Human Rights and Development Practice

Human Rights & Development Practice Graeme Bristol, Director, Centre for Architecture & Human Rights Bangkok, Thailand. [email protected] 1 Introduction In 1996 I was travelling along the north coast of Manus Island in Papua New Guinea from a remote village back to the provincial capitol of Lorengau. We were about halfway into this 4 to 5 hour journey when the boat’s owner slowed and came to the sandy shore where there were four houses around a stand of palm trees. He was looking for enough fuel to be able to finish the journey. On a bench by one of the houses sat the village leader. I went over to say hello while the boatman headed off to find the fuel. We sat and talked for awhile when he asked me a blunt question related to a common understanding of development: “Why don’t all you foreigners just go home?” It was a question that spoke to the way his country and his village were changing, about the impossibility of stemming that tide of change or controlling it. Although I saw no evidence of televisions in this village, in most of the more populated areas the television at the local trade store would always be tuned to the most popular television show in the country – Baywatch. Between that and MTV a whole generation of young people were abandoning the village life for other more exciting pursuits1. My presence in his village and, indeed, in his country represented all of that. I had been hired by the national Department of Works as a ‘foreign expert’ – as it said on my visa – to provide supervising architectural services. There were, no doubt, national architects who could do the same job as I was doing. So this villager was asking what many of his fellow citizens were also asking themselves. What do we need your expensive time for? Not so much in my own defence but in the defence of development as I understood it at that time, I had to ask: “Has anyone here had malaria? What did you do about it?” Luckily medicine was available. There were many villages, particularly in the highlands, where people had died because they had no medicine available. Access to medicine was part of that development ‘package’, as was the Yamaha motor and boat that had brought us along the coast in less than 4 hours instead of two days of hard paddling. Some of these amenities were desirable and some were not. Some were life saving and others terribly destructive. Unfortunately, it seemed to me that this package could not be unbundled. If he wanted medicine he had to take Baywatch with it. Illich took this point much further in stating that our entire world-view is packaged by our institutions – schools, governments, medicine, professions, and news media – and consumed by society.

“Industrialized societies can provide such packages for personal consumption for most of their citizens, but this is no proof that these societies are sane, or economical, or that they promote life. The contrary is true. The more the citizen is trained in the consumption of packaged goods and services, the less effective he seems to become in shaping his environment.” (Illich, 1997:95)

The boatman came back with enough fuel to get us back to Lorengau. We went on our way but the conversation in my head never stopped. I did not know it at the time but I had 1 This echoes an older version of the same question posed by a popular song of 1919 in reference to

returning soldiers after the First World War, "How 'Ya Gonna Keep 'Em Down on the Farm?" (After They've Seen Paree).

30 APR 08 Human Rights & Development Practice

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been exposed to one of the foundation arguments of postdevelopmentalism – the stark observation that all this ‘development’ (as modernization) is not doing what it purports to do in reducing poverty and improving lives. My response fell in with Richard Peet’s critique:

“A critique of development should discriminate between real advances like modern medicine, on the one hand, and the tragic misuse of scientific knowledge and technological productivity in support of frivolous consumption for a few rich people, on the other hand. Western science has demonstrated its positive power in improving material living standards, albeit at great environmental and social expense.” (Peet, 1999:160)

Surely there is some other way to manage development, particularly to allow this village leader to decide for himself and his family what was beneficial and what was not. Further, where it concerns the locus of decision-making, the right to decide enters the argument. The central concern of this paper, then, is about the right to decide and how that right and other related rights are protected by international law, if, indeed, they are protected at all. In order to understand what this right means it is important to understand some of the modern history of development since the Second World War as well as the evolution of concepts of development since. What has the term come to mean? Who is defining it? Is the prevailing definition (or definitions) one which we would wish to demand as a right or would it be one from which we would demand protection? Understanding the prevailing definition(s) of development allows a more critical analysis of what is meant by a right to development. This paper, then, will begin with a short description of development first through some examples of problems arising out of development and second through the evolution of theories of development. This is followed by a short history of the drafting of the Universal Declaration of Human Rights (UDHR) since its drafting provides the foundation for other standards and law that follow as well as the persistent problems and philosophical conflicts which arose in the drafting. On that foundation, the paper then briefly reviews a number of the international laws, treaties, standards and other legislation that affect the practice of development. It is the Declaration on the Right to Development (DRD) which focuses directly on human rights and development. In addition to that, though, it is necessary to examine a number of other effects of development on rights – the environment, the city, culture and economics. 2 Faces of Development The abuse of human rights through development has taken many forms particularly since the Second World War. There is a face and a language of development, a discourse of modernism that frames our understanding of the term. Of the many abuses there are four brief examples which help to describe the rights at stake and to set a foundation for defining what is meant by development in this context. Two examples concern urban planning and two concern the supply of water. 2.1 Water Supply In 1997 I was working for the Papua New Guinea Department of Works. Part of my responsibility as an architect in that capacity was the Department of Education, their schools and related buildings. I received a memo from the headmaster of a school in a village in the province of East New Britain. He was concerned about the deterioration of his school and had asked for advice on what he could do to keep it from falling apart. After a month of filling out forms for permission to make this site visit, I arrived to find that this small school, raised about one metre above the ground on wooden columns, was indeed rotting rapidly. The main reason for that, I found, was that the gutters had been removed from the roof which resulted in rainwater eroding the soil around the foundations and rotting the stairs and wooden columns supporting the floor of the school. I asked the headmaster what


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happened to the gutters. He said that when the Water Board (itself a division of the Department of Works) began installing piped water into the village, they demanded that anyone receiving piped water must cease collecting supplemental rainwater. That meant removing the means by which rainwater was collected – the gutters which fed into cisterns. When all the gutters were removed, piped water would be installed. In order for the Water Board to recover the costs for water supply they wanted to insure that supply was only going through their pipes and their water meters. Any other supply would mean reduced income for the Water Board which would affect the economic ‘sustainability’ of the piped water. The consequence of their demand for the removal of gutters resulted in the rapid deterioration of the buildings receiving the piped water. And yet, within the context of the Water Board’s requirement for cost recovery for the project, it was a logical economic decision, despite it being disastrous from a broader perspective. 2.2 Water Privatization in Bolivia At a much larger scale, though with similar economic foundation principles, the International Monetary Fund (IMF) and the World Bank supported the privatization of water in Bolivia’s third largest city, Cochabamba. The city had a long history of poorly managed and inadequate water supply. In 1998, when the IMF approved the third in a series of loans to the Bolivian government2, the water system in Cochabamba failed to reach as many at 40% of its population and had as much as 60% leakage and pilferage3. The IMF loan was conditional on ‘structural adjustment’4 of the Bolivian economy. One of those conditions in this case was the privatization of the water supply of Cochabamba. In the fall of 1999 the Bolivian government duly passed Law 2029 on Potable Water and Sanitary Drainage (Assies, 2003:14)5 In its Public Expenditure Review of the same year, the World Bank cautioned the Bolivian government that:

“No public subsidies should be given to ameliorate the increase in water tariffs in Cochabamba, which should reflect the full cost of provision by the Misicuni multipurpose project.” (World Bank, 1999)

With the passing of Law 2029, the Bolivian government proceeded to put to tender the supply of water for Cochabamba. The only bidder was Aguas del Tunari, a consortium led by International Water Limited, a subsidiary of the American engineering/project management firm, Bechtel. By November of 1999 negotiations were completed for the handover of the public water supply system to this private consortium. Included in Law 2029 and the negotiated handover was the provision, like that of the Water Board in Papua New Guinea, that the collection of rainwater would be illegal without a permit. With that the cost of water rose by as much as 300%. Understandably there was a reaction. The ‘Water Wars’ began in January of 2000 with a civic strike. Negotiations with the civic authorities during February and March came to a standstill and a general strike was held beginning on April 4th. On the following day, many of the water committees and rural delegations were calling for the immediate removal of Aguas del Tunari from the city. The vigil continued through April 5th in the main plaza in front of the Prefecture building where negotiations were taking 2 See http://www.imf.org/external/np/sec/pr/1997/pr9742.htm, International Monetary Fund Press

Release 97/42, September 12, 1997. 3 See Bechtel’s report of March 2005, “Cochabamba and the Aguas del Tunari Consortium”.

Available online at http://www.bechtel.com/assets/files/PDF/Cochabambafacts0305.pdf. Bechtel was a part owner of Aguas del Tunari. See also Chapter 6 of World Bank Bolivia Public Expenditure Review of 16 June 1999 Report No. 19232-BO

4 Structural Adjustment Programmes (SAPs), particularly during and after the debt crisis of the 1980s, was the response of the IMF and the World Bank to dealing with repayment of debt by countries in economic crisis – at that time led by Mexico and Brazil. SAPs required “measures that included raising taxes, raising tariffs, devaluing the currency and usually reducing government expenditure” (Peet, 2003:76) The reduction in government expenditure typically resulted in the privatization of many public services including water supply.

5 See also http://www.pbs.org/frontlineworld/stories/bolivia/timeline.html for a timeline of these events.


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place. On the evening of the 6th, the police began firing tear gas to disperse the crowd. Leaders of the coordinating committee against the water hikes were arrested. In turn this led to greater unrest and distrust of the good faith of the negotiations with the government. By the 8th, a state of siege was declared by government and the military cut off power to radio and TV stations. Further escalation of resistance led to the police firing on the crowd resulting in the death of two people. Out of that tragic escalation came an agreement between the government and the coordinating committee (Coordinador) – Law 2029 would be modified and the Aguas del Tunari contract would be nullified. One of the long-term results of this uprising was a change in leadership at the national level. With policies promoting nationalization of many of Bolivia’s resources, the MAS party (Movement towards Socialism), under the leadership of Evo Morales was certainly strengthened by the water wars. He won the presidential election in 2005. Another outcome is that Bechtel filed a suit6 with the International Centre for Settlement of Investment Disputes7 to recover some $25 million in claimed lost profits resulting from the nullified contract. Ultimately, in the wake of bad publicity, they abandoned the suit in 2006. 2.3 Master Planning in Bangkok8 The Bangkok Metropolitan Administration (BMA) in 2001 ratified “The Master Plan for Land Development: Ratchadamnoen Road and Surrounding Area”. This beautification plan began to have a progressively destructive impact on the security of tenure for most of the 22 communities that make the historic Rattanakosin area their home. The plan was motivated largely by a desire to capture more tourism income for the city of Bangkok. The beautification of this local environment as a tourist attraction would also improve property values (most of Rattanakosin is Crown Land administered by the Crown Property Bureau). Among the proposed features was what was described as ‘making Ratchadamnoern Road the Champs-Élysées of the East.’ The approval of the plan by then-Governor, Samak Sunda-ravej was in advance of Bangkok hosting the 11th Economic Leaders’ Meeting of Asia-Pacific Economic Cooperation (APEC) in October of 2003. Well in advance of the conference, in January of 2003, he was eager to begin the implementation of the Master Plan. This was to start at the east end of Ratchadamnoern Road at Pom Mahakan – the Mahakan Fort that is one of two remaining defence towers built as part of the original settlement in the latter part of the 18th century. It is here, too, that the last remaining piece of the perimeter wall of the city stands. Between this wall and the klong there is a community of about 300 people where their ancestors had been living for nearly 200 years – these were to be the first victims of the beautification plan for Rattanakosin. Since Pom Mahakan was intended to be the first in a long line of evictions in aid of the Master Plan to beautify Rattanakosin, many other communities in the area along with a wide range of other interested parties were concerned about the outcome. Behind it all were the forces of gentrification and tourism, as well as arguments about the preservation of national history, about environmental protection and economic development. Although the community had resisted eviction for more than a decade prior to this latest notice, the force of the Master Plan itself gave new weight to the argument of the ‘common good’. Their community was to be turned into a park which was intended to provide a kind of viewing ground for the historical tourist attraction, Wat Saket, across the canal.

6 See http://www.democracyctr.org/newsletter/vol41.htm or

http://www.brettonwoodsproject.org/art-16269 7 See http://icsid.worldbank.org/ICSID/FrontServlet 8 See Bristol, 2007 for a more detailed summary of the Pom Mahakan experience.


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Together with a group of architecture students, the community developed an argument for the retention of the community by creating an alternative plan that would allow for the coexistence of both a park and the community. The community’s argument was not against beautification as such, nor was it against development but rather how it was going to be defined and who in society would define it. Did the community have a place in Thai culture and history? They thought they did. The city officials thought otherwise. Although these arguments about who defines history and culture were central issues, the argument also considered the understanding of parks, of the environment, of housing rights, as well as the costs and benefits of development itself. As is so often the case, the poor were paying the costs and the benefits were accruing elsewhere. Having their plan rejected by the BMA, the community resorted to the National Human Rights Commission where their plight and their alternative plan received a sympathetic response. 2.4 Urban Renewal In 1961 Jane Jacobs, in her book The Death and Life of Great American Cities, said this about post-war urban renewal:

“. . . people who get marked with the planners’ hex signs are pushed about, expropriated, and uprooted much as if they were the subjects of a conquering power. Thousands upon thousands of small businesses are destroyed, and their proprietors ruined, with hardly a gesture of compensation. Whole communities are torn apart and sown to the winds, with a reaping of cynicism, resentment and despair that must be heard and seen to be believed. A group of clergymen in Chicago, appalled at the fruits of planned city rebuilding there, asked, Could Job have been thinking of Chicago when he wrote: Here are men that alter their neighbor’s landmark, shoulder the poor aside, conspire to oppress the friendless. Reap they the field that is none of theirs, strip they the vineyard wrongfully seized from its owner . . . A cry goes up from the city streets, where wounded men lie groaning . . .” (Jacobs, 1961:5)

This description applied to most cities in the West after the Second World War. With many of the cities of Europe in ruins rebuilding was a necessity and out of that arose the opportunity to implement many of the ideas of modern city planning that had been put forward in the prior to the war9. As Jacob’s description indicates, these ‘subjects of a conquering power’ were having to live through yet another war – one that continues unabated and unrecognized in cities around the world.

9 See, for example, Le Corbusier’s City of Tomorrow and the 1933 Athens Charter of the Congrès

International d'Architecture Moderne (CIAM)

Figure 1.1 - Pruitt-Igoe after its completion


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In 1952 the Pruitt-Igoe housing development was designed and built in St. Louis (see Figure 1.110). It became a classic example of the urban renewal/slum clearance ideology of rational planning and city beautification. The development had more than 2700 units housing 12,000 people, some of whom had been uprooted from existing communities by this project. Twenty years later, in March of 1972, the first of the 33 buildings of the project was demolished. It took four years to completely raze the project11. Charles Jencks, the architectural historian, took this to signify the demise of the modernist ideology in architecture and planning. In the context of the urban unrest in the streets of Paris, Watts, Newark, Detroit, Chicago and many other cities in the late 1960s, the demolition of the Pruitt-Igoe project was a late, though spectacular, entry in the battle between communities and urban development. After Jacobs published The Death and Life of Great American Cities in 1961, there was a growing resistance12 to this wholesale destruction of communities for the sake of ‘slum clearance’ and expressways. This resistance unfolded in a number of directions – greater participation in the planning decisions of the city, the strengthening of local communities, the demand for inclusion of previously marginalized citizens and the beginnings of a shift in what was meant by such terms as modernization, urbanization, urban development, history and culture. 2.5 Conclusions There are certainly positive faces to development – the development of life-saving drugs that have extended the lives of millions. The ongoing battle between intellectual property rights and the right to access to these life-saving drugs presents a clear set of arguments about the right to development. However, these four examples suggest that if we demand a right to development – as a number of international documents do – we should be careful what we wish for. They are brief representative examples of a long and expanding list of the dilemmas, hazards and downright disasters of development. In addition, we are dealing here with a very wide range of issues – the more physical issues of environment, resources, the control of space and infrastructure; the political issues of participation in decision-making; the more abstract issues of culture and group rights as well as the more metaphysical issues of rationalism and the framing of discourse. Foucault, for example, “favored autonomous, noncentralized theorization that did not depend for its validity on gaining approval from established regimes of though. He favored local knowledge, the ‘return of [forgotten] knowledge’ an insurrection of subjugated knowledges, blocs of historical knowledges usually disqualified as inadequate, naive, mythical, beneath the required level of scientificity.” Recovering this forgotten knowledge would only be possible if “the tyranny of globalizing discourses (e.g., monoeconomics, modernization, modes of production) was first eliminated.” (Peet, 1999:131) As abstract as this is, that tyranny of globalizing discourse is distinctly in evidence in many of examples of the failures of development. The examples above also help to frame the enquiry below. The paper will look first at the historical background of the parallel evolution of both development and human rights. From that foundation it will then examine some of the law and standards affecting development and its relation to human rights.

10 Figure 1.1 – from http://www.defensiblespace.com/book/illustrations.htm 11 See, for example, http://www.umsl.edu/~keelr/010/pruitt-igoe.htm,

http://en.wikipedia.org/wiki/Pruitt-Igoe, and http://bacweb.the-bac.edu/~michael.b.williams/Pruitt-Forum.html

12 See Goodman, 1971 for a brief history of those resistance efforts in US cities.


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3 Historical Foundations The modern history of development and rights began in parallel during and after World War II. While there were some points of linkage, the fact that there were so few led to our current compartmentalization of rights and development – a compartmentalization which led James Wolfensohn, the former president of the World Bank, to say in 2004:

“. . . to some of our shareholders the very mention of the words human rights is inflammatory language. It’s getting into areas of politics, and into areas about which they are very concerned. We decided just to go around it and we talk the language of economics and social development.” (Wolfensohn, 2005: 21)

On the one hand, then, we have engineers, economists, and social scientists and on the other lawyers and philosophers, each with their own strategies and actions – the former focusing on economic policy and infrastructure development and the latter focusing on political and legal reform (Robinson, 2005:27). As Wolfensohn’s statement implies, those in the development sector tend to view their actions as apolitical, objective, scientific, technical and value-neutral. While there are ample illustrations, including those above, to indicate that this view is mistaken, the development sector continues to view the world of rights as one of abstraction, constantly shifting political positions, subjective, relative and value-laden. A world to be avoided if work is to be completed on time and on budget. It is little wonder then that the World Bank, the IMF and Bechtel and its subsidiary companies were blind-sided by the reaction to the privatization of water in Cochabamba. These compartmentalized positions seem to be an inevitable outcome of their parallel histories. 3.1 The Evolution of Modern Development In addition to the battles surrounding post-war urban renewal, the Marshall Plan, at a far larger scale, for the renewal of Europe was one of the economic forces leading to a post-colonial redefinition of development. This marks the beginning of modern development theory. From that point theory has taken us through 4 ‘Development Decades’, a war against poverty, urban development, a basic needs approach, a capabilities approach and, with it, the human development approach, sustainable development and post-development. Economic Development – Truman, in his inaugural address to Congress in 194913, had three main points he wanted to advance: the support of the UN, the continued support of the Marshall Plan, and the development of NATO. To these a fourth point was added, essentially as a public relations exercise (Wood, 1986:45-47, Rist, 2002:70-72). Truman’s ‘Point Four’ defined much of the world as ‘underdeveloped’ and he proposed to bring development to these parts of the world through technical assistance. ‘Greater production’, he said, ‘is the key to prosperity and peace.’ Underlying that lofty motivation, the intent of technical assistance “was to pave the way for private capital (Wood, 1986:47). A year later, in his State of the Union address he made the point once again:

“It is more essential now than ever, if the ideals of freedom and representative government are to prevail in these areas, and particularly in the Far East, that their peoples experience, in their own lives, the benefits of scientific and economic advances. This program will require the movement of large amounts of capital from the industrial nations, and particularly from the United States, to

13 See http://www.bartleby.com/124/pres53.html, particularly paragraphs 44-57.


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productive uses in the underdeveloped areas of the world. Recent world events make prompt action imperative.”14

With that, development was defined in terms of economic prosperity and its model for prosperity was the United States. (Sachs, 1999:3-23, Perry, 1996:231) Where development, then, was change towards a favourable goal, that goal was a Western pattern of development, capitalism and, certainly, consumption. Those countries and cultures that failed to come up to that standard were considered to be ‘underdeveloped’. Its measure was income and production. Truman was not the only one espousing this development agenda. A similar approach appears in the Preamble of the UN Charter of 1947 with the intention to achieve social progress and an improved standard of living by employing “international machinery for the promotion of the economic and social advancement of all peoples”. The First Decade of Development, a U.S. initiative15 launched in 1961, continued this post-war vision of development with a focus on poverty alleviation through economic development and technical aid.16 This was followed by four other Development Decades which reflected the evolution of development theory outlined below. This led to the current Millennium Development Goals (MDGs) of the UN which have expanded the concept of development beyond its economic base to include poverty alleviation, education, gender equality, health, environmental sustainability and economic partnerships mainly with the private sector.17 Although the UN and the World Bank have moved beyond the economic development model, it remains a core principle of the World Trade Organization. The 1994 agreement establishing the WTO states that their trade relations:

“. . . should be conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand, and expanding the production of and trade in goods and services, . . .”18

The economic model continues to underpin much of the discourse about development in its evolution through the war against poverty, the basic needs approach, the human development indices and sustainable development.

14 See Truman’s State of the Union Address, 04 January 1950

(http://www.thisnation.com/library/sotu/1950ht.html) 15 See President Kennedy’s Inauguration Speech of 20 January 1961 in which he stated: “To those

peoples in the huts and villages across the globe struggling to break the bonds of mass misery, we pledge our best efforts to help them help themselves, for whatever period is required--not because the Communists may be doing it, not because we seek their votes, but because it is right. If a free society cannot help the many who are poor, it cannot save the few who are rich.” Available at http://www.let.rug.nl/usa/P/jk35/speeches/jfk.htm

16 See http://daccessdds.un.org/doc/RESOLUTION/GEN/NR0/167/63/IMG/NR016763.pdf?OpenElement for the resolution of the General Assembly, “United Nations Development Decade: A programme for international economic co-operation”. The resolution for the Second Development Decade is available at http://daccessdds.un.org/doc/RESOLUTION/GEN/NR0/348/91/IMG/NR034891.pdf?OpenElement. The Third at http://www.un.org/documents/ga/res/33/ares33r193.pdf (in which the New International Economic Order arises). The Fourth Development Decade resolution is available at http://daccessdds.un.org/doc/RESOLUTION/GEN/NR0/565/88/IMG/NR056588.pdf?OpenElement

17 See http://www.un.org/millenniumgoals 18 See “Agreement Establishing the World Trade Organization” at the WTO

website, http://www.gatt.org/


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War Against Poverty – in order to measure how well we were doing in the ‘war against poverty’19, there had to be additional measures beyond per capita income. With Robert McNamara at the helm of the World Bank20, the emphasis of development shifted to the eradication of poverty. In his address to its Board of Governors in September of 1973 he said,

“We should strive to eradicate absolute poverty by the end of this century. That means in practice the elimination of malnutrition and illiteracy, the reduction of infant mortality, and the raising of life-expectancy standards to those of the developed nations.” (McNamara, 1973:15)

In this framework subsistence farmers were rendered poverty-stricken by definition because their per capita income was negligible compared to the benchmark of the United States and other Western nations. In this circular argument, the problem is poverty (low income) and the solution is therefore economic development which, in turn is measured by per capita income in a given nation.

“. . . wherever low income is the problem, the only answer can be ‘economic development’. There was no mention of the idea that poverty might also result from oppression and thus demand liberation, or that a culture of sufficiency might be essential for long term survival, or, even less, that a culture might direct its energies towards spheres other than the economic. No, as it was in the industrial nations so it was to be in all the others: poverty was diagnosed as a lack of spending power crying to be banished through economic growth. Under the banner of ‘poverty’ the enforced reorganization of many societies into money economies was subsequently conducted like a moral crusade. Who could be against it?” (Sachs, 1999:9)

Jacobs referred to ‘conquering powers’ and, in a similar vein, Sachs referred to a ‘moral crusade’. Both urban renewal and the global economic development agenda are typically battles fought and won by the powerful against the powerless. As in traditional forms of warfare, the powerless become the collateral damage – the civilians in time of war. Where civilians in time of war have the theoretical protection of the Geneva Conventions, there seems to be little protection for victims of the development agenda. Echoing Jacobs on the planners of urban renewal, Perry described the development agenda:

“. . . given the history of the last half-century of development programs, policies, institutions, and interventions, and most tellingly, given the empirical record of the effects of development upon precisely those populations on whose behalf the entire “development apparatus” is supposed to have been called into being – development is anything that any community should want to have happen to it, let alone something to be asserted as an internationally guaranteed legal right.” (Perry, 1996:230)

Indeed, that development agenda has itself developed and mutated since the Marshall Plan ushered in a new approach to development and recovery. In every city, the economic pressures on urban land that give rise to gentrification and intensified uses, beautification schemes as well as the external pressures of major events such as Olympic Games, G8 or WTO conferences the poor are being forcibly removed from their homes and businesses by the pressures of urban development and modernization. Modernization, it was theorized, was achieved through economic growth. Economic growth was most efficiently

19 This was the term Lyndon Johnson used for legislation he introduced in his State of the Union address

in January of 1964. Robert McNamara was then his Secretary of Defense. 20 McNamara was President of the World Bank from 1968 to 1981.


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achieved through industrialization, and industrialization21 needed the transportation networks, labour pool and capital concentrated in cities. The city itself became a symbol of the modern. Urban Development – In 1960 Bert Hoselitz, the University of Chicago economist looked at the relationship between cultural change and economic development. Expanding on Adam Smith’s observation that productivity increased with social divisions of labour, he put forward the theory that modernization of underdeveloped economies would be supported by social deviance – the “culturally marginal individual who originated important new forms of economic activity.” (Peet, 1999:79) It was in the urban centres of the West where these class and social barriers were broken down to allow for that ‘spirit of difference’ that could not arise in the traditionalism of the countryside. The city, then, was the geographic space where this could happen – not only in the West but in underdeveloped countries. It is estimated by UN-Habitat that in 2007 we marked the ‘historic beginning of a new urban era’ where “50 percent of the human population living in the world’s towns and cities, we are at the dawn of a new, irreversible urban era. This change is historic and it is irreversible.” (UNCHS, 2007:11) This rapid urbanization has also meant that a growing segment of the population moving to cities will find housing on the streets or in the slums. In what the UN calls ‘the urbanization of poverty, one-sixth of the planet’s population now live in slums. It is estimated that if nothing is done that population will double in the next 25 years. (UNCHS, 2003). It is in the cities of the world, then, where these conflicts of development and rights will be most frequent and contested. Cities are perpetually in development with new buildings, new roads and infrastructure and with housing, both informal and formal. As the growth in urbanization continues, these conflicts will worsen22. UN-Habitat points out that this growth in slums is “fuelled by a combination of rapid rural-to-urban migration, spiralling urban poverty, the inability of the urban poor to access affordable land for housing and insecure land tenure (UNCHS, 2003).” These latter two factors concern urban planning and its failure to respond to urbanization. In turn that failure of planning exacerbates these conflicts of rights, the most obvious example of which is the forced eviction of the poor from cities. In addition to urbanization, the effect of cities on a nation’s economy is growing. The urban economy drives the nation-state as well as the global economy (Sassen, 2000:5). The megalopolis or mega-city is

“. . . home to just 10 percent of total world population, 660 million people, but produce half of all economic activity, two thirds of world-class scientific activity and three quarters of global innovations.” (Florida, 2006)

The internationalization of the urban economy creates greater competition for space – both land and access to space which is increasingly privatized – and for investment (Sassen, 2000:60). In addition to such uneven competition, there is growing inequality as the urban economy shifts to services from production and manufacturing. The growth of low-wage entry level service sector employment creates significant social impact that is either ignored or poorly addressed in urban planning which, in turn, further contributes to inequality –

21 The equivalency of civilization/modernization with industrialization was an idea that coincided with

the Industrial Revolution itself. In the 1820s Jean-Baptiste Say theorized that the passage from the savage hordes to higher civilization was “characterized by industrial production that allows a great variety of needs to be met.” (Rist, 2002:41) See also Escobar, 1995:39

22 The conflicts are further strained by cities vying for mega-events – Olympic Games, Expos, international conferences such as APEC, WTO, and G-8. See COHRE (2007) for a report on the effects of such events on housing. http://www.ruig-gian.org/ressources/Report%20Fair%20Play%20FINAL%20FINAL%20070531.pdf


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economic, social and political. Our understanding of rights will be sorely tested and if these principles are up to the test, we will see the result first in our cities. Basic Needs – the measure of development became more refined and related to social development as well as economic. As the Cocoyoc Declaration put it:

“Our first concern is to redefine the whole purpose of development. This should not be to develop things but to develop man. Human beings have basic needs: food, shelter, clothing, health, education. Any process of growth that does not lead to their fulfilment - or, even worse, disrupts them - is a travesty of the idea of development.”23

Out of these initiatives came the ‘basic needs approach’ to development. Further there was a link made between development, economics and the environment as well as a link between development and rights. The former would resurface in the Brundtland Report on sustainable development and the latter would evolve into the Declaration on the Right to Development. McNamara’s goal of the eradication of poverty24 by the end of the 20th century was not realized. However, the goalposts moved to 2015 in the Millennium Development Goals. The first of their 8 goals is to “halve, between 1990 and 2015, the proportion of people whose income is less than $1 a day.”25 Like McNamara’s other goal of reducing infant mortality, the 4th MDG is to “Reduce by two thirds the mortality rate among children under five”. Halfway to the target date, it appears unlikely that any of the MDGs will be met. Capabilities Approach – Another important definition of development linked it to rights and freedom. This was in work of Amartya Sen (1999) and Martha Nussbaum (1997). Rather than looking at the resources necessary to stay alive – a basic needs approach26 – they extended these development indicators to consider the differing capabilities that individuals have in “their capacity to convert income and commodities into valuable achievements. For example, a disabled person may require extra resources (wheel chairs, ramps, lifts, etc) to achieve the same things (moving around) as an able bodied person.” (Clark, 2005:3) As such, development becomes “a process of expanding real freedoms that people enjoy” (Sen, 1999:36) The link between economic development and freedom was an important step in moving beyond the previous economic indicators of development and progress to one that related directly to the language of rights. Nussbaum began an open-ended list of capabilities which, when supported by the state, can act as indicators of development: life, health, bodily integrity, thought, emotions, critical reflection, affiliation (friendship and

23 The Cocoyoc Declaration (1974) came out of a symposium organized by the UN Environment

Programme (UNEP) and the UN Conference on Trade and Development (UNCTAD) in Cocoyoc, Mexico in October 1974. Text is available online at http://www.southcentre.org/publications/conundrum/conundrum-06.htm or pp. 893-901 in International Organization, 29:3, Summer, 1975.

24 See McNamara’s address to the Board of Governors of the World Bank, in Nairobi, Kenya on 24 Sept 73. Available at: http://siteresources.worldbank.org/EXTARCHIVES/Resources/Robert_McNamara_Address_Nairobi_1973.pdf It was here that McNamara made the distinction between relative and ‘absolute poverty’ – “. . . a condition of life so degraded by disease, illiteracy, malnutrition, and squalor as to deny its victims basic human necessities.”

25 Millennium Development Goals Report 2006, http://mdgs.un.org/unsd/mdg/Resources/Static/Products/Progress2006/MDGReport2006.pdf

26 “Basic needs were defined in terms of food, housing, clothing, and public services, like education and healthcare and transport.” (Emmerij, 2007:41) GDP projections would be made to determine what the national income must be if the poorest quintile were to see these basic needs met. Sen argued that this “lapses into a form of ‘commodity fetishism’” (Clark, 2005:2)


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respect), relation to other species, play and control over one’s environment (political and material) (Nussbaum, 1997:287-88). Human Development – In moving beyond GDP and income as indicators of development progress, the Human Development Index (HDI) used by the UNDP since 1990 began to consider human capital rather than simply investment capital (ul Haq, 1995:3). The variables it measured were few:

“Initially, life expectancy was chosen as an index of longevity, adult literacy as an index of knowledge, and GNP per capita adjusted for purchasing power parity (PPP) as an index of access to a multiplicity of economic choices” (ul Haq, 1995:47)

Although underpinned by the measure of income, the HDI now added concern about available choices and access to knowledge. Amartya Sen, who worked with ul Haq on the HDI referred to it as a ‘vulgar measure’ to which his friend replied “Yes, I want a measure that is just as vulgar as GNP except it is better.” (Wallace, 2004:5) And, indeed, it is better. Peter Uvin illustrates this difference between basic needs and human development well:

“A few months into the refugee crisis in Zaire that began in the summer of 1994 after the Rwandan genocide, a colleague went to Goma for an assessment of the health and nutrition situation in the camps. Upon return, he told me that nutrition intakes in the camps were high, as were vaccination rates and access to health care. As a matter of fact, he added proudly, these rates were better than they had been before people fled their homes. As I put down the phone, I realized that my colleague had just described the basic needs and even the ‘human development’ approach as implemented by the main development actors: great attention had been paid to health care, nutrition, vaccinations, and the other so-called basic, human dimensions of development. If that is true, then, according to the progressive vision of development then in vogue, people in these camps were ‘more developed’ than before. We intuitively feel that this is nonsense, of course. When people are deprived of their freedom, live in constant fear, cannot move or work as they wish, and are cut off from the communities and the lands they care about, development has emphatically not taken place.” (Uvin, 2004:123)27

Uvin’s point about the Goma refugee camps is similar to Jane Jacobs’ description of the effect of urban renewal on communities. It is similar to the sense of fear and loss felt by the evicted in Harare28, Phnom Penh29 or any other city where the poor become victims of development. The same applies to communities and cultures forced to leave their land by the development of dams or other mega-projects.30

27 In a similar perversion of logic, Barbara Bush, after a visit to the Houston Astrodome where thousands

of New Orleans evacuees were temporarily housed, said: "So many of the people here, you know, were underprivileged anyway, so this is working very well for them.” See New York Times 07 SEP 2005 “Barbara Bush Calls Evacuees Better Off”.

28 Operation Murambatsvina (Drive Out Filth) left 700,000 people homeless in the winter of 2005 (see http://www.citymayors.com/society/zimbabwe_evictions.html)

29 Since 2005 as pressure on land development increased thousands of residents have been evicted from their homes. See http://hrw.org/english/docs/2006/08/02/cambod13889.htm

30 Such as the Three Gorges dam in China (see http://www.threegorgesprobe.org/tgp/index.cfm), the Pak Moon dam in Thailand (see Bangkok Post, 02 MAY 2000 “The Dark Side of Development” http://www.bangkokpost.net/outlookwecare/020500_Outlook01.html ) or the Narmada dam (see http://www.narmada.org/). In addition to other organizations funding similar projects, the “World Bank has supported the construction of 538 large dams in the world, which have caused the displacement of 10 million people.” (http://www.nadir.org/nadir/initiativ/agp/free/colombia/puebla/resistance.htm)


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Sustainable Development – another major step in the evolution of the term development was brought to the world’s attention by the Brundtland Report of 1987, otherwise known as the Report of the World Commission on Environment and Development (WCED)31. The concept of development now was to include the environment as a whole as well as future generations. Sustainable development was defined in the Report as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs.” It is a concept now that has been diluted substantially through overuse and faulty interpretations. Beyond that, though, there have many criticisms of the concept since its appearance in 1987, among them:

• it continues to treat nature as a ‘resource’ thus continuing to make the distinction between human economic activity and the ‘resources’ that create that wealth;

• it makes a false distinction that human beings are somehow separate from those ‘resources’

• that it depends on economic growth to address disparity – “A necessary but not a sufficient condition for the elimination of absolute poverty is a relatively rapid rise in per capita incomes in the Third World.”32 In other words, its foundation continues to build from the economic development model.

• It does little to address the overburdened carrying capacity of the planet thus making the prospect of continued economic growth a far more difficult prospect.

However, despite these criticisms the additional defining criterion for the concept of development must now include, along with economic and social indicators, a range of environmental issues which now include the prospects of climate change33, and environmental as well as distributive justice. Conclusion – as the concept of development evolves so does the grassroots ‘post-development’ resistance to it – a resistance that recognized the mythology surrounding the concept. It promised modernization and a prosperity and instead “acted as a factor of division, of exclusion and of discrimination” (Rahnema, 1997:x) This echoes Gandhi’s point many years before in his arguments with Nehru about the future of India:

“It was not that we did not know how to invent machinery, but our forefathers knew that, if we set our hearts after such things, we would become slaves and lose our moral fibre. They, therefore, after due deliberation, decided that we should do only what we could do with our hands and feet. They further reasoned that large cities were a snare and a useless encumbrance and that people would not be happy in them, that there would be gangs of thieves and robbers, prostitution and vice flourishing in them, and that poor men would be robbed by rich men. They were, therefore, satisfied with small villages.” (in De Feyter, 2001:47)

That vision of the village economy was sidelined to make way for development – Industrialization, urbanization, and modernization – not only in India but throughout the world.

31 The report, known as Our Common Future, is available online at http://habitat.igc.org/open-

gates/wced-ocf.htm 32 Chapter 2, para. 29. (http://habitat.igc.org/open-gates/ocf-02.htm#I) 33 The Stern Report on the economic consequences of climate change (available at http://www.hm-

treasury.gov.uk/independent_reviews/stern_review_economics_climate_change/sternreview_index.cfm) continues to base the motivation for action on the economic cost of inaction. However, it also, particularly because of that focus, forced many organizations to take the prospect of climate change seriously.


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3.2 The Evolution of Modern Human Rights Law While theories of development were evolving, there was something of a revolution occurring in human rights. After a great expansion of the concept of human rights in the late 18th Century with the American and the French revolutions, the idea ‘fell into oblivion’ (Burgers, 1992:448) until immediately before the Second World War when two people put forward ideas that were widely circulated – H.G. Wells and Franklin Delano Roosevelt. In 1939 Wells sent a letter to the Times, attaching to it his Declaration of the Rights of Man. A version of it was also published in his book of that year, The New World Order34 and discussed at length in the Daily Herald in early 1940 by prominent authors, politicians and philosophers. A final draft was published in that newspaper in February of 1940 and subsequently translated into 30 languages and distributed throughout occupied Europe. Shortly thereafter it was republished as The Rights of Man, Or What Are We Fighting For? He argued, as he did in his original letter to the Times, that these are the principles for which the war was being fought. There are 10 articles in the Declaration with editorial commentary. Paraphrasing his more elaborate language, they are:

1. An equal right to food, shelter, and medical care 2. “sufficient education to make him a useful and interested citizen” 3. the right to work 4. the right to buy and sell 5. protection of property 6. freedom of movement 7. time limits on imprisonment without charge (6 days) 8. freedom of information 9. freedom from torture and degrading treatment 10. No treaty adversely affecting these rights shall be binding.

Among the people to whom he sent a draft of the Declaration was Franklin Delano Roosevelt. By the time Wells went on a lecture tour of America in the fall of 1940, it was in wide circulation there (Burgers, 1992:468). With the European war already facing disastrous events – the occupation of France in beginning in May of that year and the Blitz of the UK in September, answering the question, ‘What are we fighting for?’ became urgent. In his State of the Union address the following January, Roosevelt put forward his Four Freedoms as a succinct and potent set of principles to an American public, very resistant to involvement in the war. Interestingly, none of the earlier drafts of his address included this passage. It was a surprise to his speechwriters that Roosevelt added this conclusion to the address:

In the future days, which we seek to make secure, we look forward to a world founded upon four essential human freedoms. The first is freedom of speech and expression -- everywhere in the world. The second is freedom of every person to worship God in his own way -- everywhere in the world. The third is freedom from want -- which, translated into world terms, means economic understandings which will secure to every nation a healthy peacetime life for its inhabitants -- everywhere in the world. The fourth is freedom from fear -- which, translated into world terms, means a world-wide reduction of armaments to such a point and in such a thorough

34 The Declaration appeared in Chapter 10 of his book A New World Order. Available online at

http://www.theforbiddenknowledge.com/hardtruth/new_world_order_hgwells_pt2.htm It was also referred to as ‘The Sankey Declaration’ after Lord Sankey, the chairman of the drafting committee.


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fashion that no nation will be in a position to commit an act of physical aggression against any neighbor-- anywhere in the world. That is no vision of a distant millennium. It is a definite basis for a kind of world attainable in our own time and generation. That kind of world is the very antithesis of the so-called new order of tyranny which the dictators seek to create with the crash of a bomb.35

Despite the terrible circumstances during this period, both Wells and Roosevelt were talking about a world where rights were realized. They were talking beyond fear to hope. Both were concerned not only about civil and political rights but about social and economic rights. For Wells, the first three rights listed – food, shelter, medical care, education and work – are social/economic rights as is Roosevelt’s ‘freedom from want’. Although freedom from want is defined in the text of his address rather more broadly and ambiguously, it “must be understood first of all in the spirit of Roosevelt’s New Deal philosophy: it refers to the responsibility of governments actively to promote the well-being of their citizens.” (Burgers, 1992:469) In August of 1941, when Roosevelt and Churchill met at the Argentia Naval Station on the coast of Newfoundland to sign the Atlantic Charter36, freedom from want and fear were among the points agreed upon. The Atlantic Charter itself became the seed of the United Nations when, 4 months later the 26 allied nations signed the Declaration by the United Nations37 which pledged to uphold the principles of the Charter. In a similar vein to Wells’ Declaration, Roosevelt continued to reinforce his concern for freedom from want in his State of the Union address in 1944 by referring to a ‘second Bill of Rights’ in which “these economic truths have become accepted as self-evident”:

The right to a useful and remunerative job in the industries or shops or farms or mines of the Nation; The right to earn enough to provide adequate food and clothing and recreation; The right of every farmer to raise and sell his products at a return which will give him and his family a decent living; The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad; The right of every family to a decent home; The right to adequate medical care and the opportunity to achieve and enjoy good health; The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment; The right to a good education. (Woolley & Peters, 2007)

35 Available online at: http://www.wwnorton.com/college/history/ralph/workbook/ralprs36b.htm 36 See http://usinfo.state.gov/usa/infousa/facts/democrac/53.htm Among the 8 points agreed

between them were the right to self-determination of peoples (3), economic cooperation, labour standards and social security (5) and freedom from fear and want (6).

37 See http://www.civicwebs.com/cwvlib/constitutions/un/e_united_nations_declaration_1942.htm


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By the time of Roosevelt’s death just before the victory in Europe and the death of Wells a year after the surrender of the Japanese, the groundwork had been laid for making a Bill of Rights universal. In the summer and fall of 1944, at the Dumbarton Oaks mansion in Georgetown, delegates from the United States, the United Kingdom, the Soviet Union and China gathered to draft a charter for the United Nations. That same summer, representatives of the 44 Allied countries gathered at Bretton Woods resort in New Hampshire to establish the institutions of a new international economic order – what would become the World Bank and the International Monetary Fund – in the hope that economic security would support a lasting peace. For many of the participants, then, there was a strong link between peace, economic security, democracy and social/economic rights. Despite that, at Dumbarton Oaks there was little talk of human rights. Neither Stalin nor Churchill was going to champion this cause. For the latter, although one of the principles he agreed to in the Atlantic Charter was self-determination, the issue of status of British colonies continued to be a point of friction as the draft of the UN Charter was being developed. “The British suspected, not without reason, that the United State’s anticolonial policy was driven in part by its own economic and military aims.” (Glendon, 2001:6) As Sachs points out about Truman’s post-war plans about international development:

“. . . it presented the world as a collection of homogenous entities, held together not through the political dominion of colonial times, but through economic interdependence. . . . Development was the conceptual vehicle that allowed the USA to behave as herald of national self-determination while at the same time founding a new type of world-wide domination: an anti-colonial imperialism.” (Sachs, 1999:5)

One of the delegates to the Bretton Woods conference was Carlos Romulo, a member of the Philippines government in exile. He commented that the big three powers “’had already set themselves up to be the ones to decide what the economic pattern of the postwar world should be’. He told reports that the economic arrangements made by the Allies would one day have to be re-examined in the light of the needs and ideals of developing nations.” (Glendon, 2001:11) The fact that he, and representatives from all other smaller nations, could not even get access to the Dumbarton Oaks conference helped to exacerbate his concerns – concerns that would be raised once again with the push for the right to development. While the American delegation was promoting the inclusion of human rights, there were suspicions amongst their fellow delegates at Dumbarton Oaks. Most common among these suspicions was that any universal recognition of such rights would constitute a great deal of potential interference in a nation’s business. The American proposal, then, to include a statement on the respect for human rights in the Charter was firmly resisted by both the UK and the Soviet Union. In a similar vein, a “Chinese proposal to write into the Charter the principle of equality of all races (reminiscent of the Japanese proposal at the Paris Peace Conference of 1919) had even been opposed by the United States”. (Burgers, 1992:474)38. The end of the war brought about significant changes to the cause of rights, to the obligations of the State and to the limits of State sovereignty. In addition to the Marshall Plan which ushered in the new theories of development, the Nuremberg trials established limits on State sovereignty, the drafting of the UN Charter and the drafting of the Universal Declaration of Human Rights established a common standard for the limits of the power of the State over its citizens. Prior to these events, the sovereignty of the state was inviolable.

38 The Civil Rights Act of 1964, outlawing segregation in schools and public places was still 20 years

away. The United States had its own problems with racial equality that made the inclusion of such a principle difficult for the US delegates.


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With these post-war standards and principles set for human rights and for crimes against humanity, that sovereignty began to erode. The proposal of holding a trial for the German war criminals was pushed by the United States. Churchill was opposed to such a plan, calling for a list of “(Nazi) grand criminals, who may be shot when taken in the field”39. Truman and Justice Jackson, the chief prosecutor for the US at the trials, continued to demand a fair trial “to determine the innocence or guilt of the accused after a hearing as dispassionate as the times and horrors we deal with will permit and upon a record that will leave our reasons and our motives clear.”40 Stalin assumed these would be show trials ending in summary execution and agreed to hold them. They began in November of 1945 and ended in October of 1946. As a result of these trials the UN developed, in 1950, the Nuremberg Principles which set out principles of international law that for crimes against humanity there can be no immunity given to a head of state or to individuals claiming to be acting pursuant to the orders of his Government.41 Here, then, was a new limit on the extent of the power of the state. In June of 1945 the original signatories to the ‘Declaration by the United Nations’ met in San Francisco to complete the draft of the UN Charter. A great deal of pressure was put on the Big Three by some 40 NGOs and the ‘smaller nations’ to include the recognition of human rights in Charter42. Even as the conference was underway in May, reports were beginning to come out of Europe about the concentration camps. It was a grim and shocking argument for the need of such recognition. By the signing of the Charter on the 26th of June, human rights were included in the Preamble and in several other Articles43. The Charter, though, did not spell out what those rights are. That work had yet to be done – and further to Article 68 of the new Charter, at the first meeting of the Economic and Social Council immediately following the closing session of the San Francisco conference, a Commission on Human Rights was formed. At the request of President Truman, the former First Lady, Eleanor Roosevelt joined the US delegation at the first session of the General Assembly in London in January 1946 when they authorized the Council to prepare "a preliminary draft International Bill of Human Rights"44 On her return to New York she was asked by the Economic and Social Council to join a commission to make recommendations about the permanent Commission on Human Rights. Their recommendation was that the Commission write an international bill of rights. Its first session was held in January 1947. Eleanor Roosevelt was elected chairwoman. With the Cold War looming, there seemed to be a very narrow window of opportunity in which to achieve an agreement. Divisions – there were a number of conflicts brewing with the drafting of this document; only some were due to the Cold War politics:

• Cultural imperialism – human rights is a Western concept and the drafting of the document was dominated by that thinking. It’s applicability to other cultures is suspect at best

39 John Crossland “Churchill: execute Hitler without trial”, Sunday Times, 01 January 2006 – online at

http://www.timesonline.co.uk/tol/news/uk/article784041.ece 40 Interview with Geoffrey Robertson, “The Nuremberg Legacy: Pinochet and Beyond”, 15 September

2000, United States Holocaust Memorial Museum http://www.ushmm.org/conscience/analysis/details.php?content=2000-09-15&menupage=International+Law

41 See “Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal” at http://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/7_1_1950.pdf

42 See Humphrey, 1949:354, Korey, 1998:20-50 43 Articles1.2, 1.3, 13.1, 55, 56, 62, 68 and 76. 44 See http://www.unhchr.ch/html/menu6/2/fs2.htm


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• Theory v practice • Enforcement – related to the problem of theory v practice • Powerful nations (the Big Three) v weak or small nations • National sovereignty • Civil/political v economic/social/cultural rights

All of these conflicts, in some way, affect the arguments about rights and development now. Since they have abetted the framing of current arguments and perceptions, it is useful to see that the drafting committee went through them as well and came out the other side, not unscathed but unbowed. Western bias – As Uvin points out, the ‘Western-centrism’ conflict will never be resolved (Uvin, 2004:31)45 and it won’t be here, but there are a few points in the drafting process that should be recognized. The drafting committee was culturally diverse but dominated by 4 personalities, P.K. Chang, the Chinese philosopher/diplomat, Charles Malik, the Lebanese philosopher, René Cassin, the French legal scholar (and 1968 Nobel Peace Prize laureate), and the Committee’s chairman, Eleanor Roosevelt. In addition they sought further diversity in the understanding of rights across cultures. The UN Educational, Scientific and Cultural Organization (UNESCO) undertook to seek the opinions of Asian and Islamic scholars as well as those from Europe and the Americas (Ishay, 2004:219, Glendon, 2001:73-78). To that end they formed a ‘philosopher’s committee’ to study comparative rights traditions. Their survey brought forward a broad spectrum of interpretations of these concepts of rights and duties including remarks from Mahatma Gandhi, Aldous Huxley, Teilhard de Chardin and many others. One of the survey respondents, the Indian political scientist, S. V. Puntambekar, wrote about Hindu philosophy in terms that echoed the 4 Freedoms put forward before the war by President Roosevelt:

“. . . ten essential human freedoms and controls or virtues necessary for the good life: five social freedoms (‘freedom from violence, freedom from want, freedom from exploitation, freedom from violation and dishonor and freedom from early death and disease’) and five individual virtues (‘absence of intolerance, compassion or fellow-feeling, knowledge, freedom of thought and conscience, and freedom from fear, frustration or despair’) (Glendon, 2001:74)

This was certainly the kind of response that was bound to support the universalist thinking necessary for the drafting of such a document. However there were other points that proved to be more difficult to incorporate in the process. In a letter to UNESCO (through Julian Huxley), Gandhi raised the issue many other respondents wanted considered – duty:

45 Uvin (2004:17-31) outlines 6 different arguments that address the charge of western bias – the legal

argument (particularly since the Vienna Declaration in 1993, all nations have agreed to the standard); weak cultural relativism (the existing structure allows for variations in implementation); affirmation (yes, it’s Western. So what? So is Newtonian physics. That doesn’t make it inapplicable in Asia); Empiricism (identifying in various cultures those elements that concur with human rights norms – the approach often taken in the drafting); philosophical (affirming a fixed human nature – the capabilities approach of Nussbaum and Sen argue this position); incremental (without declaring human rights as a universal, it looks for means to bring about incremental change to narrow the gap between human rights norms and current practice – often an approach taken by development practitioners).


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“I learned from my illiterate, but wise, mother that all rights to be deserved and preserved came from a duty well done. The very right to live accrues to us only when we do the duty of the citizenship of the world. From this one fundamental statement perhaps it is easy enough to define the duties of man and woman and correlate every right to some corresponding duty to be first performed. Every other right can be shown to be usurpation hardly worth fighting for.”46

In the drafting committee, P.C. Chang raised a similar point. In a useful illustration of the fundamental differences in perception, Cassin had prepared a draft of the text that would appear in Article 1 “All men are brothers. Being endowed with reason and members of one family, they are free and equal in dignity and rights.” The call to ‘reason’ was certainly related to the Enlightenment background from which many of these ideas had evolved. Chang, when this was brought to the full drafting committee commented on what he saw missing in that text:

“What he had in mind, he said, was a Chinese word that in literal translation meant ‘two-man mindedness’, but which might be expressed in English as ‘sympathy’ or ‘consciousness of one’s fellow men. The word was ren, a composite of the characters for ‘man’ and ‘two’. A word emblematic of an entire worldview and way of life, ren has no precise counterpart in English. To Cassin, it would surely have evoked Rousseau’s notion of compassion, but that word, too, fell short of the mark. Chang’s suggestion was accepted, but his idea was rendered awkwardly by adding the words ‘and conscience’ after ‘reason’” (Glendon, 2001:67)

Although the word ‘conscience’ was an inadequate term to convey the sense of what Chang meant, this attempt to translate some of the Asian concepts of duty and community were made47. John Humphrey, the Canadian lawyer who had recently been appointed Director of the Secretariat’s Division on Human Rights and who was working on the preliminary draft of the document, recalled that Chang advised him to, “. . . put my other duties aside for six months and study Chinese philosophy, after which I might be able to prepare a text for the committee. This was his way of saying that Western influences might be too great . . .” (Humphrey, 1983:403) It is clear that they were aware of this issue, but it never did get resolved, although there were indications of the attempts to overcome this conflict in ‘the self-determination of peoples’ in the Covenants and in the Right to Development but, like the translation of the Chang inclusion of ‘two-man mindedness’ as ‘conscience’, it isn’t a satisfying resolution. This was further reflected in the terminology of rights itself. The civil and political rights coming from Locke and the Enlightenment are termed ‘first generation rights’ (Alves, 2000:496), while the economic and social rights are termed ‘second generation’ and solidarity or group rights are termed ‘third generation’. This temporal progression of rights, beginning with Locke, is itself an expression of that Western bias favouring the tension between the autonomous individual and the State. The Buddhist cultivation of selflessness and the Confucian sense of duty to the unity and harmony of society do not view the claims of the individual against governing authorities to be the central issue of social behaviour. Though such ideas predate Locke and the Enlightenment, they have only come to be included in the rights language by the West in these post-war discussions and are viewed as second or third generation rights. 46 Volume 97 (27 Sep 1947 – 04 Dec 1947) of the Collected Works of Mahatma Gandhi, “82. Letter to

Julian Huxley” available online at http://www.gandhiserve.org/cwmg/VOL097.PDF 47 A better sense of the term might be expressed in Michael Ignatieff’s book, The Needs of Strangers.


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Theory/practice – Given that this document concerned the establishment of principles for, as Cassin put it, “the fundamental unity of the human race.” (Glendon, 2001:39), there were some on the committee, particularly Malik and Chang, who needed to resolve some of the abstract concepts behind such a document – the nature of the person, the difference between society and the state, the tension between the individual and the state. Others, such as Hansa Mehta, were impatient with these philosophical indulgences. Mehta, along with the Australian delegate, Colonel William Hodgson took a far more pragmatic approach to the issue and, as a result were far more concerned about the enforcement mechanism. (Humphrey, 1983:401, Glendon, 2001:38) This split between theory and practice is a constant tension in all disciplines and it is certainly in evidence wherever ideas have to be implemented in the field. Those doing the implementation often overlook principles for the sake of getting things done. Those engaged in the development of principles don’t wish to see them compromised – as they always are – by the multitude of variables holding sway in the field. In the drafting of the Declaration, this tension was between the words and their implementation/enforcement. If they aren’t enforceable can they mean anything at all? With all the papers, reflections and analyses that were done for the 50th anniversary of the Declaration, it is clear that, while the international enforcement mechanisms are still very weak, the Declaration itself has gained in significance as a moral force over those 50 years. The proposals that Mehta and Hodgson put forward – an international human rights court and a UN monitoring agency that could receive petitions from individuals – still have a relatively weak presence in the field. However, the principles of the Declaration itself have been applied by other means than the courts and the power of the State. Enforcement – When the implementation group presented their proposal to the full committee that an international human rights court be formed, the Soviet as well as the Yugoslav delegate protested that this was tantamount to a world government. Such a proposal would mean that “the country that was strongest economically would have complete supremacy and would likewise exert a preponderant political influence.” (Glendon, 2001:95) The States themselves, they argued, should be the enforcing parties. As important as enforcement was – and it was considered at length by one of the three subcommittees – as of the 50th anniversary of the signing of the Declaration, there had still been little concrete action48. Bayefsky pointed out that, even at the level of national reporting, in August of 1998 there were 1100 overdue reports (Bayefsky, 1999:262). As enforcing parties, then, the member States have been less than forthcoming in their reporting much less their enforcement. That is still the case. National sovereignty – even at a theoretical level there were concerns about the erosion of state sovereignty. For example, there were ideological arguments about the distinction between ‘society’ and the ‘state’ with the Soviet delegates taking the position that they are one and the same. At a more pragmatic level, in addition to any proposed enforcement mechanisms, state sovereignty was a sticking point with regard to the responsibility for the protection of rights. Malik and others were adamant that the language reflect that it was not only the State acting as guarantor of rights but “people and groups above and below the national level.” (Glendon, 2001:113) A second point on sovereignty concerned what

48 When the Covenant on Political and Civil Rights went into effect in 1976, individuals had the

opportunity to file complaints with the UN – now to the Human Rights Council. See http://www.ohchr.org/english/bodies/chr/complaints.htm


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Cassin referred to as ‘international’ rights – freedom of movement, asylum and the right to a nationality. All of these could erode the sovereignty of the state49. Soviet Union, UK and US v weak or small nations – As with the Dumbarton Oaks meetings before the end of the war, the deliberations about the Declaration tended to run roughshod over the concerns of less powerful nations, particularly those that were struggling at that time with gaining independence from colonialism (Glendon, 2001:88) and trying to establish (or re-establish in France) functional democracies. Under such circumstances, the support of the international community was actively sought. For the Big Three, there were two prevailing issues: exceptionalism and using rights as an ideological truncheon against each other. Britain’s concern, as the dominant colonial power remaining, had something of a conflict of interest. Roosevelt expressed the prevailing American attitude of relative indifference, “because, except for a few minority groups, the people of our country don’t feel the need for protection” (Glendon, 2001:88) Civil/political v economic/social/cultural rights – In part this was an ideological struggle that arose out of the Cold War, with the two main opponents – the Soviet Union and the United State – attacking each others weaknesses; the US attacking the Soviets on their lack of civil and political rights and the Soviets attacking the US on the inability of the market to meet the basic needs of its poorest citizens for education, health, work, and housing – the economic and social rights. Of course they took the opportunity to expand that to the very public history of racism in the US (Glendon, 2001:93,100) In his recollection of the drafting process, John Humphrey pointed out:

“It is by no means certain that economic and social rights would have been included in the final text if I had not included them in mine. There was considerable opposition in the Drafting Committee to their inclusion. Nor were they included in the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950.” (Humphrey, 1983:407)

However, since the Australian Foreign Minister, H. V. Evatt, had already been arguing for the inclusion of economic rights in the UN Charter (Evatt, 1946:4), there was certainly some additional support for their inclusion in the UDHR. Article 55 of the Charter reflects the Australian’s efforts in the recognition of its importance. The fact that the signatories to the Charter had already agreed on the importance of economic and social issues suggested that these concepts would not be ignored in the drafting of the declaration on human rights by one of the most important Commissions of the Economic and Social Council. Universal Declaration Humphrey echoed Roosevelt in the understanding that political and civil rights had little meaning without economic and social rights (Humphrey, 1983:407). In her regular newspaper column, My Day, she wrote on V-E Day in May of 1945, only weeks after her husband’s death in office:

“Europe is in ruins and the weary work of reconstruction must now begin. There must be joy, of course, in the hearts of the peoples whom the Nazis conquered and who are now free again. Freedom without bread, however, has little meaning. My husband always said that freedom from want and freedom from aggression were twin freedoms which had to go hand in hand.”50

49 For example, the UN High Commission for Refugees through the Convention on Refugees assumes

the responsibility of determining the status of refugees. See http://www.unhcr.org/protect/PROTECTION/3b66c2aa10.pdf, in particular, Article 35

50 Available online at http://www.gwu.edu/~erpapers/myday/displaydoc.cfm?_y=1945&_f=md000019


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The understanding of the indivisibility of these rights was a given. Under the circumstances the drafting of the Declaration was certainly going to reflect that in some way. The Cassin draft of the Declaration was organized on four foundation blocks (Ishay, 2004:222, Glendon, 1998:163) – ‘dignity, liberty, equality, and brotherhood’. These foundation blocks are outlined in Articles 1 and 2. On these blocks are 4 columns: personal liberties (Art. 3 – 11), rights of the individual (Art. 12 – 17), public/political liberties (Art. 18 – 21), economic, social and cultural rights (Art. 22 – 27). The pediment sitting atop these columns concerns the connections between the individual and society (Art. 28 -30). Foundation Liberties Rights Public liberties ESC rights Society/indivi

dual 1. born free &

equal 2. non-

discriminatory

3. life, liberty, security

4. slavery 5. torture 6. recognition as

a person 7. equal

protection of law

8. effective remedy

9. arbitrary arrest 10. public hearing 11. presumption of

innocence

12. privacy 13. movement 14. asylum 15. nationality 16. family 17. property

18. thought, conscience, religion

19. expression 20. assembly 21. political

participation

22. social security 23. work 24. rest 25. health,

housing 26. education 27. culture

28. social order 29. duties to

community 30. limits of State

Civil/political rights (1st Generation rights) 2nd Gen. rights Although Eleanor Roosevelt carried the legacy of FDR’s ‘freedom from want’ and his 2nd Bill of Rights into the drafting debate and Cassin’s ‘architecture of rights’ is a clear indication of the interdependence of rights and their indivisibility, there were still many objections to the inclusion of ESC rights. Because they were considered by many to be ‘positive’ rights – rights that require action on the part of others (either through the agency of the State or as individuals) – they demanded the resources of the State to honour the obligations entailed by those rights – health care, education, housing, food. For many, this was interpreted as the creation of the welfare state. From the perspective of the West, this was often seen as part of a communist threat51. For many nations, the resources to meet the obligations were simply not there (Glendon, 2001:116). Positive rights, it was argued, cost money, negative rights don’t. A second argument was that CP rights were justiciable and could be addressed by the courts while ESC rights were political in nature and could not. A third argument against ESC rights was that they are not fully feasible. In other words, unlike a right to privacy or against torture, because they demand the extensive use of national resources, they cannot be fully implemented and cannot be accomplished for all. The split – The arguments concerning the justiciability of ESC rights and their progressive realization52 have been made in many quarters. However, in this context, the concern is the effect this has had on the approach taken in the field and by whom. Despite the repeated

51 Current arguments in the US about health care still use the ‘socialist/communist menace’ as a point

of departure. 52 See, for example, the documents of the Open Ended Working Group on the Optional Protocol to

the ICESCR, http://www.ohchr.org/english/issues/escr/intro.htm . See also Sen (2006) for a brief argument that neither justiciability nor full feasibility are necessary conditions for the existence of rights.


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call for the indivisibility of all rights, this persistent language of difference – first and second generation, negative and positive – has led to other distinctions that have served neither the cause of rights nor the cause of development well. While the adoption by the General Assembly of the two separate covenants in 1966 – the International Covenant on Civil and Political Rights (ICCP) and the International Covenant on Economic, Social and Cultural Rights (ICESC) – was a political necessity, it did nothing to support the fundamental principle of the indivisibility of these rights. This split between within the rights environment extended to a split between rights and development. As Tomasevski put it:

“Development and human rights work constitute two distinct areas, where development is devoted to the promotion of economic growth and the satisfaction of basic needs, while human rights work exposes abuses of power.” (quoted in Uvin, 2004:1)

These parallel but completely independent tracks began with the drafting of these early documents on economic development (at Bretton Woods) and on human rights and set a course for each. The ‘rights’ agenda remains the domain of jurists while the ‘development’ agenda is the domain of economists, engineers, or agronomists (Sano, 2000:742, Uvin, 2004:161) In both cases where all solutions are hammers, all problems will be nails. For the abuse of rights the discipline of law will seek solutions in the courts and the courts will narrow the focus on civil and political rights. Issues of poverty are seen to be problems that must be solved by legislatures and policy (often economic policy). On the other hand, the development sector will seek solutions in structural adjustment or meeting industrial energy demands through the building of dams and so on. It can’t be seen as an issue of rights at all. This is reflected in their representative organizations. On the one hand, in the United Nations, the High Commission for Human Rights is typically headed by an international jurist, staffed by lawyers and focused on instruments of international law – from the Universal Declaration to the rights of the disabled – and the UN Development Programme is often headed by an economist53. NGOs – Similarly, representative human rights NGOs such as Human Rights Watch and Amnesty International have traditionally focused on the abuse of civil and political rights. Amnesty was started in 1961 by British lawyer, Peter Benenson. He was motivated by the abuse of civil rights of two Portuguese students. The central focus of Amnesty until very recently has been prisoners of conscience. ESC rights were not part of Amnesty’s campaigns. As they explained:

“Economic, social and cultural (ESC) rights are given the same emphasis in the UDHR as civil and political rights. However, these rights were in many ways a casualty of the Cold War; it was not until the early 1990s that recognition and understanding of ESC rights began to strengthen in response to action by grassroots activists and other civil society actors.”54

As an organization Amnesty did not start working on ESC rights until 200155. In a 2005 report, “Human rights for human dignity: A primer on economic, social and cultural rights”, a connection was made:

53 Louise Arbour, the current High Commissioner for Human Rights is a former Supreme Court judge in

Canada. The current administrator of UNDP, Kemal Dervis, is an economist. 54 From “ESC Rights Defenders”, http://web.amnesty.org/pages/hrd-ESCrights-eng 55 'Report and Decisions of the 25th International Council of Amnesty International', AI Index: ORG

52/001/2002


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“In recent years Amnesty International has broadened its mission in recognition that there are many more prisoners of poverty than prisoners of conscience, and that millions endure the torture of hunger and slow death from preventable disease.” (AI, 2005:5)

Coleridge added to that point some 200 years before:

“. . . ye who weekly catch The morsel tossed by law-forced charity, And die so slowly, that none call it murder!”56

The 2008 campaign of Amnesty International will be focused on “forced evictions, the right to adequate housing for all, gender discrimination in rights to own housing and land, and Indigenous peoples’ land rights.”57 To achieve that goal the campaign “will call for changes to laws [and] policies” to be able to hold those in power to account for violations of human rights. Their focus remains on the law and on the increased justiciability of ESC rights. There are a number of NGOs that have focused their attention on ESC rights in whose footsteps Amnesty and Human Rights Watch have followed. Among them are the Center On Housing Rights and Evictions (COHRE), the Asian Coalition on Housing Rights (ACHR), and Foodfirst Information and Action Network (FIAN). As their names indicate, two of them are focused on housing rights and the third on the right to food, all of which are in Article 25 of the UDHR. What do these organizations do to honour those rights? FIAN – “protest letter campaigns, advocacy and recourse to the law, we exert public pressure in order to hold governments accountable”58 This involves fact-finding missions, policy research and human rights education. COHRE – “works at all levels . . . to resist and prevent forced evictions, strengthen the protection and promotion of housing rights and increase awareness of these fundamental rights as key components of international human rights law.”59 It does this through advocacy, education, fact-finding missions and legal advice. Like FIAN it is not project-orientated but focused more on advocacy and monitoring. The latter function is supported by its Housing and ESC Rights Quarterly publication which publishes current developments in law related to housing and other ESC rights such as water. ACHR – to create a “common forum or facility for NGO’s, professionals and grassroots groups working in Asian cities to exchange ideas, despite an expressed need to share experiences, tackle the large problem of forced evictions in the regions cities, develop opportunities for organisations of the poor and consider their place in city planning.”60 It does this through community organizing, monitoring, savings and credit schemes, exchanges, training and, related to that, something they call the Young Professionals Program61. The intention behind this programme is to “influence professionals and decision makers of the future - to increase understanding of urban poor community and cities amongst professionals so that they have a realistic understanding of how their cities function and are more effective at solving city problems - including those of the poor.”

56 from Religious Musings, A Desultory Poem, Written on the Christmas Eve of 1794. Available online at

http://www.usask.ca/english/barbauld/related_texts/religious_musings.html 57 See ”Amnesty International’s Global Campaign for Human Dignity”

http://web.amnesty.org/library/pdf/ACT350032007ENGLISH/$File/ACT3500307.pdf 58 http://www.fian.org “About” 59 http://www.cohre.org/view_page.php?page_id=28 ‘What is COHRE?’ 60 http://www.achr.net/about_achr.htm 61 See http://www.achr.net/young_professionals.htm


25

Of these three, ACHR is the only one that does not mention international human rights law as one of its core tools in the implementation of rights. In other words, the approach, within the ESC domain is continues to be focused on the courts and justiciability. Development NGOs, such as OXFAM or Habitat for Humanity, until recently, have not talked about human rights as such but about poverty reduction. In 2000 OXFAM committed itself to a rights-based approach to development62. Like Amnesty’s addition of ESC rights, it would seem, as Sano (2000) suggests, that a convergence in what had previously been two parallel tracks – rights and development. Since the mid-70s there has been a growing movement towards international law dealing with this convergence. 4 Human Rights and Development While the UDHR and the Covenants set out a number of fundamental rights, there are more specific principles, agreements and international law that affect development, both its processes and its outcomes. Where this concerns urban development, there are many local level regulations and laws that govern such activities – mainly in the area of building and land use regulations. These, along with master planning directed towards beautification, slum clearance and so on, have a profound effect on the environment63, on rights64 and on democracy65. As important as these local regulations are, they are local and vary substantially from city to city. International human rights law and those institutions that develop and implement it are still the main tools in dealing with this convergence. At present, there is often a wilful ignorance of these documents, if not an outright hostility. Anecdotally, I have seen such responses regularly in a variety of circumstances. In one instance, at a conference of the Association of Community Design in 2005 – an organization predisposed to issues of participation, inclusion and human rights – I asked the audience of practitioners and academics in the fields of architecture, planning and landscape architecture if any of them had ever read any of the UN documents concerning human rights, starting with the UDHR. Of the 120 people there, only three indicated they had some exposure to one or more of these documents. They were certainly sympathetic to the issues but the documents themselves were not critical to anything they did. In another instance at a regional meeting set up by the UN Economic and Social Commission for Asia and the Pacific (ESCAP)66 for NGOs working in community development, housing delivery and housing rights, one of the development NGO representatives said explicitly that she had no time for rights talk. There is simply too much to do to get housing in the ground. In other words, while her organization is engaged in the implementation of the right to housing through project delivery, they saw no value in

62 “Human Rights for Social Change”,

http://www.oxfam.org/en/files/doc040119_wsf_human_rights_jeremy_speech.pdf 63 Urban sprawl and its environmental/health costs have been well documented. See, for example,

Frank, et al (2003), Frumkin et al (2004). See also Brown (2006), Chapter 11, Designing Sustainable Cities. See also UN-Habitat’s programme for sustainable cities at http://www.unhabitat.org/categories.asp?catid=540

64 The Mt. Laurel decisions outline some of the arguments concerning exclusionary zoning, only one of the many issues concerning rights and the urban regulatory environment (see http://njlegallib.rutgers.edu/mtlaurel/opinions.php)

65 The atomization of communities through urban sprawl, the destruction of communities through ‘urban renewal’ and other developments, and the privatization of public space are all examples of the erosion of democracy in city development. See, for example, Kohn (2004).

66 See http://www.unescap.org. See http://www.unescap.org/unis/press/2004/june/n19.asp for additional information on the meeting.


26

framing it that way. It is seen as the divide between practice and theory. On the development side, this is not something you talk endlessly about; it is something you do. Law and theory don’t build houses; time, financial resources and skilled people build houses and all – including the housing – are in short supply. She saw rights talk as a waste of her time. Nonetheless, what gets built, how it is funded, where it is done and by whom are all issues directly affected by local, national and international law, standards, regulations, treaties, charters and other pieces of paper. It is important to understand some of the key international documents affecting development. These include the Declaration on the Right to Development, the Rights-based Approach to Development, legislation governing the Bretton Woods organizations67, international environmental and labour law as well as evolving standards and voluntary agreements concerning transnationals and the right to the city. 4.1 Declaration on the Right to Development (DRD) Arjun Sengupta, the former UN Independent Expert on the Right to Development, points out that we can find the roots of this right and the 1986 UN Declaration itself in Roosevelt’s ‘freedom from want’ (Sengupta, 2002:840). Framed in that way, the right seems obvious. In the example of the village headman in Manus, there are things he would find wanting in his community. Still, who is making that list? How are these wants satisfied, by whom and with what strings attached? Freedom from want also has implications about the distribution of resources – financial (aid, loans, structural adjustment are typical legal issues which affect the distribution of resources as well as those of economic equity), intellectual (TRIPS and the patenting of life forms), material (often environmental legislation) and social (education, health and governance issues). The DRD is not law any more than the UDHR. Since its ratification, though, in 1948, the UDHR has become a benchmark for human rights law. The arguments the drafters presented are still found in arguments about the DRD. Beyond that, though, it is with the DRD that the development sector meets the human rights sector. As Sengupta pointed out, the DRD reunifies civil/political rights with economic, social and cultural rights after the split two decades before in the drafting of the two separate covenants (Sengupta, 2002:840). The motivation for establishing the DRD as well as the ratified document itself provide some indication of the relative success of the merging of these sectors. Background – The linkage between human rights and development was made in 1968 in the World Conference on Human Rights in Teheran. The connection was explicitly stated:

“. . . the achievement of lasting progress in the implementation of human rights is dependent upon sound and effective national and international policies of economic and social development.” (in Alston & Robinson, 2005:1)68

While the connection was made, the fusing of the two in a right to development was first put forward by Keba M’Baye, a prominent Senegalese jurist in 197269. Shortly after, in 1974, these linkages were reinforced by the call for the New International Economic Order (NIEO) proclaimed that year by the General Assembly of the UN. The NIEO was advanced at the insistence of those countries which were victims of the existing economic order – an order whose inequity was particularly pronounced as a result of the 1973 oil embargo and

67 Here in reference to the Bretton Woods organizations I will include the WTO since it is an expression of

the original intent at Bretton Woods in proposing the International Trade Organization at that time. Though the original ITO failed to come to fruition, the WTO eventually realized that intent when it came into being in 1995.

68 The Proclamation of Teheran is available at http://www.unhchr.ch/html/menu3/b/b_tehern.htm. The quote is from Paragraph 13.

69 See also Jackson’s summary on the ‘Prehistory’ of the MDGs (Jackson, 2007)


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resulting dramatic increases in the cost of the product. It had become clear that the political independence since the Second World War was not enough if it was not accompanied by some measure of economic independence and control over the state’s natural resources. Self-determination, then, was an important part of this new international economic order. It is Article 1.1 of both the UN Covenant on Civil and Political Rights as well as its counterpart, the UN Covenant on Economic, Social and Cultural Rights. Article 1.2 of both documents also states that: “All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation” One of the first countries to test these ideas of self-determination and the NIEO was the new government of Chile. On the promise of agrarian reform and the nationalization of the foreign-owned mining industry, Allende was elected in Chile in 1970. “The economic component of the right to self-determination, the right to freely dispose of the natural wealth and resources of the country, had not been realized.” (de Feyter, 2001:51). Property rights trumped any rights of self-determination in this case. The U.S government, on behalf of the U.S. firms Kennecott and Anaconda which owned the largest of the copper mines, demanded that the new Allende government was entitled to nationalization of these and other foreign-controlled industries but that compensation was due at commercial rates. Of course the government of this developing country was unable to do so without borrowing the funds. That too would leave them in a position of dependency. The developed states (in this case the United States) called upon international law rather than Chilean law to resolve the dispute. “[I]t was up to the home States of the companies to take up the companies’ defence, through the well-established mechanism of diplomatic protection.” (de Feyter, 2001:179) In their proposed NIEO, the developing states were calling for changes to laws governing nationalization and the control of the national economy. Allende’s government attempted to negotiate the appropriate level of compensation by re-evaluating the net worth of the companies. The CIA-supported military coup which occurred in 1973 was a clear indication of the failure of those negotiations and a testament to the status of the right to self-determination – a status which continues to be reflected in similar developments such as the privatization of water in Cochabamba. The need, then, to establish some common understanding of the right to development became increasingly important. It was adopted by the General Assembly in December of 1986. The DRD document – It is a compact document of a Preamble and only 10 Articles. The Preamble defines development as:

“a comprehensive economic, social, cultural and political process, which aims at the constant improvement of the well-being of the entire population and of all individuals on the basis of their active, free and meaningful participation in development and in the fair distribution of benefits resulting therefrom,”

It then refers first to the UN Charter70, then to the UDHR71 and to the two Covenants72 as well as making note, once again, of the importance of self-determination, of the violations of human rights resulting from colonialism and other forms of foreign domination, the

70 A number of articles in the Charter relate to development: The Preamble (‘promoting social progress

and better standards of life’), Article 1 (‘solving international problems of an economic, social, cultural, or humanitarian character), Article 55 (self-determination, standards of living, employment, social progress), and Chapter X (Art. 61-72) on the establishment of the Economic and Social Council.

71 Particularly Articles 22-28 72 Although more focused on the ICESCR, the ICCPR contains the common Article 1 on self-

determination.


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relationship between peace and development73, the need for a new international economic order, and the recognition that the right to development is “a prerogative both of nations and of individuals who make up nations” – both a group (or third generation) right and an individual right. Article 1 reiterates the rights of self-determination and sovereignty over resources and also states that the right to development is a process by which “all human rights and fundamental freedoms can be fully realized” by means of their participation in, contribution to and enjoyment of the fruits of development. Article 2 places the individual human as the subject of development where each is not only a rights-holder but a duty-bearer of development.74 The States are identified at the primary body of the progressive realization of the right through fair national development policies. Article 3 calls for the cooperation between states in eliminating obstacles to development. Article 4 calls for a stronger focus (‘more rapid development’) of developing countries. Article 5 reiterates the statement in the Preamble concerning the violations of human rights resulting from racism, colonialism and foreign domination. Article 6 reinforces the understanding of the indivisibility of all rights. Article 7 reiterates the link between peace and development. Article 8 calls for equality of opportunity in the access to resources as well as social and economic reform which leads to the eradication of social injustice Article 9 states that all of the rights in the Declaration are interdependent, indivisible and consistent with other UN human rights documents. Article 10 again states that this is a progressive right which recalls the definition of development as ‘constant improvement of well-being’. There are two basic issues here concerning the DRD – its implementation and the definition of development. Implementation was an area of concern during the drafting of the UDHR and remains an issue for all rights. In part, as the UDHR drafting committee recognized, this is an issue of enforcement. In addition, though, it concerns the means by which principles are realized. The rights-based approach, described below, is one method devised to realize those principles. The second issue here concerns the definition itself. As with the ongoing conflict about the definition of torture in the Bush administration75, the meaning of a right can erode simply because the definition is unclear or unrealizable. In the examples described in ‘Faces of Development’ above, the bodies responsible for delivering water supply or parks or urban renewal saw their actions as improvements over existing conditions perhaps not for all but

73 The NGO ARC-Peace was based on the connection between peace and development in the fields

of architecture, engineering and planning. See http://arcpeace.org/01_AP_home.htm 74 Sengupta refers here to Sen’s description of ‘imperfect obligations’ where the duty-bearer is non-

specific – “. . . claims are addressed generally to anyone who can help.” (Sengupta, 2002:844) 75 The infamous memo of Berkeley Law School professor, John Yoo, written in 2003 narrowed the

definition of torture to what “would ordinarily be associated with a physical condition or injury sufficiently serious that it would result in death, organ failure, or serious impairment of body functions”. See http://www.aclu.org/pdfs/safefree/yoo_army_torture_memo.pdf


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for the majority. There was participation, again, not by all but by authorities in different branches of the government. In the case of the Cochabamba Water Wars, if one reads the Poverty Reduction Strategy Papers (PRSPs) concerning Bolivia, all of the key words are there: participation, vulnerabilities of the poor, land tenure, access to medical services and education76. This could have been taken from the DRD definition of development. However, on the ground, as the case study above indicates, something else happened. When the cost of water rose dramatically in 2000 people took to the streets in protest. Still, the director of International Water, the company responsible for the privatization scheme, said simply that “if people didn’t pay their water bills their water would be turned off.” (Finnegan, 2002). There was no real participation by the poor. What the DRD definition refers to as ‘a comprehensive economic, social, cultural and political process’ was translated by the IMF as “helping countries maintain macroeconomic stability as a necessary prerequisite for growth and, in practical terms, helping them ensure that growth can be increased and sustained and poverty reduction accelerated without jeopardizing hard-won gains in stabilization.” (Plant, 2005:501) While the DRD definition of development is hopeful, the real definition of development is what happens in the field. There are millions of people around the world faced with this real definition funded and realized by the Bretton Woods Institutions, transnational corporations, urban planners, architects and engineers. At the very least, it would be useful to have an additional clause in the DRD that offers some protection from this definition of development. In the UDHR, Articles 4 (slavery), 5 (torture), 8 (arbitrary arrest) and 12 (privacy) provide protection against a number of abuses of rights. It would seem equally apt for the DRD to have at least one article addressing the abuses caused by development. Without such a statement, it appears as if development actually occurs in the manner defined by the DRD. That, decidedly, is not the case. 4.2 The Bretton Woods Institutions It has been argued that the American independence came on the heels of one of the world’s first anti-corporatist battles – in this case, a protest by the American colonists against the unfair trade practices of the East India Company. Through the 1773 Tea Act, the company had been exempted from taxes and duties which then allowed them “to dump excess stocks on the American colonies” (Hartmann, 2002:52) and hold a monopoly on the product. In the subsequent drafting of the US Constitution and Bill of Rights, Jefferson was greatly concerned about a constitutional response to their experience with the East India Company. In a letter of 1788 he wrote:

“By a declaration of rights, I mean one which shall stipulate freedom of religion, freedom of the press, freedom of commerce against monopolies, trial by juries in all cases, no suspension of the habeas corpus, no standing armies. These are fetters against doing evil, which no honest government should decline.” (Hartmann, 2002:70)

His advice was not well heeded. However, the fact that Jefferson included freedom from monopolies as a right helped to lay the foundation for one of the basic arguments presented in the streets of Seattle in 199977 and in many other cities since – the argument

76 See http://www.imf.org/external/NP/prsp/2000/bol/01/ “Bolivia Interim Poverty Reduction Strategy

Paper” January 13, 2000. 77 ‘The Battle of Seattle’ in 1999 pitted the so-called anti-globalization/environmental/fair trade civil

sector against the more traditional model of development. Having shocked the delegates and the press into recognition, these protests have continued at virtually every meeting since of the WTO, the


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against the increasing control of transnational corporations over the terms of development. Many of those terms are being set by the World Trade Organization. The WTO was established in 1995 and formalized the General Agreement on Tariffs and Trade (GATT) as an institution. GATT itself was a series of trade agreements beginning in Geneva in 194778 after the attempts to create the International Trade Organization – the third of the Bretton Woods institutions – failed79. The perceived need for such an organization was a direct result of the experience of the tariff wars during the Depression. In the early days of the Bretton Woods meetings, the interest of the US Government at the time was for “an organization that would free up trade in the specific interest of large, exporting corporations”. (Peet, 2003:148) After the Uruguay round of GATT negotiations (1986-1994), the agreement signed in Marrakesh in April 1994 established the WTO. As the Preamble of the Agreement states, its work:

“. . . should be conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand, and expanding the production of and trade in goods and services, while allowing for the optimal use of the world’s resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means for doing so in a manner consistent with their respective needs and concerns at different levels of economic development” 80

Despite the effusive language, it would appear that the US, certainly according to the protesters on the streets of Seattle and many other cities, achieved its goal of having an organization that would look after the interests of ‘large, exporting corporations’. The right to development is, of course, intimately related to economic development, so the rules made by the WTO about international trade will affect the rights of all inhabitants of the planet, human and otherwise. Those rules will also determine the prevailing vision of the future for development – an economistic vision “premised upon technological innovation, economic growth, and profits” and a normative view “based on the well-being of society and its citizenry, including the economically disadvantaged.” (Falk, 2000:61) The overall goals of each appear to be the same:

“. . . both international human rights law and international trade law assume that if respected, application of these laws will naturally lead to the increased general well-being of people all over the world.” (Dommen, 2002:4)

However, the means of achieving those abstract goals and the way they are defined differ greatly. The ‘well-being of society’ can be achieved through other means beyond economic growth. In terms of the environmental consequences alone, economic growth

G8, the World Bank and the IMF on at least 50 occasions from Genoa in 2001 to Cancun in 2003 to Rostock in 2007 and many other locations. These are listed at http://en.wikipedia.org/wiki/List_of_anti-globalization_demonstrations

78 See the WTO website “The GATT years: from Havana to Marrakesh” at http://www.wto.org/english/thewto_e/whatis_e/tif_e/fact4_e.htm. Also, Peet, 2003:147-157

79 The other two institutions, the International Monetary Fund and the International Bank of Reconstruction and Development (World Bank) were established at the Bretton Woods Conference in July of 1944. The failure to establish the ITO was largely as a result of the lack of support for it in the US Congress. There were 4 preliminary conferences held after the Bretton Woods conference ending in Havana in 1948. The response of the US to the draft Charter of the ITO was that if it was accepted, the US “will be abandoning traditional American principles and espousing instead, planned economy and full-scale political control of production, trade and monetary exchange.” (Peet, 2003:149)

80 See http://www.wto.org/english/docs_e/legal_e/04-wto_e.htm


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can be seen as a cause of the degradation of the environment and on the well-being of society. It is not the panacea that the IMF, the World Bank and the WTO imagine it to be81. However, the neoliberal ideology espoused by this trinity provides the prevailing definition of development. The IMF through its structural adjustment programs which privatize health, education, water supply and many other economic and social rights; the World Bank through what it chooses to fund; and, the WTO through a variety of agreements, most recently The General Agreement on Trade in Services (GATS), the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs), and the Agreement on Trade Related Aspects of Investment Measures (TRIMs). Each of these organizations has an approach to human rights. The World Bank issued a report in 1998 on the role of the World Bank in human rights82. It established a Work Group on Human Rights in 2003 (Danino, 2005:510). It is, though, limited by its Articles of Agreement to economic considerations and the non-interference in the political affairs of Member states. Despite that limitation, it is clear from its own policies (such as its choices in funding and its anti-corruption programs83) that some forms of political involvement and direction are permissible. The IMF also has expressed an interest in linking their mandate to a human rights agenda. Their Assistant Director of the European Office, Sérgio Pereira Leite, pointed out that their Poverty Reduction Strategy Papers accomplish this because they are ‘country-owned documents’. In other words, the country itself, not the IMF, decides the nature of that strategy. Therefore, he states, human rights advocates “should not expect the IMF to impose human rights conditions on its assistance to member countries. The IMF simply does not have the expertise required to make judgments in this area.” (Leite, 2001) Given the experience of Cochabamba, certainly that much is clear. 4.3 Transnational corporations (TNCs) The Bretton Woods institutions do not work alone, of course. While policy and agreements concerning development are set by them, the implementation of those policies in the field is typically done by companies and consultants. The privatization of water in Cochabamba gives a clear example of the relationship between institutional policy and implementation and the effect both have on human rights. Although the UN High Commission for Human Rights has been issuing reports about the relationship between transnational corporations and human rights since 1995, there are few international regulations affecting the actions of TNCs84 although they are subject to

81 To be fair, each of these organizations in their articles of agreement state that these are

institutions whose sole focus is on economic development. The World Bank’s articles, for example, state in Article IV, Section 10 that ‘only economic considerations shall be relevant to their decisions.’ (see http://siteresources.worldbank.org/EXTABOUTUS/Resources/ibrd-articlesofagreement.pdf) Similarly, the IMF articles states that the 6 purposes of the organization are concerned with the resolution by its members of international monetary problems, to promote exchange stability, improve the growth of trade, balance of payments, and the elimination of foreign exchange restrictions.

82 See http://www.worldbank.org/html/extdr/rights/hrtext.pdf 83 See

http://web.worldbank.org/WBSITE/EXTERNAL/TOPICS/EXTPUBLICSECTORANDGOVERNANCE/EXTANTICORRUPTION/0,,contentMDK:21540659~menuPK:384461~pagePK:148956~piPK:216618~theSitePK:384455,00.html

84 Like the Boeing bribery case in 1974 which ran the company afoul of the Securities & Exchange Commission in the U.S., these companies are subject to the laws of the nation in which they are located even if the illegal activity is taking place outside the country.


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international labour law and environmental law as are any other individuals or companies. Because of their size and global reach, though, TNCs have opportunities for abuse of rights which are far more controlled by the state with smaller national companies. Much of the control, then, of TNCs with respect to their human rights record is through shaming (Gap and Nike85, for example) or through voluntary compliance with a set of principles. The UN Global Compact was launched in 2000 and asks companies to embrace, support and enact, within their sphere of influence, a set of core values in the areas of human rights, labour standards, the environment, and anti-corruption:

“Human Rights Principle 1: Businesses should support and respect the protection of

internationally proclaimed human rights; and Principle 2: make sure that they are not complicit in human rights abuses.

Labour Standards Principle 3: Businesses should uphold the freedom of association and the

effective recognition of the right to collective bargaining; Principle 4: the elimination of all forms of forced and compulsory labour; Principle 5: the effective abolition of child labour; and Principle 6: the elimination of discrimination in respect of employment

and occupation. Environment

Principle 7: Businesses should support a precautionary approach to environmental challenges;

Principle 8: undertake initiatives to promote greater environmental responsibility; and

Principle 9: encourage the development and diffusion of environmentally friendly technologies

Anti-Corruption Principle 10: Businesses should work against corruption in all its forms,

including extortion and bribery.”86

Under ‘Participants and Stakeholders’, the groupings of participants is

• UN Agencies, • Business Associations, • Labour, • Civil Society, • Academia, • Public Sector, and • Cities.87

Business associations are a long, large step back from work in the field. 'Businesses' are intended to be the primary focus of the GC, but they are not even on the menu under ‘Participants & Stakeholders’. The others in the group - UN agencies, NGOs, labour organizations - I would expect to be advocates for these principles not simply participating

85 Since the early 1990s Gap Inc. and Nike have been associated with sweat shop conditions in the

manufacture of their product lines (see http://news.bbc.co.uk/1/hi/programmes/panorama/970385.stm). In response to this negative publicity actions were taken by both companies to address working conditions. The effectiveness of their response still seems limited but the fact that there was a response indicates the power of the shaming exercise. Notwithstanding these campaigns, though, between 1996 and 2007 Nike’s annual revenues have nearly tripled (from 6.4 to nearly 17 billion).

86 See http://www.unglobalcompact.org/AboutTheGC/TheTenPrinciples/index.html 87 Businesses are included only under the menu ‘How to Participate’.


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organizations. In other words, these are organizations that don't quite fit into the original purpose of the GC which was focused on businesses themselves and getting them to take on these 10 principles. So the same old group of advocates for rights - labour, academia, the UN and NGOs - continue to advocate these principles (which they formulated) while, it would appear, the businesses themselves are often 'inactive participants', or, where they are still active, they have yet to report any progress or case studies . More than 1000 of the 3000 registered participants are either ‘non-communicating’ or ‘inactive’ which means they have failed to file any reports (Communication of Progress – COP) about their progress in meeting the 10 principles. In other words, it appears as if the companies joined for the blessing and association with the name of the UN to be supporting such principles but, when it came time to actually do something 816 of those companies lost interest and became 'inactive'. Those that have actually submitted a COP often submit some portion of their company’s annual report. It is interesting to note here that the UN agencies represented do not include the IMF, World Bank or WTO. If any group of institutions is framing our concept of development it is, by their policies and actions in the field, 'The Unholy Trinity' as Richard Peet (2003) described the three Bretton Woods organizations. Would the water wars in Cochabamba have happened if the World Bank subscribed to these 10 principles and, for example, only hired engineering/construction companies that were committed participants in the GC (filing COPS and Case Studies being one way of demonstrating that commitment)? Would they have funded the Narmada Dam? Would Structural Adjustment continue to be an ideological imperative of the IMF (and along with it the privatization of education, water, health, and all the other social and economic rights)? While such voluntary involvement in the principles of human rights is a useful start, it is clear from the Global Compact that there is more to be done by the UN to insure that the handing out of the GC logo to participants is only done after some more rigorous steps than have been managed to date. 4.4 Rights-based Approach to Development It became clear by the mid-90s that the DRD would need further institutional support if the link between development and rights was to be realized. As part of the reform of the UN in 1997, the Secretary-General called for reforms in the approach taken to the mainstreaming of rights in development practice. This was the Rights-based Approach to Development (RBA). In his Annual Report88, he said:

“174. The rights-based approach to development describes situations not simply in terms of human needs, or of developmental requirements, but in terms of society's obligation to respond to the inalienable rights of individuals. It empowers people to demand justice as a right, not as charity, and gives communities a moral basis from which to claim international assistance where needed.”

One of the key points, then, of the RBA is the clear recognition of duties on the one hand and rights on the other. A needs-based approach, “can be met out of charitable intentions, but rights are based on legal obligations (and in some cases ethical obligations that have a strong foundation in human dignity even though they are only in the process of being solidified into legal obligations).” (Nyamu-Musembi and Cornwall, 2004:3) Another point is that it sets out the principles of development which, in turn, shift the emphasis away from the technical (the so-called value neutral focus) to the ethical and 88 A/53/1, Annual Report of the Secretary-General on the Work of the Organization. Available at:

http://www.un.org/Docs/SG/Report98/con98.htm


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political. This often causes discomfort in the development sector. Just as the World Bank and the IMF can claim to be apolitical and strictly focused on economic issues as a result of their Articles of Agreement, so too architects and engineers will take comfort in maintaining that posture of objectivity by focusing on technical matters. For a rights-based approach economic development is always a means to realize human rights. It is not an end in itself. In the same way that economic growth must find its limits in sustainability and the planet’s carrying capacity, so too does economic growth find its parameters and direction in human rights. From that point it is then possible to establish Human Rights Impact Assessments for development projects.89 While, no doubt, there will be some resistance from the private sector on implementing HR Impact Assessments, had Bechtel’s subsidiary done a similar assessment for their proposed water privatization scheme in Cochabamba, they might have more readily seen the business risks that loomed ahead. There are any number of unfinished projects that faced insurmountable opposition, in part, as a result of the inability to see the human rights implications of what they were doing. As long as they continue to imagine a value-neutral technical approach to development they will often be surprised by the resistance to their plans. In all four of the examples at the beginning of the paper, development as proposed stopped. The Rattanakosin Master Plan has yet to be implemented after six years since its ratification by the city authorities. Urban Renewal projects ended ignominiously with the implosion of the Pruitt-Igoe project in 1972. The Water Board was forced to rethink their approach to monopolizing water supply by its own Department of Works. And, finally, Bechtel, abandoned its suit against the Bolivian government to recover lost profits. All of the planners, engineers and architects involved in those sample projects are very sharp professionals but there is a blind spot there that could be uncovered through a different approach to development – one that placed human rights at its core. 4.5 Next steps in rights and development Finally it should be mentioned that there are two areas towards which human rights law is advancing and draft documents of these rights are being discussed now. The first is the Right to the City and the second is the Earth Charter. Right to the City – Considering the growth of cities and the rapid growth of slums (UNCHS, 2003) and considering the extent of the city’s ecological footprint90, the role of the city has become central to the future of development and to the future of an environment fit for human life. The World Charter on the Right to the City (WCRC) then puts a location to the Right to Development. It was at the 2002 World Social Forum (WSF) in Porto Alegre that the first draft of WCRC was circulated. At the 2005 WSF delegates found agreement on a further draft of the document91. There was a long history of the Free Speech Movement92, the Civil Rights Movement93, and the anti-war movement which led to a far more liberal understanding of access to the space of the city and its services. This document reflects that. In part, it 89 See, for example, http://www.dd-

rd.ca/site/publications/index.php?subsection=catalogue&lang=en&id=2094 “Human Rights Impact Assessments for Foreign Investment Projects. In 2007, the Global Compact, together with the International Finance Corporation of the World Bank and the International Business Leaders Forum also issued a “Guide to Human Rights Impact Assessment and Management” for companies to use in the field.

90 See, for example, http://www.gdrc.org/uem/footprints/index.html for a description of the concept and it application in a number of cities.

91 See http://www.hic-net.org/documents.asp?PID=62 for the Barcelona draft document. 92 See Mitchell (2003) pp 81-117, http://www.jofreeman.com/sixtiesprotest/berkeley.htm 93 See http://www.ags.uci.edu/~skaufman/teaching/win2001ch4.htm for a timeline of those events.


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reiterates rights taken up in previous documents such as DRD, the UDHR and other documents, including the right to education, work, participation, and non-discrimination. Some, such as Article XIV (The Right to Housing) and Article XVIII (The Right to Health), expand on rights identified elsewhere. There are a number of other articles, though, that do not appear in the DRD. These articles rationalize the need for the document. They include: Article 2.3, “The Social Function of the City” – The “fair use of both urban space and land”. Article 2.7, “The Private Sector’s Social Undertaking” – “The cities shall ensure that the economic private agents participate in social programs and economic enterprises for the purpose of developing solidarity and equality amongst the inhabitants.” This can support the Global Compact as well. Article 3.1, “Sustainable and Equitable Urban Development” – “guaranteeing the balance between urban development and the protection of the environment and the cultural, historical, architectural and artistic heritage, as well as preventing segregation and territorial exclusion.” The concern here for heritage is reflected in the Habitat Agenda94, but there is no mention of it in the DRD. Article 6.1, “Right to Public Information” – “the right to request and to receive complete, correct, adequate and timely information . . .”. Meaningful participation can only occur where all parties have adequate information. Article 12.1, “Access to And Supply of Domestic and Urban Public Services” – Recalling such examples as Cochabamba, “the right to access to supplies of drinking water95, electric power, light and heating, health hospitals, schools, garbage disposal, sanitation facilities, telecommunication . . .” The Right to the City expands on the Right to Development by becoming more specific about the issues affecting the urban environment. This is where the bulk of future development – and maldevelopment – will occur. Earth Charter96 – The 1992 Rio conference (United Nations Conference on Environment and Development – UNCED) in its Rio Declaration made the link to the right to development in Principle 3: “The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.”97 The definition of the right would have to include intergenerational equity. In addition to intergenerational equity, links were also made to environmental justice. Since many development programmes and projects largely affect the poor and other vulnerable groups, the link between sustainability, land and other resources and the poor must be made. This was taken up in Chapter 398 of Agenda 21, “Combating Poverty”. Another critical issue covered by Agenda 21 was Chapter 9 ‘Protection of the Atmosphere’. Related to the 1992 United Nations Framework Convention on Climate Change, this section focused attention on sources of energy necessary for economic development. Given that buildings are the greatest consumers of all energy (an average of 50%), architects and engineers should be paying particular attention to developments in agreements and

94 See, for example, clause 152 - http://ww2.unhabitat.org/declarations/ch-4c-8.htm 95 See also, http://www.righttowater.org.uk/code/homepage.asp and Amnesty International’s site,

http://web.amnesty.org/pages/ec-water-eng for further information on the right to water. 96 See http://www.earthcharterinaction.org/2000/10/the_earth_charter.html 97 Rio Declaration on Environment and Development, http://habitat.igc.org/agenda21/rio-dec.htm 98 See http://habitat.igc.org/agenda21/a21-03.htm


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legislation about climate change. The American Institute of Architects99 offers a graphic reminder of the relationship between buildings and energy use (Figure 2) in the US. Along with the tinkering that has gone on in the negotiations at Kyoto in 1997 and in Bali in 2007 and with the commercialization of carbon credits100 in the West, the resistance to that change in lifestyle exemplified by George Bush Sr. in his statements at the Rio conference101 would seem to be related directly to the basic Truman paradigm of development – it’s

about the money. The Earth Charter contains 16 Principles in 4 sections – Respect and Care for the Community of Life, Ecological Integrity, Social and Economic Justice, and Democracy, Nonviolence and Peace. With this, the definition of development takes on a more radical shift. Development is no longer simply about economics or basic needs of people or their human development. It is about the planet as a whole. It is about restraint, reducing harm and exercising prudence through the precautionary principle. 5 Conclusion The concept of development is changing rapidly and it must. The extent of the trauma of climate change on rights, on security, on our ability to survive as cultures and as a species depends upon changing the concept of development. The definition in the

preamble of the DRD refers to “a comprehensive economic, social, cultural and political process”. In 1986 when the DRD was adopted by the General Assembly, the World Commission on Environment and Development (WCED) had already been working for three years. The Brundtland Report, otherwise known as Our Common Future, was not released until 1987. Still, it is telling that the drafting of the DRD did not reflect anything about sustainable development. The DRD definition is certainly not comprehensive unless it is also an ecologically sound process. There continues to be a split here. The former division between development and rights, between CP rights and ESC rights has been addressed with at least some effectiveness. However, there is still a split here between development, rights and the environment. On the rights side of the divide, the discussion often centres on the validity of ‘development’ as a right. When it was brought before the General Assembly, there were 8 abstentions from the vote and one dissenting vote – the United States. Their argument against it was repeated at the Rio conference in 1992 when it was raised again in draft documents:

99 See http://www.aia.org/SiteObjects/files/architectsandclimatechange.pdf 100 An example of this is the treadle pump used in India for irrigation. A UK company, Climate Care, is

distributing as many as 500,000 of these pumps throughout India. The way they do this is by trading in ‘carbon offsets’. People who jet to holiday vacations at great carbon cost, pay an extra fee to Climate Care and ‘it can compensate for the carbon dioxide that you emit when you jet off on holiday. It puts your cash towards carbon-cutting projects in the developing world, and, according to the company, just £2 will ensure that your return flight to Florence is carbon neutral.’ (“Carbon Offsetting: All Credit to Them”, The Independent, 04JAN07, http://environment.independent.co.uk/climate_change/article2124817.ece).

101 “Bush threatened that if deadlines and targets were included, he would boycott the Earth Summit: “The American lifestyle is not on trial,” he famously proclaimed.” (Elizabeth May, “The Kyoto Debate: Separating rhetoric from reality”, Sierra Club of BC, 2002) Available online: http://www.sierraclub.ca/national/programs/atmosphere-energy/climate-change/kyoto-debate-12-2002.html

Figure 2


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"The United States does not, by joining in consensus on the Rio Declaration, change its long-standing opposition to the so-called ‘right to development'. Development is not a right. On the contrary, development is a goal we all hold, which depends for its realization in large part on the promotion and protection of human rights set out in the Universal Declaration of Human Rights."

That legal and philosophical discussion is ongoing. However, in those circles there is still little about the connection between development, rights and the environment. One document that does address this connection is the Draft International Covenant on Environment and Development102 by the Environmental Law Program of the World Conservation Union. In drafting their document they also consulted with the drafters of the Earth Charter in order “to ensure consistency among the principles set forth in both texts.”(IUCN, 2004:xiii). This document merges the divide between environment and rights, in part, by beginning with the Earth Charter and expanding on it. This, then, in 76 Articles instead of 10 presents a much larger view of development than we had at its origins during and immediately after the Second World War. It was a necessary evolution of both our understanding of rights and our understanding of development. Can our actions rise up to these standards?

102 Environmental Policy and Law Paper No. 31, Revision 2, 2004. Available online: http://www.i-c-e-

l.org/english/EPLP31EN_rev2.pdf


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