C. Relationship to international economic
law
As in the area of development cooperation, the
agreements in the field of international economic law
are manifold. Constraints of time and space permit
only two observations here, the first with respect to
the World Bank and the second with respect to WTO.
Since the late 1980s, good governance has
become a yardstick in the World Bank’s loan-granting process, as bad governance was considered the
main reason for the ineffectiveness of loans.36 An
36 World Bank, Sub-Saharan Africa: From Crisis to Sustainable Growth
(Washington, D.C., 1989), pp. 60-61, and Governance:
The World
Bank’s Experience (Washington, D.C., 1994), pp. 17-18. For an account
of this development see, e.g., Adrian Leftwich, “Governance, the State
and the politics of development”, Development and Change, vol. 25, Issue
2 (April 1994), p. 363; Mette Kjær and Klaus Kinnerup, “Good governanalysis of the World Bank’s concept of good governance reveals large overlaps with the substantive
content of the right to development. According to the
World Bank, good governance encompasses four elements: (a) accountability in the sense of disciplinary
and criminal responsibility of public officials; (b) participation; (c) transparency; and (d) the supremacy of
law, i.e., the rule of law.37 As was shown earlier, the
three last-mentioned elements are features of the procedural dimension of the right to development. The
decisive difference between the right to development
and the good governance approach, however, is that
the World Bank considers the elements of the latter
only to be means of enhancing the effectiveness of
loans; unlike the right to development, they are not an
end in themselves.
Nevertheless, this conceptual difference must
not distract from the fact that the World Bank grants
loans to promote development in the receiving State.
The recognition of the right to development, under
customary international law or within a specific legal
instrument, would give a firm legal basis for introducing the realization of elements of good governance
as obligations into loan agreements. For now, good
governance is only an obligation by virtue of a teleological interpretation of the World Bank’s Articles of
Agreement.
With respect to WTO law, the first observation
is that the right to development can be inferred in
the WTO Agreements, even if they do not mention
it expressly. One avenue is to interpret the provisions
focusing on the special situation of developing countries in the light of this right.38 The second, more extensive, way would introduce the concept of the right to
development via the requirement of interpreting WTO
law in the light of applicable international law.
39 These
ance – How does it relate to human rights?”, in Human Rights and Good
Governance: Building Bridges, Hans-Otto Sano and Gudmundur Alfredsson, eds. (Springer, 2002), pp. 4-7; and David Gillies, “Human rights,
democracy and good governance: stretching the World Bank’s policy frontiers”, in The World Bank: Lending on a Global Scale (Rethinking Bretton
Woods), Jo Marie Griesgraber and Bernhard G. Gunter, eds. (London,
Pluto, 1996), pp. 101 and 116. 37 For a detailed analysis, see Beate Rudolf, “Is ‘good governance’ a norm
of public international law?”, in Völkerrecht als Wertordnung/Common
Values in International Law. Festschrift für/Essays in Honour of Christian
Tomuschat, Pierre-Marie Dupuy and others, eds. (Kehl am Rhein, N.P.
Engel, 2006), p. 1007. 38 Such provisions may be found in articles XVIII and XXXVI (8) of the General Agreement on Tariffs and Trade. 39 This requirement was recognized by the Appellate Body. See, e.g., United
States – Standards for Reformulated and Conventional Gasoline, Appellate Body Report, 20 May 1996, document WT/DS2/AB/R, sect. III.B,
reprinted in International Legal Materials, vol. 35 (1996), p. 605; Korea
– Measures Affecting Government Procurement,
Panel Report, 19 January 2000, document WT/DS163/R, para. 7.96; United States – Import
Prohibition of Shrimp and Certain Shrimp Products (Shrimp/Turtle case),
Appellate Body Report, 6 November 1998, document WT/DS58/AB/R,
paras. 127-132. For a detailed analysis see James Cameron and Kevin
R. Gray, “Principles of international law in the WTO Dispute Settlement
458 REALIZING THE RIGHT TO DEVELOPMENT | Implementing the right to development
possibilities are helpful for the right to development,
yet—and this is the second observation—they miss
the main problem of WTO law, namely, the failure of
existing WTO agreements to address, or to address
adequately, areas that are of particular importance
to developing countries. The best known example
is insufficient access of agricultural products from
developing countries to the markets of industrialized
States because of the subsidies the latter grant to their
farmers or agricultural industries. As the Doha Round
shows, the reliance of the WTO system on negotiations, which hinge on the States’ economic and political power, is inappropriate to meet the developmental
needs of States in an adequate and timely way. Thus,
as long as no substantive principles, such as equity
or the right to development, are explicitly recognized
within the WTO system, a serious impediment to realizing the right to development will remain. This situation will work to the disadvantage of the least developed countries because, unlike “threshold countries”
(such as Brazil or China), they do not possess the bargaining chips necessary for successful negotiations.
D. Relationship to international
environmental law
Again, the lack of a comprehensive international
agreement in the area of international environmental law prevents a general comparison of the right
to development with treaty arrangements. Instead,
one notes seemingly contradictory approaches of the
right to development and environmental law to the
relationship between development and sustainability,
and to a possibility of harmonizing them. Note the
decisive difference between the Rio Declaration on
Environment and Development of 1992, which puts
development and sustainability on an equal footing,40 and the Vienna Declaration and Programme of
Action, adopted one year later, which reduces sustainability to one of several recommended approaches.
Although the conflict can be mitigated by a restrictive
interpretation, allowing States to prefer development
over sustainability only under extreme circumstances,
the fact remains that the right to development under
the Vienna Declaration and Programme of Action
gives precedence to development over sustainability,
whereas the Rio Declaration creates no hierarchy
Body”, International and Comparative Law Quarterly, vol. 50, Issue 2
(April 2001),
p. 248, and Joost Pauwelyn, “The role of public international law in the WTO. How far can we go?”, American Journal of International Law, vol. 95, No. 3 (April 2001), pp. 538, 540-543 and 560. 40 See, in particular, principle 3 (“The right to development must be fulfilled
so as to equitably meet developmental and environmental needs of present
and future generations.”) and principle 4 (“In order to achieve sustainable
development, environmental protection shall constitute an integral part of
the development process …”)
between the two concepts. In a similar vein, the United
Nations Framework Convention on Climate Change
of 1992 uses the right to development to limit the environmental obligations of States that serve the aim of
sustainability.41
Thus, it would seem that the relationship between
development and sustainability depends on the legal
text taken as a point of departure in resolving a conflict.
However, it is submitted here that this is not the
only outcome possible. If we conceive of international
law as an integrated legal order, such a compartmentalized approach is not tenable. International obligations must be interpreted, as far as possible, so as
to avoid contradictions. International courts and tribunals have long adopted this approach.42 Therefore,
it is preferable to understand all norms cited here as
reflecting the need to balance development and environmental concerns, a requirement that is encapsulated in the notion of sustainable development. Under
this approach, the balancing process is between
two interests of equal importance, neither of which
takes automatic precedence over the other. Consequently, what has to be achieved in the balancing
process is an outcome which advances both concerns
as far as possible. The realization of this harmonizing approach is best furthered by breaking down the
notions of development and sustainability into factors that help carry out the balancing process. In this
sense, the International Law Commission established
a set of factors to be weighed to determine States’
obligations to prevent extraterritorial harm.43 Thus,
the right to development can build on the experience
of international environmental agreements and documents in that the future debate should focus on the
establishment of factors to allow principled balancing
between development and sustainability.
