Challenges and Potential to Revamp the Normative Framework on the Right to Development

Abstract

The world is currently at an ebb for realizing the Right to Development. Weakening multilateralism, de-globalization, the COVID-19 pandemic and inertia to reform international governance are among the multitude of reasons for this phenomenon. However, the need for a better, more inclusive and greener recovery, and the efforts necessary to attain the 2030 Agenda have provided the international community an opportunity to reinvigorate its realization. This article reviews the international discourse on the Right to Development and provides recommendations on the way forward to revitalize its implementation at the 35th anniversary of the related Declaration.

The United Nations Declaration on the Right to Development (DRtD) recently marked the 35th anniversary of its adoption on 4 December 1986. The DRtD establishes ‘development’ as a human right, including both individual and collective rights. Its concept of ‘development’ is framed as a process with economic, social, cultural and political dimensions; with individuals and peoples both participating in and contributing to this process and also enjoying fair distribution of the benefits of development (United Nations 1986).

For the Right to Development (RtD), the Declaration clearly says that States have the primary responsibility, and that the international community has the shared responsibility for its effective realization. The implication is that there are gaps, imbalances and inequities in the international order that constitute obstacles to development which need to be addressed.

This also reflects prior debates about the New International Economic Order, which highlighted that the global markets for commodities, services, capital, technology and labour were characterized by structural inequalities in favour of developed countries. The 1986 Declaration therefore recognizes that development requires a favourable economic environment at the international level, and this has remained the basis for the RtD.

The RtD has gone through an evolution, from being a new concept to being well acknowledged and now being routinely included in the United Nations resolutions. Yet, controversies, highly politicized international discourse, misinterpretations and even distortions about RtD have remained persistent since the adoption of the Declaration. Progress in its realization has also been slow and uneven and its objectives are still far from being achieved.

The COVID-19 pandemic has also led to a massive reversal in the realization of the RtD. While the economic, social and human cost of the pandemic has been significant, the suffering it caused has not been shared equally. The poor and the vulnerable have suffered the most, while poverty, hunger, and inequality between and within countries have increased.

Many developing countries have been confronted with a decline in trade, drastically shrunken fiscal space and an unprecedented level of public debt with 60% of low-income countries being in or at high risk of debt distress. Spikes in commodities prices, especially food and fuel, coupled with economic slowdown and persistent outflow of capital from developing countries owing to monetary tightening in the advanced economies, have triggered the cost of living crisis in almost all developing countries, pushing 71 million people into extreme poverty in the poor countries.¹ Divergence between developed and developing countries have become even wider

The COVID-19 pandemic made evident deep divergences and structural problems in international governance and has shown that it is crucial to implement and fully realize the RtD. The pandemic has proved, in effect, that the RtD is still far from being well implemented. The divides on fiscal support, monetary stimulus, vaccines and digital economy are becoming more acute between developed and developing countries and also within countries. The rising levels of inequality globally has highlighted that the benefit of economic development has not been equitably enjoyed across and within countries (United Nations 2020).

The North-South Divide on the Right to Development

In the past four decades, the RtD has received strong support such as through the unanimous adoption of the Vienna Declaration and Programme of Action and the 2030 Agenda. Sometimes however, the discussions on the RtD have appeared to be divisive, permeated with misinterpretations and occasional ungrounded accusations. There have also been objections to the recognition of the RtD as a human right (Schrijver 2020: 89). These controversies have often shown a division between developed and developing countries (Lindroos 1999; Andreassen and Marks 2006; Bunn 2012), particularly on how the full realization of the RtD can be achieved.

This North-South divide has manifested itself from the beginning of the formulation of the RtD as a human right. The country voting positions on the DRtD clearly showed this divide. There was a recorded vote of 146 in favour of the Declaration, including almost all developing countries; one country voted against (the United States of America), and eight countries abstained (Denmark, Finland, the Federal Republic of Germany, Iceland, Israel, Japan, Sweden and the United Kingdom).

The main issues which divide the developed from the developing countries with regard to RtD include the following:

Right to Development is not for Claiming more Official Development Assistance

Many developed countries have feared that the RtD would be mainly used to request donor countries to provide more official development assistance (ODA). There is also the misconception that RtD is meant to create legal rights that can be claimed by ODA recipient countries against ODA providers (Piron 2002).

The global development process faces many obstacles which are of a largely transnational character. Economic obstacles include continuing patterns of domination and dependency in areas including technology, financial services, trade and financial relations, among others. Indeed, developing countries have been facing massive financial gaps to cover their development needs. However, comparing with the real need of financial resources, ODA is only a drop in the ocean. The commitment by donor countries to provide ODA has its own historical background and should not be considered as altruism. The RtD has much broader objectives and cannot be reduced to an instrument to support the demand for increased ODA to developing States.

With the assumption that developing countries’ main objective in implementing the RtD is to request for more ODA, the USA and other donor countries have stressed that States must implement their human rights obligations regardless of the availability of development and other financial assistance. This misinterpretation of the RtD has distorted the original objectives of the RtD and overshadowed its emphasis on an inclusive and empowering development process and wider scope of development which goes beyond GDP growth.

As a result, it has given rise to much resistance from the developed countries and scholars against the RtD and led them to ignore its real purpose and value. Most importantly, it has undermined the important and legitimate request under the RtD for an enabling international environment for promoting development. Therefore, this misinterpretation of RtD to equate it with a request to increase ODA must be refuted and redressed.

The Essential Role of an Enabling International Environment for Development

Economic development is a complex process. It requires fulfilment of many conditions and is influenced by a multiplicity of factors which are both national and international in nature. It is therefore impossible to consider development without regard for the international context in which it takes place. As a UN report noted, ‘While, ultimately, it is for the developing countries themselves to do their utmost to accelerate their economic and social progress, their efforts will be frustrated if the necessary international policies are not adopted to create an environment conducive to supplementing and strengthening these efforts’ (United Nations 1970: 22).

Despite the RtD originating from the debate around the New International Economic Order, developed countries tend to avoid talking about the enabling international environment. On the other hand, developing countries are of the view that the under-development and slow catching-up process with developed countries is due to unjust structures of the global economy. Thus, Article 3.3 of DRtD mentions about ‘eliminating obstacles to development’ and ‘promoting a new international economic order’. The current international order must be reformed to assist developing countries in overcoming obstacles to their sustainable development.

One of the key objectives of the RtD is to address structural problems in the international system which have undermined sustainable development in developing countries. The lack of voice and equitable participation of developing countries in international decision and policymaking in trade, financial issues, transfer of technology, labour mobility etc. is therefore a concern for addressing impediments in these areas. There has been much frustration that issues of high importance to developing countries at the international level have not been given due attention, including issues like protectionist barriers imposed by developed countries, the IMF quota system, equitable sharing of environmental burdens, unsustainable external debt burdens etc.

As the current international environment has created many barriers to the economic development of Southern countries, there is the need for introducing far-reaching changes to it. In this regard, countries affiliated to the Non-Aligned Movement (NAM) take the position ‘that developing countries continue to face difficulties in participating in the globalization process, and that many risk being marginalized and effectively excluded from its benefits’.²

However, political will on the part of developed countries would be required to overcome the resistance to reform the prevailing order, which has been in their favour. Nevertheless, in a globalized world, to preserve the status quo and have many countries suffering from underdevelopment would not be in the interest of the developed countries either.

The Balance between National and International Responsibilities

Given the reluctance of the mature economies to recognize the need for an enabling international environment to promote development, there is the tendency to downplay the responsibility of the international community, overemphasize national responsibilities and neglect the basic notion of international cooperation for the purposes of creating such an enabling environment.

While States have the primary responsibility for realizing the RtD at the national level, the international community, and especially the developed economies, have the shared responsibility to provide an enabling environment including appropriate international pro-development policies and the provision of ‘effective international co-operation’ as spelt out in Articles 3, 4, and 7 of the DRtD. In fact, duty holders of the RtD includes the international community, which carries the responsibility to create a conducive international environment for promoting economic development and remove constraints for development at the international level.

The right balance between national and international responsibilities is essential. It is important to point out that international conditions favourable to the realization of the RtD largely rest with the decisions of major developed countries which utilize their political and economic power to decide policy at key international financial institutions. Additionally, their domestic policies also have significant spillover effects on the economic, financial and political situation of developing countries.

In recognition of this reality, the UN has affirmed the ‘primary responsibility of States to create national and international conditions favourable to the realization of the right to development, as well as their commitment to cooperate with one another to that end’.³ States would clearly be failing in their human rights obligations if they create international conditions unfavourable to the realization of the RtD through, for example, the conditions they impose in trade and investment agreements, the lending policies they support at the IMF or World Bank, or through WTO rules.

Downplaying the importance of the obligation to create an enabling international enabling environment and over-emphasizing national responsibilities would further marginalize developing countries.

Relationship between Civil and Political Rights and Economic, Social and Cultural Rights and the Right to Development

Developed countries tend to give primacy to civil and political rights as part of governance, while trying to sideline the RtD, as it carries the notion of interdependence and equality of a cluster of rights in development. Furthermore, several Western countries as well as some scholars blame developing countries for using their inability to ensure decent living standards for their citizens as an excuse for not respecting civil and political rights (Schrijver 2020).

There is also the misconception that the developing countries put economic, social and cultural (ESC) rights above civil and political rights. According to a U.S. delegate speaking at the Commission on Human Rights, the RtD is invoked as a pretext for developing countries to violate civil and political rights.⁴ Therefore, the misconstrued idea is that RtD is an intrigue for not implementing other human rights. Such misinterpretation implies that the fulfilment of human rights should be sequential, with civil and political rights first and ESC rights second, while the RtD should be scrapped.

However, the RtD recognizes that compliance with and protection of both civil and political rights and ESC rights are essential for development. The RtD is a universal and inalienable right and an integral part of fundamental human rights. There is no hierarchy among different rights and their realization is not sequential, as all human rights are universal, indivisible, interdependent and interrelated.

The 2030 Agenda and the Right to Development

The 2030 Agenda outlines a transformative vision for economic, social and environmental development and has been informed by the RtD. The key elements of the DRtD are reaffirmed throughout the 2030 Agenda. However, some countries hold the view that advocating the implementation of the RtD ‘created confusion and undermined efforts to implement the 2030 Agenda’.⁵ There is also the view that, ‘Given that the 2030 Agenda constituted the follow-up to the Declaration on the Right to Development, Member States should focus their efforts on achieving the Sustainable Development Goals’.⁶ These statements could be interpreted as suggesting that by focusing on the Sustainable Development Goals (SDGs), there will be no need to realize the RtD.

Such a view is in itself confusing. The RtD is a permanent human right underpinning development processes while the 2030 Agenda is time bound. It is obvious that the RtD extends beyond the SDGs. The nature of the SDGs and how they have been developed in the 2030 Agenda clearly shows a time-bound expectation for its implementation. This differs from the operationalization of the RtD, as the latter will endure even after 2030. Additionally, the RtD addresses gaps, failures, structural problems and the root causes of the current international asymmetries. Therefore, the 2030 Agenda should be seen as providing renewed opportunities to operationalize the RtD.

Given the strong commitment of the DRtD and the SDGs on the promotion and protection of human rights, the implementation of both instruments is not mutually exclusive. Rather, they are mutually reinforcing as their common goals are built on the objective of realizing the human rights of all. The current human rights and development agenda strongly reflects the linkages between the economic, social, and environmental pillars of sustainable development and the protection and promotion of human rights. The Special Rapporteur on the Right to Development has highlighted that the DRtD, the 2030 Agenda and the 2015 Paris Agreement should not be considered as aspirational objectives, but as essential elements of public policymaking towards building a better and resilient future for all (Alfarargi 2021). Operationalizing the RtD is therefore indispensable in achieving the SDGs.

Voting Positions and the North-South Divide

The views on RtD show the apparent North-South divide, despite occasional nuances in country positions.

The United States is a strong opponent to the RtD and has voted against intergovernmental resolutions on RtD almost consistently. There were two notable occasions when the United States joined a consensus on the RtD. One was when the Vienna Declaration and Programme of Action was adopted in 1994. The other time was when the Open Ended Intergovernmental Working Group (OEIGWG) and the position of the Independent Expert were created in 1998. On their part, Japan, Denmark, and Australia normally cast negative votes in relation to the RtD.

The European Union has usually been more nuanced. Some countries of the EU would vote positively for the resolutions when they do not see any red lights. If there are some minor points they do not like, then they tend to abstain. However, in recent years, their attitude has turned more negative. Consequently, their voting positions are mostly either to object or abstain.

From developing countries, a group of like-minded countries is normally the sponsor of and supporter for resolutions on RtD. So do most of other developing countries who vote in their favour.

A discouraging trend is that in recent years, more developed countries have voted against or abstained when voting on intergovernmental resolutions on RtD (Fig. 1). The reasons to explain this trend need to be further examined. However, plausible causes could be that insufficient efforts have been devoted to removing some misconceptions; a lack of coordinated actions among stakeholders that may influence voting options; and possibly certain actions that might have led to controversies and weakened the support to RtD.

Fig. 1

Developed countries’ voting pattern (2001–2021). Source: By authors

Main Legal and Political Issues Being Raised in Relation to the Right to Development

The adoption of the DRtD marked the most important milestone for the recognition of this right in international law. But the RtD continues to be the subject of legal and political debate in multiple fora. These debates have permeated the evolution of the understanding of the right to development (Ibhawoh 2011: 77).

At the outset, the UN has called for the mainstreaming of the RtD in all ‘activities aimed at strengthening the global partnership for development among Member States, development agencies and the international development, financial and trade institutions’.⁷ The UNGA has also mandated the Office of the High Commissioner for Human Rights to promote a ‘balanced and sustainable development for all people and of ensuring realization of the right to development’⁸ (emphasis added) including through enhancing ‘support from relevant bodies of the United Nations system for this purpose’.

Although the RtD has also faced several criticisms, the fact that major multilateral outcomes have been informed by and reflect it is a manifestation of the important role it has for the international community (Li et al. 2020).

The linkages between development and human rights have been considered by several organs of the United Nations since the 1970s (Marks 2004: 138). These efforts can be traced back to the UN Declaration on Social Progress and Development⁹ which recognized the existent linkages between the civil and political rights, and economic, social and cultural rights. This Declaration was a response to the need to jointly pursue the objectives established in the Universal Declaration of Human Rights with those introduced in the core international human rights treaties.

The UN Human Rights Commission also adopted several resolutions and commissioned reports on connections between the implementation of human rights and the development processes of developing countries, in particular the fight for eradicating poverty and moving beyond traditional models of development. The realization of ESC rights became a fruitful means for ‘redirecting and reinvigorating UN human rights activity (…) to the extent that the developing countries were able to incorporate human rights concerns into their increasingly intense efforts at achieving development assistance’ (Donnelly 1981: 638).

As part of these discussions, the RtD was conceived as a bridge between economic growth and human rights (Mbaye 1972) and as means to achieve the common objective of peace through international solidarity.

An important study presented to the Human Rights Commission in 1979 identified the essential characteristic of the RtD as a human right,¹⁰ and considered the specific issues arising from the implementation of the RtD in line with its international dimensions. The study recognized the international responsibility of all nations to endorse the concept that ‘international development strategies should be aimed at meeting the fundamental human needs of the poorest people’. The study also recognized that Resolution 4 (XXXIII) adopted by the Human Rights Commission already made a direct reference to the RtD, which is primarily based on Article 55 and 56 of the UN Charter.

Although the recognition of the RtD by Resolution 4 (XXXIII) and by the study was criticized (Donnelly 1985), it served as an important step towards the adoption of the DRtD in 1986. However, the extent and scope of the RtD was still a subject of disagreement. For certain developed States, the RtD only perpetuated the discussions between the ‘bindingness’ of economic, social and cultural rights, and individual freedoms based on ‘democratic principles’ (Marks 2004). According to this position, the only means to foster the individuals’ right to development is through civil and political rights, and economic liberties. This could result in creating an illusion of the RtD as prompting a conflict between civil and political rights, and ESC rights:

Of course, when we speak of development, in the Human Rights Commission, the key issue before us is the relationship to be established between cultural, political, and economic rights. The views of my delegation are shaped not only by our own history, but also by observation of other experiments in other nations. We cannot accept the view that before civil and political rights can be fully accorded to a people, an ideal economic order must first be established. (Novak and Schifter1980-1981: 242) (emphasis added)

This relationship between civil and political rights and ESC rights was perceived by some States as a contentious issue for the fulfilment of human rights. However, the Vienna Declaration and Programme of Action¹¹ has reaffirmed by consensus the RtD as ‘a universal and inalienable right and an integral part of fundamental human rights’. Yet, concerns surrounding the means of implementation on the RtD seem to persist, particularly with respect to the conceptual framework for its implementation. (See Box)

Some concerns surrounding the implementation of the RtD
(United States Representative, 1998 – UN Human Rights Commission):
(…) While we all hope to be able to reach consensus on this issue, the numerous and, at many times, contradictory opinions expressed in the last Working Group indicates that we still need more time to discuss the Right to Development to find common ground on which we can all agree.
(United Kingdom Representative, 2013 – UN Human Rights Council):
(…) The right to development should evolve consensually, without politicization, and on the basis of respect for civil, political, economic and cultural rights.
(European Union Observer, 2016 – UN Third Committee):
(…) fully committed to a rights-based approach to development, and that it was not in favour of the elaboration of an international legal standard of a binding nature, as that was not the appropriate mechanism for realizing the right to development. The 2030 Agenda for Sustainable Development had marked a paradigm shift towards a balanced model for sustainable development that recognized the need to build peaceful, just and inclusive societies based on good governance and transparent institutions.

The Individual and Collective Nature of the Right to Development

The DRtD recognizes that the right applies to ‘every human person and all peoples’. It also recognizes that the ‘human person is the central subject of development and should be active participant and beneficiary of the right to development’. Although the text of the DRtD recognizes the individual and collective nature of the RtD, several countries have considered that its collective nature relates to the third generation of human rights, i.e. those considered as solidarity rights, which include the ‘right to development, the right to a healthy and ecological balanced environment, the right to peace and the right to ownership of the common heritage of mankind’ (Bunn 2012).

Solidarity rights have been conceived as conduits for the attainment of other internationally agreed goals and objectives. The Independent Expert on human rights and international solidarity has argued that international solidarity is a ‘broader and indispensable component of the efforts to realize the right to development and rights-based approaches to development, the full enjoyment of economic, social and cultural rights and the Millennium Development Goals’ (Rizki 2010) (emphasis added). International solidarity could be conceived as an indispensable element of the RtD, both as a fundamental principle for its implementation, and as reflection of its collective nature.

This collective nature has also been subject of debate. For several States, the RtD could constitute a pathway towards focusing only on the State as the subject of this right, considering that the term ‘collectivity’ is referring only to States. The United States’ approach considered the relationship between individual and collective rights in the RtD, but at the same time expressed their concern that the term ‘collectivity’ seems to be narrowly referring to the State:

In the great majority of cases, the terms ‘collectivity’ refer to the State. Now the reasons for this are not hard to determine. Most of this discussion has taken place in the context of the United Nations system, which is an organization of States, and within the intellectual framework of international law, which has its primary focus on the relations between States […] and thus naturally think of States as the major if not only agents of development. (Berger 1981)

Other delegations considered that human rights have a twofold dimension, referring to their individual and collective nature.¹² The two-fold dimension of the RtD also permeates the interactions between individuals and also States. It promotes the principle of international solidarity as a cornerstone of the implementation of the RtD. The collective nature of the RtD could be understood as the duty of UN Members to ‘take joint and separate action in co-operation with the Organization for the achievement of certain purposes, including the attainment of ‘higher standards of living full employment, and conditions of economic and social progress and development’ ’ (Mbaye 1981: para 4).

The Implementation and Fulfilment of the Right to Development

The implementation and fulfilment of the RtD could strengthen international cooperation for responding to several current global challenges. The practical implementation of the RtD must consider the human person as the central subject of development, emphasizing the need to abide by human rights law. The Special Rapporteur on the Right to Development has considered that:

‘(…) implementation of the right to development involves adherence to international human rights principles, including those related to non-discrimination and fundamental freedoms, and to internationally agreed frameworks on climate change, financing for development and sustainable development. In addition, just as the Declaration on the Right to Development recognizes that the human person is the central subject of development.¹³

For the Non-Aligned Movement, the right to development constitutes an inalienable and intrinsic right,

with a distinct and independent nature by which all human rights can be fully realized. Hence, we acknowledge that we may not reduce the right to development by trying to define it through secondary aspects of development such as poverty reduction, hunger eradication, food security, inclusive education, and adequate housing. We are of the firm belief that the distinct nature of the right to development is not a negligible reality and should be substantially addressed.¹⁴

Following this approach allows the understanding of the RtD as a comprehensive, cross-cutting, and multidisciplinary human right, and its importance as a pillar for supporting public decision-making for promoting the achievement of development for all peoples and persons. The operationalization of the RtD also serves as a political platform for articulating coordinated action at the international, regional, and domestic level.

The full implementation of the RtD would require systemic changes in international governance, considering an approach for strengthening international cooperation. The need to ‘develop new and innovate ways to meet the challenges of debt relief, promote investment, and unleash the creative potential of all economies’¹⁵ should be linked to the work done by the various mechanisms on the Right to Development under the Human Rights Council including the Working Group on the Right to Development, the Special Rapporteur on the Right to Development and the Expert Mechanism on the Right to Development, as their efforts have also constituted global progress towards the implementation of the RtD.

Conclusion

The world is at an ebb for realizing the Right to Development. Weakening of multilateralism, de-globalization, scars left by the COVID-19 pandemic, misinterpretation and dilution of the RtD, and inertia to reform international governance are among the reasons for this decline. However, the 2030 Agenda and the determination to recover from the pandemic better, have provided the international community an opportunity to reinvigorate the realization of the RtD. The great relevance of the RtD to promote a people-centred and fairer development process and the need for an international enabling environment in order to promote the kind of development we want has been highlighted.

As the 35th anniversary of the Declaration on the Right to Development is being commemorated, the need to reinvigorate the implementation of the RtD must be emphasized. The following policy recommendations to revitalize the RtD could be considered in this regard:

• With the COVID-19 pandemic and with great divergence on many fronts, including the widening divides between developed and developing countries, it is important to identify and analyze the obstacles for realizing the RtD, for better recovery from the pandemic, and for implementation of the 2030 Agenda.

• The implementation of the 2030 Agenda and RtD as well as recovery from the pandemic should be bundled together as they can reinforce each other. Meanwhile, international policies and programmes should be designed with the RtD in mind, so that inclusive and sustainable solutions could be promoted.

• The United Nations, its specialized agencies, funds and programmes, the international financial institutions, the World Trade Organization and other international organizations should mainstream the right to development in their policies and operational activities.

• Important multilateral institutions need to join efforts for realization of RtD as stakeholders. Their acceptance, operationalization and implementation of RtD at the international level would contribute to the creation of an enabling international environment, guide the reform of the international governance system and create greater convergence among countries and international institutions.

• National policies should make the right to development a priority. As countries are designing their recovery efforts, it must incorporate the RtD. It is also important for governments to encourage peoples and communities to participate in and benefit equally in the recovery process. Experiences and lessons in this aspect should be learnt and shared across countries.

• The COVID-19 pandemic has shown clearly the importance of an enabling international environment conducive for economic development and recovery from the pandemic in particular. The reform of the international financial and trade systems are urgently required to make them take into due consideration the interests of the developing countries and adopt appropriate policies and strategies.

• The Office of the High Commissioner for Human Rights has a special responsibility for the RtD and for mainstreaming human rights across the UN system. It would be important for the High Commissioner to lead the process in mobilizing support for revitalizing the RtD.

• Misinterpretations and distortions of the RtD should be analyzed and refuted. Not doing so would allow wrong conceptions to take root and mislead people, institutions and governments. Civil society, think-tanks, academia should be invited to contribute to the elaboration of the RtD. To develop a knowledge base of the concept of RtD as well as empirical experiences of its actual and potential applications would also benefit its mainstreaming efforts.