3. Mechanisms for implementation
The last important point in the comparison
concerns mechanisms for implementation. The legal
debate in this field tends to focus on individual complaints mechanisms under human rights treaties. Yet,
such a mechanism for the right to development would
be highly problematic and, at the same time, of little relevance since there is little that an individual
complaints mechanism for the right to development
could achieve that is not achievable through existing
human rights complaints procedures. Most aspects
of the right to development concern either structural
requirements (process dimension) or the realization
of human rights (result dimension). Moreover, the
procedural aspects of the right to development do not
lend themselves easily to an individualized violations
approach. Under which conditions should a complaint be admissible and successful if, for instance,
the acts of the administration cannot be challenged
in an independent court? An individual complaints
procedure would, in reality,
be a barely disguised
actio popularis. For this reason, a complaints mechanism for the right to development should focus
more appropriately on the collective dimension of
the right. Within this dimension, it should focus especially on the question of who shall have standing
to bring a claim for a population. One might think,
for example, of collectivities that have representations under municipal law, such as the states within
a federation or groups that enjoy autonomy, and, in
the absence of these, independent bodies, such as
national human rights institutions that fulfil the Principles relating to the status of national institutions for
the promotion and protection of human rights (the
Paris Principles),27 could be empowered.
With respect to State reporting, one might argue
that no new supervisory mechanism is needed for
the right to development because State reporting can
be extended to supervising national development
policies, for example, by referring to the Millennium
Development Goals.28 This approach would be comparable to that of the Committee on the Elimination
of Discrimination against Women, which takes into
account the Beijing Platform for Action, adopted by
the Fourth World Conference on Women in 1995. It
is not convincing to argue that human rights expert
members of treaty bodies are not capable of performing this task because they are not development specialists. This view disregards the fact that members of
various treaty bodies have long dealt with a variety of
policy fields, and there is no reason why they should
not be able to address development politics from a
human rights perspective. What seems more problematic is that such monitoring will not be very effective.
This is to be expected, since treaty bodies already
have very limited time allocated for their constructive
dialogue with States.
Therefore, the implementation
mechanisms available under human rights treaties are
not sufficient to ensure implementation of the right to
development. In addition, the reporting procedure
only engages a specific State and non-governmental
organizations (NGOs) with a particular interest in that
State, but not other relevant actors within the donor
community such as third States, international financial
organizations and (State or private) institutions with
relevant technical expertise.
For these reasons, the right to development
needs other mechanisms for implementation. These
should focus less on deficiencies in a State’s actions
and possible remedies and more on assisting it
in devising effective development strategies that
respect the procedural requirements of the right to
development and helping to bring about its result
dimension. From this perspective, the proposal for a
development compact has a lot of potential, particularly because it sets up a structure for elaborating a
development strategy in cooperation with the stakeholders involved.29
27 General Assembly resolution 48/134, annex. 28 Scheinin, “Advocating” (see footnote 14), p. 340.
29 See section IV below.
456 REALIZING THE RIGHT TO DEVELOPMENT | Implementing the right to development
B. Relationship to development
cooperation treaties
Given the number and diversity of development
cooperation instruments, a comprehensive comparison between the right to development and treaties in
that area is impossible. Therefore, this part will examine the Cotonou Agreement as an important example
of comprehensive and institutionalized development
cooperation.30 The focus will be on the concept of
development and on the implementation mechanism
set up by that treaty.
The concept of development underlying the
Cotonou Agreement derives from its article 1, according to which its objective is “to promote and expedite the economic, cultural and social development”
of the African, Caribbean and Pacific (ACP) States.
As the next sentence reveals, the priority is on poverty reduction. This, in turn, has to be “consistent
with the objective of sustainable development”. In
article 9 (1),
the Cotonou Agreement defines its concept of sustainable development to be “centered on
the human person, who is the main protagonist and
beneficiary of development”. It furthermore names
“[r]espect for all human rights and fundamental freedoms, including respect for fundamental social rights,
democracy based on the rule of law and transparent
and accountable governance … an integral part of
sustainable development”. Thus, the Cotonou Agreement recognizes a rights-based approach to development;31 taken together with its recognition of the
need for (democratic) public participation, rule of law
structures and transparency, it reflects the main procedural aspects of the right to development as expressed
in the Declaration on the Right to Development and
the Vienna Declaration and Programme of Action.
In addition, the results dimension of development
can be discerned in the emphasis on respect for all
human rights. Moreover, article 10 (1) emphasizes
that the benefits of development must be available to
the whole population in an equitable way.32 Missing
in the Cotonou Agreement is an express reference to
the international dimension of development as being
required by international law.33
30 For a detailed discussion of the Cotonou Agreement, see chapter 19 of
the present publication. 31 Article 1 expressly requires that “[t]hese objectives and the Parties’ international commitments … shall inform all development strategies and shall
be tackled through an integrated approach taking account at the same
time of the political, economic, social, cultural and environmental aspects
of development”. 32 “[S]ustainable and equitable development involving, inter alia, access to
productive resources, essential services and justice ...” 33 Evidently, the Agreement itself is an example of cooperation, yet on a
purely voluntary basis.
Yet, the Agreement avoids all language that
might indicate the recognition of an individual, let
alone a collective, right to development against the
home State or third States. For instance, it does not
list the right to development among the fundamental
principles of ACP-European Community cooperation (art. 2),
and the preamble refers merely to the
“pledges” made at major United Nations and international conferences. The term “right” is used only with
reference to the States: article 4 expressly recognizes
the right of each of them to determine its own path of
development.34 Nevertheless, it would seem that the
significant substantive overlap between the concept of
development underlying the Cotonou Agreement and
the right to development should and could be used for
rallying support among the European States to recognize the right to development.
As the following analysis will show, a right to
development may even be useful for effective implementation of the Cotonou Agreement. The Agreement
provides for sanctions in case of a violation of one
of the essential principles enumerated in article 9.
According to article 96, the permitted reactions are,
first and foremost, consultations, but if these do not
reach a result within 60 days, or in case of flagrant
and serious violations, “appropriate measures” can
be taken. These measures must be compatible with
international law, proportionate, and should aim
at the least disruption of the Agreement. They may
include suspension of the Agreement (and thus financial or other aid granted under it) as a last resort.
These limitations point to a fundamental problem of
sanctions: it is highly probable that the suspension of
financial or other aid will harm the population much
more than the targeted Government. Yet, donor States
are—quite understandably—unwilling to continue
financial support for a Government that flagrantly disregards human rights, and they are subjected to serious political pressure at home if they do so. A way out
of this impasse may be to focus more on participation,
that is, cooperation with civil society. This option is
opened by the Agreement’s provisions on implementation, which emphasize public participation in the
development process, both at the level of determination of policies (art. 4) and of their execution (art. 2).35
Thus, a shift to cooperation with civil society in case of
flagrant human rights violations by the receiving State
34 “The ACP States shall determine the development principles, strategies
and models of their economies and societies in all sovereignty.” 35 That provision explains “participation” as one of the fundamental principles of ACP-European Community cooperation as follows: “[A]part from
central government as the main partner, the partnership shall be open to
… different kinds of other actors in order to encourage the integration
of all sections of society, including the private sector and civil society organizations, into the mainstream of political, economic and social life …”
The role of international law | PART FOUR 457
could be achieved by choosing measures that leave
out the Government and go directly to the population,
especially through local NGOs. This approach would
also reflect the principle, recognized in the Cotonou
Agreement,
the Declaration on the Right to Development and the Vienna Declaration and Programme
of Action, that humans are the ultimate protagonists
and beneficiaries of development. In other words, this
interpretation of the sanctions mechanism under the
Cotonou Agreement in the light of the right to development would lead to a further restriction of the States’
reserved domain in permitting direct contact between
third States and organizations of civil society so as to
realize development. It would also reflect the collective dimension of the right to development as a claim
of the population with respect to its home State.
The same approach could be used under the
right to development itself so as to balance the responsibilities of the national State and the international
community. However, the problem that arises then is
that—
unlike under the Cotonou Agreement—the right
to development so far does not encompass procedural
or institutional structures at the international level,
such as a fixed time period for consultations or oversight by an inter-State body (such as the Council of
Ministers under the Cotonou Agreement, which determines whether a flagrant violation of human rights is
taking place). Such provisions could, of course, be
introduced under a binding legal instrument on the
right to development. In this case, the external dimension of the right to development would limit the principle of non-interference to the benefit of the (individual
and collective, not State) right to development, i.e.,
the internal dimension of the right.
