outcomes is
most stark” (2017, 236), RBAs tend to privilege those whose interests align more closely
with the powerful and in practice become subordinated to market-oriented, macro-econ-
omic goals. Rights are given operational meaning through adherence to “best practices”,
reflecting a technocratic approach. In the second case, in contrast, human rights refer to
moral principles and are imbued by disenfranchised actors with deep historical and commu-
nal meaning, sometimes acquiring a disproportionate symbolic importance.
Beyers asks pointedly if large-scale programmatic interventions that rely on infrastruc-
ture development are compatible with rights-based development. With considerable
nuance, he describes how civil society actors use moral and legal rights as instruments
in the struggle for deeper political participation, for rights to shelter and land as to
“basic social citizenship” and in their “challenge to the very nature of the development
process” (Beyers 2017, 248), without necessarily seeking to destroy the state. For Beyers,
the point is not that politicisation is good in itself but that rights claims are primarily
about the terms of political engagement.
The language of human rights is therefore part of an arena in which different actors
project different conceptions of the social contract. Those actors are often prone to
 CJDS / LA REVUE 177

normative innovations whose performative dimension (their political impact) need to be

clarified. This performative dimension can of course be evaluated for each normative
project, but the dynamic of legal proliferation itself is important to consider. For certain
authors, the multiplication of normative orders fragments the practice of law into different
institutional projects, directed at various audiences, with the express (political) purpose of
producing certain results in the world (Koskenniemi 2009, 9).1 As a result, for others, the
multiplication of normative orders facilitates the maintenance of lawless areas, and estab-
lishes regimes based on direct relationships among actors that abstract power asymmetries
and contribute to translating issues of justice into technical negotiations based on compen-
sation mechanisms (Sanhueza Cubillos 2015; on direct engagement regimes, see Sza-
blowski 2010).
One normative innovation examined in this issue is indigenous participation mechan-
isms in the context of environmental conflicts in Chile. As Doran (2017) underlines,
although Chile is often seen as a model for its stable political institutions and the well-
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functioning judicial system, the country has nevertheless criminalised human rights defen-
ders, notably in cases of environmental and mining conflicts. After experiencing signifi-
cant national and international criticism, Chile adopted ILO Convention 169 in 2009
and has since progressed very rapidly towards the creation and promotion of new mech-
anisms for the consultation of Indigenous communities, inspired by a RBA. Important
conflicts reveal however that the design of these mechanisms reinforces the model of
top-down selection of “representative” leaders and excludes all expression of political
dissent. Far from expanding the horizon of rights, these mechanisms allow a continuing
criminalisation, particularly of indigenous communities, and reinforce low-intensity
democracy in Chile.
The contributions on the mining sector in this issue also consider the question of nor-
mative innovation. According to Roy Grégoire and Monzón (2017), the institutionalisa-
tion of Corporate Social Responsibility (CSR) under the banner of a RBA can be
understood as the construction of a new set of ontological relationships that unfold
under the use of human rights language. They analyse the way in which this normative
project articulates three major Colombian political arenas: the political economy of
resource extraction, transitional processes related to the armed conflict and Colombia’s
international relations. They show how the project to institutionalise CSR entails politi-
cal-normative coherence systems, and defines relationships among social groups.
Although formally it refers to the regulation of companies, performatively the institutio-
nalisation of CSR postulates a merging of the general interest with the interests of extrac-
tive companies and grants those companies a leading role in the pursuit of human rights.
Roy Grégoire and Monzón argue that this emerging “private–public reason of state”, inas-
much as it enables the alignment of the strategies of illegal armed groups, extractive com-
panies and public security forces, maintains a relation of coherence with practices and
logics that seek to discipline society in ways which, in the past, have included widespread
violation of human rights. They further ask whether this normative project contributes to
destabilising existing human rights enforcement regimes that have been mobilised by dis-
enfranchised groups for emancipatory purposes.
Coumans (2017) tackles the performative dimension of RBAs on a global level by exam-
ining the responses of mining industry associations and individual companies to increasing
pressure to ensure that mining activities respect human rights. She describes an evolving
 178 E. ROY GRÉGOIRE ET AL.

response characterised in the mid-2000s with scepticism as to whether human rights should,
or could, provide applicable standards for the sector, to the conflation of human rights with
approaches already domesticated by the industry under voluntary CSR, such as development
projects and benefit sharing. She also examines the strategic use by mining companies of
human rights tools developed privately, such as Human Rights Impact Assessments, or pro-
posed by the United Nations, such as project-level grievance mechanisms. Coumans draws
our attention to the way in which RBAs are defining a new consultancy market on the basis
of human rights expertise. Each of these intersections of human rights with the mining
sector provides an opportunity to examine how the concept of human rights is reconstructed
as it is engaged with by industry lobby groups, corporate lawyers, CSR practitioners and risk
managers. She concludes by raising troubling questions about the way in which fundamental
human rights institutions, such as the United Nations, are influenced by their engagement
with the mining sector.
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Beyond vicious cycles: our contribution to public debate on rights in

development
Our collective project has sought to contribute to discussions of the rhetorical dimension
of normative change by examining how the language of rights can give rise to practices
which consolidate power asymmetries, which discipline or domesticate. Indeed, our
case studies do not support a simplistic reading of RBAs, but emphasise the importance
of adopting a historical and contextualised perspective in each case. They provide very
little support for a blindly optimistic view that a RBA signals progress.
Teleological views are often combined with discourses that posit an imperative of nor-
mative efficiency, since by decreeing the inefficiency of “classical” modes of regulation (see
Roy Grégoire and Monzón 2017) only one historical trajectory would remain possible: that
of global governance progressively converging on the realisation of human rights. In con-
trast, the contributions to this special issue outline several alternative trajectories that,
taken together, suggest a much more nuanced perspective. From the reproduction of
counter-productive practices under the blanket of an apparent consensus on RBAs
(Robert, Lemoine and Ridde), to the depoliticisation of substantial struggles (Décary-
Secours), to the postulation of a necessary coherence between the economy and human
rights and the constitution of disenfranchised social sectors as targets of a relegitimised
“reason of state” (Beyers; Doran; Roy Grégoire and Monzón) and finally, to the relative
capture of important human rights institutions (Coumans), RBAs would seem to have
come full circle in a particularly vicious dynamic.2
It is necessary, however, to question the totalising nature of this interpretation and
insist on the contingent characteristics of these trajectories: as several of this issue’s articles
illustrate, society is not passive, it defends itself with the weapons that are furbished against
it, refuses to let itself simply be governed, reified or trodden upon. The sole fact that there
is a public debate and that underprivileged or marginalised populations continue strug-
gling for their rights, as many of the contributions contend, suggests that RBAs might
help consolidate a movement “from below” (de Sousa Santos and Rodríguez-Garavito
2005) that is not to be neutralised easily.
It is therefore in drawing attention to the indeterminate, the reversible, the nonlinear
and paradoxical nature of the processes analysed that the significance and more lasting
 CJDS / LA REVUE 179

contribution of the quality and the richness of the analyses presented in this issue will be
judged. In turn, it is the quality of public debate, which we hope this issue will enrich, that
is likely to improve development practices so as to further realise the emancipatory poten-
tial of rights. Several observations can be made in this regard.
First, with regard to methodology, our case studies underline the importance of histori-
cal, local specificity, in order to assess the political function of human rights language and
RBAs. They also underline the need for a multi-level, context-specific, empirically and his-
torically grounded approaches to capture conflicting rights and conflicting political
strategies.
Second, even if rights are formally recognised by all actors (companies, the state, civil
society, communities), differences often occur at the level of the operationalisation of these
rights and their concrete implications.
Third, this collection of articles reveals multiple political dimensions of the use of rights
language, whether as a mobilising and emancipatory appeal to human dignity or as a cover
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for the blurring of the lines between several constitutive distinctions of modern political
thought – for example, between the private and general interest, between enforceable
rights and self-regulation or between democracy and the economy.
The blurring of these conceptual lines is compounded by the interpenetration of differ-
ent fields of practice. In effect, at the same time that RBAs spread beyond the development
field, the latter loses part of its relative insularity. As Coumans’ article illustrates, in other
global political arenas new entities turn to development actors such as NGOs or UN
agencies in an attempt to fill legitimacy gaps, inviting them to play roles and undertake
partnership for which they are perhaps inadequately prepared.
Finally, all these blurred frontiers produce new sites for politicisation or depoliticisa-
tion. In describing these sites, it is central to consider how neoliberal policies can be
reproduced under a general logic of technocratisation – and hence depoliticisation –
of approaches. This process is expressed through the creation of new methods of allo-
cation of resources (Decary-Secours; Robert, Lemoine and Ridde); new logics and
imperatives for “partnerships” that, on the one hand, undermine the capacity of
actors to press for necessary structural changes (Beyers) and, on the other hand, posi-
tively structure private actors, communities and governments around nefarious logics
(Roy Grégoire and Monzón) or enable criminalisation practices (Doran); practices of
normative innovation and the creation of new markets of expertise, with the possible
effect of destabilising existing regimes of human rights enforcement (Roy Grégoire
and Monzón); and denaturing important human rights institutions (Coumans).
All the contributions in this special issue of the Canadian Journal of Development
Studies illustrate the need to contextualise RBAs in an analysis of asymmetrical relations
of power and influence. We assume a bias towards politicised perspectives, and we present
this collection of articles as a contribution to a deliberative, reflexive, contextually, histori-
cally and morally grounded discussion. The endeavour to analyse how political space is
either opened or closed, how political voice is either given or denied, how meaningful par-
ticipation can be achieved and how power can be devolved to marginalised groups con-
tinues to be of great significance not only for the aid sector but for the renewal of
international development practices more generally.
 180 E. ROY GRÉGOIRE ET AL.

Notes
1. Koskenniemi’s example is eloquent: “Because ‘human rights’, like any other legal vocabulary,
is intrinsically open-ended, what gets read into it (or out of it) is a matter of subtle interpret-
ative strategy. If a British court is able to read the indefinite detention of a person in Iraq as a
human rights measure, then that decision will become part of a shifting pattern of outcomes
produced by institutions having recourse to human rights vocabularies” (Koskenniemi 2009,
9–10).
2. This is similar to the dynamic for “good governance” (Mkandawire 2007).

Funding
Work on this special issue was supported by three grants from Social Sciences and Humanities
Research Council of Canada (SSHRC): grant no. 410-2011-2298, grant no. 410-2006-2499 and
grant no. 430-2012-0911.
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Notes on contributors
Etienne Roy Grégoire is a PhD candidate in political science at the University of Ottawa and a
member of the Centre interdisciplinaire de recherche en développement international et société
(CIRDIS) of the Université du Québec à Montréal. He has worked in the field of human rights
in Guatemala and Colombia.
Bonnie Campbell is a professor of political economy at Université du Québec à Montréal (UQAM)
and Director of the Centre interdisciplinaire de recherche en développement international et société
(CIRDIS) and the Groupe de recherche sur les activités minières en Afrique (GRAMA). A member
of the Royal Society of Canada and the author of numerous books and articles, she is the founder of
an international network on resources and territorial development (Africa, Asia and the Americas).
Marie-Christine Doran is an associate professor of comparative politics at the University of Ottawa
and a Researcher at the International Panel on Exiting Violence (IPEV-Paris) and the Groupe de
recherche sur les imaginaires politiques en Amérique latine-GRIPAL. Her current work focuses
on criminalisation of protest, political violence and political imaginaries, and on democratisation
and human rights from below – the themes of her recent book on Chile.

References
Alston, Philip. 2005. “Ships Passing in the Night: The Current State of the Human Rights and
Development Debate Seen Through the Lens of the Millennium Development Goals.” Human
Rights Quarterly 27 (3): 755–829.
Alston, Philip, and Mary Robinson, eds. 2005a. Human Rights and Development. Towards Mutual
Reinforcement. Oxford: Oxford University Press.
Alston, Philip, and Mary Robinson. 2005b. “The Challenges of Ensuring the Mutuality of Human
Rights and Development Endeavours.” In Human Rights and Development. Towards Mutual
Reinforcement, edited by Philip Alston, and Mary Robinson, 1–18. Oxford: Oxford University
Press.
Berns, Thomas. 2011. “L’efficacité comme norme.” Dissensus 4 (April 2011). http://popups.ulg.ac.
be/2031-4981/index.php?id=720.
Beyers, C. 2017. “Rights Struggles Over ‘Development’: Land, Shelter and Citizenship in Urban
South Africa.” Canadian Journal of Development Studies 38 (2): 234–252. doi:10.1080/
02255189.2017.1289078.
Blouin Genest, Gabriel, and Sylvie Paquerot. 2016. “Environmental Human Rights as a Battlefield:
A Grammar of Political Confrontation.” Journal of Human Rights and the Environment 7 (1):
132–154.
 CJDS / LA REVUE 181

Burawoy, Michael. 2015. “Action Research in the Field of Human Rights.” In Human Rights in
Minefields. Extractive Economies, Environmental Conflicts, and Social Justice in the Global
South, edited by César A. Rodríguez-Garavito, 352–361. Bogotá: Center for the Study of Law,
Justice and Society, Dejusticia.
Campbell, Bonnie. 2010. “Revisiting the Reform Process of African Mining Regimes.” Canadian
Journal of Development Studies 30 (1): 197–217.
Campbell, Bonnie, Marie-Christine Doran, and Samia Kazi-Aoul. 2005. “Bonne gouvernance,
réformes institutionnelles et lutte contre la pauvreté en Afrique.” In Les métamorphoses du poli-
tique au Nord et au Sud, edited by Sophia Mappa, 305–340. Paris: Karthala.
Cornwall, Andrea, and Celestine Nyamu-Musembi. 2004. “Putting the ‘Rights-Based Approach’ to
Development Into Perspective.” Third World Quarterly 25 (8): 1415–1437. doi:10.1080/
0143659042000308447
Coumans, C. 2017. “Do No Harm? Mining Industry Responses to the Responsibility to Respect
Human Rights.” Canadian Journal of Development Studies 38 (2): 272–290. doi:10.1080/
02255189.2017.1289080.
Dabène, Olivier. 2008. “Enclaves Autoritaires en Démocratie: Perspectives Latino-Américaines.” In
Autoritarismes Démocratiques et Démocraties Autoritaires au XXIe Siècle. Convergences Nord-
Downloaded by [190.100.139.202] at 21:52 24 August 2017

Sud, edited by Olivier Dabène, Vincent Geisser, and Gilles Massardier, 89–112. Recherches.
Paris: La Découverte.
Darrow, Mac, and Amparo Tomas. 2005. “Power, Capture, and Conflict: A Call for Human Rights
Accountability in Development Cooperation.” Human Rights Quarterly 27 (2): 471–538.
de Sousa Santos, Boaventura, and César Rodríguez-Garavito. 2005. Law and Globalization from
Below. Towards a Cosmopolitan Legality. Cambridge: Cambridge University Press.
Décary-Secours, B. 2017. “L’approche fondée sur les droits en développement : généalogie et état de
la question.” Canadian Journal of Development Studies 38 (2): 184–198. doi:10.1080/02255189.
2017.1289079.
Doran, Marie-Christine. 2010. “Les Effets Politiques des Luttes Contre l’Impunité au Chili: de la
Revitalisation de l’Action Collective à la Démocratisation.” Revue Internationale de Politique
Comparée 17 (2): 103–126.
Doran, Marie-Christine. 2017. “Convention 169 et conceptions des droits et du politique dans les
communautés autochtones au Chili : luttes pour la légitimité et conflits pour les ressources natur-
elles.” Canadian Journal of Development Studies 38 (2): 216–233. doi:10.1080/02255189.2017.
1313158.
Ferguson, James. [1990] 1994. The Anti-Politics Machine: “Development”, De-Politicization, and
Bureaucratic Power in Lesotho. Minneapolis: University of Minnesota Press.
Frydman, Benoît, and Jean-Yves Chérot. 2012. La science du droit dans la globalisation. Bruxelles:
Bruylant.
González Armijo, Mariana. 2015. “Why Not in Their Own Backyard? Development, Human Rights
and the Governance Framework.” In Human Rights in Minefields. Extractive Economies,
Environmental Conflicts, and Social Justice in the Global South, edited by César A. Rodríguez-
Garavito, 166–207. Bogotá: Center for the Study of Law, Justice and Society, Dejusticia.
Haughney, Diane. 2007. “Neoliberal Policies, Logging Companies, and Mapuche Struggle for
Autonomy in Chile.” Latin American and Caribbean Ethnic Studies 2 (2): 141–160.
Israël, Liora. 2009. L’Arme du Droit. Paris: Presses de Science Po.
Jayasuriya, Kanishka, and Kevin Hewison. 2004. “The Antipolitics of Good Governance.” Critical
Asian Studies 36 (4): 571–590.
Jonsson, Urban. 2003. Human Rights Approach to Development Programming. Nairobi: UNICEF
Eastern and Southern Africa Regional Office.
Kaufmann, Daniel. 2005. “Human Rights and Governance: The Empirical Challenge.” In Human
Rights and Development. Towards Mutual Reinforcement, edited by Philip Alston, and Mary
Robinson, 352–402. Oxford: Oxford University Press.
Koskenniemi, Martti. 2009. “The Politics of International Law – 20 Years Later.” European Journal
of International Law 20 (1): 7–19.
 182 E. ROY GRÉGOIRE ET AL.

Lautier, Bruno. 2009. “Gouvernement moral des pauvres et dépolitisation des politiques publiques
en Amérique latine.” Penser le politique en Amérique latine, edited by Natalia Borgeaud-
Garcilandia, Bruno Lautier, Ricardo Peñafiel, and Ania Tizziani, 19–36. Paris: Karthala.
Matthews, Hannah. 2013. “The Interaction Between International Human Rights Law and
International Humanitarian Law: Seeking the Most Effective Protection for Civilians in Non-
International Armed Conflicts.” The International Journal of Human Rights 17 (5): 633–645.
Mayer, Ann. 2009. “Human Rights as a Dimension of CSR: The Blurred Lines Between Legal and
Non-Legal Categories.” Journal of Business Ethics 88 (4): 561–577.
Mkandawire, Thandike. 2007. “‘Good Governance’: The Itinerary of an Idea.” Development in
Practice 17 (4/5): 679–681.
Montesinos Coleman, Lara. 2015. “Struggles, over Rights: Humanism, Ethical Dispossession and
Resistance.” Third World Quarterly 36 (6): 1060–1075.
Nankani, Gobind, John Page, and Lindsay Judge. 2005. “Human Rights and Poverty Reduction
Strategies: Moving Towards Convergence?” In Human Rights and Development. Towards
Mutual Reinforcement, edited by Philip Alston, and Mary Robinson, 476–497. Oxford: Oxford
University Press.
OECD (Organisation for Economic Development and Co-operation) and World Bank. 2013.
Downloaded by [190.100.139.202] at 21:52 24 August 2017

Integrating Human Rights Into Development. Donor Approaches, Experiences and Challenges.
2nd ed. Paris: OECD/World Bank.
OHCHR (Office of the High Commissioner for Human Rights). 2004a. Human Rights and Poverty
Reduction: A Conceptual Framework. Geneva: OHCHR.
OHCHR (Office of the High Commissioner for Human Rights). 2004b. “Review of Progress and
Obstacles in the Promotion, Implementation, Operationalization, and Enjoyment of the Right
to Development: Consideration of the Sixth Report of the Independent Expert on the Right
to Development. Implementing the Right to Development in the Current Global Context.”
E/CN.4/2004/WG.18/2. Geneva: OHCHR.
Olarte, Maria C. 2014. “Depolitization and Criminalization of Social Protest Through Economic
Decisionism: The Colombian Case.” Onati Socio-Legal Series 4 (1): 139–160.
Peñafiel, Ricardo. 2015. “La criminalisation de la participation citoyenne par des ‘démocraties par-
ticipatives’.” Revue Québécoise de Droit International (Suppl. March 2015): 247–271.
Rist, Gilbert. 2007. Le Développement. Histoire d’une croyance occidentale. Paris: Presses de Sciences
Po.
Robert, E., A. Lemoine, and V. Ridde. 2017. “Que cache le consensus des acteurs de la santé mon-
diale au sujet de la couverture sanitaire universelle? Une analyse fondée sur l’approche par les
droits.” Canadian Journal of Development Studies 38 (2): 199–215. doi:10.1080/02255189.
2017.1301250.
Rodríguez-Garavito, César A. 2011. “Ethnicity.gov: Global Governance, Indigenous Peoples, and
the Right to Prior Consultation in Social Minefields.” Indiana Journal of Global Legal Studies
18 (1): 263–305.
Roy Grégoire, E., and L. M. Monzón. 2017. “Institutionalising CSR in Colombia’s Extractive Sector:
Disciplining Society, Destabilising Enforcement?” Canadian Journal of Development Studies 38
(2): 253–271. doi:10.1080/02255189.2017.1289077.
Sanhueza Cubillos, Cristián. 2015. “Notes for a Territory.” In Human Rights in Minefields.
Extractive Economies, Environmental Conflicts, and Social Justice in the Global South, edited
by César A. Rodríguez-Garavito, 74–101. Bogotá: Center for the Study of Law, Justice and
Society, Dejusticia.
Sawyer, Suzana, and Edmund Terence Gomez. 2008. “Transnational Governmentality and
Resource Extraction. Indigenous Peoples, Multinational Corporations, Multilateral Institutions
and the State.” Programme Paper 13 on Identities, Conflict and Cohesion (PP ICC 13).
Geneva: United National Research Institute for Social Development (UNRISD).
Sen, Amartya. 1999. Development as Freedom. Oxford and New York: Oxford University Press.
Sieder, Rachel. 2011. “‘Emancipation’ or ‘Regulation’? Law, Globalization and Indigenous Peoples’
Rights in Post-War Guatemala.” Economy and Society 40 (2): 239–265.
 CJDS / LA REVUE 183

Sieder, Rachel, Line Schjolden, and Alan Angell. 2010. The Judicialization of Politics in Latin
America. New York: Palgrave MacMillan.
Supiot, Alain. 2005. Homo Juridicus. Essai sur la Fonction Anthropologique du Droit. Paris: Seuil.
Szablowski, David. 2007. Transnational Law and Local Struggles: Mining Communities and the
World Bank. Oxford: Hart Publishing.
Szablowski, David. 2010. “Operationalizing Free, Prior, and Informed Consent in the Extractive
Industry Sector? Examining the Challenges of a Negotiated Model of Justice.” Canadian
Journal of Development Studies 30 (1): 111–130. doi:10.1080/02255189.2010.9669284.
UNDP (United Nations Development Programme). 1998. Integrating Human Rights with
Sustainable Human Development. A UNDP Policy Document. New York: UNDP.
UNESCO (United Nations Educational, Scientific and Cultural Organisation). 2007. “Working
Paper: Development of Minimum Norms for Poverty Reduction Strategy Papers (PRSPs) to
Comply with the Human Rights Framework. A Decision-Making Tool for Funding
Negotiation.” Paris: UNESCO.
United Nations. 2015. Report of the Special Rapporteur on Extreme Poverty and Human Rights, A/
70/274. New York: United Nations, General Assembly.
Uvin, Peter. 2007. “From the Right to Development to the Rights-Based Approach: How ‘Human
Downloaded by [190.100.139.202] at 21:52 24 August 2017

Rights’ Entered Development.” Development in Practice 17 (4–5): 597–606.

Wicomb, Wilmien. 2015. “The Limits of the Law: The Struggles of the Traditional Fishers of Hobeni
Village.” In Human Rights in Minefields. Extractive Economies, Environmental Conflicts, and
Social Justice in the Global South, edited by César A. Rodríguez-Garavito, 40–73. Bogotá:
Center for the Study of Law, Justice and Society, Dejusticia.
Wolfenson, James D. 2005. “Some Reflections on Human Rights and Development.” In Human
Rights and Development. Towards Mutual Reinforcement, edited by Philip Alston, and Mary
Robinson, 19–24. Oxford: Oxford University Press.