UN Declaration on the Right to Development - Coursework Example

Name: Course: Tutor: Date: UN Declaration on the Right to Development On 4 December 1986, the United Nations (UN) General Assembly proclaimed the UN Declaration on the Right to Development (Resolution 41/128), which stipulates that “The right to development is 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 realized” (UN General Assembly). This paper aims to critically evaluate this proclamation in terms of what came into being and what happens as a result of the Declaration. Essentially, the Declaration highlights the content and obligations of the right to development. The Declaration came as a clarification of the right to development. The right to development per se was seen as an unclear demarcation of the legal subjects and duty bearers of the right. Critics of the right to development felt that such a right rushed obfuscate individual rights, and that the right to development could then create a right of (nation) states which is not necessarily conducive to human rights (Aguirre 113). The ambiguity in the right to development could be noted, for instance, in part two of the 2nd Article of the African Charter, which states: “States shall have the duty, individually, or collectively, to ensure the exercise of the right to development” (Aguirre 78). This means that the rights of individuals as pertains to development may be left at the mercy of states. The situation was further worsened by the fact that the UN in its 1979 resolution proclaimed that “the right to development is a human right and the equality of opportunity for development is as much a prerogative of nations as individuals of nations. Worse still, the situation was compounded by the confusion between “states” and “nations” that is inherent in the very name of the United Nations. The statement therefore transformed development from a human into a state right, specifically meant for the poor and developing nations (Kaldor et al. 65). The UN Declaration on the Right to Development thus directly assesses these concerns in outlining its subjects and duty bearers as regards development. Based on the analysis above, this paper will address the contents of the Declaration, its impacts, and the changes that have arisen in terms of development as a result of the proclamation. In doing this, the paper will also address the distinctions that exist between the right to development as a human right and “rights based approach' to development.” Critical analysis of the Declaration on the Right to Development The Declaration on the Right to Development insists that the individual, not the state, remains its central subject. This is clearly highlighted in part 1 of Article 2 of the Declaration, which states: “The human person is the central subject of development and should be the active participant and beneficiary of the right to development” (UN General Assembly). Despite the insistence by the UN that the Declaration is pegged on the rights of the individual, there is still some recognition of the state, which directly affects how individuals can enjoy the right to development. This is evident in part 2 of Article 1 of the Declaration that states, “The human right to development also implies the full realization of the right of peoples to self-determination, which includes, subject to the relevant provisions of both International Covenants on Human Rights, the exercise of their inalienable right to full sovereignty over all their natural wealth and resources.” The fact that the Declaration recognizes the realization of people’s rights to self determination and their right to full sovereignty over their resources and wealth means that their development is in a certain way determined by how the states govern themselves and whether they are sovereign or not. It is inarguable that the independence of states determines the rights of individual citizens in those states. This was the subject of discussion between states over the right to development. The right to development subjected the international legal order to democratic control in favour of the majority (nations) that are the developing states (Kaldor et al. 65). The most developed nations argued that the right to development should not rejuvenate the New International Economic Order (proposal calls for reflective and significant changes in economic arrangements developed during the post-war years (Mukherjee and Mukherjee 9-10)). In contrast, developing states recognized the failure of the years of decolonization and development strategies. These nations were of the opinion that the global economic order excluded them from its benefits. In spite of the resistance from the developed world, the drive for the New International Economic Order Greatly shaped the Declaration on the Right to Development. Is the Declaration really attainable? As argued by Kaldor and others, even though the UN Declaration on the Right to Development puts more emphasis on the individual level, it also spells out that there are many duty-bearers in relation to human rights (65). But since the Declaration has little legal status and little implementable details, most of its details remain largely visible on paper but not in real application. To the present day, independent experts, UN task forces and open-ended working groups are making feeble attempts to clarify issues on the right to development. Evidently, most, if not all of the articles of the Declaration on the Right to Development highlight the role of the state in facilitating the right to development. For instance, part 3 of Article 2 of the Declaration states that “States have the right and the duty to formulate appropriate national development policies that aim at the constant improvement of the well-being of the entire population and of all individuals, on the basis of their active, free and meaningful participation in development and in the fair distribution of the benefits resulting therefrom” (UN General Assembly). Taking this perspective, it is obvious that where state fails to formulate appropriate national development polices to foster the constant improvement of the conditions of its population, the populace have no say as regards their development. Thus, the assertion that “development is an inalienable human right” is only a mere statement as development can only be realized in situations where states are able to provide ample environments for their citizens to realize the development they require. Perhaps the statement “development is an inalienable human right” would be achievable if the objectives of the New International Economic Order were achieved. According to Chowdhury, Denters and de Waart, the establishment of the New International Economic Order would be an important step towards the realization of the right to development. The authors give three reasons for their argument. First is that the intended New International Economic Order seeks to offer developing countries access to resources such as finance, capital and technical knowhow. Second, the proposed dispensation aims at making pertinent structural changes to facilitate realizable economic and cultural development. Third, the proposed New International Economic Order lays emphasis on the decision-making power of states that represent majority of the people (Chowdhury, Denters and de Waart 140). The points highlighted by Chowdhury, Denters and de Waart emphasize the earlier argument that individuals on their own cannot enjoy the right to development as they exist within the confines of states, whose laws generally dictate the kind of rights they can enjoy with reference to development. Further, there is an indication that only if states are well prepared to ensure that their citizens enjoy the right to development can the citizens be said to actually have an “inalienable right to development. From the discussion above, it is notable that the right to development is only inalienable in states that have the capacity to facilitate development, have cultural, economic and political structures that foster development, and (the majority of states) have the power to make decisions that influence their people and other states. The next section discusses the practical implications of the Declaration by evaluating the weight of the statement “development is an inalienable human right.” Development as inalienable right The fact that “development is an inalienable human right” means that the right cannot be bargained away. The Declaration on the Right to Development also establishes the unity of rights by referring to development in which all human rights and fundamental freedoms can be fully realized. Further, the Declaration underscores the entitlement of all persons and peoples to partake in and enjoy the process of development. Even though the word process is not expressly mentioned in Article 1 paragraph 1, the definition of development as a process can be derived from the preamble to the Declaration, which characterises development as a “comprehensive economic, social, cultural, and political process, which aims at the constant improvement of the well-being of the entire population and of all individuals, on the basis of their active, free and meaningful participation in development and in the fair use and distribution of benefits therefrom.” This specification implies, for instance, that in a condition where there is a sharp increase in GDP or rapid industrialisation or a significant expansion of exports with as notable increase in capital flows does not in itself indicate development (Centre for Development and Human Rights 49). The above argument means that if the mentioned outcomes (which are indicative of a country’s development) are not accompanied with an improvement in the welfare of all people, and if people do not meaningfully get involved in the processes or if the distribution of gains is iniquitous and unjust, they will not be considered as development. The Centre for Development and Human Rights also notes that of all the various processes of development, only those in which all human rights and fundamental freedoms are capable of being realized can be regarded as objects of claim as human rights (49). The definition of development as regards development is thus relative. If development is considered only in terms of how people partake in the building enhancing processes and the other aspects of development, such as economic or political, then significant population of the world will be considered to be undergoing development – at least from a human right rights perspective. To expound, there are many unemployed people even in the developed nations such as the United States. This means that such people are not actively involved in the distribution of the gains of development in their countries, and are therefore not “enjoying the “right to development.” Meaning of rights According to the Centre for Development and Human Rights, to have a right implies “to have a claim to something of value on other people, institutions, and the state or the international community, which in turn have the obligation of providing or helping to provide something of value” (49). Talwar defines human rights as the concept of human beings as having universal rights, or status in spite of their legal jurisdiction, and in the same magnitude other localizing factors, such as nationality and ethnicity. However, Talwar also notes that no formal concept of human rights has been accepted universally (1). This means that there is no unifying factor as to what should be regarded a human right in all countries of the world. This is probably one of the reasons why the Declaration on the Right to Development has contents that are largely not implementable and has little legal status as it was mentioned earlier in this paper. Recognising a right as a human right entails more than merely mentioning it, it means raising status of that right to one with universal appropriateness and articulating a norm of action for the people, the state and the international community on which the particular claim is made. Acknowledgement of the right confers on the enforcement of that right a first priority claim to national and international resources and capabilities, and additionally compels the state and the international community, as well as other agencies within the society, including individuals, to implement that right (Centre for Development and Human Rights 50). This description does not fit the Declaration on the Right to Development, as no agency or individual is expressly obligated to implement it as an “inalienable human right.” The connection between human rights, development and democracy has never been emphatically addressed as it is in the Final Declaration of the Vienna Conference. Nevertheless, the Vienna Declaration does not contain a definition of the term “development,” or of what tangible measures need to be considered to put the right to development into practice. The linkage between human rights and development remains extremely intricate and controversial, and is by no means fully handled simply by proclaiming the right to development. Currently, there exists a broad agreement that the attainment of all human rights is major goal of development cooperation. In the purview of the persistent crisis in development, there is a burning question that must be answered, which is whether development cooperation still has any legitimate role beyond the attainment of human rights. If the response to this problem is in the negative, then the concept of development is in tandem with that of human rights. That means that the right to human development is therefore equal to the right of all people to the realization of their human rights (Baehr 2). Applicability of the Declaration on the Right to Development The World Conference explicitly recognized the right to development as proclaimed in the Declaration on the Right to Development, as a universal and inalienable right and an integral part of the fundamental human rights. With reference to the enforcement of the right to development, the Vienna Declaration regards the most significant priorities to be: the creation of reasonable international economic relations; proper steps for the protection of the environment; lessening of the external debts of the developing countries; and measures to combat extreme poverty and social marginalization (Baehr 2). The Vienna Declaration can therefore be said to appreciate the fact that development does not relate to individuals per se, but also applies to states, as they are the ones responsible for creation of international economic relations, protection of the environment within which their citizens and other investors operate, external debts, and combating other social problems such as poverty and unemployment. Brems’ work seems to agree with Baehr’s argument as the author notes that those who argue that the right to development needs action rather than discussion in its precise scope have a point. Brems says this because an alternative approach to the elucidation of the content of the right to development is via putting in place and activation of an international control mechanism. Control mechanisms are among the best extant methods that can be applied to improve the effective implementation of human rights (Brems 474). Therefore, inasmuch as clarification through additional norm making is essential, the setting up of an effective regulation mechanism should be given more priority. As it was discussed earlier in this paper, lack of legal status for enforcement makes the Declaration on the Right to Development a mere statement on paper, with little details that can actually be implemented. It is quite interesting that even as the right to development is perceived to be related to the development of countries, some of the most developed countries in the world did not vote in favour of the Declaration. For instance, the United States voted against it, yet it is among the most developed nations in the world. In addition, seven other states: Germany, Denmark, Japan, Israel, Iceland, the United Kingdom and Finland abstained from the poll process. Later, in the Rio Conference on Environment and Development in 1992, Canada and the European community managed to incorporate the right to development in Principle 3 of the Rio Declaration (which is non-binding) against opposition from the United States (Malanczuk and Akehurst 239). If indeed there is a right to development as stated by the Declaration on the Right to Development, then one wonders why most developed countries have been hesitant to associate themselves with it. In fact, the United States, in its defence of the decision to unwillingly join the Rio Declaration stated that “The United States does not, by joining the consensus on the Rio Declaration, change its long-standing opposition to the so-cold right to development. Development is a not a right. On the contrary, it is a goal we all hold, which depends for its realization in large part on the promotion and protection of the human rights set out in the Universal Declaration of Human Rights” (Malanczuk and Akehurst 239). Therefore, as it was initially argued, the term “development” is multifaceted, and to say that it is a human right requires more than merely stating it on paper. For instance, the United States’ interpretation of development seems to be pegged on issues such as economic growth, improvement of welfare and so forth, and not necessarily the requirement that individuals should partake in the distribution of the gains resulting from such improvements. The “right to development” thus seems to be a subject of contention between developed and developing states. Whereas developed states seems to have been reluctant to submit to the contents of the Declaration on the Right to Development, Malanczuk and Akehurst argue that developing countries achieved a victory of trade-offs at the 1993 Vienna Human Rights Conference, in which the Declaration corroborates that the right to development is a “universal and inalienable human right and an integral part of fundamental human rights (239). The Vienna Declaration also contains the warning that whereas development promotes the enjoyment of all human rights, lack of development may not be used a disguise to justify the abridgement of internationally recognized human rights. In essence therefore, development is viewed as a facet that incorporates all the indicators of improvement in the welfare of a state. This is why there is a caveat that developed countries should not take advantage of the plight of poor and developing to purport to deny them their rights or opportunities for development. But it is still not clear whether the right to development is indeed an inalienable human right. Distinctions between the right to develop as a human right and a 'rights based approach' to development As noted above, the right to development refers to a combination of inter-state obligations, as well as collective and individual entitlements based on existing social and economic rights. The right to develop as a human right therefore refers to the facets established under the UN Charter, which defines a clear cut relationship between human rights and economic and social development. Development is listed as one of the UN objectives and the Charter explicitly requires states to promote “higher standards of living, full employment, and conditions of economic and social progress and development” (Young 67). The UN Charter also stipulates that states should have universal respect for and guarantee human rights and essential freedoms for all. However, as it was note in the previous discussion, the right to development is not guaranteed as a human right as not all sates are in agreement with the requirements of the United Nations. Further, as it was noted, the right, as proclaimed in the Declaration on the Right to Development, has little implantable detail. Essentially, states are not obligated to enforce the right to development as a human right. On the other hand, a 'rights based approach' to development” is “a framework based on the norms and standards contained in a number of international treaties and declarations” (Nowosad 3). This recognizes the point that the right to development belongs both to individuals and the peoples collectively. This places and obligation to the international community, for instance, to promote fair development policies – a phenomenon that should be achieved through states. The upside of a human rights based approach to development is that it is based on both moral consensus and legal obligation. The concerned holders of duty and beneficiaries and policy makers are empowered to evaluate and initiative’s impact as regards people’s enhanced dignity. Because this initiative is home-grown and centred on people’s development, it cannot be reversed by the withdrawal of the external charity. However, the challenge to this process is that it should be not only process oriented but should focus on the results in order to meet the set objectives (Nowosad 3). Addressing guests and colleagues at the Office of the High Commissioner for Human Rights, Nowosad noted that for far too long, human rights were taken for granted and regarded a luxury. In view of this, Nowosad, posed a question that has long been voiced during UN conferences, which is “what human rights or development should come first” (2). Nowosad also highlights the details of one informal meeting between the High Commissioner for Human Rights and a member’s state. The High Commissioner states that in addressing the issue of human rights, a state could draw from the experiences of her neighbours. The big question thus was whether the state should focus on the human rights aspect of her neighbours or consider development as a priority. The outcome of this meeting was that a rights based a viewpoint would help states to not only answer this question, but also see the importance of an array of human rights that can support the meeting of one’s basic survival needs. The difference between the right to develop as a human right and a 'rights based approach' to development is the scope of two the two phrases. Whereas the right to develop focus on the participation of individuals and peoples collectively in the attainment of development, the ‘rights based approach’ to development focuses on linking all the elements that are responsible for achieving development. For instance, in recognition of the right to develop, the Rio Declaration and Agenda 21 refers to sustainable development as containing both substantive and procedural elements, such as “sustainable utilization of natural resources; integration of environmental protection and economic development; pursuit of both intergenerational and intra-generational equity in the allocation of resources” (Young 67). To achieve the objectives of the rights based approach to development, the following key elements are explored: (1) express linkage to rights, (2) non-discrimination, and attention to vulnerable groups, (3) participation, (4) empowerment, and (5) accountability (Nowosad 3). This approach is therefore wide in scope and can ensure that development is attained while at the same time adhering to human rights, as opposed to merely stating that the right to develop is a human right. Developing a human rights based approach to development entails a number of processes, which ensure that development occurs within limits acceptable universally as regards human rights. This involves internalizing human rights values and principles organisationally, nationally and individually. If human rights recognised at all these levels, they become entrenched at all levels of development and hence, development is realised in line with recognition of human rights as detailed by the UN and all other concerned agencies. Another step is to develop a human rights–sensitive organisation culture. If organisations carry out their operations in mind, development is likely to occur along this line as all individuals become associated with a human rights-sensitive culture (UNDP (a) 6). Developing a human rights based approach to development also entails strengthening internal and national human rights capacities (UNDP (a) 6). This means promoting human rights at all levels with the state. If individual appreciate the importance of human rights at the grassroots level, it becomes easier for the state to respect human rights at the national level as it is the populace that determines the operations of the states. If people understand their rights, they appreciate the essence of development with human rights, and even criticise the state if these tenets are not met. The final point as regards the human rights based approach to development is that the process involves articulating national and institutional will in procedures and demonstrating commitment in programming, for the enhancement, protection and realisation of human rights (UNDP (a) 6). This calls for states to actually put in place measures that promote human rights and protect them. It is not enough to merely assume that since development is a human right, states will strive to ensure that their citizens have the right to development. But it is worthwhile to show the significance of adhering to human rights and doing so can promote development. Importantly the approach can be viewed to consider development as a goal that can be attained while ensuring that human rights values are adhered to, and thus a human right on its own. Significance of the human rights based approach to development The UNDP has been pursuing a human rights based approach to development in a variety of settings across the world. For instance, in the Asia-Pacific region there have been human rights based initiatives on land rights in Bangladesh, there have been strategies for conflict prevention and resolution in Cambodia, and capacity building for claimants of rights in the Pacific Island countries. There have also been initiatives for access to food, information and primary education in India, and to ensure sustainable livelihoods and access to justice in Indonesia. Such efforts have also aimed to ensure access to sustainable water in Laos. The same case has been applied in Africa, where there are rights based approaches to development in countries such as Sudan, Namibia, Kenya and Mozambique. These programmes are spread a cross a range of issues including reduction of poverty, clearing of landmines, implementing women’s rights, and fostering the right to development (UNDP (b) 12). Across the examples above, adopting a human rights based approach to development makes it clear that human rights must be epitomized through all such programmes. Concerns about human rights are included as a result of the programmes in much the same way as the process that was applied to obtain the result (UNDP (b) 12). This again emphasises the fact that human rights approaches to development focus on processes and results rather than mere proclamations or declarations as is the case with the ambiguity that surrounds the right to development. Taken on its own, the phrase “right to development” implies that individuals are entitled to development and that development can occur simply as a matter of good practice. But going by what happens in states around the world, asserting that “good development practice can occur in all states” would be an overstatement. Thus, instead of vaguely presuming that the right to development leads to good development practice, the rights based approach takes a different direction that influences the process of planning for development in a number of ways. First is that the process compels programme staff and policy makers to reflect upon the why and how of their actions. This goes beyond thinking about what should be done. Second, the world wide legitimacy of human rights provides an objective reasonable starting point for dialogue and discussions with the populace, the government and external partners. Third, the process helps policy makers and citizens to recognise the power influences of the development process. The fourth point is that during the process, the accountability structure that is pursued based on human rights facilitates development of quantitative platforms and indicators for assessing the progress in development planning and delivery. This also influences institutions to resolve complaints and mediate in the conflicts that arise during the development process both at the grassroots level and at the national level. The benefits of the human rights based approach to development can be noted from the literature reviewed so far in this paper. Jones and Stokke argue that these benefits arise because the approach draws from a broad range of intellectual idea and policy frameworks. Importantly, it is not merely a supplementary issue to development but rather an essential shift in values (Jones and Stokke 9). The authors quote the work of Uvin, who noted that “the rights based approach to development changes the nature of the game not because it edicts rights as fixed properties or legal certainties or because it somehow leads us to discover brand-new actions or services we would never have thought of beforehand. Rather, there are two basic ways in which the rights based approach to development differs from its predecessors, and they permeate all we can do when we “do” development” (Jones and Stokke 9). The two basic ways are illustrated as follows: to start with, a rights based approach to development creates claims and not charity. It can be noted, for instance, that the end of development aid differs; hence, the entire process of thinking about it, of defining the nature of problem at hand, changes depending on the issue at hand – leading to the emergence of a new vision. The second point is that a rights based approach to development influences the way development actions are implemented. It is inarguable that the means and processes are different even if the goals to be attained remain the same (Uvi 129 [cited by Jones and Stokke 9]). Thus, instead of merely having development in mind as a human right, the human rights based approach to development impacts on national planning priorities by having the capacity to redirect the resources and to act against policies that undermine the realization of economic, cultural and social rights. This makes it makes it a phenomenon that is central to development processes. Conclusion Even through the UN Declaration on the Right to Development states that individuals have entitled to development as an inalienable human right, this remains a mere proclamation as the Declaration has little legal status and little implementable detail. In reality, development can be realized when states actually foster and promote the development process. Whether the right to development is a human right also remains unclear as many developed countries of the world have been reluctant to associate themselves with the Declaration. In fact the United States argued that development is not a right but a goal that has to be achieved. It is notable that merely stating that development is a human right does not guarantee that states will strive to ensure that their citizens have the right to development. A human rights based approach to development takes this into consideration and seeks to link human rights and development. Human rights approaches to development focus on processes and results rather than mere proclamations or declarations as is the case with the ambiguity that surrounds the right to development. Works Cited Aguirre, Daniel. The Human Right to Development in a Globalized World. London: Ashgate Publishing, Ltd., 2008. Baehr, Peter R. (ed).Human Rights in Developing Countries. Leiden: Martinus Nijhoff Publishers, 1994. Brems, Eva. Human Rights: Universality and Diversity. Leiden: Martinus Nijhoff Publishers, 2001. Centre for Development and Human Rights. The Right to Development: A Primer. London: SAGE, 2004. Chowdhury, Subrata Roy; Denters, Erik and de Waart, P. J. I. M. The Right to Development in International Law. Leiden: Martinus Nijhoff Publishers, 1992. Jones, Peris and Stokke, Kristian. Democratising Development: The Politics of Socio-Economic Rights in South Africa. Leiden: Martinus Nijhoff Publishers, 2005. Kaldor, Mary; Anheier, Helmut K.; Glasius, Marlies and Albrow, Martin. Global Civil Society 2006/7. London: Sage, 2006. Malanczuk, Peter and Akehurst, Michael Barton. Akehurst's Modern Introduction to International Law (4th edition). New York: Routledge, 1997. Mukherjee, Sakti and Mukherjee, Indrani. A New International Economic Order. Paris: Mittal Publications, 1983. Nowosad, Orest. “A Human Rights Based Approach to Development: Strategies and Challenges.” Office of the High Commissioner for Human Rights. Talwar, Prakash. Human Rights. New Delhi: Gyan Books, 2006. UN General Assembly. 4 Dec. 1986.5 Nov. 2010. “Declaration on the Right to Development.” . UNDP (a). Applying a Human Rights-Based Approach to Development Cooperation and programming: A UNDP Capacity Development Resource. September 2006. UNDP (b). Indicators for Human Rights Based Approaches to Development in UNDP Programming: A Users’ Guide. March 2006. Young, Tomme. Covering ABS: Addressing the Need for Sectoral, Geographical, Legal, and International Integration. Ne York: IUCN, 2009. 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