“Economic growth cannot sensibly be treated as an end in itself. Development has to be more concerned with enhancing the lives we lead and the freedoms we enjoy. Expanding the freedoms that we have reason to value not only makes our lives richer and more unfettered, but also allows us to be fuller social persons, exercising our own volitions and interacting with-and influencing- the world in which we live.”
– Amartya Sen, Development as Freedom (1999)
Introduction
The goal of development is to improve the well-being of every member of the society. People are not mere tools- that can be exploited to produce greater wealth for limited elites, but rather are the pivot around which development ought to circumscribe. True development roots out and corrects the causes of poverty and generates greater social justice. There has been considerable debate as to whether the right to development can be regarded as a human right. The issue was settled by the Vienna Declaration and Program of Action in 1993 and by subsequent reaffirmations at various intergovernmental conferences since then.
Generally, in the human rights literature, to have a right means to have a claim to something of value on other people, institutions, a State or the international community, which in turn have the obligation to provide or help to provide that something of value. “Rights are entitlements that require correlated duties. If a person A has a right to some x, then there has to be some agency, say B, which has a duty to provide A with x.”Therefore, in recognizing a right would we must identify the duty holder who has the obligation to fulfil or enable the fulfilment of such right. To justify the exercise of these rights, one must specify the nature of elements included in the rights and then identify the agents who have the corresponding duty to bring about the fulfillment of these rights.
To understand development as a right, it is customary to discuss human rights in terms of ‘generations’. Each generation has its distinctive characteristics, each more developed and sophisticated that its predecessor. The first generation consists of civil and political rights. These rights are libertarian in character and relate to the sanctity of the individual and his rights with the socio-political setting. The second generation consists of economic, social and cultural rights. These are positive rights as they require affirmative action of governments for their implementation. The third generation encompasses the ‘solidarity rights’. Development rights are therefore, classified as belonging to the third generation of solidarity rights along with right to peace, right to environment, right to ownership of common heritage of mankind and the right to communication. Proponents of the third generation of rights emphasize that these rights will reinforce existing human rights, enhance their effectiveness and make them more relevant to both government and individuals. These rights aim at transgressing the traditional limits of human rights; it is a ‘reply to the new challenges and ambitions which are placed before us.’
The Right to Development, as a species of solidarity rights, has been defined as ‘an inalienable human right by the 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.’
EVOLUTION OF THE RIGHT
Many factors were responsible for the emergence of the categories of rights involved in development. One of which was the emergence of a numerically dominant group of developing countries due to decolonization. This development led to the elevation of economic development goals to the top of the international agenda. Third world countries argued that some form of development cooperation should be put in place and insisted that the imperialist world had a legally binding obligation to do so. They demanded some form of specific transfers of capital, technology or other goods and services which they contended that such things should be seen as entitlements and not as acts of welfare or charity.
The General Assembly designated the 1960s as the United Nations Development Decade. A UN report on development activities clearly identified the link between human rights and development in the following words:
One of the greatest dangers in development policy lies in the tendency to give to the more material aspects of growth an overriding and disproportionate emphasis. The end may be forgotten in the preoccupation of the means. Human rights may be submerged, and the human beings seen only as instruments of production rather than as free entities for those welfare and cultural advance the increased production is intended. The recognition of this issue has a profound bearing upon the formulation of the objectives of economic development and the methods employed in obtaining them…the growth and well-being of the individual and larger freedom, methods of development may be used which are a denial of basic human rights.
The Tehran Proclamation (First UN World Conference on Human Rights) further elaborated on this theme by acknowledging that:
The widening gap between the economically developed and developing countries impedes the realization of Human Rights in the international community. The failure of the Development Decade to reach its modest objectives makes it all the more imperative for every nation, according to its capacities, to make the maximum possible efforts to close this gap.
Subsequently, the General Assembly adopted the Declaration on Social Progress and Development in December 1969. This states that social progress and development shall aim at the continuous raising of the material and spiritual standards of living of all members of society. This shall be done with respect for and in compliance with human rights and fundamental freedoms. Since then, the relationship between human rights and development has occupied a prominent place in the international discourse of rights.
The Commission on Human Rights, in 1977, decided to pay special attention to consideration of the obstacles hindering the full realization of economic, social and cultural rights, particularly in the developing countries. It also decided to focus on the actions taken at the national and international levels to secure the enjoyment of those rights. It recognized the Right to Development as a human right and recommended to the Economic and Social Council to invite the UN Secretary General to study “the international dimensions of the right to development as a human right” in relation to other human rights based on international cooperation.
THE DECLARATION ON THE RIGHT TO DEVELOPMENT
Content of the Right to Development
The content of the right to development can be analyzed on the basis of the text of the Declaration on the Right to Development adopted by the General Assembly in 1986.
Article 1(1) of the Declaration states: “the right to development is an inalienable human right by virtue of which every human person and all peoples are entitled participate in, contribute to, and enjoy economic, social cultural and political development, in which all human rights an fundamental freedoms can be fully realized.”
This article spells out three principles: (a) there is an inalienable human right that is called the right to development: (b) there is a particular process of economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized; (c) the right to development is a human right by virtue of which everyone is entitled to participate, contribute and enjoy that particular process of development. Herein, the first principle affirms the right to development as an inalienable human right which cannot be taken or bargained away. The second principle defines a process of development in terms of realization of human rights, which are enumerated in the Universal Declaration of Human Rights and other human rights instruments. The third principle defines the right to that process of development in terms of claims or entitlements of right holders, which duty bearers must protect and promote.
Development is defined in the preamble to the Declaration as a “comprehensive economic, social, cultural and political process, which aims at the constant improvement of the wellbeing of the entire population and of all individuals, on the basis of their active, free and meaningful participation in development in and the fair distribution of benefits resulting therefrom”. The process of development that is recognized as a human right is one “in which all human rights and fundamental freedoms can be fully realized”, consequent to the constant improvement of well-being that is the objective of development.
According to Article 2(3), such a development process would be the aim of national development policies that states have the right and duty to formulate. Article 8 emphasizes that in taking steps to realize the right to development, States shall ensure “equality of opportunity for all in their access to basic resources, education, health services, food, housing, employment and the fair distribution of income”, and take effective measures to ensure “that women have an active role in the development process”, as well as carrying out “appropriate economic and social reforms…with a view to eradicate all social injustices.”
Duties and Obligations
For the realization of any right, duties must be assigned so as to establish accountability. The Declaration assigns these responsibilities, which need to be analyzed in the context of a program for implementing the right to development.In the context of the Right to Development, it is the people and their human rights which are the subjects and are at the center of the development process. The Declaration identifies the State and the International Community as the duty-bearers.
The national development policies that States have a duty to formulate, according to Article 2(3) should have two characteristics: (a) they must be participatory (“on the basis…active, free and meaningful participation”) and (b) equitable (“fair distribution of benefits”). Further, the States have the right to adopt these policies and if they are unable to formulate and execute these policies on their own, they have the right to claim cooperation and help from other States and International Agencies. Articles 3 and 4 elaborate on the nature of international cooperation. Articles 6, 9 and 10 expressly state that the implementation of the Right to Development involves implementing all the civil, political, economic, social and cultural rights as they are indivisible and interdependent. It would also mean the adoption and implementation of policies, legislation and other measures at the national and international levels i.e. all obligations on States and international community imposed by the International Covenants on Human Rights would apply to all measures associated with implementing the right to development.
With respect to the obligation of States operating at the international level, the Declaration equivocally stipulates the importance of international cooperation. According to Article 3(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”. Article 4 categorically states that States have the duty, individually and collectively, to formulate international development policies to facilitate the realization of the right to development. This should be read in the light of the principles laid down in the Charter of the United Nations i.e. the pledge “to take joint and separate action in cooperation with the Organization for the achievement of…(a) higher standards of living, full employment and conditions of economic and social progress and development; (b) solutions of international economic, social, health and related problems and international cultural and educational cooperation and (c) universal respect for and observance of human rights and fundamental freedoms for all.”
Therefore in essence, the Declaration clearly indicates that the primary responsibility for implementing the Right to Development belongs to States and that the beneficiaries are individuals. The international community has the duty to cooperate to enable States to fulfill that obligation. It must be noted that the obligation to realize the Right to Development through cooperation requires the realization of all, or most, rights in a planned manner in tandem keeping in mind the sustainability of the process.
Accountability
Human rights precede law and are derived not from law but from the concept of human dignity. There is nothing in principle to prevent a right being an internationally recognized human right even if it is not individually justiciable.
It must be borne in mind that the obligations involved with regard to applying human rights and the Right to Development is not always “perfect” in the sense that the non-fulfillment or violation of a right cannot be attributed to a specific duty holder (right-to-duty correspondence). Such is the nature of obligations in the case of justiciable, “legal” rights. The obligations related to the right to development are more in the nature of “imperfect” obligations, with a number of agents, individuals, States and the international community having different kinds of obligations, with no specific agent responsible for its violation. But this does not mean that the right-duty correspondence cannot be established, or that the obligations of the different agents or duty holders cannot be specified.
Some duty-holders, according to Amartya Sen, could be described as ‘anybody who can help’ as their obligations may not be exact but they may still be helpful for securing rights. But for other duty-holders the obligations can be more precisely formulated and imposed or can be formulated in a manner such that accountability for them takes the form of enforceable remedies. Thus for the Right to Development, as in the case of Civil and Political Rights and Economic, Social and Cultural Rights, the right-to-duty correspondences or accountability mechanisms can be established.
Most human rights textbooks list the duties of the State in terms of the following five obligations: (a) to respect the rights of others; (b) to create institutional machinery essential to the realization of rights; (c) to protect rights and prevent violations; (d) to provide goods and services to satisfy rights; and (e) to promote rights. The Right to Development, as mentioned above, involves the realization of all Civil, Political, Economic, Social and Cultural rights and therefore all the characteristics of State obligations also apply to its implementation. Given the primary responsibility of the State is as a duty bearer, the accountability mechanism is that of the state towards it citizens which should go beyond a call for participative processes of program designing and implementation. This could include judicial mechanisms, administrative processes and even political processes.
It is harder to envisage accountability mechanisms for individuals at the international level unless international actors who are involved in national development process should find ways of enhancing their accountability to national actors (whether governments, public at large or specific recipient of aid project),
Human rights can be fulfilled in many different ways depending on the acceptability of the ethical base of the claims and every attempt should be made to formulate and adopt appropriate legislative instruments to ensure the realization of such claims once they are accepted through consensus. These rights would then be backed by justiciable claims in courts and by enforcement authorities. But to say human rights cannot be invoked if they cannot be legally enforced would be most inappropriate. Enacting appropriate legislative instruments for any of these rights is a monumental task, and it would be mindful to find alternative methods of enforcing the obligations rather than through the courts of law.
While Civil and Political rights and Economic, Social and Cultural rights have been codified in international treaties or covenants and ratified by a large number of States and supplemented by protocols allowing individual complaints, the Declaration does not have that status and therefore cannot be enforced in a legal system. This fact does not diminish the responsibility of the States, whether nationally or internationally, nor that of individuals and agencies of the international community, to realize the right to development.
Right to the Process of Development
One must appreciate that the Right to Development is based on a just and equitable process. Any human right approach to economic and social policy must be constructed on the basis of justice as the notion of justice itself flows from participants in the civil society. Several of it articles call for equality of opportunity, equality of access to resources, equality in the sharing of benefits and fairness of distribution, and equality in the right to participation. This development process has to be participatory i.e. with the full involvement of its beneficiaries from local through regional and national to international levels. Hence participation should be viewed both as a means to and end and as an end in itself.
Looking at the Right to the process of Development adds value to the already recognized (Economic, Social, Cultural and Civil and Political) rights involved in human development. This means that it not only focuses on realization of those rights individually, but their realization together, taking into account their effects on each other, both with regard to a particular time and over a period of time. It also means that any improvement in the right to development would imply that the realization of some rights has improved while no other right is violated or deteriorated.
MONITORING OF IMPLEMENTATION
The intergovernmental open-ended Working Group on the Right to Development was established in 1998. The Working Group meets once every year and reports to the Human Rights Council (HRC). It is vested with a mandate to; (a) monitor and review progress made in the promotion and implementation of the right to development, at the national and international levels, and provide analysis with recommendations to its full enjoyment, (b) review reports and other information submitted by States, United Nations agencies, other relevant international organizations and non-governmental organizations on the relationships between their activities and the right to development (c) present HCR a sessional report on its deliberations, including advice to the Office of the United Nations High Commissioner for Human Rights (OHCHR) with regard to the implementation of the right to development, and suggest possible programs of technical assistance at the request of interested countries with the aim of promoting the implementation of this right.
The right to development has been consistently highlighted by the General Assembly and the HRC which both request the Secretary- General and the High Commissioner to report annually on progress in the implementation of the right including the activities aimed at strengthening the global partnership for development between member states, development agencies and international development, financial and trade institutions. UN agencies and international institutions involved in the work of human rights and development include UNDP, UNCTAD, UNFCCC, ECA, The World Bank, IMF, WTO, UNESCO, WIPO, WHO, The Global Fund, and ICTSD.
In a 2010 ruling, the African Commission on Human and Peoples’ Rights established a precedent for the justiciability of the right to development and an elaboration of its operational parameters. In its decision on Endorios Case, the African Commission found that the Respondent State (Kenya) was in violation of six articles of the African Charter on Human and Peoples’ Rights which included Article 22 on the Right to Development. It stated that the right to development contains both procedural and substantive elements and that a violation of either constitutes a violation of the right. It recognized that “the Right to Development requires fulfilling five main criteria: it must be equitable, non-discriminatory, participatory, accountable and transparent, with equity and choice as important, over-arching themes in the right to development.”
In its ruling, the African Commission referred to a report of the United Nations Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people on the detrimental impacts of large scale projects on indigenous peoples, their traditional ways of life, health and security, and to a working paper submitted to the former Working Group on Indigenous Populations on the principle of free, prior and informed consent to development.
INDIAN EXPERIENCE WITH THE RIGHT TO DEVELOPMENT
Experience in India suggests that public debates and discussions centered on the Right to Development can contribute significantly to the formulation of new laws and policies which are particularly beneficial to the poor.
Right to Information Act 2005
The National Campaign for Peoples’ Right to Information (founded in1996) has played, and continues to play, a critical role in promoting the right to information to make the Government and Society more transparent and accountable. The Campaign aimed at bringing in a national law facilitating the exercise of the right to information and as a first step, in 1996 in collaboration with the Press Council of India, formulated and submitted an initial draft the right to information to the Government. In due course, after advocacy and public discussion, the Government introduced the Freedom of Information Bill in Parliament in 2002, which was a diluted version of the 1996 draft. The Campaign forwarded a set of amendments to the Freedom of Information Bill suggested by the civil society groups to the National Advisory Council and recommended the same to the Prime Minister for further action. This formed the basis of the subsequent Right to Information Bill introduced in the Parliament in 2004 which had a few flaws, most notable of which was its non-applicability to the whole country but only to the Union Government. Sustained efforts by the Campaign supplemented by public outrage made the Government to extend the jurisdiction of the bill to cover the whole of India and accommodate the Campaign’s recommendations. The Right to Information Act came into effect in October 2005 and has been instrumental in ensuring accountability of the State.
Right of Children to Free and Compulsory Education Act 2010
Sustained campaign by a number of civil society organizations has led to the 86th Amendment of the Constitution of India which makes education a fundamental right of children. This law provides for free and compulsory education to all children between 6 and 14 years. The eight years of elementary education must be in an age-appropriate classroom located in the vicinity of his/her neighborhood. The cost would be borne by the State and will have the responsibility of enrolling the child as well as ensuring attendance and completion of eight years of schooling. It stipulates that no child shall be denied admission for want of documents not shall be turned away if admission cycle in the school is over and shall not be asked to take an admission test. The provides for children with disabilities to be educated in mainstream schools and all private schools would be required to admit children from economically weaker sections and disadvantaged communities who shall be treated equally. The act requires all schools to adhere to the prescribed norms and standards laid in the Act failing which the schools would not be allowed to function. The Act also lays down the standards of teaching qualification and training which must be subscribed by all schools.
National Population Policy, 2000
The National Population Policy was strongly influenced by a network of civil society organizations, prominent citizens and social activists who advocated removing coercion, penalties and disincentives from India’s family planning programs. It highlights the importance of women’s empowerment and a rights based approach by advocating that population stabilization can be achieved by cooperation and treating women with respect and recognizing the human rights of individuals. The campaigns and public debates had a positive outcome in generating awareness on family planning and reduce sex-selective births. Imposing penalties made little sense for people living in rural areas as it would be biased against the poor, the illiterate and the socially disadvantaged groups. The National Policy Program 2000 affirms the commitment of the Government to “voluntary and informed choice and consent of citizens and continuation of reproductive health-care services, and continuation of the target free approach in administering family planning services”.
Right to Food Campaign
The Right to Food Campaign was an informal network of organizations and individuals committed to the realization of right to food in India. It was formally launched when a writ petition was submitted to the Supreme Court in April 2001 by the People’s Union for Civil Liberties, Rajasthan, demanding that the country’s huge food stocks should be used without delay to protect people from hunger and starvation ( believing that the primary responsibility for guaranteeing basic entitlements rests with the state). This required not only equitable and sustainable food systems, but also entitlements relating to livelihood security (right to work, land reforms and social security).
The Indian Judiciary was instrumental in granting benefits for this right. Several interim orders were passed by the Supreme Court during the prolonged Public Interest Litigation, most notable ones relating to the introduction of cooked mid-day meals in all primary schools and influencing the Parliament to enact the Mahatma Gandhi National Rural employment Guarantee Act in August 2005. A few other initiatives include the universalization of the Integrated Child Development Services for children under the age of 6, revival and universalization of Public Distribution System, social security arrangements for the unemployed and land and forest rights. This campaign continues to play an important role in shaping a National Food Security Bill under consideration by the Government.
CONCLUSION AND THE WAY AHEAD
Looking back at the history of the right to development, Craig Mokhiber, (Director at the UN Human Rights Office) said: “This is really about a struggle that has been raging for the soul of development – and moving away from very narrow notions of development – that once looked only at economic growth, or GDP or benefits to the business sectors or other such narrow ideas – into a very human-centered vision of development.”
The emergence of the right to development, as a dynamic concept under the international human rights standards, has evolved and translated the notion of development to provide guidance and inspiration to the future course of action adopted by States, international community and people at large. As a framework for the development of a society based on equality and social justice, which reflects the aspirations of all humans, the declaration on the Right to Development continues to retain its relevance and validity even today.
Moving forward with the new 2030 Agenda and Sustainable Development Goals (SDG’s), there is an emphasis on their symbiotic relationship with the right to development. Prof. Mihir Kanade explains the adoption of a Right to Development approach to SDGs:
The textual and legal justification for why the right to development approach ought to be the way forward in implementing the SDGs is already inherent in the 2030 Agenda. A closer look at the Agenda reveals that it reaffirms the Right to Development and is grounded in it. The Right to Development approach to SDGs means that there is a strong focus on the process aspect of development, including participating of stakeholders i.e. a RtD approach insists that development can really be sustainable only if the outcomes are achieved through the right process. It also means that development must not be seen as a charity, privilege or generosity but as a right of human beings everywhere. Therefore there exist duty bearers who must fulfill developmental obligations. The SDGs should indeed be seen as an expression by States of individually and collectively fulfilling their obligations under the 1986 Declaration. Therefore, RtD is nothing but the human rights avatar of SDGs; and the SDGs are nothing but a policy expression and plan of action for implementing the RtD.
Achieving the Right to Development improves and saves lives. It insists that all individuals have the right to reach their full potential. Simply put, the Right to Development is development done right!