II. Transforming criteria into treaty
norms: a thought experiment6
It is theoretically possible to move quickly from
the current state of development of normative standards with respect to the right to development to an
omnibus treaty by transforming the criteria as further
revised into articles of an international convention on
the right to development. However, such a course of
action might not be in the best interests of advancing
the right to development owing to obstacles arising
from the nature of the criteria and to the limitations of
a general convention as a tool of international law.
After examining the obstacles to transforming the
revised criteria into treaty obligations (subsect. A), this
part of the chapter will attempt a thought experiment
to see what articles of a right to development treaty
might look like if those obstacles were overcome
(subsect. B).
5 The criteria and sub-criteria developed by the high-level task force are contained in document A/HRC/15/WG.2/TF/2/Add.2.
6 This section is based on chapter 7 in the work referred to in footnote 1.
A. Obstacles to transforming the revised
criteria into treaty obligations
The first observation is that the criteria were initially written to be applied to “global partnerships” as
understood in Millennium Development Goal 8, and
only expanded at a later phase to all aspects of the
right to development, a process to be continued in the
ongoing revision of the criteria. For most States, the
obligations a treaty might establish in relation to such
“global partnerships” are the principal motivation for
a treaty. However, in international law a treaty is an
agreement between two or more States or other subjects of international law.
No international institution
has ratified any of the human rights treaties and the
obligations of these institutions are a matter of some
discussion. It is obvious that no non-State subjects of
international law, such as the World Trade Organization (WTO), the Association of Southeast Asian
Nations (ASEAN), the World Bank or other entity,
would be solicited to be parties to any convention on
the right to development. Their cooperation might be
provided for, as was done with respect to the specialized agencies in part IV of the International Covenant
on Economic, Social and Cultural Rights or to international organizations in the case of the Convention on
the Rights of Persons with Disabilities,7 but the obligations would be those of States parties to an eventual
convention rather than “global partnerships” as such.
One may doubt that States parties to such a
treaty would intend to commit international organizations,
the private sector and categories of countries
implicated by the draft criteria. Below, each set of
actors is considered in turn:
(a) International organizations. Organizations
such as the Organisation for Economic
Co-operation and Development (OECD)
can be considered partnerships envisaged
in the context, for example, of criterion 1
(f), which calls for the duty bearer “to promote and ensure access to adequate financial resources”. WTO, as well as bilateral
and regional trading regimes (such as the
North American Free Trade Agreement
(NAFTA) and the ASEAN Free Trade Area
7 As Stein and Lord point out, the Convention on the Rights of Persons with
Disabilities expressly invites States parties to cooperate internationally
through partnerships with relevant international and regional organizations. The authors urge the high-level task force “to draw from the experiences of the [Convention] in creating a framework in which a multitude of
actors, both State and non-State, participate in implementation processes”
(Michael Ashley Stein and Janet E. Lord, “The normative value of a treaty
as opposed to a declaration: reflections from the Convention on the Rights
of Persons with Disabilities”, in Implementing the Right to Development,
p. 32).
The role of international law | PART FOUR 447
(AFTA))8 are presumably the focus of criterion 1 (e), which seeks “to create an equitable, rule-based, predictable and non-discriminatory international trading system”.
Similarly, one may assume the International
Monetary Fund (IMF) to be central to the
reference in criterion 1 (b) “to [maintaining] stable national and global economic
and financial systems”. The problem with a
treaty norm reflecting these criteria would
be that, from the developing country perspective, they should create binding obligations on the institutions concerned, but
the institutions and many other Governments would most likely vigorously resist
the assumption of such obligations through
a human rights treaty;
(b) The private sector. Millennium Development Goal 8 calls for cooperation with the
private sector in general to “make available the benefits of new technologies, especially information and communications
technologies”, and it is the information
and communication technologies industry that is most directly concerned by this
reference. Goal 8 also contains a target
to “provide access to affordable essential
drugs in developing countries”, which also
refers explicitly to cooperation with pharmaceutical companies. The role of the private sector is particularly relevant to criteria 1 (b) (“To maintain stable national and
global economic and financial systems”); 1
(d) (“To establish an economic regulatory
and oversight system to manage risk and
encourage competition”);
1 (g) (“To promote and ensure access to the benefits of
science and technology”); and 2 (c) (“To
ensure non-discrimination, access to information, participation and effective remedies”). A treaty obligation concerning the
private sector would similarly be unacceptable to the industries concerned and would
be strongly resisted by countries that reflect
their interests and are powerful economic
players in the global economy, by which
is understood primarily the OECD countries
and the BRICS;9
8 It is estimated that there are some 300 regional trade agreements. See
http://www.wto.org/english/tratop_e/region_e/regfac_e.htm.
9 BRICS is a group of regional power brokers consisting of Brazil, Russian
Federation, India, China and, as of April 2011, South Africa, which
account for 40 per cent of the world’s population and have “recently shown
a desire to use their combined size and economic might to counter the
(c) Categories of countries. Three categories
are mentioned in goal 8: “the special
needs of the least developed countries”,
“the special needs of landlocked and small
island developing States” and “developing countries”, the last with respect both
to “debt problems” and “decent and productive work for youth”. These countries
seem by implication to be the subject of “a
commitment to good governance, development, and poverty reduction—both nationally and internationally” in goal 8. Creditor
countries are involved in the reference to
making debt sustainable in the long term.
It would be useless to seek an international
convention on the right to development to
bind those countries or the International
Bank for Reconstruction and Development
(IBRD), WTO, OECD, NAFTA or any other
international institution or treaty regime.
However, some intergovernmental organizations may be willing to join a multi-stakeholder agreement, as discussed in section
II.B below.
Similarly, although the private sector is ready
to commit to investment agreements and a range of
other international agreements, this would certainly
not be the case with a right to development convention. Cancellation of bilateral debt is more amenable
to bilateral agreements, or to initiatives like the Heavily Indebted Poor Countries (HIPC) Initiative and the
Multilateral Debt Relief Initiative (MDRI). It is not likely
to be considered in a general treaty, although this
is not to be excluded. The particular needs of landlocked and small island developing States are also a
matter for special agreements rather than an omnibus
right to development treaty. Decent and productive
work for youth is covered by conventions under the
International Labour Organization (ILO) and a right
to development convention could do little more than
restate ILO norms.
Thus, the first major difficulty in translating the
eventual criteria into treaty obligations is that the entities for which the criteria were drafted, namely global
partnerships for development, such as the OECD
Development Assistance Committee (DAC) and the
New Partnership for Africa’s Development (NEPAD),
are frameworks of multilateral cooperation rather than
West’s global dominion … [and] to reform such institutions as the UN Security Council and the World Bank”. See “All over the place. South Africa
is joining the BRICs without much straw”, The Economist, 26 March 2011,
p. 56.
448 REALIZING THE RIGHT TO DEVELOPMENT | Implementing the right to development
States; they are not likely to become parties to an
inter-State treaty. Any attempt to bind them by treaty
will either be too weak, and developing countries will
be disappointed, or too strong, and developed countries will object.
A further difficulty is that a treaty must state
clearly what role each party accepts. For the most
part, this requires what legal philosophers call “perfect obligations”, that is, obligations for which there is
an identifiable right holder to whom the obligation is
due from an identifiable duty holder. How could the
revised criteria be translated into such rights? Would
the treaty need to be specific, for example: “The governor of the Central Bank of any State party to this
treaty to which any other State party owes an official debt shall, within thirty days following the deposit
of the instrument of ratification of this treaty, issue
an exoneration of debt on behalf of all other States
parties having such debt and take all other measures
necessary to cancel completely the said debt.”? Such
wording illustrating a perfect obligation is already too
general. It is difficult to conceive of an international
convention on the right to development containing the
full range of perfect obligations implied by the right
in general or the global partnerships of goal 8 in particular. The problem is compounded when the scope
is expanded—
as was done with the criteria—beyond
goal 8 to the full range of issues raised in the Declaration on the Right to Development. Were an omnibus right to development treaty to be drafted, it might
have to be of the dimensions of the General Agreement on Tariffs and Trade (GATT), which contains over
28,000 words and is 65 pages long. A more modest framework agreement governing commitments to
undertake unspecified obligations based on key provisions would probably have the normative content of a
typical General Assembly resolution, transformed into
treaty language. Such an undertaking may or may
not be useful, depending on the political will of States
to follow up. The key provisions for such a treaty are
mentioned in the conclusion to this section.
It may be argued that a treaty reflecting some
of the obligations implied by the criteria developed
by the task force and subsequently revised need not
be limited to perfect obligations. As a human rights
treaty, the convention could draw on the consequentialist argument of Amartya Sen:
It is important to see that in linking human rights to both
perfect and imperfect obligations,
there is no suggestion that
the right-duty correspondence be denied. Indeed, the binary
relation between rights and obligations can be quite important, and it is precisely this binary relation that separates out
human rights from the general valuing of freedom (without a
correlated obligation of others to help bring about a greater
realization of human freedom). The question that remains
is whether it is adequate for this binary relation to allow
imperfect obligations to correspond to human rights without
demanding an exact specification of who will have to do
what, as in the case of legal rights and specified perfect
obligations.10
Sen correctly observes that “[i]n the absence of
such perfect obligations, demands for human rights
are often seen just as loose talk”.11
He responds to
this challenge with two questions: “Why insist on the
absolute necessity of [a] co-specified perfect obligation for a putative right to qualify as a real right?
Certainly, a perfect obligation would help a great
deal toward the realization of rights, but why cannot
there be unrealized rights, even rights that are hard to
realize?”12 He resists “the claim that any use of rights
except with co-linked perfect obligations must lack
cogency” and explains that “[h]uman rights are seen
as rights shared by all–irrespective of citizenship—
and the benefits of which everyone should have. The
claims are addressed generally—in Kant’s language
‘imperfectly’—to anyone who can help. Even though
no particular person or agency has been charged with
bringing about the fulfillment of the rights involved,
they can still be very influential.”13
This argument can be applied to the right to
development. Indeed, the language of the Declaration on the Right to Development is a catalogue of
imperfect obligations, which are nevertheless subject
to specification as to what steps should be taken,
when, with what forms of assistance, by whom, with
what allocation of resources, with what pace of progressive realization and through what means. As
Martin Scheinin has demonstrated, the jurisprudence
of human rights suggests a justiciable right to development, and therefore perfect obligations, at least in
embryonic form.14 A convention would have to articulate imperfect obligations, although the monitoring of
the implementation of the convention could follow the
extent to which the legal structure has adapted to meet
these obligations and allowed the State party to move
from imperfect to perfect obligations.
10 Amartya Sen, “Consequential evaluation and practical reason”, The Journal of Philosophy, vol. XCVII, No. 9 (September 2000), pp. 495. 11 Ibid. 12 Ibid., p. 496. 13 Ibid., p. 497. 14 Martin Scheinin, “Advocating the right to development through complaint procedures under human rights treaties”, in Development as a
Human Right: Legal, Political and Economic Dimensions, 2nd ed., Bård
A. Andreassen and Stephen P. Marks, eds. (Antwerp, Intersentia, 2010),
pp.
339-352.
The role of international law | PART FOUR 449
B. What a general treaty on the right to
development might look like
While it would seem, for the reasons stated,
problematic to reconceive the criteria as formulated
by the task force and further revised into treaty obligations, they do have a feature that is relevant to
the implied obligations. The task force criteria are
structured around three attributes, which were modelled on the indicators prepared by the Office of the
United Nations High Commissioner for Human Rights
(OHCHR)15 and relate to the three types of right to
development obligations: to create an institutional policy framework conducive to the right to development;
to engage in conduct consistent with the principles
of the right to development; and to achieve results
defined by the right to development.
These three
attributes thus relate to policy, process and outcomes
and could conceivably be reformulated in terms of
obligations.
It has to be assumed that the global partnerships for which at least the goal 8-based criteria were
intended involve States, and that these States could
conceivably undertake treaty obligations that would
require them to act, within the global partnerships in
which they participate, in a way that would increase
the compliance of those partnerships with the criteria.
The collective obligations of States parties to the International Covenant on Economic, Social and Cultural
Rights were addressed in the Maastricht Guidelines
on Violations of Economic, Social and Cultural Rights
(1997). The impact of treaty obligations on their
behaviour (influencing the collective decision-making
through voice, vote and contribution of resources) in
global partnerships implies acceptance of the principle of policy coherence reflected in Maastricht guideline 19,
which relates to economic, social and cultural
rights but could be extended to obligations arising
from a convention on the right to development.16
15 See HRI/MC/2008/3. Editor’s note: that document provided the basis for
the publication Human Rights Indicators: A Guide for Measurement and
Implementation (HRI/PUB/12/5), issued by OHCHR in 2012. 16 That guideline reads as follows: “The obligations of States to protect economic, social and cultural rights extend also to their participation in international organizations, where they act collectively. It is particularly important for States to use their influence to ensure that violations do not result
from the programmes and policies of the organizations of which they are
members. It is crucial for the elimination of violations of economic, social
and cultural rights for international organizations, including international
financial institutions, to correct their policies and practices so that they do
not result in deprivation of economic, social and cultural rights. Member
States of such organizations, individually or through the governing bodies,
as well as the secretariat and non-governmental organizations, should encourage and generalize the trend of several such organizations to revise
their policies and programmes to take into account issues of economic,
social and cultural rights, especially when these policies and programmes
are implemented in countries that lack the resources to resist the pressure
brought by international institutions on their decision-making affecting economic, social and cultural rights.” See E/C.12/2000/13.
In the spirit of this guideline, it may be a useful exercise to consider what treaty obligations States
might accept which would require them to influence
global partnerships in the ways suggested by the draft
criteria. Some possible formulations are proposed
below as a thought exercise, which may be a starting
point for a treaty building on the criteria as eventually
formulated. It should be stressed, however, that this
thought exercise assumes a radical transformation of
the present climate; currently,
it is politically unrealistic
to move into the treaty negotiation phase as significant
groups of States do not find it to be in their interest to
do so. Nevertheless, a thought exercise consisting of
defining the obligations implied by the criteria may
prove useful for the purpose of seeking productive
avenues to advance implementation of the right by
refining the criteria with a view to their application at
a later stage.
Some examples drawing from each of the three
attributes of the right to development as articulated
by the task force that constitute the organizing principles of the criteria (policy, process and outcome)
may show the strengths and weaknesses of a general
treaty. Where a particular criterion reflects a significant political commitment rather than a legal obligation, it can be transformed into a preambular paragraph; otherwise, the principle implied by the criteria
can be restated as a very rough initial formulation of
an obligation that might be considered in the context
of treaty negotiations.
