The Second Generation Challenges of the Right to Development (II): Is there an International Duty to Cooperate towards the Realization of the Right to Development?
In my previous post, I noted that the right to development should be rejuvenated by building on recent advances of international human rights law, which strengthened the international obligations of States — not towards their own populations, but towards populations located outside their national territory or the international community as a whole. For the realization of the right to development, the most important challenge shall be to include a duty to cooperate among these obligations. Does such a duty exist at all, and if so, what form does it take?
The international obligations currently imposed under international human rights law comprise two sets of duties. They include both extraterritorial obligations imposed on States as regards their unilateral actions or omissions, insofar as such actions or omissions can affect people or situations outside their territories and/or jurisdiction; and global obligations, which concern States acting collectively in global and regional partnerships. Global obligations derived from the right to development are specific insofar as they are imposed on States as actors in international relations, not simply insofar as they take measures that might affect situations under the jurisdiction of other States, but also insofar as they interact with other States to shape global governance.
These global obligations include a duty on States that they cooperate in good faith with other States on certain issues that call for collective action for the full realization of the right to development. This may seem remarkable, and in a certain sense it probably is: imposing an obligation on a State to enter into any form of international agreement or to negotiate such an agreement may seem both odd and impractical, since it can hardly be reconciled with the principle of State sovereignty — one of the implications of which is that States cannot be forced to enter into agreements against their will. The report on the next steps to be taken to strengthen the right to development, which is considered this week by the UN Working Group on the Right to Development, seeks to move beyond this facile conclusion, however. Noting the many references international human rights law makes to duties of international cooperation, it shapes the contours of the duty of the State to seek, in good faith, to conclude an international agreement in order to contribute to the realization of the right to development. It argues that, far from being purely rhetorical, such a duty requires that the State put forward proposals, with a view to strengthening international cooperation, that are both sufficiently concrete and “reasonable”, which means in particular that in the distribution of the burdens and benefits, such proposals should take into account the principle of common but differentiated responsibilities and respective capabilities.
Can such a duty of international cooperation guide efforts in the areas that matter most to the realization of the right to development? The report examines a range of areas of strategic importance for the reform of the international economic order. It considers the management of the foreign debt, which requires in particular that loans take into account the impact of adjustment programmes on the right to development and that States act against vulture funds. It recalls the need to eliminate illicit financial flows, by strengthening the fight against tax evasion and transfer pricing within multinational groups. It addresses how the effectiveness of development cooperation policies can be improved. It asks whether trade policies and foreign direct investment can be channelled towards the realization of the right to development. It suggests how the global regime of intellectual property rights can be reformed, to ensure that more research and development efforts are directed to “neglected” diseases and to food crops grown primarily in developing countries, and to favor technology transfers to developing countries. It examines, finally, how the establishment of universal social protection floors can be supported by international action.
In each of these areas, the report restates the international obligations of States, including both extraterritorial obligations (that States can comply with by unilateral action) and global obligations (for the fulfillment of which States should cooperate with one another, in the search for solutions at multilateral level); and it makes concrete suggestions as to how compliance with such obligations can be better monitored by human rights bodies and mechanisms.
States cannot be forced to enter into international agreements, of course. That should not mean, however, that they should be allowed to remain passive in the light of transnational problems calling for collective action by States. In the famous Shrimp-Turtle dispute, the WTO Appellate Body has already found that the duty to prioritize multilateral solutions above unilateral action could be assessed in a quasi-judicial setting, using an objective yardstick to measure whether the efforts to agree on a multilateral solution had been sufficiently persistent and genuine: by the same token, what human rights bodies can assess is whether States have sought in good faith to cooperate internationally for the realization of the right to development. It is by clarifying the scope and content of this duty of international cooperation, with a view to reshaping the international economic order, that they can relaunch the right to development.