Right to Development in Today’s Draft Convention: Retransformation into a State’s Right?

From 22 to 26 November 2021, the 22^nd session of the Intergovernmental Working Group on the Right to Development (IGWG) was held at the Human Rights Council (HRC). At this forum, States, international organizations and NGOs discussed and elaborated upon the Draft Convention on the Right to Development (DCRTD). As two IGWG sessions have been held since the first submission of the DCRTD in January 2020, it is worth reviewing the original text and its most recent negotiation status before the finalization of a revised version of the DCRTD, which is due before the 23rd IGWG in May 2022.

As a precursor of the third generation human rights, the right to development (RTD) has established, at least in theory, its logic as a human right that saves the rights and dignity of the most vulnerable (see also Diane Desierto’s article in this blog). However, an analysis comparing the DCRTD and its most recent negotiations with other international documents reveals that this concept is at risk of being retransformed into an instrument of domination wielded by States over their populations while continuing to claim support from the international community (Bonny Ibhawoh describes this possibility here).

Development as a Human Right

In early stage, the “Global South^” used the RTD to claim “their” right to participate in global decision-making and benefits. However, since the adoption of the UN Declaration on the Right to Development in 1986 (DRTD), independent experts and scholars have developed significant theories to respond to the traditional critique that the RTD is an excuse to justify States’ non-respect of civil and political rights. The theoretical development of the RTD has been reflected not only in scholarly achievements but also in international documents, including HRC resolutions. Furthermore, the people-centered approach to development has allowed the RTD to become a human right to development, which serves the interests of individuals in the most precarious situations. These developments can be observed from the following points:

First, it was clarified that the RTD does not compromise other human rights. A report adopted by the UN Commission on Human Rights asserted that the RTD is a vector of all human rights and that the deterioration of any human right hinders its realization. Subsequent HRC reports and resolutions also reflected this formulation based on the indivisibility, interrelatedness, interdependence of all human rights. Thus, the RTD should be implemented in a “rights-based manner” by respecting the obligations and principles of the human rights “set forth.” It was significant for individuals that the RTD as a vector right implied participatory, non-discriminatory and equitable decision-making, accountability and distribution of the fruits.

Second, the RTD was considered a “group right,” underlining the importance of participation and minority protection. According to Salomon and Sengupta, a “group right” protects the group and the individuals belonging to the group, which differs from collective rights. Collective rights are individual rights exercised collectively. In this idea, the role of a State vis-à-vis their populations was to be agent, trustee or medium, to exercise the RTD of individuals and peoples on their behalf. For this reason, it was inconceivable that States exercise “States’ right to development” against their population. On the other hand, they should ensure “active, free and meaningful participation in development and fair distribution of the benefits resulting therefrom” (DRTD Article 2 para. 3). Because of the vulnerability of minorities, the notion of “group rights” necessitates their special protection as a group to secure their survival, particularly from the perspective of cultural rights.

Because of these developments and its acceptance by the “Global North,” the RTD seemed to establish its status as a human right.

Retransformation into a State’s Right?

Nevertheless, the above-mentioned achievements seem to be weakened or threatened in the DCRTD and its inter-State negotiations. Therefore, concerns about the DCRTD can be summarized as the deterioration of the following elements, particularly from the perspective of protecting the vulnerable.  

First, the indivisibility, interrelatedness, interdependence of all human rights. The DCRTD sets forth a mere “consistence” with all other human rights (Article 4 para. 1), which is a regression from the DRTD that required “full realization” (Article 1 para. 1). In addition, the DCRTD does not contain the prohibition of “violation of the rights set forth,” which appeared in the DRTD (Article 9 para. 2) and in previous UN adopted resolutions. Furthermore, a provision on the rights-based approach to development (Article 3 (c)) is under consideration to be removed. European countries have already made these critiques that tend to underline the importance of civil and political rights.

Second, the right to self-determination and participation of sub-State groups. The DCRTD removed the reference to the right to self-determination of indigenous peoples (Article 17), while insisting that it reproduces the same elements as the UN Declaration on the Rights of Indigenous Peoples. The autonomy of minorities was not included, despite its importance as a practical and internal expression of self-determination. In addition, the DCRTD does not specify the imposition of indigenous peoples’ consent in specific situations (Article 17 para. 2). This removal and non-specificity can be evaluated as a regression from the current international law protection, as, for example, it is today established that consent is required in case of relocation. Furthermore, there is no mention of the peoples under occupation as a subject of the RTD. Considering their historical importance, this omission seems politically motivated. In particular, the influence of politics is evident in its deletion in the final report of the HRC Advisory Committee on the “importance of a legally binding instrument on the RTD” from the second draft after receiving a comment from a Member State. This attitude seems to be inconsistent with the advocacy of the “RTD in the Occupied Palestinian Territory,” which significantly contributed to bringing the RTD concept into international fora. The above-mentioned weakened elements had been construed as empowering individuals and groups against States’ sovereignty. This is exactly because of this nature that the DCRTD is unlikely to include them, as it seems to rather reflect the voice of governmental elites from the “Global South”.

Third, positive protection of minorities and the vulnerable. The DCRTD does not set forth any right to be exercised as a group while repeating that the subjects of the RTD are “every human person and all peoples (Article 4 para.1)”. This difference ruins the conventional efforts to regard the RTD as a group right, thereby allowing for advantages for minorities and the vulnerable. In present-day international law, some positive measures are assumed as the obligation of States to protect particular groups’ cultural rights. The General Comment 23 of the Human Rights Committee provides a good example. The drafters could have elaborated this rule if it insists that the RTD is a group right. However, in reality, the DCRTD strengthens the domination of States over their populations by introducing the notion of the State’s Right to Regulate (RTR) (Article 3 (f)). The RtR is considered a “right of States”, which exceptionally permits the host State to regulate in derogation of international commitments. If we granted this “right” to States without securing participation and protection of minorities and the vulnerable, it would only expand the discretion of States. A concern here is that it may result in the oppression of individual human rights by States, including the RTD.

What the DCRTD aims for

While the length of this post is not enough to thoroughly explain the sui generis non-consensual lawmaking nature of the DCRTD, it would be worth mentioning that an objective of the DCRTD is assuming a legal duty to cooperate at the international level (Article 13). For the sake of its implementation, the DCRTD establishes a Conference of State Parties (Article 24) and an experts’ committee (Article 26), which are capable of examining violations of the RTD not only by Party States but also by non-Party States. Furthermore, the DCRTD assumes legal obligations of individuals, private actors and international organizations to respect human rights, including the RTD (Article 7).

These provisions are highly controversial even among the DCRTD’s advocates, as they are new to the current international law and are innovative in that even a third-party State or organization is indirectly bound to this rule. If adopted, the generality of the DCRTD would bring a significant change not only to the RTD but also to the current international order itself. In conclusion, I would like to draw attention to the evolution of this draft convention, which may challenge the international law system established by the “Global North”.