The Right to Development

The Right to Development: Contributions of the New Haven School of Jurisprudence and Chinese Traditional Culture

By Guiguo Wang*

Introduction

The continuous progress or development of humanity is necessary for its existence. Then the question is whether development is a shared value and right of humanity. If development is a right, who is the subject of that right, and what is the scope and content of the right to development?

According to the Declaration on the Right to Development (DRD), it is incumbent upon states to adopt measures, both singularly and in unison, to forge international development policies aimed at the full actualization of the right to development. The Declaration calls upon all states to cooperate in fostering and fortifying universal respect and adherence to all human rights and fundamental freedoms for the entirety of humanity. Additionally, the Declaration mandates that states take all necessary measures at the domestic level to ensure the actualization of the right to development. This encompasses guaranteeing equal opportunity for all individuals in their access to fundamental resources, education, health services, sustenance, shelter, employment, and equitable income distribution.

This situation is obviously not conducive to the development of human society and may trigger potential disputes in the international community. For instance, some countries have imposed restrictions on exports and investments to other countries in the name of protecting national security. The latter often argue that this is in fact an effort to constrain their development and hence a violation of their right to development. Such conflicts are, in part, a manifestation of the nebulous nature of the right to development.

In view of the above, this Essay intends to draw on the New Haven School of Jurisprudence’s discourse on human dignity and the process of decision-making to examine the contents and scope of the right to development and the direction for its implementation. Considering that China is the second largest world economy, and that its culture impacts the decision-making in the nation, this Essay will explore the discourse of Chinese traditional culture regarding the content and standards of the right to development. Finally, based on the theories of the New Haven School and Chinese traditional culture, this Essay will analyze the trends of the right to development, the challenges in its implementation, and possible solutions.

I. The Evolution of the Right to Development

The Philadelphia Declaration, adopted by the General Conference of the International Labor Organization in 1944, is widely regarded as the earliest international document addressing the right to development. It states that “all human beings, irrespective of race, creed or sex, have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity.”

The Universal Declaration of Human Rights (UDHR), adopted shortly after the founding of the United Nations, declares in Article 22 that everyone “is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.” Therefore, it is evident that economic, social, and cultural rights are inherent to all individuals, and that fulfilling these rights requires not only the responsibility of the individual’s own state, but also the cooperation of other states through international mechanisms.

The International Covenant on Economic, Social and Cultural Rights (ICESCR) in Article 1 affirms that “All peoples have the right . . . [to] freely determine their political status and freely pursue their economic, social and cultural development.” While the UDHR does not carry the weight of a binding treaty, the ICESCR holds the authority of international law, at least for the parties that have ratified it. Furthermore, the ICESCR has garnered widespread support from many states, which illustrates the universal acceptance of the right to development in the international community.

With the attainment of independence by former colonies in Asia, Africa, and Latin America, the international community started engaging in discussions about a new economic order during the mid-20th century. Consequently, in 1969, the UN General Assembly adopted the Declaration on Social Progress and Development. It acknowledges that “the primary responsibility for the development of the developing countries rests on those countries themselves.” At the same time, the Declaration confirms that “Social progress and development are the common concerns of the international community, which shall supplement . . . national efforts.” Therefore, development is the responsibility of states as well as a shared value of the humankind.

The establishment of the right to development took another significant stride with the adoption of the Charter of Economic Rights and Duties of States (CERDS). The CERDS emphasizes international cooperation for development as a fundamental principle to be upheld by states. In the process of such cooperation, states must duly consider the needs of developing countries. While recognizing the “complete and permanent sovereignty” of states over their wealth and natural resources, the CERDS asserts that the primary responsibility of each state is to foster the economic, social, and cultural development of its people.

Another milestone in the advancement of the right to development occurred when 120 countries unanimously adopted the DRD in 1986. This declaration unequivocally recognizes the right to development as an “inalienable human right” and an “inalienable right to full sovereignty.” It is worth noting that the DRD establishes the right to development not only as a collective right but also as an individual right, intended to benefit every human being, including the right to participate in the development process.

The primary objective of individuals’ participation in development is to enable them to “enjoy economic, social, cultural and political development,” thereby ensuring that “all human rights and fundamental freedoms can be fully realized.” The DRD carries several significant implications. Firstly, it establishes the right to development as an undeniable human right, applicable at both national and international levels. Secondly, the right to development encompasses the entitlement of individuals to engage in, contribute to, and benefit from development processes. Thirdly, the implementation of the right to development serves as a means to fulfill human rights and freedoms. Lastly, the comprehensive nature of the right to development encompasses economic, social, and other rights, as highlighted by former Vice-President Weeramantry of the International Court of Justice:

“Development” means, of course, development not merely for the sake of development and the economic gain it produces, but for its value in increasing the sum total of human happiness and welfare. That could perhaps be called the first principle of the law relating to development.

To the end of improving the sum total of human happiness and welfare, it is important and inevitable that development projects of various descriptions, both minor and major, will be launched from time to time in all parts of the world.

The above shows that the right to development has undergone a transformative journey, evolving from a mere aspiration of humanity to a recognized human right. This progress signifies a substantial leap forward. Yet, the actualization of this right hinges on further definitive steps. A pivotal challenge lies in demarcating the content and the boundaries of the right to development. In this context, the UN Charter, with the realization of human dignity and human rights as its aim, inherently establishes a logical and inseparable connection between human dignity and the right to development. Therefore, pursuit of human dignity naturally aligns with the principles enshrined in the DRD.

II. The Right to Development: New Haven School’s Contributions

Human dignity has its roots dating back to ancient times, deeply embedded in the cultures, traditions, and legal systems of diverse nations. It is a concept that resonates with the shared values of humanity. The New Haven School of Jurisprudence played a pioneering role in clarifying the concept of human dignity in the context of human rights. The New Haven School considers society to be composed of various levels, each containing smaller societies, and posits that the rules within these societies involve a decision-making processes. Consequently, when studying and analyzing the laws and rules of a particular society, it is crucial to take into account not only the formal, statutory decision-making procedures but also the actual decision-making process. Building upon the principles outlined in the UDHR, the New Haven School of Jurisprudence suggests that human dignity encompasses eight core values. They are:

1. Power: The making of decisions enforceable by severe deprivations or high indulgences; making and influencing community decisions.
2. Enlightenment: Gathering, processing and disseminating information and knowledge.
3. Respect: Freedom of choice, equality and recognition.
4. Well-Being: Safety, health and comfort.
5. Wealth: Production, distribution and consumption of goods and services; control of resources.
6. Skill: Acquisition and exercise of capabilities in vocations, professions, and the arts.
7. Affection: Intimacy, friendship, loyalty, positive sentiments.
8. Rectitude: Participation in forming and applying norms of responsible conduct.

The New Haven School was also the first to undertake an integrated examination of human rights and human dignity, striving to concretize the concept of human dignity through the lens of human rights. Importantly, however, this list is not regarded as exhaustive but “as a partial indicator of the full complexity of a social equilibrium that would function in harmony with the requirements of human dignity.”

The New Haven School of Jurisprudence has played a vital role in advancing the realization of human dignity by providing clarity on its values, goals, and directions. The New Haven School acknowledges that “the clarification of goal is addressed to anyone who is interested in reducing or eliminating self-contradictory impacts on the social process. We take for granted in some cases that the effect of considering goal values will be to dissolve an apparent consensus, and to bring into view many previously unsuspected differences.” The values associated with human dignity are shared values, representing a common ground. The founders of the New Haven School highlight the dual meanings of “sharing”: distributive sharing and formative sharing.

“The distributive reference is to participation in the control of value outcomes, described according to the degree of equality or inequality. The formative meaning suggests that the amount of a given value available for sharing may be augmented. In general, we are in favor of higher levels of outcome since we are concerned about the size of the cake as well as the proportional size of the slices.”

In essence, the New Haven School is committed to promoting a higher degree of human dignity for humanity as a whole, as well as guaranteeing each individual their fair share of these values. This perspective aligns with the principles of the DRD, which underscores the right of every individual to participate in, contribute to, and enjoy development. The New Haven School’s focus on both collective and individual rights hence resonates with the DRD’s emphasis on inclusive and equitable development for all.

The New Haven School’s approach to human dignity has garnered wide support for the reason that it has “[found] a value-based frame to be useful in understanding the subjective experience of dignity, to crafting policies to foster a commonwealth of human dignity, and to evaluating policies and practices both before and after they have been implemented. . . . Values and value dynamics provide a fundamental framework for talking about the experience of dignity, because they encompass convergent forces arising from the common human experience (e.g., existential concerns) as well as divergent forces arising from different contexts.” The New Haven School’s efforts to clarify the meaning of human dignity have yielded valuable results by refining and concretizing its contents. This has effectively transformed it from a vague moral declaration into a more precise and actionable concept.

As a right in international law, the right to development is a novelty, and its implementation requires a systematic process including the determination of the connotation and scope of the right, the identification of the participants in policymaking and decision-making and their rights, and the procedures for making decisions on the implementation of the right to development. It is a right that extends to individuals and states alike, where the state assumes a dual role: as a holder of the right, entitled to pursue development which must be honored by other states and international entities, and as a bearer of duties, accountable for ensuring that its citizens are equipped to engage in and reap the benefits of the development process. As the DRD and other international documents have shown, the implementation of the right to development requires the cooperation of the international community, which necessarily involves the participation of international organizations and States. Based on the foregoing, decision-making related to the right to development includes at least three levels: international, national, and individual. Considering that there are so many players making decisions and determinations at different levels for the realization of the right to development, there is a need to establish a set of macro-level policies and an operational methodology for decision-making. In this regard, the contribution of the New Haven School of Jurisprudence stands out.

In addition to elucidating the contents and scope of human dignity, which helps define the essence of the right to development, the New Haven School has provided guidance to decisionmakers and other stakeholders involved in the decision-making process. The School argues that any prescription or decision should be accompanied by other functions that are integral to the decision-making process. These functions include:

1. Intelligence, including gathering and analyzing relevant information and data to inform decision-making;
2. Promotion, including advocating and supporting the implementation of the prescribed actions or decisions;
3. Prescription or law-making, including formulating and enacting laws, regulations, or policies to guide actions and decisions;
4. Invocation, is often accompanied by the demand that an appropriate community institution act, including activating or initiating the prescribed actions or decisions;
5. Application, involves the organization of the facts of a particular dispute, the specification of a norm or norms that apply, and the fashioning of a mandatory formulation. When this takes place in a court, it is called a judgment, but it also occurs in informal, unorganized situations, including implementing and carrying out the prescribed actions or decisions;
6. Termination, including conclusion or discontinuation of the prescribed actions or decisions when necessary; and
7. Appraisal, including evaluation and assessment of the effectiveness and impact of the prescribed actions or decisions.

By highlighting these functions, the New Haven School provides a comprehensive framework that assists decisionmakers and others involved in the process by outlining the necessary steps and considerations at each stage. This is particularly important to the implementation of the right to development, considering the multi-level nature of the related decision making.

For the implementation of these seven functions, the New Haven School has introduced four intellectual tasks. They are: (1) certification of standpoint whose performance is pertinent to all seven of the functions; (2) careful selection of focal lenses (including comprehensiveness and contextuality; selectivity; law as authoritative and controlling decision; and constitutive process); (3) a map of community processes; and (4) a praxis of choice-making.

The aforementioned guidance and suggestions of the New Haven School focus on general policymaking and decision-making. In practice, every decision cannot avoid the social environment in which it is made, including the stage of scientific, technological, and economic development, the human environment, and historical traditions. In this regard, the New Haven School cautions decisionmakers that they “should also be aware of certain cultural fantasies that are nourished by some epistemological dynamics within our civilization. One of the reasons why we are not always realistic in our targets for choice or in our timetables for achievement may be due to the mass visual reinforcement, on a daily basis, of a truncated and simplified image of cause and effect through space and time.” Such advice and guidance are obviously contributive to the effective implementation of the right to development.

Undoubtedly, the contributions of the New Haven School to the right to development are vast and extend beyond the aspects mentioned above. However, due to the limitations of space, only a fraction of the comprehensive work undertaken by the New Haven School can be addressed here. It is important to acknowledge that the New Haven School’s efforts encompass a much broader and intricate range of contributions to the understanding, promotion, and realization of the right to development.

III. The Right to Development: Contributions of the Chinese Traditional Culture

Chinese traditional culture plays an important role in guiding, shaping, and regulating social behavior throughout the history of the Chinese nation over many centuries. As a result, it has naturally fostered extensive theories and thoughts about human dignity. This cultural heritage, including Daoism and other philosophical thoughts, provides significant insights into the concept of human dignity, which forms an integral part of the right to development. Chinese traditional culture therefore contributes valuable perspectives and understandings that align with the contents and scope of the right to development.

Daoism, for instance, recognizes the greatness of humans as one of the four great things in the universe: “Dao is great, encompasses the heaven and earth, and is not to be denied by anything. Heaven is great and covers everything. The earth is great and carries everything. The humans are great and regulate over anything.” Thus, humans have a significant role in regulating and harmonizing with the world for maintaining and developing their dignity and importance within the larger cosmic order. To achieve this goal, humans must treat each other with respect, a requirement of human dignity.

The standard postulated by Chinese traditional culture on mutual respect between individuals is that “the man, wishing to be established himself, seeks also to establish others; wishing to be enlarged himself, he seeks also to enlarge others” and that “not to do to others as you would not wish done to yourself.” These thoughts highlight the importance of treating others with courtesy and respect. It is also important that respect should be done to others regardless of their social status, especially that people of higher status should be courteous to those of lower status, because superiority and inferiority are all mutual, and that “dignity finds its root in its meanness, and superiority is based on inferiority.” This is so because there can be no superiority without inferiority and inferiority is the basis for superiority. Therefore, the higher the status of the person, the more he or she should respect those of lower status.

Chinese traditional culture also pays special attention to humans’ self-cultivation, believing that only those who do well in personal cultivation can govern the society well. On this, it articulates that “those wishing to govern well their states, they should first manage well their families. Those wishing to manage well their families, they should first cultivate themselves.” Yet, how should one cultivate himself or herself? The Great Learning, one of the best-known classic books, says, “Wishing to cultivate their persons, one should first rectify his heart. Wishing to rectify his heart, one should first seek to be sincere in his thoughts.” Sincerity which carries the meaning of good faith has always been the standard of social behavior in the Chinese society. In its conduct of foreign affairs, the Chinese government also treats sincerity and good faith as one of the most important principles.

Human health is a fundamental value in human dignity, which is considered as an element of well-being of human dignity by the New Haven School of Jurisprudence. Health of is not confined to a person’s physical status. Equally, the significance of health for individuals extends to both the present and the future. In addition to adequate nutrition and access to medical resources, including medicines and healthcare services, the state of one’s mind is also crucial. Laozi, the philosopher behind Daoism, emphasized the harmonization of physical health and mental well-being, highlighting the essential connection between material and spiritual conditions. Laozi stated that, “When one can unify the spirit and the body as a seamless whole, they become indivisible and inseparable from each other. By giving complete focus to the vital breath and cultivating its utmost flexibility, one can attain a state akin to that of a tender infant. Through the purification of one’s imagination and the elimination of perplexing illusions, one can achieve a state of flawlessness.” This perspective underscores the holistic nature of human health and the importance of nurturing both the body and the mind. Another point is that humans should strive to possess the physical and mental suppleness akin to that of a baby. This encompasses the cultivation of one’s innate essence or “Qi,” which can be understood as the invisible energy present within one’s body that can be consciously regulated through training and practice. In essence, it suggests that humans should aim to attain bodies as pliant as infants and spirits as sincere as babies, which is maintaining a state of natural purity, openness, and authenticity in both physical and mental being.

The above illustrates that the values and principles that Chinese traditional culture articulates resonates with those elucidated by the New Haven School of jurisprudence. They reflect the deep-rooted understanding of human dignity. At the same time, Chinese traditional culture also offers additional principles and standards on human behavior that may help the realization of human dignity and then the right to development.

One of such principles and standards of behavior is good faith. Since ancient times, there has been a famous saying that “when dealing with a countryman, he rested in good faith.” To “rest” means to reach the status of full good faith and integrity. On this, Mencius also said: “There is a way to obtain the confidence of the sovereign: if one is not trusted by his friends, he will not obtain the confidence of his sovereign. There is a way of being trusted by one’s friends: if one does not serve his parents so as to make them pleased, he will not be trusted by his friends. There is a way to make one’s parents pleased: if one, on turning his thoughts inwards, finds a want of sincerity, he will not give pleasure to his parents. . . . Therefore, sincerity is the way of Heaven.” In essence, Mencius believed that true sincerity and honesty are essential for individuals to fulfill their filial duty towards their parents, display genuine love towards their children, and foster strong bonds with their siblings. By embodying these qualities within the family unit, one can earn the trust of both friends and superiors. Consequently, Mencius considered honesty and good faith to align with the principles of Heaven, akin to the concept of Dao in Daoism.

In the view of Laozi, sincerity or good faith holds immense significance in human behavior, but it must also be substantial and sufficient. He emphasized the crucial role of faith in social governance, stating that “when faith was deficient in the rulers a want of faith in them ensued in the people.” It should be noted that Laozi did not merely focus on the presence or absence of faith; rather, he highlighted the importance of faith being adequate. In his view, unless the ruler acts in full or adequate faith, he cannot expect the people to have faith in him. This thought remains a fundamental principle in the Chinese society. It is also relevant in our present world, where faith is occasionally disregarded or even discarded by some leaders.

Tolerance also holds significant importance in realizing the right to development, as emphasized in various international documents, including the UDHR. The value of tolerance is deeply ingrained in Chinese traditional culture, where it is regarded as an essential requirement for human behavior. Sayings such as “the superior man is affable, but not adulatory; the mean man is adulatory, but not affable” and “the superior man is dignified but does not wrangle. He is sociable, but not a partisan” are often quoted in everyday conversations, highlighting the importance of tolerance in the Chinese culture.

Practicing tolerance requires respecting and listening to others while humbly placing oneself in a lower position. Laozi frequently likened human conduct to that of water, stressing that “rivers and seas can receive the homage and tribute of all valley streams because they are skilled at being lower than them.” This analogy theorizes the significance of tolerance in fostering harmonious human relationships and communities. Tolerance becomes even more crucial when people from different countries and regions, with diverse cultures, habits, and traditions, coexist and collaborate. Without tolerance, cooperation becomes impossible, which will hinder development and undermine the realization of the right to development.

Conclusion

The recognition and establishment of the right to development as a human right in international law results from the ongoing progression of human society. It aligns with the inevitability of historical development and harmonizes with the laws of nature or “Dao” of Daoism. Yet, the realization of the right to development is going slowly if at all. In fact, even the recognition of the right to development as a right in international law has not received full support of the international community. This is so perhaps because the right to development has not yet been clearly regulated in a treaty, and its content and scope are not yet clear and specific. The DRD clarifies that the right to development is an inalienable human right, which effectively links the right to development with human dignity under the UN Charter. One of the purposes of the New Haven School Jurisprudence is to systematically examine human dignity in the context of international order. It proposes that human dignity encompasses eight values. Chinese traditional culture has rich theories relating to human dignity, which reflects the understanding of human dignity in the East. Considering that the New Haven School’s approach toward human dignity has been widely supported and recognized, the teachings of human dignity under Chinese traditional culture has the effect of confirming human dignity as a common and shared value of humankind. The effect of this is that the right to development represents the common value and development direction of mankind.

The right to development represents the direction of human development because we still live in a globalized environment, a world in which everyone’s prosperity depends on one another’s prosperity and everyone’s loss will lead to one another’s loss. Living in such a world, people have no choice but to tolerate, support, and help each other. This makes not only the establishment of the right to development a necessity in history, but also its continuous and gradual implementation inevitable for the development of humankind. In this process, in order to achieve the common goal of humankind, people must constantly adapt their behaviors and decision-making processes to accommodate the ever-evolving world. By doing so, everyone is also participating in the shaping of tradition and life pattern of others. “Throughout the globe corresponding developments are under way today wherever ancient forms of social structure and ideology are giving way to an industrial system. It is of great importance to bring the older doctrines—whether they be found in folk societies or industrial civilizations—into the arena of contemporary affairs on the side of freedom.”

In the decision-making process in a highly globalized world, “these traditional doctrines (and their associated patterns) must be taken fully into consideration. Since one of our ultimate aims is the fostering of a world commonwealth on a global scale, we are committed to furthering peaceful cooperation among the millions who have entered the modern epoch with predispositions carrying the imprint of the principal derivational systems of human history.” The New Haven School of Jurisprudence has thus pointed out the direction that the realization of the right to development should follow.

As discussed earlier, the theories and thoughts of Chinese traditional culture not only confirm the values articulated by the New Haven School but also provide the standards of human behavior, which are inevitably applicable to decision makings by humans. This, together with the clarified decision-making functions and procedures postulated by the New Haven School, will certainly help the realization of the right to development.

Based on the above, even though it may not be possible to predict when the right to development will be fully implemented, with the help of the New Haven School’s approach and the theories and thoughts of Chinese traditional culture, the decisionmakers of states, international organizations, and other bodies will have some shared understanding for decision making. As the principles and regulations of international law are rooted in the laws and customs of individual nations, it is desirable for the right to development to be initially implemented at the state level, and the experiences of states will help the implementation of the right to development at the international level, with an aim to formulate a related worldwide mechanism.

* Guiguo Wang is President of Zhejiang University Academy of International Strategy and Law and University Professor of Law, Zhejiang University, Hangzhou, China, He holds a JSD degree from Yale and an LLM degree from Columbia.