BY- ADV.SHYAM SAHU
BA. LL.B. LL.M (NET)
EMAIL -shyamnathsah@gmail.com
Introduction
The right to development is a
right to a process of development, and not the sum of a set of rights. It is
the right to a process that expands the capabilities or freedom of individuals
to improve their well-being and to realize what they value. As we know that to
have a right means to have a claim to something of value on other people,
institutions, the state, or the international community, who in turn have the
obligation of providing or helping to provide that something of value.
The Declaration on the Right to Development was adopted by the
United Nations in 1986, that the right to development is a human right. The first article of the Deceleration on the Right to
Development (DRD) defines the concept of the right to development. It states, “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.
Chapter-I
Propositions of the
Declaration
The DRD is a consensus document
that emerged after a series of negotiations amongst the Nation States as to
what should constitute the provisions of this declaration.
There are three main propositions of the Declaration-
(I) the first is that the right
to development is a human right;
(II) The second is that the
human right to development is a right to a particular process of development in
which all human rights and fundamental freedoms can be fully realized, which
means that it combines all the rights enshrined in both the covenants and each
of the rights has to be exercised with freedom;
(III) And finally that the
meaning of exercising these rights consistently with freedom implies free, effective,
and full participation of all the individuals concerned in the decision-making
process.
Therefore, the process must be
transparent and accountable; individuals must have equal opportunity of access
to the resources for development and receive fair distribution of the benefits
of development and income. The right confers unequivocal obligation on
duty-holders, including individuals in the community, States at the national
level, and Nation States at the international level[1].
Nation States have the
responsibility to help realize the process of development through appropriate
development policies. Other States and international agencies have the
obligation to co-operate with the Nation States to facilitate the realization
of the process of development.
Chapter-II
History background
of right to development
The Right to Development (RTD) was
first proposed by a Senegalese jurist, Keba M’baye, in 1972. It was first given
legal recognition in the 1981 by African Charter on Human and Peoples’ Rights.
It was later incorporated into the global human rights framework through the
adoption in 1986 of the Declaration on the Right to Development by the United
Nations General Assembly. The Vienna Declaration, 1993 and the Programme of
Action, the 2000 Millennium Declaration, and most recently, the Durban
Declaration and Programme of Action reaffirmed the right to development as a
universal and inalienable human right.
The origin of the concept must
be set in the ideological debates of the 1960s and 70s. The Non Aligned
Movement (NAM) campaigned for the creation of a more just international
economic order (the New International Economic Order which is explicitly
mentioned in the 1986 Declaration). NAM countries declared development to be a
human right and used United Nations mechanisms to try to influence
international economic relations and the international human rights system. In
addition, the debate was also marked by the consequence of the Cold War, which
reinforced the distinction between on the one hand civil and political rights,
and on the other, social and economic rights [2].
Several mechanisms have been
established by the United Nations Commission on Human Rights to reach a
consensus on the RTD. There is currently an Open- Ended Working Group (which
met in Geneva on 25 February - 8 March 2002) with a mandate to monitor and
review progress, and an Independent Expert preparing studies on the current
state of the implementation of the right.
Chapter-III
Main Provisions of
the Declaration on the Right to Development
Article 1
1. 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.
2. 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.
1. The human person is the
central subject of development and should be the active participant and
beneficiary of the right to development.
2. All human beings have a
responsibility for development, individually and collectively, taking into
account the need for full respect for their human rights and fundamental
freedoms as well as their duties to the community, which alone can ensure the
free and complete fulfillment of the human being, and they should therefore
promote and protect an appropriate political, social and economic order for
development.
3. 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 there from.
1. States have the primary
responsibility for the creation of national and international conditions
favorable to the realization of the right to development.
2. 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.
3. States have the duty to
co-operate with each other in ensuring development and eliminating obstacles to
development. States should realize their rights and fulfill their duties in
such a manner as to promote a new international economic order based on
sovereign equality, interdependence, mutual interest and co-operation among all
States, as well as to encourage the observance and realization of human rights.
1. States have the duty to take
steps, individually and collectively, to formulate international development
policies with a view to facilitating the full realization of the right to
development.
2. Sustained action is required
to promote more rapid development of developing countries. As a complement to
the efforts of developing countries, effective international co-operation is
essential in providing these countries with appropriate means and facilities to
foster their comprehensive development.
States shall take resolute steps
to eliminate the massive and flagrant violations of the human rights of peoples
and human beings affected by situations such as those resulting from apartheid
, all forms of racism and racial discrimination, colonialism, foreign
domination and occupation, aggression, foreign interference and threats against
national sovereignty, national unity and territorial integrity, threats of war
and refusal to realized the fundamental right of peoples to self-determination.
1. All States should co-operate
with a view to promoting, encouraging and strengthening universal respect for
and observance of all human rights and fundamental freedoms for all without any
distinction as to race, sex, language or religion.
2. All human rights and
fundamental freedoms are indivisible and interdependent; equal attention and
urgent consideration should be given to the implementation, promotion and
protection of civil, political, economic, social and cultural rights.
3. States should take steps to
eliminate obstacles to development resulting from failure to observe civil and
political rights, as well as economic social and cultural rights.
All States should promote the
establishment, maintenance and strengthening of international peace and
security and, to that end, should do their utmost to achieve general and
complete disarmament under effective international control, as well as to
ensure that the resources released by effective disarmament measures are used
for comprehensive development, in particular that of the developing countries.
1. States should undertake, at
the national level, all necessary measures for the realization of the right to
development and shall ensure, inter alia,
equality of opportunity for all in their access to basic resources, education,
health services, food, housing, employment and the fair distribution of income.
Effective measures should be undertaken to ensure that women have an active role
in the development process. Appropriate economic and social reforms should be
carried out with a view to eradicating all social injustices.
2. States should encourage
popular participation in all spheres as an important factor in development and
in the full realization of all human rights.
1. All the aspects of the right
to development set forth in the present Declaration are indivisible and
interdependent and each of them should be considered in the context of the
whole.
2. Nothing in the present
Declaration shall be construed as being contrary to the purposes and principles
of the United Nations, or as implying that any State, group or person has a
right to engage in any activity or to perform any act aimed at the violation of
the rights set forth in the Universal Declaration of Human Rights and in the
International Covenants on Human Rights.
Steps should be taken to ensure
the full exercise and progressive enhancement of the right to development,
including the formulation, adoption and implementation of policy, legislative
and other measures at the national and international level.
Chapter-IV
Duties and
responsibility under the declaration
Article 2, paragraph 2
stipulates that all human beings, individually and collectively have a responsibility
for securing the right to development, "as well as their duties to the
community" with full respect for human rights and fundamental freedoms[3].
States, according to Article 3,
have "the primary responsibility for the creation of national and
international conditions favourable to the realization of the right to
development." The responsibility of states, which is complementary to that
of individuals, is basically to create the conditions for realizing the right
to development, and not necessarily for actually realizing development. The
actions that states need to adopt to create such conditions are elaborated in
the different articles in terms of both national and international operations.
At the national level, in Article 2, paragraph 3, it is pointed out that
"States have the right and the duty to formulate appropriate national
development policies." According to Article 8, "States should
undertake, at the national level, all necessary measures for the realization of
the right to development," and "should encourage popular
participation in all spheres." In addition, in Article 6, states are
required to take steps "to eliminate obstacles to development resulting
from failure to observe civil and political rights as well as economic, social,
and cultural rights," because the implementation, promotion and protection
of those rights would be essential for realizing the right to development.
With respect to the obligation
of states operating at the international level, the Declaration is forthright
in emphasizing the crucial importance of international cooperation. According
to Article 3, paragraph 3, states have the duty "to cooperate with each
other in ensuring development and eliminating obstacles to development"
and should fulfill their duties in such a manner as to promote a new
international economic order based on sovereign equality, interdependence and
mutual interest. This is reiterated in Article 6, which states, "all
States should cooperate with a view to promoting, encouraging and strengthening
universal respect for and observance of all human rights and fundamental
freedoms."According to Article 7, all states should promote international
peace and security and complete disarmament, ensuring that resources released
thereby are used for comprehensive development, in particular that of
developing countries [4].
Chapter-V
Implementation of
the Declaration on the Right to Development
Governments are the main agents
in implementing the Declaration on the Right to Development. This is
justifiable not only by their being subjects of international law, but also by
their representing their people and having the means and the legitimacy to enact
laws and to take other measures to attain this goal. Moreover, the Declaration
deliberately gives them “the primary responsibility for the creation of
national and international conditions favorable to the realization of the right
to development”[5]
The Declaration accords great
importance to the “duty” of states “to co-operate with each other in ensuring
development and eliminating obstacles to development” while creating “national
and international conditions favorable to the realization of the right to
development”[6]
Among the means for
implementation, the Declaration emphasizing international cooperation and the
duty of states “to take steps, individually and collectively, to formulate
international development policies with a view to facilitating the full realization
of the right to development”[7]It
requires governments to take “sustained action” for the rapid development of
developing countries and “effective international cooperation”[8]
It also requires states to eliminate obstacles to the realization of the right
to development such as foreign occupation, colonialism, aggression, the threat
of war, the non-respect of the rights of peoples to self-determination and of
civil, political, social economic and cultural rights[9]and
to “achieve general and complete disarmament under effective international
control[10]”in
order to use the resources thus spared in favor of “comprehensive development,
in particular that of the developing countries[11]”.
Chapter-VI
An appraisal of the
declaration
The language of the Declaration
is vague, imprecise and unclear in some respects. Like, it is not clear whether
the individual is the subject or the beneficiary of the RTD. In this regard
‘the individual as a subject’ and as a ‘beneficiary’ create sufficient
jurisprudential confusion and vagueness, hence significantly reflect on the
problems involved in the justiciability of the RTD.
While the principle of
co-operation is one of the main features of the RTD, the language of the
Declaration does not couch it in precise terms. A close reading of the
Declaration would show that the words used are neither mandatory nor
consistent. For example, article 3(2) says that‘the realisation of the
declaration requires full respect of the principles of international law
concerning friendly relations and co-operation’ With respect to the formulation
of international development policies for the realisation of the RTD[12].
Article 4(1) of the RTD says,
‘States have the duty to take steps,
individually and collectively’. Article 4(2) say that effective international
cooperation is essential for supporting developing countries to achieve
development. The language of this article is compromising because it avoids
identifying the duty-holder (i.e. developed countries) if at all there is a
duty. Moreover, it does not explicitly speak about the mandatory nature of
development aid provided by developed countries to developing countries. Similarly,
the words ‘should co-operate’ are used in article 6(1), for promotion of all
human rights without any distinction[13].
The word ‘duty’ is used in articles
3(3) and 4(1). The former says that the states have the duty to co-operatewith
each other in ensuring development and eliminating obstacles to development.
The latter says, ‘The states have the duty to take steps, individually and collectively, to formulate
international development policies with a view to facilitating the full
realisation of the RTD’.
Article 6 requires states to
cooperate for observance of all universal human rights, to eliminate obstacles
to development resulting from failure to observe civil and political and
economic, social and cultural rights, and that human rights are indivisible,
interdependent. This, arguably, means a synthesis of all human rights as such,
it weakens the individuality of the RTD.
There is a reference to obstacles
to development in some articles (art. 3(3) and 6(3)). It is not clear which
kind of obstacles impede development. It is left for the state at the national
level and for the states at the international level to decide about the
obstacles. This vagueness sufficiently affects the content and scope of the RTD
both at the national and international levels[14].
Chapter-VII
Conclusion
The United Nations Declaration
on the Right to Development offers hope to the millions of people around the
world who live in abject poverty. Indeed, the aspiration to make the right to
development a reality for all is the foundation for the quest to achieve the Millennium Development Goals, the internationally agreed global
development goals.
The right to development was
first realized in 1981 in Article 22 of the African
Charter on Human and Peoples' Rights as a definitive individual and
collective right. Article 22(1) provides that: "All peoples shall have the
right to their economic, social and cultural development with due regard to
their freedom and identity and in the equal enjoyment of the common heritage of
mankind."
The right to development was
subsequently proclaimed by the United Nations in 1986 in the
"Declaration on the Right to Development," which was adopted by the United
Nations General Assembly.The concept of the Right to Development is
controversial, with some commentators disputing whether it is a
right at all. The meaning of the right to development has been elaborated in a
number of sources.
The right to development is now
included in the mandate of several UN institutions and offices. The Preamble of
the Declaration on the Right to Development states "development is 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 distribution of benefits resulting therefrom.
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