The concept of a right to development in modern international law can be traced back to the Universal Declaration on Human Rights50 and the Charter of the United Nations. 51 The reality of underdevelopment and the resulting danger to world peace and security was recognized by all nations, and the General Assembly designated the 1960s as the United Nations Development Decade.52 Following the first United Nations World Conference on Human Rights in 1968 in Teheran (known as “Teheran Proclamation”),53 the General Assembly adopted the Declaration on Social Progress and Development on 11 December 1969.54 Later, the General Assembly adopted the Charter of Economic Rights and Duties of States.55 In 1977, the General Assembly adopted a resolution which stresses “the need for the promotion of the full dignity of the human person and the development and well-being of the society”.56 Finally, in 1986, the General Assembly adopted the Declaration on the Right to Development,57 a non-binding international instrument and the first formal document to be adopted in the U.N. by consensus. 58
Since then, the right to development has been a matter of historical, philosophical, legal, economic and political debates. The transformation of the Declaration of the Right to Development into reality is still a day dream for those hundreds of millions of people who live on a dollar a day. For them, development is nothing but an empty promise.
Legal foundation for the right to development has not been established. Instead, the right has lost its vigor in the process of being folded into the concept of sustainable development. Nevertheless, sporadic efforts have contributed to the survival of the right to development. In 2002, the United Conference on Financing for Development (CFD) was held in Mexico. The goals of the conference were to adequately address growth, poverty eradication, and sustainable development.59 The CFD reiterated all of the concerns of the underdeveloped countries as described and unanimously adopted in the first, second and third Conferences on Least Developed Countries. Other follow-up meetings and summits have been held in order to effect the idea of development in the developing, particularly the underdeveloped countries.60
All of these instruments are based on common percepts, such as: peace is dependent on development; hunger and poverty are rampant in underdeveloped societies; the present level of aid flow is insufficient to realize development goals; the international trade system is not fair and open; commitment to provide ODA has not been fully carried out by the developed world; the least developed countries are so overwhelmed by a lack of basic necessities that the governments of those countries like only to talk about development but do little or nothing, and there is a need for accountability by rich and poor countries in providing and received funds.
A serious question, then, arises: Why have all efforts of the international community and the administration of those efforts either in a bilateral or in a multilateral way through international organizations not trickled down to those poor and hungry people of the underdeveloped countries? This question highlights the gap between the meaning and the reality of development.
The conditions that characterize underdevelopment still exist. There could be many reasons that the status quo remains entrenched despite many efforts and this consensus. An important reason--the lack of understanding of the societal attributes of underdeveloped countries.61
The core nature of a society lies in the cultural factors, such as its understanding of how things happen, rather than merely what happens; how decisions are made, rather than what decisions are made; the pressures that impact decision-making and priority-setting, and how members of the society determine the process. All these compromise the core culture of a society. Culture is the nervous system of a society, responding and reacting to a range of stimuli. The international community until now has considered only the visible face of development (basic material aspects and inspirational infrastructures), not the nervous system of development (the internal functioning of the society and its modus operandi in perceiving and realizing development or progress). Understanding the style of Raj62 (governance) is a difficult one.
In every system of governance, social and cultural elements are deeply involved and are invisible to the bare eyes and misunderstood in a superficial viewing. Therefore, understanding of the core nature of a society is an art of crafting and a Tantra (a geometric basis of connection of two-knowledge and nature, male and female-for our purpose, the North and the South). Unfortunately, the meaning of development, in general perception and practice, has been limited to the capacity of consumption and accumulation and does not incorporate cultural components.63
Another aspect of the failure of development efforts to date is the absence of method to enforce the right to development. The absence of a right to enforcement is deliberate and politically and historically motivated. Historically, economic wealth has been used to establish strata64 such as those of slave and master. This use of economic wealth is still practiced today, with this difference: traditional society practiced this notion to create class hierarchies while modern society practices this notion to create hierarchies of individuals. No master whether a class or an individual, wants to relinquish status until compelled to do so through transcendental spiritual realization, bloody revolution or intervention of laws establishing a right to freedom from slavery. Therefore, differences in levels of economic development or wealth accumulation have made some states powerful and other states powerless, taking away the autonomy of poor countries because of their overwhelming needs and dependence on having those needs fulfilled.
Defining development as a need or want, not as a right, may be seen as a deliberate move on the part of developed countries to maintain the status quo. This is why one scholar calls development a “historically singular experience”65 and the reason that the type of development that is now on the table for discussion is tied to the ideas, expectations, and judgments of the developed countries.66 The right to development is the political delivery of a basic bundle of package of rights, which are in reality not rights at all but a function of human charity. 67 Sustainable development cannot be realized until a substantive right to development is established.
By Upendra D. Acharya
Assistant Professor of Law, Gonzaga University School of Law; LL.B. Nepal Law Campus; M.C.L.University of Delhi, College of Law; LL.M. University of Utah, College of Law; S.J.D. University of Wisconsin Madison Law School.
50 Articles 22, 25(1), 26 (1) and (2), and 28 of the Universal Declaration on Human Rights, Supra note 6 http://www.un.org/Overview/rights.html
51 The Charter of the United Nations was signed on 26 June 1945 at the conclusion of the United Nations Conference on International Organization and came into force on 24 October 1945. Articles 55 and 76 of the Charter imply the concept of development. http://www.un.org/aboutun/charter/index.html It may be noted that the right to development was not thought to be a priority when the Charter was created. When the Charter was signed, most of the developing countries were colonized and oppressed and the majority of the signatory countries were colonizing powers. Most of the colonized countries became independent, not as a result of the U.N. Charter, but as the result of their own fight for independence.
52 See G.A. Res. 1710 (XVI) 1961.
53 Proclamation of Teheran, Final Act of the International Conference on Human Rights, 22 April-13 May 1968.
54 See Declaration on Social Progress and Development, G.A. Res. 2542 (XXIV), 1969.
55 Charter of Economic Rights and Duties of States, Supra, note 11. The charter, while laying out the fundamentals of international economic relations, affirmed that every state has the right to exercise freely full permanent sovereignty over its wealth and natural resources, to regulate foreign investment within its national jurisdiction, and to nationalize, expropriate, or transfer the ownership of foreign property. The charter provided that appropriate compensation should be paid in cases of nationalization and that any controversies should be settled under the domestic laws of the nationalizing states unless all states concerned agree to other peaceful means. It also set forth the right of states to associate in organizations of primary producers in order to develop their national economies.
56 G.A. Res. GOAR 32nd Sess., U.N. Doc. A/Res/32 (1977)
57 Declaration on the Right to Development, Supra, note 6
58 The United States was the only country to vote against the Declaration.
59 The Final Text of Agreements and Commitments adopted at the International Conference on Financing for Development, Monterrey, Mexico, 18-22 March 2002. The final text of agreements and commitments deals with domestic savings, productive investment, increasing human capacity of the developing and the underdeveloped countries. It reaffirms international trade as an engine for development and committed to implement the outcome of Doha round.
60 Summit of World Leaders for the Action Against Hunger and Poverty, New York, September 20, 2004; Paris Declaration on Aid Effectiveness, Paris, February 28-March 2, 2005; Declaration on Innovative Sources of Financing for Development, New York, September 14, 2005; Financial Development to Achieve the Millennium Development Goals, Doha, Qatar, June 17, 2007; In addition to these multilateral efforts, the United States government created the Millennium Challenge Account in 2004 to create accountability for both rich and poor countries.
61 The understanding of the core nature of a society is the predominant factor to effecting progress in that society.
62 The term “Raj” is a word used in the classic literature (Veda, Upanishad and Manusmriti) of the Indus civilization, which developed on the South Asian continent.
63 The United Nations has moved toward integrating social and cultural elements into the concept of development by introducing the “Human Development Index,” used to measure progress toward development, but has been unable to connect its policies and programs to these social and cultural elements of developing societies.
64 N. Umari, Subsistence and Development, 2 Journal of Income Distribution, 1, pp. 90-117 (1992).
65 Arturo Escobar, Encountering Development, 10 (1995)
66 Id. at 26.
67 Professor Frank Garcia, during his keynote speech at the “Free Trade and Fair Trade” conference held in Coeur d’ Alene, Idaho in March 1-3, 2007.