The Right to Development: can the Language of Human Rights add force to development goals?
Author: Jessica Moe
Originally Published at Peace and Conflict Monitor on: 07/07/2008
Category: Analysis II
Human rights and human development have been variously linked together in search of powerful policy. To this end, the “right to development” has been elaborated in various international instruments, including the 1986 Declaration on the Right to Development (DRD) and 1993 Vienna Declaration (VD). “Human rights” is a powerful concept, for reasons of normative force and conceptual framing; that rights language can add force to “development” goals is an attractive possibility for some. However, the ambiguities and complexities of “development” may not lend this concept to the application of a human rights framework with positive outcomes. Both theoretical and practical considerations are necessary to critically assess whether the “right to development” does in fact add positive value to the conceptualization of development processes.
There are many ways of conceptualizing both human rights and development; many of which are certainly compatible with one another. Amartya Sen characterizes development as the expansion of substantial human freedoms and human capabilities to enjoy these freedoms (Sen 1999). Congruently, human rights may be conceived as minimum standards that must be fulfilled to afford to all human beings a decent and dignified life. Hereinafter, unless otherwise specified, Sen’s definition of human development and the rights-as-minimum-standards understanding of human rights will be the approaches through which the “right to development” will be analyzed.
At first glance, the linkage between human rights and human development is logical and even obvious. Views on capabilities-based development and human rights as minimum entitlements both centre upon the human individual, focus on empowerment, and necessitate investment in health care, education, and basic social services. The 2000 Human Development Report asserted that “human rights and human development are close enough in motivation and concern to be congruous and compatible, and they are different enough in strategy and design to supplement each other fruitfully” (UNDP 2000, 19). Indeed, meaningful overlap allows these concepts to mutually reinforce one another, while the further added value of the “right to development” draws from the key, distinctive features of human rights.
First, “human rights” adds a language of entitlements and duties to ideas of human development. Human rights and human capabilities speak of similar things; in Sen’s words, entitlement is “the set of alternative commodity bundles that a person can command in a society using the totality of rights and opportunities he or she faces” (Sen 1983, 18, in Elson 2002, 100). The advantage of affording rights to individuals is that this empowers them vis-à-vis the State; hence, programmes and actions to ensure basic standards of living are no longer well-meaning policy decisions of a government concerned with the development of its people, they are responsibilities for which governments can be held legally accountable. The “right to development” is inalienable (Article 1 DRD; Article 10 VD). Hence, asserting that individuals or collective groups have this right means that its enjoyment through, inter alia, access and availability of certain essential goods and services becomes a matter of obligation primarily on the part of the State, but also with regard to the international community (Sengupta 2002, 873). Rights have greater normative resonance than the language of capabilities; they impart a sense of agreement and the idea of a justified claim entitled to the human being (Nussbaum 1997-1998, 296). Thus, human rights are forceful instruments to attain development goals. As Nussbaum asserts, rights may precede capabilities, as grounds to secure them (1997-1998, 293).
The value of framing development as a right may furthermore allow the root causes of development ills to be addressed. To illustrate, Sen characterizes most cases of global starvation as arising “not from people being deprived of things to which they are entitled, but from people not being entitled, in the prevailing legal system of institutional rights, to adequate means of survival” (Sen 1981, 159, in Elson 2002, 101). Hence, to the extent that lack of capabilities stems from lack of entitlement, securing peoples’ basic rights is a way to achieve sustainable solutions to underdevelopment. To guarantee citizens’ rights is “to put them in a position of capability to go ahead with choosing that function if they so desire” (Nussbaum 1997-1998, 293).
Conceptually, human rights also contribute principles of equity and justice to development (Sengupta 2002, 848). Inherent in the notion of human rights is the idea that these accrue to all human beings. Hence, “the right to development” necessitates a non-discriminatory amelioration of living standards within development goals and policies. A human rights development agenda is characterized by “social justice”, prioritizing non-discrimination and focusing on the most vulnerable (Fukua-Parr 2007).
Human rights are also instrumental as ideas that empower people through awareness (Fukua-Parr 2007). Human rights can be seen as inspirational, in the sense that they are a means of resisting established and oppressive power through individuals’ empowerment (Orford 2001, 175). Rather than dwelling solely on individuals’ functionings as in the capabilities paradigm, rights emphasize peoples’ autonomy and choice to seek out opportunities (Nussbaum 1997-1998, 296).
The above discussion shows clear advantages of merging concepts of human rights and development towards a common goal of expanding human capabilities. However, all of these notions of added-value assume “development” to be a noble goal, while criticism regarding the desirability of the developmental aims must be raised. For instance, Escobar reflects skepticism with the notion of development itself, in that it necessarily imposes neo-imperialistic, exploitative requirements on Third World states by defining “progress” according to a Western standard (Escobar 1995, 52-54). By enshrining development goals within the normative framework of human rights – which adds an element of imperative – an inherently discriminatory and unjust process and agenda risks becoming legitimized (Orford 2001, 180). The lack of consensus on “development” makes achieving a universally acceptable and politically neutral “right to development” a difficult task.
Ambiguities of definition show the feasibility problems of combining discourses of human rights and development. Within the “right to development”, the determination of rights holders is unclear. Both the DRD and the VD state that the human person is the central subject of the universal and inalienable human right to development (Article 10 VD, Article 2.1 DRD). The DRD also establishes that the right to development accrues not only to “every human person,” but also to “all peoples” (Article1.1). The right to be supported in development is also attributed to “least developed countries” (Article 9 VD) and “developing countries” (Article 4.2 DRD), and States have both a right and duty to formulate appropriate national development policies (Article 2.3 DRD). Hence, three distinct rights holders have been elaborated: the individual human being, the collective, and the developing nation. The notion of development is complex in that it applies on several levels; this complexity makes the concept hard to transduce into a rights framework. Entitling the right to development to three rights holders will inevitably lead to conflicting claims; one could easily foresee the right of the collective to benefit from a hydroelectric dam to be in conflict with the right of the individual, whose property and livelihood is altered by the project, to fulfill his human capabilities. Equally, the right of the developing State to apply a rigorous programme of economic development in the perceived long-term interest of its population could conflict with both collective and individual rights to development when policy priorities are set that detract from social goals. The complexity of development as a concept has forced international rights definitions to be broad; this broadness does not add much to the understanding and application of the right to development. Courts could help to define the right through jurisprudence, but the instruments themselves provide little guidance as to the prioritization of the “levels” of the right.
The second question begging clarification is the identity of the duty bearer of the right to development. The DRD clearly identifies the responsibility of the State to cooperate (Article 3.3), to formulate international development policies (Article 4.1), and to take all necessary measures to ensure “equality of opportunity for all in their access to basic resources, education, health services, food, housing, employment and the fair distribution of income” (Article 8.1). However, the DRD also states that “sustained action is required” and that “effective international co-operation is essential” to promote the development of developing countries (Article 4.2); the notable use of the passive voice avoids identifying clear subjects of these duties. Developed nations, international organizations, the United Nations, civil society, multinational corporations, or the general international community could all be potential candidates. However, the lack of clear determination of duty bearers hinders the justiciability of these rights.
Hence, despite the potential instrumental and conceptual benefits of pursuing development through human rights, the complexities of “development” make it difficult to define as a right. Even so, “development” and “human rights” have been jointly considered within legal contexts, with promising hints of success.
In the Ogoniland case, the African Commission found the Nigerian government responsible for directly participating in air, water, and soil contamination, to the detriment of the Ogoni peoples’ health; failing to protect the Ogoni people from harm caused by the Shell consortium; using its security forces to facilitate damage; and failing to permit studies of the potential health and environmental harm due to the oil operations (para. 50).
Although the “right to development” as such was not defined in this case, the Commission recognized that a collective people’s development depends on other human rights, notably the right to a satisfactory environment and the right to health. The Commission determined that the Nigerian government violated, inter alia, the right of “all peoples” to “a general satisfactory environment favorable to their development” (Article 24 African Charter on Human and Peoples’ Rights [ACHPR]). Article 24 is interesting because it indirectly insinuates the right of a people to their development, through their right to a favorable environment thereto. In interpreting Article 24, the Commission recognized “the importance of a clean and safe environment that is closely linked to economic and social rights in so far as the environment affects the quality of life and safety of the individual” (para. 51). The implication here is that an environment that is clean, safe, and in which economic and social rights are respected is favorable to individual quality of life and safety, outcomes that the Commission thus implicitly links to the notion of “development”. The Commission further interpreted Article 24 in close conjunction with the right to health (Article 16), and stated that giving effect to these rights does not preclude the right of the government to produce oil so long as the income from this is “used to fulfil the economic and social rights of Nigerians” (para. 54). Hence, two bearers of the right to development are identified – the government, through its right to exploit oil resources, and Nigerians, through their right to individual development as outlined above (indicated here as the fulfillment of economic and social rights). The government’s right to development is qualified in that it must lead to the peoples’ development. Thus, the purpose of development is defined in human rights terms; only by respecting rights to health and to a favorable environment and by leading to improvements in economic and social rights can development be legitimated and justified. Compliance with Article 24 also involves procedural duties, such as engaging independent scientific monitoring and environmental and social impact studies, providing information to affected communities, and “providing meaningful opportunities for individuals to be heard and to participate in the development decisions affecting their communities” (para. 53). Hence, in the Ogoniland case, human rights play an important role in outlining when and how development can legitimately take place. Development connotes positive improvements in a peoples’ situation, as defined by them.
Hence, despite skepticism concerning the value of development and complicating ambiguities and complexities in the concept of “development”, there can be positive results of expressing it as a right. One of the key advantages of the “right to development”, in addition to its instrumental, normative, and conceptual value, is its conceptualization of development as a process rather than end-goals. The preamble of the DRD recognizes development as “a comprehensive economic, social, cultural and political process,” and subsequently qualifies the right thereto to include entitlements “to participate in, to contribute to, and enjoy” (Article 1.1 DRD). The Ogoni people were not afforded an environment favorable to their development not only in the physical sense, but also because they were neither consulted nor involved in the oil operations on their territory (paras. 5 and 6).
In conclusion, at a theoretical level, human rights are of value instrumentally – they are claims with force – and conceptually – bringing ideas of basic entitlements, equity, distributional justice, and individual empowerment into the development discourse. However, skepticism with the desirability of development itself, and difficulties of elaborating the rights and duty bearers of the “right to development” make the merging of “human rights” and “development” difficult in practice. Nonetheless, the Ogoniland case is promising in that it insinuated a linkage between the rights and development of people, towards the self-determined improvement of their situation. Development was interpreted as a right whose enjoyment necessitates the fulfillment of other rights (notably, the rights to health and to a clean environment). Even if development is a right of both the State and its people, it is only legitimate when it leads to the expansion of peoples’ economic and social rights. Hence, the “right to development” can add to the conceptualization of development: it has the potential to strengthen and qualify when and how development is legitimate and justified. If developed carefully in jurisprudence, “the right to development” can help to ensure that development engages individuals and peoples in a process that leads to meaningful improvements in their condition.
African [Banjul] Charter on Human and Peoples’ Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force Oct. 21, 1986. http://www1.umn.edu/humanrts/instree/z1afchar.htm.
Declaration on the Right to Development, G.A. res. 41/128, annex, 41 U.N. GAOR Supp. (No. 53) at 186, U.N. Doc. A/41/53 (1986). http://www1.umn.edu/humanrts/instree/s3drd.htm.
Elson, Diane. 2002. ‘Gender Justice, Human Rights and Neo-Liberal Economic Policies’. In Gender Justice, Development and Rights, ed. M. Moyneux and S. Razavi, 78-114. Oxford: Oxford University Press.
Escobar, Arturo. 1995. Chapter 2: ‘The Problematization of Poverty: The Tale of Three Worlds and Development’. In Encountering Development: The Making and Unmaking of the Third World. Princeton: Princeton University Press.
Fukua-Parr. 2007. Human Rights Based Approach to Development – Is it a Rhetorical Repackaging or a New Paradigm?. HD Insights 2007 7. http://hdr.undp.org/docs/nhdr/insights/HDInsights_Apr2007.pdf.
Nussbaum, Martha C. 1997-1998. Capabilities and Human Rights. Fordham Law Review 66: 273-300.
Orford, Anne. 2001. Chapter 5: ‘Globalisation and the Right to Development’. In Peoples Rights, ed. Philip Alston. Oxford: Oxford University Press.
Sen, Amartya. 1999. Chapter 2: ‘The Ends and Means of Development’, and Chapter 4: ‘Poverty as Capability Deprivation’. In Development as Freedom. New York: Alfred A. Knopf.
Sen, Amartya. 1983. Development: Which Way Now?. Economic Journal 93; reprinted in Jameson, K. and C. Wilber (eds.). The Political Economy of Development and Underdevelopment. New York: McGraw-Hill.
Sen, Amartya. 1981. Poverty and Famines: An Essay on Entitlement and Deprivation. Oxford: Clarendon Press.
Sengupta, Arjun. 2002. On the Theory and Practice of the Right to Development. Human Rights Quarterly 24: 837-889.
The Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria, African Commission on Human and Peoples’ Rights, Comm. No. 155/96 (2001). http://www1.umn.edu/humanrts/africa/comcases/155-96.html.
UNDP. 2000. Human Development Report: Human Rights and Human Development. http://hdr.undp.org/reports/global/2000/en/.
Vienna Declaration, World Conference on Human Rights , Vienna, 14 – 25 June 1993, U.N. Doc. A/CONF.157/24 (Part I) at 20 (1993). http://www1.umn.edu/humanrts/instree/l1viedec.html.
Bio: Jessica Moe holds an MA in International Law and Human Rights from UPEACE.