Prospects for Drafting a Convention on the Right to Development

Mohammad Reza GHAEBI*

Introduction
 

2015 marks the year for the ‘development’ pillar of the United Nations. Three main agreements are expected to be adopted until the end of the year and the intricacy of the negotiations are increased by the interconnectedness amongst them.
 

The first agreement was lately adopted in Addis Ababa, Ethiopia, in July which defines the architecture for financing for development (FfD), including the means to implement the next edition of the Millennium Development Goals (MDGs). In September, heads of government and State will meet at the UN headquarters in New York to adopt the ‘post-2015 sustainable development agenda,’ which include the Sustainable Development Goals (SDGs), a great step forward in ambition when compared to the MDGs. Finally, in December, a major climate agreement is expected to be reached in Paris, France. 
 

Indeed, the discourse on the Right to Development has evolved significantly since it was proclaimed in the Declaration on the Right to Development in 1986.¹ Initially it was described as a right that was qualitatively different from other rights reaffirmed in the human rights covenants. As international cooperation was a crucial element in the realization of any development, it was blown up as a “third-generation solidarity or collective rights,” as distinct from the first , civil and political rights and second-generation rights, economic, social and cultural rights ,involving the primary obligation of national states. 

 

Because the developing countries were the principal sponsors of this right, it was described as a right of the developing countries, although many developed countries joined the sponsorship and the right was to be exercised and enjoyed by individuals from both the developed and developing countries, like any other recognized human rights.

 

As the right to development was defined as involving the progressive realization of all fundamental freedoms and rights, it was regarded as an ‘aspirational’ right, which can only be aimed at but not ‘realized’, even if it is feasible to phase in the realization of different rights at different points of time consistent with the expansion of resources and technology.

 

According to the Declaration, the right to development entitles “every human person and all peoples 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”.  

 

At the time of its adoption, many saw this Declaration as outstanding international human rights instrument and considered it a milestone in the decade and a half long struggle by developing countries for an International Economic Order. Indeed, the Right to Development (RTD) represents a fairly comprehensive articulation of economic, social and cultural rights, as well as political rights. While the human person is identified as the ultimate beneficiary (right-holder), the RTD can nevertheless be invoked both by individuals and by peoples. And most significantly, it clearly recognizes the collective obligation of all states to create a just and equitable international environment for the realization of the right to development.

 

At the moment, the right to development is recognized as a ‘human right’ like other internationally accepted human rights. It clarifies norms and standards of behavior in different societies, providing grounds for individuals to claim their rights, which the authorities at the national and international level are obliged to fulfill. The debates in this area have now shifted towards the implementation of the right to development and mechanisms and policies to be adopted by the authorities to enable the realization of this right in a progressive manner.

 

The duty to implement all human right applies to all developed and developing countries, wherever individuals suffer from the lack of these rights. The right to development is a special right, in the sense that it is a composite of all, or at least the basic rights. But in all other respects, it is as much a human right, as any other civil and political, economic, social or cultural right.

 

After the adoption of the Declaration, different bodies on the right to development were established by the former UN Commission on Human Rights and its successor body, the Human Rights Council. In 1988 an open-ended intergovernmental working group mandated with monitoring and reviewing the implementation of the right to development was created². The Working Group, which continues until today, was assisted in its task first by an Independent Expert (1988–2004) and later by a High-Level Task Force (HLTF, 2004–2010), also composed of individual experts. 

 

In 2007, the Human Rights Council resolution 4/4³ endorsed the road map outlined in the Working Group’s report on its eighth session, including a request to the high-level task force to consolidate its findings and present a revised list of right to development criteria along with corresponding operational sub criteria and outline suggestions for further work, including aspects of international cooperation not covered until then. The Council also decided that the criteria, as endorsed by the Working Group, should be used, as appropriate, in the elaboration of a comprehensive and coherent set of standards for the implementation of the right to development, and that, upon completion of the above phases, the Working Group should take appropriate steps to ensure respect for and the practical application of those standards, which could take various forms, including guidelines on the implementation of the right to development, and evolve into a basis for consideration of an international legal standard of a binding nature, through a collaborative process of engagement. 

 

In resolution 9/3 and in successive resolutions, most recently resolution 24/4, the Human Rights Council reiterated the tasks entrusted to the Working Group in resolution 4/4, the purposes set out therein for which the criteria would serve once considered, revised and endorsed by the Working Group, and the steps to be taken by the Working Group upon completion. 

 

At the UN level, RTD also appeared in a number of important soft law instruments, such as the World Conference on Human Rights’ Vienna Declaration (1993), the Millennium Declaration (2000) and the Rio+20 Outcome Document (2012).⁴ The right to development is also recognized regionally in Article 14 and Chapter VII of the Revised Charter of the Organization of American States, and more concretely in the Preamble and Article 22 of the African Charter on Human and Peoples ‘Rights.⁵

 

 

Decades since these global trends were first set in motion; the RTD lacks a firm legal and institutional platform to stand on. Although there are reporting procedures for substantive rights that constitute the RTD and the UN Human Rights Council can exercise moral persuasion over violators, it lacks justifiability.

 

The Rio Declaration at least has the benefit of legally binding multilateral treaties including the UN Framework Convention on Climate Change, the Convention on Biological Diversity and the UN Convention to Combat Desertification. Still, in a similar way to the RTD, there are no real legally binding instrument and enforcement mechanisms and limits in the extent of financial backing.

 

Though the RTD has met the procedural requirements to become a new internationally recognized human right, the Declaration on the Right to Development is not a legally binding treaty. A review of other sources shows that the RTD is not legally binding under international law and that states other than parties to the African Charter on Human and Peoples’ Rights cannot be held legally accountable for its implementation. This is not to deny the moral or political force the DRTD.

 

The RTD is often interpreted as including a duty to provide international assistance, which would possibly be legally binding. This could have a considerable practical impact on development policy and practice. However this obligation may be moral or political, but cannot be regarded as binding under international law. Finally, it can be shown that other instruments under international human rights law can be interpreted as giving rise to obligations on states equivalent, but not identical, to those that some derive from the DRTD.

 

Yet, interpretation of the Council resolutions on RTD differs from one political group to another. The Non-Aligned Movement (NAM) reiterated that the right to development should be translated into an international legal framework thus cast into a new human rights treaty. The European Union (EU), the US, Japan and Switzerland opposed an international legal standard of a binding nature. Instead, they favored implementation of the right to development through the elaboration of benchmarks and indicators for States to empower individuals as active agents in the development process.⁶

 

The EU argued that international human rights law only recognized clearly that States have obligations with regard to persons falling under their national jurisdiction and while developing countries direct the debate towards issues such as inequalities in the international financial system, greater participation of developing countries in global decision making on economic policy and promoting a fairer trade regime. The developed countries insist on suitable domestic conditions in developing countries such as good governance, democracy and responsible economic management.

 

In fact , the debate on the right to development demonstrates how the legitimizing language of human rights has been used to press goals that have more to do with the international politics of power and resistance, and with the interests of regimes, than with welfare and empowerment of ordinary citizens.⁷

 

This paper will argue that a framework approach may surmount the political disagreement over the legal status of the right to development and break the stalemate in intergovernmental negotiations within the Working Group and add a needed layer of protection to the current human rights regime in a context of economic globalization

Pros and Cons

 

There are two source of argument contiguous to the adoption of a legally binding instrument on the right to development:

 

First: opponents of the necessity of drafting a legally binding convention on the right to development, who belong to the Western Group  and the most developed countries. They believe in RTD as a human right which is a right of individuals (including individuals as members of groups), not a right of states. States have the primary responsibility for realizing the RTD. They also are of the view that there are various other ways of integrating human rights and development that may lead to more immediate results in terms of protection of rights holders and enforcement of State obligations. 

 

They argue that it may well be a viable option to strive for the realization of the right to development also under existing human rights treaties and through their monitoring mechanisms, provided that an interdependence-based and development-informed reading can be given to the treaties in question.⁸

 

Second, supporters for a treaty comes primarily from the members of the Non-Aligned Movement (NAM) and China who argue that the RTD is a right of states and a collective right of peoples to development (not in the sense of minority rights), and that it has an international dimension and that there is an obligation of international cooperation, but it is not just about charity and the RTD cannot be reduced to international development assistance, nor to national poverty eradication programmes. 

 

The responsibility for the RTD cannot remain at the national level: globalization, international trade, foreign domestic economic policies, foreign debt and intellectual property rights constrain national development efforts. The international agenda should include: greater and more effective participation by developing countries in international decision-making, a truly open multilateral trade system reflecting development needs of all nations, a new international financial architecture releasing resources for productive investment, an effective prevention and response capacity to deal with international financial crises, and sustainable and integrated worldwide economic growth. Southern states think it is time to discuss permanent follow-up mechanisms. Some argue in favor of a Convention, or at least a mechanism to monitor the implementation of the RTD at the international level. 

 

The NAM member states, which met at the summit level of the heads of state and government, in Kuala Lumpur, Malaysia in February 2003, and in Havana in September 2006. At the latter session and the consecutive summit sessions in Cairo 2009 and Tehran 2012, the heads of state and government of the NAM countries urged “the UN human rights machinery to ensure the operationalization of the RTD as a priority, including through the elaboration of a Convention on the Right to Development by the relevant machinery, taking into account the recommendations of relevant initiatives.”⁹

 

Third: International organizations and International development organizations are not usually active in the RTD debate - this is the prerogative of states. They are however invited to attend the OEWG on the RTD, and to present their attempts to integrate (or not) human rights concerns into their policies and programmes.

 

The Office of the High Commissioner for Human Rights (OHCHR) has a special responsibility for the RTD and for mainstreaming human rights across the UN system. It is mandated to follow and review progress made in the promotion and implementation of the RTD, to submit annual reports to the GA / HRC and interim reports to the OEWG. It services the Working Group and other meetings on the RTD. 

 

The United Nations Development Programme has followed the lead of other UN agencies (in particular UNICEF) in developing a rights-based approach to development, and is working in collaboration with OHCHR. Its contributions to RTD debates are constructive.¹⁰

 

There are few non-governmental organizations (NGOs) actively involved in the RTD debate, probably because the concept remains unclear, the debates highly politicized, and not conducive to practical discussion.¹¹

 

To rejoin the first group of states, we should take into consideration the following observations: 

 

- When human rights are applied to an aspect of development policy, they can be read in a development-informed way and with full acknowledgement of the interdependence of human rights. As a result, the domestic dimension of the right to development may be largely covered.

 

- While a development-oriented interpretation of existing human rights treaties is useful and commendable, it also has limits. It is difficult to see how interpretation can achieve all aspects of the right to development, and in particular the peoples’ right dimension and the mutual dimension of the duty of cooperation. 

 

- Whether interpretation suffices to construct unilateral duties of cooperation, extraterritorial obligations depends on the willingness of treaty monitoring bodies and – more importantly in terms of protection – on courts of law, to discover and enforce such extraterritorial obligations in the treaties. 

 

- The treaty monitoring bodies are ill-equipped to assess collective State action (e.g. the human rights impact of intergovernmental agreements) and acts of intergovernmental organizations or of non-State actors. Treaty monitoring bodies can only deal with joint action by States and with acts by non-State actors indirectly, i.e.by framing these as issues of individual State responsibility. Since human rights treaty law is based on single State responsibility, collective acts or acts by non-State actors only come under the purview of the monitoring body if responsibility for these acts can be attributed to a specific State.

 

Considering the opinion of the second group of states, we should bear in mind the following points: 

 

- Even if we accept the possible added value of the right to development, the question remains whether a treaty is necessary.

 

- A likely alternative to a treaty consists in the adoption of a set of guidelines on the implementation of the Declaration. The 1986 Declaration enjoys considerable support at the UN regardless of its formally non-binding legal status. Declarations are sometimes more effective in generating consensus and subsequently compliance and that implementation of the right to development may be assisted more by guidelines – which, given the flexibility of soft law could also address intergovernmental organizations and private actors directly –than by embarking on a treaty-making process.¹² Nevertheless, there are drawbacks to the Declaration / Guidelines approach. As the Guidelines are meant to focus on implementation of the Declaration, there is a risk that necessary normative development will be unduly constrained by the need to revert to the original text of the Declaration.

 

- The addition of guidelines in no way alters the soft law character of the right to development. In no case will the legal status of the guidelines be higher than that of the Declaration. One of the main challenges facing the realization of the right to development is that multilateral, regional and bilateral treaties in the area of international economic law (and other fields of international law) contain provisions that impair, or are interpreted by governments in such way as to impair the ability of States to comply with human rights obligations and human development objectives. 

 

- The right to development can provide a counterweight, but only if the right itself is legally binding in international law. If that is the case, and a conflict with another treaty in international law arises, the right to development is a relevant rule of international law applicable in the relations between the parties for the purposes of the Vienna Convention on the Law of Treaties, and can thus be used to interpret the potentially conflicting treaty in such a way that no harm is caused to the enjoyment of the right to development. As long as the right to development remains of a purely soft law nature, the conflicting treaty will prevail.
 

- Similarly, treaty law impacts on domestic law in ways that soft law cannot. Treaties potentially restrain domestic law-making; soft law does not. Treaties may over- ride contradictory domestic laws; soft law may at best be taken into account at the discretion of the domestic judge in interpreting domestic law. Claims based on the right to development, as any other human rights claim, will emerge locally, and will have to be addressed at least in part within the framework of the domestic legal sys- tem. If the domestic legal rules on the incorporation of international law into domestic law so permit, treaties may have an impact on local claims, while the impact of guidelines adopted by an international organization is bound to be very limited.
 

- Another cluster of arguments in favor of the treaty option is political rather than legal in nature. At the United Nations General Assembly and at the Human Rights Council, the division of opinion between the Non-Aligned Movement and the European Union not only affects the debate on the right to development; it also extends to many other thematic and country-specific issues. The European Council on Foreign Relations has concluded for years in its annual reports on the EU and human rights at the UN that there is a gradual erosion of support for the EU’s positions in votes on human rights issues. The EU needs to forge coalitions at the Human Rights Council with non- Western States on issues prioritized in the EU’s external human rights action. As Theodor Rathgeber has argued, in order to move beyond the bloc voting practice that is detrimental to the EU external human rights action, the EU needs to revise its policies in addressing some of the main concerns of countries from the Global South at the Human Rights Council.¹³ Global human rights law cannot be truly global if it does not engage with valid human rights concerns originating in the Global South. An EU position on the right to development that makes it possible to enhance the legal status of the right to development will create a new momentum in North-South human rights discussions at the UN.

 

- The potential added value of a right to development treaty is to complement the current human rights regime with a treaty that goes beyond individual State responsibility and builds on principles derived from international development efforts, including the Paris Declaration on Aid Effectiveness that provides for mutual accountability (donors and partners are accountable for development results), alignment of policies among partner countries (donor countries align behind policy objectives set by developing countries), and inclusive partnerships (full participation of State and non-State actors). The focus on individual State responsibility in current human rights treaty law prevents the integration of human rights into the international development effort. It also hampers international human rights law in delivering on its promise of protection to those adversely affected by globalization.
 

- Finally, the objective of the Framework Convention is to make the right to development, as laid down in the Declaration of the Right to Development, a reality for everyone. The Framework Convention would reaffirm the Declaration on the Right to Development. It would not redefine the right to development as formulated in the Declaration, but create a platform for subsequent legal development (mainly through protocols and multi-stakeholder agreements). Nevertheless, the Framework Convention could provide an opportunity to clarify the contemporary understanding of some of the provisions of the Declaration such as the definition of peoples (Article 1(1)), the dimensions of development, (Article 1(1)), the reference to the new international economic order (Article 3(3)), the succinct reference to an active role for women in the national development process (Article 8(1)).

Conclusion

 

The Right to Development remains to this day a controversial concept. Its content, nature and status are still contested by academic scholars, and the intergovernmental process aiming to reach a political consensus on its meaning and practical interpretation is highly politicized.

 

During past years elapsed since the adoption of the UN Declaration on Right to development, the Right to Development was interpreted by some as creating an international legal obligation on the part of developed countries. Such a legally binding obligation is rejected by developed countries, and is not supported by an analysis of the status of the Right to Development under international law as well. This issue is only an interpretation of its less contested elements. The academic and inter-governmental processes have so far also failed to agree a meaning around which consensus could be built, and which would allow Right to development practitioners to focus on the implementation of the right in development policy and practice.

 

The most controversial element of the RTD lies in the international implementation of the right. In the past it was seen by some as giving rise to an obligation of developed states and international organizations to provide development assistance to developing states. However such a human rights obligation of a legally binding nature cannot be grounded in international law. The current controversy surrounds the process of globalization, the equal participation of developing countries in that process, and its relation to human rights.

 

But indeed, human rights are aimed at protection of the dignity and interests of all human beings. If existing human rights treaties are normatively inadequate to provide protection to the many in the world population that are currently deprived, then the need for the further normative development of human rights instruments is established. The focus on individual State responsibility in current human rights treaty law prevents the integration of human rights into the international development effort. It also prevents international human rights law from delivering on its promise of protection to those adversely affected by globalization.

 

Hence, new thoughts are vital if the political stalemate at the UN between those favoring a classical human rights treaty on the right to development and those advocating a soft law approach is to be prevailing over. The idea of drafting a Framework Convention on the Right to Development seems most adequate to accommodate the concerns of different political groups, as it allows for a step-by-step approach.

 

 A would be framework convention is a treaty under international law: such a treaty is open to States, and once it has entered into force, it is binding on States that have expressed approval. Even if the starting point of the framework convention is the reaffirmation of the Declaration, the Framework Convention could provide an opportunity to clarify the contemporary understanding of some of the provisions of the Declaration. 

 

The latent added value of a right to development treaty is to balance the current human rights regime with a framework convention that goes beyond individual State responsibility and takes inspiration from principles derived from international development efforts, such as mutual accountability, alignment of policies among partner countries, and inclusive partnerships (full participation of State and non-State actors).

 

Afterward, the main practical recommendations could be advised by this paper are as follow:

 

1. Efforts should be made to reduce the gap between development meetings and

United Nations human rights mechanisms that relate to development and international assistance. It may be possible to improve the quality and relevance of Right to Development discussions so that they inform other processes.

 

2. Efforts should also be made to ensure greater consistency within the United Nations system so that human rights procedures (including the Right to Development mechanisms) and agencies developing policies on human rights, development and related issues work together. This would enhance the contribution of the United Nations human rights system to mainstream development policy and practice.

 

3. Developed countries need to reach a more clear position on proposal made by the NAM member states for a legally binding instrument on RTD which would help operationalize the Right to Development. It may be that the possible “Convention” should be seen as an appropriate tool which could help existing approaches better integrate human rights commitments and reflect the “reciprocal obligations” of developed and developing countries.

 

4. The nature of “mutual commitments and shared responsibilities” in a partnership approach to development, and in particular how to monitor the implementation of these commitments by all parties, and what are appropriate and effective accountability and enforcement mechanisms; are subjects to further discussions and studies.

 

* Mohammad Reza GHAEBI, Deputy Director for Human Rights Department, Ministry of Foreign Affairs, Iran.
 

1. The Declaration adopted by UN General Assembly Resolution 41/128 of 4 December 1986, by a majority of 146 to 1 (United States) with 8 abstentions.
 

2. The Working Group on RTD was established by the former Commission on Human Rights, in its resolution 1998/72, and by the Economic and Social Council, in its decision 1998/269, with the following mandate:  (a) to monitor and review progress made in the promotion and implementation of the right to development as elaborated in the Declaration on the Right to Development, at the national and international levels, providing recommendations thereon and further analyzing obstacles to its full enjoyment, focusing each year on specific commitments in the Declaration; (b) to review reports and any other information submitted by States, United Nations agencies, other relevant international organizations and non-governmental organizations on the relationship between their activities and the right to development; and (c) to present for the consideration of the Commission on Human Rights a sessional report on its deliberations, including advice to the Office of the United Nations High Commissioner for Human Rights (OHCHR) with regard to the implementation of the right to development, and suggesting possible programmes of technical assistance at the request of interested countries with the aim of promoting the implementation of the right to development.
 

3. Human Rights Council Resolution 4/4, adopted without a vote on March 30, 2007.
 

4. These documents were adopted by consensus, not by a split vote, but provide insufficient evidence of a genuine legal conviction (opinio juris) supporting the right to development, and implied no commitment on behalf of developed States to move towards treaty-making on the right to development.
 

5. The African Commission on Human and Peoples’ Rights in 2009 established a violation of the right to development of a sub-national group. The Endorois decision focuses on a domestic set of events in Kenya. The decision goes beyond the Declaration on the Right to Development, by placing neither the individual nor the population as a whole, but the survival of an (African) indigenous group at the center of development (Gilbert 2011: 68); it also deals with a dimension of the right to development that is not at the forefront of concerns at the Geneva based intergovernmental debates. The African Commission recognizes the need to protect marginalized and vulnerable groups in Africa suffering from particular problems. Groups within this category qualify as peoples in the context of the African Charter, and enjoy collective rights, including the right to development.
 

6. At the theoretical level, the main points of disagreement concern: (i) the nature of the RTD (duty and rights holders), and in particular what is the appropriate balance between its national and international levels; and (ii) the relationship between human rights and development. At the practical level, the main sources of disagreement concern the manner in which the inter-governmental discussion is taking place, and what are the most acceptable next steps.
 

7. Bonny Ibhawoh, “The Right to Development: The Polemics of Power and Resistance”, 33 Human Rights Quarterly(2011), at 104.
 

8. Bard Anders Andreassen and P. Stephen Marks, eds., Development as a Human Right, Cambridge: Harvard University Press, 2006, at 274.
 

9. Final Document, 14th Summit Conference of Heads of State or Government of the Non-Aligned Movement, Havana, Cuba, 11th to 16th of September, 2006, NAM 2006/Doc.1/Rev.3, Havana, Cuba, 16 September 2006, para. 235.10.
 

10. Other international organizations which have participated in RTD debates include: UNCTAD, the Joint UN Programme on HIV-AIDS (UNAIDS), the Food and Agriculture Organization, UNESCO, UNICEF, UNFPA, the International Labor Organization, and the International Office for Migration.
 

11. A number of NGOs have made statements on the RTD at the UN, but very few make an effort to analyze the right. The main issues raised are: (i) the negative impact of globalization on development and human rights, including stru tment and ctural adjus transnational corporations; and (ii) the rights of indigenous peoples. Very few NGOs have made statements on the national implementation of the RTD. Even less have made constructive comments on concrete proposals such as a legal instrument or the development compact.
 

12. Stephen P. Marks eds., Implementing the Right to Development. The Role of International Law. Geneva, Friedrich-Ebert-Stiftung, 2008, at 127-129.
 

13. Theodor Rathgeber, “Dialogues as a Challenge: The EU in the Human Rights Council 2007 and 2008”, European Yearbook on Human Rights, Vienna: NWV, 2009, at 156.