Development as human right The right to development

Today the right to development is accepted as a human right.18 _{Development has become a right}

of peoples and individuals in Ethiopia. The right to development is a relatively new19 concept in international human rights law and integrates human rights and economic development.20 Article 1 of the Declaration of the Right to Development (DRD) defines it as:

An inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realised.21

The definition comprises of three elements as explained by Sengupta. These elements are:22

18

At the time of the adoption of the Universal Declaration on Human Rights in 1948, much focus was given to civil and political rights rather than the right to development. Though the Declaration incorporates provisions on economic, social and cultural rights, the issue of development was not included. B Ibhawoh ‘The right to development: The politics and polemics of power and resistance’ (2011) 33 Human Rights Quarterly 76 81-2. The Universal Declaration on Human Rights is considered as a precursor to the right to development. Mesenbet Assefa Tadeg ‘The right to development as a normative framework for the human rights obligations of international financial institutions’ unpublished mini theses, University of Pretoria, 2008 34. In the 1970s, the distinction between human rights and development fields began to change and the right to development was articulated by developing countries in relation to the New International Economic Order (NIEO). Ibhawoh (as above).

19 _{The right to development was formally recognised under the Declaration on the Right to Development for the}

first time. In 1968, the interconnection between the realisation of human rights and economic development was asserted in an international conference on human Rights held in Tehran. Then, the UN showed its concern with the issue by adopting the Declaration on Social Progress and Development in 1969. ID Bunn ‘The right to development: Implications for international economic law’ (2000) 15 American University International Law Review 1425 1432- 33. Keba M’Baye, a Senegalese jurist, has initiated the concept of the ‘Right to development’ in 1972 in his lecture at the International Institute of Human Rights in Strasbourg by asserting that the right belongs to all persons as ‘every [person] has a right to live and a right to live better.’ Bunn (above) 1433. The writings of M’Baye emphasised on the right to development as a claim of developing countries at the international level, as equitable development process with the obligation of international community. Thus, the right to development was emphasized on the obligations of the international community rather than those of states. Ibhawoh (n 18 above) 83. In 1977, the UN Commission on Human Rights referred to the right to development in a resolution adopted. The Commission enquires the UN Secretary General, UNESCO and other agencies to examine the right to development. Then, a second study that focused on the right to development at the regional and national dimensions was conducted. In 1981, the UN has established a Working group of experts on the right to development and the Working Group prepared a draft upon the demand of UN. Then, the UN General Assembly adopted the Declaration on the Right to Development on December 4, 1986. The United States of America has opposed it while one hundred and forty-six members voted in favour. Furthermore, Denmark, Finland, Federal Republic of Germany, Iceland, Israel, Japan, Sweden and United Kingdom have abstained. Bunn (above) 1433-34.

20

M Orellana ‘Climate change and the right to development: International cooperation, financial arrangements, and the clean development mechanism’ (2010) 5.

21 _{Declaration on the Right to Development (n 12 above) Art 1(1). For the meaning of the right to development,}

see Belachew M. Fikre ‘The politics underpinning non-realization of the right to development’ (2011) 5 Mizan Law

Review 249-256.

22 _{F Kirchmeier ‘The right to development- where do we stand? State of the debate on the right to development’}

(2006) 9. The right to development includes four elements vs. Development is a process that facilitates the realization of all human rights; all human rights are interrelated and interdependent; the right to development is both individual and group right; both states and international communities have the responsibility to fulfil the right to development. Ibhawoh (n 18 above) 83-4. There were controversies even before the adoption of the Declaration on the Right to Development and they continue to be prevalent after the right to development came into being. Western

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A) It is an inalienable human right; according to this concept, it cannot be bargained away. B) It includes the process of economic, social, cultural and political development in which

all human rights and fundamental freedom are fully realized;

C) It is a human right by which every person and all people are entitled to participate in, contribute to and enjoy the particular process of development.

The right to development has both internal and external dimensions. The internal dimension of the right to development addresses the duties of each state to ensure domestic policies, and laws to realize the right to development to all its peoples. The external dimension considers disparities of the international political economy. In this regard, states have responsibilities acting individually or collectively at the international level.23

The first consensus was reached at the 1993 Vienna World Conference on Human Rights and the right to development was described as an ‘integral part of fundamental human rights.’24 From the right-based approach it is aimed at to be an instrument to ensure the development of individual persons as well as peoples at national and international level, and therefore, it has such a dualistic nature.25

The right to development is indivisible and interdependent as all human rights are.26 The right to development as incorporated under the DRD is a right based approach to development, which ‘requires that human rights must be integrated into sustainable human development.’27 It

countries oppose the right to development and social rights as human rights by arguing that they are not individual rights; See A Sengupta ‘The right to development as a human right’ (2000) 9.

a) There is no a duty holder whose obligation would be to deliver the right, Bunn (n 19 above) 1435. Ghai argues that the right to holders and duty bearers are not clear in the case of the right development. See Bunn (as above). Sengupta (n 18 above) 10. The Declaration on the Right to Development clearly imposes duties on States to implement the right to development, See for instance, Art. 3(1)(3), 4(1) of the Declaration.

b) They are not justiceable. Sengupta (as above).

23 _{M Salomon ‘Legal cosmopolitanism and the normative contribution to the right to development’ in SP Marks}

(ed) Implementing the right to development: The role of international law (2008) 17-18.

24

Kirchmeier (n 22 above). See also Vienna Declaration and Programme of Action (1993), Paragraph 10. Rights based approach to development is essential in development planning and practice. Costantinos BT Costantinos ‘Law and development: Public policy & Legal empowerment of the poor to access justice’ (2012) 54.

25 _{Kirchmeier (n 22 above). NG Villaroman ‘The right to development: Exploring the legal basis for a}

supernorm’ (2010) 22 Florida Journal of International Law 306.

26 _{M Ozen The Right to Development: Current state of the debates held at the UN on the implementation of the}

historic declaration (1986). Article 6(2) of the Declaration on the Right to Development reads: ‘All human rights and fundamental freedoms are indivisible and interdependent; equal attention and urgent consideration should be to the implementation, promotion and protection of civil, political, economic, social and cultural rights.’

27 _{Ibhawoh (n 18 above) 84. The Second preamble of the Declaration reads as: ‘... development is a}

comprehensive economic, social, cultural and political process, which aims at the constant improvement of the wellbeing of the entire population and all of individuals on the basis of their active, free and meaningful

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is also part and parcel of human rights because human rights are interrelated and indivisible. This kind of approach is called holistic approach. Development has political, social, economic and cultural ramifications and development cannot be achieved unless and otherwise other human rights are implemented. Human rights and the right to development are mutually reinforcing each other 28 in that the latter requires the application of human rights in development policies and practices.29 The right to development, according to the Declaration on the Right to Development, ensures the responsibility of states30 _{as well as international community. This clearly shows a}

deviation from the traditional conception of human rights that are claimed by individuals against states. The Declaration also recognises the importance of international community in the implementation of the right.31 In short, the right to development is a core right from which all other rights arise.32

Moreover, the notion that states and ‘peoples’ can claim as human right from the international community and other states marked a paradigm shift from the concept of traditional human rights, and considered as a non-western conception of human right.33 The development right is reaffirmed in the Vienna Declaration and Program of Action of 1993 that makes it part and corpus of international human rights law.34

participation in development and in the fair distribution of benefits resulting therefrom’. Declaration on the Right to Development.

28 _{P Alston & M Robinson (eds) Human rights and development: Towards mutual reinforcement (2005) 3-4; A}

Hayrapetyan ‘The right to development and rights based approach to development as mutually reinforcing concepts for the implementation of international development’ unpublished master's thesis, Riga Graduate School of Law, 2011 32.

29 _{SP Marks ‘Human rights and development’ in Research Handbook on International Human Rights Law}

(2012) 168-69. It is also argued that the right to development does not add values to the existing human rights. See A Vandenbogaerde ‘The right to development in international human rights law: A call for its dissolution’ (2013) 31

Netherlands Quarterly of Human Rights 187-209.

30 _{The conventional framework of state responsibility that requires beholder of another state does not suit here,}

and it requires a re-conceptualization of state responsibility to implement the RTD. See generally Nvd Have ‘The right to development and state responsibility: Towards idealism without a sense of realism?’ unpublished masters thesis, Public international law, 2012.

31 _{Ibhawoh (n 18 above) 85-6; See also Declaration on the Right to Development (n 12 above) Arts 3 and 4. See}

also ME Samon & A Sengupta The Right to development: Obligations of states and the right of minorities and

indigenous peoples (2003).

32 _{Bunn (n 19 above) 1435. According to Art. 1(1) of the Declaration on the Right to Development, it is a right}

‘in which all human rights and fundamental freedoms can be fully realised.’ This affirms the claim made by Bedjaoui.

33 _{Ibhawoh (n 18 above) 86; The Right to development is controversial concept. See AK Sengupta}

‘Conceptualizing the right to development for the twenty-first century’ in United Nations Realizing the Right to

Development: Essays in Commemoration of 25 Years of the United Nations Declaration on the right to development

(2013) 73-80.

34 _{Ibhawoh (n 18 above) 86; Vienna Declaration and Programme of Action (n 24 above). The Vienna}

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