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México

"El derecho al desarrollo en el mundo contemporáneo", pronunciada en el IV Taller Internacional de Instituciones Nacionales de promoción y protección de los derechos humanos", Mérida, 29 de noviembre de 1997.

he Right to a Development in Today’s World

Dr. Jorge Luis MAIORANO
“Defensor del Pueblo” of the Nation
Vice-President of the International Ombudsman Institute


1.    “The Right to a development” is one of the most interesting subjects related to human rights.

Due to the necessity to relate the two terms integrating this concept: right and development; to the need to define its limits and give effect to its guarantees; to the relationship with democracy and peace, and to the convergence of the work carried out, in particular by the Ombudsmen, those who seek Human Rights or Commissions of Human Rights, and in general by the National Institutions of Human Rights Promotion and Protection it is, undoubtedly, an unavoidable subject when fundamental rights are tackled.

Whichever the profile selected, it is essential to make reference to the economic, social, and cultural rights, since the former will be a necessary requirement for the fulfillment of the latter.

Consequently, in the first place I shall refer to the process of acknowledgment of the various classes of fundamental rights.

2.    There are no discrepancies among the doctrines of different specialized authors in that, in the chronological order of acknowledgment, the first human rights to appear are those which we know as civil and political rights, aimed at protecting the various manifestations of individual freedom against state powers. These are rights of the individual to gather, to associate with others, to express himself/ herself, to a religious belief, to move, etc. These rights have a common feature: to demand from the State a passive attitude of acknowledgment and respect for these rights.

What seemed appropriate during the first period of reaction against the state’s absolute power, became gradually insufficient before the deep economic and social changes suffered in the initial decades of the last century, which affected the dignity of most defenseless sectors of our society, which had to live under poor conditions.

Thus, the evolution generated in the facts and dogmatically promoted by thinkers and politicians gave evidence of the unpostponable need for the State to adopt a permanent and active attitude aimed at protecting the new expressions of the human rights plexus, such as the fulfillment of the necessities of shelter, food, health, protection against risks and adversities, etc.

Additionally, this was an unpostponable popular claim to ensure equality and to promote solidarity among the different social groups. Frosini was right to say that “progress in human civilization is measured essentially by the help provided by the strongest to the weakest, by the limitation of the natural powers of the former as an acknowledgment of the moral demands of the latter, by an enhancement of human fraternity without which the rights to freedom become selfish privileges and the principle of legal equality turns into a leveling based upon submission to the power of the strongest”1.

Economic, social, and cultural rights began to be legally acknowledged, and the State was entrusted with the adoption of measures to make them effective. Later on, these rights were included in the national Constitutions, thus giving origin to the era of social constitutionalism, precisely with the Mexican Constitution of Queretaro, in 1917.

3.    However, the mere inclusion of these rights in the constitution was not enough for them to gain full acknowledgment. Either a strong political will to implement these rights was missing, or the social and economic circumstances of many countries were not appropriate to gradually make them effective. The deep difference between the two categories of rights became evident: those which required the State’s inaction, and those which demanded the State’s permanent action and presence.

When the last World War ended, it became clear that, in order to prevent its horrors from happening again, it was the international community the one which had to establish clear rules of acknowledgment of the most essential freedoms. Therefore, the so-called “second generation human rights” achieved a definite international status on December 16th, 1966 when the UN’s General Assembly, through Resolution XXI, adopted together with the International Agreement of Civil and Political Rights, the International Agreement of Economic, Social, and Cultural Rights.

Both instruments of the international law evidenced the progress made in the definition of the rules for the enjoyment and protection of human rights in general, and in particular of the those rights which incorporate the human being’s minimum economic, social, and cultural necessities and which, of course, provide the necessary context for the exercise of civil and political rights.

The Preamble and the initial sections of both instruments establish a new concept of human rights: that of their indivisibility and the necessary complementation of the civil and political rights with the economic, social, and cultural ones.

Over the last decades, in an attempt to complete the protection of human rights, the “third generation” or solidarity rights have emerged to the public light. These are rights that overcome the selfishness and exclusiveness of individual rights, the sectorial interest of social ones and which are based upon their incidence in the community. Their particular feature is that their owners are no longer individuals but groups of people. I am making reference, especially, to the solidarity rights, such as the right to peace, the right to development, to the free determination of the nations, to the protection of the environment, to the preservation of cultural and historic assets, the right to be different, among others. Here, the traditional rule which said “what belongs to everybody is nobody’s interest” is replaced by “what belongs to everybody concerns every one”.

It is in the last part of this process where we have passed from the individual insight to the social one, and from social insight to the community, or from selfishness to the sector and from there to the social aspect imbued with solidarity. As Bedjaoui says, these rights are placed in the intersection of the individual, the people, the State and Humanity, which enhances and makes the international law of human rights more complex2.

4.    The right to a development is contemplated in various international instruments that have gradually specified its content and scope. Since the Charter of the UN established in its first section the right of people’s self-determination, the General Assembly has stated “the right to the protection of the environment”; “the right to peace”; “the right to food security”; “the right to own the common assets of Humanity”, and, above all “the right to development”. In 1979 we got deep into this subject when it was stated that “the right to development is a human right” and that “equality of opportunities for development is a prerogative, both of the nations and of the individuals that form the nations”.

In 1966, Article 1 of both International Covenants on Civil and Political Rights and on Economic, Social, and Cultural Rights stated that “all peoples have the right to freely determine their political status and freely pursue their economic, social, and cultural development”. But it was in 1986, more precisely on December 4, when the General Assembly adopted the Statement of the Right to Development, the first section of which defines this right as inalienable to every human being and to all nations. By virtue of this right, every human being is entitled to participating in the economic, social, cultural, and political development where the individual is entitled to fully exercising all human rights, contributing to such development and enjoying it.

Section 2 states that the human being is the central subject of development; he/she must be an active participant and, at the same time, the beneficiary of such right. It establishes that all human beings bear, individually and collectively, the responsibility of pursuing this development considering the need to fully respect human rights and basic freedoms, as well as their duties towards the community, which is the only environment which can ensure the free and full participation of the individual and, therefore, a political, social, and economic order appropriate for development must be promoted and protected.

One of the advantages this definition offers is that it identifies the individual as the central subject of development, giving him a prevailing role. This point of view is consistent with the philosophical idea promoted by the Statement, since one of its basic concepts is to encourage and promote citizens’ participation in all the processes that affect them.

Although the statement is not accurate enough to be applied exactly and it does not provide for any enforceability mechanism, its true importance relies on the fact that the right to development has been acknowledged as a consubstantial part of Human Rights.

5.    With the participation of 118 Heads of State or Government in the Social Development World Meeting, carried out in Copenhagen during March 1995, various commitments related to development were made. For instance, some of the subjects considered were: the need to “enhance the resources assigned to social development”; “to accelerate development in Africa and less developed countries”; “to ensure that structural adjustment programs include social development goals”; “to strengthen cooperation for social development through the UN”.

The above-mentioned Statement evidences the intimate relationship between development and human rights. It sets forth that in order to “achieve social development, it is essential to promote and protect all rights and basic freedoms”. It acknowledges the right to development as a necessary condition for the fulfillment of the individuals’ economic and social rights.

6.    Once “development” has been acknowledged as a “right” through the international rules already mentioned, we need to consider the former separately. In today’s world, there are two ways of conceiving development.

The first - related with the theory of economic growth and its values - considers development as a quick and constant increase of the national (domestic) product per inhabitant, with the prospective aim of distributing equitably the benefits of such a growth. This is what has been called the “profitability” concept of development. Values and culture play a secondary role.3

But it is also possible to see development as a process aimed at enhancing the individual’s freedom in the search of his essential ambitions. This is an “emancipating” concept of development, where material wealth is just one function within the system of values and where progress is not measured merely by macroeconomic indicators.

The purpose of this concept of development is the full realization of the human potential. In fact, this idea can be traced back to Aristotle’s philosophy, which considered the existence of each individual as the succession of his actions and conditions. The potential of an individual comprises the various functional combinations of the actions and conditions he can choose.

From this point of view, the main obstacle to the harmonic development of a society is poverty. This has been expressed by the Copenhagen Meeting when, in paragraphs 16 and 19 of the approved Statement, it says that “poverty …often (produces) isolation, marginalization, and violence…”.

The United Nations Educational, Scientific, and Cultural Organization expresses itself following this concept. For instance, its General Director, Federico Mayor Zaragoza, at the 15th Anniversary of the constitution of UNESCO and the closing of the 28th Session of the General Conference said: “… The role of UNESCO is not merely to provide a series of adjustments, but to create possibilities for a new way of living, for new conceptions, and for a new philosophy that may inspire Humanity… What really matter at present are not… the workshops and the factories, but Man. If we want to create a new community, it is the man the one we must recreate… The designs of development have been established to achieve economic growth and material wealth, distributed asymmetrically. The victory of democracy - which means government by the people - will come when everybody is given the same opportunities, when the bipolar structure which accumulates wealth on one end and poverty on the other can be dismantled. There is no enduring peace without development. There is no development without peace. There is no stable democracy without peace and development…”4.

It is possible to do away with poverty, and thus provide the conditions for the harmonic development of societies. It is not an utopia. We do not need a miracle to reduce inequality. Makings this dream possible costs only 80,000 million dollars, and it can be done in two decades.

According to the Report of the UN Development Program, submitted a few months ago in Madrid, the money required is equivalent to the net fortune of the seven richest persons of the world or to the 10% of the annual expense in weapons. With the money invested in building a park like DisneyWorld - 5,000 million dollars - poverty in the five most marginalized countries in the world would disappear. The UNDP report does not approve globalization and liberation as currently applied since, far from being the tides which were to save everybody, they are marginalizing and enhancing inequality. Therefore, the developing countries suffer annual losses of 50,000 million dollars, a tenfold of what they receive from other countries, due to globalization. While in 1960, 20% of the poorest population received 2.3% of the world’s income, at present they receive only 1.1%, and it is still going down. These data confirm a change in the qualitative profile of the poor in the XX Century.

The poor and marginalized individual of today is no longer the Asian farmer of the seventies, but possibly a Subsaharian African or a Latin American, unqualified and earning a poor salary, who lives in the city and has the face of a child or a woman rather than that of an adult.

He/ She may also be a refugee, a person without land, or an inhabitant of an ecologically fragile area. In comparison with the 1970s, it is more probable for the poor of today to be an African or a Latin American rather than an Asian due to the lack of economic growth, the slow creation of employment, the lack of growth in favor of the marginalized people, the marginalization from commerce and capitals, the environmental impairment, or the propagation of AIDS.

Instead of surviving farmers, the poor tend to be workers without qualification earning very low salaries, as a result of commercial globalization and liberalization. The poor can be found mainly in the cities rather than in the farms, due to demographic changes and the emigration to the cities, the limited access to productive resources, the increase of the sector with low productivity, and urban housing shortage. The increase of wars, ethnic conflicts and environmental and economic crises have created masses of refugees and marginated people.5

In the case of Latin America, the figures are really shocking; our region has a poverty rate of 50% (41% in 1980), which means that out of its 470 million inhabitants, 235 million are poor; and our of this group, 110 million live on less than two dollars per day. Additionally, 41% of the poor suffer from malnutrition.

The situation of children is even worse. There are 237 million children, 60% of which are poor. 51.5% of these children have not finished elementary school, which generates sequels in their descendants. Those who have finished school have taken ten years instead of six. Child mortality rate is five times higher than in more developed countries.

Obviously, this impoverishment has increased insecurity and the crime rate in the cities. In Latin America, there are 20 homicides for every 100,000 inhabitants per year, i.e., four times more than in developed countries.

Consequently, we find ourselves facing an irritating dichotomy. The efforts of international organizations, such as UNESCO, which try to increase in the international community the conscience for the need to achieve a harmonic development, oppose a painful reality, which reflects violations to human rights.

And in this scenario, the huge pressure exercised by the international financial organizations over the debtor countries, generally end up in economic policies which affect the social structure, producing restlessness, injustice, and margination. When that pressure becomes stronger, it seems painfully ironical to speak of the human right to a development with social justice, as one of the solidarity rights. The images of the model show us an increasing unfair polarization.

There is a concentration of wealth in the hands of a few, and the rest (an infinitely higher number) just share nothing in poverty. This is exactly the opposite of what is expected and enforceable since human rights need to be enhanced by removing the obstacles which hinder many people from realizing their human rights, mainly in underdeveloped or developing countries.

It is at this point where the State must try to achieve a fair distribution of resources, facilitating the realization of the public welfare and creating appropriate conditions to avoid harmful social, cultural, and economic levels. The emphasis must therefore be placed upon the poorest sectors that, in general, are the target of social inequity. Without a redistribution of wealth and without an investment in the social aspect, development is not possible.

8.    We must now address the role of the “Defensor del Pueblo”, Human Rights Procurator or Human Rights Commissions - the Latin American versions of the Ombudsman - in this situation.

I once expressed that its incorporation to “the recent democracies of Latin America, East Europe, Africa and its gradual institutionalization in Asian countries evidence a generalized process over the last ten years which strengthens the relationship of today’s Ombudsmen with the human rights and the consolidation of the democratic system”.6

As an independent public organization, which belongs to the State but remains far from the Government, the Ombudsman or “Defensor del Pueblo” is absolutely necessary to contribute to the strengthening of a culture of peace, respect for human rights, social harmony and social justice. This institution is an instance of dialogue, an instrument of social control. The daily defense of the rights of the poorest, of the individual who can vote but often realizes that his voice is not being heard; the individual’s struggle to prevent the essential rights from becoming mere documents filled with good intentions or a nice political speech, make the Ombudsman a public official who, helping to achieve peace, contributes to the development with social justice.

Acting with absolute functional independence, without compliance or connivance with the power, it has the privileged function of assuming, from the State, the role of mediator between the dissatisfactions of a nation and the ruling authorities. It is therefore an important instrument of dialogue between confronted sectors and a means to sensitize the political power.

From this position, one can find a deep gap between the demands of the people and the priorities of their government. We must not forget that peace - one of the conditions for development - is not only the absence of war, but a mixture of justice - another condition for development -, freedom - essential environment to exercise the right to development -, and solidarity as well, all of which imply overcoming antinomies. So the Ombudsman operates over these antinomies (public interest-private interest; authority freedom; justice-injustice; selfishness-solidarity; macroeconomics-microeconomics).

At the threshold of the XXI century, Humanity is the biggest threat to its own existence. The expansion of the cold war nuclear weapons has left a place for an equally discouraging perspective: the constant risks of ethnic conflicts; the growing number of marginated people; generalized violence, etc. intermingles with the impairment of the environment, poverty, migrations, and the social inequalities. Peace can only be guaranteed when the human being enjoys freedom with dignity, and not with hunger or misery. Therefore, the various efforts aimed at creating a culture of the peace link the latter with development.

9.    The most authentic contribution of this Institution to the full effective exercise of the right to develop is the strong defense of human rights of the vulnerable groups before the abuses made by the political and economic powers. With a deep commitment and an innovative vision of the society, the “Defensores del Pueblo”, Human Rights Procurators or Human Rights Commissions must try to make the economic power conmiserate with the rights of the people, taking into account the principle that it is not fair for the majority to do the sacrifice while profits end in private hands, and encouraging the legal order to be consistent with those measures of social justice without which the right to development can not be achieved.

I agree with my former colleague and current General Prosecutor, Jorge Madrazo, that it is essential to acknowledge that the national institutions play a major role in making human rights effective, including the right to development and the right to peace. 7

In this sense, it is important to highlight some major advances made during recent years. The Human Rights World Conference held in Vienna in 1993, which expressed itself in the Action Program as well as the Antigua Declaration on Human Rights and Culture of the Peace, signed by seven “Defensores del Pueblo” on June 30th 1996, have acknowledged the important role performed by the Human Rights Institutions in defense of the essential rights.

However, the work carried out by these institutions must not be limited to the domestic level. Our institutions must be given the possibility of being listened to by the corresponding organizations of these international entities, since globalization must not be limited to the economic aspect. We also encourage the globalization of the human rights’ defense through the acknowledgment of these institutions as valid mediators before the supranational organizations. In particular, the Latin American Ombudsmen must be united to face the difficulties and obstacles which hinder the development of new nations; this must be one of the main tasks of the national human rights institutions and organizations seeking the full enjoyment of the economic, social, and cultural rights which are, undoubtedly, a condition for the right to development to be achieved.

Notes:
(1)    Frosini, Vittorio. Human Rights in the Technological Society. Human Rights yearly report, No. 2, page 101 and following pages. Universidad Complutense, Madrid, 1983.
(2)     Bedjaoui, Mohammed. Droit International: bilan et perspectives. T I, page 15. Unesco. Pedone, 1991.
(3)     Sen, Amartya. The Possibility to Choose. Unesco´s mail, page 10. Paris, September 1996.
(4)     Conf. Unesco publication. Page 10 and following pages. Paris, Nov. 23, 1995.
(5)     Conf. El Mundo Newspaper. Page 13, Madrid, June 13, 1997.
(6)   Maiorano, Jorge Luis. In the threshold of the XXI Century: Crisis of identity or evolution? Collective work: Reports of the VI International Congress of the IOI, page 60. Buenos Aires, 1997.
(7)     Conf. Madrazo, Jorge. Human Rights, Poverty, and the Right to Development. Collective work quoted in previous note, page 125 and following pages. Buenos Aires, 1997.