Before I reflect upon what these considerations mean for the Right to Development, I first want to highlight some further aspects of the UNDRTD that are relevant for these reflections.
The Declaration on the Right to Development adopted by the UN General Assembly in 1986 does not define development as such but understands it to be a process for the full realization of all human rights. Development is declared to be an “inalienable human right” (Article 1) that depends on a comprehensive process that increases individual and collective wellbeing, and aspires to achieve social justice. States have the “primary responsibility for the creation of national and international conditions favourable to the realization of the right to development” (Article 3.1), i.e. to ensure that all persons living in their territory enjoy their rights as humans. They also have the “duty to co-operate with each other in ensuring development and eliminating obstacles to development” (Article 3.3), specifically by promoting a new international economic order. Article 4 establishes that states should implement adequate development policies, in their own territory and in support of developing countries, as a complement to their own efforts. Article 6 re-affirms the principle of international cooperation with a view to the respect of all human rights and specifically mentions that states “should take steps to eliminate obstacles to development resulting from failure to observe civil and political rights, as well as economic, social and cultural rights” (Article 6.3).
The reference to the new international economic order situates the Declaration on the Right to Development in the context of dependency theories and their understanding of the structural characteristics of post-colonial economies and societies as well as of international trade and production being an obstacle and not an opportunity for developing countries to benefit from international economic integration and growth. A development process that is guided by human rights and thus participatory in process and people-centred in its content therefore requires changes in these structures and in international political and economic relations.
Seen from this perspective, development seems to mean catching-up with industrialized countries, with regard to their material levels of wellbeing, their institutional structures and political orders. The right to development is derived from a critical view of supposedly universal principles that nevertheless allow for economic and political structures that systematically exclude developing countries.Footnote 28 Questions of environmental justice—negative social effects of environmental use, unequal distribution of pollution and other environmental bads to the detriment of the poor, and adverse distributive effects of environmental policies—do not figure in the UNDRTD. Neither does global environmental change.
After 1986, there were two significant additions made to the UNDRTD by two documents, a conceptual one and an institutional one:
In 1993, the Vienna Declaration of the World Conference on Human Rights reaffirmed the Right to Development in a succinct and abbreviated version in its Article 10.Footnote 29 It then connected it with the concept of sustainable development (adopted in the final declaration of the UN Conference on Environment and Development in Rio de Janeiro in 1992) by stating that the right to development “should be fulfilled so as to meet equitably the developmental and environmental needs of present and future generations” (Article 11). This addition allows the DRTD to widen its normative horizon and include collective rights of future generations, juxtaposing them both to collective interests in fulfilling the needs of all in the present, and to strong individual or group-specific interests that may hamper meeting future needs. An important blank spot remains that has been filled by the 2030 Agenda: there is no acknowledgement of a “healthy environment” as a prerequisite for development and that could be considered a (collective) human right, too.Footnote 30
The states’ responsibility to act in relation to the right to development was specified in a document elaborated by a High-Level Task Force in 2010 that had been established by an Open-Ended Working Group under the Council of Human Rights. According to this report, “there exist three levels of States’ responsibility (…): (i) States acting collectively in global and regional partnerships; (ii) States acting individually as they adopt and implement policies that affect persons not strictly within their jurisdiction; and (iii) States acting individually as they formulate national development policies and programmes affecting persons within their jurisdiction” (Vandenbogaerde 2013, p. 200). These three levels explain how states can act in order to ensure the individual and the collective dimension of the right to developmentFootnote 31: through policies within their borders, by producing spillover effects across borders, and by explicit global or regional collective action. Collective rights and collective action are crucial for addressing the causes of global environmental change and for avoiding that rising levels of human prosperity increase environmental harm.
Making the Right to Development meaningful in a world increasingly marked by global environmental change requires concepts and norms that help to address the ways in which global environmental change interacts with specific ways for fulfilling human needs and achieving high levels of human development.
The historian Dipesh Chakrabarty has reflected about the question whether and how the Anthropocene requires new concepts when analyzing human prosperity, compared to the previous Earth age, the Holocene. His main conclusion is that a critique of capitalist globalization is insufficient for understanding human history in the age of the Anthropocene. First because the energy and material intensive industrial civilization is not limited to capitalist economies, and second because the Anthropocene “has brought into view certain other conditions for the existence of life in the human form that have no intrinsic connection to the logics of capitalist, nationalist, or socialist identities. They are connected rather to the history of life on this planet, the way different life-forms connect to one another, and the way the mass extinction of one species could spell danger for another. Without such a history of life, the crisis of climate change has no human ‘meaning’. For, as I have said before, it is not a crisis for the inorganic planet in any meaningful sense”.Footnote 32
Chakrabarty therefore proposes to introduce the category of human species for capturing the new dimension the Anthropocene adds to the future of humanity, and to cross-hatch the analysis of post-colonial capitalism with universal thinking in this sense. With this category it is possible to grasp the extent of the “shared catastrophe” all humans have fallen into once they became a geological agent, and to focus not only on internal conflicts within human society but to see it as part of the history of the web of life on the planet.
Is this a viable concept for making sense of the new quality of time and space covered by the relationship between human rights and the right to development in the Anthropocene? Democratic political systems, their institutions and procedures for making legitimate decisions are not adjusted to thinking in terms of the human species. Their concept of the collective has been elaborated and refined on the premise of national jurisdictions and laws. Moreover, democracies and their deliberations rely on the premise of an open future that individuals and groups can shape (and re-shape) according to their preferences.
Two fundamental dimensions of global environmental change are challenging for contemporary democracies: responsibility for decisions that have impacts over long times and for future generations (inter-generational justice) and beyond the national territory and across current generations (intra-generational justice). The cumulative effects of current production and consumption patterns over time reduce future opportunities for human prosperity—enjoying the freedom of an open society today will close the future for the generations to come (actually already for the current generation of children and teenagers) if no corrective action is taken against irreversible global environmental change. There are no practical rules for taking into consideration the rights of future generations into today’s decisions. Extraterritorial responsibilities and the need for respective rules in the area of economic, social and cultural rights have been defined in the Maastricht Principles on Extraterritorial Obligations of States which recur to the UN Charter and human rights instruments, not to the UNDRTD. These principles are only slowly being accepted and translated into law and rules to be followed by non-State actors by some national governments. Others reject them. During the last four decades, economic globalization was advanced through deregulation and liberalization of national markets, and in this process, the notion of public interest to which collective public action is committed has weakened considerably. The less regulation in the public interest seemed necessary and legitimate for human prosperity at national level, the less it was possible to secure effective engagement in global public action for global public goods.
In an open, democratic society, these challenges can only be addressed if the destructive effects of human use of the environment are reflected upon collectively, and if the addressee of the rules is humanity as such (to reflect the threat to human species, following Chakrabarty). This could mean to introduce humanity as a third right-holder in addition to individuals and peoples. From the perspective of nature-society relationships, however, this would also require norms about the relationship between humanity and other plant and animal species.Footnote 33 These challenges need to be taken up by dialogue, debate and decision-making, at local, national, regional and global levels of the executive, in legislatures and the judiciary, in other sectors of society, i.e. academia, the private sector, trade unions, and civil society organisations. Addressing the causes and the impacts of global environmental change on human prosperity, moreover, requires that international cooperation and collective public action in the interest of the global common good be strengthened and intensified.
Two proposals for qualifications to the right to development and, in consequence, as guidance for democratic decision-making, can be derived from this reasoning:
Public/development policies in all countries have to respect the best knowledge on the limits of the earth’s ecosystems and set their objectives and measures accordingly, in order to avoid trespassing local or global boundaries for safe human use of natural resources and sinks, and thus mitigate threats to the existence of humanity.
Public/development policies in all countries shall not diminish the right to development/the full enjoyment of all human rights of others (intra- and intergenerational justice for humanity).
These qualifications and the reasoning and evidence that justify them need to be debated in order to adjust the international legal framework for human rights (and national law) not only to the challenges of economic globalization but also to those of global environmental change.
In 2013, there was a debate whether the UNDRTD should be strengthened by a legally binding framework conventionFootnote 34 or whether this is not necessary as the Maastricht ETO Principles show.Footnote 35 Vandenbogaerde rightly says that the realization of human rights (and of development) requires individual agency, and that the duty of States is to enable individuals to carry out this agency.Footnote 36 Global environmental change, however, shows the limits of individual agency and the urgency of international collective action, as stated in the 2030 Agenda, in the twenty-first century. Maastricht ETO Principle 29 considers that: ‘States must take deliberate, concrete and targeted steps, separately, and jointly through international cooperation, to create an international enabling environment conducive to the universal fulfilment of economic, social and cultural rights, including in matters relating to bilateral and multilateral trade, investment, taxation, finance, environmental protection, and development cooperation’.Footnote 37 It is an advance that environmental protection is mentioned here, although at the same level of priority as financial and economic systemic issues. This ignores the risks of environmental change at species level.
Vandenboegarde goes on: “Both the right to development and the concepts of extraterritorial and transnational human rights obligations indicate that there is a fissure between today’s human rights violations of a structural nature and the existing legal framework. Both share the idea that States and other powerful non-State actors have consequent obligations in filling this fissure, and both have to fight the reluctance or outright refusal of (mostly developed) States to acknowledge those obligations.”Footnote 38
It is clear that states (and non-state actors) do not only need to accept their extraterritorial responsibilities with a view to human rights and their foundation in the dignity of the individual, but also with regard to humans as a collective, the human species.
If humanity is introduced as a third category of right-holders (in addition to individuals and groups), then the norms that rule the relationships between species or life-forms as interdependent parts of the web of life come into focus. A third proposal consequently would be to transcend the conceptual boundaries of human rights and establish the rights of life forms, including humans as well as plants and animals in the broadest sense, and norms that govern their interdependencies.
Summarizing, the fundamental linkages between global environmental change and human prosperity, and the norms established in the 2030 Agenda, the Paris Agreement and the UNDRTD define five new tasks for states as duty bearers. First, states need to regard environmental protection and the provision of global environmental goods as fundamental and necessary areas of public policy and action for the full realization of all three generations of human rights (as defined in Articles 3, 4 and 6 of the UNDRTD). Second, this includes appropriate collective action at national, regional and global levels (legal frameworks, public policies and measures with regard to areas of public responsibility and with regard to respective guidance for non-state actors). Third, states have to ensure that they respect and fulfil extraterritorial obligations directly and indirectly towards people within and beyond their own jurisdiction and towards the global environment. Fourth, they have to respect the rights of future generations when making decisions today that reach out into the future. Finally, states should engage in first steps for developing a normative framework for the rights of all life-forms and the relationships between them.