Right to Development is still not justiciable (enforceable) before courts of law in many jurisdictions. Is it then, still valid to call it a human right? Is this so called right, not merely a window-dressing, if there is no court that can make government’s accountable for its violation or non-fulfillment?.
Let's start the discussion here
Being realistic: The Right of Development is not still a Human Right, because it is not written in the Human Rights Chart, because there is not any compulsory rule which obliges to any state to accomplish it, neither punishment nor any sanction - Nullum crimen, nulla poena sine praevia lege -So, technically, we can not call it a "Human Right".
Now, at this moment it is not possible to make responsible any state for violating such "intention", because it is not still a propper "right".
We have identified the problem in order to make states responsibles for violating that "right": To make justiciable the Right to Development. The solution: To make justiciable and make the "Right to Develpoment" a real right. How? we may need to write it and develop its redaction, making it precise with specific parts. To define what is "development", to specify which ways are needed to make real the development, to specify which attitudes make development impossible or to delay it, and having done the fact of the law, we may draw up the legal consequence of violating the fact: The legal consequence. And in the legal consequence, we may accord the sanction and measures to apply. Of course the better -from a practical point of view- is to have transfered such International Law to the national legal system of the states.
Or first and, step by step, we may need a "resolution" -not a mere "declaration"- from United Nations. Nevertheless even the "Right to the development" is not still a Right, it is growing-It is in the legal process to became a technically real "right"- and finally it will be a real "right". But not today, tomorrow.
The most widespread view between the ius internationalist doctrine that has paid attention to the right to development is that this is in the process of juridical positivisation, in the process of acquisition of international standards. In the words of Hitters , it would be a right "developing".
Therefore I understand that it s a right that is in the process of being duly positivizado, still in purely legal terms cannot be understood as a human right, as the right to development as a human right of third generation is still very little deployed in legal terms.
In addition to what has already been developed in the previous lines and replying to the second question, I understand that to be a human right in tracks of positivization, no government can be held liable for not deploy it properly. In my opinion there should be a process of reform of the constitutions of the member countries of the United Nations, to include the same rights of third generation.
In my opinion there should be a process of reform of the constitutions of the member countries of the United Nations, to include in the the rights of third generation, while there is not a commitment on the part of countries to initiate this process the human right to development and the rest of third generation rights, will be no more than a set of statements and resolutions with pretty words.
It is clear that the ‘Human Right to development’ (RtD) still lacks implementing rules and norms, including rules about sanctioning system in case of that Right is breached. From a pragmatic point of view, perhaps it may be said that it is not a ‘full membership’ right. Now, the fact there are not established sanctions doesn’t mean it is not a right. In my opinion – I’m not a lawyer, just to make it clear – we can’t reduce the recognition of a right merely to the setting up of its implementing procedures. All legal systems (and above all, the international legal system) are a work-in-progress. Most of rights and laws worldwide were born as simple ‘principles’ first (even in national legal systems, for example in many constitutions), and they were enforced later through specific regulations.
Moreover, from a different point of view (is it ‘legal psychology’?), I think it would be a mistake not to call the RtD a Human Right, as we would somehow assume that it is just a pretty declaration, or an appealing purpose; whereas, on the contrary, it has already be declared a Human Right by the General Assembly (resolution 41/128, in 1986). It means that international community actually has the duty of setting up measures and mechanisms for the follow-up (both nationally and internationally), to ensure its full implementation. The point is that the RtD is an extremely wide-ranging right, as it includes the fulfillment of very many other Human Rights (civil political, economic, social, cultural… rights), so it is normal that it takes quite a long time to reach specific agreements such as treaties, rules and regulations.
Meanwhile, states can still contribute to its fulfillment and implementation. An example: after the Right to Water and Sanitation was acknowledged as a Human Right by UN General Assembly, Bolivian Government made big efforts (both technically and financially) to progressively realize increasing people's access to water and sanitation (actually, Bolivia’s improvement in assuring the Right to Water and Sanitation was widely recognized, and it allows the fulfillment of the corresponding Millennium Development Goal).
The most important thing about rights is that they are just that; they are rights. No matter if an individual, dictatorship, or democracy denies rights, they still exist and must be protected. If it is allowed for one nation to have more human rights than others than it would imply that human rights protection is subject to geography, and not to being a human being. The right to human development can be argued to be part of the right to self-determination.
The right to development as defined by article 1 of the UN Declaration on the Right to Development defines development as
“an unalienable right where every person and all people 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.”
To better understand what not recognizing the right to development implies me must look at the possible consequences; if we do not classify the right to development as a human right then what we are doing is allowing governments to define how much economic, social, cultural and political freedom individuals have and essentially making it ok for governments to be repressive.
Nickel writes about the three stages in the evolution of a legal right; we are already at the first two stages in that we have identified rights and moral duties. The next stage as he writes involves constructing a legal framework to enforce them.
Great start to the discussion! I think your discussion essentially summarizes the different points of view that are out there among scholars on the nature and scope of the right to development. Whether RtD is a human right, despite it not being justiciable, is a very important question that strikes at the very root of human rights philosophy. And this is because, there are indeed several human rights (for instance, right to water as Aram mentioned) that are not enforceable before courts of law. Are they still human rights then? This is a vital question in order to understand and make sense of the concept of human rights itself. And that is why I added the reading from James Nickel because, quite frankly, he gives the answer to this question.
Francisco and Jose have argued that RtD is not a human right because it is not justiciable before courts of law and there is no way to make States accountable for it. Aram has a contrary view. He seems to be drawing some sort of a distinction between 'human rights' on the one hand and 'legal rights' on the other. In other words, he seems to be arguing that even if the right can't be enforced before a court of law, it is still a human right (as is mentioned in the Declaration on the Right to Development itself).
So, I want you guys 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?
Again, Nickel provides the answer, and it will be interesting to see what other colleagues say.
Let's keep the discussion going!
Very valid points Jose. Please see my follow up questions in the common response below :) I think we are all on the right track in this discussion, so let's keep this going.
Humans Right are "legal rights". Through the ratification of the international human rights treaties, the states assume to make their domestic law compatible with the Human Rights, so the Humans Right become domestic law.
Human Rights are the Real Human Rights, and there are no more. Perhaps one day the "Right to be happy in the marital action" will be a Human Right, but today that is not any Human Right and, until such "right to be happy in the marital action" will not be a real Human Right, we can not call it a "human Right".
From my point of view, to call "Human Right" to things ("certains norms", wishes, intentions or declarations) which are not yet "Human Right", deteriorates the image of the Human Rights.
About the accountability: When Courts are not an option -eg.: if the state has not signed to assume institutions like the ICC, or if the state has not ratified any human right treaty and they are not part of the domestic law of the state- the only option is the "free" public opinion, which can make falling a government or a regime. And for working, the public opinion must be "free", and for being free there are many legal mechanisms. The more democratic and free is the country, the better works public opinion as a tool for making the states to respect Human Rights.
And the role of some NGOs and some international organizations; which can influence to make the state to get sanctions.
Interesting points Francisco. Please see my common response below wrt UDHR as follow up food for thought. About other accountability mechanisms, you rightly point out free public opinion and civil society actions. Again, please see my common response below for follow up questions on that.
Well, I insist on my previous point (and I do agree with Alex). In history, International Law has had an inferior status than domestic legal framework. However, there has been a clear trend of giving to international law an increasing prominent role in international relations. What I mean is that we have seen how national sovereignty has been gradually eroded by several practices.
These practices are carried out sometimes through treaties which derogate national sovereignty to an upper level (integration processes like the European Union; the WTO and IMF rules; etc.). In other cases, especially while talking about Human Rights, the international community has set some widely accepted principles, which states are expected not to break, regardless they have ratified a treaty about the specific issue or not. An example: even if a state sets down a law saying that torture is legally allowed, the international community won’t accept that. New principles have been established in order to face such situations: the international jurisdiction of Human Rights, and the Responsibility to Protect (R2P). Under these principles, the UN Security Council, for example, allowed the international intervention in Libya. “If a State is manifestly failing to protect its populations, the international community must be prepared to take collective action to protect populations, in accordance with the Charter of the United Nations” (http://www.un.org/en/preventgenocide/adviser/responsibility.shtml). You see: sometimes, states’ will just doesn’t matter at all.
In other words: Human Rights cannot be considered as merely state-centered rights. We have to think out of the box, and assume that the jurisprudence is an ever-developing framework. The international community has already acknowledged the RtD as a Human Right: this assumption sets up an obligation, not just an undefined goal, for states to gradually convert it into practical mechanisms (obviously, the quicker, the better). By the way: the international community, and specifically the UN General Assembly which acknowledged the Human RtD, is not a sort of an ‘alien body’: it is made up by the states themselves.
In this sense, I think that:
(1) A legal right is just the status that a right acquires when it becomes enforceable within a specific country. But again (as Alex says): we cannot define Human Rights as geographically limited rights: i.e., freedom of expression is still a Human Right even though each state has different legal measures to enforce it to certain specific extents (and some states even don’t allow it at all!). I totally agree with James Nickel assumption: “Legal enforcement is generally important to making rights effective, but is not essential to the existence of rights”.
(2) About accountability out of national legal systems (in which certain rights are not enforceable): certainly, as Francisco says, public opinion is a good point, although it is limited by each country’s relative freedom of speech and democracy. Another point can be the pressure of international community over the states which violate the rights. In addition, I would say that maybe the enforcement of international jurisdiction doctrine could help develop a trans-national framework where some more advanced states eventually could legally claim the fulfillment of a human right being violated in a third country. Am I right? I’d like to have some feedback at this regard.
All of these are great points Aram. I am glad you pointed out Nickel's statement as that is indeed crucial to understanding human rights as a field. His book is rightly called 'Making Sense of Human Rights'. Please see my follow up questions below in my common reply to all. In so far as your question about universal jurisdiction is concerned, rememer that universal jurisdiction is a concept applied for prosecution of gross crimes such as genocide, crimes against humanity, war crimes, torture, naval piracy, aircraft hijacking, slavery etc. In other words, Belgium can have domestic laws that allow prosecution of a Congolese person in Belgium for crimes against humanity, even if the perpetrator is not Belgian, the victim is not Belgian or even the place of crime is not Belgium. However, there are two points to remember. One, this jurisdiction is only for individual criminal responsibility. State Responsibility is not amenable to universal jurisdiction. In other words, while Belgium can prosecute Congolese general for crimes against humanity, it cannot sue the State of Congo in a Belgian court. Second, universal jurisdiction is closely tied in with the concept of erga omnes (i.e. the principle that certain obligations are owed by every State to others). Therefore, the trigger for universal jurisdiction is 'gross' and 'serious' violations of human rights (genocide, torture, crimes against humanity and war crimes) that are also 'crimes;, not any 'normal' violation of human rights (such as right to water, health, food or development). Now, potentially, in the future, universal jurisdiction might be developed to a level where all of these can be possible - who knows - but that is highly unlikely at least in the current world order we live in. I hope I have given some insight into your question. Having said that, apart from the two other accountability mechanisms for States that you have rightly mentioned, there are some more. What could they be?
Great point Alex. So then, as you point out from Nickel's reading, we are at a stage where the right to development is moving gradually towards being made legally enforceable in the future. But till such time that this happens, is it not a human right? Will it be a human right only when it is also a legal right? Again, this is a fundamental question to make sense of human rights in our contemporary world.
I understand The Right of Development as the sum of all Human Rights, because we could not speak of The Right of Development without talking about The Right of Education, The Right of Life, The Right of Health, The Right of Housing, among others . Therefore The Right of Development is the fulfillment of all Human Rights enforceable because without them we could not talk about development. Regarding the question of whether is there a difference between Human Rights and legal right? From the point of view positivist, if there is a palpable difference to be able to claim them before a court, the paradox may be, that all legal rights might be Human Rights but not all human rights can be treated as a legal right, however I think that is due partially to the legislative machinery of every state which is mostly slow and poorly progressive. The Human Rights needs are at a more advanced level. Hence, this is my question: if hypothetically speaking The Right to Development is to be recognized as an enforceable right, and would be claimed before the courts, what would be the mechanism by which it could enforce The Right to Development?
I am glad you bring up this question. We are indeed moving in the perfectly right direction. The point you make is really that this right is probably so vague that it might be difficult for any court to objectively enforce it. We are going to read the judgement of the African Commission on Human and Peoples' rights later on, in the Endorois case, where the commission did exactly that. It held Kenya in violation of RtD! And the way the commission developed the jurisprudence is very interesting indeed. But that is for just a bit later :) First, let us get the present discussion question out of our way before we proceed. haha. Please see my longer response below with my follow up questions to all of you.
This argument about whether rights are rights only if they have legal framework is a matter of semantics. The question of whether human rights exist without legal framework is really an enlightenment argument about natural and legal rights and I think we are now at a point where we can recognize rights as natural. The right to develop exists for every human being and states are the ones that are denying them.
In my opinion, I think that the right of development is like a protector or a safeguard for other rights. this comes from my thinking that if there is lack of practicing this right, it can lead to lack of fully- practice of your other rights, plus that you are giving the government a chance to infringing your rights depending on the non-existing rights to develop yourself and your whole community. While we still have only a (Declaration) which is not abiding for most countries; legally speaking; because it is not adopted in their national constitutions, it will be hard to practice this right within a legal framework. Therefore I guess the only way to move up with this right from this phase to a legally abiding phase is by implementing an international mechanism that can contribute in changing the national reaction and respect to this right. This is the only way –in my opinion- to enforce countries to construct and endorse the rights of development into their national legal system, as history always shows us that most countries rarely change their legal system for non-abiding declarations or treaties.
Wafa, good point. In the next session, we will get into the question of operationalizing the RtD and we will talk a lot more on it soon.
As Nickel mentions and McKloskey argues, rights may exist without it being feasible to implement them and I agree, in principle with this assertion. But as not all entitlements give birth to human rights, one must first ask if development merits to be classified as a human right.
I believe the right to development is a in the process of becoming a "human right", I agree with Francisco that we cannot just call any whim a "human right" because it detracts from its value as a Human Right and it dilutes its critical importance. However, the right to development is not just a "wish or desire", as Sen points out, its much more than a financial or economic concept and it entails freedom and as such is a tricky concept that must not be taken lightly.
While the right to development may not be recognized by many courts yet as a legal right, it is still a human right, "...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" ( fragment, Article 1, Declaration on the Right to Development"), it is in the making and part of a process and its recognition is immensely important. We have the Millenium Development Goals, aspirations, goals that would make the world a better place to live in, but the human right to development is much more than just improving conditions, its about recognizing freedoms: from self determination to literacy, recognized as human rights on their own.
Does the international system`s lack of enforcement powers regarding other human rights negate their existence as well?
...
Andrea, your question whether development merits to be classified as a human right is excellent! I think it is one of the fundamental questions in the larger debate surrounding RtD and we will deal with this exhaustively in session two. I have touched upon the evolution of the idea of RtD, its current legal status and efforts to operationalize it in my second presentation. I promise to get back to your question in much more depth in the second forum.
In my point of View, Development is an integral part of human rights, but when applied and imposing States to respect the declaration of the United Nations on the right to development unfortunetly The debates surrounding the RTD are concentrated in the UN human rights arena, and remain highly politicised between governments.
My question is the Declaration on the Right to Development legally binding treaty? The DRTD is not a treaty, only a UN General Assembly Resolution, which is a non- binding pronouncement. The only treaty which explicitly mentions the RTD is the African Charter on Human and Peoples’ Rights. So I think to make the Resolution of RTD legally , in my openion there should be International treaties.
Khalifa, you are right that Declaration on RtD is not a treaty. So the next question is whether it is a customary international law? I cover that part in the second video presentation and we will discuss more on that point in the next session. Just to link your point to the question for this forum, let us assume that RtD is not customary international law either. Can we still call it a human right? Please read this in conjunction with my longer comment below.
Excellent points everyone. And as I always expect with this question, there is a wide divergence in the opinions of all of you. Let me push you all to think a bit further, before I give my feedback to the question and your responses. Fortunately, we have three days for each theme now as I mentioned in the News Forum.
1. I asked you all whether there is a distinction between human rights and legal rights. And in this context, I want you all to consider 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 most countries (including some developed ones like the US). Would this mean that because these rights are not legal rights (i.e. they cannot be enforced before courts in most parts of the world), they are not human rights either? If they are still human rights (the UDHR says so, after all), does it mean then that there must be some distinction between human rights and legal rights?
Moreover, note that this is not only a question of an arguably non-binding 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. Now, just because these courts are not available to their citizens, does it mean that these norms are not human rights?
I am gonna pick out one comment by Aram for pushing everyone to delve deeper into this. He pointed out to the most important conclusion from Nickel's article. Nickel says, “Legal enforcement is generally important to making rights effective, but is not essential to the existence of rights”. So what does this mean for RtD then?
2. My second follow up question was 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! Francisco rightly mentioned the 'free' public opinion as an alternatively accountability mechanism. Aram also mentioned international pressure. We can develop both these answers even further. I will surely go deeper into this in my follow up feedback, but first, i want to push you all to think more about other forms of accountability.
Legal enforcement is important to making rights effective, but even with its absence does not mean that there is an absence of the rights. What this means is that humans have legally and non-legally binding rights and states are not adhering to them. What is needed is a stronger enforcement mechanism by the UN if they want to be serious about enforcing treaties and rights.
The obvious mechanism to hold states accountable besides courts is military force. We've seen this recently in Libya where the international community cited the responsibility to protect. R2P summarized says that if states cannot protect their individuals then the international community has the responsibility to help states fulfill their responsibility. This is a relatively new concept and will probably be used again in the future. Right now it has only been used to protect individuals from war crimes but this could very well be an instrument that is used in the future to protect individuals other rights.
Yes, the right to development is still a human right (and also a group right, like the DRIP, which we saw with Professor Otis when he talked about the rights of indigenous people), despite the fact that there is still no specific legal or judicial international instrument existing to enforce it, as many other declarations in the past. The 1986 Declaration on the Right to Development (A/RES/41/128), which was enacted as a General Assembly Resolution clearly states both in the preamble and in article 1 of the Declaration itself that it is an “alienable human right”. The problem here is that some critics do not consider this to be a right in itself due to the aforementioned lack of surveillance on the issue. In this way, one might even consider that the Universal Declaration of Human Rights is in the same “soft law bucket”.
It is quite understandable indeed that this question came to the floor of this forum. Additionally, according to legal scholars and to the evolution of rights (Nickel 2007, p. 29 [p.8 PDF]), there are three different broad positions of considering a right:
- Entitlement theory
- Entitlement plus theory
- Legally implemented entitlement theory
The text follows to reveal a logical conclusion: “Legal enforcement is generally important to making rights effective, but it is not essential to the existence of rights”.
Furthermore, States should look at the right to development as a principal upon which to implement the needed policies to potentiate a country’s capabilities. After all, States are organized, in theory, “by the people and for the people”. In this sense, Amartya Sen would recommend some introspection, in order to let citizens around the world realize how important the concept of development is for both the economy and for their welfare. He warns countries of the use of “rudimentary empirical evidence” to justify the so-called “Lee thesis” (Sen 1999, p. 15 [p. 4 PDF]) and explains why in the long run it does not work. Unfortunately, not all governments around the world can be considered as genuine representatives of their citizens… this is the real issue
I completely understand the position of most of us in class, in which we are somewhat frustrated that time and again we find a similar declaration, which are full of good and bona fide intentions no doubt, but that lack the potential of global reinforcement. Similarly, professor Mihir mentioned at around minute 35 of his recording that it is indeed soft law, but that this and the presence of new claims in this respect is creating a precedent on the subject in international customary law. The required material and psychological elements of custom will advance in time to develop ever more ambitious instruments in this respect, as with many other customs in history (e.g. the ban on slavery progressively became outlawed, first through custom and then through law). One must also think of the importance of reciprocity in this respect: as a larger number of countries implement measures to respect to the right to development, the others will be pushed to do the same.
The best solution, for the moment, is to establish some sort of reporting system, similar to the Human Rights Committee or the Committee on Economic, Social and Cultural Rights, by which countries have to demonstrate their progress and “name and blame policies” may be applied. Reciprocity and custom might bring this new human right to a new level (but not as overly ambitious as we would like it to be…).
Excellent comments by Lukka, Alex and Cecilio. So now, I think we all have come to certain common denominators, which are very crucial in order to make sense of human rights. The take home from this week's forum is as follows:
1. There is a difference between human rights on the one hand and legal rights on the other. Human rights can, and indeed many do, exist without being legal rights. When human rights are also legal rights, they merely make the human rights more effective. All human rights are not legal rights, much in the same way that all legal rights are not human rights. Therefore, RtD is indeed a human right as is emphatically stated in several declarations, although it is not a legal right in most jurisdictions around the world (except some regional systems like the African system and countries like South Africa).
2. Court of law or judicial enforcement is only one way of making States accountable for non-fulfillment of human rights obligations. Other ways include free press and fair elections. Then there are the global human rights charter and treaty bodies whose decisions or reports are not binding on States, but they act on the principle of naming and shaming. The Universal Perioding Review includes assessment of several human rights situations of States although they may not be legal rights in the country concerned. Similarly, human rights impact assessments, national human rights commissions, NGO reports, all are ways of making States accountable. All these means are effective in different ways ad in differing degrees, nonetheless, they are all modes of making States accountable. If that be so, the fact that RtD is not justiciable before courts of law does not mean that States cannot be made accountable for its violation or non-fulfillment.