Struggles to Reconcile Theory and Politics: Comments on the Revised Draft Convention on the Right to Development

The 23^rd session of the Intergovernmental Working Group on the Right to Development (IGWG) was held from 16 to 20 May 2022 to discuss the Revised Draft Convention on the Right to Development (RD). This is the second and the latest draft of the convention, after the Zero Draft (ZD) was released in January 2020. Though it is likely to be revised again, the text of the RD remains revolutionary, having attracted both legal and political controversy. This post follows on from a previous post discussing the danger of the right to development being construed as a State’s right.

While the Chair-Rapporteur of the IGWG officially adopted and submitted the RD to the Working Group, five independent experts were the direct authors. The Expert Drafting Group (EDG) seemed to have a relative discretion when drafting the ZD, but modified the RD’s text against their will, to reflect the comments and inputs by the States. Thus, the EDG expressed their distinct position in the Commentary where they do not agree with the revised text. This article reviews the changes to the ZD that produced the RD and comments on these changes from the perspective of effective human rights protection. This author does not necessarily agree with the EDG’s position, but appreciates the struggles of the EDG pressured between political power and the interests of the most vulnerable.

“Duty” reduced to “Responsibility”?

The most salient change in the RD from the ZD was the reduction of the “duty of everyone to respect human rights” to “responsibility” in the title of Article 7. The EDG did not agree with this change, because the previous version had its own significance as an innovative challenge to current international law. Meanwhile, the EDG struggled and succeeded in keeping the body text as “duty”.

The “duty of everyone” had set forth that every Non-State Actor (NSA), including individuals, corporations, international organizations, and any other groups, bore a direct “legal” obligation to refrain from violating “all” human rights. If adopted, this would introduce a significant change to international law, because today’s human rights treaties do not directly impose legal obligations on NSAs. What they do is oblige States to do or refrain from doing something regarding NSAs, i.e. States’ duty to protect human rights. Even in the leading discussion on the Draft Treaty on Business and Human Rights, it is the States which owe legal obligation to ensure legal liability by corporations.

On the other hand, the EDG relied mainly on the interpretation of the common Article 5 of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) to assert that international law has “already” imposed the legal duty to NSAs to respect “all” human rights, including relatively new and abstract human rights such as the right to development (para. 3 to 18 of Commentary on Article 7). This argument encountered serious objections from major States and even NGOs, which led to the aforementioned modification of the title. Yet how can retention of the body text can be justified, while the title was changed? When making the ZD, the EDG had asserted that the distinction between “legal duty” and “non-legal responsibility” is groundless, as it only stems from the Guiding Principles on Business and Human Rights (note 199 of Commentary on the ZD). This is why, for the EDG, “duty” and “responsibility” are interchangeable, both referring to a legal obligation, even though they prefer the duty wording. This is a key example of the struggle of the EDG between its theoretical conviction and political reality.

In this author’s view, the EDG is right in saying that States are not prohibited from directly imposing legal obligations on NSAs (para. 13 of Commentary on Article 7), but this direct duty is actually limited to gross human rights violations such as those reflected in the Rome Statute of the International Criminal Court, far from accommodating “all” human rights including the right to development. The common Article 5 of the ICCPR and the ICESCR is a mere prohibition of abuse of rights. The practical and legal differences between NSAs’ duty to respect human rights and States’ duty to protect human rights vis-à-vis NSAs are also unclear. For these reasons, Article 7 remains controversy and may be subject to further revision.

Advancements: Right of Peoples to Self-determination; Transparency; Labor rights; Climate Change; End Poverty

One advancement in the RD is its proclamation that the subjects of the right to self-determination are to be peoples, not States (Article 3 (f), 5). This is a significant achievement since the right to self-determination has long been controversial because it has been perceived as a State’s right. It is now clear that the right to self-determination is not a privilege for States to maintain their national borders. This change will also reduce the fear that States will exclusively determine civil, cultural, economic, political, and social development (Article 4). Along the same lines, some advances in indigenous peoples’ rights were observed. These peoples are now intended to have “the right to freely pursue their development in all spheres, in accordance with their own needs and interests” (Article 17 para. 1), which can be interpreted as including a political right to self-determination (Commentary on Article 17 para. 1). As this author pointed out in a previous post, this was absent in the ZD while present in the UN Declaration on the Rights of Indigenous Peoples. Meanwhile, consent to and compensation for relocation still need to be enunciated to reflect current international law. A similar type of incompleteness can also be observed in the absence of an operative clause on a positive measure for the protection of cultural rights, which is inconsistent with the creation of a preamble on the importance of cultural identity and diversity (PP17).

Interestingly, corruption was a new addition as a matter of concern (PP14). Eliminating illicit financial flows is now considered part of the duty to cooperate by combating tax evasion and corruption (Article 13 para. 4 (j)). The new Article 18 on corruption prevention was created based on the UN Convention on Corruption, which sets forth the obligation of States Parties to combat corruption in general. Together with the inclusion of “transparency” as one of the universal principles common to all human rights (Article 3 (b)), these advances can be evaluated as relatively balanced, as they refer well to both domestic and international obligations.

The additions of other elements to the duty to cooperate can be also viewed as positive changes. The phrase “decent work” newly appears in Article 13 para. 1 (c), which seems to be progress in terms of labor rights. Environmental protection is emphasized more strongly than before to be duly taken into account (PP1, PP16, Article 3 (g), Article 13 para. 4 (h), Article 15 para. 1, Article 23 (a)), and a sub-paragraph on support for adaptation to climate change has been created (Article 13 para. 4 (h)). At last, ending poverty has been added as one of the objectives of the duty to cooperate (Article 13 para. 1 (b)).

Regression: Deletion of HRBA and Gender

A major regression of the RD compared with the ZD is the deletion of the principle of the human rights-based approach to development (HRBA) (Article 3 (c)), which is a result of numerous requests by States from the South. The text was revised to “human rights-based development”, a term never previously used. The EDG rightfully expressed its concern that the RD should have retained the original HRBA wording. Behind this is the classic controversy between those who consider human rights, especially the civil and political rights, as a prerequisite for development (HRBA), and those who consider development should lead human rights realization (development-based approach to human rights). The EDG suggests to interpret HRBA as being consistent with development-based approach, to “course-correct the well-known notion as a fair concept for both donor and recipient countries (para. 4 of Commentary on Article 3 (c))”. This is a laudable effort because the two approaches are indeed not mutually exclusive, but mutually reinforcing. However, because the RD added the new principle of “Contribution of development to the enjoyment of all human rights” (Article 3 (d)), while HRBA deleted, the RD as a whole was lopsided toward the development-based approach to human rights. During the 23^rd IGWG, many States expressed concern about the new “human-rights based development” wording, so it seems likely that this clause will be modified once again in the next session.

The blatant deletion of the word “gender” is a self-evident deficit. The prohibition of discrimination on the basis of gender (Article 8 para. 1) was omitted due to the objections of a significant number of States. Similarly, the separate Article on gender equality was reduced to “Equality between men and women (Article 16)”, which only promotes equality “of opportunities” as an addition to the original text (Article 16 para. 2 (c)). Some States and NGOs rightfully criticized this as it reduces the protection of sexual minorities. It is difficult to justify why the EDG expressed no objection regarding this issue but said that it intended to address discrimination against women and girls specifically (Commentary on Article 16). This justification is groundless because the ill-treatment of women and girls can be even worse in the form of intersectional discrimination. This deletion also contravenes the way international law has evolved until today, as expressed through numerous views and opinions, including those of the Human Rights Committee, the European Court of Human Rights, the Inter-American Court of Human Rights and the Yogyakarta Principle.

 Conclusion and Suggestions

As the comments above demonstrate, the EDG seems to have found it a struggle to resolve theoretical ideality and the political reality. In the IGWG, States are the main parties negotiating the Draft Convention and tend to behave as if they are the subjects of the right to development. In this sense, the concern that I raised in the previous post has not been resolved. This is exemplified by the fact that the RD retained the “States’ right to regulate” (Article 3 (h)), along with “States’ right and duty to formulate, adopt, and implement appropriate national development laws, policies and practices (Article 8, para. 4)”. Furthermore, a duty to cooperate on debt sustainability was also created for the RD, of which States are right-holders (Article 13 para. 4 (k)), in addition to other existing ones.

On the other hand, States object to most of the innovative suggestions prepared by the EDG, certain of which may radically change existing international law: the legal duty of all NSAs to respect human rights (Article 7), the Conference of State Parties (Article 25) and the implementation mechanism (Article 27), which are capable of examining violations by non-Party States, and the legal obligations of international organizations to respect human rights (Article 9). The RD retained the Article 25, 27, and 9 as they were, but changed the title of Article 7. If those elements were all deleted in the next revision, the only significant change to the current international law brought by the Convention would be a legal duty to cooperate (Article 13), a rule that encountered no objections during the IGWG negotiations (n.b. those absent were mostly opposed).

Once again, uncertainty remains over whether current or future drafts will contribute to realizing human rights, especially those of the most vulnerable. Meanwhile, it is true that the modus operandi of national development and international development cooperation could be and should be much improved for the benefit of those people, which corresponds to the motivation for creating a Convention on the right to development. For example, there would be considerable interest in setting forth duties, responsibilities, or common standards for States, international organizations and other NSAs, in relation to social and environmental assessment and compliance process; popular participation and ownership criteria;  information disclosure and mutual accountability procedure; inspection and complaint mechanisms;  access to remedies; independent evaluation; restriction of conditionality and untying aids; contribution targets for all actors to increase predictability; and due diligence on supply chain and labor conditions. While this is not easy, it would be only realizable through a concept such as the right to development, which imposes equal duties or responsibilities on States, international organizations, and private actors when they are acting internally, externally and collectively (Article 7, Commentary on PP 23 and Article 3 (c)). The EDG should strive in this direction, otherwise their good faith in the right to development might be misused by States as an instrument to further their own rights.