Written by Sabina Escobar
In August 2011, Navi Pillay, the United Nations (UN) High Commissioner for Human Rights between 2008 and 2014, made a statement on the necessity to recognise development as a human right. She highlighted that
“it’s not an act of nature that leaves more than one billion people around the world locked in the jaws of poverty. It’s a result of the denial of their fundamental human right to development. We must act together to make the right to development a reality for everyone” (Pillay, 2011).
According to Davis, development assistance is inherently linked to the international human rights regime. As a consequence, both elements are found at the crossroads of the “post-war liberal internationalist commitment to improving people’s lives and livelihoods” (Davis, 2009, p.173). But how has development reached the status of a human right? During the past decades, this question has fed the debate among scholars on the issue of human rights obligations by states and their scope of action (Beall, 2022).
In its origins, human rights have been conceived as regulating the relationship between government authorities and individuals within the territorial jurisdiction of the state. In this regard, the role of international actors was limited, often reduced to monitoring and enforcement compliance activities, as well as assistance to states in abiding by their domestic obligations (Beall, 2022). However, “in the 1970s, leaders from the Global south asserted that developed states had legal duties to realise the human rights to development by providing economic assistance and correcting an unjust international economic system” (Beall, 2022, p.2).
The right to development was formally articulated within the UN Declaration on the Right to Development (UNDRD, 1986). This right was later included in the 1993 Vienna Declaration and Programme of Action, “in which it was described ‘a universal and inalienable human right and an integral part of fundamental human rights’” (Davis, 2009, p.175).
This article will firstly address the role of the Global South in the conception of the right to development as a human right within the envisioning of a new international economic order. In the second place, it will delve into the limitations of the UN Declaration on the Right to Development, opening the space for the creation of the draft Convention on the Right to Development. Finally, the position and role of the European Union (EU) in the discussion of the draft will be considered.
A determined Global South: Towards a new international economic order
Before delving into the provisions of the UNDRD, it is essential to understand the role of the Global South, and particularly its representatives within the UN Commission on Human Rights, in the process of transforming the concept of development into a human right. Those have argued that the West, or the Global North, is responsible for the historical, structural, and direct impacts on the “South’s under-development and failure to realise economic and social rights” (Beall, 2022, p.10). By historical responsibility, the representatives made reference to colonisation and slave trade. Structural responsibility was linked to the concentration of wealth in the West, deemed to be unjust. However, the historical and structural aspects of responsibility are intertwined, as the Global South saw the structures and patterns of the global economy as “vestiges of colonialism” (Beall, 2002, p.10). Finally, the direct responsibility from the Global North towards the Global South rests on the fact that the former has constantly committed violations of both social and economic rights through economic coercion and pressure, accompanied by the denial of the right of nationalisation of natural resources for development purposes (Beall, 2022).
Envisioning a new international economic order, the South claimed the need for a world in which developed countries stuck to their far-reaching duties in order to contribute to the creation of a new order putting economic development at the centre. Through such a process, the leaders of the Global South pursued the implementation of positive obligations for the West, including the reform of the prevailing rules in the above-mentioned unjust international system, the engagement in preferential trade, the transfer of both resources and technology, as well as the provision of compensations for colonialism. However, the perceived obligations equally comprised negative duties towards the Global North, for instance the refraining from behaviours going against the possibility of development, ranging from from economic pressure to establishing economic conditions on trade and development assistance, among others (Beall, 2022).
Those foundations are collected under the UNDRD, which sets relevant provisions for the right to development, some of which should be highlighted. On the one hand, Articles 1(1), 2(1) and 8(2) recapitulate the idea that it is individuals, rather than states, that should be put at the core of development, constituting the subjects of the latter. In this regard, individuals should enjoy the right to actively participate in all the spheres relevant to development, including political participation through decision making capacities (UNDRD, 1986). In addition, Article 8(1) established that individuals should enjoy equal access to “basic resources, education, health services, food, housing, employment and fair distribution of income” (UNDRD, 1986). In this regard, Davis (2009) argues that the UNDRD tries to tie its substantive positive rights into those of the International Covenant on Economic, Social, and Cultural Rights. According to Article 3(1), states carry “the primary responsibility for the creation of national and international conditions favourable to the realization of the right to development” (UNDRD, 1986). Still focusing on the essential role of states, those which are signatory commit to the right to development through the establishment of domestic development policies that put at their core the principles of equitable distribution and participation, as set in Article 2(3) (UNDRD, 1986). A last essential consideration is the role of the international community, also mentioned in the Declaration, as it has duties in the realisation of development, just as states. Under Articles 3, 4, and 5, the international community is deemed to have obligations, particularly in the form of cooperative behaviour and the implementation of development policies. The international community should aim at effective development by ensuring the rights, economic, and security conditions for the latter to occur (UNDRD, 1986).
From a Declaration to a Convention: Identifying the flaws
Although the Declaration stipulates the duties of states in the correct realisation of the right to development, academia has often argued the existence of gaps, inconsistencies and flaws in the formulation of such positive and negative duties, risking to jeopardise the effectiveness of the right to development.
On the one hand, the translation of the Declaration into the actual behaviour of the Global North states has been relatively limited. The uniform acceptance of the right to development encapsulated with the signature of the UNDRD did not seem to be that solid in practice, first of all by means of the use of the language within the Declaration. In fact, according to Beall, Western states ratified the right to development “in a form that further diminished international duties, with the ‘duty to cooperate’ replaced with language asserting that states ‘should cooperate’” (Beall, 2022, p.13). This example is clearly visible through Article 6, mentioning that
All States should co-operate with a view to promoting, encouraging and strengthening universal respect for and observance of all human rights and fundamental freedoms for all without any distinction as to race, sex, language or religion (UNDRD, 1986).
Other scholars such as Sano highlight the lack of explicitness of duties towards other actors, especially towards corporations and NGOs. According to him, there is the need to further put “a focus on protection of individuals and groups against power exertion, not only from states, but also from other agencies exerting power, such as transnational corporations, NGOs, and international organizations” (Sano, 2000, p.751). In addition, the UNDRD is not specific enough regarding the analysis of the issues at the core of cooperation among states. Some experts, however, consider that if we read between the lines, the Declaration elaborates on “agreement on trade, debt, finance, technology transfer and unites assistance” (Sengupta in Davis, 2009, p.175).
Finally, the challenge of the effectiveness of the Declaration resides on the legal nature of the right to development itself. According to Kuosmanen, “the legal right to development is effectively a right to a process that leads to the realisation of other human rights. Furthermore, the content of this right can be derived from other international instruments” (Kuosmanen, 2015, p.316). In this regard, the right to development is compared to a process resorting to other human rights in its construction, therefore not having an independent character. Accompanied to this idea, the Declaration faces another remarkable limitation, directly linked to the corruption embedded in the current economic system. As already mentioned, the right to development requires that obstacles to development are eliminated by states and undoubtedly, “an environment of rampant and systemic corruption is one such obstacle to development” (Moyo, 2017, p.213).
All the described flaws on the effectiveness of the right to development, as framed under the UNDRD, are currently being addressed under the Draft Convention on the Right to Development (DCRD). In January 2020, a first submission of the DCRD took place. However, it was not until November 2021 that states, NGOs and international organisations started elaborating upon the DCRD (Nakahiri, 2022). The DCRD is considered to be the successor of the UNDRD. According to scholars, the draft Convention constitutes a milestone in the recognition of the right to development as a human right. This is due to two main aspects: on the one hand, if adopted, the right to development would be binding; on the other hand, it incorporates detailed, concrete, and implementable norms. While keeping the essential aspects of the UNDRD, the DCRD equally addresses the existing gaps and limitations of the Declaration (Teshome, 2022).
The EU and the right to development: Sitting on the fence
This section will assess the position of the EU on the right to development. For that purpose, it will focus on the EU General Statement on behalf of the EU and its member states. The latter took place in November 2021, at the occasion of the 22nd session of the Working Group on the Right to Development.
The EU, as an important actor of the Global North, portrays itself as remaining “strongly committed to eradicating poverty and achieving sustainable and inclusive development, and to promoting the full and equal enjoyment of all human rights by all individuals without discrimination on any ground” (22nd session of the Working Group on the Right to Development, 2021). The Union equally makes reference to its efforts in the promotion of human development and equitable globalisation (22nd session of the Working Group on the Right to Development, 2021). At the same time, the EU showed its pride “to lead global efforts as the world’s largest development actor to eradicate poverty and achieve sustainable and inclusive development in its economic, social and environmental dimensions by 2030” (22nd session of the Working Group on the Right to Development, 2021). In addition, it said to maintain its commitment to “collectively achieving the target of providing 0.7% of collective GNI as Official Development Assistant by 2030, guided by a human rights-based approach to sustainable development” (22nd session of the Working Group on the Right to Development, 2021).
Under the auspices of the Human Rights Council, the EU claimed to be a defendant of the right to development, recalling the “universality, indivisibility, interrelation, and interdependence of all human rights” (22nd session of the Working Group on the Right to Development, 2021). However, the general statement put the focus on the divergent views on how the right to development is understood. By restating its position, the Union announced that it is “not in favour of the elaboration of an international legal standard of a binding nature [as it does] not believe this is an appropriate or efficient mechanism to realise sustainable development, especially considering the centrality of the 2030 Agenda for Sustainable Development’” (22nd session of the Working Group on the Right to Development, 2021). In this regard, the Union asked for its position to be considered in the conclusions and recommendations of the 22nd session. The EU seemed to be very critical in regards to the DCRD. Among other aspects, it highlighted that “the draft […] lacks the fundamental alignment between the Right to Development and the 2030 Agenda for Sustainable Development”, that “it includes text that fundamentally changes the nature of previously agreed language, fostering a partial and fragmented approach to sustainable development”, and “introduces vague notions of extraterritorial obligations for the States” (22nd session of the Working Group on the Right to Development, 2021).
In this regard, it seems that the EU portrays itself as a pioneer in the field of development, complying with its duties and promoting the defence of development as a human right. However, it appears contradictory that the Union does not agree on the draft Convention to be binding.
It is essential to bear in mind that the UN framework regarding the right to development is relatively recent in comparison to other fundamental rights. For that reason, the transition currently taking place between the UNDRD and the DCRD should be considered a progressive shift within the human rights regime. As previously discussed, one of the main challenges that the integration of the right to development as a fundamental right is facing is that it derives from a combination of multiple fundamental rights. Based on the above research, this characteristic should not influence the importance awarded to the design of a specific legal framework. More specifically, the latter constitutes the essential basis towards the recognition of the right to development as a fundamental right. As I see it, establishing a legally binding instrument such as the DCRD is the only way to ensure the respect of such a right, particularly by obliging the international community to joint efforts towards best practices and the fight against corruption embedded in the current economic system, among others. Finally, while the EU portrays itself as a pioneer in the field of development, committed to continue advancing in the field, the Union does not accept the future binding nature of the Convention. In this regard, if the EU does not commit to such an obligation, it remains very difficult to assess its performance in the field of development, and most of all it renders it almost impossible to validate its commitment to respect the right to development.