What is the Use of a Human Right to Development? Legal Pluralism, ‘Participation’, and a Tentative Rehabilitation

Date01 September 2014
DOIhttp://doi.org/10.1111/j.1467-6478.2014.00674.x
AuthorJoseph Markus
Publication Date01 September 2014
JOURNAL OF LAW AND SOCIETY
VOLUME 41, NUMBER 3, SEPTEMBER 2014
ISSN: 0263-323X, pp. 367±90
What is the Use of a Human Right to Development? Legal
Pluralism, `Participation', and a Tentative Rehabilitation
Joseph Markus*
The human right to development divides academic thought. On the one
hand, it is mistrusted as an apology for human rights (and other)
abuses. On the other, it remains a central pillar of the UN-led cam-
paign against poverty. Building on the concept of the right to partici-
pate in development framed in the UN General Assembly Declaration
of 1986, this article seeks to show that there is some scope for the
rehabilitation of that right. It demonstrates how the development
discourse has tended to exclude minority and subaltern groups.
Drawing on the insights of legal pluralism, it then outlines ways in
which, for example, indigenous communities have reasserted some
control over the development process, before suggesting how this could
lay the basis for the wider rehabilitation of the idea of a human right to
development.
Development can be seen . .. as a process of expanding the real freedoms that
people enjoy
1
. . . of the substantive freedoms ± the capabilities ± to choose a
life one has reason to value.
2
The right to development is in its most utopian conception the `mother of all
rights',
3
a panacea for global ills. It is defined in the 1986 UN General
367
*Garden Court North, 22 Oxford Court, Manchester M2 3WQ, England
joseph.markus@live.co.uk
I am very grateful for the helpful comments of all external reviewers and, in addition, for
both the advice and the sense of direction supplied by Professor Robert McCorquodale.
1 A. Sen, Development as Freedom (1999) 3.
2 id., p. 74.
3 Comment of Mr Atuguba, Report of the High-Level Task Force on the Imple-
mentation of the Right to Development on its Sixth Session, UN Doc A/HRC/15/
WG.2/TF/2 (2010) para. 66. See, also, M. Bedjaoui, `The Right to Development' in
International Law: Achievements and Prospects, ed. M. Bedjaoui (1991) 1182: `The
right to development is a fundamental right, the precondition of liberty, progress,
justice and creativity. It is the alpha and omega of human rights, the first and last
human right, the beginning and the end.'
ß2014 The Author. Journal of Law and Society ß2014 Cardiff University Law School
Assembly Declaration on the Right to Development (DRD) as the right of:
every human person and all peoples . . . to participate in, contribute to, and
enjoy economic, social, cultural, and political development, in which all
human rights and fundamental freedoms can be fully realized.
4
The right, then, represents a creative synthesis of all rights.
5
It speaks with a
powerful and compelling message, that human beings should be free to
define and shape their progression to a better life. This idea of progression,
of `development', would appear to be inherent in any right and is laced
throughout the Declaration in the references to `improvement', `eliminating
obstacles', and `progress' ± though quite what development itself may mean
is left remarkably unclear.
Despite its utopian vision, the right has not met with unqualified support
among legal and other academics. There is a keen sense, among some, that
development reflects an out-dated political-economic consensus and that
development is tainted with the infantilizing effects of `colonialism'.
6
These
are the criticisms from the perspective of third-world approaches to
international law (or `TWAIL'). Others consider that a right to development
could help justify repressive policies in the name of the `public good'
7
and
others still believe that a right to development is obsolete and adds nothing to
pre-existing socio-economic-type rights.
8
Nevertheless there is a division of
opinion. The development discourse retains considerable force.
9
Charities
abound that exist to serve the `great cause' of development and it still shapes
the international approach to poverty reduction.
10
368
4 United Nations General Assembly Res. 41/129, 4 December 1986, Art. 1(1).
5 See N. Udombana, `The Third World and the Right to Development: Agenda for the
Next Millennium' (2000) 22 Human Rights Q. 753, at 770; M. Bulaji, Principles of
International Development Law (1993) 361.
6 See, for example, G. Esteva, `Development' in The Development Dictionary: A
Guide to Knowledge as Power, ed. W. Sachs (2010); G. Esteva and M.S. Prakash,
`Beyond development, what?' (1998) 8 Development in Practice 280; A. Escobar,
Encountering Development: the Making and Unmaking of the Third World (1994).
7 See, for example, Y. Ghai, `Human Rights and Governance: The Asia Debate'
(1994) 15 Australian Yearbook of International Law 1, at 10; Y. Ghai, `Whose
Human Right to Development?' Study Prepared for the Commonwealth Secretariat,
Human Rights Unit Occasional Paper, November 1989 at 12±15, referring to `[t]he
ideology of developmentalism'; R. Howard, `Human Rights, Development and
Foreign Policy' in Human Rights and Development: International Views, ed. D.
Forsythe (1989) 216±19.
8 See, for example, J. Donnelly, `In Search of the Unicorn: the Jurisprudence and
Politics of the Right to Development' (1985) 15 California Western International
Law J. 474; J. Donnelly, `The Theology of the Right to Development: A Reply to
Alston' (1985) 15 California Western International Law J. 519.
9 The prospect of a right to development continues to enjoy UN institutional support:
see Human Rights Council, December 16/117: Right to Development (25 March
2011), UN Doc A/HRC/DEC/16/117.
10 See the Millennium Development Goals, at .
ß2014 The Author. Journal of Law and Society ß2014 Cardiff University Law School

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