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Statu Quo of the Right to Development in Theory and Practice. Value unto Norm

Seminar Paper 2014 38 Pages

Law - European and International Law, Intellectual Properties

Excerpt

Table of Content

I. The Right to Development in Theory ... 1
A. Evolution of a Legal Norm concerning a Right to Development ... 1
B. The Substance of the Right to Development ... 6
1. Localization of the RtoD within the body of human rights law ... 6
2. Addressees and subject-matter of the Right to Development ... 8
a) Beneficiaries and entitlements ... 8
b) Duty holders and obligations ... 10
3. Value added by the Right to Development ... 12
C. Theoretical Legal Value of the Right to Development ... 14
1. An compilation of controversies ... 14
2. Grounds of Validity, potential formal sources ... 16
3. First assessment on the legal value of the RTD ... 17

II. The Right to Development in Practice ... 20
A. Means and Strategies of the Operationalization ... 20
1. Transnational cooperation within the UN-framework ... 21
a) Promotion ... 22
b) Implementation ... 23
c) Monitoring and justiciability ... 26
2. Implementation on the domestic level: ... 27
3. Implementation by non-Governmental actors: ... 28
B. Obstacles to the Implementation of the Right to Development ... 28
1. Inherent substantial obstacles to the realization of the RTD ... 29
2. International Obstacles to the realization of the RTD ... 29
3. Domestic Obstacles to the realization of the RTD ... 30
C. Operational Success, Consolidating Assessment of the Legal Value ... 31

III. Conclusionary Remarks, the RTD in Theory and Practice ... 32

Bibliography ... 35

I The Right to Development in Theory

A. Evolution of a Legal Norm concerning a Right to Development

An assessment of the stato quo of the human right to development (RTD) has to be initiated by an instructive presentation of its evolutionary process1. Retracing the basic steps of the rights formation provides fundamental insights in its constituting elements, central aspirations and potentially controversial aspects.

The notion of an empowering right to development is a relatively recent one. Indeed, also under classical international law, thus prior to the Second World War, respectively prior to the adoption of the UN-Charter, development has been perceived as a matter of international concern. The Covenant of the League of Nations establishes inter alia development as a “sacred trust of civilization” (Art. 22 I), concerning the western colonies and territories which are inhabited by peoples “not yet able to stand by themselves under the strenuous conditions of the modern world”. Insofar these territories stood under the effective control and legal tutelage of European countries, the concerned peoples did not have the empowering right to development but were compelled to do so. This, of course, within the European conception of progress and, not to forget, the scope of the occupant’s strategic and economic interests.

The UN is at present our central world organization and international obligations, as deriving from law, have to be measured against the Charter (Cf. Art. 105). The foundations of the DRD should, thus, in some way be retraceable to this constitutional instrument or must at least not contradict it. The UN readjusts indeed the classical patriarchic development approach by formally embracing the principle equal rights and self-determination of peoples (Art. 1 II) and of sovereign equality of States (Art. 2 I) in her fundamental dispositions. A further relevant purpose of the UN is to achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and fundamental freedoms for all (Art. 1 III). In this respect a whole chapter (IX) is dedicated to international cooperation, in which the members States pledge themselves to take joint and separate action in order to achieve (Art. 56)2 inter alia conditions of economic and social progress and development (Art. 56 lit. a) and universal respect for human rights and fundamental freedoms for all (Art. 56 lit. b)3. The Charter itself contains however no specific human rights4. The duty to cooperate internationally in order to create conditions favorable to development (Art. 3 I DRD) is likewise a foundation of the RTD. This right to development has to be conducted in a participatory manner, implying the realization of the peoples’ right to self determination (Art. 1 II), and to be designed as a process in which all human rights and fundamental freedoms can be realized (Art. 1 I). Thus the fundaments of the RTD are not only consistent with the principals and purposes of the UN but are well founded in her dispositions5.

Since the RTD is proclaimed as a human right the evolution of international human rights law is central when retracing its origins. The progressive international codification and development of human rights started with the Universal Declaration of Human Rights (UDHR) in 1948. Of particular relevance is Art. 28 of the declaration, which is cited as source and premise for the RTD6. It reads: “Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized”. The UDHR establishes, thus, an entitlement to a particular international order favorable to the realization of human rights. It seems evident, that the attainment of whatsoever international order, which is not on par with the actual one, always requires development7. It has furthermore been noted, that the UDHR reflects the idea of the indivisibility of human rights, entitling everyone to all the rights and freedoms set forth in the Declaration (Art. 2 UDHR)8. Indivisibility of all human rights is also a vital part of the DRD (Cf. Art. 6 II/ Art. 9 II). Likewise this second early key document comprises already essential elements of the contemporary RTD concept9.

Although the 1966 succeeding covenants, one on economic, social and cultural rights (ICESCR)10, the other on civil and political rights (ICCPR)11, were codified separately, the general notion of their de facto indivisibility remained vivid12. Most relevant to the present subject is their analog second Article, establishing a positive procedural obligation (verhaltenspflicht)13 concerning the realization of the rights set forth in the ICESCR, respectively an obligation of result (ergebnispflicht) for the ICCPR. The procedural obligation of the ICESCR stipulates even explicitly international cooperation. The covenants embrace again the right to self-determination in their likewise shared first article and reinforce consequently the empowering right of peoples to freely pursue their economic, social and cultural development14.

The RTD, as the title unequivocally reveals, is furthermore an international right concerning development. To trace the origins of the RTD, one has to disclose likewise the international development agenda with respect to its connection to the human rights regime. In this context the GA designated the first UN Development Decade in 196015. It is to note here, that development in this early period, although connected to social aspects in congruence with Art. 55 of the Charter, was not promoted within the scope of the realization of human rights, but merely described as the fundament “to the attainment of international peace and international security and to a faster and mutually beneficial increase in world prosperity”16. Indeed already the Proclamation of Tehran, as the final act of the International Conference on Human Rights, confirmed in 1968, that the widening gap between the economically developed and developing countries impedes the realization of human rights in the international community17, hence establishing a clear connection between (under- )development and human rights. This connection has subsequently been reinforced in virtue of further non binding international instruments18.

Aware of the global economic imbalance and this crucial connection between development and the realization of human rights a claim for international solidary assistance emerged. Since the RTD does not solely embrace the empowering right to self-determined development but also obliges the international community to create conditions favorable to the development process, this notion constitutes a further cornerstone of its genesis. A milestone in this context was the GA resolution endorsing the Declaration on the Establishment of a New International Economic Order (DNIEO), put forward by an influential group of developing and less developed countries (LDC)19. This instrument does not explicitly mention an RTD but it shapes the legal context for its emergence20. In this respect the polemics around the NIEO are said to have induced a shift in the understanding of international law, evolving from a mere right of coexistence to a right of cooperation21.

Throughout the 1970s an actual RTD was repeatedly examined and debated22. The discourses were marked by a broad participation of different actors, reaching from various organs of the UN family to NGOs, experts and scholars23. During the norm forming process, the RTD was increasingly integrated in the established human rights regime24, comprising essentially the so called International Bill of Rights (IBR)25. During the debates the theory of third generation, respectively solidarity rights was also elaborated, giving the RTD as key example26.

Subsequently the concrete RTD, as discussed in this paper, was elaborated by specialized agencies within the UN structure. In 1977 the Commission on Human Rights (CHR) requested the Secretary General (SecG.) to examine the right to development as a human right. The request resulted in a report on the International Dimension of the Right to Development as a Human Right27 published in 1979. The report was subsequently considered by the CHR, which established in 1981 a Working Group of Governmental Experts on the Right to Development RTD28. Still during the process of deliberation, the ECOSOC presented a draft resolution to the GA affirming that the wealthier nations had “a moral responsibility to facilitate the process of social and moral development”29. In 1984 the working group adopted its final report, which served as substantial basis for the GA activity on the Declaration on the Right to Development (DRD). In November 1986 the GA Social, Humanitarian Cultural Committee (Third Committee) discussed throughout controversially the matter in a series of meetings30. In defiance of remaining sever differences, and consequently without consensus, the draft resolution on the DRD was finally forwarded to the GA for action31. The Declaration was adopted by majority. Eight countries, all belonging to the planet’s wealthiest, abstained32. The US casted the only dissenting vote.

In the following the RTD has been confirmed on several occasions, notably in the Vienna Declaration and Program for Action (VDPA) in 1993 and in a series of further UN World Conferences since then33. The RTD has inter alia been evoked on the occasion of the creation of central UN human rights bodies such as the Human Rights Council (HRC) and the Office of the High Commissioner for Human Rights (OHCHR), prescribing its promotion as one of their responsibilities34. The realization of the RTD has further been one of the objectives of the Millennium Declaration (MD)35 and is the preoccupation of specialized UN agencies36. Additionally, the RTD has been codified in Article 22 of the African Charter on Humans and Peoples' Rights (Banjul Charter), and in Article 37 of The Arab Charter on Human Rights, both establishing a right to development formally as lex lata under international law for the contracting parties. Although the latter is an important and interesting fact, the focus of the present paper shall lie on the statu quo of the RTD, as established by the DRD, on the universal level.

B. The Substance of the Right to Development

In the following section the current understanding of the rights’ material essence will be discussed, referring (1) to its relation towards the established human rights regime, (2) its material content concerning ratione personae and materiae coverage and (3) the particular value added by the RTD.

1. Localizing the RTD within the body of human rights law

The Vienna Declaration and Program of Action confirmed in its Art. 10 the RTD as established in the DRD as a universal and inalienable right and an integral part of fundamental human rights37. The relation of the RTD towards the other fundamental human rights has consequently been described as “indivisible, interrelated, interdependent and mutually reinforcing”38. Formally the right stands in an equal and hence foremost complementary relation to the established first and second generation human rights. Indeed, it remains the fact that pertinent UN-documents continuously refer to the RTD separately, distinguishing the RTD from the other human rights39.

Customarily nowadays the RTD is located within the so called “third generation” of human rights, succeeding consequently the first two human rights generations. These are namely (1) political and civil rights, as inter alia universally codified in the ICCPR, and (2) economic, social and cultural rights, accordingly codified in the ICESCR40. The third generation of solidarity rights includes the right to development alongside with further collective orientated rights, namely the right to a healthy environment, the right to peace, the right to ownership of the common heritage of mankind and the right to humanitarian assistance41. The actual core characteristic of these third generation rights is keenly illustrated in the very term solidarity right and is not merely the attribution of collective benefits. Solidarity refers to the obligation of the “international community” to pursue objectives in “solidary” cooperation. In keeping with the regularly confirmed notion of the interrelatedness and interdependence of (established) human rights, single solidarity rights can also be described as mutually reinforcing42.

Although all solidarity rights are controversial, the general recognition of this third (possible) generation of human rights is state of the art in jurisprudential literature. Particularly UNbodies “below” the SR, notably the GA, the HRC and the ECOSOC, have repeatedly adopted resolution on the issue of human rights and international solidarity43. Of these third generation rights, however, the RTD stands on the broadest legal grounds44. It is the only one so far that has been included into the regularly cited canon of universal and fundamental human rights. As such, the RTD stands formally in an equal and complementary position to the established rights of the first two generations. Hence all the attributes regularly describing their relation, namely “indivisible, interrelated, interdependent and mutually reinforcing”45 also apply to the RTD as a theoretically integral part of the human rights corpus.

The relation of the right to development towards the other fundamental human rights can, as an enhancement of its complementary character, further be perceived as synthetic46. The DRD establishes in this context that in virtue of the RTD every human person and all peoples are entitled […] to development, in which all human rights and fundamental freedoms can be fully realized. (Art. 1 I). Since development itself is in turn a comprehensive economic, social, cultural and political process (Preamble para. 2) the RTD is consequently implemented by the realization of all the other human rights. The RTD can thus be described as being, to some extent, a synthesis of all existing human rights. It will be discussed below (I.B.3.) in which way the RTD adds nonetheless particular value to the existing human rights body.

Exceeding the synthesis observation, the RTD has been perceived as indispensable to the exercise of all the other human rights. Development appears here as a necessary precondition to their collective realization. The RTD would thus be a “core right” to which one could attribute precedence over the particular human rights47. Although the notion of indispensableness has been attributed to the RTD by the very declaration, this perception, however, is formally excluded. Virtually each resolution referring to the RTD in contact with other human rights affirms that all human rights must be treated in a fair and equal manner48. Furthermore, the Declaration prevents a suchlike interpretation recalling that “[n]othing in the present Declaration shall be construed [...] as implying that any State, group or person has a right to engage in any activity or to perform any act aimed at the violation of the rights set forth in the Universal Declaration of Human Rights and in the International Covenants on Human Rights” (Art. 9 II). The right to development, thus inter alia the right to the full realization of all human rights, must be realized in a manner, that none of the single human right obligations deriving from the IBR is treated in an unfair and unequal manner, respectively discriminated or neglected in the process.

To conclude, the RTD appears relative to the other fundamental human rights as a form of “framework right”, indeed comparable to the likewise disputable right to peace. As such it combines complementary and synthetic elements. Although it embraces the existing human rights and aims at an enhanced effort and efficiency in the process of their conjoint realization, it is no primus inter pares and has consequently no primacy in application. This is formally even valid if one qualifies development as indispensable precondition to their implementation.

The RTD has further a particular connection to the right to self-determination as one of its imminently constituting elements49.

2. Addressees and subject-matter of the Right to Development (le droit subjectif)

In the following section shall be discussed the material content of the RTD concerning beneficiaries and duty-holders (rationae personae) as well as corresponding subject-matter (ratione materiae). To this end above all the dispositions of the very Declaration of the Right to Development will be examined. This document is the core instrument for the global promotion of this alleged new human right. Disregarding fervid discourses50, the DRD contains thus the most relevant information concerning the droit subjectif in terms of rationae personae and ratione materiae coverage of the RTD as appearing on the international legal scene51.

a) Beneficiaries and entitlements:

The entitlements deriving from the right to development have two fundamental dimensions. The respective beneficiary is entitled (1) to individual and coopera9 tive effort aiming at the creation of conditions favorable for his development and (2) to participate in this process; hence the beneficiary is protected from disproportional interference in his own development 52. To prevent misapprehension it seems to be adequate to introduce at this point the mentioned (fn. 40) German legal terms for these distinct legal relations. Freiheitsrechte grant the beneficiaries the freedom to carry out independently, or with strictly regulated possibilities to interference, certain intentions and leistungsrechte entitle the beneficiaries to certain efforts in their favor, performed by specific duty holders.

The Declaration places the strongest emphasize on the entitlement of the individual. The declaration establishes that, individuals are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized (Art. 1 I). Art. 2 I confirms unequivocally that “[t]he human person is the central subject of development and should be the active participant and beneficiary of the right to development.” This conception seems consistent with the emerging perception in the international community that hominum causa omne ius constitutum est53. The RTD constitutes for the individual consequently a freiheitsrecht to meaningfully participate during the development process and a comprehensive leistungsrecht, entitling to the enjoyment of the procedurally achieved amenities. With regard to the duty holders the RTP establishes the complementary entitlement to domestic and international efforts aiming at the conduct of this progress.

In spite of fundamental criticism with regard to the validity of group rights in general, the RTD is according to the very Declaration unequivocally inter alia a collective right. The Declarations first Article holds accordingly, that not only every human person but also all peoples54 are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development (Art. 1 I). The Declaration entitles hence likewise peoples to passively enjoy and actively shape their comprehensive development process. The freiheitsrecht of peoples is particularly emphasized by the confirmation that the RTD implies the full realization of the right of peoples to selfdetermination (Art. 1 II).

As long as States represent peoples and individuals, which is mostly the case on the international scene, they can generally be qualified as the substitute, secondary beneficiaries of the RTD55. Regarding solely the freiheitsrecht to development, States appear inter alia as primary beneficiaries.

[…]


1 This attempt has been made regularly with difference emphases. No cite but a few see Sengupta A., On the Theory and Practice of the right to Development, in: Human Rights Quarterly 24 (2002), pp. 838- 891. Udombana N.J., The Third World and the Right to Development: Agenda for the Next Millennium, in: Human Rights Quarterly 22 (2000), pp. 753- 787. Alston P., The Right to Development at the International Level, in: Dupuy R-J (ed.), Le Droit au Développement au Plan International, La Haye 1980, pp. 99- 112.

2 See the High Commissioner for Human Rights (HCHR) in A/HRC/9/10, 15.08.2008, sec. 8.

3 See Pérez-Vera E., Naciones Unidas y los Principios de la Coexistencia Pacífica, Madrid 1973, p. 24.

4 With exception of the general prohibition of discrimination on grounds of e.g. race, skin color or national and ethnic descent. See Buergenthal T. /. Thürer D, Menschenrechte. Ideale, Instrumente, Institutionen, Baden-Baden 2010, p. 72.

5 The first explicit reference to a right to development has been made actually as early as 1944 in the Philadelphia Declaration of the International Labour Organization (ILOPD). The document identifies, as the organizations fundamental objective (Art. 2 lit. c), to attain the conditions in which it shall be possible (Art. 2 lit. b) to realize the right of all human beings to pursue their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity (Art. 2 lit. a). This first example did apparently however not have any tangible effects on the genesis of the RTD as discussed in this paper.

6 See Chowdhury R. et al., The Right to Development in International Law, London 1992, p. 7. This Article 28 serves as reference in the Preamble of the Declaration on the right to Development.

7 In opposition Donelly J., in: Search of the Unicorn: The Jurisprudence and Politics of the right to Development, in : California Western Law Journal 473 (1985), pp. 486 et seqq.

8 See Sengupta (fn. 1), p. 838.

9 For a dissenting opinion see Ibhawoh B., The Right to Development: The Politics and Polemics of Power and Resistance, in: Human Rights Quarterly 33 (2011), pp. 77-121, here p. 81.

10 Adopted and opened for signature, ratification and accession by A/RES/2200A(XXI), 16.12.1966.

11 Adopted and opened for signature, ratification and accession by A/RES/2200A(XXI), 16.12.1966.

12 See Sengupta (fn. 1), p. 838. This spirit is splendidly illustrated in their almost identical preambles, affirming that “the ideal of free human beings […] can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights”.

13 Since existing English legal terms do not always describe unambiguously all variations of legal relations and conceptions referred to in the present paper, it shall, to avoid potential confusion, when necessary be referred do the German equivalent. Where it seems appropriate the German equivalents may also be introduced in the continuous text. For the celebrated and commonly applied origin of the Anglo-conception see Hofeld W. N., Fundamental legal conceptions as applied in judicial reasoning and other legal essays, New Haven 1920, pp. 5 seqq.

14 See Allgood S., United Human Rights “Entitlements”: The Right to Development Analyzed within the Application of the Right of Self-Determination, in: Georgian Journal of International and Comparative Law 31 (2002), pp. 321- 352.

15 In virtue of A/RES/1710(XVI), 19.12.1961. At the mid-point of the Development Decade in 1965 the GA created the UN Development Programme (UNDP) cconsolidating the Special Fund and the Expanded Programme of Technical Assistance, see A/ RES/2029(XX),22.11.1965. The UNDP chairs today the UN Development Group (UNDG).

16 A/RES/1710(XVI), 19.12.1961, Preamble. See Ibhawoh (fn. 9), p. 81.

17 Endorsed by A/CONF.32/41, 13.04.1968, sec. 12. Admittedly these matters have been connected before, inter alia by A/RES/1160(XII), 26.12.1957, stating that “a balanced and integrated economic and social development would contribute towards […] the observance of, and respect for, human rights and fundamental freedoms”.

18 See inter alia the Declaration on Social Progress and Development, A/RES/2542(XXIV), 01.11.1969.

19 See A/RES/S-6/3201, 01.05.1974. These were due to proceeding decolonization significantly growing in number. At latest by the mid-60th developed countries are outnumbered by developing countries. A further component to the NIEO was added in 1974 with the adoption of the Charter of Economic rights and Duties of the States. See A/RES/3281(XXVIII), 12.12.1974.

20 See Bunn I., The Right to Development and International Economic Law. Legal and Moral Dimension, Portland 2012, p. 37. Consequently the promotion of a NIEO has also been emphasized in the DRD, proclaiming that “[s]tates should realize their rights and fulfill their duties [with respect to the RTD] in such a manner as to promote a new international economic order.” (Art 3 III DRD).

21 See Friedmann W., The Changing Structure of International Law, London, 1967. An even more drastic formulation would be respectively Derecho Internacional liberal a un Derecho Internacional social. See Felipe-Gómez I., El derecho al desarrollo como derecho humano en el ámbito jurídico internacional, Deusto 1999, p. 24

22 The first explicit reference to the RTD is often attributed to a former Senegalese foreign minister, who promoted it as early as in 1966 during a speech before the GA. It bears further mention the personal dedication of Keba M'Bay, who participated crucially in the forming of the RTD as a human right. It was also under his leadership that the CHR formally recognized it as a universal human right. See Felipe-Gómez (fn. 21), p. 45. For a comprehensive overview of cornerstones of the various debates throughout the 70ths see Dupuy R-J (ed.), Le Droit au Développement au Plan International, La Haye 1980.

23 See Ibhawoh (fn. 9), p. 82.

24 Insightful illustrations of the changing perspective on development offer the GA resolutions proclaiming the four development decades. The emphasis lies increasingly on the realization of human rights and well-being as the ultimate goal of development. See A/RES/1710 (XVI), 19.12.1961; A/RES/2626 (XXV), 24.10.1970; A/RES/35/56, 05.12.1980 and. A/RES/45/199, 21.12.990.

25 Cf. Buergenthal/Thürer (fn. 4), p. 29.

26 The theory has supposedly been developed by K. Vasak in his time as Director of UNESCO’s Division of Human Rights and Peace. See Vasak K., A third Year Struggle – The Sustained Efforts to Give Force of Law to the Universal Declaration on Human Rights, UNESCO Courier 30:11 (1977).

27 See E/CN.4/1334, 02.01.1979. The revealing full title of the study is: The international dimension of the right to development as a human right in relation with other human rights based on international cooperation, including the right to peace, taking into account the requirements of the New International Economic Order and fundamental human rights.

28 Res. 36 (XXXVII), 11.03.1981. The ECOSOC approved this resolution in its decision 1981/149. In its further promotion of the declaration on the RTD, the CHM relied substantially on the work of this expert group. See Alston P. / Mégret F., The United Nations and Human Rights: A Critical Appraisal, Oxford, 1992, pp. 138 seqq.

29 ECOSOC Decision 1983/171, 25.07.1983, para. II. 4. By A/RES/38/170, 29.02.1984, recalling its prior resolution on a New International Human Order respectively A/RES/37/225, 20.12.1982, the item was added on the GA's agenda for the 40th session.

30 See Bunn (fn. 20), pp. 40. seqq.

31 For the report of the Third Committee see A/41/925, 01.12.1986.

32 The abstaining countries were Denmark, Finland, The Federal Republic of Germany, Iceland, Israel, Japan, Sweden and the UK. Sengupta (fn. 1), p. 840.

33 Vienna Declaration and Program of Action as adopted by the World Conference on Human Rights in Vienna, see A/Conf.157/23, 25.06.1993. Since then the RTD has been recognized as a human right at most UN conferences. Felipe- Gómez (fn. 21), pp. 55 seqq. For a list of international conferences where the RTD has explicitly been confirmed see I. Bunn (fn. 20), p. 50. Most recently the RTD has been evoked in the Istanbul Declaration (A/CONF.219/L.1),13.05.2011 at the fourth UN Conference on the LDC.

34 See A/RES/48/141, 20.12.1993, sec. 4 lit. c and A/RES/60/251, 03.04.2006, Preamble.

35 See United Nations Millennium Declaration as endorsed in A/RES/55/2, 18.09.2000, sec. 11 seq.

36 Namely the Intergovernmental Open-ended Working Group on the Right to Development, created by E/CN/1998/72, 22.04.1998 and approved by ECOSOC decision 1998/269; and the High-level task force on the implementation of the right to development established by CHR resolution E/CN/2004/7 and approved by ECOSOC decision 2004/249. The WG reports nowadays to the HRC as subsidiary GA organ.

37 See A/Conf.157/23, 25.06.1993.

38 See A/RES/60/251, 03.04.2006, sec. 3.

39 One can speculate that it is merely the wish to continuously promote it. Thus it would be less its material content but its arguable formal status that makes this reference necessary. See the discussion on its formal status below I.C.

40 The first generation comprises essentially freedom rights (freiheitsrechte) and defensive rights (abwehrrechte), combined with equality- (gleichheitsrechte) as well as procedural rights (verfahrensrechte) and furthermore basic participation or citizens’ rights (bürgerrechte). This first generation emerged from documents such as the 1776 Virginia Bill of Rights and the 1789 Déclaration des Droits de l'Homme et du Citoyen, both codifying a comprehensive catalog of individual freedoms in which the State may not interfere40. The second generation comprises basically entitlement rights (leistungsrechte), combined again with the codified principle of equality (gleichheitssatz), and furthermore single freedom rights. The second human rights generation derived theoretically from the idea of a social responsibility of the State towards its citizens and practically from the necessity of a certain welfare State in a free-trade-based economic environment. Cf. Buergenthal/Thürer (fn. 4), p. 285.

41 See Drewicki K., The Rights of Solidarity – The Third World Revolution of Human Rights, in: Nordic Journal of International Law 26 (1984). For the right to humanitarian assistance see Bettati M., Un Droit d'ingérence?, in: Revue Générale de Droit International Public, 15 (1991), pp. 639- 670.

42 For an overview of the relation between the RTD and other solidarity rights see Felipe-Gómez (fn. 21), pp. 180- 200. Especially well established, and also regularly confirmed by UN-instruments, is the interrelatedness of peace and the realization of human rights, which applies explicitly also for the RTD. A link between the RTD and the right to a healthy environment is also regularly constructed. One could fuse these two into the notion (or the right) of “sustainable development”.

43 See in particular A/HRC/RES/6/3, 18.06.2007; also A/HRC/RES/7/5, 10.01.2008. Already the Commission on Human Rights appointed an independent expert on human rights and solidarity in 2005, see CHR resolution 2005/55, 20.04.2005. Relevant reports of this expert include E/CN.4/2006/96, 01.02.2006; A/HRC/4/8, 07.02.2007 or A/HRC/9/10,15.08.2008.

44 Indeed, other solidarity rights are also on the rise. To give but an example, a coalition of NGO's is continuously lobbying for the adoption of a universal declaration on the right of peace, which already had some considerable effects. Most recently the GA adopted a resolution on the “Promotion of the right of peoples to peace”, see A/HRC/RES/17/16, 15.07.2011. This resolution reaffirms plainly that “the peoples of our planet have a sacred right to peace”. Prior to this resolution the GA already adopted inter alia the “Declaration of the Right of Peoples to Peace”, A/RES/39/11, 12.11.1984; the “Declaration and Programme of Action on a Culture of Peace”, A/RES/53/243, 06.10.1999 and a resolution on the “Promotion of peace as a vital requirement for the full enjoyment of all human rights by all”, A/RES/60/163, 16.12.2005.

45 See A/RES/60/251, 03.04.2006, concerning the establishment of the Human Rights Council, at para. 3.

46 See Felipe-Gómez (fn. 21), pp. 168 seqq.

47 This position could be found with Bedjahoudi M., The Right to Development, in: Bedjahoudi M. (ed.), International Law, Achievements and Prospects, The Hague 1991. See also the so called Asian value debate, Ibhawoh (fn.9) , p. 93.

48 See A/RES/60/251, 03.04.2006, para. 3.

49 In extenso to this observation see Allgood S. E. (fn. 14).

50 For a comprehensive overview on the different positions see Felipe-Gómez (fn. 21), pp. 137- 160.

51 The material content has been subjected to intense discussions, particularly between representatives of various developing countries, backed by the Soviet Block, and the States typically subsumed as the occident. See below 1.A.3.

52 This would coincide with the theoretical distinction between positive and negative freedom. For an overview see E. Berlin, Four Essays on Liberty, Oxford, 1969, pp. 197 seqq.

53 As stated by the International Criminal Tribunal for the former Yugoslavia (ICTY). See Prosecutor v. Dusko Tadic, Appeal Judgment, IT-94-1-AR72, 02.10.1995, sec. 97.

54 There is so far no consistent legal definition of the term peoples in international law. The issue has so far rather been the preoccupation of concerned sociologists and ethnographers. It is however definite, that peoples are not necessarily identical with States, as inter alia established by the Declaration on the Rights of Indigenous Peoples, see A/RES/61/295, 02.10.2007.

55 See Pellet S., Le droit au développement. Genèse et concept, Genève 1990, p.73.

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Title: Statu Quo of the Right to Development in Theory and Practice. Value unto Norm