01 Jun Cutting the Gordian Knot: The Right to the Continuous Improvement of Living Standards as an Alternative to the Right to Development
[Sami Jaber is a Public International Law LLM student at Leiden University whose thesis explores the forgotten right to the continuous improvement of living standards and its potential as a signal of human rights violations.]
Attempts to enshrine the right to development have been ongoing for over 40 years. While a lack of sufficient political will from developed nations is undoubtedly largely to blame for this slow development, the absence of a consensus in the legal literature regarding the value of the right’s very existence does little to support the process. Debate around the redundancy of the right to development in light of the existing human rights framework exists and is periodically reanimated. Mainstream criticism of the right to development revolves around the liberal implications of a right seemingly legitimising economic development to the detriment of social and environmental factors, or misconstrues the right to development as merely ‘a synthesis of more traditional human rights’ (p. 481). More recently, critiques have contended that the redundancy of the right to development stems from the emerging recognition of the extraterritorial applicability of human rights obligations. Despite these rebuttals, a benefit of the right to development remains underexplored. Indeed, the evolutive nature of this right protects individuals’ right to continuously improving conditions, rather than merely imposing a maximal or minimal standard to be respected. However, this piece will argue that the evolutive character of the right to development is also made redundant by existing human rights provisions – namely the right to the continuous improvement of living standards. It will prove essential to compare the content of the two concerned rights before assessing apparent benefits of the right to development against the backdrop of the right to the continuous improvement of living standards.
The right to the continuous improvement of living standards is promulgated in article 11(1) of the ICESCR which recognises ‘the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions’. This list of subsequent rights is far from exhaustive, and other human rights have been identified as originating from this provision without their explicit mention – such as the right to water.
Somewhat tautologically, the Declaration on the Right to Development defines this right as ‘economic, social, cultural and political development’. While the scope of the right to development is undoubtedly larger than that of the right to the continuous improvement of living standards – as the ICESCR is not concerned with civil and political rights – the open-endedness of the latter right offers sufficient possibilities to promote the betterment of individuals’ economic, social, and cultural rights (ESC rights).
Perhaps owing to its status as a ‘forgotten right’ (p. 4) the right to the continuous improvement of living standards enshrined in article 11(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) has never been discussed in conjunction with the right to development. This might be unsurprising as the right to the continuous improvement of living standards ‘has been largely ignored’ (p. 4) by academics and practitioners alike. However, its potential as an existing evolutive obligation merits further exploration. Although progress has been made in developing the right to development, it remains a contentious issue between states. Notably, the USA recognises neither the meaning of the right to development reached by the High-Level Task Force on the Implementation of the Right to Development, nor its value to individuals. As such, it is of crucial importance to rely on existing and consensual provisions to safeguard individuals’ right to the improvement of their conditions.
Around the time of the conceptualisation of the right to development, the debate on the justiciability of ESC rights was particularly virulent, simultaneously exacerbated by and exacerbating Cold War tensions between the East and the West (pp. 219–222). Thus, the right to development offered an alternative by circumnavigating this debate and introducing a new binding instrument instead. However, the justiciability of ESC rights has since progressed, and 50 States are now either parties or signatories to the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights which allows individuals to lodge complaints against States which they accuse of having violated their ESC rights. Although the number of signatories remains too low to grant the optional protocol much practical applicability, this can be expected to change in the foreseeable future. Thus, it is argued that the right to development ‘is doing a disservice to other human rights’ (p. 208) by presenting an alternative to the recognition of the justiciability of ESC rights.
A positive feature of the right to development is that it imposes the duty to cooperate upon States (art. 4(1)). While this has contributed to the unwillingness to recognise this right (p. 10), the duty to cooperate would benefit individuals in developing countries by holding developed States accountable for not providing them with sufficient aid. However, the promulgation of the right to the continuous improvement of living standards is already tied to the duty to cooperate. Indeed, article 11(1) of the ICESCR binds States to have recourse to ‘international co-operation’ to achieve the substantive rights enumerated earlier in the same article. Similarly, article 2(1) of the ICESCR binds states to take all available steps, including having recourse to ‘international assistance and co-operation’ in order to realise the substantive rights promulgated in the Covenant. Interestingly, the obligation of international cooperation is reiterated outside of article 2(1) of the ICESCR only in article 11 of the ICESCR, whereby it is restated twice, thereby emphasising the crucial importance of support from the international community for the global fulfilment of the right to an adequate standard of living.
Another advantage touted by proponents of the right to development is that its vagueness allows for context-specific interpretation, thereby adapting the content of the right to local realities (p. 189). This too, however, is not a characteristic novel to the right to development. As evidenced in the travaux préparatoires of the ICESCR, the right to the continuous improvement of living conditions, too, was loosely framed so as to allow States to ‘adopt the necessary steps in the light of economic and social conditions in the country concerned’ (para. 17).
In sum, the right to development appears to offer limited additional protection for individuals’ living standards in light of the existence of the right to the continuous improvement of living conditions. Reprising many of the purported benefits of the right to development, the right to the continuous improvement of living standards offers an established alternative to the contentious right to development, although its justiciability has yet to gain universal recognition. Paradoxically, the enshrined right to the continuous improvement of living conditions has yet to be invoked in practice (p. 4), while the contentious right to development has been enforced internationally in the African human rights system and domestically in South Africa and Colombia (p. 5). In light of the increasingly tangled Gordian knot of negotiations surrounding the right to development, recognition and discussion of the right to the continuous improvement of living standards offers an alternative in the form of an existing treaty provision. Further research into the right to the continuous improvement of living standards remains direly necessary, notably concerning its content and applicability – as does practical invocation.