Qiu Tingbiao*

The right to development was a new concept of human rights protection raised on the issue of the development of developing countries in the middle and later periods of the 20th century. It was a new concept of human rights protection first put forward in the establishment of a new international economic order after World War II. Therefore, we may say that the right to development is a product of struggle and compromise in the international political and economic order; against specific historical backdrops, strong conflicts and disputes between developed and developing countries on the issue of the right to development were an inevitable and necessary objective reality. With the progress and development of the human society, the struggle in political practices and theoretical opinions on the right to development will always exist in the international community. 

 

I. The Meaning of the Right to Development
 

A. The right to development is a human right
 

The right to development is first of all a human right. As is well known, basic human rights and freedom must be connected with the right to live and the right to constantly improve people’s living standard, which is closely connected with development. Therefore, the basic attribute of the right to development is a human right, an inalienable human right. People, as subjects in the course of development, should be active participants and beneficiaries of the right to development. Moreover, the whole body of mankind should individually or collectively be responsible for development and should promote and protect appropriate political, social and economic orders for development.¹ In other words, each individual and collective should have the right to participate in, enjoy and contribute to the economic, cultural and political development of the society. Only in this way can all human rights and basic freedom be fully realized in such development. 
 

The idea that “the right to development is a human right” dated back to the speech delivered by Kéba Mbaye, chief justice of the Supreme Court of Justice in Senegal, in the Strasbourg Human Rights International Research Institute in 1970.² Since then, this idea has been acknowledged by a series of international legal documents. Currently, the idea that the right to development is a human right has been widely accepted in the international community. 
 

What merits our attention is that the subjects of the right to development are not only individuals but also collectives. That is to say, the right to development is a collective right. Specifically, the collectives refer to nations, states and the whole mankind formed by individuals. Therefore, when understanding the idea that the right to development is a human right, we should include two aspects, both the individual and collective aspects. The Chinese delegation to the 40th United Nations General Assembly in 1985 gave a full explanation on the idea that the right to development is an inalienable human right. To realize the right to development of developing countries will promote the joint prosperity of developed and developing countries and be conducive to maintaining world peace. The right to development should not be understood only as an individual right. The progress and development of a state can promote individual development, and individual development in turn can promote social development. Therefore, the two aspects are not divisible and should not be deemed as incompatible.³ This understanding of the right to development was generally accepted in the course of drafting the Declaration on the Right to Development.⁴ Developing countries deem the right to development as the most important and even fundamental human right in collective rights because they have realized that development is closely related to human rights. For developing countries, if the right to development is deemed only as citizens’ political right, the direct connection between economic right and political right will be neglected. Backward economy and underdeveloped society are barriers to full realization of individuals’ human rights. Collective rights are the basic prerequisites for individuals’ human rights and safeguard the realization of individuals’ human rights.⁵

 

B. The right to development is a necessary extension of the right of self-determination 
 

In the 40th United Nations General Assembly in 1985, besides explaining the idea that “the right to development is a human right,” the Chinese delegation also mentioned that the right to development is a necessary extension of the right of national self-determination, and also a result achieved through the struggle for decolonization, national liberation and economic independence and development. 
 

The author thinks that the meaning of the right of self-determination is the right of all states and nations to independently determine their own fate and select their political, social and economic systems. This means the right of all states to freely dispose of their natural resources and wealth for their own purposes, which is the right to economic self-determination. The principle of the right of self-determination has become a basic international law principle accepted by the current international community, which is the “constitutional” principle of the international law. Therefore, the right of self-determination cannot be excluded by any other international law principles; in case of any conflict with other international law principles, the principle of the right of self-determination shall prevail. Thus, some people think that the principle of the right of self-determination shall belong to the category of jus cogens in the international law.⁶
 

In fact, as early as in 1952, in No. 421D (V) resolution, the United Nations General Assembly confirmed that the “right of self-determinations of peoples and nations” is a basic human right. Article 1 of both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights recognizes that “all peoples have the right of self-determination, and by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development...” Article 25 of the former covenant and Article 47 of the latter covenant state, “Nothing in the present Covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources.” Thus, the right of self-determination is the most fundamental human right stipulated by international covenants on human rights. In content, the right of national self-determination includes the nation’s right “to freely pursue their economic, social and cultural development.” Therefore, as far as the right to development in the category of human rights is concerned, this right is based on not only the right of national self-determination but also its extension. To this end, the Declaration on the Right to Development provides that the human right to development also implies the full realization of the right of peoples to self-determination, which includes, subject to the relevant provisions of both the covenants on Human Rights, the exercise of their inalienable right to full sovereignty over all their natural wealth and resources.⁷ In other words, the right to development is an inevitable extension of the right of self-determination. 

 

C. The right to development is the unification of the rights enjoyed and obligations undertaken by the state
 

As mentioned above, the right to development has become a general legal principle of the international law. States, as subjects of the international law, by virtue of this principle, should of course enjoy the right to development.⁸ However, as the right to development is also a right enjoyed by individuals, states, while enjoying the right to development, should also be obliged to realize the right to development. To conclude, the right to development is the unification of the rights and obligations of states. The Seoul Declaration mentions that the right to development as a general legal principle in the public international law should include the following contents: all states cooperate with each other to make the civil, cultural, economic, political and social standards reflected in the Charter of the United Nations and the international covenants of human rights based on generally acknowledged human rights and their common understanding of principles of the international law for establishing friendly relations and cooperation among all states. All states, in formulating and implementing their administrative and legislative policies and other measures, should consider these standards so as to realize the right to development domestically and internationally.⁹ A scholar has observed that the right to development is a legal effort connecting human rights with states’ rights and obligations, for the purpose of creating conditions for individuals to enjoy civil, political, economic, social and cultural rights, and is a respect for state sovereignty and state interests, for the purpose of promoting states to strictly abide by their commitments on human rights by fulfilling relevant behavior responsibilities or effect responsibilities. Therefore, the right to development should be deemed as a state’s right of promoting and protecting human rights.¹⁰
 

Specifically, the right to development that a state enjoys may be reflected mainly in two aspects, domestic and international. On one hand, domestically, a state has the right and obligation to prepare appropriate domestic development policies; keep improving the welfare of all people and all individuals; protect the civil, political, economic, social and cultural rights of its own people; adopt all effective measures to ensure that the people have equal opportunities to acquire basic resources, education, health care, food, housing, employment and equitable distribution of income; ensure the equality of men and women; and eliminate social injustice. On the other, internationally, a state has the right and obligation to observe the international law principles for maintaining friendly relations and cooperation with other states; respect all peoples’ right of self-determination and permanent sovereignty over natural resources; maintain international peace and security; promote the establishment of a new international economic order; individually or collectively adopt measures to make international development policies to promote development of all countries, especially developing countries; eliminate all kinds of large-scale human rights violations, such as apartheid, racialism, racial discrimination, colonialism, foreign domination, invasion and occupation, foreign intervention, and threat to national unity, territorial integrity and state sovereignty, and war threat, among others.¹¹

 

D. The core of the right to development is economic development
 

Substantively, the core of the right to development is economic development. Thus, the right to improve mankind’s life quality has become the proper meaning of the right to development. The purpose of any efforts made and policies implemented for promoting the realization of the right to development must be for the constantly improving all people’s welfare, protecting the civil, political, economic, social and cultural rights of the people, ensuring that all people have the equal opportunity to acquire basic resources, education, health care, food, housing, employment and equitable distribution of income, ensuring the equality of men and women, and eliminating social injustice. The right to development also includes other economic, social and cultural rights, such as the right to work, the right to enjoy fair and reasonable employment conditions, the right to enjoy higher material, spiritual and health standards, the right to benefit from scientific, trade, technological and economic progress, and the right to use fiscal resources, formulate population policies and protect the environment for economic and social development.¹²
 

The realization of individuals’ basic rights and freedom and national rights must be firmly based on economic development. Without economic development, it would be empty to say that we should realize the basic rights and freedom stipulated in international covenants of human rights. It should be noted that so far as the right to development is concerned, though it means a nation’s right to comprehensive development in politics, economy, society and culture, we should consider that economic development is the prerequisite for the development of other aspects. Therefore, we may conclude: economic development is the core of the right to development. Without the foundation of economic development, the right to development would not have significance to exist.
 

To sum up, the right to development is an entitlement of people as individuals and nations or states as collectives to freely participate in and promote the comprehensive development of economy, society, culture and politics and enjoy development interests. It is also a basic human right aiming at meeting people’s basic requirements prevalent within states and the international community. The concept of the right to development may be defined as: the right to development is a basic human right that all individuals and their collectives freely claim for in their own states and the international community, promote and enjoy the interests acquired in economic, social, cultural and political development. 

 

II. The Historic Origin of the Right to Development
 

A. Generation of the idea about the “right to development”
 

The earliest appearance of the word “development” dates back to the classic civilization of ancient Greece and Rome, which mentioned that “development is a course to realize potentiality.” Through the Renaissance in Europe from the 14^th century to the 16^th century, humanists proposed the idea that “development is a free claim of humanity against divinity,” which marked great progress in history. By the 18^th century, enlightenment thinkers inherited and developed this idea and started to claim the “free development of individuality, which implies and stresses the idea of the right to free development.” During this period, Maximilien Robespierre, a French bourgeoisie revolutionary, started to examine the comprehensive development of people with human rights, while the series of discussion about development by Utopian socialists also started to appear, actively appealing to the comprehensive development of people. During this period, the main understanding of human rights by these great thinkers all deemed human rights as individuals’ rights, while neglecting the existence of collective subjects. Thus, it was impossible for the right to development to take shape then. 
 

In the 1940s and 1950s, former colonies and semi-colonies gained independence successively and established sovereign states. However, due to long-term exploitation and oppression by colonialism and imperialism, they were still poor and backward. The important natural resources and economic lifelines of some countries were still controlled by colonialism to different extents. Therefore, to break free from colonial control and to seek the comprehensive development of economy, society and culture of their own countries are the strong aspirations and legitimate rights of these countries and peoples. 
 

Article 55 of the 1945 Charter of the United Nations provides: “The United Nations shall promote: a. higher standard of living, full employment, and conditions of economic and social progress and development;...”¹³ Articles 13 and 62 also have relevant provisions. More articles in the 1948 Universal Declaration of Human Rights can be found on the right to development. For example, Article 22 provides: “Everyone, as a member of society, has the right to social security and is entitled to realization of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.”
 

During this period, the international community established the United Nations system. To achieve the objective of common development, the Charter of the United Nations has set it as the ultimate objective of UN activities, and provided that the United Nations General Assembly and the Economic and Social Council can enjoy a series of rights in this aspect and that all member states are obligated to adopt common and individual actions to cooperate with the United Nations to seek common development of all states. However, the Bretton Woods System established with the participation of developed economies since the 1940s failed to change the traditional international economic relations and economic order. Even worse, this system neglected the unbalanced economic development of developed and developing countries, took unconditional and reciprocal most-favored nation treatment (MFNT) as a general international law principle adjusting international trade relations, and adopted the method of “weighted voting system” to decide on major problems in the fields of international finance and currency. As this system was concerned with the unilateral development of developed countries instead of the common development of the member states pursued by the Charter of the United Nations, the interests resulting from the development and progress of productivity were not fairly shared by developing countries; instead, developing countries developed slowly and the gap of wealth between the South and the North continued to widen as a result. 
 

After World War II, socialist countries and newly independent nations put up intense struggle on the issue of collective human rights, until the establishment of the United Nations. A series of rules on international human rights protection centering on the Charter of the United Nations were formulated through the UN general assemblies, which confirmed the status of collective human rights. Thus the idea of the right to development with individuals and collectives as subjects of right came to be generally accepted by the international community. 

 

B. Confirmation of the concept of the “right to development” 
 

The right to development was first proposed by Africa. By the 1960s, developing countries started to be aware of the problem. In order to break free from the constraint of the old international economic order, countries starting to seek their own development actively waged struggle for changing the old international economic order and establishing a fair and reasonable new international economic order. However, the urgent requirement of developing countries for establishing a new international economic order was strongly opposed by developed countries. The two sides conflicted profoundly on the establishment of a new international economic order.¹⁴ In 1969, the Algerian Justice and Peace Committee released a report on “the Right to Development of Underdeveloped Countries,” which used the phrase “right to development” for the first time. Kéba Mbaye, first Chief Justice of the Supreme Court of Justice in Senegal, Vice President of the International Society for Human Rights, and Member of the Commission on Human Rights of the United Nations General Assembly, clearly put forward the concept of the “right to development” for the first time and attempted to define it.
 

From the mid 1970s to the mid 1980s, no result was achieved in the dialogues between the two parties.¹⁵ Meanwhile, the economic situation of developing countries during this period further deteriorated, with deepening debt crisis. For example, the annual debt payments of non-oil-producing developing countries during this period increased from less than USD 20 billion in 1973 to over USD 100 billion in 1983.¹⁶ From 1981 to 1985, the average annual economic growth rate of developing countries was less than 1.4% (6.1% from 1971 to 1975, and 4.9% from 1976 to 1980). The economic growth rate of over one half of the developing countries was lower than their birth rate, thus giving rise to negative growth of per capita income.¹⁷ The economic deterioration of developing countries also led to overproduction, export slowdown and increase of unemployment rate in developed countries, whose economic development was seriously affected. Various countries started to realize that the development problems could be effectively settled only through dialogues and cooperation so as to promote social development. At the opening ceremony of the International Society for Human Rights in Strasbourg in 1970, Mbaye delivered a speech entitled “The Right to Development as a Human Right,” which pointed out: “The right to development is a human right, because mankind cannot survive without development, and all basic rights and freedom are inevitably connected with the right to survive and the right to constantly improve living standards, that is to say, connected with the right to development. So far, the concept of the right to development is formally proposed and immediately confirmed by the strong support of developing countries and a series of international documents of the United Nations General Assembly.” On May 1, 1974, the United Nations General Assembly adopted the announcement on the Declaration on the Establishment of a New International Economic Order, which mentioned “the right of every country to adopt the economic and social system that it deems the most appropriate for its own development and not to be subject to discrimination of any kind as a result,” and took the establishment of a new international economic order as the top priority for every country to realize their right to development. In 1974, the United Nations General Assembly adopted the Charter of Economic Rights and Duties of States, which stressed the obstacles to development cooperation and development and systematically discussed the specific contents of the rights and duties of international economies for promoting the development of all states. In 1977, the United Nations Educational, Scientific and Cultural Organization discussed the concept of the right to development and conducted international research on it. In the same year, the 33rd meeting of the United Nations Commission on Human Rights adopted No. 4 (XXXIII) resolution, which acknowledged for the first time that the right to development is a human right within the system of the UN Commission on Human Rights. Since then, the issue of the right to development has been officially included in the agenda of the United Nations General Assembly. In 1979, the United Nations Commission on Human Rights adopted No 4 (XXXV) and No. 5 (XXXV) resolutions, reiterating: “Equality of development opportunities is not only a national right but also the right of individuals within each state,” and explicitly stating that the subjects of the right to development include both states and individuals. This was undoubtedly further understanding of the concept of the right to development. In the same year, No. 34/36 resolutions of the 34th United Nations General Assembly adopted the Resolution on the Right to Development, reflecting the views of the Commission on Human Rights. The issuance of this resolution marked that the international community had come to confirm and recognize the right to development.
 

In the mid 1980s, pushed by the United Nations, both Southern and Northern countries gradually conducted dialogues and cooperation on developing relevant international law principles for the new international economic order and the issue of global development. The concept of the right to development is one of the important legal concepts put forward in this course of struggle and guiding the struggle. In 1981, member states of the Organization of African Unity (OAU) adopted the African Charter on Human and People’s Rights in the Nairobi Conference, and the right to development was acknowledged in this charter.¹⁸ In the same year, upon the authorization of the United Nations Economic and Social Council, the United Nations Commission on Human Rights set up a task force formed by government experts of 15 states, responsible for studying the scope and contents of the right to development, with special attention to various obstacles encountered by developing countries in their efforts to realize human rights. After that, the task force started the drafting of the Declaration on the Right to Development. In August 1986, the International Law Association held the 62nd assembly in Seoul, unanimously adopting the Seoul Declaration on Progressive Development of Principles of Public International Law Relating to a New International Economic Order (hereinafter referred to as the Seoul Declaration). This declaration regards the right to development as one of the international law principles relating to a new international economic order and takes the right to development as a general principle of international law, especially a principle of the human rights law, based on the people’s right of self-determination. In December of the same year, despite the conflict between developed and developing countries in the issue of the right to development,¹⁹ the United Nations General Assembly adopted the Declaration on the Right to Development with an overwhelming majority,²⁰ which gave a systematic and comprehensive explanation of the meaning of the right to development. Obviously, with the development of its concept, the right to development has exceeded the specific scope of international human rights law and become a general international law principle guiding various fields of international relations. 
 

C. Legislation of the right to development
 

Based on the above contents, we can see that in recent years the “right to development” has come to be recognized by the international community as a basic human right. Meanwhile, however, these progresses made in the “right to development” are mainly reflected in the change of views and the heightened importance attached to it, instead of written establishment of the concept in such forms as a single constitutional code. The absolute majority of the states have not clearly stated the concept of the “right to development,” and only a small number of states have declaratory or affirmative provisions on the idea or principle of the right to development. In practice, due to the lack of legal norms for the right to development, no general and systematic legal relief mechanism can be entered and it is difficult to enter the judicial procedure when the right to development is infringed upon. For example, Afghanistan only declares in the preamble of its Constitution: “The purpose of a constitutional state is to protect social equity and equality, develop national economy and improve people’s living standard.” The United Arab Emirates only mentions it in the objective of the federation in its Constitution, “closely cooperate to promote the prosperity and progress of all fields, and improve the life of all people.” In 1985, the Constitution of Guatemala established development as a responsibility and duty of the state, which is, protecting people’s life, freedom, justice, safety, peace and their comprehensive development. According to statistics, of the 123 current constitutions that are available in Asia, America, Oceania and Europe, 57 adopt similar methods to reflect the idea about the freedom and right to develop, and most of them cover the idea of the right to development but without specific articles providing for it. 
 

Obviously, for the right to development as a basic right, it will be impossible to thoroughly settle its practical problems if there is no statutory confirmation of domestic constitution or specific legal support methods.²¹
 

The substantiation of human rights is based on the legislation of human rights. As a fairly recent human right, it is an inevitable choice for the right to development to be regulated and protected by law especially the constitution, thus being materialized. The inclusion of the right to development into the constitution makes it acquire the highest legal efficacy and legal protection by the basic law, which is the foundation for the legal protection system of the right to development, creating the most fundamental conditions in legislation for the construction of a self-invention system for the realization of the right to development. Since the 1990s, substantive development has been achieved in the constitutionalization of the right to development. For example, in revising or re-making constitutions, African countries have stressed that the status of the right to development is a basic human right and included it into their domestic legal system centering on the constitution. The constitutions of several newly independent states after the disintegration of the USSR, including the 1992 Turkmenistan Constitution, the 1993 Kyrgyzstan Constitution, the 1995 Georgia Constitution and the 1995 Kazakhstan Constitution, not only stipulate the matter of principle concerning the right to development but also directly and clearly enumerate the forms of the right to development. The confirmation and protection of the right to development has become a basic characteristic of contemporary constitutions. Generally speaking, the regulation of human rights by the constitution mainly adopts the combination of basic legal principles and specific legal norms as the regulatory method. According to historical experiences and the regulatory method of constitutions for basic human rights other than the right to development, constitutions mainly adopt the following five methods for the regulation of the right to development. Firstly, in the “preamble” or “general principles” of constitutions, the right to development is abstractly announced to have the constitutional status of a human right, the nature of the right to development is stressed as a basic human right. Meanwhile, the legal principle for the protection of the right to development is established. Secondly, in “basic state tasks,” the right to development is generally confirmed with programmatic and principled norms as a statutory basic task of the state. Thirdly, in “basic state policies” or “developmental planning,” through the establishment of legal relations between the right to development and development planning and between development plans and specific development projects, the methods for realizing the right to development are specified. Fourthly, citizens’ right to development is confirmed in the provisions on “citizens’ basic rights” or “basic human rights.” Fifthly, transitional clauses are provided to connect the international law on development and the domestic law so that the international and domestic legal norms on the right to development are unified in constitutional regulations to realize the domestication of the international legal norms on the right to development. With any of the above methods, so long as the right to development is included into constitutional norms so that the right acquires the highest legal efficacy and legal protection of the basic law and the constitution is the source and a point of connection for the right to development, the law on the right to development or other legal systems on the right to development will inevitably be constantly confirmed, enriched, developed and strengthened with due rights, and a complete legal system for the right to development can be gradually established.²²

 

III. Approaches for Realizing and Measures for Protecting the Right to Development
 

A. The current situation of the right to development in China
 

As far as the current situation is concerned, the Chinese government, to effectively settle various conflicts confronting the realization of human rights, mainly follows three principles (namely the principle of promotion by law, the principle of harmonious promotion and the principle of pragmatic promotion) in promoting the realization of the Chinese dream for human rights protection. These principles have been specifically stated in two terms of national human rights action plans, with only some differences in wording. 
 

“Promotion by law” is to promote the development of China’s human rights cause by law by improving laws, regulations and implementation mechanisms for respecting and protecting human rights in various links such as legislation, administration and administration of justice according to the principle in the Constitution that “the state respects and protects human rights,” following the Universal Declaration on Human Rights and the basic spirit of relevant international covenants on human rights. “Harmonious promotion” means to promote the harmonious development of economic, social and cultural rights and civil and political rights and promote the harmonious development of individual human rights and collective human rights by taking various human rights as an inalienable organic whole of interdependence. “Pragmatic promotion” means to effectively promote the development of the human rights cause by not only respecting the universal principle of respecting human rights but also starting from basic national conditions and new reality in China. 

 

B. Macao’s efforts in the development of human rights
 

In Macao’s human rights protection system, the Basic Law of Macao is of essential and guiding status. The protection of human rights in the Basic Law of Macao is mainly reflected in Chapter III, “Residents’ Basic Rights and Obligations.” The Basic Law of Macao has very extensive protection of human rights, including: residents’ rights (Article 24); the right to equality (Article 25); the right to vote and the right to stand for election (Article 26); freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; the right and freedom to form and join trade unions, and to strike (Article 27); freedom of the person and the right to bodily integrity (Article 28); the right to be protected by the principle of non-retroactivity in criminal law and the principle of being presumed innocent before convicted; the human dignity of Macao residents shall be inviolable, and Macao residents shall enjoy the right to personal reputation and the privacy of their private and family life (Article 30); and, the homes and other premises of Macao residents shall be inviolable (Article 31).
 

The freedom and privacy of communication of Macao residents shall be protected by law, and no department or individual may, on any grounds, infringe upon the freedom and privacy of communication of residents except that the relevant authorities may inspect communication in accordance with the provisions of the law (Article 32); freedom of movement within the Macao Special Administrative Region and freedom of emigration to other countries and regions (Article 33); freedom of religious belief and freedom to preach and to conduct and participate in religious activities in public (Article 34); freedom of choice of occupation and work (Article 35); the right to resort to law and to have access to the courts, to lawyers’ help for protection of their lawful rights and interests, and to judicial remedies (Article 36); freedom to engage in education, academic research, literary and artistic creation, and other cultural activities (Article 37); freedom of marriage of Macao residents and their right to form and raise a family freely (Article 38); the minors, the aged and the disabled shall be taken care of and protected (Article 38); the right to social welfare (Article 39); the right of private ownership of property (Article 6); the right of individuals and legal persons to the acquisition, use, disposal and inheritance of property and their right to compensation (Article 103).²³
 

Besides, the government of the Macao Special Administrative Region has also made constant efforts in social development and human rights protection after Macao’s return to China. In the first few years after its return, Macao suffered from economic depression and the situation did not go well. However, with the vigorous support of the Central Government in various aspects, economy in Macao has been gradually improved, and the good economic foundation also makes it possible for Macao to invest more resources in the development of human rights. Specifically, these measures mainly cover ten aspects: 1. Judicial and quasi-judicial areas; 2. Promotion of human rights; 3. Labor and employment; 4. Equality of men and women; 5. Family aid; 6. Housing; 7. Health; 8. Privacy; 9. Education; 10. Environment. 

 

C. Suggestions on the approaches for realizing and measures for protecting the right to development
 

As above mentioned, the state enjoys the right to development and is responsible for the realization of the right to development, mainly reflected in domestic and international aspects, which are closely connected. However, while the right to development thrives, many obstacles are encountered. For example, imperialist and colonialist invasion and economic plundering and the unreasonable international economic order have resulted in slow and even stagnant economic development in developing countries; the gap between the South and the North keeps expanding, which ultimately results in people’s poverty. Therefore, to realize the right to development, especially the right to development of developing countries, and ultimately realize the common development objectives stipulated in the Charter of the United Nations, in final analyses, we should create an international environment conducive to the realization of the right to development, which requires all countries in the world to assume the international obligation for realizing the right to development on the international level. To sum up, the approaches for realization of and measures for protection of the right to development mainly include the following three aspects:

1. Cooperation and mutual promotion

 

According to the Charter of the United Nations, the third purpose of the United Nations is “to achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.” Chapter 9 of the Charter specifies the objectives and obligations for member states to conduct international economic and social cooperation and requires that to this end all member states should adopt joint or individual actions to cooperate with the United Nations. The Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations reiterates the obligations of all states to cooperate with each other according to the Charter of the United Nations. This declaration also provides: “States have the duty to co-operate with one another, irrespective of the differences in their political, economic and social systems, in the various spheres of international relations, in order to maintain international peace and security and to promote international economic stability and progress,...” and “states should co-operate in the economic, social and cultural fields as well as in the field of science and technology and for the promotion of international cultural and educational progress. States should co-operate in the promotion of economic growth throughout the world, especially that of the developing countries.”

   
In the 1970s, a series of resolutions of the United Nations General Assembly concerning the establishment of a new international economic order kept reiterating the obligations of all states to engage in international cooperation to promote development. For example, the Declaration on the Establishment of a New International Order has pointed out that the interests of developed countries are inseparable from those of developing countries, the prosperity of developed countries is closely related to the growth of developing countries, and the prosperity of the family of nations depends on the prosperity of its members. International cooperation in development is the objective and joint responsibility of all countries.²⁴ The Charter of Economic Rights and Duties of States further stipulates that all states have the duty to conduct international cooperation in economic, social, cultural, scientific and technological fields, so as to promote the economic development and social progress of developing countries; international cooperation for development is a consistent objective and common duty of all states.²⁵
 

From the above discussions, we can see that cooperation of all states for development has become a general principle of international law. Therefore, all states in the world should cooperate with each other and promote each other. Specifically, all states should closely cooperate with each other, observe principles of international law for maintaining friendly relations and cooperation of all states, respect all peoples’ right of national self-determination, respect all states’ permanent sovereignty over natural resources; and on this basis maintain international peace and security, prepare international development policies, conduct a reform of the international economic order that meets the needs and interest of all states, especially developing countries, thus establishing an equitable international economic order for mutual benefit to promote social progress and economic development of all states in the world, especially developing countries, in the hope of eliminating the obstacles to the realization of the right to development and ensuring the realization of the right to development. 
 

Meanwhile, the Seoul Declaration stresses that international cooperation should be conducted in following fields especially: international trade, international monetary and financial relations, transnational investment, technical transfer, regulation of the activities of transnational corporations and transnational limited commercial behaviors, supply of food, energy and commodities, international protection of the natural environment, the right to development, and coordination of various activities; in terms of the method of cooperation, provided that no other cooperation obligation is hindered, regional cooperation of various forms should be established among countries that are highly dependent on each other according to the degree of interdependence, and specific forms of cooperation should be established between developed countries or country groups and developing countries or country groups with special interdependence.²⁶

 

2. Equal participation in international decision making
 

The so-called equal participation in international decision making refers to the fact in discussing and settling a certain international problem or designating an international rule all states with a stake in it should equally participate in the discussion of this problem or the formulation of this rule, and their opinions and interests should be fully respected. Obviously, equal participation of all states in international decision making reflects the principle of equality of national sovereignty.²⁷ According to the principle of sovereign equality in international law, all sovereign states are equal in not only legal status but also functions. The so-called functional equality refers to equality of states in international relations, involving the equality of states in some activities beyond national legal activities and states’ participation in international problems, including equal participation in international conferences, international organizations and multilateral covenants related to state interests; sovereign equality of states in international organizations; equality of states in the formulation of international law.²⁸
 

Equal participation in international decision making has been drawing more and more attention from the international community, especially developing countries. The Declaration on the Establishment of a New International Economic Order calls on full and effective participation on the basis of equality of all countries in solving world economic problems in the common interest of all countries.²⁹ The Charter of Economic Rights and Duties of States specifies that all states, as equal members in the international community, shall have the right to fully and effectively participate in the course of international decision making for solving world economic, financial and monetary problems.³⁰ The Seoul Declaration further confirms equal participation in international decision making as one of the international principles for a gradually developing new international economic order. This declaration stresses that all states have equal legal status, and all states, as equal members in the international community, have the right to fully and effectively participate in the course of international decision making for solving world economic, financial and monetary problems; a decision-making system that can fairly consider all related interests should be established within international organizations. 
 

To sum up, equal participation in the course of international decision making requires that all states and international organizations actively, fully and effectively participate in discussion and settlement of problems related to international development and formulate relevant international development policies besides stressing that all states have equal status in the course of international decision making and that their opinions and interests are respected. 

 

3. Establishing a comprehensive new international order 
 

The second part mentions that the biggest obstacle in the course of economic development of developing countries is the unequal, unjust and unreasonable international order based on imperialism and colonialism. Therefore, to establish a comprehensive new international order has become the proper meaning of the right to development. 
 

Currently, though some principles required in establishing a comprehensive new international economic order have been reflected in certain international conventions to some extent,³¹ we must clearly realize that the current international order is still alarming, as the gap of wealth between the South and the North is widening, and the unilateral development of developed countries remains unchanged. According to the 1999 Human Development Report released by the United Nations Development Programme, the one fifth of the world’s people living in the highest-income countries had 86% of world GDP and 82% of world export markets, while developing countries whose population accounted for over 75% of the world’s total only had 14% and 18% respectively. The gap of per capita GDP between developed and developing countries had expanded from 43 times in 1983 to over 60 times now. The number of the world’s most underdeveloped countries increased from 36 ten years ago to 48 currently.³²
 

Just on this account, the Millennium Summit Meeting held at the United Nations headquarters in New York in September 2000 took “how to establish a new international economic order and narrow the south-north gap in economic globalization” as an important topic of discussion. Chinese President Jiang Zemin stressed at the meeting on the “role of the United Nations in the 21st century” that the key to drawing on advantages and avoiding disadvantages to promote the common development of mankind was to establish a new equitable and reasonable international economic order.33 The 57th United Nations Conference on Human Rights held in Geneva in March 2001 set up a series of topics for discussion including the right to development. The Chinese delegates explained China’s position on the right to development, stressed that China should accord importance to and realize the right to development, and pointed out that all states should promote the democratization of international relations and establish an equitable and fair new international political and economic order.³⁴
 

To sum up, “development” and the “establishment of a comprehensive new international order” are closely related. Simply put, “development” is the objective, while the “establishment of a comprehensive new international order” is a condition or means. The Declaration on the Right to Development specifies the duty of all states to promote the establishment of a comprehensive new international order.³⁵ Thus we can see that to acknowledge the right to development of developing countries, we must establish a comprehensive new international order; only when a comprehensive new international order is established can the development of all states, especially developing countries, be truly promoted and protected. The “new international order” here mainly stresses the economic order. 
 

However, due to the “advisory nature” of the resolutions of the United Nations General Assembly on the right to development, such resolutions are not legally binding, and their influence on international law is subject to states’ domestic legislative practices and international treaty practices.³⁶ Meanwhile, due to the existence of conflict and opposition in developed countries to different extents, developing countries must wage long-term and difficult struggle with developed countries in international treaty practices so as to vest the relevant basic principles in the above resolutions and try to make them legally binding. Therefore, we must be aware that establishing a new international economic order will be in a very long and difficult course. 

 

IV. Conclusion 
 

To conclude, the realization of comprehensive human rights protection is a long-term dream of the Chinese people and also an objective that the Chinese government has been struggling for. The Chinese dream of human rights protection reflects the most urgent demand of the Chinese people on human rights protection. It is not only a dream of every Chinese citizen but also a dream of the Chinese nation. For every Chinese, it requires that each citizen’s economic, social, cultural, civil and political rights are respected and protected, and various rights of special groups are protected; for the nation, it requires that collective rights of the Chinese nation such as the right to live, the right to development, the right of self-determination and the right to peace are realized. The concept of the right to development reflects the strong aspiration of developing countries to establish a new international economic order so as to promote the comprehensive development of all countries in the world, especially in developing countries, and opposes to the unilateral development of developed countries in the current international economic order. 

 

* Qiu Tingbiao (邱庭彪), associate professor of the Faculty of Law, University of Macau.
 

1. Paul de Waart et al eds., International Law and Development, Martinus Nijhoff Publishers, 1988, at 421.
 

2. Milan Bulajic, Principles of International Development Law , trans. by Tuo Dehai et al, Beijing: China Translation and Publishing Corporation, 1989, at 365.
 

3. Ibid., at 374.
 

4. Supra note 1, at 382.
 

5. Zeng Huaqun, An Introduction to the International Economic Law , Beijing: Law Press, 1997, at 212.
 

6. Supra note 2, at 263.
 

7. Supra note 1, at 421.
 

8. No. 4 (XXXIII) resolution of the United Nations Commission on Human Rights and No. 34/46 resolutions of the United Nations General Assembly in 1979 have pointed out that the right to development is not only an individual’s right within a state but also a state right.
 

9. Supra note 2, at 410.
 

10. Supra note 5, at 211.
 

11. Supra note 1, at 421-422.
 

12. S. R. Chowdhury et al eds., The Right to Development in International Law , Matinus Nijhoff Publishers, 1992, at 31.
 

13. From the official website of the United Nations.
 

14. For example, during the international voting for the Charter of Economic Rights and Duties of States, which was of the significance of a legal code for establishing a new international economic order, the results were 120 votes of approval, 6 votes of opposition and 10 votes of abstention. Those casting opposing votes and abstaining from voting are all developed countries. The main conflict between developing countries and developed countries was: developed countries maintained that this document was only a general declaration made by the United Nations General Assembly, mainly for compiling the economic rights and duties of all countries that had been established in international law or generally accepted in customs and practices; while developing countries maintained that this document should be a document with legally binding force, not only compiling existing international law norms but also creating new rules adapted to the current and future demands of the international community.
 

15. The Cancun Conference in October 1981 was a conference of the highest ranking in South-North dialogues. Government heads or their representatives of 14 developing countries and 8 developed countries attended the conference, representing 2.7 billion of the world’s 4 billion people. The subject of the conference was to seek solutions of some major problems in South-North economic relations. But no expected results were achieved in this conference.
 

16. Wang Tieya, International Law, Beijing, Law Press, 1995, at 7.
 

17. Supra note 1, at 342.
 

18. Para. 1 of Article 22 of African Charter on Human and People’s Rights provides: “All peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind.”
 

19. The main conflict between developed and developing countries was mainly as follows: (1) About the subjects of the right to development. Developed countries thought that the right to development was only an individual right; developing countries thought that the right to development was a collective right and its subjects should be countries and the people of a country. (2) About the contents of the right to development. Developed countries thought that the right to development was a complex of citizens’ political, economic, social and cultural rights; developing countries thought that the right to development should also include the international rights and obligations of a country. (3) About the approaches for realizing the right to development. Developed countries thought that to realize the right to development the top priority was to realize democratization, protect human rights, practice LBV economy, eliminate social corruption and injustice, and develop individual initiatives; developing countries thought that to realize the right to development, the top priority was to create a favorable international environment to change the adverse position of developing countries in the field of international economy and narrow the gap between the South and the North.
 

20. The voting results of this declaration were: 146 countries voted in the affirmative, the United States voted in the negative, Denmark, Federal Germany, Finland, Ireland, Israel, Japan, Sweden and the United Kingdom abstained from voting. Those casting opposing votes and abstaining from voting were all developed countries.
 

21. Zhai Hongfen, “Historical Evolution of the Right to Development,” 118 The South of China Today, March 2009, at 184.
 

22. Supra note 21.
 

23. Supra note 21.
 

24. Wang Tieya and Tian Ruxuan, Selected Materials of International Law , Beijing, Law Press, 1989, at 813.
 

25. Supra note 21, at 184-185.
 

26. Supra note 2,at 409.
 

27. Zhu Yansheng, “Evolution and Realization of the Right to Development: Some Observations on the Human Rights of Developing Countries for Development,” Journal of Xiamen University (Philosophy and Social Sciences), No.3, 2001.
 

28. Supra note 16, at 190.
 

29. Supra note 24, at 814.
 

30. Ibid., at 843.
 

31. For instance, the current Agreement of the International Monetary Fund expands developing countries’ quota of special drawing rights. The International Monetary Fund and the World Bank in recent years paid close attention to provide loans to developing countries. In the agreement for establishing the World Trade Organization, the principle of preferential treatment became one of the basic principles. The interests of developing countries, especially the least developed countries, are reflected to some extent. The Lome Convention (the fourth one till now) between member states of the European Economic Community and African, Caribbean, and Pacific (ACP) countries also initially reflects some principles of the new international economic order, especially the principle of international cooperation for development.
 

32. “A look at the south-north economic gap at the turn of the millennium”.
 

33. “President Jiang Zemin’s Speech at a Panel Discussion of the Millennium Summit Meeting,” Xinhua Monthly, No.10 (2000).
 

34. “Chinese Delegates Explain China’s Position on the Right to Development at the 57th United Nations Conference on Human Rights,” People’s Daily, March 29, 2001.
 

35. Supra note 1, at 422.
 

36. About the legal efficacy of the resolutions of the United Nations General Assembly, there are several different views, such as the view of “traditional sources of international law,” the view of “soft law” and the view of differentiation.