Developing a right to development

by Joseph Markus

International law is a distant and sometimes obscure professional and intellectual discipline.

But it has experienced renewed interest in recent times due largely to the utopian potential that many can perceive within some of its most obviously progressive innovations.

Eleanor Roosevelt and the Universal Declaration of Human Rights

The ideas of international human rights law (introduced to the mainstream following the Second World War) and international humanitarian law (a much older proposal to limit the harm caused by war) have been reclaimed by a new and comparatively young audience to argue, amongst other things, about the illegality of UK/US foreign policy and the standards of living in the Occupied Palestinian Territories.

For some, human rights are seen as a key to justice. For these individuals, a community that is able to address the human rights of each of its members is one that is willing to offer them, in the fullest sense, dignity and the good life.

The reasons why human rights are becoming ever more popular as a subject of study and of a career are potentially myriad. Perhaps one of the more significant reasons, at least that I am able to think of, relates to the sense of purpose associated with a human rights job: they are an institution that is designed to improve and enhance. There are, of course, a number of flaws and generalisations in this view of human rights—and I’m ignoring for the time being the dark side of humanitarianism, and focussing strictly on the light—but the motivation of those who advocate for human rights generally is not in question.

Another reason could be that they are, formally at least, a type of law. To suggest that ‘the law’ requires a particular social change is to naturalise this change. Social change through law, then, becomes less a contested political process but a formalised mechanism of axiomatic legal reasoning. This, to many, could be very appealing, particularly when you are dealing with what you perceive to be fundamental matters of human dignity, things which really should be beyond politics (at least in your view). It opens up a space for a form of elitism, governed predominantly by legal professionals and their paymasters. This is not always a bad thing.

As a form of law human rights are binding. They bind individual nation-states. This is another reason for their appeal: they allow claimants to effectively force a certain socio-political outcome, though the extent to which this is effective will depend on the established enforcement mechanisms (if any). With an institution like the European Court of Human Rights, enforcement is backed up by the Committee of Ministers and the potential for further monetary sanctions imposed by the Court. In other contexts, such as the International Covenant of Civil and Political Rights, an adverse finding by the Human Rights Committee will not necessarily or even usually result in any further sanctions or enforcement measures and, as a matter of law, the ‘views’ of that Committee are not legally-binding.

International development, similarly, has seen an enormous rise in interest. There is an extensive literature on the economics and morality of development, and there is also, now, a separate move towards linking development with human rights.

My question is whether there should not also be a human right to development.

Skirting some of the thornier problems of whether a collectivity of people can hold a right (probably), and whether such a right might not also be harmful (another issue for another time), the ultimate question seems to be whether developed nations have an obligation to assist developing nations.

There are a number of arguments that can be made to support the idea that the wealth of the West came at the expense and hard-work of colonised countries. While these two categories may not exactly fit the developed/developing dichotomy, they do go some of the way. Additionally there is the proposition that the ‘have-lots’ should generally help the ‘have-nots’.

The context against which any such claim is made is also significant. Back in the 1960s and 1970s a radical new movement emerged in the international arena seeking a New International Economic Order. This took place in the context of the gradual end of formal colonialism. And while the new economic order never did come about, perhaps now, with climate in the background, we might reach a similar critical momentum.

With natural resources slowly dwindling and competition over those resources ramping up (see the present Falkland Islands debacle on this), it seems fair to say that the less economically and politically powerful countries—typically speaking, the developing countries—will be those who will not achieve a level of development equal to that of the modern day West. Even on an optimistic view, the West has no incentive to forego the benefits of its status and power to help the ‘have-nots’. This is why the idea of a legal obligation, requiring development assistance, might once again start to gain traction.

1986 was the year in which the United Nations General Assembly passed the Declaration on the Right to Development. That resolution was passed almost unanimously: only 8 countries abstained and only one voted against (you can guess which one: the United States). With the ever-more-compelling pull of the ideas and laws of human rights, perhaps, come 2015 and the end of MDG regime, we might be at a point where the global community is ready to re-assess whether it wants a right to development.

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