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Developing Rights: The UN Declaration on the Right to Development

Published online by Cambridge University Press:  21 May 2009

R.N. Kiwanuka
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Extract

On 4 December 1986, the United Nations General Assembly adopted Resolution 41/128 which contained the Declaration on the Right to Development. The Declaration was a further attempt by the United Nations to develop a normative regime to deal with one of the most pressing issues of our day – underdevelopment. It was a logical culmination of a movement that started with the Charter of the United Nations and the Universal Declaration of Human Rights and continued through the period of the anti-colonial struggle. Once the right to self-determination was no longer challengeable as a political entitlement, attention shifted to its socio-economic corollary. In 1969, the UN General Assembly adopted the Declaration on Social Progress and Development. The different UN Development Decades were also meant to address the problems of underdevelopment and the ever-increasing gulf between developed and developing countries. In 1974, a major attempt was launched by the UN General Assembly to change certain basic aspects of international law in the hope that this would lead to a new international economic order. Those efforts are yet to be substantially rewarded.

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Articles
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Netherlands International Law Review , Volume 35 , Issue 3 , December 1988 , pp. 257 - 272
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Copyright © T.M.C. Asser Press 1988

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References

1. UNGA Res. 41/128, 4 December 1986. The Declaration was passed by 146 votes to 1, with 8 abstentions (Against: the United States; Abstaining: Denmark, Finland, the Federal Republic of Germany, Iceland, Israel, Japan, Sweden and the United Kingdom).

2. UNGA Res. 2542(XXIV).

3. See, e.g., UNGA Res. 2626(XXV), 24 October 1970.

4. Declaration on the Establishment of a New International Economic Order, UNGA Res. 3201 (S-VI), 29 UNGAOR Supp. (No.1) at 3, UN Doc. A/9559 (1974); Programme of Action on the Establishment of a New International Economic Order, UNGA Res. 3202 (S-VI), 29 UNGAOR Supp. (No.1) at 3, UN Doc. A/9559 (1974); Charter of Economic Rights and Duties of States, UNGA Res. 3281, 29 UNGAOR Supp. (No. 31) at 50, UN Doc. A/9631 (1974).

5. M'Baye, K., ‘Le droit au developpement comme un droit de l'homme’, 5 Revue des droits de l'homme (1972) p. 505Google Scholar; and ‘The Emergence of the “Right to Development” as a Human Right in the Context of a New International Economic Order’, a paper submitted to the UNESCO Meeting of Experts on Human Rights, Human Needs, and the Establishment of a New International Economic Order, UNESCO Doc. 55–78/CONF.630/8 (1978).

6. Vasak, K., ‘A 30-Year Struggle’, Unesco Courier (11 1977) p. 29Google Scholar. See further, Marks, S.P., ‘Emerging Human Rights: A New Generation for the 1980s?’, 33 Rutgers LR (1981) p. 435Google Scholar. Cf., Alston, P., ‘Third Generation of Solidarity Rights: Progressive Development or Obfuscation of International Human Rights Law?’, 29 NILR (1982) p. 307CrossRefGoogle Scholar.

7. Kanyeihamba, G.W., ‘Human Rights and Development with Special Reference to Africa’, in Snyder, F. and Slinn, P., eds., International Law of Development: Comparative Perspectives (1987) p. 221 at p. 225Google Scholar.

8. CHR/Res/4 (XXXIII), para.4

9. The International Dimensions of the Right to Development as a Human Right, Report of the Secretary-General, UN Doc. E/CN.4/1334 (1979).

10. See further, de Vey Mestdagh, K., ‘The Right to Development’, 28 NILR (1981) p. 30 at p. 32CrossRefGoogle Scholar.

11. UNGA Res. 34/46 (1978).

12. See, e.g., The Regional and National Dimensions of the Right to Development as a Human Right, Study by the Secretary-General, E/CN.4/1421, 13 November 1980.

13. See, e.g., International Commission of Jurists, ‘Development, Human Rights and the Rule of Law; The Right to Development: Its Scope, Content and Implementation; a paper submitted to the Working Group of Experts of the UN Commission on Human Rights, E/CN.4/AC34/WP.10, November 1981; International Commission of Jurists, Human Rights and Development: Report of a Seminar on Human Rights and Their Promotion in the Carribean (1978); International Commission of Jurists, Development, Human Rights and the Rule of Law (1981); International Commission of Jurists and the Consumers' Association of Penang, Rural Development and Human Rights in South-East Asia (1982)Google Scholar.

14. Its members were drawn from: Algeria, Cuba, Ethiopia, France, India, Iraq, the Netherlands, Panama, Peru, Poland, Senegal, Syria, the USA, the USSR and Yugoslavia: E/CN.4/1983/11 Annex I, p.1.

15. ECOSOC Decision 1983/171, 23 July 1983.

16. UNGA Res. 38/170, 29 February 1984.

17. UNGA Doc. A/A/40/100/Add/1, p. 72, para. 107, 27 September 1985.

18. Ibid. The mandate was renewed in 1987 by the Commission and later by ECOSOC. See Official Records of the Economic and Social Council, 1986, 1986 Supp. No. 2 (E/1986/22), Chap. 11; ECOSOC Doc. E/1986/95, 22 May 1986, p. 25. The Working Group met again from 23 to 27 January 1988 in Geneva. See 12 Human Rights Internet Reporter (1988) no. 3, p. 14Google Scholar.

19. CHR Decision 1986/133.

20. UNGA Official Records, 41 Sess. Supp. No. 3 (A/41/3), Report of the ECOSOC 1986.

21. Some delegations felt that the matter properly belonged to the Second Committee. See, e.g., A/C.3/41/SR.50 p. 10 para.40.

22. It was in 1973 that the General Assembly in Res. 3136 (XXVIII) first decided to include an item, under that heading, on the agenda of the 30th session. From 1975 onwards, different questions have been discussed and numerous resolutions passed under that particular agenda item heading. See further, UNGA Doc. A/41/100, 15 June 1986, p. 304.

23. See n.1, supra.

24. ‘In the wake of unprecedented horrors of war, fascism, and Stalinism, people everywhere sought ways to assure a future in which the rights of all human beings and nations would be respected. However, behind the world-wide support of the idea of promoting human rights there were vastly different conceptions, priorities, and ideological assumptions regarding the role of human rights in specific situations. These contradictory approaches to human rights questions were incorporated into the basic international documents’: Fagen, P.W., Prolegomena to a Bibliography: The Changing Language of Human Rights, Columbia University Center for the Study of Human Rights (1981, mimeo)Google Scholar. See further, Falk, R., ‘Social Justice’, in Falk, R., Kim, S.M. and Mendlovitz, S.H., eds., Toward a Just World Order (1982) p. 405 at p. 417Google Scholar.

25. See generally, Meron, T., ‘The Jurisprudence of Human Rights’, in Meron, T., ed., Human Rights in International Law: Legal and Policy Issues (1984) p. 69Google Scholar; Schnackenburg, R., The Moral Teaching of the New Testament (1982)Google Scholar; Marshall, L.H., The Challenge of New Testament Ethics (1956)Google Scholar.

26. Bedjaoui, M., ‘Are the World's Food Resources the Common Heritage of Mankind?’, 24 IJIL (1984) p. 459Google Scholar at p.463; Nawaz, T., ‘Equity and the New International Economic Order’, in Hossain, K., ed., Legal Aspects of the New International Economic Order (1980)Google Scholar.

27. See, e.g., Dupuy, R.J., ed., The Right to Development at the International Level (1980)Google Scholar; Espiell, H.G., ‘The Right to Development as a Human Right’, 16 Texas ILJ (1981) p. 189Google Scholar; Alston, P., ‘Conjuring up New Human Rights: a Proposal for Quality Control’, 78 AJIL (1984) p. 607CrossRefGoogle Scholar; Alston, P., ‘Human Rights and Development’, Human Rights Teaching (1982) p. 23Google Scholar; Bedjaoui, M., ‘The Right to Development and the Jus Cogens’, 2 Lesotho LR (1986) no. 2 p. 93Google Scholar; Brietzke, P.H., ‘Consorting with the Chameleon, or Realizing the Right to Development’, 15 California Western ILJ (1985) p. 560Google Scholar; J. Donnelly, ‘In Search of the Unicorn: the Jurisprudence and Politics of the Right to Development’, ibid., p. 473; Carty, A., ‘From Economic Self-Determination to the Right to Development: a Crisis in Legal Theory’, Third World Legal Studies (1984) p. 73Google Scholar; Ferguson, C.C., ‘Redressing Global Injustices: The Role of Law’, 33 Rutgers LR (1981) p. 409Google Scholar; Rich, R.Y., ‘The Right to Development as an Emerging Human Right’, 23 Virginia JIL (1983) p. 287Google Scholar; Verwey, W.D., ‘The New International Economic Order and the Realization of the Right to Development and Welfare’, 21 IJIL (1981) p. 1Google Scholar; Mahalu, C.R., ‘Human Rights and Development: an African Perspective’, 1 Leiden JIL (1988) p. 15CrossRefGoogle Scholar.

28. ECOSOC Doc. E/CN.4/1985/11 Annex II.

29. Para. 16, Preamble to the Declaration, n.1 supra.

30. A/C.3/41/SR.37.

31. Ibid., p. 12 para. 56.

32. Mr. Parashar (India), ibid., p.5, para. 18:

‘The right to development was also a human right, and one that could not be implemented without narrowing the gap between the standard of living of the developed and developing countries. For the poor, human rights remained an abstraction, and bread without freedom was as much an affront to human dignity as freedom without bread. Hence the establishment of a new international economic order was more important than wondering whether bread or freedom should come first. The draft declaration was a step in the right direction’.

33. In this connection, it is worth noting that the International Law Association, at its 62nd Conference in Seoul, 1986, proposed the following formulation as part of its Declaration on the Progressive Development of Principles of Public International Law Relating to a New International Economic Order:

‘6.1 The right to development is a principle of public international law in general and of human rights law in particular, and it is based on the right of self-determination of peoples.

6.2 By virtue of the right of development as a principle of human rights law, individuals and peoples are entitled to the results by the efforts of States, individually and collectively, to implement Articles 55 and 56 of the United Nations Charter in order to achieve a proper social and international order for the implementation of the human rights, set forth in the Universal Declaration of Human Rights, through a comprehensive economic, social, cultural and political process based upon their free and active participation.

6.3 The right to development as a principle of public international law implies the co-operation of States for the elaboration of civil, cultural, economic, political and social standards embodied in the Charter of the UN and the International Bill of Human Rights, based upon a common understanding of the generally recognized human rights and of the principles of public international law concerning friendly relations and co-operation among these States. These standards should be taken into account by States in the formulation, adoption and implementation of administrative, legislative policy and other measures for the realization of the right to development at both national and international levels’

Quoted in Kunig, P., ‘The “Inner Dimension” of the Right to Development: Considerations Concerning the Responsibility of Developing Countries’, 36 Law and State (1987) p. 46 at pp. 60–61Google Scholar.

34. Bedjaoui, M., ‘Some Unorthodox Reflections on the Right to Development’, in Snyder, and Slinn, , op.cit. n. 7, p. 87 at p. 90Google Scholar. Cf., Opperman, T., ‘A New International Economic Order and International Economic Law’, 33 Law and State (1986) p. 27 at p. 38Google Scholar: ‘Basically the collective right to development would thus seem to amount to nothing more than that recognition of the idea of international solidarity and co-operation… “in principle” – but for which a legal instrument of considerable value elsewhere, such as the idea of human rights ought not be wasted!’.

35. Mestdagh, , loc.cit. n. 10, p. 53Google Scholar :

‘[T]he present UN definition of the right to development, as a human right, should be abandoned. Where the right to development relates to individuals, it is an aggregate and therefore a multiplicity of human rights; apart from this the individual aspect is the only one component of the right to development … [T]he right of states to development cannot be described as a human right. The fact that human rights are violated if the right to development is not realized is a different matter. In a more general definition it would be better to refer to a right of individuals and states to development’. [Emphasis in the original]. See further, Ramcharan, B.G., ‘Peoples’ Rights and Minorities' Rights’, 56 Nordic JIL (1987) p. 9 at pp. 11–15Google Scholar.

36. Supra n.4.

37. UNGA Res. 3281, 29 UNGAOR Supp. (No. 31) at 50, UN Doc. A/9631 (1974). See further, Rozental, A., ‘Charter of Economic Rights and Duties of States and the New International Economic Order’, 16 Virginia JIL (1976) p. 309Google Scholar; Tiewul, S.A., ‘The United Nations Charter of Economic Rights and Duties of States’, 10 JIL and Econ. (1975) p. 645Google Scholar.

38. A/C.3/41/SR.36, p. 4, para. 16. See also statement by Mr. Schwandt (Federal Republic of Germany), A/C.3/41/SR.61, p. 30, para. 180.

39. E.g., Boisard, M., L'Islam et la morale Internationale (1979)Google Scholar; Denninger, E., ‘Über das Verhaeltnis von Menschenrechten zun Positiven Recht’, 37 Jurislenzeitung (1982) p. 225Google Scholar; Dudley, J., ‘Human Rights Practices in the Arab States; The Modern Impact of Shari'a Values’, 12 Georgia JI & Comp. L (1982) p. 55Google Scholar; Franck, T.M., Human Rights in Third World Perspective (1982)Google Scholar; Cheng, C., ‘Human Rights in Chinese History and Chinese Philosophy’, 1 Comp. Civilisations Rev. (1979) p. 1Google Scholar; Khushalani, Y., ‘Human Rights in Asia and Africa’, 4 HRLJ (1983) p. 403Google Scholar. Cf., Tesón, F., ‘International Human Rights and Cultural Relativism’, 25 Virginia JIL (1985) p. 867Google Scholar; Donnelly, J., ‘Human Rights and Human Dignity: An Analytic Critique of Non-Western Conceptions of Human Rights’, 76 American Pol. Sc. Rev. (1982) p. 303CrossRefGoogle Scholar.

40. See the interesting comments in: Fenet, A. et al. , Droits de l'homme, droits des peuples (1982)Google Scholar; Cassese, A. and Jouve, F., eds., Pour un droit des peuples: Essais sur la Déclaration d'Alger (1981)Google Scholar; Falk, R., Human Rights and State Sovereignty (1981)Google Scholar. See also The African Charter on Human and Peoples' Rights (1981), infra n. 52; cf., Mr. Berthun (Norway), A/C.3/41/SR.50, p. 13 para. 48:

‘The Nordic countries were not in agreement with formulations such as the human rights of peoples, or those implying that the attainment of a certain degree of development or the establishment of a new international economic order, which were important questions, could be a prior condition for the enjoyment of the human rights of individuals. The Nordic countries also regretted the continual emphasis on the right of States rather than individuals. The same importance should be assigned to both categories of rights’.

41. A/C.3/41/SR.37, p. 11 para. 53; cf., Mestdagh, , loc.cit. n. 10, p. 51Google Scholar; A/Res/2542 (XXIV), Art. 8 and A/Res/2626 (XXV), para. 11.

42. A/C.3/41/SR.61, p. 32 para. 190; cf., van Boven, T., People Matter: View on International Human Rights Policy (1982) p. 74Google Scholar; van Boven, T., ‘The Right to Development and Human Rights’, Int. Commission of Jurists Rev. (1982) p. 49Google Scholar; Ferrero, R., The New International Economic Order and the Promotion of Human Rights (1986)Google Scholar, E/CN.4/Sub.2/1983/24/Rev.l; Klein, L.R., ‘Disarmament and Socio-Economic Development’, Disarmament (1986) p. 49Google Scholar; Falk, R.A., ‘Militarization and Human Rights in the Third World’, 8 Bulletin of Peace Proposals (1977) p. 220CrossRefGoogle Scholar.

43. A/C.3/41/SR.61, p. 33 paras. 195–196. Cf., Mrs. Coll (Ireland), A/C.3/41/SR.37, p. 2 paras. 1–3: she emphasized the mutually reinforcing nature of all rights – economic, social, cultural, civil and political and added that her ‘delegation saw value in the concept of a right to development, not as a new primary right, but rather as a potentially useful tool for integrating economic, social, cultural, civil and political rights in a manner which would serve to strengthen all human rights at the international level’.

44. A/C.3/41/SR.61, p. 34 para. 201. See also Mrs. Coil's (Ireland) statement, supra n.43.

45. A/C.3/41/SR.61, p. 28 para. 171.

46. E/CN.4/1985/11, Annex VII p. 3.

47. Ibid.

48. UNGA Res. 1803, 17 UNGAOR Supp. (No.17) at 15, UN Doc. A/5217 (1962).

49. Supra n. 46. Cf., Art. 3(2) of the Declaration on the Right to Development, supra n.1: ‘The realization of the right to development requires full respect for the principles of international law concerning friendly relations and co-operation among States in accordance with the Charter of the United Nations’.

50. Cf., Mr. Attewell's views, text accompanying n. 44, supra.

51. Art. 2 of the Declaration, above, n.1.

52. OAU Doc. CAB/LEG/67/3 Rev.5 (1981); 21 ILM (1982) p. 58.

53. Benedek, W., ‘Peoples' Rights and Individuals’ Duties as Special Features of the African Charter on Human and Peoples' Rights’, in Kunig, P., Benedek, W. and Mahalu, C.R., eds., Regional Protection of Human Rights by International Law: The Emerging African System (1985) p. 59 at p. 87Google Scholar: ‘The practical consequences of Art. 29 para. 2, which calls on the individual “to serve his national community by placing his physical and intellectual abilities at its service” are difficult to assess. But given the problem of the “brain drain” in African countries there is a legitimated interest of these countries to see some return on their investment in education. However, the provision is so widely phrased that misuse is not prevented’.

54. See further, Kiwanuka, R.N., ‘The Meaning of “People” in the African Charter on Human and Peoples' Rights’, 82 AJIL (1988) p. 80 at p. 99Google Scholar.

55. Art. 2(3) of the Declaration on the Right to Development, supra n.1.

56. See further, Eide, A., ‘Maldevelopment and the “Right to Development” – a Critical Note with a Constructive Intent’, in Dupuy, R., ed., The Right to Development at the International Level (1980) p. 397Google Scholar; Kiwanuka, , loc.cit. n.54, pp. 97–98Google Scholar.

57. Baxi, U., ‘Crimes Against the Right to Development’, in Asian Coalition of Human Rights Organisations, Human Rights Activism in Asia: Some Perspectives, Problems and Approaches (1984) p. 62 at p. 63Google Scholar.

58. Ibid., pp. 63–64.

59. Art. 6(3) of the Declaration on the Right to Development, supra n.1.

60. Art. 8, ibid.

61. Loc.cit. n. 10, pp. 52–63. See also, van Boven, T., ‘Some Remarks on Special Problems Relating to Human Rights in Developing Countries’, 3 Revue des droits de L'homme (1979) p. 383Google Scholar.

62. Arts. 4–7 of the Declaration on the Right to Development, supra n.1.

63. Art. 7, ibid. See further, Report of the Secretary-General, Economic and Social Consequences of the Arms Race and of Military Expenditures, A/32/88/Rev. 1 (1978); Report of the Secretary-General, The Relationship Between Disarmament and Development, A/36/356 and Corr. 1 (1982)Google Scholar.

64. For recent views on General Assembly Resolutions and international law, see Anand, R.P., Confrontation or Cooperation? International Law and the Developing Countries (1987) Ch. 5Google Scholar; Ellis, M.E., ‘The New International Economic Order and General Assembly Resolutions: the Debate Over the Legal Effect of General Assembly Resolutions Revisited’, 15 California Western ILJ (1985) p. 647Google Scholar.

65. UNGA Res. 217A, UN Doc. A/810, p. 71.

66. Lauterpacht, H., ‘The Universal Declaration of Human Rights’, 25 BYIL (1948) p. 354 at pp. 356–365Google Scholar.

67. Feuer, G., ‘The Role of Resolutions in the Creation of General Rules in the International Law of Development’, in Snyder, and Slinn, , op.cit. n.7, p. 137Google Scholar at p. 138 (emphasis in the original). See also, Bothe, M., ‘Legal and Non-Legal Norms – A Meaningful Distinction in International Relations?’, 11 NYIL (1980) p. 65Google Scholar.

68. Pellet, A., ‘A New International Legal Order: What Legal Tools for What Changes?’, in Snyder, and Slinn, , op.cit. n.7, p. 117 at p. 124Google Scholar.

69. Ibid., pp. 127–128.

70. See generally, Carlson, J., ‘Hunger, Agricultural Trade Liberalization and Soft International Law: Addressing the Legal Dimensions of a Political Problem’, 70 Iowa LR (1985) p. 1187Google Scholar.

71. Claude, I.L. Jr, ‘Collective Legitimization as a Political Function of the United Nations’, 20 Int. Organization (1966) p. 372Google Scholar, quoted by Anand, , op.cit. n. 64, p. 134Google Scholar.

72. See further, Kiwanuka, R.N., ‘The Thirteenth UN General Assembly Special Session: Lessons for Africa’, 21 JWTL (1987) p. 65 at p. 74Google Scholar.

73. See Art. 2(7) of the Charter of the United Nations.