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!