Simple Analytics of the Right to Development
Chapter 5
Simple Analytics of the Right to Development
1. Introduction
The UDHR did not provide specifically for the right to development.1 Thus, a specific concept of right to development under international human rights law postdates the UDHR. When the right to development was first recognized in 1986 in the United Nations (UN) Declaration on the Right to Development,2 it appeared as a utopian ‘right of all rights’, encompassing almost all the desirable objectives of human society. Although it was initially championed by the developing countries, it was soon adopted by academics, civil society leaders and also many policymakers from both the developed and developing countries. They all joined the effort to give a precise formulation of this right so that it becomes realizable in the real world. A huge literature built up, and when I was appointed the UN Independent Expert on Right to Development, I was overwhelmed by the complexity of the views often conflicting with each other, and extending over the fields of economics, politics and law, not to speak of the basic philosophical underpinnings of the concept of human rights generally. I was deeply influenced by Philip Alston, who was responsible for some of the major human rights studies at the time, Professor Abi-Saab and Stephen Marks of Harvard University. But the commentators on the subject were many, and although I shall not be referring to them by name here, my previous articles have recorded most of them.3
In this chapter, I shall present the bare structure of the arguments I have developed over the last 10 years that I have been engaged in reading and writing about the right to development. It is naturally not exhaustive, not even comprehensive, but it is spelled out to facilitate discussions so that an international consensus can be built up to make the right to development a legal right like all other human rights recognized in international human rights law.
2. What Is the Right to Development?
We have to begin with a definition of the right to development which has been accepted by the international community through its different instruments, and I will try to build on a definition as given in the Declaration on the Right to Development (DRD) itself. Article 1 of the DRD states:
It clearly refers to an entitlement to a process of ‘development’, which is economic, social, cultural and political and which everybody ‘can participate in, contribute to and enjoy’. It is also a process in which all human rights and fundamental freedoms can be fully realized.4
This definition was obviously a package of a number of concepts arrived at as a negotiated compromise. It has to be given a precision to enable it to be realized through a legal process of carrying out the obligations of the agents, to whom this right is addressed. For this, the most important requirement is that the right should be so defined as to enable us to identify when the right is realized or when there is an improvement in the realization of the right. This is required not only of the right to development but of all rights, so that one can ascertain from empirical evidence if a right is being realized or not.
It is, of course, not a very easy task because all rights, like any desirable objective, consist of a number of elements, some of which are steadily realized while others are not. It means, we need an indicator of the realization of a right by combining its different elements or objectives, so that we can say when the value of the indicator improves, there is an improvement in the realization of the right. If there are two states, X and Y, and if Ri. is the indicator of the ith right, then if the value of Ri in X is higher than in Y, X has a better realization of the right.I have put it in this way to underline the need for formulating an indicator for every right, to assess its extent of realization. Furthermore, since a right has a number of dimensions, composed of many different elements, the exercise of building an indicator is the first step of a consensual process of its realization. It is consensual because there is no mechanical way of combining the values of the different elements, which affect different people differently and which may be combined into a single measure through a consensus among the right holders, about the weights to be attached to the different elements of the right.
There is a growing literature on constructing indicators of rights. For us, there are three characteristics that such indicators must accommodate. First, it should be possible to unequivocally identify an improvement in these rights. If it is represented as a ‘scalar’ quantity,5 then an increase in its value would mean an increase in the level of realization of the rights. If it is a ‘vector’,6 then additional constraints may have to be applied, to identify its increase. Secondly, these indicators must accommodate five basic characteristics of human rights, both as goals and as a process of realizing the goals, as has been recognized in the human rights literature. I have described them as ‘ENPAT’ in reference to the principles of Equity, Non-discrimination, Participation, Accountability and Transparency. Each of these characteristics may require formulating sub-indicators, again through a process of consensus and public discussions. But such an exercise is essential for identifying the rights which have to be fulfilled in a ‘rights-based-manner’; this essentially means, following the principles of ENPAT. Thirdly, the rights have to be so defined as to make them enjoyable individually. They may be provided collectively or through an exercise that addresses the needs of groups, but they have to be enjoyed individually. I have elaborated this point in my reports, as UN Independent Expert on the Right to Development,7 reflecting on the debate about individual rights, collective rights and group rights, and I think that all the apparent conflicts between them can be reconciled provided the enjoyment of the rights is clearly identifiable at the level of an individual. In other words, a right cannot be recognized as a right unless it can be shown that an individual who is entitled to it and in a position to exercise it will be able to enjoy the right. In formulating an indicator of the right to development, the elements should be so defined that although the right is provided collectively, it would be enjoyable by all the individuals forming the collective.
It is possible to accommodate the principles of ‘indivisibility’ and ‘universality’ of the rights by stipulating other conditions. A right is indivisible, if an element of the right (which is included in the indicator) cannot have an increase in its value (which means improved realization) if another element of the right deteriorates (i.e. takes on a negative value). The rights are universal in the sense that if any individual can exercise and enjoy that right, then all other individuals in a similar position can also, if they so wish, exercise and enjoy that right.
Once such an indicator of the level of realization, such as Ri for the ith right can be identified, the value of an improvement of that level, ΔRi can also be identified. We should also be able to identify the value that is realized by each individual, ΔRij (where i refers to a specific right and j refers to a specific individual). Similarly, we can also estimate the level of that right at a particular time, t (ΔRit). If ΔRit is greater than 0, the level of Ri is improving overtime. If ΔRit is less than 0, the right is regressing or is being violated. Otherwise, when ΔRit is equal to 0, then there is no change in the level of realization of that right over time.
With this simple definitional clarification, it is possible to give a precise formulation of the right to development in the light of Article 1 and the preface of the DRD as follows.
Development is a process of ‘constant improvement of the well-being’ of all individuals, and when such well-being is identified with enjoyment of ‘all human rights and fundamental freedom’, we shall have a process of right-based-development (because all those human rights and fundamental freedom conform to the principles of ENPAT). When such a rights-based process of development is recognized as a right in international human rights law, we have the right to development. Such a right may have to be delivered collectively, for a group or a country. But each individual belonging to the group or the country should be able to exercise and enjoy that right. The recognition of that right in international human rights law would mean that the international community of states accepts the obligations of delivering that right.
It is now possible to go over, quickly, the formalization of this right as I spelt out in my Expert reports.8 I found it simpler to keep to those rights that have already been recognized in international human rights law such as the civil and political rights and the economic, social and cultural rights as constituent elements of the right to development. If ΔRit denotes an improved realization of ith right at a time t, the right to development can be described as a ‘vector’ composed of the simultaneous realization of all the rights, civil, political, economic, social and cultural, that the international community has already recognized. In other words, an improvement in the right to development can be described as:
(1) ΔRdt = (ΔR1t, ΔR2t, (ΔR3t, … ΔRnt) when there are ‘n’ such rights (All ΔR1ts are non-negative).