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THE - RIGHT - TO - DEVELOPMENT - AS - A - HUMAN - RIGH Fasial Saeed
THE - RIGHT - TO - DEVELOPMENT - AS - A - HUMAN - RIGH Fasial Saeed
THE - RIGHT - TO - DEVELOPMENT - AS - A - HUMAN - RIGH Fasial Saeed
E. International Support
10 are all ensured. And their ability to exercise
F. Conclusion
11 their rights to civil and political liberties
ensures that they can demand these rights.
––––––––––––––––––––––––––––––––––––––
Even though the Universal Declaration
A. Introduction of Human Rights (UDHR) provides that
During the ten minutes it will take an “[e]veryone is entitled to a social and
average reader to complete reading this essay, international order in which the rights and
across the globe about seven women will have freedoms set forth in this Declaration can be
died due to complications of pregnancy and fully realised” 5, it is a reality that is mostly
childbirth1, about seven children below five confined to those living in developed countries.
years would have died due to infectious It is this right to realise “all human rights and
diseases 2, four thousand people would have fundamental freedoms” 6 by everyone that a
6 Declaration on the Right to Human Development General Assembly Resolution 41/28 (1986).
1
Right to Development demands and seeks to and its pronouncements are seen in the
achieve. And even though the right to American Declaration of Independence as
development is seen as a human right, and is ‘inalienable rights’, in the French Declaration
used widely in international documents, of ‘the rights of man’ and more recently in the
debates have continued on its conceptual Universal Declaration of Human Rights
framing and on the difficulty in its (UDHR).11 Article 1 of the UDHR sets out the
implementation. 7 The aim of this essay is to philosophical foundations in similar terms:
critique the notion of the human right to “All human beings are born free and equal in
development, with reference to the guidelines8 dignity and rights.” What gives all human
provided by UN on setting new human rights beings this equal worth is the equal intrinsic
standards. value of their freedom and well-being, which
form the two necessary conditions for human
action that consists in the voluntary pursuit of
B. Human Rights goals that one values12. Human rights are also
grounded in the protection of personhood;
“Human rights are rights which human which is seen in terms of the person’s
beings possess simply in virtue of being autonomy, the conception of a good life and
human, however widely they differ.” 9 The right being able to pursue it, and the freedom from
to, life, liberty and freedom, or to health and the interference of others.13 It is from this
education for instance are self-evident and notion of personhood that the conventional list
natural rights that any person anywhere in the of human rights (civil and political, economic
world are to have irrespective of their social and cultural and other rights) can be
nationality, race, gender, class or community. derived14 and have continued to emerge.
This intension has remained without much
change since the end of the Enlightenment10
7 B Ibhawoh “The Right to Development: The Politics and Polemics of Power and Resistance” (2011) 33 76-104 Human Rights
Quarterly p87
8 Member States and United Nations bodies should bear in mind the following guidelines in developing international instruments in
the field of human rights; such instruments should, inter alia: a) Be consistent with the existing body of international human rights
law; b) Be of fundamental character and derive from the inherent dignity and worth of the human person; c) Be sufficiently precise to
give rise to identifiable and practicable rights and obligations; d) Provide, where appropriate, realistic and effective implementation
machinery, including reporting systems; e) Attract broad international support
9 T Honderich (ed) The Oxford Companion to Philosophy (2nd Edition OUP Oxford 2005) p403
10 J Griffin, On Human Rights (OUP Oxford, 2008) p2
11 A Sen , The Idea of Justice (Penguin Book, London 2009) p357
12 Borchert, D.M., (chief ed) Encyclopaedia of Philosophy, 2nd Edition, Macmillan Reference USA, 2006 p474
13 ibid.,
14 J Griffin, 2008 p33
2
Such philosophical foundations are these rights is particularly important in the
necessary in understanding why human rights context of the right to development. While
are important and how to develop them15 . And progress can be made in the social and
the importance of freedom and well-being will economic rights without the full set of civil and
be utilised to justify that the right to political rights, they cannot be achieved in full
development is derived from the “inherent as it is the civil and political rights that
dignity and worth of the human person” 16. This empower people to claim their rights for food,
is one of the ‘quality controls’ that is set out by housing, education, work, and health care21 .
the UN and need to be applied to the emerging Conversely, abandoning economic and social
range of human rights that continue to follow rights can undermine civil and political
since the adoption of the UDHR in 1948. rights.22 Equitable economic and social policies
therefore have direct connections to the
The emergence of human rights is sustenance of civil and political liberties.
described in terms of ‘generations’ of human However, when the social and economic rights
rights.17 The first-generation rights are the civil were first given provision in the UDHR they
and political rights, the ‘negative’ human rights were not conceived in terms of development.23
that enjoin states to abstain from interfering And when studies on development emerged it
with personal freedom. The second-generation was in the context of pursuing economic
rights are the ‘positive rights’ that belong to the growth rather than achieving human rights.24
social and economic group of rights. The While both development and human rights
subject of this essay, the right to development share a commonality in their vision and
belongs to the third-generation ‘solidarity’ purpose to secure freedom, well-being and
rights 18. Although such classification is dignity for all human beings, they were on
appealing in its simplicity19 , it does not reflect parallel tracks and converged with the
the coexisting mutual support one set of rights emergence of the right to development.
has for the other.20 This relationship between
15 A Clapham, Human Rights A Very Short Introduction (OUP Oxford 2007) p23
16 General Assembly Resolution 41/120
17 S Marks, “The Human Right to Development: Between Rhetoric and Reality” (2004) 17 Harvard Human Rights Journal p138
18 H J Steiner et al International Human Rights in Context Law Politics Morals (3rd edition OUP Oxford 2007) p 1442
19 S Marks, “The Human Right to Development: Between Rhetoric and Reality (2004) 17 Harvard Human Rights Journal
20 C Tomuschat, Human Rights Between Idealism and Realism (2nd edition OUP 2008) p26
22 ibid
3
right and an integral part of fundamental
C. Right to development as a human right human rights”. 29 And nowadays, references to
the right to development are seen in all major
The existence of a right to development UN documents. The right includes: full
was first asserted in 197725. Following many sovereignty over natural resources, self-
years of debate26 , that was centred on the determination, popular participation in
conceptual differences regarding the right and development, equality of opportunity and the
the political differences of states that reflected creation of favourable conditions for the
the cold war tensions27, the General Assembly enjoyment of other civil, political, economic,
adopted the Declaration on the Right to social and cultural rights.
Development (DRD) in 1986, proclaiming that:
The right to development, by
“The right to development is an incorporating all human rights and recognizing
inalienable human right by virtue of that all rights and freedoms are indivisible and
which every human person and all interdependent, is presented as a fusion of all
peoples are entitled to participate in, human rights and fundamental freedoms.30 It is
contribute to, and enjoy economic, these rights and freedoms that protect our
social, cultural and political dignity as human beings,31 and the enjoyment
development, in which all human rights of all human rights is facilitated through the
and fundamental freedoms can be fully right to development. 32 There is universal
realized.”28 consensus that development is important to
humanity 33 as it would enable every person in
And in 1993, it was declared that the right to the world to enjoy their rights and freedoms–
development is “a universal and inalienable civil and political, economic, social and
25 C.H.R. Res. 4 (XXXIII), U.N. ESCOR, Comm’n on Hum. Rts (21 Feb. 1977)
26 S Fukuda-Parr, “Human Rights and Politics in Development” in M Goodhart Human Rights Politics and Practice (OUP 2009)
p168
27 A Sengupta, “The Human Right to Development” (2004) 32:2 179 Oxford Development Studies p179
28 Article 1 Declaration on the Right to Development GA Res.41/128(1986)
29 Vienna Declaration and Programme of Action, part 1, s.10 UN A/CONF. 157/24(1993) (hereinafter Vienna Declaration)
30 M E Salomon, A Sengupta, “The Right to Development: Obligations of States and the Rights of Minorities and Indigenous
4
cultural as well as other specified rights and to opportunity through the lack of freedom is
pursue what they value. humiliating and takes away her human dignity.
There is the lack of opportunity to get oneself
This idea is not only “appealing”34 , but educated, to seek medical help when infected
is the primary objective and the means of with HIV, the lack of choice of work, or to
escape the freedom of starvation. To develop
development.35 When the fundamental
therefore, means the removal of this lack of
freedoms are ensured, people are empowered,
freedom “…that leave people with little choice
through their human rights, to “…resist torture,
and little opportunity of exercising their
arbitrary incarceration and racial
reasoned agency. The removal of substantive
discrimination to demanding an end to hunger
unfreedoms…is constitutive of
and starvation, and to medical neglect across
development.” 40
the globe.” 36 Freedom is essential to the
realisation of these rights as to be “free is to be
The right to development would
unrestrained by others in the pursuit of one’s
therefore ensure the eradication of the various
ends”,37 and freedom is valuable because it
constraints that lock humans in
provides opportunities to pursue our objectives
impoverishment and deprivation, in terms of
and things that we value.38 It also ensures that
material goods and the ability to exercise their
one is not forced into something because of
rights. Specific reference to the cooperation to
constraints imposed by others.39 Consider a
eliminate the obstacles to development is
person in a least developed nation who wants
therefore made in the Vienna Declaration,41
to pursue her dream of becoming a doctor, but
and Article 28 of the UDHR which state that
have to give up on that dream because she is
“Everyone is entitled to a social International
denied even the basic education, due to the
order in which the rights and freedoms set forth
lack of schools in her village. When she grows
in this declaration can be fully realized” could
up she is forced to resorting to prostitution as a
be inferred to imply a right to the removal of
means of survival. While this may (or may not)
the impediments to development.42
bring in money, the lack of choice and
42 J Donnely, “In Search of the Unicorn: The Jurisprudence and Politics of the Right to Development” (1985) 15 Calif. Western Int.
L. 473 at 487
5
standard of living. 46 “A fully human life
Interpreted in this way, the developed cannot be achieved…if the availability of
community could act not to deny the rights of social goods is so reduced that life itself
those who are unable to realise their rights due becomes nothing more than a struggle to
to lack of development. The UDHR reminds survive.” 47 And development, as “a
that “Everyone owes duties to the community” comprehensive economic, social, cultural and
and this community is not only the political process, …aims at the constant
neighbouring countries, but is also the global improvement of the well-being of the entire
community.43 For Rawls, a decent society or population and of all individuals…” 48 This
community is one that honours the basic improvement would entail a standard of living
human rights that respect the humanity of its adequate for the health and well-being 49 and
members, and these rights includes among development would mean improvement in this
others, a minimum right to the means of well-being, which can be described as the level
subsistence.44 A decent people does not let its of realization of the fundamental rights. 50
members die of starvation. 45 The rights to
education or health would be less useful as The right to development could then be
rights that respect human dignity when there seen to derive from the inherent dignity of the
are no ways of realising them through the human person because it helps to attain both
availability of schools or hospitals. And the freedom and wellbeing, which is what gives
rights to freedom of assembly, speech, and the humans their equal worth. As content of the
political participation matter little when daily right to development is founded on the Bill of
life is a struggle for survival. Human Rights 51, the legal basis for the right to
development can therefore be derived from the
The realization of these rights, and a UDHR, the Covenants on Civil and Political
life in dignity then require an adequate
43 M Robinson, A Voice for Human Rights (University of Pennsylvania Press 2006) p143
44 S Freeman, Rawls (Routledge 2007) p429
45 ibid
46 A Eide, “Adequate Standard of Living, in D Moeckli, S Shah, S Sivakumaran (eds) International Human Rights Law (OUP 2010)
p234
47 A Levine p141
52 T Papadopoulos “Human Rights, Truth, Macintyre, and Putnam’s Pragmatism” in B M Leiser, T D Campbell (eds) Human Rights
in Philosophy and Practice (Ashgate Publishing Company 2001) p17
53 J Donnelly, (1985) p473
54 J Donnelly p478
55 B Ibhawoh (2011) p77
56 W Mansell, J Scott, “Why bother about a right to development?” (1994) 21:2 Journal of Law and Society 171 p 177
57 J Donnelly p492
58 C Tomushchat (2008)p26
7
adequate enough to secure the right to life of centre of the development process. The human
every citizen. 61 person is the central subject and is the active
participant and the beneficiary of the right to
However, the aspect of Donnelly’s development.64 And the duty-bearers are
argument that continues as one of the identified by the Declaration as the nation and
challenges to the right to development is the the international community at the same time.
difficulty in determining who is to exercise the The role of the state and of the international
right62 . As with all third generation rights, it is community and their duties are given in the
uncertain of its holder and the duty-bearer. Declaration on the Right to Development;
Article 3(1) provides that it is the states that
have the primary responsibility for the creation
D. Identifying rights and obligations of national and international conditions
favourable to the realization of the right to
In the context of human rights in development; Article 3(3) refers to the duty of
general, the human individual is the right- all states to cooperate with each other in
holder (of civil, political, social and economic ensuring development and eliminating
rights for instance) and the duty bearer is the obstacles to development. Article 4 follows to
nation state of that individual. As the duty- refer to the duty of all states to take steps to
bearer, the state has a negative duty that formulate international development policies in
obliges it not to violate human rights, a order to facilitate the full realization of the
positive duty to protect the individuals from right to development. The states are therefore
violation of human rights, and a duty to fulfil, duty bearers not only at the national level but
which requires the state to create frameworks at the international level as well. 65 The states
that enables the realization of human rights.63 are interdependent on each other in order to
fulfil these duties, and the right to development
In the context of the right to of the people would extend to that of the state,
development, it is the people and their human and even more meaningful if the state’s rights
rights that are at the subjects and are at the take dominance over that of the individual.66
65 M E Saomon, “Legal Cosmopolitanism and the Normative Contribution of the Right to Development” in S P Marks, (ed)
Bedjaoui (1991)
8
Because when the right is conditioned on the right and obligations. The Endorois Welfare
prerogative that both the state and the people Council v Kenya communication decided by
have the opportunity to develop 67, it is difficult the African Commission on Human and
to identity who is to be developed and who is People’s Rights, reflects the first time a
to do the developing. violation of the right to development has been
found70. A complaint was filed by the Centre
However, human rights are ethical for Minority Rights Development and Minority
pronouncements of what should be done, and Rights Group International on behalf of the
demand acknowledgement that something Endorois Community. The complainants
needs to be done for the realization of such alleged violations resulting from the
rights.68 And it is not necessary to specify who displacement of the Endorois community, an
is charged with bringing about the fulfilment of indigenous community, from their ancestral
the rights. These obligations although lands, the failure to adequately compensate for
unspecified, are not equal to no obligations at the loss of their property, violations of the right
all69, and a claim can be made to anyone who to practice their religion and culture as well as
is in a position to help. The Declaration does the overall process of development of the
outline the actions to be taken, and calls for Endorois people. They were evicted from their
international co-operation in achieving these land to create a game reserve and were denied
rights. In this instance, it is the developed anything approaching the definition of the right
countries that are in the position to help, and to development for forty years. The decision
the right to development focuses on the found Kenya to be in violation of its treaty
obligations of these countries to provide obligation under article 22, the right to
assistance in terms of aid, technology and debt development, of the African Charter of Human
relief. and People’s rights and called upon the
government of Kenya to restore the land rights
Moreover, a recent case that was and to provide them with compensation. In
decided by a regional institution that has a doing so it has identified the indigenous people
treaty obligation on the right to development as the agents who are able to claim the right,
may provide an answer to these uncertainties and turned a putative moral right into an
surrounding the issue as to who is to bear the enforceable right. 71
67 Theo van Boven, “Categories of Rights” in D Moeckli et al (eds) International Human Rights Law (OUP 2010), p177
68 A Sen (2009) p356-357
69 A Sen (2009) p374 ibid
70 Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of the Endorois Welfare
Council v Kenya, African Commission on Human and Peoples’ Rights, Communication no. 276/2003 (2010).
71 M Salomon, 25 Years of the Right to Development: Achievement and Challenges, Conference note, (Friedrich Ebert Stiftung,
72 F Kirchmeir p13-14
73 F Kirchmeir p14 ibid
74 ibid
75 S Marks, “The Human Right to Development:: Between Rhetoric and Reality (2004) 17 Harvard Human Rights Journal p138
80 Ibid.,
10
states.81 The US was clear even during the In refusing its support to the right to
drafting stage that it would not allow the development, the US occasionally says that the
Declaration to impose obligations for the right to development is invoked by some
transfer of resources under the guise of a right developing countries to violate civil and
to development.82 The discussion on the right political rights.87 Several states like China has
to development has continued to be a “prisoner sough to prioritize development rights over
to political controversy,” 83 with a North-South other rights, and such discourse seem to reflect
divide on the issue. a political agenda that seeks to strengthen the
state that to empower communities or
Human rights is the language of victims individuals. In other instances the right is
and the dispossessed and human rights claims invoked in order to resist pressures of domestic
are usually invoked when they want to alter reforms and to reject criticism of human rights
legal or political practices. 84 In its discourse, violations.88 In the face such politicization of
developing countries advance the right to the right to development, there is growing
development to both rationalize their political preference for the right-based approach to
agendas at home, and to demand change in the development rather than the right to
international economic order, 85 because the development by the Northern States.
current economic and political order pose
obstacles to the enjoyment of the right to
development for its people. In the meantime,
the biggest fear of developed countries is that
such a change would create a demand for a F. Conclusion
“right to everything”, and be a source of claims
against rich nations for the fulfilment of what The above critique has shown that the right to
developing countries deem as necessary to the development can be consistent with the
enjoyment of the right to development.86 international human rights law, that it is a right
that is derived from the inherent dignity of the
human person, with somewhat identifiable
84 J Donnelly, International Human Rights (3rd edition, Westview Press 2007) p22
86 F Kirchmeir p12
11
right-holders and right-bearers, depending on
the view of a particular state. Even though
there is broad international support, difficulties
in its implementation arise in the absence of a
legally binding instrument due to the lack of
key support from the donor countries.
89 R Abouzied , “Bouazizi: The man who set himself and Tunisia on fire” (TIME Magazine Jan 2011) available at <http://
www.time.com/time/world/article/0,8599,2043557,00.html> accessed 5th June 2011)
90 Delivering the Keynote Speech at Symposium marking “25 years of the Right to Development” 24th February 2011 Berlin,
12