Discussion Forum Theme 2

In my opinion, things are difficult or easy depending on the wishes of the human beings to carry them out. We are asked whether the right to development could be implemented in real terms due to its high amplitude . My answer is that if possible, always and when there is political will on the parties involved and there is a clear and concise plan for its actual implementation as a human right truly effective. I understand that if after a world war was possible to establish a European Union in which the countries in conflict in that war they cohabit in peace and harmony; if it was possible to overcome the apartheid in South Africa etc , why not going to be possible the effective implementation of the right to development¿ The question should be if there is willingness on the part of the powerful nations to implement the right to development and this honestly Evo respond that not. Policies such as the CAP (Common Agricultural Policy ) and their subsidies , does not allow the development and the competition of the underdeveloped countries in agricultural matters . I also believe that in many occasions if there is willingness to help, but it's made with the western mindset that often does not work for the developing countries and why they fail in my opinion many development aid projects.

It will be operational when it will be binding, when we will have institutions and courts able to prosecute, to judge and to condemn the crimes against RtD, nevertheless it will take a long time, and for that we need more than declarations from the 80's. And RtD will be really operational when the criminals against RtD will be prosecuted, judged, and condemned. We need cases -in plural- of prosecuting and condemning, not only examples and sweet recomendations. When I will see it -a rich politician, a "big fish" in jail and without his bank accounts - I will believe that RtD is a real right.

Theese attemps - I liked  the writting of Mr. Sengupta - at operationalizing RtD can not be utopia. Therefore they are in the right direction. And these attemps are necessary steps. Nevertheless I miss to read more about one of the biggest obstacles against any development. The corruption. With corruption any development is closer to the utopia than to the reality.

To make operational RtD, we may need to identificate with precission the obstacles, and take meassures to eliminate such obstacles. Becasue development is also a consequence of justice, security, freedom, public policies... and with a corrupted state nothing of this really works.

And thinking about RtD we should think in "developed" countries as well; because in countries like Greece or Spain there are millions of people -workers and enterprises- whose development is very underdeveloped; and there are much issues to discuss about the corruption.

Of course, like Jose indicated, this is a political issue, not only a Legal issue. And many times the law is a branch  of politics; a big problem.

Great points Jose and Francisco. As both of you mentioned, there are two major obstacles in operationalizing the right to development in real terms 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. There are many more obstacles and I am sure our colleagues will point some of them out as well.

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. 

So following are the questions:

a. Is the elaboration of the concept of RtD in the Endorois decision comprehensive enough to reflect the real essence of RtD? Is there anything in particular in the jurisprudence of the case that is useful? Given that the Kenyan Government has still not implemented the Endorois decision, is there any value-added by the Endorois decision or is it only lip-service?

b. Is the High Level Task-Force's work on elaborating the criteria and sub-criteria on RtD any good? If records of States, individually and collectively, start being measured in terms of the document, will it help to create a more holistic understanding of human rights situation in the world? Or is this window dressing as well?

As we have seen, recognizing the right to development as a human right is an undeniable fact.

Nevertheless, the creation of legally binding obligations relating to that right requires a more nuanced approach. From the readings, it is clear that we cannot yet make the RtD enforceable through treaties worldwide. However, there are some exceptions (as the African Commission on Human and People's Rights and South Africa) which demonstrate that once aknowledged as a Human Right, the RtD can be made enforceable within subregional Human Rights systems. I would say that the Endorois case set a precedent, and opened the way to other Human Rights systems to do the same.

Moreover, it seems that there is another mechanism that eventually will be able to be used to make RtD justiciable (maybe not at the moment, but it is likely to be used in a relatively near future). I am thinking of the evident trend of all international community of recognizing the RtD as 'customary law', both by 'opinio juris' (since a bunch of international documents, declarations, resolutions and even the UN Millennium Declaration aknowledge the existence of the RtD) and by the 'practice' (the Millennium Development Goals themselves, together with African Union and South Africa cases, show that international community are implicitely assuming that the RtD exists and thus can be claimed). As well as this, although the RtD is merely a GA 'soft law' declaration, it seems that its statement is stronger than a Declaration, since it refers directly to the content and objectives of the UN Charter. Probably the problem is that there's not a clearly defined time period in order to assume that a custom turns into customary law.

That said, in my opinion all indicates that we're on the right way towards the full recognition of the RtD as a legal right. It is obvious that unfortunately, it will take a very (too?) long time, because of its extremely broad and all-comprehensive nature, and its political sensitivity. Nevertheless, meanwhile every step forward either sets jurisprudence (see the Endorois case) or contribute to strengthen over time the idea that the RtD has become customary law (i.e. the Report of the high-level task force on the implementation of the right to development). Both efforts are contributing to make it progressively enforceable.

The RtD is debatably legally binding already but it has not become operational in part because it is so comprehensive. As Sengupta explains, it is as much of a duty on the developed states to cooperate and provide aid as it is for the developing nations to enact legislation to promote the process of development. The Endorois case has shown us the failures of the developing states to provide RtD but it has also shown us that regional entities like the African Commission can get involved in this issue. Even though the African Commission can only make recommendations it is a good first step because in the future if Kenya decides to implement the African Commission’s recommendations, it can make the state more attractive to help from the international developed community.

It is difficult to make RtD operational in the current state of the world because as recent history has shown us when development aid is given, it does not get put to use for development. Developed states understandably do not want to engage in helping to develop other nations when the results in history have not benefitted states.

It will be very difficult to make states to sign treaties to make RtD binding on themselves because history has shown us that states do not like giving up their sovereignty. To become operational, RtD would need to be invoked again and again over time equating it with the UN charter. This would create a customary norm over time and paired with opinio juris could make it binding and operational.

The precedent set by the Endorois case is important in that it helps pave the road towards the operationalization of RtD..but its comprehensiveness makes its application difficult and I wonder if the lack of a right to development or the transgression against this right can only be seen in retrospect, once the right has been violated.. how many things have to happen and for how long until you can determine the RtD has been truly violated? Also don`t corruption and lack of political will violate RtD per se?

The Endorois case presents the five main criteria for RtD and even that explanation is too comprehensive, but as we mentioned in the previous discussion, this is a process and the fact that there we have jurisprudence on RtD positive for the future establishment of RtD as a justiciable right.

Without any doubt, the Endorois case has not only created precedent in terms of the applicability of RtD (though possibly due to the fact of the advance state of this concept within the African Commission, reflected in article 22 of the African Charter), but it also suggests that even recommendations or UN Independent Expert reports (see para , which may be considered as Soft Law (or even in a lower instance), are lex ferenda and thus it is only a matter of time before it becomes law through subsequent treaties or customary international law. In other words, these are principles which are not currently law, but which may become normative in the future. We might say that, reports or recommendations of today are the building blocks of the laws of tomorrow.

 

And in fact, this precedent from the African Commission is groundbreaking and has proven that the concept of RtD is indeed applicable in real life. In the presentation, slide number 9 (around minute 23) explained the legal standing of RtD and questioned whether it was Soft Law or not. Considering that it is a General Assembly Resolution concerning subjects relative to the UN Charter, RtD must be granted a higher position within the legal hierarchy than Soft Law, due to the “authoritative interpretation of the Charter by UN Member States”. However, it cannot be considered as CIL because despite having the psychological element (opinio iuris sive necessitatis; i.e. votes in the GA and the repeated references to RtD in international conferences…) it lacks a second element, the material element (i.e. State practice; more cases such as the Endorois case would need to arise in the future for the further developing of this human right). In conclusion, it stands in between Soft Law and Binding Law, but it is proving to attract major interest through literature and human right advocacy. In addition, the lack of political will by developed countries to consider such propositions of self-empowerment by developing nations is, let’s face it, against their interests.

 

Also, a topic worth mentioning is whether it is really worth pooling resources for the enforceability instead of continuing to work on the implementation of the right first. Without wanting to be controversial, I have to say that despite the milestone that is the Endorois case for RtD, the fact of the matter is that under article 22, Kenya would have been as guilty probably as any other African State, since this concept is relatively new and considering that there are no specific procedures to implement RtD policies (the RtD Criteria from the Report of the high-level task force already suggests the difficulty to attach variables to the wanted measured concepts; see the “Annex”). This is what Arjun (2002, page 862 PDF) is trying to say in my opinion when he refers to the “monitoring of implementation”: “A transparent consultation mechanism, subject to the democratic pressure of public opinion, may often play a much more significant role in enforcing institutional agreements, especially on human rights, than any outside judicial authority.”

 

As a final remark, I would like to add that before concentrating on the enforcement of RtD, we should use resources to empower the impoverished nations by teaching them what it is (as opposed to Human Development) and how to achieve it (and possibly also narrow the concept down to be less broad and vague). Considering its interest and value for human beings, RtD should be a top priority of ECOSOC and they would also “shoot many birds in a single shot” because of its holistic human rights framework.

Good points Aran, Alex and Andrea. You all mention that the Endorois case is a landmark case because its jurisprudence acts as a good starting point for developing and operationalizing this concept in the future. Also, it is a good and positive step in the evolution of RtD into customary international law in the near future. I couldn't agree more.

One point I would like to highlight from the Endorois case is its elaboration of RtD, which is very much in line with Sengupta's work. In fact, the Endorois judgement heavily borrows from the work of Sengupta. As such, we will notice that the Commission focuses not only on the legality of the actual decision of the Kenyan Government to aquire the land and open up a game reserve on it, but also on the decision making process itself. What this means is that the Commission, while applying RtD as a human right that is violated, considered the process by which the decision was taken by the Kenyan government and held that the process was deeply flawed because consultation was not carried out with the Endorois people. This is another fantastic value added by the judgement. Remember, Amartya Sen also talks about development involving both process and outcome aspects.

I have a lot more to say, but guys, the discussion has been slow and several of you have not given your inputs to this forum. I am hoping that you all contribute pretty soon. I do know that the question for this session is not as 'spicy' and contentious as the upcoming ones, but it is an important question nevertheless. I look forward to reading your comments.

I would like to mark two big issue which represent an obstacle towards the full recognition of the RtD as a legal right. These two aspects have been mentioned somehow (implicitly or explicitly) throughout previous posts.

1) The concept of development is still such vague and undefined nowadays, that makes the RtD extremely vague as well. Of course, if we assume that Amartya Sen's concept is valid, we could develop further jurisprudence on this basis. However, not everyone agrees about that definition. 'Human development' or even 'post-development' theories point out other perspectives which, even correctly or wrongly, show us that development is culturally defined and cultural-sensible. It means that potencially, each people, each 'nation', could have its own concept of development. How can we turn such a wide concept into a all-comprehensive, unique definition and make it a universal right?

2) Strictly related to the first point, 'development' and the RtD is strictly related to people self determination. It makes the RtD very unlikely to be accepted as a legal right by states, as it potencially undermine the very sovereigny of states (specially for states which have a high percentage of indigenous people in their territories). That's why there is not such a large consensus about the right to self determination among states worldwide.

I think these two points should be clarified before the RtD can go on towards its full recognition.

I think Aram and Andrea have really pointed out the biggest challenge to operationalization of RtD. And that is the very broadness of the concept. On the one hand, it is very appealing to human rights advocates because of its all-inclusive nature (almost like the all-inclusive vacation packages). On the other hand, its very attraction point is its biggest enemy. Because it is so broad, and as Aram and Andrea mentioned that not everyone agrees politically with its scope, its operationalization has a lot of challenges to meet.

I like Aram's point that RtD has so much to do with politically loaded concepts such as the right to self-determination, which presents it with major operationalization problems. My personal take on this is that yes, the all-comprehensive nature of RtD presents it with major operationalization challenges. Yet, we have seen snippets of how the future might look like for RtD. The Endorois case and the High Level Task Force's efforts are a glimpse of that, and these are contemporary efforts. The High Level TF's work is clearly not foolproof; there is a lot to be said on it. But, I also believe that we are on the right track. The challenges will be there for a lot of time to come, but what we will see in the near future is that development projects and impact assessments will increasingly use the RtD approach. I think that the OHCHR has clearly seen the value-added by a RtD approach and that is why they have a unit entirely dedicated to operationalizing it. (Normally, no such policy decision that involves expenditure is made by UN bodies without a long term plan). 70 odd years ago, no one thought that human rights as a concept itself would ever be operationalized in any way. Yet, we are here today, and RtD, to my mind is a logical extension of the human rights movement. Quite frankly, if there is any concept I would like see the status of 40 years from now and fast forward myself in time, it is RtD. I do feel it is a concept that is here to stay and will be increasingly part of human rights discourse in the current decade.