III. Relationship of the right to
development to existing
substantive treaty regimes19
A. Relationship to human rights treaties
1. Substantive overlaps and lacunae
There is an obvious overlap between the rightsbased approach to development and human rights
treaties. The latter define the priorities to be set in
the development process. They do so in particular
through the definition of core rights within the framework of the International Covenant on Economic,
Social and Cultural Rights.20 They also define priorities by circumscribing the permissible limitations of
civil and political rights. Moreover, human rights treaties contain rules on the right to political participation,
in particular article 25 (a) of the International Covenant on Civil and Political Rights, which guarantees
the right of every citizen to take part in the conduct
of public affairs. Finally,
human rights treaties presuppose respect for the rule of law and the existence of
functioning judicial control over private law disputes
and criminal proceedings. Thus, they largely overlap
with all three aspects of the procedural dimension of
the right to development. They concur with the result
19 This section is based on chapter 11 in the work referred to in footnote 1. 20 For the concept of core rights, see The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural
Rights (E/CN.4/1987/17,
annex, and Committee on Economic, Social
and Cultural Rights, general comment No. 3 (1990) on the nature of
States parties’ obligations, paras. 1-2.
dimension of the right to development in their emphasis on the realization of the rights guaranteed.
What, then, is the value added by the recognition of a legally binding right to development? It is
submitted here that it has two advantages with respect
to the substantive content. First, the right to development brings to the foreground the obligation to create
enabling structures at the national level. These structural requirements are participatory procedures and
structures, the rule of law and the independence of the
judiciary. Such structures are, to a large extent, also
required under human rights treaties. Yet, in that context, they serve only as a support to the rights guaranteed. Therefore, and moreover, individual rights
holders can only contest the lack of such structures
insofar as that infringes upon their rights. A good illustration is the right to a fair trial before an independent
tribunal: it does not give rise to an individual right
of everyone to have an independent judiciary, but
only for a person in a specific private law dispute or
when standing accused of a crime. Even if one were
to consider it sufficient that the possibility of individuals claiming this right has, as a result, an obligation
for the State to create an independent judiciary, there
remains a gap: human rights treaties do not require
an independent judiciary for most of administrative
law. But it is submitted here that, even beyond this
latter consequence, a general individual right and
concomitant State obligation to set up a court system of independent judges is a value in itself. It goes
hand in hand with legal certainty as a basic feature
of the rule of law, both serving to establish order, i.e.,
foreseeability for individuals and hence security in all
their present and future activities. It thus contributes to
allowing and safeguarding individual autonomy.
Second, human rights treaties focus on the individual as the bearer of rights. Therefore, the collective dimension of the right to development can be
regarded as another added value: since human rights
are claims against the (territorial) State, the right of
peoples to development is, first and foremost, directed
at the authorities of their own State. In other words,
the collective dimension of the right to development
emphasizes the responsibility of State authorities
towards their own populations. On a conceptual
level, the right to development thus links with the new
trend in international politics and public international
law: it builds on the conviction that the State is not an
end in itself, but that its purpose is the improvement
of the human condition. Hence, the right to development becomes an additional yardstick for measuring
454 REALIZING THE RIGHT TO DEVELOPMENT | Implementing the right to development
the legitimacy of a State.21 On a more practical level,
the collective dimension of the right to development
leads to the consequence that a Government can only
call for international cooperation if it fulfils its duties
towards its own population. On this basis, linking official development assistance with the fulfillment of this
duty is a kind of conditionality that helps realize the
collective dimension of the right to development.
