1. Provisions relating to policy
Thus, if we consider the first attribute developed
by the task force (“comprehensive and human-centred
development policy”), we can take the first criterion,
“1(a) To promote constant improvement in socioeconomic human well-being”, which is based on the
second preamblular paragraph and article 2 (3) of
the Declaration, and express it as a preambular paragraph to a putative treaty:
Determined to promote and ensure access to adequate
financial resources for development through bilateral and
multilateral capital flows, domestic resource mobilization
and debt sustainability,
Another criterion under the first attribute is “1(j)
To adopt and periodically review national development strategies and plans of action on the basis of
a participatory and transparent process”, which is
based on articles 1 (1), 2 (3), 3 (1) and 8 (2) of the
450 REALIZING THE RIGHT TO DEVELOPMENT | Implementing the right to development
Declaration. This criterion could conceivably be transformed into a treaty obligation along these lines:
The States parties shall adopt and periodically review
national development strategies and plans of action in light
of the present Convention and ensure that representatives of
affected populations and civil society, as well as elected officials at the local and national levels, participate in a meaningful way in the elaboration, adoption and review of such
strategies and plans of action and that information regarding
these strategies and plans of action is widely available to the
general public.
Other criteria, such as “1(i) To contribute to an
environment of peace and security”,
17 overlap with
other treaty regimes to such an extent as to make
it very difficult to include them in a general right to
development treaty, although the preamble could reaffirm their commitment to contribute to such an environment, using such language as:
Noting the obligations States Parties have assumed through
treaties and customary international law relating to the protection of victims of armed conflict, refugees and asylum
seekers,
Reflecting the draft sub-criteria (reduce the risks
of conflict, protect vulnerable populations during conflict, post-conflict peacebuilding, and development
and support for refugees and asylum seekers) in such
a treaty would require tediously redundant preambular paragraphs and cumbersome articles on substantive obligations, either too vague to be meaningful
(e.g., “to agree to protect vulnerable populations during armed conflict”) or recapitulating provisions of the
Geneva Conventions of 1949 that would weigh down
the convention without addressing any specific issue
of development.
2. Provisions relating to process
Attribute 2 refers to “participatory human rights
processes” and enumerates five types of process criteria which might lend themselves to formulations of
treaty obligations: a legal framework for development;
human rights standards; principles of non-discrimination, access to information, participation and effective
remedies; good governance at the international level;
and good governance at the national level. Some
would merely reiterate commitments made in other
contexts. For example:
The States Parties to the present Convention agree, where
they have not already done so, to give priority to the ratifi17 This criterion is based on the ninth, eleventh and twelfth preambular paragraphs and articles 3 (2) and 7 of the Declaration, and on paragraphs
5 and 69-118 of the 2005 World Summit Outcome (General Assembly
resolution 60/1).
cation of treaties relating to human rights and anti-corruption
measures.
Criterion 2 (b) “To draw on relevant international human rights instruments in elaborating development strategies”18 mentions a “human rights-based
approach in national development strategies”, including “human rights in national development plans and
[poverty reduction strategy papers]”. Conceivably, a
treaty provision could include:
States Parties shall draw on relevant international human
rights instruments in elaborating development strategies,
such as poverty reduction strategies, and in laws and regulations concerning extraterritorial activities by business enterprises affecting human rights.
Regarding participation, sub-criteria 2 (c) (ii)
and 2 (c) (iii) refer respectively to the “establishment
of a framework to facilitate participation” and “procedures facilitating participation in social and economic decision-making”. A possible corresponding
treaty obligation could be:
States Parties shall provide sufficient political and financial
support to ensure effective and meaningful participation of
the population in all phases of the development policy and
programme design, implementation, monitoring and evaluation.
States Parties shall provide legal or administrative arrangements ensuring free, informed prior consent by indigenous
communities to the exploitation of natural resources on their
traditional lands.
An issue of keen interest to developing countries
is reflected in criterion 2
(d) “To promote good governance at the international level and effective participation of all countries in international decision-making”.
Here treaty provisions could draw upon language
already agreed to, such as in General Assembly
resolutions, conference outcomes such as the Monterrey Consensus of the International Conference on
Financing for Development (2002) and meetings such
as the Third and Fourth High Level Forum on Aid Effectiveness (2008 and 2011). Thus, the wording of paragraph 10 (a) of General Assembly resolution 64/172
could be used for a treaty provision as follows:
States Parties agree to promote, through the decision-making
process of the relevant institutions, the democratization of
the system of international governance in order to increase
the effective participation of developing countries in international decision-making.
18 This criterion is based on the eighth and tenth preambular paragraphs
and articles 3 (3),
6 and 9 (2) of the Declaration, and on paragraph 9 of
General Assembly resolution 64/172 on the right to development.
The role of international law | PART FOUR 451
Additional provisions relating to aid could be
based on such commitments as the Paris Declaration on Aid Effectiveness and the Accra Agenda for
Action, separating, where necessary, provisions for
“partner countries” (or “States Parties benefiting from
development cooperation”) and “donor countries” (or
“States Parties belonging to the donor community”),
which would need to be defined in the opening articles of the treaty. Thus, provisions relevant to this criterion could include:
States Parties belonging to the donor community agree to
base their overall support, as expressed in country strategies, policy dialogues and development cooperation programmes, on partners’ national development strategies and
periodic reviews of progress in implementing these strategies, and to link funding to a single framework of conditions
and/or a manageable set of indicators derived from the
national development strategy.
States Parties benefiting from development cooperation shall
exercise leadership in developing and implementing their
national development strategies through broad consultative
processes and translating these national development strategies into prioritized results-oriented operational programmes
as expressed in medium-term expenditure frameworks and
annual budgets.
Where there is no need to separate donor from
partner countries, the Paris Declaration commitments
could take the form of common treaty provisions, such
as:
States Parties agree to work together to establish mutually
agreed frameworks that provide reliable assessments of performance, transparency and accountability of country systems and to integrate diagnostic reviews and performance
assessment frameworks within country-led strategies for
capacity development.
Regarding governance at the national level (criterion 2 (e) “To promote good governance and respect
for rule of law at the national level”),
treaty provisions
could draw on the Accra Agenda along these lines:
States Parties benefiting from development cooperation shall
facilitate parliamentary oversight by implementing greater
transparency in public financial management, including public disclosure of revenues, budgets, expenditures, procurement and audits.
States Parties belonging to the donor community agree to
publicly disclose regular, detailed and timely information on
volume, allocation and, when available, results of development expenditure to enable more accurate budget, accounting and audit by developing countries.
Similar provisions could be included for non-discrimination, gender equality, voting procedures in
international financial institutions and other process-oriented aspects of the right to development.
3. Provisions relating to outcomes
The third and final attribute relates to outcomes
in terms of social justice in development and begins
with criterion 3 (a) “To provide for fair access to and
sharing of the benefits of development”, which contains language suitable for a preambular paragraph
similar to the second preambular paragraph and article 2 (3) of the Declaration:
Convinced that the right to development requires that national
and international development strategies and programmes
result in the fair distribution in the benefits of development,
Some of the four sub-criteria may lend themselves to treaty provisions. For example, sub-criterion
3 (a) (ii) (“Equality of access to resources and public
goods”) could be translated into a treaty provision
such as:
States Parties shall guarantee equality of access to resources
publicly available as a result of progress in achieving development goals as well as to public goods, such as water,
clean air, public recreation areas, bandwidth and similar
goods as shall be determined by national policy to belong to
all consumers on the basis of need rather than ability to pay.
Criterion 3 (b) (“To provide for fair sharing of the
burdens of development”) includes matters of climate
change, negative impacts of development investments
and policies, and natural, financial or other crises.
Like some of the policy criteria mentioned above (e.g.,
securing peace, protecting refugees), it would weigh
down a convention to repeat other treaty obligations in areas such as climate change, migration and
humanitarian assistance.
However, some issues are
so central to the right to development, and to its attribute of social justice, that it may be possible to include
a provision. For example, a possible article might be:
States Parties agree that adequate compensation must be
provided to all who suffer from negative impacts of development investments and policies, such as hazardous industries,
dams causing displacement of populations, natural resource
concessions that do not adequately benefit the local population, granting of patents that infringe on ownership of
traditional knowledge and similar activities, on the basis of
an equitable sharing of responsibility between the international entity carrying out the activity and the national agency
authorizing it.
States Parties agree to ensure, through the United Nations
Framework Convention on Climate Change and related
instruments,
that developing countries have the resources
and technology to carry out nationally appropriate mitigation
actions to reduce emissions and adapt to climate change, in
accordance with the principle of common but differentiated
responsibilities and respective capabilities, and taking into
account social and economic conditions and other relevant
factors.
452 REALIZING THE RIGHT TO DEVELOPMENT | Implementing the right to development
Similar provisions could be written to give effect
to sub-criteria 3 (a) (iii) (“Reducing marginalization of
least developed and vulnerable countries”) and 3 (a)
(iv) (“Ease of immigration for education, work and revenue transfers”). Regarding criterion 3 (c) (“To eradicate social injustices through economic and social
reforms”), issues of social protection, trafficking, child
labour and land reform could also be addressed in
articles defining the policy priorities to which States
parties would commit in accordance with the social
justice dimension of the right to development.
To these
should be added a more general gender equality provision, such as:
States Parties agree to ensure that their development strategies and programmes reflect the important role and the rights
of women and the application of a gender perspective as
a cross-cutting issue in the process of realizing the right to
development, with special provisions to guarantee women’s
and girls’ education and their equal participation in the civil,
cultural, economic, political and social activities of the community.
The above examples of treaty provisions are
merely a thought exercise to test the idea—independent from political considerations—
of transforming into
treaty language the draft criteria developed by the
task force to draw the attention of development practitioners to the development priorities and practices
that are conducive to the right to development. The
purposes are different and considerable effort would
be required for one to build on the other.
C. Final observations concerning
transforming the criteria as eventually
revised into treaty provisions
This exercise reveals several problems with the
drafting of a convention based on the criteria. The
first is that the norms are either too vague to be of
much value, or unlikely to be acceptable to most
Governments (although perhaps desirable from the
perspective of an ideal right to development). Terms
like “participation” and “equity” may be acceptable
in a political declaration, but in a treaty that would
be enforceable, these terms and many others would
require definition and clarification. It would probably take several years before a formulation could
be found that is acceptable to an intergovernmental
drafting conference. However, the level of generality
in the criteria developed by the task force is not much
greater than that in many other human rights treaties.
Additionally, drafters could provide more specificity
if they felt there was a good-faith effort on all sides
to find a common ground.
The polarized political climate that results in 53 negative votes (see below) at
the mere mention of a convention is not conducive to
the fleshing out of specific treaty norms expanding on
the criteria, perhaps in any possible formulation. A
related problem is that many of the proposed treaty
obligations are at least in part duplicative of treaty
obligations already assumed. It would be necessary
to ensure (a) that there is compatibility among similar
norms; and (b) that there is sufficient novel substance
matter to justify a new treaty. The more precise the
treaty obligation the more likely it is to reveal the tension between a general commitment to the right to
development and the willingness to change practices.
Although it is impossible to separate the feasibility of an international treaty on the right to development from the charged political climate, it is possible for legal scholars and practitioners, not acting
on Government instructions, to make an honest determination of the advantages and disadvantages of the
treaty route. It should be possible to assess whether or
not a treaty is a good idea on the basis of the extent
to which it would improve the prospects of reducing
the resource constraints on developing countries while
systematically integrating human rights into the development process and, conversely, development perspectives into human rights, rather than the extent to
which this or that group of States favours the treaty.
The draft criteria are perhaps not the best starting
point because they relate to structure (conducive environment), process (principles of conduct) and outcome
(just results), which overlap and are more useful for
practitioners’ guidelines than for drafters concerned
about keeping a treaty precise and concise.
However, the task force criteria reflect six core
normative propositions that merit inclusion should the
political will be found to draft a treaty and that can be
articulated in a language suitable for an international
treaty: (a) that the development environment must
be conducive to human-centred and comprehensive
development at the national and international levels
aimed at the constant improvement of the well-being
of all; (b) that local ownership of development policy must be conditioned by a human rights-based
approach, the fair distribution of the benefits, and the
principles of equity, non-discrimination, participation,
transparency, accountability and sustainability; (c)
that active, free and meaningful participation of the
affected populations must be part of the process; (d)
that due attention must be given to gender equality
and the needs of vulnerable and marginalized populations;
(e) that the donor countries must commit to
The role of international law | PART FOUR 453
reducing resource constraints on developing countries
in the areas of trade liberalization, private financial
flows, debt forgiveness, domestic resource mobilization and development assistance; and (f) that the monitoring must be based on reliable data and subject
to ex ante impact assessments, public scrutiny, and
institutionalized mechanisms of mutual accountability
and review. The willingness of developing countries to
accept item (b) (“rights-based development”) should
be based on their support for articles 2 and 6 of the
Declaration and that of developed countries to accept
item (e) (“development-based human rights”) should
be based on their support for articles 3 and 4 of the
Declaration. These six core ideas could form the basis
for the negotiation of a convention in a climate of
mutual trust and shared commitment to move the right
to development from political rhetoric to development
practice. For the moment, there is little evidence of
either such a climate or such commitment.
