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The Role of International Law

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The Role of International Law CHAPTER 31 The role of international law Stephen P. Marks,* Beate Rudolf,** Koen De Feyter*** and Nicolaas Schrijver**** I. Introduction1 which have strongly opposed this idea. The Work- ing Group on the Right to Development has been While there is a fairly broad consensus on the able to achieve consensus by keeping a legally bind- underlying principles of the right to development, ing instrument among the possible outcomes of the the most intense political division is between, on process, without establishing that the process must the one hand, the Non-Aligned Movement, whose automatically lead there. The key language in this Heads of State and Government have called for the regard is that the process “could evolve into a basis United Nations to draft a convention on the right for consideration of an international legal standard to development,2 and, on the other, the European of a binding nature, through a collaborative process Union, the United States, Canada, Japan and others, of engagement”.3 **** François-Xavier Bagnoud Professor of Health and Human Rights, It is therefore useful to explore, independently Harvard School of Public Health, United States; Chair (2005-2010), United Nations high-level task force on the implementation of the right of the politics, the various options available under to development. international law to advance the right to develop- **** Director, German Institute for Human Rights. *** Professor of International Law, Law and Development Research Group, ment. Such was the purpose of the Expert Meeting on University of Antwerp, Belgium. legal perspectives involved in implementing the right **** Member of the Senate of the Netherlands; Chair, Public International Law and Academic Director, Grotius Centre for International Legal Studies, to development. Drawing on the proceedings of the Leiden University; Vice-Chair, United Nations Committee on Economic, So- meeting,4 this chapter will explore: (a) the prospects cial and Cultural Rights; President, International Law Association; former member of the United Nations high-level task force on the implementation for transforming the right to development criteria, of the right to development. once approved by the Working Group, into “an inter- 1 This chapter is based on the following chapters in Stephen P. Marks, ed., Implementing the Right to Development: The Role of International Law (Ge- national legal standard of a binding nature”; (b) the neva, Friedrich-Ebert-Stiftung, 2008), a collection of papers for the Expert relationship of the right to development with existing Meeting on legal perspectives involved in implementing the right to de- velopment, held at the Château de Bossey, Geneva, from 4 to 6 January treaty regimes; (c) the potential value of a multi-stake- 2008: chapter 8, “A legal perspective on the evolving criteria of the HLTF holder agreement; (d) alternative pathways to a bind- on the right to development” by Stephen P. Marks; chapter 10, “Towards a multi-stakeholder agreement on the right to development” by Koen De ing legal instrument; and (e) the conclusions of the Feyter; chapter 11, “The relation of the right to development to existing Château de Bossey conference. substantive treaty regimes” by Beate Rudolf; chapter 13, “Many roads lead to Rome. How to arrive at a legally binding instrument on the right to development?” by Nicolaas Schrijver. In addition, it includes the conclud- ing statement adopted by the participants. The full text of the publication is 3 General Assembly resolution 64/172, para. 8. Note that Human Rights available at http://library.fes.de/pdf-files/bueros/genf/05659.pdf. Council resolution 15/25 fails to repeat “could” before “evolve”, as 2 The Non-Aligned Movement, at its fifteenth summit in 2009, urged “the in the Assembly resolution, which, in the view of the author, creates an UN human rights machinery to ensure the operationalisation of the right unnecessary ambiguity: “[The Human Rights Council] … 3. Decides: … to development as a priority, including through the elaboration of a Con- (h) That the Working Group shall take appropriate steps to ensure respect vention on the Right to Development by the relevant machinery... [and to] for and practical application of the above-mentioned standards, which [p]ropose and work towards the convening of a United Nations-sponsored could take various forms, including guidelines on the implementation of High-Level International Conference on the Right to Development”. See the right to development, and evolve into a basis for consideration of an Final Document of the XV Summit of Heads of State and Government of international legal standard of a binding nature through a collaborative the Non-Aligned Movement, Sharm el Sheikh, Egypt, 11-16 July 2009, process of engagement”. document NAM2009/FD/Doc.1, paras. 421.13-421.14. 4 See footnote 1 above. 446 REALIZING THE RIGHT TO DEVELOPMENT | Implementing the right to development The high-level task force on the implementation A. Obstacles to transforming the revised of the right to development, which constituted the criteria into treaty obligations expert mechanism of the Working Group on the Right to Development from 2004 to 2010, took the view The first observation is that the criteria were ini- that, while it was not in a position to propose whether tially written to be applied to “global partnerships” as or not work should begin on a treaty, “[f]urther work understood in Millennium Development Goal 8, and on a set of standards and regional consultations could only expanded at a later phase to all aspects of the be an opportunity to explore whether and to what right to development, a process to be continued in the extent existing treaty regimes could accommodate ongoing revision of the criteria. For most States, the right to development issues within their legal and obligations a treaty might establish in relation to such institutional settings, and thereby assist the Working “global partnerships” are the principal motivation for Group in achieving consensus on whether, when and a treaty. However, in international law a treaty is an with what scope to proceed further in this matter” (A/ agreement between two or more States or other sub- HRC/15/WG.2/TF/2 and Corr.1, para. 77). In the jects of international law. No international institution same vein, it recommended that the Working Group has ratified any of the human rights treaties and the “seek information, properly analysed, on existing obligations of these institutions are a matter of some examples used in the United Nations system, such as discussion. It is obvious that no non-State subjects of guidelines, codes of conduct or practice notes, and international law, such as the World Trade Organi- examine proposals for the structure and methods for zation (WTO), the Association of Southeast Asian [the] drafting of a set of standards most suited to the Nations (ASEAN), the World Bank or other entity, right to development. A mechanism could then be put would be solicited to be parties to any convention on in place to formulate such a set of standards based the right to development. Their cooperation might be on the criteria prepared by the task force” (ibid., provided for, as was done with respect to the special- para. 76).5 This chapter seeks to provide a starting ized agencies in part IV of the International Covenant point for that exploration of the options, although the on Economic, Social and Cultural Rights or to interna- political obstacles make any conclusion regarding tional organizations in the case of the Convention on 7 a legally binding instrument unrealistic for the near the Rights of Persons with Disabilities, but the obliga- future. tions would be those of States parties to an eventual convention rather than “global partnerships” as such. II. Transforming criteria into treaty One may doubt that States parties to such a norms: a thought experiment6 treaty would intend to commit international organiza- tions, the private sector and categories of countries It is theoretically possible to move quickly from implicated by the draft criteria. Below, each set of the current state of development of normative stand- actors is considered in turn: ards with respect to the right to development to an omnibus treaty by transforming the criteria as further (a) International organizations. Organizations revised into articles of an international convention on such as the Organisation for Economic the right to development. However, such a course of Co-operation and Development (OECD) action might not be in the best interests of advancing can be considered partnerships envisaged the right to development owing to obstacles arising in the context, for example, of criterion 1 from the nature of the criteria and to the limitations of (f), which calls for the duty bearer “to pro- a general convention as a tool of international law. mote and ensure access to adequate finan- After examining the obstacles to transforming the cial resources”. WTO, as well as bilateral revised criteria into treaty obligations (subsect. A), this and regional trading regimes (such as the part of the chapter will attempt a thought experiment North American Free Trade Agreement to see what articles of a right to development treaty (NAFTA) and the ASEAN Free Trade Area might look like if those obstacles were overcome 7 As Stein and Lord point out, the Convention on the Rights of Persons with (subsect. B). Disabilities expressly invites States parties to cooperate internationally through partnerships with relevant international and regional organiza- tions. The authors urge the high-level task force “to draw from the experi- ences of the [Convention] in creating a framework in which a multitude of actors, both State and non-State, participate in implementation processes” (Michael Ashley Stein and Janet E. Lord, “The normative value of a treaty 5 The criteria and sub-criteria developed by the high-level task force are con- as opposed to a declaration: reflections from the Convention on the Rights tained in document A/HRC/15/WG.2/TF/2/Add.2.
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