According to the Covenant, states are obliged to ‘progressively realise’ economic and social rights, ‘individually and through international assistance’, ‘to the maximum of their available resources’ (ICESCR, 1966). This is at the heart of the Roth–Rubenstein controversy, described in Box 3.4. Roth argues from the assumption that, at least at state and possibly at inter-state level, there are not enough resources. Therefore, human rights advocates should stay away from resource issues, because their recommendations would interfere with other legitimate forms of spending (Roth 2004a: 65). Rubenstein on the other hand claims that ‘the amounts needed are high but within reach’ (Rubenstein 2004a: 856). Neither really has a sufficient empirical basis for his claim. It certainly seems clear that, in the realm of international assistance, states are not spending to the maximum of their available resources, but to what extent are they doing so at the national level? The Supreme Court of South Africa, one of the richer states on the continent, has rejected the doctrine of minimum core content on the – again arbitrary – judgment that South Africa is not at this point financially able to fulfil even these minimum demands. The doctrine of ‘progressive realisation’ is equally problematic. The ‘non-retrogression principle’, described above, is based on a developmentalist assumption that all states are gradually becoming better off. How is this to apply to a country like Argentina after the financial crisis, or to the Democratic Republic of Congo after a decade of war?
The development community
Human rights and development were separated at birth, given over to different organisations and mechanisms within the United Nations system. At the non-governmental level, too, separate organisations developed in these fields, which particularly at the global policy-making level had little contact. Human rights entered the radar screen of development organisations only with the Vienna Conference of 1993. For instance, this spurred Novib, now the Dutch member of Oxfam International, to support the foundation of the Platform for Human Rights, Development and Democracy (PIDHDD URL) in Latin America, now one of the strongest actors on economic and social rights.
Two very different but novel arguments were advanced in short books by two leading academics, which had a seminal impact on the economic and social rights frame. In Poverty and Famines, published in 1981, economist Amartya Sen analyses a number of famines with a view to demolishing the then-existing paradigm among developmental economists, which held that famines were caused by a general decline in the availability of food. Instead, he argues, ‘A person’s ability to command food – indeed, to command any commodity he wishes to acquire or retain depends on the entitlement relations that govern possession and use in that society. It depends on what he owns, what exchange possibilities are offered to him, what is given to him free, and what is taken away from him’ (Sen 1981: 154–5). Hence, the global focus on increasing agricultural productivity, which had reigned hitherto, was inadequate for solving problems of starvation and famine. Nor could market mechanisms be relied upon to relieve famines because markets respond to ‘entitlements’: individuals’ property and possibilities of exchange, not their physical needs as such. Therefore, policies designed to prevent or relieve famines should tackle the socio-political and legal conditions that govern entitlements in a particular society, not just provide more food. ‘The focus on entitlements’, Sen concludes in his essay, ‘has the effect of emphasizing legal rights … The law stands between food availability and food entitlement’ (Sen 1981: 165–6). At this point Sen does not make a case for a ‘right to food’. ‘Entitlements’, his key concept, are not moral rights but a label for a person’s actual ownership and exchange capabilities. But his argument – that hunger needs to be tackled at the level of entitlements, and that market mechanisms alone will not do this – does point in the direction of policies that alter legal and socio-political structures. The invocation of a right to food can be such an instrument. In a later article, Sen defends the idea of a moral ‘metaright’ to policies that would help make the right to food realisable (Sen 1984). Sen’s argument – that famine (and by extension, as he elaborates in later work, other forms of deprivation) is not caused by absolute scarcity but by legal and political circumstances – was not wholly original even at the time. But it was groundbreaking for a mathematically trained economist armed with data and equations to present such an analysis, and it profoundly affected the hitherto rather technical thinking about development in international institutions. It laid the foundations for the later adoption of ‘rights-based approaches’ to development.
Meanwhile, developing countries sought to add another right to the international catalogue: a United Nations resolution adopted in 1979 said that ‘the right to development is a human right and that equality of opportunity for development is as much a prerogative of nations as of individuals of nations’ (quoted in Sengupta 2002: 863, emphasis added). Given the confusion between ‘states’ and ‘nations’ that is inherent in the very name of the United Nations, this statement transformed development from a human into a state right, more specifically a right of poor states. Thus, it was closely related to the idea of the New International Economic Order. The 1986 Declaration on the Right to Development, adopted by the UN General Assembly, puts more emphasis on the individual level, while also spelling out that there are multiple duty-bearers in relation to human rights. But the Declaration has little legal status and little implementable detail. To this day, independent experts, open-ended working groups and UN task forces are making little-noticed attempts to clarify (or obfuscate) the right to development (Salomon 2005).