Rescuing a Troubled Concept: An Alternative View of the Right to Development
| Published date | 01 March 2011 |
| Author | Noel G. Villaroman |
| DOI | 10.1177/016934411102900104 |
| Date | 01 March 2011 |
| Subject Matter | Part A: Article |
Netherlands Q uarterly of Human R ights, Vol. 29/1, 13–53, 2011.
© Netherlands I nstitute of Human Ri ghts (SIM), Printed in the Net herlands. 13
PART A: ARTICLES
RESCUING A TROUBLED CONCEPT:
AN ALTERNATIVE VIEW OF THE
RIGHT TO DEVELOPMENT
N G. V*
Abstract
is article proposes an alternative view of the ‘right to development’ which is supported
by certain norms whose bases are well-established in internat ional law. Such a view is
necessitated by the unjustie d expansion of the right’s denition courtesy of the 1986
Declaration on the Right to Development and the equally e xpansionary tendencies
of some of its proponent s. An expand ed denition of the right to development dilute s
its s trength as a legal principle. How can the right to development be conceived and
advanced as a principle of international law po ssessing a ‘ hard law’ status? W hat are
the preci se contents of this rig ht and against whom can they be claimed? is article
argues that the right to development regroups and consolidates into a singl e rubric
certain f undamental norms and draws its l egal strength f rom their simultaneous and
interlocking operation in the internat ional system.
1. THE RIGHT TO DEVELOPMENT AND THE
INTERNATIONAL LAW PROCESS
1.1. INTRODUCTION
It was during t he wave of decolonisation in the 1960s when the right to development
was rst articu lated by the developing countries as a companion of their newly
acquired political emancipation from their colonial masters.1 As original ly envisaged,
the right to de velopment is not a human right which is cl aimable by indiv iduals
against their ow n State, but a people’s r ight. Aer the 1960 s, it took the form of a
demand by the developing countries against the developed count ries to end t he
* e author is a lawyer in the Ph ilippines. He is cu rrently a PhD in Law candidate in Monash
University, Melbourne, Au stralia. Al l internet sites were last ac cessed on 16 January 2011.
1 Bedjaoui, Mohammed , ‘e Rig ht to Development ’, in: Bedjaou i, Mohammed (ed.), International
Law: Achievements and Prospects , UNESCO Series, Martinus Nijho Publishers, Dordrecht /Boston,
1991, pp. 1177–1204, at p. 1177.
Noel G. Villa roman
14 Intersentia
perpetuation of colonialist policies of economic domination and exploitation.2 It
became associated wit h two specic demands, namely, the establishment of a ‘new
international economic order’ which would be more conducive to the economic
progress of developing countries, and the adherence to the notion t hat peoples must
have full control over t heir natural wealth and re sources.3 Because of their economic
dependency on developed countries, the newly inde pendent developing countries
were then calling for ‘a restructur ing of the global economic s ystem through a new
international economic order’.4 e UN General Assembly adopted the Resolutions
on t he Declaration on the Establishment of a New International Economic O rder5
and the Charter on the Economic Rig hts and Duties of States6 in 1974, al l of which
outlined the feature s of this envisioned international economic order.
e rst articulation of the right to development happened alongside ‘the elevation
of economic development issues to the top of the international agenda in va rious
fora dur ing the 1960s and 1970s’.7 During th is period, while the Western world was
trumpeting i ndividual human rights guara nteed i n the Universal Declaration of
Human Rights (UDHR),8 the Internat ional Covenant on Civil and Politica l Rights
(ICCPR)9 a nd the Internationa l Covenant on E conomic, Social a nd Cultural Rights
so to speak , by craing a c ollective r ight to development to bolster their demand
for fu ndamental changes in t heir economic relationship with the developed world.
Historically, the right to development has always been about correcting what is wrong
in the global economic order. From its i nception, it was meant to address the eec ts
of t he asymmet rical relationship between the developed and developing countries.
During a 1967 meeting of the Group of 77 Developing Countries, the foreign minister
of Senegal emphatically dec lared that
[o]ur task i s to denounce the old c olonial compact and to repla ce it wit h a new right. In
the same way that develope d countries procla imed individua l rights to education, health
2 Beetham, David , ‘e Ri ght to Development and Its C orresponding O bligations’, in: Andreassen,
Bard and Marks, Stephen (eds), Devel opment a s a Human Right: Legal, Political and Economic
Dimensions, Harv ard School of Public Healt h, Cambridge, 200 6, pp. 79–95, at pp. 79–80.
3 Ibidem, at p. 79.
4 Iqbal, Khurshid, ‘e Declar ation on the Right to Development and Its Implementation’, Political
Perspectives G raduate Journal, Vol. 1, No. 1, 2007, pp. 1–39, at p. 4.
5 GA Res. 3201 (S-VI), UN GAOR Supp. (No. 1) 3, UN D oc. A/9559, 1 May 1974; and GA Res. 3202
(S-VI), UN GAOR Supp. (No. 1) 5, UN Doc. A/9559, 1 May 1974.
6 GA Res. 3281 (XXIX), 29th sess, agen da item 48, UN Doc. A/ RES/29/3281, 12 December 1974.
7 Orford, Anne, ‘Globalization and the Ri ght to Development’, in: Alston, Philip (ed.), Peoples’ Rights,
Oxford University P ress, Oxford, 2001, pp. 127–184, at p. 129.
8 UN GA Res. 217A (III), UN Doc. A/810, 10 December 1948.
9 Opened for signature 16 December 1966, 999 Unite d Nation s Treaty Series (UNTS), No. 14668
(entered into force 23 March 1976).
10 Opened for signat ure 16 December 1966, 999 UN TS 3 (entered into force 3 January 1976).
An Alternat ive View of the Right to Development
Netherlands Q uarterly of Human R ights, Vol. 29/1 (2011) 15
and work, we must claim here, loud and clea r, that the nations of the ird World have the
right to development.11
e rig ht to development was rst ocially recogn ised by t he UN C ommission on
Human Rights in 1977.12 e then Commission acknowledged the right to development
as a human right and recommended to the Economic and Social Council that it should
invite t he Secretary-Genera l to underta ke a study on the subject. With the creation
of a Working Group of Government Experts on the Ri ght to Development in 1981,
the debate on the right was formally elev ated in the UN agenda.13 e Declaration on
the Right to Development was subsequently adopted by the UN General Assembly in
1986 in an almost unanimous vote, with only the United States (US) casting a negative
vote and eight other States abstai ning.14
e right to development was also recognised in politica lly signicant conferences
of world leaders. e World Conference on Huma n Rights, held in 1993, rearmed
the rig ht to development, as formulated in the 1986 Declar ation, as a universal and
inalienable right a nd an integral pa rt of fundamental human rig hts.15 During this
conference, a consensus was reached among developed a nd developing countries
that the right to development is i ndeed a huma n r ight.16 I n 20 00, world leaders
attending the UN Millennium Sum mit reached an agreement on a set of goals and
targets for ghting ext reme poverty, environmental degradation, disease, hunger and
discrimi nation agai nst women, which later became the Millennium Development
Goals. e Summit Declaration included a pledge ‘to making the right to development
a reality for everyone and to f reeing the entire human race from want’.17
1.2. CRITICISMS AGAINST THE RIGHT TO DEVELOPMENT
e right to development is not without criticisms both with respect to its basis in public
international law and its susceptibil ity to implementation in ac tual controversies.18
Some burning ques tions remain to be answered and some apparent answers need
to be questioned: Does the right to development have a rm basis in international
11 Meillan, Lau rent, ‘Le Droit au Developpement et les Nations Unies: Quelques Reexions’ [e Right
to Development and the Unite d Nations: Some Reections], Droit en Quart Monde, No. 3 4, 2003,
pp. 13–31, at p. 14.
12 UN Commiss ion on Human Rights, Res olution 4 (XXXII I), 21 February 1977.
13 UN Commiss ion on Human Rights, Res olution 36 (XXXV II), 11 March 1981.
14 GA Res. 41/128, UN GAOR, 41st sess , 97th plen mtg, UN Doc. A/RE S/41/128, 4 December 1986.
15 Vienna Decl aration and Programme of Action, adopted by the UN World Conference on Hum an
Rights, U N Doc. A/CONF.157/24, 25 June 1993, Part I, Art icle 10.
16 Iqbal, loc.cit. (note 4), p. 6.
17 e Millenn ium Declaration, U NGA Res. A/RES/55/2, 8 Se ptember 2000, para . 11.
18 See, especial ly, Donnelly, Jack, ‘In Search of the Unicorn: e Jurisprudence and Politics of the Right
to Development’, California Western Inter national Law Journal, Vol. 15, No. 3, 1985, pp. 473–509, at
p. 473.
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