Let's start the discussion here.
Hello everybody,
Dear Mihir, great question. In my opinion, the right to development is the second most important human right. First, the right to live allow our existence, and after, as I said, the right to development is the second most important human right because allow the existence and the exercise of the others human rights, like, for instance, the right to health, education or a decent housing.
Therefore, and regardless if this right is still not justiciable (enforceable) before courts of law in many jurisdictions, we can call it human right, not only for its importance, also because its special features as a human right: this human right, as the others, is universal, invisible and interdependent, and belong to the human being since our born, regardless if a court apply or protect this right...
Greetings mates,
Jesús Gavilán Hormigo.
Good afternoon:
First of all, I have to say that in general terms I agree with Jesús regarding the status of the right to development: it is a humans right. As James Nickel says, the character of human right does not depend “on recognition by particular governments rather than interpersonal standars”. But I prefer not to say if it is or not the second most important right , because human rights do not have abstract “weight”, they prevail over others, depending on the specific case. For example, in the case of euthanasia, right to life does not always prevail over the rest. Even so, I think that it is extermely important, because one of its aspects includes: to materialize and to maximize other rights.
Regarding the right to development, I believe that although it is a very important human right, in practice the legal instruments do not allow it to be enforced by itself. So, considering that it is an inclusive right, what we can be done is to enforce other rights integrated in the right to development, and that are enforceable by themselves. High courts such as Constitucional Court or even international courts, can be useful in the moment of aplying the right to development, the reason is that sometimes said Courts apply issues that are stablished in international instruments. However, States should make efforts in order to fulfill the basic needs of their citizens, furthermore to maximize or enhance their capabilities, in that sense, it will allow each individual to develop as an end itself, which is finally what the right to development demands when seen as a auntonomus human right.
Andrés Felipe Cárdenas Londoño
Hello mates and greetings from Peru!
Congrats for your answers, Jesús and Andrés. As both of you mentioned, I also consider the Right to Development (hereinafter, RtD) as a human right despite not being justiciable before courts in many jurisdictions. First, it is clear in my opinion that as the rest of human rights, the RtD is inherent to all human beings, universal, inalienable, indivisible and interdependent. Moreover, it has also been declared and recognized by the international community as a human right since 1977 in a Resolution on the UN Commission on Human Rights, and later on in the Declaration on the RtD of 1986. Furthermore, a vast majority of scholars support the classification of Human Rights in three (or even four, for some of them) categories or generations: a) First generation (political and civil rights), b) Second generation (economic and social rights) and c) Third generation (rights of groups, such as the right to achieve peace, the right to environment and the RtD that we are discussing here).
On the other hand, as my mates argued, I also reckon that the RtD comprises other human rights. I mean, as we have read in the essay “Development as Freedom”, “development” itself must address other unfreedoms that human beings have, such as famines, lack of access to health, maternal mortality, lack of access to education and so on. Therefore, the RtD comprises the recognition and protection of other human rights such as the right to access to education or the health system, the right to access to basic civil rights and some others that do are protected and enforceable before courts of law in the majority of countries in the world. So if they are enforceable, couldn’t we say that implicitly the RtD is enforceable as well? Do you agree with me?
María José Barajas
Very good discussion so far! I hope the others contribute to the forums more, because as I have pointed out in my email, the success of this coruse depends on your participation.
In my facilitation of the discussion forums, I will continuously keep challenging you all so that we get into the depth of various issues.
Now, Jesús, Andrés and María all agree that RtD is a human right, although it is not enforceable before courts of law in most jurisdictions. Their argument follows the explanation given by James Nickel to a large extent. But, this argument can be correct only if there can be some sort of accountability on States other than courts. Because, if RtD is a human right, then there must be a corresponding duty on States. If that duty cannot be enforced anywhere, isn't it a mere hollow exercise to consider RtD as a human right?
So, I want all of you to focus on the following two questions:
a. Is there a distinction between human rights and legal rights? Can certain norms be called human rights, even if they are not legal rights?
b. Are there other forms of accountability for States with respect to human rights, if Courts are not an option?
Maria raised an excellent point that if the components or elements of the RtD are enforceable, would RtD itself not be enforceable? Maria, thanks for raising this point, but we will discuss it in the next session when we go into more details of the scope of RtD. The Vector Approach of RtD, which is very unique, is quite important there.
I look forward to responses from the three of you as well as from all others to my questions above. Let's get going guys!
I think that the difference is that legal rights are rights that are enshrined in the law. This means that the key factor in the distinction is the nature of being declared or recognized by law. On the other hand, human rights can be or can not be established by law: the reason is that the law is created by the representative body of each State. Therefore, there may be legal rights that are not human rights, there may also be human rights that are legal rights too (because it has been stablished by the legislative body), also there may be human rights that are not established in the legal system. In conclusion, the character of legal rights relies on legislator´s intention. The critical issue is that even if a human right is not created by its recognition by law, the absence of said recognition reduces its effective protection because it deprives citicens of the ability to require them before a Court of law.
In relation to the second question (if we refer to National Courts), it is neccesary to remember that even if some States do not fulfil their obligation of positivization of human rights these exist as legal rights in international law(Nickel, James). So it is posible to demand their protection before international tribunals. Another option is to request to the judge (of a state without laws about certain human rights) to apply directly the international law, based on the obligation of States to respect human rights, furthermore if the State had ratified the treaty that protects the violated right.
Hello again mates,
First, I would like to clarify one point of my first answer. Of course mates, I agree with you about the fact that every human rights are important and interdependent, I mean, you know that every human rights need one another to alow their existence; then, when I said that the right to development is the second most important right, in my opinion is due to the nature of this right, because is the unique right Which produces a massive violation of the others rights, after the right to life...
About the questions proposed by Mihir, I have to say that I absolutely agree with my mates.
Human rights are always law or legal rights, I mean, as you know, the sources of law are the law, custom and the general principles of law, and therefore, we can identify human rights with whatever source, precisely because human rights are the bases of law, are the keys which vertebrae our legal systems.
In relation to the second question, I think Nickel show us the way, and Andrés explained very well this point: "even if some States don't fulfil their obligation of positivization human rights these exist as legal rights in international law...", and therefore, you can ask for national or international courts the application of these rights.
Greetings,
Jesús Gavilán Hormigo.
In reply to Andrés Felipe Cárdenas Londoño
About the autonomy of the right to development
In general terms I agree with Maria´s opinion. However I believe that it is important to establish in a very clear way, that development is an autonomous human right. Even though the right to a health system, the right to access to basic civil rights and some others that María José mentioned, have to be protected, the right to development doesn´t stop there. We have to remember that it is not about a health system, is about a quality health system, it is not about having a job; is to have a job in which people can fully develop their capacities, it is not about reducing pollution, is about ensuring a clean environment for future generations. This right involves progressively improving people’s rights. It may seem as altruism or uthopia, but the important thing is not only to survive, but to have the freedom to choose from multiple options in order to be able to live with an aceptable quality of life. So we are not talking about fulfiling basic needs, it is about ensuring the essential tools to have the opprortunities to decide the course of your life
Therefore, it is indispensable for States to protect the human right to development not only with the internatiional treaties, but also in their national legislation, in their politics, and in their general procedures.
Hello everyone;
Development conceptualizated in human rights because, as the profesor explained development must address the unfreedoms that we have in our lives, these include denial of the basic freedom to survive such as famines, undernutrition, and access to health care, sanitary arrangements or clean water, maternal and premature mortality. Development not only included the economic growth, it also included freedom, opportunities, security, health care, etc, and those are basic human rights, which are also policy issues. Each country has to pay attention to economic growth and human rights, they are linked.
About the question a, as James Nickel said "human rights and their exercise are generally subject to regulation by law”. Human rights have rightholders which are everyone in everywhere, there are some rights for some people for example, the right to vote, that it is a civil and political right, this right in most of countries are apply to people to have 18 or more years old.
To refer in question b, there are minimal standards for governments which are legal and policy issues to democratic decision making in national level. In international level, there are a human rights block of common threats to a decent or minimally good life for human beings, as a Universal Declaration of Human Rights. In other hands, the international institution that supervise or, regulate the protection of human rights around the world.
Dear Mihir:
I think it has become clear the consideration of development as a genuine human right. However, the reinforcement of this right depends on the legal validity provided by the domestic law. In my opinion, the constitution is a good tool to guide public policies towards development goals. In reference to your question, I think that the main difference between legal rights and human rights is the nature of provision. I mean; the state can recognize a legal right to its citizens, however, this legal right can be modified or removed by another legal instrument. Human rights, on the other hand, are recognized by our status as human beings, therefore, they have a special protection and the state can not act in the same way. If the state commits human rights violations may be sanctioned by the international community. If national courts can not ensure respect for human rights, international law has formulas of punishment and coercion to ensure its respect.
Best Regards
Armando
Excellent points Andrés, Jesús, Katerinne and Armando.
1. I asked you all whether there is a distinction between human rights and legal rights. And in this context, Andrés, Katerinne and Armando pointed out that there is a difference; while legal rights are enacted by laws, human rights need not be so recognized. Their argument is that human rights exist because we are human beings. Jesús agreed with the same generally, but also argued that all human rights are indeed legal rights. Now, this is where the issue of RtD becomes complex. There is no universal acceptance yet that RtD is customary international law. Several scholars have argued that the Declaration has not yet converted the norm into Customary international law. It is certainly not a treaty law, nor can we claim that it is general practice because there are very few countries who treat development as a human right domestically. So, our starting point for the discussion on RtD is that it is certainly not a legal right. But is it still a human right?
I want you all to also bear in mind the difference between legal rights at the domestic level, and legal rights at the international level. Not all rights that are legal rights at the international level are legal righs at the domestic level. For instance, look at the provisions of UDHR. Now, we know that the UDHR is an essential component of the International Bill of Human Rights (along with the ICCPR and ICESCR). There is universal acceptance that rights mentioned in the UDHR are human rights. Yet, not all those human rights are legally enforceable before many courts around the world. For instance, right to work, food, health, etc. are considered human rights in the UDHR, but are not justiciable in courts in a significant number of countries (including some developed ones like the US).
Moreover, note that this is not only a question of an arguably non-binding (as some argue) UDHR. Let us now consider the ICESCR, a legally binding treaty. Remember that most States have ratified the ICESCR, which is a binding treaty, yet hardly a hand few of those States have made its provisions legally enforceable before domestic courts! For instance, in most countries, right to health, food or work is not legally enforceable before domestic courtes, unless they can be invoked through some civil rights such as right to life. So, these States have internationally agreed that they are bound by ICESCR human rights, but have not given enforcement mechanisms through courts to their citizens.
But in case of RtD, there is no consensus on whether it is law at all, either at the international stage or the domestic stage. Yet, the Declaration emphatically states that it is a human right. So, the situation of RtD is at an even more complicated level than the ICESCR rights that States have agreed as law at the international level, but have not incorporated them at the domestic level.
So, my question to all of you now is, the fact that RtD is not considered a legal right either at the international level nor at the domestic level by most States mean that it is not a human right? I may remind you of what Jeremy Bentham said about your arguments suggesting that human rights are natural rights. He said "Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense — nonsense upon stilts". Do you agree? If you don't, what is the normative basis for your arguments?
2. I am still looking for the answer to the second question whether there are mechanisms other than courts to hold States accountable for violations. This is an important question because under the idea of human rights, not only do human beings have human rights, but States have corresponding obligations as well. If States cannot be made accountable in any way for non-fulfillment of those obligations, then one may legitimately argue that those norms are not really human rights but only aspirational goals. Therefore, we need to look into whether courts are the only accountability mechanisms possible for States. Any answer in the negative will mean that we need not treat legal enforceability before courts as decisive of whether a norm is a human right or not!
In response to the second question, all of you suggested that if domestic courts are not capable of enforcing RtD, we can go to international courts/tribunals/supervisory mechanisms. Armando even suggested that "international law has formulas of punishment and coercion to ensure its respect." But, given that RtD is not capable of being enforced even before international courts because it is not considered customary law (except, of course the African system, where the right is specifically mentioned in Art. 22 of the Banjul Charter), are there no other accountability mechanisms for States other than the international and domestic courts? Also, international coercive actions may not be an option for violations by a State of develpment as a right. So, what else can be done? to make States accountable?
Again, I am asking these follow-up questions because these are very important to making sense of human rights as a concept itself, but also resolving these complexities.
Hello friends,
I think that in order to answer your question we must first define human rights which can be defined in a very simple way as rights we are entitled to for merely being humans.
if you read the Universal declaration of Human rights you can notice that if these rights are realized they will ultimately lead to development. Thus, I see development as the product and ultimate end of enforcing human rights. Also, reading the Declaration of the Right to Development i do not see any components that are different from that of the declaration of Human Rights. HOWVER, that right to development will only be reached if human rights are realized.
However, I believe it is still hard to enforce the Right to Development before the court of law as it is almost impossible to set a measure in practice of "the standard or minimum level" of fulfilling the "right to development" as I think development itself is a never ending process, that is, it is constantly progressing in parallel with the standard of living of the people.
Personally, i fail to understand how it will ever be possible to enforce such a right and holding government accountable for not fulfilling right to development specially with regards to developing countries where lack of development in the majority of these countries is directly linked to the lack of sufficient income to be used for implementing development projects to cover the whole country.
But then again, if it is, it will provide incentives and pressure on the government to work harder, with more transparency and less room for corruption towards fulfilling to right to development.
Hello everyone!
Sorry for coming in late in the discussion. I have read everyones comments and a number of excellent points have been made. Since a lot of questions have been raised and answered already, I will try to answer the questions from Professor Kanade's comment on 13 June.
First and foremost, I think human rights and development are like two peas in a pod. They complement and reinforce each other to achieve the same ends. I think that human rights are natural rights in so far that they exist independent of laws, customs or government and that they universal and inalienable. Since human rights and development go hand in hand, as I mentioned earlier, hence the right to development is in my opinion, a natural right as well. I do not agree with how Bentham describes natural rights as nonsense upon stilts. From what I understand, for him, natural rights are basically rubbish and the only real rights are legal rights established using the utilitarian approach, meaning rights that maximizes overall utility. If that is the case, then should we stop criticizing governments with laws that we think violate human rights because for them it is for the common good, based on universal versus individual interest argument? For example, China's one child policy which was introduced to alleviate social, economic and environmental problems of the country in the 1970s is then justifiable on the grounds that the government thinks it is for the common good. But many believe, including myself, that this is a violation of human rights. Governments cannot stop its people from having children if they want to and neither should they force abortion to women. If they want to stop their population from exploding, there are other alternatives, like investing on educating their people. I am not really sure if I answered your question, Professor Kanade, but that is how I see it, maybe I have misunderstood Bentham. I would very much appreciate your thoughts on this.
I am still reflecting on the question on alternatives on how to make states accountable. I think this such a complex issue because it is essentially linked on the very definition of human rights and its interpretation. While there is a standard definition (from the UN Declarations) accepted by many, it is still very much a contested concept, which has implications on its application. Even some people think that human rights is something that is context dependent or something that is socially constructed.
Thank you and enjoy the rest of whats left of the weekend!
Maria Elisa
Just a thought.. maybe aside from courts, civil society can be a mechanism through which States can be held accountable for human rights violations. I mean, civil society can put pressure on States, with the use of different platforms such as the social media. It does not exactly have legal weight but it has been done before -- e.g. people power revolutions.
Hello again mates,
Welcome Isra and Elisa. I just would like to add a comment about one of the questions proposed in the last message by Mihir. I wouldn´t to anticipate other issues, but related with the topic about what can we do for enforce human rights, and more exactly, the right to development, beyond ask for its protection from national and international courts, I agree with Elisa when she said that the presure of civil society it is very important in this issue, and also, I think enterprises are one of the main actors, with states, that have the responsibility to enforce and guarantee the fulfilment of human rights and specially the right to development; I am talking about corparate social responsibilities policies. As you know, the aim of these kind of policies is the application of the human rights principles to the policies of the company in order to achieve shared values: the company increase its profit, gain trust and reputation, and the society gain social and economic development. Then, and according with the fact that many enterprises have more assets than states to develop social projets, it is obvious that if we want to create a society more fair and equal, based in the only economic system possible, sustainable develoment, enterprises and states must colaborate together to reach this goal.
Greetings,
Jesús Gavilán Hormigo.
hello again!
Maria Elisa mentioned excellent points about the role of the civil society.
I think overall it is a collective action from International Organizations, civil society, and activists in the countries that together can put pressure on the government with regard to its violations of human rights or atleast raise awareness in the international community to the shortcommings of the state on its people.
Good points Maria Elisa, Jesus and Isra. All of you are right that:
1. There is a basic difference between human rights and legal rights. Human Rights exist simply by virtue of our embodiment as human beings. They are not 'conferred' by anyone on us - not even by law - we simply have them whether by recognition through law or without such recognition by law. Many scholars have therefore pointed out that the UDHR merely declared what already existed as human rights; they did not create new rights. When human rights become recognized as legal rights also, they become more effective. They become more effective because there now exists one more avenue for making States accountable for violations of human rights. This additonal avenue is through courts.
2. But, what other avenues apart from Courts are available to citizens for holding States accountable for human rights violations? If we map the accountablitly mechanisms that citizens have employed against States in the post-WWII period, it will not be surprising to find that most of the avenues employed have not been through courts at all. Of course, the context matters, but at a global level, some interesting points can be observed. Fair elections and free press have been extremely instrumental in holding governments accountable. When violations cross a certain threshold, courts are hardly the avenues people choose. The Arab Spring, the protests in Brazil against price hike, the protests in India against failure of the State to protect women, non-cooperation movement by indigenous peoples' in Canada (the Idle No More movement), etc. have been the preferred options. All of you mentioned the role of civil society, and quite obviously, that is key. Not only in protests, but also in 'naming and shaming'. Lot of NGO's publicize inaction by States on human rights to put pressure for action. The practice of human rights impact assessments is on the rise and has been increasingly instrumental in getting States to act and be accountable. 'Naming and Shaming' is not only at the civil society level; the bulk of investigative bodies at the national levels such as National Human Rights Commissions now present in most countries, are supervisory in nature and are quasi-judicial. Similarly, a significant number of human rights bodies - both Charter bodies and treaty bodies - under the UN system are quasi-judicial, and their decisions are not binding. The recommendatory nature of these decisions are aimed at naming and shaming. Holding governments accountable through the special procedures such as Rapporteurs, complaints mechanisms, fact-finding etc. have been quite helpful in getting States into the mode of 'knowing and showing' rather than having to face 'naming and shaming'.
3. In view of the aforesaid, it is clear the RtD is a human right, as the Declaration itself emphatically states. This has been repeated by States in several other international instruments, the latest being the UN Declaration on Indigenous Peoples' Rights, when the right to development was expressly mentioned as a human right.
4. As I have mentioned above, enforceability before courts does give an additional avenue for accountability, but the same is not the only option. In case of RtD, in fact, many scholars have argued that civil society pressure, free press, naming and shaming, and fair elections, might work much better. Courts can of course be used for 'strategic litigation' as and when required.
Next week, we will go deeper into examining the scope of development as a human right, and its operationlization.
Hi everybody,
Iam sorry I've been late. I agree with you , we all have the same right but we are not in the same situation. What about the develpoment and the globalization. Many times we feel that being like everybody is having a right to be the same but it is the opposit as we feel frustration because we have a lot of things I mean in the market such malls and all kind of famous products and clothing etc., but we cannot apply for the best social services niether the good health and welfare.
In the case of having the best brand names and the people cannot buy anything it is not fare because we can say that these countries are getting in develpoment but the people still poor and without the most important thing for human being which is living with diginty.
It is true we have a choice to be part of this world in the market but we still poor and without posibility to get the basic services as education, health and social services.
Many countries have a different laws which is completely against the diginity of a person .
Thank you Prof. Mihir for introducing us to these important questions in this life.
Hopping to have more discussion soon.
Bests,
Randa.