Oladejo Justus OLOWU*

 

Abstract：One of the most proclaimed weaknesses of the international human rights system is the so-called implementation gap. It occurs in various forms and shapes and surfaces in numerous conventions, declarations, norms, guidelines, protocols, and myriad other instruments containing international human rights obligations or commitments. Under international human rights law, a logical response to identified gaps would be to strengthen the obligation side of a standard and to raise its legal standing and enforceability. Yet, as this notorious gap affects legal standards of varying degrees of legal force, this response might not be the only or even the preferred one to reach the goal, namely, to close this gap. For human beings, whose rights are infringed through failure to protect, respect or fulfill, addressing the implementation gap is not always a legal question. What matters more than technical compliance with legal standards are practical measures that deliver results. In order to deliver results in an international context, therefore, it is necessary to work from a common starting point towards common goals with a common understanding of the key concepts. Focusing on the right to development and anchored on the human dimensions to development, this paper contends that it is paramount to reconceptualize the politically difficult processes of finding consensus around the legal form and content of the right. Otherwise, isolated efforts to implement it without a solid legal foundation will remain unsustainable.

 

Keywords:  Right to Development in     Globalization      Africa 

 

 

The term ‘development’ has acquired different meanings and connotations among different policy analysts, legal writers, international institutions, human rights advocates and other scholars in the fields of humanities and the social sciences. To the term ‘development’ has been added such various qualifiers as would serve the convenience of respective authors. While the expression “sustainable development” has been employed in defining environmental concerns,¹ in other discussions, development has been contemplated as connoting a new form of right – the “right to development”.² However, increasing interest has compounded the scope of the concept, and thus, in the course of the last four decades, ‘development’ has come to be associated with concerns about economic empowerment and human well-being.³ 

 

While there indeed abound ample literature on the subject of human development, one can safely posit that the works of Amartya Sen⁴ provide the crux of the philosophical idea of human development as it has become known among scholars, inter-governmental agencies, policy makers and other stakeholders in contemporary times. In Sen’s view, development is, and must be seen as the expansion of human capabilities. In this sense, development “sees human life as a set of ‘doings and beings’ – we may call them ‘functionings’.”⁵ In analytical detail, he argued that development cannot be thought of as the fulfillment of basic needs alone but as necessary for overcoming violations of elementary freedoms, a process that connotes “expanding substantive freedoms that people have”.⁶ 

 

It is in this context that Sen emphasizes the interconnectivity between individual capabilities and social arrangements, the market and the democratic system, the media and the public distribution system, and more significantly, between political freedoms and the understanding and fulfillment of economic needs. The ‘Sen Theory’ thus distinguishes the two core issues of (a) functioning, and (b) the capacity to function, a distinction on which this papers draws upon in identifying implications for strategies. The foregoing narratives reflects the fundamental principles of the right to development as elaborated all through its formative stages until its eventual codification as a human right in 1986 – the United Nations Declaration on the Right to Development (DRTD), 1986.⁷

 

The right to development has generated unending debates and controversies even prior to 1986 and till date.⁸ Among others, the following represent a portion of the clusters of queries levied against the right to development:

 

Do the special circumstances of development require special norms or a special inflection of existing human rights norms? And what is the status of the right to development?

 

That the use of the terms ‘developing world’ or ‘third world’ can be patronizing and derogatory. But is it necessarily or invariably so, and who should decide on the use of such terminologies? Is the identification of a distinctive ‘developing world’ history, identity and experience possible and can it have positive value for countries which self-identify as members of the developing or third world/what, if any, particular value can it have for scholars of international law and human rights activists in relation to the development of international law?

 

Is there an internal normative distinction? Are there norms intrinsic to developing world traditions which justify the separate treatment of the developing world from a human rights perspective? Are there Chinese, Asian or African values implicating development?

 

Is there an empirical distinction? Do the developed and developing worlds constitute separate zones of safety and violence, of civilization and barbarism, which make human rights protection more exigent in the case of the latter?

 

What becomes of the right to development in the era of increasing international economic regulation and the role of the international financial institutions (IFIs)? How should one approach the problem of international equality from a human rights perspective in a globalizing world?

 

How does the globalization of production, and the role of transnational corporations (TNCs) affect the protection of economic and social rights? In what ways have these developments been argued to facilitate, in what ways to impede protection (or directly to threaten violation)?

 

How should globalization be defined? What implications does it have for the practice and development of international human rights? How do we imagine the promotion and protection [‘enforcement’] of human rights in a globalised world, where the significance of sovereignty is reduced? How are we to evaluate the emerging norm of democratic governance?

 

How far does the law – and the language of the rights in particular – provide opportunities for the promotion of social change? Can law reform and litigation affect deeply ingrained attitudes and prejudices? Is it an effective and fair way of achieving change? How useful is the language of economic, social and cultural rights in poor countries? 

 

This paper attempts to explore the ‘right to development’ in the context of increasing international economic regulation and considers the impact of globalization, including some examination of the role of TNCs and multinational enterprises (MNEs), in relation to both the abuse and promotion of human rights. This effort further considers the possibilities for human agency in enhancing the promise of the right to development against the background of the structural constraints identified in its practical applications. This discussion contributes to our understanding of the relationship between law and economic performance for economies in the developed and developing worlds from the pre-UN era through the age of globalization as well as helps our analysis of the consequential conceptual and practical issues. 

 

 

Since the Charter of the United Nations (UN), 1945, expresses the core commitment of all member-nations to “the dignity and worth of the human person”,⁹ for the purposes of this paper, the term ‘development’ is employed in the narrower sense of the individual members of the human society. It is used here in the description of goals and efforts aimed at eradicating ignorance, disease, poverty and all the conditions that fetter the freedom of the individual in society. Its usage here aids the monitoring and sketching of the worrisome trends that threaten the attainment of global egalitarian ideals.

 

Within the global system established in 1945, and particularly since the end of the Cold War, there has been increasing collaboration among the UN Development Program (UNDP), the UN Commission on Human Rights, multilateral development institutions such as the International Monetary Fund (IMF) and the World Bank, governments, civil society groups, research institutions and trade unions, towards the ends of alleviating human suffering and creating a better world for all human beings.¹⁰ At the UN level, these concerns are gradually being translated into a structure of multi-dimensional approaches linking socio-economic development to human rights and freedoms.¹¹ 

 

The foregoing explains the context within which the international community formally launched the right to development as a legal norm in 1986.¹²

 

According to Article 1(1) of the DRTD, the right to development as a human right means that “every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized.” These dimensions of the right to development reflect the understanding of the Declaration according to which development is both a process and a result. According to Rudolf, the right to participate in, and contribute to, development, relates to the process aspect while the right to enjoy development is connected with the understanding of it as a result.¹³ The process dimension of the right to development therefore emphasizes two features: Its gradual realization (“constant improvement of the well-being of the entire population” – Art. 2(3)) and its participatory nature (“on the basis of their active, free and meaningful participation in development” – Art. 2(3)), as encapsulated in the Declaration itself. Flowing from this interpretation, public participation in development relates not only to the definition of priorities, but also to the determination of the “fair distribution of the benefits” gained (Art. 2(3)).

 

Consequently, the understanding of development, and the connected right to enjoy it, has two connotations. One, states are obliged to build and maintain institutions that ensure both the participatory decision-making process and the full realization of all human rights. Two, since the benefits from development must be distributed in a fair way, the right to enjoy development encompasses a right to receive a share of the benefits from it. After all, both the process and the result dimensions of the right to development have, at their center, the realization of human rights. Moreover, both dimensions are limited by the understanding of development as “sustainable development.”¹⁴ 

 

Finally, it is noteworthy that the DRTD defines the right to development as extending not only to measures on the national level, but also in the international realm.¹⁵ 

 

Taking these features into account, the right to development can be understood as having the following contents: (1) The process of development must follow the priorities set by human rights. Thus, states are duty bound to pursue a rights-based approach to development. (2) The process of development must be participatory; this cannot be achieved without transparency, both in the agenda-setting of development and the elaboration of rules concerning the distribution of the benefits. (3) The process of development presupposes structural conditions on the national level ensuring the rule of law. In particular, this means the proper administration of justice, notably an independent judiciary. (4) Moreover, with regard to the result of the development process, all human rights, civil and political as well as economic, social and cultural, must be realized. This imposes on states the obligation to respect, to protect, and to fulfill these rights according to the applicable international treaties and customary international law. A corollary of this obligation is the procedural duty to create appropriate mechanisms of implementation and supervision. These features refer both to the internal and the international level. (5) On the international level, the procedural dimensions of the right to development are complemented by recommendations – to cooperate in ensuring development, – to meet equitably the needs of present and future generations. According to Rudolf, these recommendations must be considered in good faith, but can be disregarded with good reasons.¹⁶ 

 

Having thus determined the contents of a right to development under the Declaration, what remains intractable subjects of debate and argument about this right relate, inter alia, to questions such as the Relationship between the Declaration on the Right to Development and other human rights treaties, particularly with regard to perceptions of substantive overlaps, repetition and gaps in its provisions; the uncertainties regarding the perimeters of beneficiaries of the right and the duty-bearers; and the alleged omission of implementation mechanisms.

 

 

 

There is an obvious overlap between the rights-based approach to development and human rights treaties: The latter define the priorities to be set in the development process. They do so in particular through the definition of core rights within the framework of the International Covenant on Civil and Political Rights (ICCPR), 1966, and the International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966, and the litany of other principal human rights treaties within the UN system. Moreover, human rights treaties contain rules on the right to political participation, in particular Article 25 of the ICCPR, guaranteeing the right of every citizen to take part in the conduct of public affairs. Finally, human rights treaties presuppose the respect for the rule of law and the existence of functioning judicial control over private law disputes and criminal proceedings. Thus, they largely overlap with all three aspects of the procedural dimension of the right to development. They concur with the result dimension of the right to development in their emphasis on the realization of the rights guaranteed. 

 

What, then, is the value added by the recognition of a legally binding right to development? It is submitted here that it has two advantages with respect to the substantive contents. One, the right to development brings to the foreground the obligation to create enabling structures on the national level. These structural requirements are participatory procedures and structures, the rule of law, and the independence of the judiciary. Such structures are, to a large extent, also required under human rights treaties. Two, human rights treaties focus on the individual as the bearer of rights. Therefore, the collective dimension of the right to development can be regarded another added value: since human rights are rights against the (territorial) state, the right of peoples to development is, first and foremost, directed against the authorities of their own state. In other words, the collective dimension of the right to development emphasizes the responsibility of state authorities towards their own populations. On a conceptual level, the right to development thus links with the new trend in international politics and public international law that builds on the conviction that the state is not an end in itself, but that its purpose is the improvement of the human condition. Hence, the right to development becomes an additional yardstick for measuring the legitimacy of a state. On a more practical level, the collective dimension of the right to development leads to the consequence that a government can only call for international cooperation if it fulfills its minimum core obligations in respect of the right.

 

 

A comparison of other human rights frameworks and the right to development regarding the determination of duty bearers shows that the latter goes farther because of its extraterritorial applicability and, through this dimension, also with respect to private actors. The uncontested extraterritorial reach of human rights treaties is rather limited: The ICCPR requires that a person must be “within [the] territory and subject to [the] jurisdiction” of a state to engage that state’s responsibility. Conversely, the right to development as a human right presupposes that states are duty-bound to guarantee it to everyone within their territorial jurisdiction. Indeed, Article 2(3) of the DRTD explicitly recognizes the duty of states. 

 

The DRTD proclaims the extraterritorial duty in its Article 3(1): “All other states are obliged to cooperate in ensuring development and eliminating obstacles to it.” It is contended here that if the right to development is a human right under customary international law, then all subjects of international law are bound by it when they act within the substantive scope of application of this right. One might argue that, presently, this consequence is of little impact in light of the hortatory nature of the call for cooperation. However, this conclusion underestimates the function of a recommendation, since it imposes on the addressee the obligation to justify a deviating action. In contrast, individuals are not under a duty to further development, but merely have a “responsibility,” i.e. a moral, not legal, obligation. This restrictive reading is not only based on the language of Article 2(2) of the DRTD, but in particular on the concept of human rights under public international law: human rights do not impose obligations on individuals, and rightly so, because doing so would turn them from entitlements against the state into a basis for state interference. 

 

The question of the bearers of the right to development turns around the issue of whether it is only an individual right or also a collective right. Article 1(1) of the DRTD presumes that the right has a double character: It is the entitlement of “every human person and all peoples.” 

 

Although it is still problematic to identify the relevant collectives in all specific contexts, and thus the bearer of the right , as the debate on the right of peoples to self-determination illustrates, the existence of such “third-generation rights” is no longer contested.¹⁷

 

 

The last important point in the comparison concerns the patent absence of mechanisms for the implementation of the right to development under the DRTD: The legal debate in this area tends to focus on individual complaints mechanisms under human rights treaties. Yet, such mechanism for the right to development would be highly problematic and, at the same time, of little relevance. As most of the aspects of the right to development concern either structural requirements (process dimension) or the realization of human rights (result dimension), there is little that an individual complaints mechanism for the right to development can achieve that is not already achievable through the plethora of human rights complaints and reporting procedures.

 

 

Without mincing words, globalization inevitably brings about structural changes within an economy. While it indeed opens up new opportunities for enhancing employment and income, nevertheless, it also closes down, or at least diminishes, many existing means of livelihood. It has been recognized that opportunities open up in activ?ities in which a country has comparative advantage, and diminish in those in which it has comparative dis?advantage, and that this may have profound implications for the achievement of the right to development.¹⁸

 

There is indeed every reason to be especially concerned about the possible negative effects of globalization enough to warrant concerted efforts at stemming such adverse effects on human beings. Home-grown structural changes typically unfold incrementally over a long period. This allows a breathing space for necessary adjustments. Conversely, globalization tends to bring about sweeping structural changes within a short period of time. The sheer pace of radical changes can entail serious problems of adjustment, especially when it comes to setting up an adequate social protection scheme for those suf?fering most from the disruptions caused by structural changes. What is worse, this problem can be com?pounded by two further factors, namely, the problem of shifting com?parative advantage and the unpredictable behavior of international trade and finance. These two factors are of tremendous significance to the developing countries of the global South.

 

Globalization can therefore have both an accentuat?ing and a distorting effect on structural changes. The potential for creating new uncertainties and vul?nerabilities, along with new opportunities, thus grows with globalization. As such, globalization has the potential for hurting the weaker segments of the population unless conscious efforts are made to pro?tect them.¹⁹

 

This is where the right to development can play a vitally important role. The normative framework of international human rights is particularly concerned with individuals and groups that are vulnerable, marginal, disadvantaged or socially excluded. That is why it can effectively counterweigh the disruptive effects of globalization, whose burden is likely to fall disproportionately on these very categories of people. The right to development process overlaps with a number of core concerns at the heart of trade, globalization and global governance issues. The right to development framework is among the most useful tools to achieve coherence through intensive interaction between various actors and sets of norms and policies. This should be done in an inclusive, collective, transparent and cooperative manner.

 

 

In light of the preceding analysis of the evolution of the right to development, the question then becomes: can this right survive its institutional weaknesses and substantive complexities as they stand today? This article answers that in the affirmative. The right to development has begun to gain credibility through a cumulative process of application, especially applying the adopted right to development criteria to global partnerships for development. The right to development is to be seen as a holistic human right of a particular nature, added value and increasing relevance because almost every development in policies, programs strategies and norms at both national and international levels has an impact, positively or negatively, on the right to development. 

 

In discussions in this paper, the principles that have been identified as being critical to this process include accountability, transparency, non-discrimination, equity and participation as well as the rule of law and good governance at all levels. In addition, there are at least two other aspects that are central in both the conceptualization and the operationalization of the right to development and the policy framework that it supports. The first is the emphasis on the notion of indivisibility of human rights – civil and political, as well as the economic, social and cultural rights – and the second is the importance of international cooperation in the implementation of the right to development. These are the ramparts on which the strategies for the realization and protection of the right to development should be built in the age of increasing economic globalization.

 

Far from being an ex cathedra pronouncement on all the dynamics that should inform the modalities and trajectories of an effective realization, protection and promotion of the right to development in the globalized era, this paper would have served its purpose if it stimulates further intellectual discourses.

 

· Oladejo Justus OLOWU, Associate Professor of Public Law attached to the School of Law, KwaZulu-Natal, Durban, South Africa.

 

·1. See, e.g., Jan Olaf-Willums & Ulrich Goluke, From Ideas to Action: Business and Sustainable Development (Oslo: ICC Publishing, 1992), at 11; Elizabeth Dowdeswell, “Sustainable Development: The Contribution of International Law,” in Winfried Lang (ed.), Sustainable Development and International Law (London: Graham & Trotman Ltd., 1995), at 1-5; Virginie Barral, “Sustainable Development in International Law: Nature and Operation of an Evolutive Legal Norm,” (2012) 23(2) European Journal of International Law, at 377.

 

· 2. Arjun Sengupta, “Right to Development as a Human Right,”(2001) 36(27) Economic and Political Weekly, at 2527-2536; Laure-Hélène Piron, The Right to Development: A Review of the Current State of the Debate for the Department for International Development (London: DFID, 2002), at 7.

 

· 3. See generally Richard A. Easterlin, “The Globalization of Human Development,” (2000) 570 Annals, at 1-3; Sigrun Skogly, “Structural Adjustment and Development: Human Rights – An Agenda for Change”, (1993) 15 Human Rights Quarterly, at 751-753; Henry J. Steiner, “Social Rights and Economic Development: Converging Discourses?”, (1998) 4 Buffalo Human Rights Review, at 25-26, 38; Dejo Olowu, An Integrative Rights-Based Approach to Human Development in Africa (Pretoria: PULP, 2009).

 

· 4. Amartya K. Sen, “Capability and Well-Being,” in Martha Nussbaum & Amartya K. Sen (eds.), The Quality Of Life (Oxford: Clarendon Press, 1993), at 30; Amartya Sen, “Development Thinking at the Beginning of the XXI Century,” in Louis Emmerij (ed.) Economic and Social Development into the XXI Century (Washington DC: Inter-American Development Bank, 1997), at 531, 540-542; Amartya Kumar Sen, Development as Freedom (Oxford: Oxford University Press, 1999).

 

·5. Sen, Development as Freedom, Supra note 4, at 75.

 

· 6. Ibid., at 297.

 

· 7. UN Doc A/RES/41/128, 4 December 1986.

 

· 8. See generally Jack Donnelly, “In Search of the Unicorn: the Jurisprudence of the Right to Development,”(1985) 15 California Western International Law Journal, at 473-509; Robert E. Mazur, “Realization or Deprivation of the Right to Development under Globalization? Debt, Structural Adjustments and Poverty Reductions Programs,” (2004) 60 GeoJournal, at 61-71.

 

· 9. UN Charter, 1945, Preamble para 2 (emphasis added).

 

· 10. See Allan Rosas, “The Right to Development,” in Asbj?rn Eide et al. (eds.), Economic, Social and Cultural Rights: A Textbook (Dordrecht: Martinus Nijhoff, 2nd ed. 2001), at 119-130.

 

· 11. Theo van Boven, “Human Rights and Development: The UN Experience,” in David P. Forsythe (ed.), Human Rights and Development: International Views (London: Macmillan, 1989), at 121-135; Katarina Tomasevski, Development Aid and Human Rights Revisited (London: Pinter Publishers, 1993), at 45-56; Piron, Supra note 2, at 23-25.

 

·12. Matthew Hilton, “International Aid and Development NGOs in Britain and Human Rights since 1945,” (2012) Humanity, at 449-472.

 

·13. Beate Rudolf, “The Relation of the Right to Development to the Existing Substantive Treaty Regimes,” in Stephen P. Marks (ed.), Implementing the Right to Development: The Role of International Law (Geneva: Friedrich Ebert Stiftung, 2008), at 105-106.

 

·14. Asbj?rn Eide, “Human Rights-based Development in the Age of Economic Globalization: Background and Prospects,” in B?rd A. Andreassen & Stephen P. Marks (eds.), Development as a Human Right: Legal, Political and Economic Dimensions (Antwerp: Intersentia, 2010), at 275-314.

 

· 15. Mazur, Supra note 8, at 65.

 

· 16. Rudolf, Supra note 13, at 107; Piron, Supra note 2, at 9-12.

 

· 17. Rudolf, Supra note 13, at 108.

 

· 18. S.R. Osmani, “Glo?balization and the Human Rights Approach to Development,” in B?rd A. Andreassen & Stephen P. Marks (eds.), Develop?ment as a Human Right: Legal, Political and Economic Dimension (Cambridge, Massachusetts, Harvard School of Public Health, 2007), at 117.

 

· 19. Mazur, Supra note 8, at 66; Dinah Shelton, “Protecting Human Rights in a Globalized World,” (2002) 25, Boston College International & Comparative Law Review, at 273, 301-305.