Developing Rights: The UN Declaration on the Right to Development

1. UNGA Res. 41/128, 4 December 1986. The Declaration was passed by 146 votes to 1, with 8 abstentions (Against: the United States; Abstaining: Denmark, Finland, the Federal Republic of Germany, Iceland, Israel, Japan, Sweden and the United Kingdom).

2. UNGA Res. 2542(XXIV).

3. See, e.g., UNGA Res. 2626(XXV), 24 October 1970.

4. Declaration on the Establishment of a New International Economic Order, UNGA Res. 3201 (S-VI), 29 UNGAOR Supp. (No.1) at 3, UN Doc. A/9559 (1974); Programme of Action on the Establishment of a New International Economic Order, UNGA Res. 3202 (S-VI), 29 UNGAOR Supp. (No.1) at 3, UN Doc. A/9559 (1974); Charter of Economic Rights and Duties of States, UNGA Res. 3281, 29 UNGAOR Supp. (No. 31) at 50, UN Doc. A/9631 (1974).

5. M'Baye, K., ‘Le droit au developpement comme un droit de l'homme’, 5 Revue des droits de l'homme (1972) p. 505; and ‘The Emergence of the “Right to Development” as a Human Right in the Context of a New International Economic Order’, a paper submitted to the UNESCO Meeting of Experts on Human Rights, Human Needs, and the Establishment of a New International Economic Order, UNESCO Doc. 55–78/CONF.630/8 (1978).

6. Vasak, K., ‘A 30-Year Struggle’, Unesco Courier (11 1977) p. 29. See further, Marks, S.P., ‘Emerging Human Rights: A New Generation for the 1980s?’, 33 Rutgers LR (1981) p. 435. Cf., Alston, P., ‘Third Generation of Solidarity Rights: Progressive Development or Obfuscation of International Human Rights Law?’, 29 NILR (1982) p. 307.

7. Kanyeihamba, G.W., ‘Human Rights and Development with Special Reference to Africa’, in Snyder, F. and Slinn, P., eds., International Law of Development: Comparative Perspectives (1987) p. 221 at p. 225.

8. CHR/Res/4 (XXXIII), para.4

9. The International Dimensions of the Right to Development as a Human Right, Report of the Secretary-General, UN Doc. E/CN.4/1334 (1979).

10. See further, de Vey Mestdagh, K., ‘The Right to Development’, 28 NILR (1981) p. 30 at p. 32.

11. UNGA Res. 34/46 (1978).

12. See, e.g., The Regional and National Dimensions of the Right to Development as a Human Right, Study by the Secretary-General, E/CN.4/1421, 13 November 1980.

13. See, e.g., International Commission of Jurists, ‘Development, Human Rights and the Rule of Law; The Right to Development: Its Scope, Content and Implementation; a paper submitted to the Working Group of Experts of the UN Commission on Human Rights, E/CN.4/AC34/WP.10, November 1981; International Commission of Jurists, Human Rights and Development: Report of a Seminar on Human Rights and Their Promotion in the Carribean (1978); International Commission of Jurists, Development, Human Rights and the Rule of Law (1981); International Commission of Jurists and the Consumers' Association of Penang, Rural Development and Human Rights in South-East Asia (1982).

14. Its members were drawn from: Algeria, Cuba, Ethiopia, France, India, Iraq, the Netherlands, Panama, Peru, Poland, Senegal, Syria, the USA, the USSR and Yugoslavia: E/CN.4/1983/11 Annex I, p.1.

15. ECOSOC Decision 1983/171, 23 July 1983.

16. UNGA Res. 38/170, 29 February 1984.

17. UNGA Doc. A/A/40/100/Add/1, p. 72, para. 107, 27 September 1985.

18. Ibid. The mandate was renewed in 1987 by the Commission and later by ECOSOC. See Official Records of the Economic and Social Council, 1986, 1986 Supp. No. 2 (E/1986/22), Chap. 11; ECOSOC Doc. E/1986/95, 22 May 1986, p. 25. The Working Group met again from 23 to 27 January 1988 in Geneva. See 12 Human Rights Internet Reporter (1988) no. 3, p. 14.

19. CHR Decision 1986/133.

20. UNGA Official Records, 41 Sess. Supp. No. 3 (A/41/3), Report of the ECOSOC 1986.

21. Some delegations felt that the matter properly belonged to the Second Committee. See, e.g., A/C.3/41/SR.50 p. 10 para.40.

22. It was in 1973 that the General Assembly in Res. 3136 (XXVIII) first decided to include an item, under that heading, on the agenda of the 30th session. From 1975 onwards, different questions have been discussed and numerous resolutions passed under that particular agenda item heading. See further, UNGA Doc. A/41/100, 15 June 1986, p. 304.

23. See n.1, supra.

24. ‘In the wake of unprecedented horrors of war, fascism, and Stalinism, people everywhere sought ways to assure a future in which the rights of all human beings and nations would be respected. However, behind the world-wide support of the idea of promoting human rights there were vastly different conceptions, priorities, and ideological assumptions regarding the role of human rights in specific situations. These contradictory approaches to human rights questions were incorporated into the basic international documents’: Fagen, P.W., Prolegomena to a Bibliography: The Changing Language of Human Rights, Columbia University Center for the Study of Human Rights (1981, mimeo). See further, Falk, R., ‘Social Justice’, in Falk, R., Kim, S.M. and Mendlovitz, S.H., eds., Toward a Just World Order (1982) p. 405 at p. 417.

25. See generally, Meron, T., ‘The Jurisprudence of Human Rights’, in Meron, T., ed., Human Rights in International Law: Legal and Policy Issues (1984) p. 69; Schnackenburg, R., The Moral Teaching of the New Testament (1982); Marshall, L.H., The Challenge of New Testament Ethics (1956).

26. Bedjaoui, M., ‘Are the World's Food Resources the Common Heritage of Mankind?’, 24 IJIL (1984) p. 459 at p.463; Nawaz, T., ‘Equity and the New International Economic Order’, in Hossain, K., ed., Legal Aspects of the New International Economic Order (1980).

27. See, e.g., Dupuy, R.J., ed., The Right to Development at the International Level (1980); Espiell, H.G., ‘The Right to Development as a Human Right’, 16 Texas ILJ (1981) p. 189; Alston, P., ‘Conjuring up New Human Rights: a Proposal for Quality Control’, 78 AJIL (1984) p. 607; Alston, P., ‘Human Rights and Development’, Human Rights Teaching (1982) p. 23; Bedjaoui, M., ‘The Right to Development and the Jus Cogens’, 2 Lesotho LR (1986) no. 2 p. 93; Brietzke, P.H., ‘Consorting with the Chameleon, or Realizing the Right to Development’, 15 California Western ILJ (1985) p. 560; J. Donnelly, ‘In Search of the Unicorn: the Jurisprudence and Politics of the Right to Development’, ibid., p. 473; Carty, A., ‘From Economic Self-Determination to the Right to Development: a Crisis in Legal Theory’, Third World Legal Studies (1984) p. 73; Ferguson, C.C., ‘Redressing Global Injustices: The Role of Law’, 33 Rutgers LR (1981) p. 409; Rich, R.Y., ‘The Right to Development as an Emerging Human Right’, 23 Virginia JIL (1983) p. 287; Verwey, W.D., ‘The New International Economic Order and the Realization of the Right to Development and Welfare’, 21 IJIL (1981) p. 1; Mahalu, C.R., ‘Human Rights and Development: an African Perspective’, 1 Leiden JIL (1988) p. 15.

28. ECOSOC Doc. E/CN.4/1985/11 Annex II.

29. Para. 16, Preamble to the Declaration, n.1 supra.

30. A/C.3/41/SR.37.

31. Ibid., p. 12 para. 56.

32. Mr. Parashar (India), ibid., p.5, para. 18:

‘The right to development was also a human right, and one that could not be implemented without narrowing the gap between the standard of living of the developed and developing countries. For the poor, human rights remained an abstraction, and bread without freedom was as much an affront to human dignity as freedom without bread. Hence the establishment of a new international economic order was more important than wondering whether bread or freedom should come first. The draft declaration was a step in the right direction’.

33. In this connection, it is worth noting that the International Law Association, at its 62nd Conference in Seoul, 1986, proposed the following formulation as part of its Declaration on the Progressive Development of Principles of Public International Law Relating to a New International Economic Order:

‘6.1 The right to development is a principle of public international law in general and of human rights law in particular, and it is based on the right of self-determination of peoples.

6.2 By virtue of the right of development as a principle of human rights law, individuals and peoples are entitled to the results by the efforts of States, individually and collectively, to implement Articles 55 and 56 of the United Nations Charter in order to achieve a proper social and international order for the implementation of the human rights, set forth in the Universal Declaration of Human Rights, through a comprehensive economic, social, cultural and political process based upon their free and active participation.

6.3 The right to development as a principle of public international law implies the co-operation of States for the elaboration of civil, cultural, economic, political and social standards embodied in the Charter of the UN and the International Bill of Human Rights, based upon a common understanding of the generally recognized human rights and of the principles of public international law concerning friendly relations and co-operation among these States. These standards should be taken into account by States in the formulation, adoption and implementation of administrative, legislative policy and other measures for the realization of the right to development at both national and international levels’

Quoted in Kunig, P., ‘The “Inner Dimension” of the Right to Development: Considerations Concerning the Responsibility of Developing Countries’, 36 Law and State (1987) p. 46 at pp. 60–61.

34. Bedjaoui, M., ‘Some Unorthodox Reflections on the Right to Development’, in Snyder, and Slinn, , op.cit. n. 7, p. 87 at p. 90. Cf., Opperman, T., ‘A New International Economic Order and International Economic Law’, 33 Law and State (1986) p. 27 at p. 38: ‘Basically the collective right to development would thus seem to amount to nothing more than that recognition of the idea of international solidarity and co-operation… “in principle” – but for which a legal instrument of considerable value elsewhere, such as the idea of human rights ought not be wasted!’.

35. Mestdagh, , loc.cit. n. 10, p. 53 :

‘[T]he present UN definition of the right to development, as a human right, should be abandoned. Where the right to development relates to individuals, it is an aggregate and therefore a multiplicity of human rights; apart from this the individual aspect is the only one component of the right to development … [T]he right of states to development cannot be described as a human right. The fact that human rights are violated if the right to development is not realized is a different matter. In a more general definition it would be better to refer to a right of individuals and states to development’. [Emphasis in the original]. See further, Ramcharan, B.G., ‘Peoples’ Rights and Minorities' Rights’, 56 Nordic JIL (1987) p. 9 at pp. 11–15.

36. Supra n.4.

37. UNGA Res. 3281, 29 UNGAOR Supp. (No. 31) at 50, UN Doc. A/9631 (1974). See further, Rozental, A., ‘Charter of Economic Rights and Duties of States and the New International Economic Order’, 16 Virginia JIL (1976) p. 309; Tiewul, S.A., ‘The United Nations Charter of Economic Rights and Duties of States’, 10 JIL and Econ. (1975) p. 645.

38. A/C.3/41/SR.36, p. 4, para. 16. See also statement by Mr. Schwandt (Federal Republic of Germany), A/C.3/41/SR.61, p. 30, para. 180.

39. E.g., Boisard, M., L'Islam et la morale Internationale (1979); Denninger, E., ‘Über das Verhaeltnis von Menschenrechten zun Positiven Recht’, 37 Jurislenzeitung (1982) p. 225; Dudley, J., ‘Human Rights Practices in the Arab States; The Modern Impact of Shari'a Values’, 12 Georgia JI & Comp. L (1982) p. 55; Franck, T.M., Human Rights in Third World Perspective (1982); Cheng, C., ‘Human Rights in Chinese History and Chinese Philosophy’, 1 Comp. Civilisations Rev. (1979) p. 1; Khushalani, Y., ‘Human Rights in Asia and Africa’, 4 HRLJ (1983) p. 403. Cf., Tesón, F., ‘International Human Rights and Cultural Relativism’, 25 Virginia JIL (1985) p. 867; Donnelly, J., ‘Human Rights and Human Dignity: An Analytic Critique of Non-Western Conceptions of Human Rights’, 76 American Pol. Sc. Rev. (1982) p. 303.

40. See the interesting comments in: Fenet, A. et al. , Droits de l'homme, droits des peuples (1982); Cassese, A. and Jouve, F., eds., Pour un droit des peuples: Essais sur la Déclaration d'Alger (1981); Falk, R., Human Rights and State Sovereignty (1981). See also The African Charter on Human and Peoples' Rights (1981), infra n. 52; cf., Mr. Berthun (Norway), A/C.3/41/SR.50, p. 13 para. 48:

‘The Nordic countries were not in agreement with formulations such as the human rights of peoples, or those implying that the attainment of a certain degree of development or the establishment of a new international economic order, which were important questions, could be a prior condition for the enjoyment of the human rights of individuals. The Nordic countries also regretted the continual emphasis on the right of States rather than individuals. The same importance should be assigned to both categories of rights’.

41. A/C.3/41/SR.37, p. 11 para. 53; cf., Mestdagh, , loc.cit. n. 10, p. 51; A/Res/2542 (XXIV), Art. 8 and A/Res/2626 (XXV), para. 11.

42. A/C.3/41/SR.61, p. 32 para. 190; cf., van Boven, T., People Matter: View on International Human Rights Policy (1982) p. 74; van Boven, T., ‘The Right to Development and Human Rights’, Int. Commission of Jurists Rev. (1982) p. 49; Ferrero, R., The New International Economic Order and the Promotion of Human Rights (1986), E/CN.4/Sub.2/1983/24/Rev.l; Klein, L.R., ‘Disarmament and Socio-Economic Development’, Disarmament (1986) p. 49; Falk, R.A., ‘Militarization and Human Rights in the Third World’, 8 Bulletin of Peace Proposals (1977) p. 220.

43. A/C.3/41/SR.61, p. 33 paras. 195–196. Cf., Mrs. Coll (Ireland), A/C.3/41/SR.37, p. 2 paras. 1–3: she emphasized the mutually reinforcing nature of all rights – economic, social, cultural, civil and political and added that her ‘delegation saw value in the concept of a right to development, not as a new primary right, but rather as a potentially useful tool for integrating economic, social, cultural, civil and political rights in a manner which would serve to strengthen all human rights at the international level’.

44. A/C.3/41/SR.61, p. 34 para. 201. See also Mrs. Coil's (Ireland) statement, supra n.43.

45. A/C.3/41/SR.61, p. 28 para. 171.

46. E/CN.4/1985/11, Annex VII p. 3.

47. Ibid.

48. UNGA Res. 1803, 17 UNGAOR Supp. (No.17) at 15, UN Doc. A/5217 (1962).

49. Supra n. 46. Cf., Art. 3(2) of the Declaration on the Right to Development, supra n.1: ‘The realization of the right to development requires full respect for the principles of international law concerning friendly relations and co-operation among States in accordance with the Charter of the United Nations’.

50. Cf., Mr. Attewell's views, text accompanying n. 44, supra.

51. Art. 2 of the Declaration, above, n.1.

52. OAU Doc. CAB/LEG/67/3 Rev.5 (1981); 21 ILM (1982) p. 58.

53. Benedek, W., ‘Peoples' Rights and Individuals’ Duties as Special Features of the African Charter on Human and Peoples' Rights’, in Kunig, P., Benedek, W. and Mahalu, C.R., eds., Regional Protection of Human Rights by International Law: The Emerging African System (1985) p. 59 at p. 87: ‘The practical consequences of Art. 29 para. 2, which calls on the individual “to serve his national community by placing his physical and intellectual abilities at its service” are difficult to assess. But given the problem of the “brain drain” in African countries there is a legitimated interest of these countries to see some return on their investment in education. However, the provision is so widely phrased that misuse is not prevented’.

54. See further, Kiwanuka, R.N., ‘The Meaning of “People” in the African Charter on Human and Peoples' Rights’, 82 AJIL (1988) p. 80 at p. 99.

55. Art. 2(3) of the Declaration on the Right to Development, supra n.1.

56. See further, Eide, A., ‘Maldevelopment and the “Right to Development” – a Critical Note with a Constructive Intent’, in Dupuy, R., ed., The Right to Development at the International Level (1980) p. 397; Kiwanuka, , loc.cit. n.54, pp. 97–98.

57. Baxi, U., ‘Crimes Against the Right to Development’, in Asian Coalition of Human Rights Organisations, Human Rights Activism in Asia: Some Perspectives, Problems and Approaches (1984) p. 62 at p. 63.

58. Ibid., pp. 63–64.

59. Art. 6(3) of the Declaration on the Right to Development, supra n.1.

60. Art. 8, ibid.

61. Loc.cit. n. 10, pp. 52–63. See also, van Boven, T., ‘Some Remarks on Special Problems Relating to Human Rights in Developing Countries’, 3 Revue des droits de L'homme (1979) p. 383.

62. Arts. 4–7 of the Declaration on the Right to Development, supra n.1.

63. Art. 7, ibid. See further, Report of the Secretary-General, Economic and Social Consequences of the Arms Race and of Military Expenditures, A/32/88/Rev. 1 (1978); Report of the Secretary-General, The Relationship Between Disarmament and Development, A/36/356 and Corr. 1 (1982).

64. For recent views on General Assembly Resolutions and international law, see Anand, R.P., Confrontation or Cooperation? International Law and the Developing Countries (1987) Ch. 5; Ellis, M.E., ‘The New International Economic Order and General Assembly Resolutions: the Debate Over the Legal Effect of General Assembly Resolutions Revisited’, 15 California Western ILJ (1985) p. 647.

65. UNGA Res. 217A, UN Doc. A/810, p. 71.

66. Lauterpacht, H., ‘The Universal Declaration of Human Rights’, 25 BYIL (1948) p. 354 at pp. 356–365.

67. Feuer, G., ‘The Role of Resolutions in the Creation of General Rules in the International Law of Development’, in Snyder, and Slinn, , op.cit. n.7, p. 137 at p. 138 (emphasis in the original). See also, Bothe, M., ‘Legal and Non-Legal Norms – A Meaningful Distinction in International Relations?’, 11 NYIL (1980) p. 65.

68. Pellet, A., ‘A New International Legal Order: What Legal Tools for What Changes?’, in Snyder, and Slinn, , op.cit. n.7, p. 117 at p. 124.

69. Ibid., pp. 127–128.

70. See generally, Carlson, J., ‘Hunger, Agricultural Trade Liberalization and Soft International Law: Addressing the Legal Dimensions of a Political Problem’, 70 Iowa LR (1985) p. 1187.

71. Claude, I.L. Jr, ‘Collective Legitimization as a Political Function of the United Nations’, 20 Int. Organization (1966) p. 372, quoted by Anand, , op.cit. n. 64, p. 134.

72. See further, Kiwanuka, R.N., ‘The Thirteenth UN General Assembly Special Session: Lessons for Africa’, 21 JWTL (1987) p. 65 at p. 74.

73. See Art. 2(7) of the Charter of the United Nations.