Finding value for the right to development in international law

3.1 Right to development advocacy

Perhaps because of the history behind its coming into being, the right to development has generated much controversy that has pitted proponents against opponents along the north-south divide. Developing states and scholars sympathetic to the cause see the right to development as the mother of all rights. According to Bedjaoui the right to development is a core right from which all other rights derive,48 and flows from and has the same nature as the right to self-determination.49 Also, ICESCR obligates states to cooperate for the development of all countries.50 Moreover, and quite empirically, an overwhelming number of states support the right to development.51 In article 22 the African Charter obligates state parties to protect the right to development. Notably, Africa is the only continent that has transformed the right to development from moral rhetoric to legal obligation. According to Okafor ‘[t]he existence of article 22 of the African Charter is proof positive that this right transcends the realm of soft international human rights law’.52 The legal obligation the article imposes on African states has generated rich and robust jurisprudence on the right to development. As at December 2018 the African Commission has handled seven complaints on the right to development.53 In the process of doing so, the Commission has expounded and ruled on the legitimacy or propriety of claims and counter-claims on the right to development. For example, in the Endorois case54 the African Commission held that the

right to development is a two-pronged test, that it is both constitutive and instrumental, or useful as both a means and an end. A violation of either the procedural or substantive element constitutes a violation of the right to development. Fulfilling only one of the two prongs will not satisfy the right to development.55

The African Commission has also had occasion to make important pronouncements on the article in other cases, including the case of Democratic Republic of Congo v Burundi, Rwanda and Uganda.56

3.2 Hostility towards the right to development

However, antagonists (comprising most developed states and intellectuals from these states) harbour a deep-rooted aversion to the concept of the right to development. Ibhawoh succinctly captures such perspectives as follows:57

In the discussions leading up to the adoption of the DRD, the debate focused mainly on whether the right to development is merely a moral and hortatory claim, or a legal or quasi-legal claim. Questions were raised about the foundational basis of the right, its legitimacy, justiciability, and coherence. The United States, joined by several other Western countries, objected to several perceived defects of the notion of a right to development relating to its failure to give due attention to economic liberties and entrepreneurship, its relation to questionable economic and social rights, and its conceptual confusion and conflicts of jurisdiction with trade and other international issues.

Thus, the principal ground upon which such antagonism towards the right to development is based is its legal imprecision or uncertainty. Bunn enumerates the particulars of such uncertainty to include the ambiguity of the right, the vagueness of the identity of the rights holders and duty bearers, the uncertainty over the nature of individual or collective responsibility, and the non-justiciability or non-enforcement of the right.58 In this part I discuss these objections except for that on non-justiciability, which is reserved for discussion in part 4.

As far as the ambiguity of the right is concerned, Vandenbogaerde explains that the right to development has been controversial among states and scholars due to its lack of conceptual clarity. He further claims that the enduring failure of states to agree on a common conceptual framework to develop the right to development has greatly affected the normative validity of the right.59 Similarly, Cathy criticises the various formulations of the rights of people (including the right to development) to pursue their economic development as a virtually obsessive repetition of the right of economic self-determination.60 He further states that the claim that states make to a right to economic self-determination primarily serves as an ideological representation, reducing basic concepts to pure ideology. He concludes that such reduction is an indication of a crisis in legal theory. In relation to the vagueness of the right holders and duty bearers, Ghai castigates the right to development for a lack of clarity on the identity of those who are to enjoy the benefit and those to suffer the duty associated with the right.61 As articulated by Igbal:62

The language of the Declaration is vague, imprecise and unclear in some respects. First, it is not clear whether the individual is the subject or the beneficiary of the RTD ... ‘The individual as a subject’ and as a ‘beneficiary’ creates sufficient jurisprudential confusion and vagueness.

3.3 Critique of the right to development

Vagueness indeed is evident in some of the provisions of the RTD Declaration. Article 2(3) provides for the right and duty of states to formulate appropriate national development policies that aim at the constant improvement of the well-being of the entire population and of all individuals. This provision may be interpreted as a restatement of the obligation of the territorial state to formulate such policies for the well-being of its citizens or persons living within its territory. However, the reference to ‘entire population and of all individuals’ is ambiguous. The phrase could be interpreted as the citizens or persons within the state’s territory or as persons living anywhere in the world. Based on the principle of territoriality63 and the need for certainty, the former is preferable to the latter.

Article 3(1) provides that states have the primary responsibility for the creation of national and international conditions favourable to the realisation of the right to development.64 Here it is supposed that each state, based on its own peculiar economic model or ideology, will create such conditions favourable to the economic fortunes of its citizens. Could it also mean that each state is duty bound to do so in order to enhance the development of persons outside its jurisdictional radar? More specifically, is the developed state required to develop the developing state? Salomon appears to answer this in the affirmative.65 Nevertheless, such requirement imposed on a developed state to project its developmental tentacles beyond its borders is too general and reinforces the vagueness of the right to development.

Furthermore, article 3(3) of the RTD Declaration obligates states to co-operate with each other in ensuring development and eliminating obstacles to development.66 This article complements article 3(1). Although the duty to cooperate for international development is a long-standing element of international law,67 Salomon notes that ‘these external obligations challenge the classical assumption of international human rights law which is rooted in the protection of individuals against abuse by their own state’.68 Moreover, the obligation implied in inter-state cooperation is not clear. For example, what conduct may qualify as enhancing development or eliminating obstacles? In view of the primary duty of the state to promote its interests even in inter-state intercourse, how does one state shoulder the task of developing persons or entities abroad where doing so conflicts with its national interests?69 It is highly doubtful that the state has the legal responsibility to promote the right to development of the citizens of foreign countries. All these buttress the ambivalence of the right. Similarly, article 3(3) further enjoins states to fulfil their duties in such a manner as to promote a new international economic order (NIEO). Significantly, developed states have ceaselessly voiced their opposition to the NIEO and its being smuggled through the back door into the RTD Declaration further revives or strengthens the hostility of the developed states towards the right to development.70

Building on article 4(1), which commits states to the formulation of international development policies for facilitating the full realisation of the right, article 4(2) makes provision for sustained action to promote the more rapid development of developing countries. Article 4(2) undoubtedly makes it clear that the duty bearers are the developed states while the rights holders are the developing states. However, because responsibility is basically territorial, developed states have never missed an opportunity to reject the possibility, however remote, of making them responsible for the development of other sovereign states or persons who live therein.71

Obviously, the discordant tunes from both sides of the divide on this matter testify to the ambiguity of the right to development. However, the argument of Salomon is interesting as it strikes at the root of the opposition of developed states to the assumption or imposition of such responsibility. According to Salomon, in contrast to the position of developed states, the right to development is concerned with a structural disadvantage that engenders the poverty afflicting half the global population and that, therefore, it is not preoccupied with the state’s duties to its nationals, but with its duties to people in far off places or foreign jurisdictions.72 Nevertheless, it remains to be seen how this perspective can be translated into the state practice of developed states. In reflection of the uncertainty surrounding the right to development, Cathy describes the right as corresponding more to the affirmation of a principle than to the recognition of a ‘true subjective’ right,73 a perspective equally echoed in Brownlie’s view that ‘the right constitutes a general affirmation of a need for a programme of international economic justice’.74

It is in view of the uncertainty that has dogged the right to development that the UN has been making frantic efforts to develop modalities thereof.75 Instructively, the right to development for the past 33 years has remained at the realm of rhetoric,76 a development that has prompted Vandenbogaerde to call for its dissolution.77 Arguing along this line, this article advocates the deconstruction of the edifice of the right to development as presently constituted but for reasons different from those presented by Vandenbogaerde. While Vandenbogaerde argues that the current human rights mechanisms already cater for the right to development, the article anchors its advocacy on factors indigenous to developing states, an aspect to which the discussion now turns.

4.1 Legal status of the right to development

There are rights and there are rights. The history of the oppression of humanity and state repression of dissenting voices across ages probably justifies the increasing enlargement of the family or generation of human rights.78 The distinction between lex lata (the law as it is) and lex feranda (the law as it ought to be) specifically speaks to the enforceability of rights. The legal indeterminacy or uncertainty of the right to development makes its unenforceability obvious. In their desire to ward off a violation of or interference with our interests, legal analysts usually invoke the language of rights without necessarily caring about their enforceability. However, enforcement matters especially where the violator or trespasser is unwilling to make amends as and when due. In a bid to confine a right to the realm of enforceability, Hohfeld proposes a thesis to the effect that to every right there is a correlative duty.79 In other words, where the right holder claims a right, there must be a duty bearer against whom such right is claimed. The utility of this assertion is that the victim of the right violation should be able to claim compensation against a specific, identifiable person, entity or institution. Otherwise the victim’s remedy will be in abeyance and such outcome may bring the legal rule authorising such remedy into disrepute.80 Such detachment of legally enforceable duty from right weakens the force of international law and regrettably validates the Austinian view on international law as international positive morality.

The RTD Declaration unambiguously identifies developing states as rights holders. Conversely, it imposes the correlative duty of realising the right on developing states and their citizens, and on developed states. Although matters have arisen as to the nature of the obligation so imposed on the trinity, the focus of our analysis - which is the duty imposed on developed states - raises many issues, including the scope of such obligation and the propriety of imposing an obligation on a sovereign state for the benefit of another sovereign state.

The imposition of a right to development-related obligation on one sovereign state for the sake of another sovereign state is problematic. This is particularly so where developed states have used the opportunity provided by every forum to reject such obligation purportedly owed to developing states.81 Of course, there are several moral bases upon which such obligation could be justified, including the responsibility of developed states for colonising developing states and the inequity in the international economic order that has simultaneously made developing states poor and developed states rich.82 Nevertheless, the legitimacy of contemporary international law rests principally on the consent or consensus of its subjects.83 Therefore, a right claimed by developing states but which the mainstream developed states have perpetually or persistently objected to would be difficult to enforce.84

The obligation under the right to development undoubtedly may manifest in a developed state granting financial aid to a developing state. However, such obligation is rather ambiguous. For example, in what quantity or quality will such aid appear in order to satisfy the intendment of the right to development? Is it sufficient for a developed state to provide financial assistance to a developing state even when such grant is actuated less by the genuine need of the recipient state but more by the donor’s interests, for instance, that of using the aid as bait to recruit the recipient state as a partner-in-progress in the battle against terrorism?85 It is worth noting that aid given under this context may not generate growth or support people’s welfare. In fact, it may even be a lifeline for an inept, corrupt or repressive government as was the case during the Cold War when donor states and multilateral financial institutions made aid available to many developing states (ruled by dictators) even when they knew that the resources were finding their way to the private Swiss bank accounts of ruling families and their accomplices.86

Obviously, from the analysis above the right cannot be justiciable or enforceable because there is no foundation therefor. In a situation where there is such ideological disagreement on the status of the right to development, it is not surprising that the right remains in limbo notwithstanding the fact that it is gradually ageing.

4.2 Abuses of foreign aid

Aid is an alternative source of funding for possibly alleviating the economic misery of recipient states that are in dire need of the capital to finance developmental projects and welfare programmes. African countries have received more than $568 billion in foreign aid.87 Unfortunately, the output has failed to reflect the input as an overwhelming number of scholars have demonstrated that aid hurts more than it helps.88 For example, Akonor argues that foreign aid has failed to lift Africa out of its economic mess despite the continent’s receipt of approximately $600 billion since the 1960s.89 This is buttressed by the fact that at the time the amount of aid rose, Africa’s growth rate concurrently fell.90 On his part Deaton emphasises the negative impact of aid on development even in places beyond Africa. According to Deaton:91

[M]any economists were noticing that an influx of foreign aid did not seem to produce economic growth in countries around the world. Rather, lots of foreign aid flowing into a country tended to be correlated with lower economic growth.

Yet, in the midst of all these controversies many African states appear to be precariously dependent on foreign aid.92

Similarly, aid fosters corruption in Africa. Corruption, which is the abuse of public power for private ends,93 arguably is the most intractable problem on the continent. The conduct is notorious for having undermined the development potential of Africa by serving as a vessel for secreting the resources of the continent into the estates and bank accounts of private persons located within and outside Africa.94 It is worth recalling that many African states are endemically corrupt and much of the resources involved are sourced from natural resources such as oil, gas and minerals.95 Unfortunately, the legal systems of many African states are unable to bring offenders to justice either through effective prosecution or disgorgement or restitution of the ensuing unjust enrichment.96

There is a direct or proportionate nexus between aid and corruption: the higher the aid the more the rate of corruption.97 Where aid is offered by one government to another, sovereignty is implicated. Although donors usually couple their grants with some form of conditionality, a level of discretion is given to the recipient government, in its sovereign capacity, to execute the projects to

which the grant relates.98 From the profile of Africa as an intractably corrupt continent, the funds in the hands of the recipient state or government would be susceptible to manipulation, wasteful expenditure and outright corruption. Such money suffers the same fate as revenue internally generated from natural resources. Aid money is seen as a windfall or manna sent from heaven because it is appropriated and spent with little or no accountability and can even be misappropriated by the corrupt elites in government.99 For example, of the $22 million that the International Monetary Fund (IMF) loaned to Haiti, Jean-Claude Duvalier privatised or pocketed $20 million.100 Consequently, aid encourages unproductive and wasteful expenditure, and strengthens the government and not the institutions of the state. Therefore, aid has come to be understood as a source of corruption in Africa and, therefore, compounds the already serious problem of transparency and accountability on the continent.101

Moreover, although the genuine intention and the humaneness of those who advocate more aid for Africa may be undoubted, the intention or motives of state donors are questionable. Research indicates that aid grant is actuated not necessarily by the need or the economic exigency of the beneficiary but by the political or economic preference, inclination or expediency of the donor.102 Citing other researchers, Tavares notes that aid is uncorrelated with the recipient country’s growth, poverty incidence or development drive. For example, Deaton notes that the United States gives aid ‘for “us”, not for “them” - to support our strategic allies, our commercial interests or our moral or political beliefs, rather than the interests of the local people’.103 Similarly, Akonor observes that the primary true objective cited for African aid is to reduce poverty in order to provide a bulwark against terrorism.104 It is also in this context that the attempt by the West to influence African culture, and perhaps to advance minority rights, with aid can be understood. For instance, at a time when Nigeria was on the verge of enacting legislation prohibiting same-sex marriage or union,105 the United States, the United Kingdom and some international agencies issued a veiled threat to withhold aid from countries that were prohibiting this act.106

Therefore, the recipient is used as an instrument, or a means to the end of satisfying the whim of the donor. From the perspective of justice this outcome can be problematic. Although aid is ordinarily a benefit, penological theories may be invoked to explain the burden in using aid as an instrument. In the theories, the purposes of punishment include retribution and deterrence.107 While retribution is deontological, that is, as an end in itself (focusing on the turpitude of the offender’s conduct), deterrence is consequentialist, that is, looking at the consequences the punishment of one will have on another.108 Penalisation based on deterring others triggers opposition. This is because the penalty is imposed on the offender for the sake of deterring a prospective offender from acting similarly. Foreign aid becomes a burden to the beneficiary where the donor offers it not as an end in itself or to genuinely meet the developmental challenges of the beneficiary but for the donor’s end of protecting its peculiar interest or carving a sphere of influence for itself. We can legitimately use this penological argument as a weapon against foreign aid. In granting aid to recipients, many of the donors package the aid under the impression that it is meant to alleviate the poverty or parlous condition of the recipient state whereas ultimately they are satisfying their whim and caprice. Giving aid to Africa is not an end in itself - an end to African growth - but a means to the end of fulfilling the narrow interests of aid donors. In other words, aid has become a channel through which donors put up the facade of altruistically or humanitarianly helping Africa out of their economic woods, while their real or substantive aim is to promote their national or strategic interests. Africa is being used as a tool to achieve a desired end. It is high time the practice was halted of enabling donors to make vast amounts of capital out of the misfortunes of Africa with an aid regime that does not necessarily address the peculiar needs of the recipients.

4.3 Lethargy

The result of the influx of foreign aid is that Africa tends to overly depend on it. Aid has been used to spoon-feed African states to such an extent that it has taught the continent nothing but the shape of the spoon. Aid dependency has lulled the continent into the lethargy of believing that there can be no life outside of aid even when it is common knowledge that the aid regime is merely palliative and not programmed to bring lasting economic freedom.109 Consequently, to paraphrase Tony Blair, African aid dependency has indeed made the continent the scar on the consciences of the world110 and a laughing stock in the comity of nations.

Because aid is sourced externally, it is perceived as ‘free’ money which is not as amenable to accountability and prudent spending as funds generated locally. In the absence of such incentive to account or spend wisely, aid (as well as domestically-generated national patrimony) becomes vulnerable to massive looting. Indeed, many African rulers are notorious for having embarked on the complacent plunder of such resources111 for personal and familial benefits. Consequently, governments become somewhat disconnected or distanced from the people. In other words, reliance on aid has rendered governments less accountable and prone to indulging in wasteful expenditure, leading to a weakened relationship between the government and the people.112

It should be noted that all these traces of bad governance occur simultaneously with the failure of the government to provide the basic infrastructure needed to meet the existential exigencies of the citizens and the nation. The availability of foreign aid has made African rulers lazy in responding to the critical needs of citizens. For instance, when natural or human-induced disaster strikes on the continent, against which no contingency has been made,113 African rulers respond feebly and then surrender to the fate of self-pity and console themselves with tales of the evils of slave trade or colonisation perpetrated by the West.114

Furthermore, with the free flow of foreign aid, African rulers have become unimaginative about turning their economies around despite all the sound and fury they frequently make about diversifying them in order to overcome the instability from fluctuation in world market prices.115 They have lost their sense of creativity or initiative to think or work around the economic predicament of their countries. Therefore, foreign aid has engendered or generated in developing states the lethargy that has triggered their lack of confidence in themselves and their belief in their internal capacity to develop without necessarily being aided by developed states. 116

In many African countries governments usually shy away from introducing tax regimes because tax payers would become more critical of their conduct. However, without foreign aid the government will have no choice but to impose taxes or more taxes to fund development. This will exact a huge price from the government. It cannot fiddle with tax payers’ money, at least not for too long as tax payers will be more sensitive to and demand transparency and accountability. Ultimately, this will reduce the complacency of the ruling class and empower the people to not only have a say but also to have a way in the conduct of governance. Put differently, such relationship will generate respect for the rule of law, transparency and accountability. This development will signal the advent of home-grown developmental approaches that can genuinely be implemented with the cooperation of the rulers and the citizens.

The argument of this article is that the right to development is good on paper but poor in practice. It is beautifully packaged to lift the burden of poverty and lack from the shoulders of most, if not all, the peoples of the world. However, such communitarian zeal cannot be transformed into reality because the critical actors (the West and China) have vehemently rejected the burden associated with the right to development. Therefore, the article advocates the deconstruction of the right to development with a view to expunging the uncertain element in the right (the legal obligation imposed on unwilling developed states to finance the development of developing states).

In order to support this argument, this part considered the importance of the mutuality of right and duty in legal obligation, the harmful effects of the aid regime (including the lethargy it has generated in the creative spirit of the African) and advocacy for the rejection of foreign aid. The article takes the position that such deconstruction and the attendant elimination of the uncertain legal obligation will clearly and unambiguously establish the territorial state as the power with the legal obligation to create the enabling environment for human and national development. This may erase from the minds of the rulers and the ruled alike that development must be externally imposed rather than being home-grown. It will create an avenue for the ruled to own the development processes of their countries and to demand greater transparency and accountability from their rulers. These steps will make governments realise that they need to pander to the whims and fancies of their people and to eliminate governmental misconduct if they are to survive. However, that this measure frees developed states of any responsibility for developing states does not mean that developed states will no longer participate in inter-state cooperation for development. Rather, it will rest the anxiety of developed states about the right to development and even encourage them to genuinely and freely extend assistance (even much more than they have been doing) to developing states. We would probably then succeed in not making the right to development a sedative or an ideological construct that is high on promise but low on fulfilment.