The introduction to this research proposed that criteria for linking human rights and development policies and practices should be sought within the international human rights law framework.
My analysis began by characterizing and contextualizing human rights in development discourse. It attempted to chart the trajectory of human rights over past decades in development policies. The survey of development policy and practice may usefully inform us as to whether current development arrangements leave any space for the legal integration of human rights. It is difficult in this process to dissociate the topic from the complex narrative of development itself, and particularly its relationship with the law in general. The body of principles and rules, identified as international development law, has played a modest role in advancing the development of poor states. More and more voices are joining the call to revisit the fundamental questions underlying the development paradigm and applicable legal principles. This is so because at the global level there is little to suggest any substantial improvement in human well-being. The progress that has been achieved contrasts starkly with persistent, systemic poverty. Needless to say, the recent global financial crisis and accompanying recession have reduced significantly the expected results from the ‘Millennium Development Goals’ and strategies.
Despite harsh criticism of it from some quarters, at least in the near future the development paradigm will not be abandoned. Even critics agree that it is very unlikely that radical alternatives should be pursued. The main challenge is, rather, to refocus current policies and practices on ‘human development’. There is a great deal of work for the legal discipline in particular. Lawyers are called upon to reconstruct international development law ‘away from ideological polemics of the past, to make it autonomous and to educate about the array of rules… [and] give unity and new visibility to a branch of law that has been left completely untended’.1 International human rights law is a key ingredient in the reconstruction of the body of law concerned with the problems of development, not least because human rights are one of the main components of the many definitions of development, but also because there is at least a minimal consensus across all disciplines that the ultimate objective of development is to improve the human condition. There is therefore a genuine momentum to identify and define as precisely as possible the legal norms related to the human rights and development interface. It is a complex endeavour to assess whether human rights law can serve as a framework to structure the relationship of states and regulate their behaviour in the economic sphere, and whether it can serve as an instrument of change for reform in financing, debt servicing and institutional structures engaged in these issues.
A step in the direction of answering this problem is to visualize human rights law broadly, as a concept concerned with civil and political rights as much as with economic and social rights. For the most part, it has always been the development praxis that determined the scope for human rights in the process of development. Although development discourse in its early days saw the challenges of development in global economic structures and attempted to find solutions at the inter-state level, human rights concepts were used to advance this structural transformation at the global level, systematized under the well-known concept of the right to development. Later on, development discourse focused on the internal structures of a state as a challenge and obstacle to development, while human rights were engaged in helping to define the relationship of the developing state with its own citizens. The reality is that human rights are important in both environments: global and domestic. The challenges of development have to be met at many levels. Equality, respect for human rights, and the rule of law between states are as important as they are within a state. Assessment of the impact of development policies and practices of donors on the lives of individuals is as important as the human rights performance of developing countries.
These initial reflections assisted in setting the context and the choice of this study, which is concerned only with the narrow question of the normative framework of human rights, as related to the externally designed and planned development strategies and cooperation. The starting point for the discussion on the normative framework is the concept of the right to development. Despite some scepticism that always persisted with regard to the normative precision of the right to development, it has served, to paraphrase Georges Abi-Saab, as a unifying conceptual framework. It pulled together many different parameters of the human rights and development relationship, linking closely the national and international dimensions of obligations in relation to development of a human person. While some progress is visible regarding the individual dimension of the right to development, the inter-state dimension of the right remains highly contentious. The question is, then, if the right to development derives its normative force from existing sources under international law, namely the UN Charter and the International Covenant on Economic, Social and Cultural rights, should we not define the right to development as an interpretation of these sources? There is little discussion of whether the obligations to cooperate and assist, as envisaged in both the UN Charter and the ICESCR, are not sufficient in themselves to provide a legal framework for understanding the relationship between human rights and the development process.
The UN Charter and the ICESCR create legally binding obligations on states to cooperate for human rights, including through cooperation for development. In particular, socio-economic human rights treaties normatively absorb ‘cooperation for development’, qualifying it as an important means for achieving human rights, and provide additional elements as to its purpose and scope. By phrasing the problématique more broadly, we also find that international law in general as yet does not provide answers to some of the important questions raised in the context of international cooperation and assistance. Even in cases of severe distress, be it armed conflict, disaster situations or extreme poverty, if there is a right to assert or to receive assistance (for states, on behalf of individuals), it has to be directed towards the international community, and not towards any individual state.
This finding does not, however, detract from the general validity of the concept of international assistance and cooperation, given that the ‘rules’ on assistance are only one element of the entire structure. Finally, the normative concerns of human rights not only are related to the question of resources and how development policies and practices can positively influence human well-being. The notion also may require states to refrain from conduct that may harm the human rights of individuals residing abroad. This argument is further supported by reference to general principles of law. International law in explicit terms requires states to respect, as a minimum, fundamental human rights, an obligation which is binding upon all participants in the development process in all circumstances and at all times.
Perhaps we do not need sophisticated but contentious legal arguments based on the notion of the territorial application of human rights to advance this basic concept. The problem is that the exercise of due diligence or obligation of prevention which is inherent in the notion of avoiding causing harm has not as yet found its way into development policies and practices. What is further needed is to clarify the requirement to respect human rights through comprehensive analysis of the diverse ways development policies and practices generate risks for human rights, along with the concrete normative content of the human rights concerned. What is the contribution of international law to the question of the human rights and development interface? In order to find an answer, it is necessary to return to the original design of the UN Charter. Let us recall, in ending, that the preamble to the UN Charter determined that in order:
to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and …
to promote social progress and better standards of life in larger freedom,