Operationalisation of ‘Duties’ of States and Non-State Actors in the Draft Convention on the Realisation of the Right to Development

[Vinai Kumar Singh is the Deputy Director of the Indian Society of International Law.]

Thirty-four years have elapsed since the United Nations Declaration on the Right to Development (UNDRD) was first adopted in 1986. The international law instrument to effectively operationalise the right to development is yet to come into existence. The draft Convention on the Right to Development (A/HRC/WG.2/21/2) (hereinafter “draft Convention”) along with commentaries (A/HRC/WG.2/21/2/Add.1, 20 January 2020), most recently is placed before the 21^st session of the Intergovernmental Open Ended Working Group on the Right to Development (OEWG) held on 4-8 May 2020. This post demonstrates that the most plausible option for the draft Convention seems to focus to operationalise the duties of States and International Organisation to realise and implement the right to development. The draft Convention advances that States and non-State actors must owe a “duty to co-operate” to address the structural imbalance in the existing international economic and social order. States very soon may reflect their views on the draft Convention.

During the last 34 years, the UN Commission on Human Rights and its successor UN Human Rights Council (UNHRC) have been striving to operationalise the right to development. For this purpose, the UN Commission on Human Rights have established the Intergovernmental Open-Ended Governmental Working Group on the Right to Development (OEWG), a follow-up mechanism in 1998, that appointed an Independent Expert on the Right to Development (Arjun Sengupta from India) followed by the High-level Task Force (HLTF) in 2004 to suggest mechanisms to realise the right to development. These bodies together, over the years, have presented 18 reports and proposed quite a few mechanisms to operationalise the right to development. These important enforcement concepts particularly “rights-based approach to development”, “duty to co-operate”, “due-diligence”, “development compact” and “human rights impact assessment”, “global partnership for development” and “common concern of humankind” have emerged out of the reports of the Independent Expert and the HTLF, as a possible way to realise and implement the right to development. The scope and relevance of these enforcement concepts to realise and implement the right to development has been debated and assessed at great length in the OEWG and the UNHRC. The discussion and negotiations on these reports at the OEWG and the UN Commission on Human Rights have witnessed deep substantive and political division of opinions within the Northern and the Southern States. Developed countries have adopted strategies to question the scope and content of the right to development while rejecting the need of legally binding instruments to realise the right to development.

Eventually, recently in May 2020, a five member experts committee constituted for the purpose has submitted the draft Convention on the Right to Development to realise the right to development to the OEWG. The preamble consisting of 25 paragraphs make an effort to remind and recall significant concepts which have gradually crystallized throughout the journey of evolution of the draft Convention. The preamble reiterates that the draft Convention is build upon the UNDRD. The five parts of draft Convention along with the preamble currently provide a framework of principles, obligations of States and International Organizations and implementation structure. Part III devotes on duties and duty-bearers which has been major focus of the draft Convention and that why it is worthwhile to be examined in the post.

Invocation of “Common Concern of Humankind” to Identify the Duty-bearers

In the very beginning itself, first para of preamble of the draft Convention acknowledges that realisation of the right to development is a “common concern of humankind” (Charles Betiz in 2001 has advanced that applicability of “common concern of humankind” in the human rights field). This implies that the realisation of the right to development “is not only a concern of the primary responsible State exercising jurisdiction, but of the international community as a whole, that is, of all States and non-State actors that together make up humanity”. The doctrine is actually given effect by Articles 7-12 of draft Convention. Article 7 underscores general duty of everyone (all human person and legal person, people, groups and State) to respect human rights and refrain from participating in the violation of the right to development. While invoking the three typology of respect, protect, and fulfil, Articles 8-12, focus on general obligations of State Parties and international organizations.

Emphasis to Link the ‘Human-rights Based Approach to Development’ with the Duty to Conduct the HRIAs by the States and International Organization

Article 3(c) of the draft Convention says that the States Parties will be guided by human rights-based approach to development. It reiterates that development is a human right and should be realised as such and in a manner consistent with and based on all other human rights. The latter part of the sentence relates to the word “based on” that has acknowledged the fact that realisation must be compatible with all other human rights (famous exchange of views among Jack Donnelly and Philip Alston). Thus, Article 3(c) the draft Convention has envisaged the human rights-based approach to development as the chief principle to realise the right to development including obligation to conduct human rights impact assessment (HRIAs). The inclusion of Article 3(c), therefore, endorses the decision of the OEWG held in 2005 which recommended that laws, policies and practices related to development must incorporate a human rights-based approach. However, in context of operationalisation through “development compact”, some delegates from the Southern group have observed that the human rights-based approach is used by the donor countries to create new conditionality. In light to this concern, Articles 3(f), 11 and 19 of the draft Convention provides a balance by empowering States to take regulatory measures to realise the right to development.

Article 19 of the draft Convention is relevant in strengthening the rights-based approach further by imposing obligation on States to conduct human rights impact assessment (HRIAs). It calls the States Parties to undertake appropriate steps, individually and jointly, including within international organizations, to establish legal frameworks for conducting prior and ongoing assessment of actual and potential risks and impact of their national laws, policies and practices and international legal instruments, policies and practices. By virtue of this provision read with Article 3(c), the World Bank and IMF policies are expected to strictly observe the human rights-based approach to development despite their reservation to adhere human rights obligations relying on ‘non-political mandate’ clause in the Articles of Agreement. It has become more relevant in context of the fact, that human rights rapporteurs, in past, on several occasions in 2015, 2017 and 2018 have suggested that the World Bank and the IMF have to change their attitude of being generally a “human rights-free approach”.

Operationalisation of ‘Duty to Co-operate’ to Realise the Right to Development: Recognition of the Principle “No-harm obligation” and Linkage with the International Economic and Social Order

Another enforcement concept “duty to cooperate” has been recognised in Preamble 10 and Article 13 of the draft Convention. Since the adoption of the UN Charter, the relevance and scope of ‘duty to cooperate’ in the realisation of the economic, social and cultural rights in general and of the right to development in particular, have been deliberated at various international forums at several occasions (See Alston and Quinn 1987, Salomon 2008, Beetham 2010). The developed countries have maintained their position that ‘duty to cooperate’ should not be construed to impose legal obligation to transfer resources for the poor world. On the other hand, the developing countries have been consistently emphasizing on the need to explore the obstacles in realising the right to development. Article 13 of draft Convention adopts a comprehensive approach by elaborating the scope of ‘duty to cooperate’. It requires the States Parties to undertake joint and separate action to promote higher standards of living, full employment, and conditions of economic and social progress and development. To achieve this, States Parties have to recognize their primary responsibility for the creation of international conditions favourable to the realization of the right to development for all. Article 13 (2) also incorporates “no harm obligation” and requires that human and legal persons, groups and States should not impair the enjoyment of the right to development. Further, it also guarantees that obstacles to the full realization of the right to development must be eliminated in all international legal instruments, policies and practices.

Article 13(4), importantly, operationalises the “duty to co-operate” to address the inequity in the existing international economic and social order. The content and scope of this provision is the consequences of the progress achieved on the ‘scope of international obligations of States Parties to address the structural deficiencies in the international order’ in the various forum of human rights committees (General Comment No. 14 on the Right to Health; the General Comment No. 5 on the Rights of the Child; Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights 2011). This provision has become more relevant in the context of demand of developing countries to address the issue of ‘the transformation of global governance’ as  a new and old dimension of the realisation of the right o development (Chimni and Balakrishnan). In pursuance to Article 13(4), States Parties have the duty to cooperate inter alia (c) improve the regulation and monitoring of global financial markets and institutions, and strengthening the implementation of such regulations; (d) ensure enhanced representation and voice for developing countries in decision-making in global international economic and financial institutions in order to deliver more effective, credible, accountable and legitimate institutions. In brief, Article 13 adopts measures to operationalise the principle of “duty to cooperate” to implement the right to development.

‘No harm obligation’ to Realise the Right to Development

Since the adoption of the UNDRD, the absence of clarity on the specific content of duty of States, human beings, group, international institutions were being raised as a fair ground for the impossibility to implement the right to development. Articles 7, 9 and 10 of the draft Convention elaborated the content of duty for the States, individual, groups and international institutions. These provisions operationalise the “no harm obligation” (Henry Shue 1980, Thomas Pogge 2002, David Beetham1995) to realise the right to development. Article 7 imposes that the all human and legal persons, peoples, groups and States have the general duty under international law to refrain from participating in the violation of the right to development. Article 9 obligates the international organizations to refrain from conduct that aids, assists, directs, controls or coerces, with knowledge of the circumstances of the act, a State or another international organization to breach that State’s or that other international organization’s obligations with regard to the right to development. This provision is without prejudice to the general duty contained in Article 7. In addition, Articles 10, 11 and 12 together adopt the tripartite terminology “obligations to respect, protect and fulfil” originally introduced by Asbjørn Eide in 1987 as well identified by the HTLF. These provisions describe several measures to be observed by the States Parties and international organisations into their action or conduct.

The very fact that the recently placed Convention on the Right to Development to realise the right to development is expressly referred to as the “draft Convention” is a testament to its embryonic character. Substantial progress on the elaboration of ‘norms’ to implement the right to development has been made; Convention on it is long overdue. Nevertheless, the draft Convention, to certain extent, would remove ambiguities about the content of the duties of States and non- state actors, but both ‘duty to cooperate’ and ‘no harm obligation’ are going to be challenging. Developing countries will assess the draft Convention for its scope and extent of the duty obligations to successfully address inequity in international economic and social order. Developed countries, other hand, have to evaluate the draft Convention for its nature and scope of duties operationalise through the concept of “no harm obligations”.