Excellent points everyone. I think your responses reflect a significant amount of pragmatism with respect to RtD. Andres, Jesus, Maria Elisa, Maria Jose, Randa and Israa all highlight the fact that RtD, while being an excellent idea, suffers from some serious limitations in practice. But despite these limitations, the six of you were still optimistic that if these limitations are surmounted, there are ways to make the RtD operational in real terms.
Two major obstacles in operationalizing the right to development in real terms were highlighted by you, and those are 'lack of political will' and 'corruption'. Both of these are many times the cause and effect of each other, as we will see in the next session on development aid (which I really like discussing). In a lot of ways, lack of political will of the developed countries can be attributed as a major obstacle to RtD. On the other hand, corruption in developing countries (and in some developed countries) is also one major obstacle. But the important thing is that lack of political will of developed countries and corruption in developing countries feed on each other! But more of that in the next session.
Having said that, as I mentioned in my presentation, RtD started off in the 1980s, and was essentially on the backburner until the economists (like Sen) started challenging the concept of development as economic growth only. Once that was done in 1998, the human rights field took note of it and practically revived the concept of 'right to development' as well. And it was only after that, that the first special rapporteur, Arjun Sengupta, was appointed to make sense of RtD. From 1999 to about 2006, Sengupta's job was to expand the contents and scope of the RtD and produce literature on it, which was lacking. And only in the last six or seven years have we seen the operationalization of RtD begin to take shape.
The Endorois case is a good example of this fact. Despite being on the statute book (the African Charter), RtD was never invoked or pronounced upon by the African Commission until 2009. And that was because no one knew what its contents were! And no one knew how to decide whether a violation of RtD has taken place or not (the vector model was not existing). But now, after Sengupta's work, the African Commission used it to find against the Kenyan Government a violation of RtD.
Similarly, on the policy, monitoring and evaluation side of things, new criteria and sub-criteria are being developed to measure RtD. There is a whole unit now at the OHCHR dealing with operationalizing the RtD. Maria Elisa and Maria Jose also talked about the current MDGs and the post-2015 SDGs in this context. We will be discussing a lot more about this in the last week of the course when we deconstruct all the lacunae in the current MDGs. But, you all are correct when you say that the current development goals, targets and indicators are not only non-binding (they are only political committments), but are also fundamentally flawed. In the last week, I will actually make a case that the MDGs run contrary to the very idea of right to development. But let's wait for that till the last week.
Israa made a reference to the vagueness of the RtD as a concept which makes her skeptical about it. I think the skepticism stems from the lived reality of a lot of us from the third world. The fact that the concept has been on paper for a long time now, and that very ad hoc steps have been taken in isolated instances so far, fuel this skepticism. At the same time, however, it is these ad hoc instances such as the Endorois case and the criteria from the OHCHR that give scope for optimism as well. They show us that, given the right political will, the right efforts from human rights actors including courts, and the right advocacy, the right is capable of being translated into operation and implementation.
There is one very important point that I would like to highlight here. Israa mentioned the realities faced by people in the third world about lack of economic growth as being perceived as the main reasons for lack of development. And she pointed out lack of good governance as one of the reasons. In this context, she also pointed out that RtD focuses on other issues in addition to economic growth, but the contexts of third world countries might need a priority focus on economic growth.
The first thing to highlight here is that Israa's point is related to her personal experiences which reflect the lived reality of people in the third world. This is what the school of international law titled as the 'Third World Approaches to International Law' tries to bring forth. I personally identify myself as an academic leaning towards this school of thought as well, and our analysis tends to expose the limitations of international law from the perspective of the lived realities of the third world.
Having said that, it is important to bear in mind that the concept of RtD emerged from the third world countries themselves as a response to the neo-colonialist policies of the West. It is an argument put forth by the third world countries that development is a comprehensive process of enhancing the well-being of all populations, and is a matter of right, not a privilege. The concept's most important argument is that development must not stop at focusing on economic growth only, but must go beyond it and focus on whether that economic growth brings about enhancement of well-being of people or not.
Now, the argument that economic growth is a pre-condition for fulfillment of human rights has re-emerged in the last few years in academic and policy circles, and one strong proponent of this argument is economist Dambisa Moyo from Zambia. We will read about her work next week, but before that, I would highly urge you all to watch her fascinating TED talk here. She argues that in Africa, a lot of people worry more about economic growth and whether they are able to have money to survive another day, rather than some other human rights such as the right to vote. Thus, using the Chinese model of growth, she argues that a trade-off between different human rights might be essential.
The RtD framework, however, focuses on the Vector Approach. This is an entirely different approach than Moyo's ideas. The RtD approach says that there can be no trade-off between different human right. We can certainly prioritize economic rights or social rights in terms of governmental policies for fulfilling them, but such prioritizing of one set of human rights cannot come at the cost of deteriorating other human rights. In conceptual terms, that, to my mind, has been one of the biggest contributions of the RtD approach.
From my experience, I know that different participants have deeply divergent opinions after hearing Moyo's views, so i will urge you all to listen to her as we go ahead with week three.
In sum, for this week, we all agree that operationalization of RtD is not impossible - there are positive developments in the last few years to be optimistic about - but it will require overcoming some deep structural issues simultaneously. Having said that, the value of the right in advocacy terms should not be underestimated at all. It is a very strong advocacy claim, and Courts will help more and more gradually. Hopefully, as we will discuss in the last week, the new post-2015 SDGs will also transform our cautious optimism into action.
Cheers,
Mihir