This timely book explores the implications for developing countries and for the global balance of power of the imminent adoption of an International Covenant on the Right to Development by the United Nations General Assembly. This Covenant would undoubtedly mark an epochal moment in the evolution of international human rights law. I had the distinct honour to serve as the Chair-Rapporteur of the five-members Expert Drafting Group appointed by the United Nations to elaborate its text. Having been intricately involved in the process since the outset, I am convinced that the Covenant will have immense positive implications for the human rights project in general by establishing a normative framework that is built on the acknowledgement that development is not charity or a privilege but a human right of all individuals and peoples. It challenges the existing global order that was largely constructed after the second World War (WWII) by its victors when most of today’s developing countries did not even exist as independent countries. Its fundamental premise is that for development to be realised as a human right, it is important to eliminate obstacles that emanate from both the national and the international levels. It fleshes out the obligation of international cooperation for development, which States have undertaken under Articles 55 and 56 of the Charter of the United Nations.
To understand the magnitude of the International Covenant on the Right to Development, it is useful to recall that the right to development was first articulated by the Senegalese diplomat Doudou Thiam, who in a landmark speech delivered at the 21st Session of the United Nations General Assembly on 23 September 1966, made a fervent appeal to lay the foundations of a revolutionary new world society where all the practices, institutions and rules on which international economic relations were constructed pursuant to WWII, and which perpetuated economic subjugation of the previously colonised countries, to be dismantled. He demanded that not only must we affirm our right to development, but we must also take the steps that will enable this right to become a reality. It is unsurprising that the African continent took the lead in incorporating development as a guaranteed right of all peoples and a binding obligation on States under Article 22 of the African Charter on Human and Peoples Rights adopted in 1981.
It took five more years for the United Nations General Assembly to adopt the 1986 Declaration on the Right to Development. This Declaration was adopted by an overwhelming 146 countries voting in its favour. Eight countries—Denmark, Finland, Germany, Iceland, Israel, Japan, Sweden and the United Kingdom—abstained, and only the United States of America voted against. Since then, the right to development has unanimously been reaffirmed by all countries in over 22 instruments, including the 1992 Rio Declaration on Environment and Development, 1993 Vienna Declaration and Programme of Action, 2030 Agenda for Sustainable Development, and Paris Agreement on Climate Change. However, there continue to be deep divisions between the Global North and the Global South on the normative scope and content of this right and the appropriate means for its operationalisation.
The principal forum for discussing these aspects since the mid-1990s has been the Intergovernmental Working Group on the Right to Development which meets annually in Geneva. The Working Group is a subsidiary body of the Human Rights Council, but participation in it is open to all States and is not limited only to the 47 members of the Council. Until 2015, the Working Group proved to be a theatre where disagreements on fundamental aspects of the right and the corresponding duties were on full display, thereby impeding any meaningful progress. It was the adoption of the 2030 Agenda in 2015 by the General Assembly that ultimately catapulted the right to development agenda to the centre stage. Developing countries, represented mostly through groupings such as the Non-Aligned Movement (NAM) and the G77, were frustrated that despite their efforts since 1986, developed countries had continued to stall operationalisation of the right. Thus, four things occurred at the behest of the NAM in a very short time that broke the stalemate viz. the appointment for the first time of a Special Rapporteur on the Right to Development by the Human Rights Council in 2016, the adoption of a Resolution in 2018 mandating the Working Group to commence the discussion to elaborate a draft legally binding instrument, and the adoption of a Resolution in 2019, establishing first, an Expert Mechanism on the Right to Development as another subsidiary body of the Council, and second, a high-level biennial panel at the Council to discuss the right. Interestingly, developed countries voted against all these resolutions.
The Chair-Rapporteur of the Working Group, Ambassador Zamir Akram from Pakistan, was requested by the Human Rights Council to submit a draft instrument to the Working Group for negotiations by member States, and in turn, he requested the High Commission for Human Rights to appoint an Expert Drafting Group of international lawyers to assist him with this process. In addition to myself as its Chair and Rapporteur, the Drafting Group also comprised of the late Koen de Feyter (Belgium), Diane Desierto (Philippines); Margarette May Macaulay (Jamaica); and Makane Moïse Mbengue (Senegal). My task was not only to prepare the zero draft but also to develop elaborate legal commentaries on each provision to be considered first by the other four members and then by the member States. Four rounds of transparent and intense negotiations took place at the Working Group on every revised version that was accompanied by updated commentaries, before the final draft “International Covenant on the Right to Development” was ultimately submitted to the Human Rights Council for its consideration. In October 2023, the Council forwarded the draft Covenant to the General Assembly for its “consideration, negotiation and subsequent adoption”. The Resolution was adopted at the Human Rights Council with 29 countries voting in favour (member States of the NAM and G77), 13 against (developed countries), and 5 abstaining (all South American countries).
While the lightning speed at which the process moved between 2018 and 2023 is remarkable, it also masks the intense divisions still persisting between developed and developing countries. Although the NAM was convinced that the only way to move away from the business-as-usual approach towards development as charity or development cooperation being donor-driven was to adopt a legally binding instrument, developed countries contended that the 1986 Declaration accompanied by non-binding frameworks such as the 2030 Agenda for sustainable development were the appropriate path. In normative terms as well, there were clear differences. Developed countries, mostly represented during the inter-governmental negotiations through the European Union, adopted some positions that were not only unflinching but also plainly contrary to international human rights law. For instance, the European colleagues adopted a rigid position that the right to development was acceptable to them only if it was articulated as an individual right but not also as a collective right of peoples. This infuriated several African diplomats who saw traces of a colonial attitude in the European position because it implied to them that only the latter’s ideas of human rights can be considered valid and that the African understanding of collective rights as incorporated in the African Charter was unworthy of being accepted as international law.
Even purely on aspects of law, on numerous occasions, I pointed out during the negotiations that the European Union’s contention was contradictory to the very first article of the International Covenant on Civil and Political Rights, which is identical to Article 1 of the International Covenant on Economic, Social and Cultural Rights viz. “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development” (emphasis added). There was an evident sense among delegates from NAM member states and from civil society organisations during the negotiations that the opposition to the right of peoples to self-determined development was not an ideological or a legal one; it was a political position of obstinacy. There were other instances where negotiating positions greatly differed. Developed countries opposed extraterritorial obligations as well as the duty of States to cooperate as incorporated in the zero draft and insisted that States only had obligations to individuals within their jurisdictions. The NAM member States strongly rejected these arguments and contended that realisation of the right to development as a “common concern of humankind” implies discharge of duties by States across three levels viz. internal, extraterritorial, as well as collective. Developed countries equally rejected the recognition in the zero draft of an obligation on legal persons, including business corporations and international organisations to respect the right to development of individuals and peoples (that is, do no harm). For concrete reasons provided in the commentaries, the Expert Drafting Group did not agree with the European positions on these aspects.
Following numerous resolutions of the Human Rights Council and the General Assembly calling for the right to development to be brought at the same level as and on a par with civil, political, economic, social and cultural rights, the Drafting Group with support from Ambassador Akram and the NAM, named the instrument as a “Covenant” rather than as a “Convention” (as the core human rights treaties other than the two Covenants currently existing are called). The concrete objective is to ensure that the future International Covenant on the Right to Development is added to what is considered as the “International Bill of Human Rights”, currently comprising cumulatively of the Universal Declaration on Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights.
There is power in numbers. The NAM and the G77 had the majority in voting for the draft Covenant on the Right to Development at the Human Rights Council and has an even larger majority at the General Assembly where the Covenant is being considered for adoption. Having engaged with member States also at the United Nations Headquarters in New York in 2024, it will profoundly surprise me if the draft Covenant does not get adopted, at the latest by 2026, which will mark the 40th anniversary of the 1986 Declaration on the Right to Development. The threshold for the Covenant to enter into force is low since it requires only 20 ratifications.
Undoubtedly, the Covenant, once in force, will have great implications for how the international order is structured. Under its framework, individuals and peoples are the principal rights holders of the right to development, which entitles them to define what development means to them and what their priorities ought to be. Governments are obliged to adopt appropriate national development policies as well as development plans and programmes based on these priorities. International organisations such as the International Monetary Fund or the World Bank are also prohibited from violating these rights, for instance, by imposing counterproductive conditionalities on loans. With its focus on the three levels of obligations on States, the duty to cooperate, and the obligation of businesses and international organisations to respect human rights, the draft Covenant is inherently disruptive of the existing status quo and thus, evokes discomfort among those who may rather prefer to maintain it.
There is no doubt that merely adopting a normative framework is generally not sufficient for addressing gaping holes in the global architecture. It is however, equally true that without an enabling normative framework, any reform in how development is conceived of and operationalised, including through the financial and trade institutions of global governance, will only be based on moral demands. As history has unequivocally demonstrated since the decolonisation process began in the 1950s, moral grounds have consistently failed in reforming a lopsided global order that is dominated by developed countries, which at every instance, want to dictate the pace for development that developing countries must pursue.
During the negotiations in Geneva, I was often asked about the value-added of a Covenant on the Right to Development, to which, I would invite States to consider the counter-factual, “What would happen in the absence of a Covenant?”. The answer is simple and evident, “business-as-usual”. It is in this context that I believe this book is both timely and useful. It is timely because it comes at an important stage in the process of elaboration and adoption of the Covenant. It is useful because its chapters explore various themes addressed by the Draft Covenant. This book is undoubtedly a valuable contribution to enhancing our collective understanding of the significant implications an International Covenant on the Right to Development will have, especially for eliminating obstacles to development at both the national and international levels.
Dr. Mihir Kanade
Chair-Rapporteur of the Expert Drafting Group, and Member of the Expert Mechanism on the Right to Development