Análisis y resultados de la identificación de los riesgos

The relationship between human rights and public policy is now clarified because the interaction between these fields is a key context for the research. The way terms are used across disciplines can be different, and Victor Conde‘s definition of

‗implementation‘ from a human rights perspective has already been given earlier in Section 1.2.3 (Conde, 2004: 118-119). While the human rights literature uses the term

‗implementation‘ in this way to refer to legislation and similar policy actions, it is quite conventional to also see implementation in the policy literature as the

‗operationalisation‘ of legislation: if a right is implemented in a law, then the law is implemented when resources are mustered to carry it out.

With a ‗human rights implementation lens‘, the focus is on how treaty rights (e.g.

UNCROC) actually work in the international arena, across the entire state sector, and in society at large. More broadly the term ‗implementation‘ is central to the field of public policy, summarised as the theory and practice of how government objectives are achieved (or not achieved). The general guidance given to public servants on their obligations to the law and to the elected government of the day can be found in Crown Law Office (CLO, 2005) and State Services Commission (SSC, 2004, 2008) guides.

These latter two dealt with the problem of complex inter-departmental issues – and human rights implementation can be seen as such an issue.⁵⁴

This raises an important question that is useful to discuss at an early stage of the arguments of this thesis: (1) ‗Is human rights implementation just another public policy puzzle for officials/government?‘ Put differently: (2) ‗Is there something about international human rights obligations that at least puts implementation in a special category of public policy challenges?‘ This research answers are ‗yes‘ and ‗yes‘ to both questions. Why the answer to the first question is ‗yes‘ is discussed, and then in relation to the second question it is shown that there are aspects of the human rights focus that are ‗special‘. Explaining the reasoning early in the research helps to set out the conceptual foundations for the arguments throughout and I now answer these two questions in detail.

(1) Is human rights implementation just another public policy puzzle for officials/government?

Processes that should ensure that New Zealand upholds its international human rights obligations (and of course other international obligations) are today more or less ingrained in ordinary government business. This is not to say that all aspects of policy are always identified through international human rights obligation ‗lenses‘. Some domestic policy goals might be pursued irrespective of their connection with these obligations. Two examples illustrate this. Preventing (or at least reducing) child abuse has been a public policy goal for successive New Zealand governments. Obviously one aspect of this goal relates to obligations under UNCROC, but achieving the goal involves very complex domestic public policy interventions across the whole-of-government including health, education, social welfare, employment, housing and justice/police/courts. Having said that, much day-to-day policy discourse is already framed in rights terms. Does it add anything to this complexity of policy goals to focus on human rights obligations? This question will be returned to below.

A second example is that (again) successive governments have also set goals for reductions in how many people die each year on the roads, summarised as ‗the road

54 The State Services Commission (2008), for instance, gave guidance to departments needing to implement new initiatives.

However, see Ruth Herbert (2009) who looked at the difficulty of implementing strategic policies across multiple government departments and asserted that there needs to be much more direction given in this area. In her view the Australian Government gives

toll‘. In terms of human rights it is possible to point to the right to life in the ICCPR and NZBORA. But primarily this goal is also best seen within the standard public policy techniques available such as allocations of funding alongside changes in policing, road construction, advertising, random testing, concentrating on the biggest risks, and punishment for those who create most risk (like speeders). In both examples (child abuse or the road toll) the complexity of issues suggests that whole-of-government approaches are likely to be most useful, including cross-agency officials committees to come to grips with multi-faceted problems and objectives. This clearly suggests that human rights issues are therefore everyday reflections of the general problems of

‗governing to achieve objectives‘. Further support comes from the core features of the public policy literature. Wayne Parsons for instance noted that:

Public policy focuses on what Dewey (1927) once expressed as ―… the public and its problems‖. It is concerned with how issues and problems come to be defined and constructed and how they are placed on the political and policy agenda. But it is also the study of … ―what governments do, why they do it, and what difference it makes‖

(Parsons, 1995: xv).

Using Harold Lasswell‘s terms he stated that the policy orientation can be summarised as:

… multi-method; multi-disciplinary; problem-focused; concerned to map the contexuality of the policy process, policy options and policy outcomes; and whose goal is to integrate knowledge into an overarching discipline to analyse public choices and decision-making and thereby contribute to the democratization of society (Parsons, 1995: xvi).

Much of this can also relate to the human rights field, which involves the public and its problems. Rights issues go on and off the government agenda and the field is obviously about what governments ‗do‘. It involves multi-method and multi-disciplinary approaches (law, politics, policy, education, health etc). It is problem-focused. It is concerned to find the appropriate processes, options and outcomes. Public choices and decision-making are involved and so is public funding, and all aspects are intimately connected to the democratisation of society. The connections can also be seen in Parsons‘ summary that public policy involves problem solving in the following sequence:

Issue (people sleeping on the streets); Problem (homelessness); Policy (more housing) (Parsons, 1995: 87).

A human rights lens would similarly identify the ‗issues‘ (right to housing being either denied or not delivered) and pose ‗problems‘ (risk of legal suit, international embarrassment in reporting a high degree of homelessness, political pressure from

voters/Parliament) that may need ‗policy‘ responses (task force). Richard Shaw and Chris Eichbaum also defined four broad aspects of the public policy field:

… it involves government, decisions to act (and decisions not to act), entails the commitment of resources, and has a normative dimension (Shaw and Eichbaum, 2005:

3-7).

In short, the goals and methodologies of public policy generally clearly apply to the field of human rights.

However, Mark Considine gave another view on public policy that represents a less instrumentalist approach. He distinguished between the standard view of public policy, similar to that set out above, and an alternative one. The first is summarised as: ‗A public policy is an action which employs governmental authority to commit resources in support of a preferred value‘ (Considine, 1994: 3). With the alternative approach there is an:

… interdependence between key social actors such as parties, corporations, unions, professions and citizens. It is suggested here that it is the character of these systemic dependencies which shapes behaviours, problems and solutions. … policy is [therefore]

the continuing work done by groups of policy actors who use available institutions to articulate and express the things they value. The significance of these systemic activities cannot be under-rated. Public policy is one of the central processes through which our communities respond to major social, economic and environmental problems. They shape and determine the health, welfare, education and the developmental opportunities of every citizen. The flexibility and creativity found in policy systems are therefore of interest and significance at every level of social life (Considine, 1994: 2,4).

The standard view he likened to examining ‗policy as a purely technical matter‘, where the analyst seeks to estimate the strength and weakness of the available mechanisms for achieving a stated goal (Considine, 1994: 7). This could be applied to the homelessness problem just raised. In his view, however, the process is more like ‗a succession of episodes‘, all occurring within larger ‗policy systems‘ (Considine, 1994: 7, 8-9). These systems have four components: the policy actors and policy institutions mentioned in his definition above, but also political economy (broadly ‗the structure of key relationships‘) and policy culture (broadly values) (Considine, 1994: 9). Drawing these four components together: ‗As a result policy systems need to be understood as complex structures for political learning and memory‘ (Considine, 1994: 47).

Public policy issues therefore arise, the key actors become involved, and institutions are used to obtain results that are consistent with the values underlying the policy culture.

As each episode arises, there is much learned and this political memory stays in place

for when similar episodes occur in the future. Considine‘s theory is more complex than Parsons‘ ‗issue/problem/policy‘ approach and it becomes helpful for the discussion in Chapter 7 on the emergence of a human rights governance level. Here, the standard public view, which is linear and non-complex, does not adequately deal with the multi-directional aspects of this governance level, but Considine‘s approach provides a better way of understanding it.

(2) Is there something about international human rights obligations that at least puts implementation in a special category of public policy challenges?

As regards this second question, human rights implementation has characteristics that give it a ‗special‘ dimension in the field of public policy. Because of the increasing interconnection of international law in all dimensions of public policy, the aspects that make up that special dimension are matters of degree rather than clear distinctions. Here five of these aspects are outlined, and discussed in more detail below:

 the global extent and historical depth of the human rights enterprise

 the pervasive influence at the domestic level

 the extra layers over and above domestic policy goals

 the progressive timing involved, and

 most simply, the legal framework of ‗rights‘.

In terms of the first characteristic, the human rights system is an enormous global endeavour that has involved many countries since the 1940s. This scope is different from much of the domestic public policy programme of any individual state. But

‗globality‘ is not of course confined to human rights and might today also be said to be true of many areas of apparently domestic activity such as postal and telecommunication services, trade or climate change issues. As well as philosophy and international law, the human rights field also has a deep historical background reflected in the frameworks set up in most western liberal democratic states as the result of wars and changes that redefined the relationship between government and citizen. These included struggles against oppression (either by the state or other actors) at one time or another. The English, American and French formulations of bills of rights of the 17^th and 18^th centuries were thus responsive to the respective historical developments of their times. They were also forerunners to the extensive human rights architecture set up as a direct response to the global atrocities carried out during World War II, as well as to many state constitutional arrangements all over the world. The background to the

New Zealand interaction of international human rights standards and the state sector therefore reflects this vast historical canvas.

The human rights system is so large and pervasive globally that it can be conceived of as one step down from asking: ‗Is it possible to make an entire state liberal?‘ That is, human rights is not a political ideology (a type of government such as liberalism, fascism, socialism), but it is very close to that. It could even be considered to be one level down from an ideology, perhaps even a set of principles that constitute a component of the holistic underpinning fabric of the state. The post-World War II human right enterprise has been a very ambitious attempt to say that the entire international law system and individual states should function according to core human rights standards. It was always the intention that the principles set out in the UN Charter and the UDHR would be implemented as parts of state policy, and when the core treaties were developed from the 1960s onwards and countries ratified them this became a reality. In other words it was a post-war ambition to create an entirely different type of state ever: a ‗human rights compliant state‘. The problem therefore becomes how to the implement the whole of this endeavour.

A second aspect giving human rights a particular dimension in public policy issues is that the multi-faceted parts of the international human rights system reach into almost every element of state policy. The notion of the dignity of the human being, the importance of community, and the way that a state responds concerns the ‗social contract‘ affecting everything that government does. Hence human rights are not only policy prescriptions about how to achieve particular objectives (reducing child abuse or the road toll), but they are about how all government activity is conducted across the board. In the end these are of course constitutional issues.

A third characteristic is that there are extra layers with the human rights field that are not as pervasive in all elements of the domestic public policy arena e.g. treaty ratification, treaty body reporting, the domestic implementation of international rights via three possible mechanisms (laws, policy or practice), and additional state sector work around ensuring consistency with international standards and domestic laws. This pervasiveness is highlighted by the Cabinet vetting requirement that every new Bill or Regulation has to be considered for compliance against international human rights obligations and this applies to areas as seemingly unrelated as fisheries and postal

regulations. Again, however, these examples illustrate that this characteristic is only relative. These regulations are today also interwoven with international obligations from different sources and New Zealand domestic policy and trade issues affect the economy and much of government policy. In all cases laws, policies and practices are expected to comply with all international obligations, not just those of human rights.Roger Clark (2000: 185, 186), for instance, had commented on the effects of international law on the domestic arena. In his view it could ‗set an agenda that obliges states to move programmatically in a particular direction‘ and changes might ‗include both a general policy agenda and, from time to time, specific implementing legislation‘. This links with the point in Section 2.2 that the human rights and public policy fields do have points of connection and are mutually influential.

A fourth aspect is that the international human rights regime envisages a somewhat different time-scale of implementation from absolute obligations to progressive achievement (this is especially the case for economic and social rights). In some areas a state makes a commitment ‗over time‘ to ensure treaty-ratified rights can be better realised. But even where there are no such qualifications for implementing obligations, the system of regular reporting pushes states to ensure that across the reporting cycles real progress can be demonstrated. This concept might be particularly helpful for developing states as they struggle to implement obligations. It is also a useful concept for developed nations, such as New Zealand, because there may be ongoing changes needed to ensure better implementation of rights. Progressive implementation is of course also true of domestic policy goals. For example the policy goals of reducing deaths from road accidents or child abuse can be spread over decades. So again the implementation of human rights obligations is different only in scale, not in absolute terms, from the field of public policy broadly conceived.

Fifthly, and perhaps most obviously, the entire legal framework of human rights is distinctive. It is one thing to try to reduce child abuse or deaths on the road; it is another to frame the state as being obliged in law to do so, failing which there are legal consequences for the state including the possibility of financial penalties. However, human rights laws are enacted as a consequence of policy making (government policies underpin laws) so there is a complementarity between these fields as public policy already pays attention to rights.

Matthew Palmer, in a paper written for the NZ Law Commission and the Crown Law Office, examined the differences between legal analysis and policy analysis. In his view lawyers and policy analysts each ‗use an entirely different mode of analysis‘ and each group needs to fully understand what it is that the other actually does (Palmer, 2006: 3).

He also made a point which echoes that of the complementarity understanding in this research: ‗the inherent differences between the paradigmatic versions of legal analysis and of policy analysis can cause problems if they are unappreciated. If they are appreciated, the strengths of each approach can be valuably applied‘ (Palmer, 2006: 3).

That is, the law+litigation and policy models work well when in alignment.

To link the human rights system to the public policy field it is therefore perhaps useful to conceive of it not only as a set of important underpinning principles, but also as a foundational system with various levels: macro, meso and micro. It might also be useful to consider ‗small p‘ and ‗big P‘ policies as a way of understanding public policy better:

 At the macro level, containing the most broad-based norms and ideals, it is a system in which individual rights are recognised and valued and the government aspires to ensure that these are maximised given resource considerations. At this level human rights are the overarching principles under which the government tries to operate. This would be the ‗big P‘ policy area, and it may be the ‗big P‘

policy of a state, for instance, to decide that in principle child abuse must not be tolerated.

 At the micro level, the system is about a particular child‘s right in a particular case. Here there is a need to know where the responsibility of the state starts and ends.

 At the meso level, containing the transition between those ideals, it is the level of law and regulation because then there are standards against which to judge the micro case. These would be the ‗small p‘ policies that underpin this level of law and regulation.

The movement between the three levels is a process over time and it draws together a range of elements in the woven pattern that has been termed complementarity.

Alongside the distinctive features of the two fields, implementing human rights can be seen as an integral part of the government‘s public policy programme.

Full advantage is not being taken, however, of some of the tools of the public policy field that could help inter-agency coordination on human rights issues. Later in the thesis in Section 5.3.2, there will be discussion on how the joined-up literature and coordinated stage agencies work from this field could be extremely helpful in this respect.

2.3 Taking account of international and domestic human