The WTO Effect and Developing Countries
3.6 The WTO Agreements and development
Nothing is more apparent in the foregoing comparison of the WTO effect on the UAE, Brazil and Bangladesh than that WTO Agreements will nurture development when a member country has the resources sufficient to render it trade capable, but will actually register as a destroyer of trade capacity in a single-industry member state like
Bangladesh. Yet nothing has happened, even at ministerial level, to acknowledge this.
Begun in 2001 in Doha, Qatar, this Round was touted to be the ‘development round’, during which the needs of developing countries would be addressed. Negotiations finally collapsed on July 2008, after several stop-restart events. Efforts to revive it continue, with hope expressed that the G20 Summit in London on 2 April 2009 might achieve that. Not altogether unpredictably, nothing explicit in this matter has yet emerged from the
Summit, despite the public mood that championed the right to development, particularly of least-developed countries.
253 Bangladesh News, ‘40 injured as RMG workers clash with cops’, 18 June 2008,
3.6.1 Right to development in international law
It is a fact that in international law, a commitment to development is enshrined in Articles 55 and 56 of the UN Charter. Pursuant to these Articles, the international community is called upon to facilitate the development of all nations and peoples. The WTO is not above the demands of the UN Charter. Developing countries such as Bangladesh therefore have a strong legal footing for an insistence that their right to development obliges the bending of WTO agreements in their favour, or, with regard to the
mandatory/discretionary distinction, to afford them the benefit of the discretionary side of the law. To say this is effectively to assert that a ‘discretionary law’ has to be operative in the WTO legal scheme . Before proceeding to defend this assertion, it is appropriate to investigate the plight of the ‘right to development’ concept.
In its General Comment No. 3, the Committee on Economic, Social and Cultural Rights (CESCR) has stated that international co-operation for development, and thus, the pursuit of economic, social and cultural rights, is an obligation placed upon all states:
The Committee wishes to emphasize that in accordance with Articles 55 and 56 of the Charter of the United Nations, with well-established principles of international law, and with the provisions of the Covenant itself, international cooperation for development and thus for the realization of economic, social and cultural rights is an obligation of all States. It is particularly incumbent upon those States which are in а position to assist others in this regard.254
Without doubt, however, the most relevant and significant text is the Declaration on the Right to Development, adopted by the UN General Assembly (GA) in 1986 by а vote of 146 to 1 (United States). There were eight abstentions (Denmark, Federal Republic of
254 The United Nations Committee on Economic, Social and Cultural Rights, 2003 -2004, ‘The nature of
Germany, Finland, Iceland, Israel, Japan, Sweden and the UK). However, a number of industrialised countries voted positively (Australia, Belgium, Canada, France and
Holland). There is therefore a possibility that, coupled with opinio juris (a belief by states that a practice is legally obligatory), this GA Declaration created a binding customary law. Some commentators demur, among them Brownlie,255 noting that it seems doubtful that a sufficient number of states have fully accepted the legality of the right to
development for it to be considered opinio juris. One can nonetheless posit that the 1986 Declaration tends towards universal acceptance.
It is, unfortunately, also true that this Declaration is a shambolic conflation of many issues, and fails to be clear on what ‘development’ in this context means, what its relationship is to human rights, who holds the right to development, and on whom this right imposes duties. Is the right in question a ‘people’s right’ analogous to the theme of
fraternité of the French Revolution? Probably not, for its Article 1 speaks of ‘every
human person and all peoples’, thus implying the individual dimension as well as the collective dimension. Article 2, paragraph 3, adds to the confusion by introducing a third right-holder, ‘the state’.
Not surprisingly, this confusion provoked some commentators into denying the very existence of this nebulous right. Even Bedjaoui, a fervent champion of the right to development, said: ‘A right which is not opposable by the possessor of the right against
the person from whom the right is due is not a right in the full legal sense.’256 But he does not stay with this obviously clear-headed observation. He proceeds to claim that the right to development is, by its nature, so incontrovertible that it should be regarded as
belonging to jus cogens.257 This is odd, for the recognised peremptory norms of international law prohibit heinous acts of malum in se such as genocide, racial discrimination and piracy. Bedjaoui makes no attempt to explain how ‘right to development’ might be inserted into the jus cogens framework.
The ‘third generation of rights’ theorists moved in to save the embattled concept ‘right to development’ as a human right. Thomas Pogge, a leading contributor to the theory, says that:
[t]he passive subject of the right to development can only be the international community as such. But as the international community has no means (organs, resources) of directly fulfilling its obligation under the right to development, it can only discharge them through a category of its members, that of the
‘developed’ states …258
This position ‘takes the bull by the horns’ by beginning to posit that the right at issue, and the duties under it, are, but should not be, administered solely by the developed states as duty holders. The ‘right to development’ is truly a human right in which the duty holders are ultimately all individuals. Arjun Sengupta argues that the duty holders are, as agreed in the Declaration on the Right to Development:
… individuals in the community, states at the national level, and states at the international level. National states have the responsibility to help realize the
256 Bedjaouie, M, 1992,‘The right to development’, in Bedjaouie (ed.), International Law: Achievements and Prospects, UNESCO and Martinus Nijhoff, p. 1182.
257 Ibid. p.1183.
258 Pogge, Thomas, ‘The International significance of Human Rights’, vol. 4 no. 45, Journal of Ethics,
process of development through appropriate development policies. Other states and international agencies have the obligation to cooperate with the national states to facilitate the realization of the process of development.259
Certainly, this is the right upon which the 2002 Delhi Declaration260 rested. It enunciated the precautionary principle and the common but differentiated responsibilities principle that forms the core of a workable definition of this ‘right’ concept:
… sustainable development can be considered as a global development model that entails linkages between economic, social and environmental policies that will allow future generations to continue to develop.261
According to Cordonier Segger et al., this definition has the fulsome approval of the most active and informed theorists in the area.262 Yet discomfort lingers in the present writer’s mind. It is easy enough to concede that a very significant success of the ‘right to
development’ movement is that it successfully altered the theoretical terrain of human rights with its elaboration of the interconnecting issues that amount to a ‘new’ human right, that is, to the right to development. But it is difficult to forget that the ‘right to development’ had its inception as a morally fully justifiable claim by developing
countries against the developed ones. This sits uneasily with the core principles of human rights (which ipso facto are individual rights), because an individual right to development does not lead to a claim for assistance. What good, then, can stem from ‘right of
259 Sengupta, Arjun, 2006, ‘The Human Right to Development’, in Development as a Human Right: Legal,
Political, and Economic Dimensions, Andreassen, Bard A and Marks, Stephen P (eds.), Harvard University Press, p. 9.
260 New Delhi Declaration of Principles of International Law Relating to Sustainable Development, UN
Doc. A/57/329, 31 of August, 2002.
261 Ibid. preamble, s. 13.
262
Cordonier Segger, Marie-Claire,Khalfan, Gehring AM, Toering, M., ‘Prospects for Principles of International Sustainable Development Law after the WSSD: Common but Differentiated Responsibilities, Precaution and Participation’, vol.12, no. 1, Review of European Community & International
development’ that cannot be claimed under the heads ‘economic rights’, ‘social rights’, ‘political rights’?
Perhaps a theory to demonstrate that there is a human right called ‘right to development’ is unnecessary. After all, Articles 55 and 56 of the UN Charter call upon the international community to facilitate the development of all nations and peoples. This is so whether or not there is a sound theory to demonstrate the existence, or non-existence, of a right called ‘right to development’, or whether or not that right is a human right. Therefore, when an issue is before the WTO that has to do with a countries’ development, the WTO is under Charter obligation to facilitate that development. The Charter does not permit it to do anything contrary to that. So, failing to give a developing country the benefit of discretionary law, the WTO fails to be UN Charter observant. The WTO could easily become so observant by adding a new standard of behaviour to its existing GATT- derived ones (MFN treatment, NT, transparency in tariff, etc. protection). That standard could simply be ‘observance of Articles 55 and 56 of the UN Charter’.