Initiating Human Rights Treaty Drafting

The Case of the Convention on the Right to Development

If, as the Universal Declaration of Human Rights suggests, human rights are an instrument for protecting
human dignity, they will never be a finished product. As new threats to human dignity develop over
time, due to changes within and among societies, new forms of human rights protection will need to be
designed. But when should a claim for protection result in the recognition of a global human right?

The story of the right to development treaty can be read in different ways. It can be argued that given
the persistent controversy, the UN General Assembly should not have proclaimed the right, nor should
the UN Human Rights Council have embarked on treaty making. The opposite view is that the right to
development will not go away: it is supported by the large majority of States, and ample research is
available to allow drafting a treaty that strengthens the protection of human dignity.

Law-making on Global Human Rights

Upendra Baxi once wrote that the primary authors of human rights are peoples and communities. Their
resistance to (abusive) power, he explained ‘(…) at a second order level [is] translated into standards and
norms adopted by a community of states. In the making of human rights it is the local that translates
into global languages the reality of their aspiration for a just world’ (Baxi 2002: 101).

It is a phrase that has stuck in my mind since I first read it a decade ago – in part because it seemed so far
removed from the reality of global human rights law making that I knew. I interpreted Baxi as describing
an ideal process, perhaps a prescription for future human rights law-making.

Building on Baxi’s sagacity, global human rights law makers – the ‘community of states’ - would then be
well advised to draw inspiration from the real life struggles of peoples and communities to achieve
human dignity when drafting new human rights norms.

This starting point has implications first for the law-making process: the participation of those affected
by threats to their human dignity should be ensured. In his otherwise critical assessment of the UN
Declaration on the Right to Development, Baxi applauded the audacity of the Declaration in challenging
the dominant view that only states have the monopoly on defining the public interest and common good
at the international level. The Declaration, he argued, subscribed to ‘a cosmopolitan perspective of
participative national and global governance’ (Baxi 2009: 133), and supported the notion that peoples
and communities were the primary authors of human rights.

Secondly, from a substantive point of view, it would mean that new global rights should only be
proclaimed if they result in more effective protection. The European Court of Human Rights has stated

1
that the European Convention on Human Rights should be interpreted in a manner which renders the
rights not ‘theoretical or illusory but […] practical and effective’ (ECtHR 1981: par. 13). The Inter-
American Court of Human Rights added that ‘human rights treaties are live instruments whose
interpretation must adapt to the evolution of the times, and, specifically, to current living conditions’.
(IACtHR 2001: par. 146).

The effective protection criterion can also be used to assess the need for new human rights. If existing
human rights treaties are normatively inadequate to provide protection to the many in the world
population who are currently deprived of a life in human dignity, then the need for the further
normative development of human rights is established. Protecting ‘peoples and communities’ may, in
our example, lead to the construction of a collective right to development, and/or to an individual
human right. Validating an individual human rights claim may potentially serve the interest not only of
the individual, but of all those who are in the same situation, and thus benefit a community as a whole.
Empowerment through individual rights may well be necessary to enable fruitful engagement within a
community, and to protect the community against external threats.

At the time when the right to development and other solidarity rights emerged as potential global
human rights, Philip Alston sounded a note of caution. ‘Rights’ he wrote, seem to have been literally
conjured up, in the dictionary sense of being ‘brought into existence as if by magic’ (Alston 1984: 607).
On leave from the UN Centre for Human Rights, Alston felt that the UN General Assembly was in danger
of losing credibility as the final arbiter on whether a claim should be deemed a global right or not. The
United Nations, he argued, were in need of criteria, particularly because claims asserted as rights no
longer had a pedigree of domestic constitutional recognition, but were conceived directly at the
international level.

Alston dismissed the idea of a formal list of substantive criteria as unworkable (Alston 1984: 617); in his
view, the political reality of decision-making at the General Assembly was such that a rational selection
of rights on the basis of objective criteria or their philosophical validity was not feasible. Nevertheless,
he reviews a number of sensible substantive criteria, such as that a global human right should reflect an
important social value; that it should be globally relevant, add value to the existing human rights
catalogue, command a high degree of consensus in the international community, and should be
sufficiently precise (Alston 1984: 615).

What could be achieved realistically, Alston argued, was the adoption of procedural standards that
would at least ensure that due reflection and input from a wide variety of sources, including experts, had
preceded the proclamation of new human rights. He suggested a seven-step procedure (Alston 1984:
620) that relies heavily on UN bureaucrats and intergovernmental negotiations:

1. A UN Organ activates an inquiry on a proposed human right;

2. The UN Secretary-General prepares a preliminary study;
3. Comments are solicited from governments, international organizations and NGO’s;
4. The Secretary-General prepares a comprehensive study;
5. An Ad hoc Committee of the Commission on Human Rights reviews the proposal and reports to
the Commission;
6. The Commission addresses a recommendation to the General Assembly;
7. The General Assembly proclaims a new human right or defers action.

2
After the proclamation of a new right, the drafting of an instrument dedicated to that right could be
considered.

Alston’s proposal (that was never adopted) was a response to the actual practice of dealing with claims
for new rights, including the right to development. In 1977, the UN Human Rights Commission had
adopted a resolution (UN CHR 1977, no vote) requesting two studies on the right to development: one
from UNESCO (via ECOSOC), the other from the UN Secretary-General. In Alston’s view, this CHR
resolution took the existence of the right to development for granted, and thus amounted to a
premature proclamation by a body that lacked the legitimacy to act. The UN General Assembly duly
recognized the right to development as a human right two years later (UN GA 1979, adopted by a 136-1-
7 vote).

Subsequently, the UN Commission on Human Rights established a working group of 15 governmental

experts and mandated them with drafting an international instrument on the right to development (UN
CHR 1981, 40-1-2).

The Working Group discussed various drafts of a Declaration for a number of years, but failed to reach
agreement. Amidst considerable controversy, the Commission transmitted the Working Group’s
unfinished work to the UN General Assembly ‘so as to enable the General Assembly to adopt a
declaration’ (UN CHR 1985, 25-10-6). At the UN General Assembly’s Third Committee, the
representative of Yugoslavia – Danilo Turk, the Yugoslav expert had been influential in the Working
Group - introduced a new draft (UN GA 1985: par. 11) that laid the groundwork for the final text. The
General Assembly adopted the Declaration on the Right to Development on 4 December 1986, but failed
to reach consensus (DRD 1986). 1

The drafting process of the Declaration largely abided by Alston’s quality control test, but there were
ominous hiccups: the Commission’s working group was unable to reach agreement, triggering the
Yugoslav initiative to salvage the drafting process, and the adoption of the Declaration required a vote,
which would hinder the Declaration’s capacity to contribute to the formation of customary law. Earlier
UN human rights declarations on the prohibition of torture and on the rights of disabled persons had
been adopted without a vote.

It is worth noting that the right to development did not originate from grassroots claims, but from a
reflection by intellectuals such as Keba M’Baye and Karel Vasak on how human rights law failed to deal
with systemic global inequality. Both experts launched their ideas on the right to development and
other solidarity rights at academic venues and in publications in the early seventies, and networked to
activate the UN Human Rights Commission: Keba M’Baye was the Senegalese representative proposing
the 1977 resolution requesting the two studies; Karel Vasak was the Director of the Division on Human
Rights and Peace at UNESCO to which one of the studies was commissioned. Initial support for the right
to development did not come from below, but from academics, and from governments in the Global
South.

Clearly, UN law-making processes on global human rights need to be inclusive. If those to whom a norm
is addressed are part of the decision-making process, the norm derives legitimacy and compliance pull

1
148 States voted in favor of the resolution. Eight States abstained (Denmark, Finland, Germany, Iceland, Israel,
Japan, Sweden, United Kingdom) and one State (United States) voted against.

3
(Boyle, Chinkin 2007: 25). In the case of human rights, this means that both rights holders and duty
bearers need to participate. In the United Nations, non-governmental organizations tend to act as the
representatives of rights holders; hence, the consultative status system set up in Article 71 of the UN
Charter. States remain the main duty bearers in human rights. They are also the dominant actor in
treaty-making. When duties extend to other actors than States (such as intergovernmental organizations
or private actors), they should be involved as well. New global human rights require significant support
from a variety of stakeholders.

The following sections assess the protracted negotiation process that culminated in the recent decision
to embark on a treaty on the right to development.

A History of Immobility

The UN General Assembly proclaimed the right to development in 1979. Its supporters no doubt aspired
to travel down the treaty-making path fairly quickly, but nearly forty years went by before the UN
Human Rights Council decided to engage in drafting a legally binding instrument on the right to
development. The tale of the past four decades has been told elsewhere (Marks 2011, United Nations
2013), so only a few milestones will be recalled here. A more detailed analysis of the recent initiation of
the drafting process of a convention follows in the next section.

It may be useful to briefly recall the key features of the right to development as included in the
Declaration:

- The right to development is a human right held by human beings and peoples;
- The right to development entitles human beings and peoples to active, free and meaningful
participation in development (the procedural element, i.e. an entitlement to inclusive decision-
making ), and to the fair distribution of the benefits of development (i.e. the material element);
- State obligations under the right to development pertain to both to the domestic and the
international legal order.

The three dimensions of the right to development are equally well established:

- the domestic dimension (dealing with acts and omissions of a State within its territory);
- the extraterritorial dimension (dealing with acts and omissions that have effect on the
enjoyment of the right to development outside of the State’s territory);
- and the global dimension (dealing with the States’ duty to cooperate to ensure the enjoyment of
the right to development).

The question of a treaty on the right to development was debated at length at the UN Commission on
Human Rights, and subsequently at the UN Human Rights Council. Debates took place in particular at
the open-ended intergovernmental Working Group on the right to development that has met in its
current form since 1998 (CHR 1988: par.10a, no vote). Expert advice was made available to the Working
Group through the appointment first of an Independent Expert on the Right to Development (1998-
2004) (CHR 1988: par. 10b) and next of a High-Level Task Force (2004-2010) (CHR 2004: par. 7, 49-3-0).

Both developing and developed countries gradually dug their trenches, and the treaty ended up in no
man’s land. Most developing countries focused on obligations pertaining to the developed countries, and

4
argued that the realization of the right to development required reform of the international economic
order. Codification of the right to development was necessary to put it on a par with other human
rights, and to ensure that it would be taken seriously by actors (including international economic and
financial organizations) adversely impacting on its realization. Most developed countries focused on the
human rights based approach to development, and increased accountability of governments to their
own population on how their domestic development policies impacted on human rights. The right to
development could be realized if existing human rights were read in a development informed manner. A
treaty was redundant; soft law guidelines on implementation sufficed. The United States maintained a
principled opposition to a collective human right. Ibhawoh concluded that the debates demonstrated
how the legitimizing language of human rights was used to press goals that had more to do with the
international politics of power and resistance and with the interests of regimes than with welfare and
empowerment of ordinary citizens (Ibhawoh 2011).

The pinnacle of success was reached in 2007, when the Human Rights Council found a consensus on a
way forward with the help of the High Level Task Force.

Resolution 4/4 (HRC 2007) contained a program of work that was to ‘lead to raising the right to
development […] to the same level and on a par with all other human rights and fundamental freedoms’
(HRC 2007: par.2). The program of work provided that criteria for the periodic evaluation of global
partnerships should be prepared. These criteria were to be used ‘as appropriate’ in the elaboration of a
comprehensive and coherent set of standards for the implementation of the right to development. Next,
the Working Group would ‘take appropriate steps for ensuring respect for and practical application of
these standards, which could take various forms, including guidelines on the implementation of the right
to development, and evolve into a basis for consideration of an international legal standard of a binding
nature, through a collaborative process of engagement’ (HRC 2007: par. 2d). This paragraph is still
invoked today by all sides in support of their position.

The High-Level Task Force subsequently proposed a ‘core norm’ of the right to development as ‘the right
of peoples and individuals to the constant improvement of their well-being and to a national and global
environment conducive to just, equitable, participatory and human-centered development respectful of
all human rights’ (HLTF 2010: 8). The proposed core norm had three attributes: a comprehensive and
human-centered development policy, participatory human rights processes and social justice in
development. For each of the attributes, the HLTF drew up a table of criteria, sub-criteria and indicators
that related to both domestic development policies and global responsibilities. The HLTF final report
was not well received, and the Human Rights Council terminated its mandate (HRC 2010, by a
remarkable 45-0-1 vote).

In a written submission in follow-up to the resolution (unreferenced, on file with the author) the Non-
Aligned Movement expressed disagreement with the reformulation of the right to development
proposed by the HLTF, ‘and especially the overemphasis on national responsibilities, in neglect of the
basic notion of international cooperation’. The Task Force had gone beyond its mandate in redefining
the right to development. The Task Force had adopted a human rights based approach to development;
what was needed, however, was a development approach to human rights. The NAM reiterated that
the right to development should be translated into an international legal framework to be on a par with
other human rights. In its written submission, the European Union reiterated that it did not favor an
international legal standard of a binding nature ‘because it does not believe that it is the most

5
appropriate instrument to operationalize the right to development’. Instead, the EU preferred
implementation of the right to development through the elaboration of benchmarks and indicators for
States to empower individuals as active agents in the development process. Surprisingly, given EU
countries’ endorsement of the resolution sanctioning non-renewal of the HLTF mandate, the submission
stated that the EU felt that the mandate of the HLTF should have been extended to allow for further
refinement of the criteria, sub-criteria and indicators.

Having deprived itself of expert support, the Working Group embarked on drafting ‘criteria and
corresponding operational sub-criteria’ for the operationalization of the right to development, an
excruciating task that it has been unable to complete until this time. Discussions became extremely
technical, open to filibustering, and appeared to all but a small crowd of insiders somewhat removed
from reality.

Interest in the Working Group’s meetings dwindled as little progress was achieved. The number of States
attending (at least part of) the sessions varied between fifty and eighty, while the Working Group’s
meetings are open to all UN Member States. Few UN and other international organizations attended.
Participation by non-governmental organizations was equally low.

In 2016, the Chairperson-Rapporteur of the Working Group prepared a set of standards for the
implementation of the right to development (HRC WG 2016), but the effort proved unsuccessful in
overcoming the political deadlock. In the same year, the UN Human Rights Council established the
mandate of a Special Rapporteur on the Right to Development (HRC 2016: 34-2-11). The Special
Rapporteur was tasked with supporting the Working Group; contributing to the promotion, protection
and fulfilment of the right to development in the context of the 2030 Agenda on Sustainable
Development, and with supporting efforts to mainstream the right to development in international
organizations. In his 2019 report, Special Rapporteur Saad Alfarargi presented guidelines on the practical
implementation of the right to development (HRC SRRTD 2019: par. 7-180).

In September 2018, however, the Human Rights Council had already opted to move forward towards
drafting a treaty, providing momentum for the symbolically significant twentieth session of the Working
Group that would follow a few months later.

Decision to Elaborate a Legally Binding Instrument

Venezuela introduced the draft of UN Human Rights Council resolution 39/9 on behalf of the NAM. The
resolution provided that the Working Group should ‘commence the discussion to elaborate a draft
legally binding instrument on the right to development through a collaborative process of engagement,
including on the content and scope of the future instrument’ (HRC 2018a: par. 17e) at its twentieth
session, i.e. in May 2019.

It mandated the Chair-Rapporteur of the Working Group with preparing ‘a draft legally binding
instrument on the basis of the discussions held during the twentieth session of the Working Group and
the resource material from previous Working Group sessions to serve as a basis for substantive
negotiations on a draft legally binding instrument, commencing at its twenty-first session’ (HRC 2018a:
par 17f), originally planned in May 2020, but currently postponed due to the COVID-19 pandemic to
November 2020.

6
The Human Rights Council further entrusted its Advisory Committee to prepare a research-based report
on the importance of a legally binding instrument on the right to development (HRC 2018a: par. 18),
which was to be presented to the Human Right Council at its forty-fifth session – oddly enough after the
commencement on the negotiations of the draft treaty (at least if the original planning had been
respected; the relevant HRC session was planned for September 2020).

HRC Resolution 39/9 (HRC 2018a) was passed with 30 votes in favor, 12 votes against and 5 abstentions.2
The disagreement centered fully on the decision to initiate negotiations on a treaty. There had been no
shift in positions. Slovakia, speaking before the vote on behalf of the European Union expressed
disappointment that the NAM had not shown flexibility during the negotiations and failed to
accommodate concerns put forward during the process, and reiterated once more that the EU was not in
favor of the elaboration of an international legally binding instrument. Similar statements were made by
Australia, Switzerland, and by Iceland and Mexico (that both abstained). South Africa called on all States
to work constructively in the context of the Intergovernmental Working Group and to support the
resolution (see, for all statements, HRC 2018b).

Clearly, the developed States felt that the collaborative process that been agreed in HRC Council
resolution 4/4 had not been respected by the decision of the Non-Aligned Movement to use its majority
in the Human Rights Council to force through the treaty-making process. A sense of pride prevailed
among NAM delegates that I had the opportunity to engage with at the 20th session of the Working
Group. Pride of having been able to achieve a consensus within the NAM on the move towards a treaty;
the group consists of developing countries that are today economically, politically and socially widely
divergent (including with regard to their human rights records), combined with a sense that the time had
finally arrived for a major human rights initiative that reflected the concerns of the Global South.

Every treaty in force is binding only for the States that have consented to it. Consent is voluntary. A
treaty does not create obligations for a State that does not consent to it (VCLT 1969, art. 34).
Considering both this basic tenet of treaty law and the voting pattern on the resolution setting in motion
the drafting process, the drafters of the treaty now face a strategic choice. They either attempt a treaty
that may command the consent of the largest possible number of States, or they draft a treaty that
reflects the views of States that are currently strongly committed to the creation of a legally binding
instrument. Both options have disadvantages: a treaty commanding wide support may need to focus on
principles rather than on precise obligations, and may provide little in terms of means of enforcement. A
treaty with clear, mandatory provisions may not be ratified by States whose compliance is essential for
the realization of the right to development, particularly when one takes the view that extraterritorial and
global obligations incumbent on developed States are crucial for the realization of the treaty’s objectives.

If States from the Global North do not consent, the duty to cooperate as a cornerstone of the right to
development would apply within the Global South only, testing South-South solidarity. Self-evidently, the

2
In favor: Afghanistan, Angola, Brazil, Burundi, Chile, China, Côte d’Ivoire, Cuba, Democratic Republic of the Congo,
Ecuador, Egypt, Ethiopia, Iraq, Kenya, Kyrgyzstan, Mongolia, Nepal, Nigeria, Pakistan, Peru, Philippines, Qatar,
Rwanda, Saudi Arabia, Senegal, South Africa, Togo, Tunisia, United Arab Emirates, Venezuela (Bolivarian Republic
of).
Against: Australia, Belgium, Croatia, Georgia, Germany, Hungary, Slovakia, Slovenia, Spain, Switzerland, Ukraine,
United Kingdom of Great Britain and Northern Ireland.
Abstaining: Iceland, Japan, Mexico, Panama, Republic of Korea

7
treaty would bind States that do ratify it, and strengthen the protection of rights holders in those States.
The ratification of a treaty on the right to development by a large majority of States in the Global South
would still send a strong message: the treaty would strengthen the moral foundation of the right to
development as a global human right, and thus increase the pressure on non-ratifying States to align
their practice, even if they are not legally obliged to do so. Proponents of the recently adopted Treaty on
the Prohibition of Nuclear Weapons (7 July 2017), that has not yet garnered sufficient support to enter
into force3, thus argue that by its mere existence, the treaty changes the global conversation on the issue
(Lennane 2020: 13-14).

Initiating the Drafting Process

At the opening of the twentieth session of the Working Group, the Chairperson-Rapporteur stressed the
momentous nature of the occasion. He then invited experts to discuss the preamble and final provisions,
type and structure, nature of obligations, compliance procedures of the treaty and the topics of gender
and of business enterprises and investors ( see HRC WG 2019: par. 75-87).

NAM countries strongly supported the drafting process, but few questions were put to the experts, and
few positions taken on the content of the future treaty. The exception were States targeted by unilateral
coercive measures. For these States the raison d’être of the treaty is to declare such measures illegal.
Sessions ended before time, and were suspended regularly for consultations within the NAM that
provided little indication on how members wanted to move forward.

The European Union had stated in advance that it would not contribute to the discussion on the treaty,
and Australia and Japan likewise decided not to engage (HRC WG 2019: par. 14,35,38), although interns
remained in the room to document the debates. One may question the wisdom of such a strategy. Even
States that have no intention of becoming a party of a treaty may wish to participate in the negotiations
in the hope of obtaining an outcome that best serves their interests. NAM countries were under no
pressure to seek compromise.

The Working Group recommended that the Chair-Rapporteur conduct further consultations on the
legally binding instrument (HRCWGRDT: par. 100). The Office of the High Commissioner subsequently
produced a questionnaire that was sent out to States, intergovernmental organizations, human rights
institutions, UN human rights bodies and NGOs. In the context of its own report on the legally binding
instrument, the Advisory Committee similarly consulted stakeholders (HRC AC 2020: par.3). A moderate
number of replies were received.

The Chair-Rapporteur of the Working Group Ambassador Zamir Akram sought the support of the Right to
Development Section of the Research and Right to Development Division of the Office of the United
Nations High Commissioner for Human Rights, to prepare the first draft of the legally binding instrument
for the next session. The Right to Development Section has limited capacity, that it has used over the
years primarily to support the Working Group, and to promote the right to development, e.g. through
human rights education. Funds were, however, secured for a three day meeting of an informal drafting
group ‘of recognized experts in the field of international law with due regard to equitable gender and

3
At the time of writing, 37 States have ratified the Treaty; none have nuclear weapons. Fifty ratifications are necessary for the
treaty to enter into force.

8
geographical representation to prepare a draft including commentaries’ – in the mode of the
International Law Commission (Terms of Reference drafting group – on file with the author). As was
explained to me by a UN official, the drafting group ‘did not exist’; there was no official selection and
appointment procedure. Invitations were extended by OHCHR. The Chairperson-Rapporteur of the
Working Group remained the master of the text he would submit at the 21st session.

The meeting of the drafting group4 went ahead as planned in October 2019 at the UN Headquarters in
New York where meeting rooms were secured with some difficulty; on the 15th floor with a beautiful
view of the East River. Ambassador Akram and the Chief of the OHCHR Right to Development Section
were present (when they were not attending to duties at the General Assembly), and the drafting
process was supported by an OHCHR human rights officer and a few diligent PhD and master students
who produced detailed notes on the conversations. Photographs were taken.

At the start of the meeting, rapporteur Mihir Kanade presented a full draft of the Convention with an
impressive, extensive commentary. His draft was modeled on the Convention on the Rights of Persons
with Disabilities – as the most recent, substantive human rights treaty – but also contained elements of
other human rights treaties and the ILC Articles on State and international organizations’ responsibility.
As the sessions progressed, additional innovative elements were introduced that reflect the unique
character of the right to development as a human right that heavily depends on inter-State cooperation
for is realization. This trend in the discussions also influenced Part IV of the draft dealing with the
implementation mechanism that takes inspiration from compliance mechanisms in the area of
international environmental law, combined with access for rights holders (see infra).

Discussions took place in a cordial and constructive atmosphere. There has always been a strong interest
in academia in the right to development – perhaps precisely because conceptualizing the right calls for
creativity in combining human rights law with other areas of international law. Clearly, within academia
too there are proponents and critics, but the division does not run along North/South fault lines. The
debates were animated by a sense of enthusiasm about having been given the opportunity to share
knowledge and skills with a view to preparing the best possible draft. At the end of the meeting, a full
draft of the Convention was agreed. It was decided to further share the draft with another ten experts.
Six responses were received. Suggested amendments were reviewed, and the improved text was
submitted to the Chair-Rapporteur of the Working Group, who endorsed the text as it stood. The draft
Convention on the right to development was published on 17 January 2020 (HRC WG 2020a), followed
by the commentaries (HRC WG 2020b).

In the meantime, the UN General Assembly had adopted its lengthy, annual resolution on the right to
development (GA 2019), which i.a. took note with appreciation (GA 2019: par.11) of the Human Rights
Council’s decision to create yet another body devoted to the right to development, i.e. a five-person
subsidiary expert mechanism ‘to provide the Council with thematic expertise on the right to
development in searching for identifying and sharing best practices with Member States and to promote
the implementation of the right to development worldwide’ (HRC 2019: par. 29), in addition to extending
the mandate of the Special Rapporteur (HRC 2019: par.22). In New York, the drafting group had been
aware of the last minute Human Rights Council decision (on a proposal by China) to create an Expert
Mechanism on the Right to Development, and drafted Part IV of the draft Convention in such a way that

4
Mihir Kanade (Rapporteur), Makane Moïse Mbengue, Diane Desierto, Margarette May Macaulay, Koen De Feyter.

9
the new mechanism could over time develop into the Implementation mechanism for the Convention, if
the Parties to the Convention would wish to do so.

The 2019 General Assembly resolution is also of interest as a measurement of the extent of support for
the right to development among States. A recorded vote was taken: 138 States voted in favor of the
resolution; 23 voted against (most EU States, Israel, Japan, Ukraine, the UK and the US), and 26 States
abstained (including Brazil and Mexico). Three-fourth of the States favor the right to development.

The events described in this section precede the inter-governmental drafting process of the Convention,
as envisaged in Vienna Convention on the Law of Treaties (art. 9, VCLT 1969). The formal treaty-making
process starts at the twenty-first session of the Working Group on the Right to Development. It is
projected that two readings of the draft Convention will take place at the Working Group. The draft will
then be sent for adoption to the Human Rights Council and submission to the General Assembly, or any
other action the Human Rights Council or General Assembly may wish to adopt.

Assessing the Law-making Process: Inclusivity and Support

The fear that the right to development would be conjured up out of thin air has dissipated after more
than 30 years of strenuous negotiations. A plethora of expert studies has been produced by both UN
staff and independent researchers on the implementation and codification of the right to development.
It is perfectly possible to draft a technically sound right to development treaty with sufficiently precise
language on the obligations the right entails that also includes a meaningful implementation mechanism.

Arguably, there is a high degree of agreement on the existence of the right to development in the
international community. The right to development appears in numerous UN soft law documents that
were adopted by consensus, including the 2030 Agenda for Sustainable Development (GA 2015, par. 10,
35).

On the issue of a global treaty on the right to development, States remain divided along Global South/
Global North lines. In Africa, the issue of a legally binding instrument on the right to development was
resolved in 1981 when the right to development was incorporated in the African Charter on Human and
Peoples’ Rights. In the African Charter, the right to development is a peoples’ right that State parties
have a duty to ensure, individually or collectively (Article 22). The African Court left no doubt about the
justiciability of the right, and found a violation of the provision in the Ogiek case (ACtHPR 2017: par. 208-
211).

Certainly, the history of exclusion of non-European law that was a feature of public international law
when it expanded its reach to non-European societies (Anghie 2005) has contributed to the lingering
perception in the Global South that international law is an instrument for the universalization of foreign
norms. Nevertheless, human rights is the language the international community has chosen to use when
it seeks to protect human dignity. But if human rights are to resonate with users in the Global South, the
input from non-European law and non-European societies is crucial. As Onuma puts it: ‘For human
rights to be accepted by people all over the world and become truly universal, it must overcome its
peculiarities stemming from its historicity. […] [H]uman rights must be re-conceptualized, responding to
diverse cultures, religions and civilizations, which do not necessarily share characteristic features of
modern European civilizations’ (Onuma 2010: 387).

10
The cognitive basis of global human rights needs to expand beyond what is required in Europe (or in the
Global North) to protect human dignity. Human rights conceptualizations in the Global South that
genuinely address human rights needs in those societies should be incorporated in global human rights
law. These conceptualizations may occur in social practices (e.g. within local groups), in texts of
resistance drafted by social movements (Rajagopal 2004), in human rights scholarship by authors from
the Global South, in regional treaties and instruments or in constitutional and other domestic laws of
countries in the Global South.

The challenge of including all human rights traditions into the global concept of human rights and of
increasing the responsiveness of human rights to threats to human dignity in the Global South cannot be
met by enhancing the legal status of the right to development only. But the impact of the debate on the
right to development on the global legitimacy of human rights should not be underestimated. Here is a
human rights concept that emerged in the Global South that has been examined carefully in high quality
legal scholarship from the Global South, and that has been incorporated as a legally binding and
justiciable right in the African Charter on Human and Peoples’ Rights. The right to development speaks
to a host of real human rights issues in the Global South, that are impacted upon by the Global North:
the history of exclusion through colonialism and the many inequalities that era left behind; the lack of
global solidarity for the realization of human rights, and the importance of safeguarding communities on
which individuals rely for human rights protection when the domestic State falters.

Having said as much, the positions of NAM governments are not beyond criticism. The NAM Proposal on
a Set of Standards regarding the implementation and realization of the Right to Development (HRC WG
2017) takes an entirely statist approach to the right to development. The Standards included in the
Proposal spell out extraterritorial and global duties of States vis-à-vis each other (in practice of
developed countries vis-à-vis developing countries), but contain nothing on the empowerment of the
holders of the right to development. At best, one could read an assumption into the proposal that the
benefits accruing to a domestic State would trickle down to the rights holders within its jurisdiction. At
worst, one may suspect that lack of compliance with the extraterritorial and global obligations by
developed countries would be invoked by the domestic developing country to justify its failure to
comply with its own obligations to the rights holders within its jurisdiction.

Moving away from inter-State debates, it is noteworthy that the right to development resonates with
religious and philosophical traditions across the world. These traditions (or strands within them)
commend compassion and solidarity among humans regardless of where they are located, and recognize
the value of communitarian life for individual well-being.

Khurshid Iqbal has discussed the relevance of maslahah (the objective of protecting the public interest in
Islamic law) to the right to development (Iqbal 2010). At the occasion of the 30th anniversary on the UN
Declaration on the Right to Development, the Organization of Islamic Cooperation’s Independent
Permanent Human Rights Commission adopted the Abu Dhabi Declaration that expresses full support for
the right to development, highlighting ‘the Islamic concept of development and social protection based
on the egalitarian principles of compassion and solidarity with fellow Muslims and humanity’ (OIC IPHRC
2016).

Han Sang-Jin has argued that the minben tradition within Confucianism opens up the space for a non-
authoritarian consensual determination of the common good of a community based on participation,
and more generally for the idea of a people-centered, participatory communitarian human rights
tradition (Sang-Jin 2010), that is also at the heart of the right to development.

11
Mofihli Teleki offers Ubuntu as a bridge between universalism and cultural relativism in the context of
the implementation of the right to development (Teleki 2019). Winks explains that African humanism is
‘a fraternitarian philosophy, sustained by compassion, using fraternity or solidarity as a bridge between
liberty and equality’ (Winks 2011: 456; also Ndondo 2014) and is particularly apt to deal with past
injustice such as apartheid, and, potentially, colonialism.

McIlroy explains that the Christian approach to human dignity is based on the idea that human beings
are made in the image of God. It thus follows that all are equally deserving of human rights protection.
Viewed in this light, ‘possessive individualism is an infection and a distortion of the idea of rights’
(McIlroy 2017: 146). The social doctrine of the Catholic Church unequivocally endorses the right to
development: ‘As the Magisterium sees it, the right to development is based on the following principles:
unity of origin and a shared destiny of the human family; equality between every person and between
every community based on human dignity; the universal destination of the goods of the earth; the
notion of development in its entirety; and the centrality of the human person and solidarity’ (PCJP 2004:
par. 446).

The right to development may be more of a shared global value than an observer of intergovernmental
negotiations would suspect.

In light of the above it comes as no surprise that the Catholic inspired NGOs of the Geneva Forum
(APG23 and others) have been among the very few NGOs that persevered over the years in attending the
sessions of the Working Group on the Right to Development. Low participation of NGOs in the sessions
of the Working Group is an indicator of the (lack of) interest or awareness of the right to development
among NGOs and grassroots movements. The push for increased legal recognition at the global level is
primarily developing State driven. In the African regional system, both domestic and international NGOs
were instrumental in bringing cases to the African Commission and Court to establish the justiciability of
the right to development. But in fairness, there is little evidence that grassroots organizations are
making significant use of the right to development. This may be a chicken and egg problem. From an
advocacy point of view, it is not obvious to invoke a right that has only been recognized at the global
level in a soft law document.

One benefit of the decision to start the treaty drafting process may be to rekindle the interest of some
major international human rights NGOs. The HRC Advisory Committee consultation on the legally
binding instrument thus triggered an immediate, well-crafted response from Amnesty International
(HRC AC 2020: par. 3; AI 2019).

Assessing the Added Value of Legally Binding Right to Development in Protecting Human Dignity

Two aspects of the right to development are of particular importance with a view to enhancing the
protection that global human rights law currently provides: the duty to cooperate, and the
empowerment of communities that are adversely affected by ‘development’ decision-making to hold
duty bearers accountable. Both elements reinforce each other: the empowerment of rights holders is
essential to activate the duty to cooperate when cooperation is not forthcoming.

The duty to cooperate implies that States recognize that their unilateral human rights obligations alone
(domestic and extraterritorial), do not suffice to ensure the protection of human dignity in a globalized
world. As the General Assembly argued: ‘globalization has brought disparities between and within
countries and [that] issues such as trade and trade liberalization, transfer of technology, infrastructure

12
development and market access should be managed effectively in order to mitigate the challenges of
poverty and underdevelopment and to make the right to development a reality for everyone’ (GA 2016:
par. 23). States need to cooperate to build a political, economic, social and ecological order that allows
the realization of human rights. That international order does not exist today. Through the inclusion of
the duty to cooperate, the right to development creates a requirement for States to seek solutions and
act jointly for the realization of human rights, across the range of their bilateral and multilateral
relations, and not least in the context of intergovernmental organizations as institutionalized forms of
cooperation. For this reason, the Draft Convention includes obligations of international organizations
(HRCWGRDT 2020a, art. 9), and is open to them for accession (art. 28-29).

In a broader interpretation, the duty to cooperate extends to non-State actors impacting on human
rights as well. Such an interpretation is informed by the 2030 Agenda for Sustainable Development (GA
2015) that throughout the text promotes a collaborative partnership between all countries and all
stakeholders.

As Arjun Sengupta, the former Independent Expert on the right to development explains (Sengupta
2002: 848), at the time of UN Declaration on the Right to Development the right to development aimed
at improving the well-being of entire populations. Entitlements of sub-national groups within States to
specific development policies reflecting their separate identity were not considered.

Today, the international recognition of indigenous rights (e.g. UNDRIP 2007: art. 23), environmental
treaties dealing with local communities (e.g. art. 3a, UNCCD 1994), and the case-law of the African
Commission and Court on Human and Peoples’ Rights on the concept of ‘people’ (e.g. ACnHPR 2009a:
par.179, ACnHPR 2009b: par. 148) should be fully taken into account. Following Newman (Newman
2011: 44) local communities could be understood as sub-state groups that come together by a concept
of common good and are structured in some way, in the sense that they are isolated from other
communities that share similar values.

A contemporary reading of the right to development requires that both indigenous peoples and local
communities that are not accommodated by dominant development paradigms and are victimized by
mainstream development policies are considered as ‘peoples’ that hold the right to development. The
right to development would thus entitle them to active, free and meaningful participation in
development and to the fair distribution of the benefits resulting there from. In addition, indigenous
peoples may well, under general international law enjoy the broader right to free, prior and informed
consent.

The people’s right to development applies both vis-à-vis the domestic State and third States (e.g. in the
context of the duty to co-operate). The domestic State is required to respect the right , but also to offer
protect against abuses by third parties, i.e. to shield communities against the potentially adverse
development impacts by external actors, including foreign States, intergovernmental organizations and
private actors (De Feyter 2015).

At the time of writing, it is difficult to predict how strongly the duty to co-operate and the rights of
communities will feature in the future convention. The Draft Convention (HRCWGRDT 2020a) contains
participatory rights of both individuals and peoples (art.4, 17). The Commentary to the Draft Convention
leaves no doubt that peoples include sub-national groups (HRCWGRDT 2020b: 24).

13
The duty to cooperate is dealt with in a detailed provision (art.13). The envisaged non-adversarial
implementation mechanism would have the power to ‘review requests by rights holders to comment on
situations in which their right to development has been adversely affected by the failure of States to
comply with their duty to cooperate’ (art 26, 3).

One can only wish that the intertwining of the duty to cooperate and the empowerment of communities
will survive the drafting process.

Conclusion

The decision to initiate treaty-making on the right to development followed years of reflection with input
of numerous experts. The arguments in favor or against a treaty were discussed at length. At the end, a
political decision was taken by majority, as the voting system permits.

Perhaps it is unrealistic to expect a full consensus at the start of a drafting process of a human rights
treaty. Nevertheless, the lack of support by the developed countries does create a problem in terms of
achieving the Convention’s purpose. The developed countries benefit from inequality among countries.
Inequality among countries in turn amplifies the adverse effect of inequality within countries. The right
to development seeks to address both levels of inequality. Its realization is hampered if the affluent
countries or other external actors fail to accept legal obligations under the right to development, when
their conduct contributes to condemning people and communities to lives bereft of human dignity.

A legally binding instrument on the right to development potentially has added value. It will act as a
necessary, countervailing force to the implementation of treaties that aggravate poverty and
underdevelopment. On the other hand, no single treaty can in and of itself can create an enabling
international environment for the realization of the right to development. The recognition of sustainable
development as a principle of international law (Voigt 2009), or of the principle of integration as the
backbone of sustainable development (Bürgi Bonanomi 2015) are necessary complements in this
respect.

Whether the convention will improve the living conditions of people and communities that were ‘left
behind’, depends on whether the treaty will contain strong provisions on the duty to cooperate and on
the empowerment of rights holders. The implementation mechanism can document best practices, and
encourage changes in conduct when cooperation has not been forthcoming. The mechanism can
contribute to fostering a culture of compliance with the right to development, including by actors that
are not bound by the convention, if it commands sufficient respect within the international community.
To achieve this, it will need to combine high quality work and political astuteness at a time when
multilateralism faces tough challenges. At best, its influence will be felt over time; such is the “misery of
international law” (Linarelli, Salomon, Sornarajah 2018).

As always in human rights law, ultimately the domestic realm - in developing and developed countries
alike - remains crucial. The realization of the right to development hinges on strong civil society actors
claiming the right that find allies within government to produce policies that comply with the State’s
obligations. In the case of the right to development, such policies are not only domestic (fostering

14
community rights), but also international: offering protection against threats by external actors, and
actively engaging in cooperation with external actors to ensure that adverse effects on rights holders are
avoided and benefits ensured.

15
References

Books and Journal Articles

Alston, P. 1984. Conjuring up New Human Rights: A Proposal for Quality Control. American Journal of
International Law, 78: 607-621 (in-text reference Alston 1984)

Anghie, A. 2005. Imperialism, Sovereignty and the Making of International Law. Cambridge: Cambridge
University Press (in-text reference: Anghie 2005)

Baxi, U. 2002. The Future of Human Rights. New Delhi: Oxford University Press (in-text reference: Baxi
2002)

Baxi, U. 2009. Human Rights in a Posthuman World. New Delhi: Oxford University Press (in-text
reference: Baxi 2009)

Boyle, A., Chinkin, C. 2007. The Making of International Law. Oxford: Oxford University Press (in-text
reference: Boyle, Chinkin 2007)

Bürgi Bonanomi, E. 2015. Sustainable development in international law making and trade, Cheltenham:
Edward Elgar (in-text reference Bürgi-Bonanomi 2015)

De Feyter, K. 2015. The Right to Development in Africa. In E. Brems, C. Van der Beken, S. Yimer (eds.),
Human Rights and Development, pp. 23-50. Leiden: Brill/Nijhoff (in text reference: De Feyter 2015)

Ibhawoh, B. 2011. The Right to Development: The Politics and Polemics of Power and Resistance.
Human Rights Quarterly 33 (1): 76-104 (in-text reference: Ibhawoh 2011)

Iqbal, K. 2010. Re-Conceptualizing the Right to Development in Islamic Law. The International Journal of
Human Rights, 14(7), 1013-1041 (in-text reference Iqbal 2010)

Lennane, R. 2020. Let’s be Realists. Eleven answers to common questions and comments on nuclear
weapons. Geneva: ICAN (in-text reference Lennane 2020)

Linarelli, J., Salomon, M., Sornarajah, M. 2018. The Misery of International Law. Confrontations with
Injustice in the Global Economy. Oxford: Oxford University Press (in-text reference: Linarelli, Salomon,
Sornarajah: 2018)

Marks, S. 2011. The Politics of the Possible. The way ahead for the right to development. Berlin: Friedrich
Ebert Stiftung (in text-reference: Marks 2011)

McIlroy, D. 2017. Catholic and Protestant Approaches to Human Rights. Law & Justice. Christian Law
Review 179: 135-158 (in-text reference McIlroy 2017)

Ndondo, S. 2014. Human Rights: Perceptions and making the discourse functional. A case of Gokwe
Central Communities. International Journal of Scientific and Research Publications 4(4): 6p (in-text
reference Ndondo 2014)

16
Newman, D. 2011. Community and Collective Rights, A Theoretical Framework for Rights held by Groups.
Oxford: Hart Publishing (in-text reference: Newman 2011)

Onuma, Y. 2010. A Transcivilizational Perspective on International Law. Leiden: Martinus Nijhoff (in-text
reference: Onuma 2010)

Rajagopal, B. 2004. International Law from Below. Cambridge: Cambridge University Press (in-text
reference Rajagopal 2004)

Sang-Jin, H. 2010. Confucianism and Human Rights. In W. Chang, L. Kalmanson, (eds.), Confucianism in
Context: Classic Philosophy and Contemporary Issues. East Asia and Beyond, pp. 121-144. New York:
Suny Press (in-text reference: Sang-Jin 2010)

Sengupta, A. 2002. On the Theory and Practice of the Right to Development. Human Rights Quarterly 24:
837-889 (in-text reference: Sengupta 2002)

United Nations 2013. Realizing the Right to Development. New York: UN (in-text reference: UN 2013)

Voigt, C. 2009. Sustainable development as a principle of international law, Leiden: Martinus Nijhoff (in-
text reference: Voigt 2009)

Teleki, M. 2019. “Ubuntu-ism” as the Arbiter between Cultural Relativism and Universalism in the
Context of the Right to Development In W. Zhang, W. (ed.), The Right to Development. Sustainable
Development and the Practice of Good Governance. pp. 207-228. Leiden: Brill/Nijhoff (in text reference
Teleki 2019)

Winks, B. 2011. A covenant of compassion: African humanism and the rights of solidarity in the African
Charter on Human and Peoples’ Rights. African Human Rights Law Journal 11: 447- 464 (in-text
reference Winks 2011)

UN Treaties

Vienna Convention on the Law of Treaties. 23 May 1969. United Nations, Treaty Series, 1155: 331. (in-
text reference: VCLT 1969)

UN Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or

Desertification, particularly in Africa. 14 October 1994. United Nations, Treaty Series, 1954: 3 (in text-
reference: UNCCD 1994)

UN Resolutions and Documents

UN Human Rights Commission. 1977. Resolution 4 (XXXIII). Adopted 21 February 1977. (in-text
reference: CHR 1977)

UN General Assembly resolution. 1979. Resolution 34/46. Adopted 23 November 1979. (in-text
reference: GA 1979)

17
UN Human Rights Commission resolution. 1981. Resolution 36 (XXXVII). Adopted 11 March 1981 (in-text
reference: CHR 1981)

UN Human Rights Commission resolution. 1985. Resolution 1985/43. Adopted 14 March 1985 (in-text
reference: CHR 1985)

UN General Assembly. 1985. Report of the Third Committee. A/40/970 (in-text reference: GA 1985)

UN General Assembly. 1986. Declaration on the Right to Development. Resolution 41/128. Adopted 4
December 1986 (in-text reference: DRD 1986)

UN Human Rights Commission resolution. 1988. Resolution 1998/72. Adopted 22 April 1998 (in-text
reference: CHR 1988)

UN Human Rights Commission resolution. 2004. Resolution 2004/7. Adopted 13 April 2004 (in-text
reference: CHR 2004)

UN Human Rights Council resolution. 2007. Resolution 4/4. Adopted 30 March 2007 (in-text reference
HRC 2007)

UN General Assembly resolution. United Nations Declaration on the Rights of Indigenous Peoples.
Resolution 61/295. Adopted 13 September 2007 (in text-reference UNDRIP 2007)

UN Human Rights Council. 2010. Report of the High-Level Task Force on the Implementation of the right
to development on its sixth session. Addendum. Right to development criteria and operational sub-
criteria. A/HRC/WG.2/TF/Add.2 (in-text reference HLTF 2010)

UN Human Rights Council. 2010. Resolution 15/25. Adopted 7 October 2010 (in-text reference: HRC
2010)

UN General Assembly. 2015. Resolution 70/1. Transforming our world: the 2030 Agenda for Sustainable
Development. Adopted 25 September 2015 (in text reference: GA 2015)

UN Human Rights Council Working Group on the Right to Development. 2016. Standards for the
Implementation of the Right to Development, Report of the Chair-Rapporteur of the Working Group on
the Right to Development, A/HRC/WG.2/17/2 (in text reference HRC WG 2016)

UN Human Rights Council. 2016. Resolution 33/14. Adopted 29 September 2016. (in-text reference: HRC
2016)

UN Human Rights Council Working Group on the Right to Development. 2017. NAM Proposal on Set of
Standards regarding the implementation and realization of the Right to Development,
A/HRC/WG.2/18/G/1 (in-text reference: HRC WG 2017)

UN Human Rights Council. 2018. Resolution 39/9. Adopted 27 September 2018 (in-text reference: HRC
2018a)

UN Human Rights Council. 2018. Human Rights Council adopts 10 resolutions and One Presidential
Statement. 2018.
https://www.unog.ch/unog/website/news_media.nsf/(httpNewsByYear_en)/9D4F51A8FE8D58EDC1258
3150061C97A?OpenDocument (referenced 1 June 2020) (in-text reference HRC 2018b)

18
UN Human Rights Council Working Group on the Right to Development. 2019. Report on its twentieth
session, A/HRC/42/35 (in-text reference HRC WG 2019)

UN Human Rights Council. 2019. Report of the Special Rapporteur on the right to development.
A/HRC/42/38 (in-text reference HRC SRRTD 2019)

UN Human Rights Council. 2019. Resolution 42/23. Adopted 27 September 2019 (in-text reference HRC
2019)

UN General Assembly. 2019. Resolution 74/152. Adopted 18 December 2019 (in-text reference GA 2019)

UN Human Rights Council Working Group on the Right to Development. 2020. Draft Convention on the
Right to Development. A/HRC/WG.2/21/2 (in-text reference HRC WG 2020a)

UN Human Rights Council Working Group on the Right to Development. 2020. Draft Convention on the
Right to Development, with commentaries. A/HRC/WG.2/21/2/Add.1 (in-text reference HRC WG 2020b)

UN Human Rights Council Advisory Committee. 2020. Importance of a legally binding instrument on the
right to development. Study of the Human Rights Council Advisory Committee – Second draft.
A/HRC/AC/24/CRP.3 (in-text reference HRC AC 2020)

Cases

African Commission on Human and Peoples’ Rights, Kevin Mgwanga Gunme et al v. Cameroon,
Communication No. 266/03, 27 May 2009 (in-text reference ACnHPR 2009a)

African Commission on Human and Peoples’ Rights, Centre for Minority Rights Development (Kenya),
Minority Rights Group International on behalf of the Endorois Welfare Council v. The Republic of Kenya,
Communication No. 276/2003, 25 November 2009 (in-text reference ACnHPR 2009b)

European Court of Human Rights, Artico v. Italy, 13 May 1980, 3 EHRR 1 (1981) (in-text reference ECtHR
1981)

Inter-American Court of Human Rights, Mayagna (Sumo) Awas Tingni Community v. Nicaragua, 31
August 2001, C/79 (in-text reference IACtHR 2001)

African Court on Human and Peoples’ Rights, African Commission on Human and Peoples’ Rights v.
Republic of Kenya, Application No. 006/2012, Judgement of 26 May 2017 (in-text reference ACtHPR
2017)

Other Documents

Amnesty International. 2019. Response to the Human Rights Council Advisory Committee’s Consultation
on the Importance of a Legally Binding Instrument on the Right to Development. (in-text reference AI
2019)

19
OIC Independent Permanent Human Rights Commission. 2016. Abu Dhabi Declaration on the Right to
Development. https://www.oic-iphrc.org/en/right-to-development (referenced 1 June 2020) (in-text
reference OIC IPHRC 2016)

Pontifical Council for Justice and Peace. 2004. Compendium of the Social Doctrine of the Church.
http://www.vatican.va/roman_curia/pontifical_councils/justpeace/documents/rc_pc_justpeace_doc_20
060526_compendio-dott-
soc_en.html#Cooperation%20to%20guarantee%20the%20right%20to%20development (referenced 1
June 2020) (in-text reference PCJP 2004)

20