Feminists should put the Right to Development back on their agenda

Photo by Wayne S. Grazio on Flickr

The Right to Development (R2D) emerged in the 1970s as the hallmark of post-colonial nations’ quest for a fairer economic order. Since its embodiment in the 1986 Declaration on the Right to Development, and despite the long-lived, tumultuous political debate that its recognition provoked between Global North and South countries¹, developing nations and human rights advocates managed to keep the R2D process alive, wielding it to voice hopes and articulate demands for a truly just economic system that includes everyone and protects our planet.

Two recent turning points have revamped its political significance: on the one hand, the Covid-19 pandemic and the climate emergency, which have underscored the need to pivot economic and development policy towards securing human and non-human survival; and on the other, the publication of a first Draft Convention on the Right to Development in January 2020, which has breathed new life into debates over the R2D’s nature, meaning, implications, and transformative potential.

The Draft Convention’s author, the Intergovernmental Working Group on the Right to Development, initiated discussions to elaborate a legally binding instrument in 2018, after being entrusted with the task by the Human Rights Council. With this new document, the Working Group aimed to remedy several of the Declaration’s shortcomings. Scholars and activists decried the broad, indeterminate language with which the Declaration defined the contours of the R2D, rendering it a mere aspirational document that was nearly impossible to implement and monitor. In contrast, the Draft circulated in 2020 further clarifies the R2D’s contents, holders, duty bearers, and relationship with other human rights, as well as other environmental and sustainable development frameworks.

In early 2022, the Working Group collected and compiled comments from delegations and civil society, and worked in tandem with an Expert Drafting Group – convened by the United Nations High Commissioner for Human Rights – to issue revised versions of the Draft Convention. A closer look into the latest version, a draft published in May 2022, reveals why feminists and human rights activists should put the R2D space back on their agenda. We go over two of these reasons below.

First, there is some potential in the Draft Convention’s drafting process to turn the R2D into a valuable tool to transform the global economic and financial architecture in favour of a human-rights-centered, feminist vision of development.

For starters, it embraces the long-posited idea that development is far more than just fattening the Gross Domestic Product (GDP),² and moves on from the old narrative of nations’ unfettered sovereignty to dispose of natural resources. Instead, the Draft Convention describes development as a ‘comprehensive civil, cultural, economic, environmental, political and social process’ envisaged towards the ‘constant improvement of the well-being of the entire population and of all individuals’. Moreover, it interweaves the right to self-determination with sustainable development by recognising that natural resources should be utilised to achieve all three dimensions of development: economic, social and environmental. All in all, GDP-centric economic growth can no longer be equated to development. Human dignity, decent living standards, environmental sustainability, and equality should.

Further, the R2D would impose an obligation on States, individually and collectively, to enable a ‘global environment conducive to just, equitable and participatory development’. This focus on a ‘global conducive environment’ puts the spotlight on macro structures enabling or hindering development, creating a fertile ground to seed feminists’ claims of structural change for economic justice in ways that other development agendas lack. Taking a remarkable leap from the overly broad, principle-style language of the Declaration, Draft Article 13 specifies actions that States must take collectively to realise the right to development: correcting imbalances in the multilateral trading system, strengthening regulation of international financial markets, seeking long-term debt sustainability for developing and least developed countries, and ensuring their enhanced representation in key economic and financial policy-making institutions, among others.

The R2D Convention drafting process is also opening a window of opportunity to allow some degree of scrutiny of international economic institutions whose actions impact human rights, and women’s rights in particular, and the environment. This is the case with the IMF and the World Bank, two of the Bretton Woods institutions whose influence over global and national macroeconomic policy has remained insulated from human rights accountability, despite the devastating impacts that their austerity formulas have had on the lives of so many people across the world. Draft Article 10 roughly provides that States have the obligation to respect the R2D even when they act through international organisations³. The IMF and the World Bank are international organisations, and so their actions would be constrained by the R2D by extension. Further, in its latest revision, the Expert Drafting Group clarified that States’ obligation to respect the R2D applies both internally and outside their territory⁴. This would be a significant tool in civil society’s efforts to bring international economic institutions under the net of human rights. However, the fine print of Draft Article 10 is still under construction. Committed human rights voices are needed if we are to avoid its defanging over future rounds of revision.

Countering anti-rights movements

During its most recent meetings this year in Geneva, the Expert Drafting Group adopted a bulk of suggestions to erase references to sexual orientation and gender identity (SOGI), and gender more broadly, from the Draft Convention. Anti-rights movements, composed of a combination of conservative religious groups and anti-trans women’s organisations, have been crusading for the elimination of SOGI language and entitlements in a multiplicity of decision-making spaces across jurisdictions and governance levels that now includes the R2D space.

In that vein, and following suggestions from several delegations, religious organisations and trans-exclusionary women’s groups, the Expert Drafting Group rejected requests to include ‘gender’ and ‘sexual orientation’ as proscribed grounds of discrimination in Draft Article 8 of the Draft Convention, arguing that these categories have no legal basis in international human rights law. This spurious statement disregards decades of progress made within and beyond the Human Rights Council to recognise SOGI-based violence as human rights violations – most notably, this progress includes the establishment of an Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, and various resolutions.

The Expert Drafting Group also eliminated all references to ‘gender equality’ from the title and the multiple clauses of Draft Article 16, substituting them for terms such as ‘equality of women and men’. They affirmed that the purpose of the provision is ‘addressing discrimination against women and girls specifically, and not gender inequality in a broader sense’, ostensibly in alignment with the Convention on the Elimination of All Forms of Discrimination Against Women. The Expert Drafting Group upheld the assertion that the use of the term ‘gender’ has been used over time to curtail the rights of women and girls. This galling elaboration misrepresents CEDAW, whose entitlements and protections, as ratified by the CEDAW Committee itself in General Recommendation 28 on the core obligations of States parties under article 2 and General Recommendation 35 on gender-based violence against women, apply to lesbian, bisexual and trans women and non-binary and intersex people.

The Expert Drafting Group’s assertion dismisses the decades of advocacy by these groups to ensure these rights were recognised under the Convention. For decades, feminist scholars and activists have illustrated how gendered stereotyping disciplines all bodies and its most pervasive effects are borne by a diverse group of subjects along the lines of their biological sex, gender identity/expression, and sexual orientation. Eradicating all forms of gender-based violence and discrimination requires adopting an intersectional approach to gender that doesn’t reproduce the historical neglect of the voices and experiences of trans, non-binary, and gender-diverse people and people with intersex characteristics.

In sum, the R2D’s codification still has a long way to go and complex challenges yet to overcome. First and foremost, Global North countries’ reluctance to recognise the R2D’s status as a human right – a trend that adds to their overall move to undermine human rights commitments and democratic decision making in the UN system – must be reckoned with. Meeting this and other daunting challenges will not be possible without the pressure-generating force and creativity of feminist and human rights advocacy.

Vanessa Daza Castillo is a Colombian lawyer and feminist. She holds an LL.M. (master’s degree) from Harvard Law School and is currently an S.J.D. (PhD) student at the same institution, where she focuses on the study of gender, environmental conflict, and socio-legal mobilization in Colombia. Formerly, she worked as an Environmental Justice coordinator and researcher at Dejusticia, a Colombia-based think tank, and was engaged in feminist activism with Siete Polas, a Colombian feminist activism collective she co-founded. She joined IWRAW AP as a Feminist Sustainable Development Fellow from September 2021 until November 2022.

Footnotes

1
Political debates around the R2D have followed a typical North-South divide. Global South post-colonial nations introduced the R2D strategically to advance their agenda for a New International Economic Order in the United Nations system. Global North countries, notably the United States, Japan, Australia, and Denmark, have continuously opposed the crystallisation of the R2D, fearing that it would be used by developing countries to demand aid and to pursue drastic transformations of the global economic system.
2
The Expert Drafting Group recently added the following clause to the Preamble: ‘Acknowledging that development is understood not simply in terms of economic growth, but also as a means to widening people’s choices to achieve a more satisfactory intellectual, emotional, moral and spiritual existence rooted in the cultural identity and the cultural diversity of peoples.’
3
The text reads: ‘States Parties shall refrain from conduct, whether expressed through law, policy or practice, that: (d) Causes an international organization of which it is a member to commit an act that, if committed by the State Party, would constitute a breach of its obligation under the present Convention, and does so to circumvent that obligation by taking advantage of the fact that the international organization has competence in relation to its subject matter.’
4
Pursuant to China and the Holy See’s suggestion, the Expert Drafting Group recommended the deletion of the words ‘or outside’ from Draft Article 10(a), which originally read ‘States Parties shall refrain from conduct, whether expressed through law, policy or practice, that: (a) Nullifies or impairs the enjoyment and exercise of the right to development within or outside their territories.’ However, it clarified that this deletion did not ‘affect the binding effect of the right to development on a State Party’s internal and external (or extra-territorial) conduct, as specified throughout the Revised Draft Convention itself.’