Implementing the Right to Development in the aftermath of the global

financial crisis:Challenges and Prospects

Implementing the Right to Development in the aftermath of the global

financial crisis:Challenges and Prospects

Xigen Wang Xigen Wang

Professor of Law

Wuhan University School of Law

Wuhan

PRC

Professor of Law

Wuhan University School of Law

Wuhan

PRC

The global financial crisis of 2008 The global financial crisis of 2008

the fluctuation of exchange

rates

the fluctuation of exchange

rates

the reduction of overseas

investments and trade

the reduction of overseas

investments and trade

intensification of the debt crisis intensification of the debt crisis

rising poverty rates

higher unemployment

reduced economic growth reduced economic growth

increased social inequalityincreased social inequality

Restrict the realization of the right to development (RTD). In order to implement RTD, the following measures should be taken immediately.

Restrict the realization of the right to development (RTD). In order to implement RTD, the following measures should be taken immediately.

Part 1: Reconstructing

the idea of the

RTD

Part 1: Reconstructing

the idea of the

RTDtraditional models of justice

a new concept of

justice

traditional models of justice

a new concept of

justice

1. Definition: 1. Definition:

• Development-oriented Justice is to ensure that every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development. It is a notion of global , substantial, fair, harmonized and people-oriented justice.

• Development-oriented Justice is to ensure that every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development. It is a notion of global , substantial, fair, harmonized and people-oriented justice.

“development - oriented justice”

“people-centred development with justice”

2. Features: 2. Features:

Features Features

Globalization Globalization

Gregariousness Gregariousness

Inclusiveness Inclusiveness Comprehensiveness Comprehensiveness

Comparability Comparability

3. Reshaping: 3. Reshaping:

•explain RTD under the framework of people-centred development with justice from the following five perspectives:

（ 1 ） Subjects : （ 1 ） Subjects : money-oriented development money-oriented development Financial crisis Financial crisis

RTD RTD people-centred development people-centred development

natural

person

social person

ecological

person political

person

economic person

“People” could be offered five characteristics and called :

“People” could be offered five characteristics and called :

• The human person is the central subject of the development process and that development policy should therefore make the human being the main participant and beneficiary of development

• The human person is the central subject of the development process and that development policy should therefore make the human being the main participant and beneficiary of development

------ Declaration on the Right to Development 1986

------ Declaration on the Right to Development 1986

（ 2 ） Objects: The objects of RTD are encompassed by five elements:

（ 2 ） Objects: The objects of RTD are encompassed by five elements:

human dignity human dignity

culture diversity culture

diversity common

good common

good

development opportunity development opportunity

greatest equal liberties

greatest equal liberties

Objects

Objects

（ 3 ） Contents : （ 3 ） Contents :

development

inclusive development

Financial crisis

economic growth

RTD RTD

A.A. B.B.economic justice

political justice

integrate integrate integrate integrate

social welfare

culture development

economic and political justice

（ 4 ） Time : （ 4 ） Time :

• It is imperative to take the sustainable

Development as a right

• The RTD can be named as the Right to

Sustainable Development.

• Financial crisis derogated RTD: lead to

an unsustainable development

• It is imperative to take the sustainable

Development as a right

• The RTD can be named as the Right to

Sustainable Development.

• Financial crisis derogated RTD: lead to

an unsustainable development

• Example : • Example :

Crisis Crisis higher carbon emission

higher carbon emission

carbon emission carbon

emission RTD ?RTD ?

• Supporter ： carbon emission is a kind of RTD

• Opponent ： emision is an obligation not right

• Supporter ： carbon emission is a kind of RTD

• Opponent ： emision is an obligation not right BalanceBalance

 •It is necessary to release the tension between carbon emissions and the RTD.

•As far as the developing country is concerned, the right to emissions is the right to development.

•Opponent of this idea argues that emission is purely an obligation not a right. So our pressing need is encouraging each side to find consensus and resolution in defining the carbon emission.

 •It is necessary to release the tension between carbon emissions and the RTD.

•As far as the developing country is concerned, the right to emissions is the right to development.

•Opponent of this idea argues that emission is purely an obligation not a right. So our pressing need is encouraging each side to find consensus and resolution in defining the carbon emission.

（ 5 ） Space : （ 5 ） Space :

• A new right

------the right to regional development should be recognized as

a subsidiary right of the RTD

• A new right

------the right to regional development should be recognized as

a subsidiary right of the RTD

------- WORLD DEVELOPMENT REPORT 2009: Reshaping Economic Geography.

------- WORLD DEVELOPMENT REPORT 2009: Reshaping Economic Geography.

• “The world is not flat”• “The world is not flat”

Part 2. ： Exploring

crisis early warning and

emergency response

system

Part 2. ： Exploring

crisis early warning and

emergency response

system

1.Evaluation Mechanisms:

A minimum standard of RTD

1.Evaluation Mechanisms:

A minimum standard of RTD

A general concept of RTD (UN Resolution 1979)

UN UN Declaration Declaration

1986)1986)

RTD criteria RTD criteria andand operational operational sub-criteria sub-criteria (A/HRC/15/W(A/HRC/15/WG.2/TF/2/Add.2G.2/TF/2/Add.2) )

The Urgent task is to design a minimum standard of RTD based on the Criteria and Operational Sub-criteria on RTD (A/HRC/15/WG.2/TF/2/Add.2)

The Urgent task is to design a minimum standard of RTD based on the Criteria and Operational Sub-criteria on RTD (A/HRC/15/WG.2/TF/2/Add.2)

The bottom line standard could be more

recognized and practicable than the maximum one

If the lowest demand concerning human survival, such as food, water, basic medicines, primary education, cannot be satisfied, an early warning mechanism will work

The bottom line standard could be more

recognized and practicable than the maximum one

If the lowest demand concerning human survival, such as food, water, basic medicines, primary education, cannot be satisfied, an early warning mechanism will work

food water basic

medicines primary education

2. Early Warning Mechanism2. Early Warning Mechanism

Executing agency

Executing agency

Treatment plan

Treatment plan

Evaluation method

Evaluation method

Outcome feedback Outcome feedback

Information analysis

Information analysis

3. Emergency Response Mechanism

3. Emergency Response Mechanism

• It recommends that to establish:

– “The Overall Emergency Response

Plan for a Minimum of RTD” and

–Sub - mechanisms under the

overall mechanism

• It recommends that to establish:

– “The Overall Emergency Response

Plan for a Minimum of RTD” and

–Sub - mechanisms under the

overall mechanism

AAAA

BBBB

CCCC

• “Emergency Response Mechanism for food shortage”

• “Emergency Response Mechanism for food shortage”

• “Emergency Response Mechanism for Drinking Water Crisis”

• “Emergency Response Mechanism for Drinking Water Crisis”

• “Emergency Response Mechanism for Lacking of Basic Medicine”

• “Emergency Response Mechanism for Lacking of Basic Medicine”

4. Intervention Mechanism 4. Intervention Mechanism

public law compulsion public law compulsion

a pure autonomy of private law

a pure autonomy of private law policy

balance mechanism

policy balance

mechanism

• More challenge, more intervention mechanisms are needed, especially for the non-reciprocal protection to the vulnerable groups.

• More challenge, more intervention mechanisms are needed, especially for the non-reciprocal protection to the vulnerable groups.

Part 3 :

Mainstreaming RTD:

Part 3 :

Mainstreaming RTD:

------Constructing a

strategic system of the

implementation of RTD

------Constructing a

strategic system of the

implementation of RTD

Text in hereText

in here

financial bubbles financial bubbles

excessive consumption

excessive consumption

freedom freedom equality equality RTD RTD

financial crisis

financial crisis

subprime mortgage

crisis

subprime mortgage

crisis

generation I generation I generation II generation II generation III generation III

classical liberalism classical

liberalism

1. Ground: 1. Ground:

(1) Mainstreaming RTD has its normative ground in:

(1) Mainstreaming RTD has its normative ground in:

Charter of the United Nations Charter of the United Nations

Universal Declaration of Human Rights Universal Declaration of Human Rights

Declaration on the Right to DevelopmentDeclaration on the Right to Development

• Confirming that the right to development is an inalienable human right and that equality of opportunity for development is a prerogative both of nations and of individuals who make up nations.

• Confirming that the right to development is an inalienable human right and that equality of opportunity for development is a prerogative both of nations and of individuals who make up nations.

—— Declaration on the RTD —— Declaration on the RTD

(2) value consensus: (2) value consensus:

social solidarism

global justice theory

post-modernism

the three generations of human rights theory

Latin American dependency theory

China's Confucian doctrines (benevolent love and people-centred principle)

universal fraternity theory in the classical natural law theory

value consensus

value consensus

2. Methodology : how to mainstream RTD

2. Methodology : how to mainstream RTD

• Steps should be taken to ensure the full exercise and progressive enhancement of the right to development, including the formulation, adoption and implementation of policy, legislative and other measures at the national and international levels-

• Steps should be taken to ensure the full exercise and progressive enhancement of the right to development, including the formulation, adoption and implementation of policy, legislative and other measures at the national and international levels-

—— UN Declaration on the Right to Development Article 10

—— UN Declaration on the Right to Development Article 10

AAAA Soft law

BBBB Hard law

CCCC No law

There are three different ways: There are three different ways:

3. Targets : 3. Targets :

• Three standards of mainstreaming human right:

• Three standards of mainstreaming human right:

AAAA

BBBB

CCCC

the recognition from mainstream society

a set of complete system of rights and obligations

the implementation under the institutional framework(e.g. Law & policy)

• Thus, the targets of mainstreaming RTD:

• Thus, the targets of mainstreaming RTD:

Theoretically

Obtain the same status as

civil and political rights,

economic, social and

cultural rights

Practically

supported and

protected by developed subjects

Technically

have a legally binding

mechanism of remedy

(similar to the ICCPR & ICESCR)

• 4. obligation:• The RTD cannot be fully implemented

into practice because of its ambiguous subjects, forms and procedures of accountability. I try to divide the obligation genealogy of RTD into two types: endogenous obligation and instrumental obligation. Instrumental obligation is derived from endogenous obligation.

• 4. obligation:• The RTD cannot be fully implemented

into practice because of its ambiguous subjects, forms and procedures of accountability. I try to divide the obligation genealogy of RTD into two types: endogenous obligation and instrumental obligation. Instrumental obligation is derived from endogenous obligation.

Obligation Genealogy of RTD Obligation Genealogy of RTD

Extension values Mode Consid-eration

Rules

Endogenous

obliga-

tions

Moral obligation

Humanities or interests

Abstract No No Institutional obligation

Corrective justice

Integrity Yes Constitutive

Public law

Instru-mental obligat-ions

Merciful obligation

Introspection Charity No No

Contract obligation

Autonomy Exchange Yes Regulative

Private law

Intervention obligation

Heteronomy Mandat-ory

Yes Public & social law

5. Steps:5. Steps:

Step1Step1

Step2Step2

Step3Step3

Step5Step5

Step4Step4

• pilot and implement of criteria and sub -criteria on RTD • pilot and implement of criteria and sub -criteria on RTD

• establish the legal correlation between civil and political rights, economic, social and cultural rights and RTD; Link to treaty & trade law

• establish the legal correlation between civil and political rights, economic, social and cultural rights and RTD; Link to treaty & trade law

• draft “Operational Guidelines for Implementing the Declaration on the Right to Development”( subjects, objects, content and approaches of its implementation)

• draft “Operational Guidelines for Implementing the Declaration on the Right to Development”( subjects, objects, content and approaches of its implementation)

• improve and integrate existed mechanisms on the international, regional and national level

• improve and integrate existed mechanisms on the international, regional and national level

• lead to a Convention on the Right to Development

• lead to a Convention on the Right to Development

Thanks!Thanks!