Half-century update: The evolution of the right to development in international law, from the post-WWII to present times
Author: Jennifer Tapia Boada
Translated into Spanish by Florencia Prieto
“The inequality in our modern world is not a fate to which we have been condemned by some strange spell. It is the product of the action of men themselves”- Doudou Thiam
The global landscape of development was conformed progressively over the span of the last millennium. The present inequalities as well as the environmental crisis, are all mere consequences of the colonial era, and the intensive exploitation of natural resources in rich territories of the Americas, Africa, and Asia.
In this context, the birth of the right to development took form in the post-colonial framework, amidst a growing sentiment that newly independent States have the right to receive compensation for the damages caused by, and suffered under colonial rule.
After a long negotiation process, the Declaration on the Right to Development (DRTD) was adopted by the United Nations General Assembly (UNGA) in 1986, as an internationally recognized instrument that set the stage for subsequent debates on sustainable development at the global level.
The right to development reached much progress in international law, ever since it first emerged: from being incorporated as a binding obligation on States in the African Charter on Human and People’s Rights, to being considered by some scholars as a right that enjoys the status of customary international law and becoming embedded in international human rights law.
In 2018, the United Nations Human Rights Council decided to start discussions to elaborate a draft legally binding instrument on the right to development, a negotiation process that continues until today.
It is important to understand the dynamics of international relations and international organizations over the last decades, to better grasp the advocacy movement behind the right to development and the progress reached thus far.
The Non-Aligned Movement: from its establishment to today
After WWII, the winning States established the United Nations Organisation (UN) in 1945, whose purposes are maintaining international peace and security, developing friendly relations among States, and achieving international cooperation in solving economic, social, cultural, and humanitarian problems.
Notwithstanding that the catastrophes of war made the UN a beacon of hope in preserving peace among Nations, confrontations have remained latent throughout modern history, partly from world hegemony ambitions, partly from development disparities among nations. (Ruiz et al, 2011, p30-37)
Scholar Jurgen Dinkel writes: “The history of decolonization, south-south cooperation (…), and of North-South conflict cannot be grasped without understanding the (…) changing fate of the Non-Aligned Movement”(NAM).
The NAM was established after WWII, during the ensuing Cold War, from the lobbying of the then sitting President of Yugoslavia, as an organization that sought to remain neutral in the conflict between the United States (US) and the Soviet Union, and in conflicts between major powers, representing the struggle against imperialism and colonialism.
Jurgen Dinkel argues that the context in which NAM emerged stemmed principally from the North-South conflict, longing to speak on behalf of the Global South.
The First NAM Summit was held in Belgrade, Yugoslavia, in 1961. The movement experienced an expansive growth that concluded in agglomerating roughly the entire set of developing countries, gathered under the common denominator of their under-development awareness and neutrality (Ruiz et al, 2011, p30-37).
To present, the NAM has grown its composition to 120 Member States, 17 Observer States, and 10 Observer international organizations, becoming one of the largest international organizations, after the UN.
The NAM has strongly supported the recognition of development as a human right. In recent years, it has unequivocally reiterated the importance of the elaboration of a legal instrument, and the operationalisation of the right to development in the context of the 2030 Agenda for Sustainable Development. Furthermore, the NAM Summits have, over the years, repeatedly called for a “Convention on the Right to Development”.
With Azerbaijan in the Chairmanship since 2019, the NAM participated in joint statements with the Group of 77 (G77), at the High-Level Segment of the UNGA, reiterating the importance of the right to development, and expressing concern on possible impairments to the right to development, such as apartheid, racism, colonialism, foreign domination and occupation, aggression, threats against national sovereignty, and refusal to recognize the right to self-determination.
From the 60s to the 70s: The New International Economic Order
During the following decades after WWII, around 75% of the world’s population lived in underdevelopment, settling for unequal access to a minimum share of the global capital, in contrast to an affluent society made up by a handful of States enjoying most of the world’s wealth.
Consequently, the UN became the platform for developing States’ vindications towards finding solutions to the problem of the perpetuation of under-development, under the leadership of “the Group of 77”.
In 1961, the UNGA adopted resolution 1710, establishing the first UN Development Decade, and pledging to grow national incomes in less developed countries by a minimum of 5% at the end of the decade.
After reaching independence from colonial rule, the newest States becoming members of the UN seized their consensual majority at the UNGA and supported the adoption of resolution 1785 in 1962 (Ruiz et al, 2011, p30-37), convening to a United Nations Conference on Trade and Development (UNCTAD), given that trade was deemed as the primary instrument for economic development.
In September of 1966, Senegalese delegate Mr. Doudou Thiam, introduced the right to development to the 21st session of the UNGA (OHCHR et al, 2019), stating that the failure of the international community to reach the first UN Development Decade stemmed from a deterioration of the terms of trade for under-developed nations in their role of raw material producers since the 1950s. Mr. Thiam added that the political independence of the newly decolonized States was not enough to resolve the rising inequalities, and vehemently urged the international community:
“Not only must we affirm our right to development, but we must also take the steps which will enable this right to become a reality. We must build a new system, based not only on the theoretical affirmation of the sacred rights of peoples and nations but on the actual enjoyment of these rights” (par. 228)
By 1970, the Second Development Decade was established through resolution 2626, which sought to grow the gross product of developing countries by an average of 6%, through resource transfers by developed nations. However, neither the first nor the second development decades were successful, since they relied entirely on developed nations’ compliance.
In 1971, building on the Lima Consensus (elaborated at a preparatory meeting in the framework of the G77 Ministerial Meeting), a group of Latin American countries began leveraging the concept of “the Right to Develop”, granting vital importance to the enjoyment of sovereignty over their natural resources. The language of the Lima Consensus was not replicated at the outcome document of the Ministerial Meeting; however, it left a flaming torch in the subsequent years (OHCHR et al, 2019).
During the 70s, the UN system saw a set of proposals by developing nations, known as the New International Economic Order-NIEO, aiming to reach fairer conditions in terms of trade and assistance, replace the Bretton Woods system, which had benefited mostly developed States, and claim sovereignty over their natural resources.
The adoption of NIEO in 1974 marked the first series of steps towards setting a fairer international scene leading to the recognition of the human right to development. NIEO and its ancestor instruments also marked a profound discord between developed and developing nations within the UN, which gave birth to the “North-South” dialogue, framed as a global debate.
A landmark resolution was 3281 of 1974: “The Charter of Economic Rights and Duties of States” (CERDS). It was adopted by a majority but opposed by six developed nations: the US, the UK, Germany, Belgium, Denmark, and Luxembourg (Ruiz et al, 2011, p30-37).
The CERDS showcased provisions that highlighted the principle of reparation in the face of injustices by force that may deprive a nation of its necessary means for normal development; and proclaimed the right of States to nationalize, expropriate or transfer ownership of foreign property. It also included trade-related provisions.
The North-South dialogue progressively lost momentum during the subsequent years (Ruiz et al, 2011, p. 30-37), given that developed nations continued their path with their G7, G8, and G20 agendas, whereas developing nations, suffocated by foreign debt and poverty, conformed the collective South-South cooperation.
The Right to Development from the 80s to present
In 1981, three far-reaching landmarks took place:
- Through resolution 36/133, the UNGA declared the right to development as an “inalienable human right” (OHCHR et al, 2019)
- The African Charter on Human Rights and People’s Rights introduced the right to development in treaty law by incorporating it as a binding obligation on the African States.
- The Working Group on the Right to Development was established by the then Commission of Human Rights, to study the most effective means to ensure the realization of this right.
Since its establishment, the said Working Group prepared the draft Declaration on the Right to Development (DRTD) and presented it to the UNGA in 1986. Despite opposition from one country, the US, the DRTD was adopted through resolution 41/128, with 146 votes in favor, and 8 abstentions.
With the successful adoption of the DRTD as the main propeller, the concept of sustainable development gained stronger leverage at the international level, as can be evident at the Rio Declaration of 1992, and ultimately at the Sustainable Development Goals, articulated through the 2030 Agenda for Sustainable Development of 2015.
Also, in 1993, the Vienna Declaration and Programme of Action was adopted unanimously, reaffirming the right to development as an integral part of fundamental and universal human rights.
To promote and ensure the implementation of the right to development, the then Commission for Human Rights established the intergovernmental working group on the right to development in 1998. In 2004, the Commission established the high-level task force on the implementation of the right to development, to support the intergovernmental group.
In 2016, the Human Rights Council (HRC) established the mandate of the Special Rapporteur on the right to development, to further contribute to the promotion, protection, and fulfillment of this right, in the context of the 2030 Agenda for Sustainable Development. The current mandate holder is Mr. Saad Alfarargi, of Egypt. Since assuming the mandate, the Special Rapporteur produced reports on inequalities within countries, South-South Cooperation, and financing for development.
In 2019, the Expert Mechanism on the Right to Development was also established by the HRC to identify best practices with Member States.
The Right to Development today and the prospects of the future
In 2018, the HRC requested the Working Group on the Right to Development, the preparation of a draft legally binding instrument, through a collaborative process of engagement on its content and scope.
In the same year, the HRC requested the Advisory Committee to prepare a study report on the importance of a legally binding instrument on the right to development. By February 2020, the Advisory Committee discussed the second draft of the said report and presented it to the HRC in September 2020.
The report stresses, inter alia, the obstacles faced within the Working Group that “made it impossible” to fulfill its mandate; that the potential of the DRTD remains unseized after 33 years of its adoption; and that millions of people continue to live in poverty and suffer from hunger.
The report also touches upon the legally binding treaty on the right to development:
“(…) [S]everal States while reiterating support for the right to development, have not favoured the elaboration of a binding international legal standard on the right to development (…). Presenting its view that at this stage a legally binding instrument “would be counter-productive, as it does not enjoy universal support”.
However, the Advisory Committee also presented findings on how a legally binding instrument is necessary to promote the development of States, improve the living conditions of their populations, and address growing inequalities. The report specifies that under international law, States are the duty-bearers of the protection of universal human rights within their territories, however, developing countries may not reach the position to fulfill these rights to their populations due to a lack of financial resources and technical capacities.
Realizing the right to development for all peoples implies carrying out global economic and democratic reforms of financial institutions, international cooperation schemes, global trade terms, tax havens, technology transfer, and foreign debt for least developed countries.
Lamentably, the support to the legally binding instrument on the right to development mainly and almost solely stems from the NAM member States. Further advancements on the legal instrument face significant opposition from western States and their allies, including Switzerland.
The latest HRC resolution A/HRC/RES/45/6, adopted in October 2020, notes with appreciation the submission by the Working Group of the draft legally binding instrument; stresses the importance of the constructive engagement at the 21st session of the Working Group, (which will consider the draft legally binding instrument in May 2021); and encourages relevant bodies of the UN system and the World Trade Organisation to give due consideration to the right to development in the implementation of the 2030 Agenda. The said resolution passed adoption by a recorded vote of 27 in favor, 13 against (Australia, Austria, Bulgaria, Czechia, Denmark, Germany, Italy, Japan, Netherlands, Poland, Slovakia, Spain, and Ukraine), and 7 abstentions.
In this context, there is a big possibility that future negotiations on the binding international instrument will continue to be perceived as contentious and might face challenges in maintaining its essential content in the process of seeking multilateral consensus.
Much of civil society and scholars’ expectations regarding this treaty are that developed States increase their cooperation to developing states and cease the creation of obstacles to the right to development in terms of international trade and foreign debt.
The right to development continues to face a long and challenging evolution process under international law. With that said, considering the progress achieved thus far ever since the post-war period, and the slow nature of international law, there yet remain gleams of hopes for strengthening the advocacy movement towards the finalization of a binding document with solid content.
There is also great potential and expectation for the actual implementation and enforcement measures for the right to development at global level, to reach a more equal world, with fairer conditions, and universal fulfillment of all human rights: economic, social, cultural, civil, and political, including the right to development, for all.
List of References
Ruiz, J., Daudi M., Franch V. (2011) Lecciones de Derecho Internacional Público (2da Ed), Valencia.
OHCHR, UPEACE and UNU-IIGH. (2019) E-Learning Module on Operationalizing the Right to Development in Implementing the Sustainable Development Goals: -Chapter1-2, Geneva, Ciudad Colon and Kuala Lumpur.
Jennifer Tapia Boada, is an alumna of the University for Peace, and an avid advocate for the right to development, corporate social responsibility, and sustainable development. Find her on Twitter