Human Rights and Development in International Law

Tahmina Karimova

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317351641
• Edition: 1
• Topic: Jura
• Subtopic: Rechtstheorie & -praxis

This book addresses the legal issues raised by the interaction between human rights and development in contemporary international law. In particular, it charts the parameters of international law that states have to take into account in order to protect human rights in the process of development. In doing so, it departs from traditional analyses, where human rights are mainly considered as a political dimension of development. Rather, the book suggests focusing on human rights as a system of international norms establishing minimum standards of protection of individuals and minimum standards applicable in all circumstances on what is essential for a dignified existence.

The various dimensions covered in the book include: the discourse on human rights and development interrelationship, particularly opinio juris and the practice of states on the question; the notion of international assistance and cooperation in human rights law, under legal regimes such as international humanitarian law, and emerging rules in the area of protection of persons in the event of disasters; the extraterritorial scope of economic, social and cultural rights treaties; and legal principles on the respect for human rights in externally designed and planned development activities. Analysis of these topics sheds light on the question of whether international law as it stands today addresses most of the issues concerning the protection of human rights in the development process.

VI
Respect for human rights in external activities

Overarching normative principles

Introduction

The resource-related action has been a preferred strategy of international efforts to balance inequality in social and economic terms: aid, preferential treatment, technical assistance, etc. Equally, the meaning of creation of an ‘enabling environment’ has given way to an interpretation of ‘affirmative action’ rather than developing an understanding of issues of negligence in development. Since the level of development is singled out as an obstacle to enjoyment of socio-economic rights, the solution to address development challenges (or the lack of) was also seen in providing resources, including through the medium of ‘developmental’ human rights. Efforts focused on ushering in ‘development’ rather than on ensuring the way development was promoted or facilitated was not harmful to human rights.

Historically, the social and human impacts of bringing ‘development’ (both international and national policies and practices) have not always been positive.¹ In practice, however, when the impact of development aid was negative, it was more often addressed by special measures of redress rather than through a change in the economic policies that caused it.² This reality compelled legal discourse to focus on ways to compensate for the neglect of human rights within development. Some scholars were even convinced that the work of the human rights community should be entirely geared towards ensuring that development com-plies with human rights standards, rather than attempting to transform human rights into an ‘all-encompassing blueprint’ for development.³

But how to ensure that economic and/or development policies do not conflict with human rights obligations continues to remain a crucial question.⁴ Current debates reveal that increasing attention is being paid by the human rights community to seek adequate responses in this direction. However, analyses are still nascent and far from being systematic. Careful exploration, particularly as to the sources of law involved, is warranted. In the previous chapter, I discussed the emergence of new legal ideas and their possible relevance to this research. The main conclusion was that the concept of extraterritorial obligations is not well established and raises many issues when applied to the context of development.

This chapter discusses and builds on existing legal ideas and arguments elaborated over time, in human rights law specifically and international law generally, to turn the broad thrust of the UN Charter human rights provisions into concrete propositions to guide the behaviour of states. It analyses whether and, if so, to what extent, limits are imposed by international law on respect for human rights in external activities related to development. As in previous chapters, it takes socio-economic rights treaties as a point of departure.

1 Human rights and development cooperation: The factual interplay

An evident first step in discussing the conceptual framework for protection of human rights within development is to describe their factual interaction. The purpose here is to set the framework within which the seeds of the demand of ‘what should not be done’ in promoting development became visible. That development cooperation activities will implicate the recipient state’s obligations under the International Covenant on Economic, Social and Cultural Rights seems unavoidable. As emphasized earlier, even if development puts forward an idealistic and ethical self-perception, it is not, as yet, either perceived or implemented as such in practice. The substantial overlap with the human rights treaty norms makes development policies and activities capable of impacting human rights in diverse ways: positively and negatively, directly and indirectly.⁵ The factual interaction is often presumed to produce situations of ambiguities between human rights logic and development decision-making because, as noted by McInerney-Lankford:⁶

while there is much substantive congruence, this ‘factual overlap’ does not automatically align with all the objectives of such operations and those of ‘corresponding’ human rights treaties. Such activities may not be assumed to reflect or promote the realization of human rights, since few reference or mainstream human rights in their designs and objectives. Moreover, such activities will typically not address any impact on human rights – assessing whether they in fact support human rights or result in human rights harm.⁷

Development is replete with policies and international decision-making that, as the Committee on Economic Social and Cultural Rights long ago stated, ‘affect the ability of States to fulfil their treaty obligations’.⁸ The question of the impact of international decision-making concerning the balance between growth and distribution, and investment and expenditure, is often invoked as an example.⁹ To the extent that they determine national priorities for public spending on social services and the capacity of governments to allocate such resources, questions of compatibility with the human rights normative framework may arise.¹⁰ There is also a correlation between priorities for the allocation of resources at international and national levels.

But unlike other areas such as trade and investment, discussion on legal strategies to ensure a harmonious interface with human rights is lacking in the development field.¹¹ This is partly because instruments of soft-law or non-legal approaches to organizing development cooperation activities are applied. These formally have no legal effect, although the practice they generate may contravene human rights law and eventually hinder their protection.¹² The integration of human rights in development theory, policy and practice has always been dependent upon recognition of the existence of a nexus between the two. No significant progress has, however, been achieved since the first time the linkages between economic progress and human rights were identified. In response, debates have increasingly revolved around the question of whether international law addresses the cross-border aspects of human rights violations, in particular socio-economic rights. And, if so, what are the preventive and proactive approaches available to ensure compatibility of policies and practices at the inter-state level with human rights obligations?

2 Proposals on ensuring compliance with human rights: New, old ideas?

It would be fair to say that, due in large part to the involvement of civil society at national and international levels, environmental and human rights aspects of development have been raised and exposed. Governments have rarely been concerned with this issue, and so some of the emerging intellectual efforts come from academia and civil society. One way for the human rights community to argue for adherence to human rights norms was to advocate for extraterritorial obligations, which I examined in a separate chapter.¹³ Today, another set of academics is showing particular interest in the principles developed in traditional sectors of international law. One view, for example, makes a case for the application of a due diligence standard, as, in the context of international economic interdependence, ‘actions and decisions within the global order cannot easily be disaggregated and attributed to a particular state or states for the purposes of state responsibility’.¹⁴ A more refined analysis contends that current international law is based on the independent international responsibility, while what is needed is conceptual tools capable of ‘allocating responsibility between a plurality of actors in situations where contributions to harmful outcomes cannot be attributed based on individual causation of each actor’.¹⁵

Two arguments animate the debate on the significance of due diligence. First, states ‘do not often violate ESC rights of individuals living abroad in a direct manner’.¹⁶ Second, in most cases, it is not easy to separate an individual’s situation from the general conditions prevalent in his or her country. In light of complex processes typically involved in cross-border socio-economic activities, progressively references are made to the do no harm principles and due diligence standards, as elaborated mainly in the international environmental law. The rules in international environmental law have the logic of prevention at their basis.¹⁷ It is alleged that roughly the same line of process may run through the transboundary economic effects, with devastating consequences on the economic, social and cultural rights of individuals in third countries.¹⁸ The underlying intention of such an analytical approach is sound and it seems to have garnered the support of a number of other scholars.¹⁹

Let us recall that the approach and terminology used may be newer, but the idea behind proposals to subject development practices to the rule of law is not a revolutionary one.²⁰ Earlier efforts, such as the NIEO framework and the Charter on Economic Rights and Duties, aimed to structurally transform inequality (albeit confined to international political economy) and also contained elements of prevention, including, among others, the principle of respect for human rights and international obligations as well as the regulation of the activities of transnational corporations.²¹ Similarly, the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States incorporates fundamental legal limits on state behaviour in pursuance of their development policies externally, among which are the principles of sovereign equality and non-intervention.²² Of course, the main purpose of the international development law ‘project’ was to inject the principle of the rule of law into the process of development.²³

The sum total of the instruments of declaratory nature,²⁴ as well as interpretations given to the socio-economic rights, consistently articulated the creation of conditions conducive for the realization of human rights as an essential component of international measures.²⁵ If this requirement (i.e. creation of conditions) is to be understood as aiming to eliminate obstacles to socio-economic progress, then, by definition, its content would include rules on ensuring that efforts to support development do not produce negative effects on human rights. This broad-based and generic requirement, however, lacked concreteness in its contents to become operational as a rule.

Therefore, today’s legal argumentation in effect attempts to concretize some of the well-known existing principles and rules through the medium of human rights law by applying human rights concepts and framework. Accordingly, states’ tripartite obligations to respect, protect and fulfil human rights are interpreted expansively to include acts and omission outside the state’s jurisdiction, i.e. affecting individuals residing in third states. Following this rationale, it is argued that states (in our context, donors and creditors) are to respect the human rights of individuals residing in third states.²⁶ The Montréal Principles on Women’s Economic, Social and Cultural Rights,²⁷ the Quito Declaration²⁸ and the Maastricht Principles²⁹ all follow this logic. It is important to observe that this thinking is not completely contrary to the opinion of some donor states. Practice is crystallizing among certain donors to integrate the ‘do no harm’ principle in the context of conflict and fragility.³⁰ While an equally explicit statement of principle applicable to all situations and in all circumstances is still pending, the OECD-DAC’s Action-Oriented Policy Paper on Human Rights and Development i...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Contents
• Table of abbreviations
• Foreword
• Acknowledgements
• I Introduction
• II Development from a human rights perspective
• III The right to development
• IV The obligation of international assistance and cooperation
• V New legal ideas: Comment on the relationship of the international assistance and cooperation and extraterritorial scope of ESC rights
• VI Respect for human rights in external activities: Overarching normative principles
• VII General conclusion
• Table of cases
• Table of legal instruments and documents
• Bibliography
• Index