Right to Development and Global Governance: Old and New Challenges

Twenty-Five Years On
Balakrishnan Rajagopal

Human Rights Quarterly, Volume 35, Number 4, November 2013, pp.

893-909 (Article)

Published by The Johns Hopkins University Press

DOI: 10.1353/hrq.2013.0063

For additional information about this article

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HUMAN RIGHTS QUARTERLY

Right to Development and Global

Governance: Old and New Challenges
Twenty-Five Years On

Balakrishnan Rajagopal*

Abstract
“Right to Development” (RTD) called for a fundamental transformation of
global governance at its origin. This transformation would enable RTD’s
full realization by overcoming international barriers to greater influence
for the voices of the developing countries in global economic and political
decision-making and to more solidarity. Twenty-five years later, elements of
that agenda have in fact been achieved, enabling greater voice and influ-
ence for some developing countries, while their very success has raised
new challenges to global governance of the future. This article analyzes key
challenges that arise to the future of the right to development due to the
“rise of the rest” and concludes that a fundamental rethinking of RTD and
alternative structural changes in global governance are needed to realize
the moral and political ideals of the right to development.

* Balakrishnan Rajagopal is Associate Professor of Law and Development at the Department

of Urban Studies and Planning and founding Director of the Program on Human Rights and
Justice at the Center for International Studies at MIT (Massachusetts Institute of Technology).
He served for many years with the United Nations High Commissioner for Human Rights in
Cambodia and has consulted with the World Commission on Dams, UNDP, other UN agen-
cies and international organizations and leading NGOs on human rights and international
legal issues. His publications include International Law from Below: Development, Social
Movements and Third World Resistance (Cambridge University Press, 2003), and Reshap-
ing Justice: International Law and the Third World (Routledge, 2008). A slightly modified
version of this article is forthcoming as a chapter in Realizing the Right to Development:
Essays in Commemoration of 25 years of the United Nations Declaration on the Right to
Development (United Nations High Commissioner for Human Rights).

Human Rights Quarterly 35 (2013) 893–909 © 2013 by Johns Hopkins University Press
894 HUMAN RIGHTS QUARTERLY Vol. 35

I. Introduction

The current world economic, ecological, and political crises have high-
lighted a profound challenge to conventional thinking on, and approaches
to, human rights, especially the Right to Development (RTD). Human rights,
primarily economic and social rights, are based on a theory of constant
expansion of the economic pie for all, and RTD is explicitly predicated on
the idea of the nation-state leading the ever-increasing process of economic
and social wellbeing of its citizens through international cooperation and
solidarity. These assumptions have never been more challenged than now:
perpetual world economic expansion is under threat; the real wealth of
the world—not just the economic wealth—may be shrinking rather than
expanding; economic and social wellbeing is increasingly undermined for
the most vulnerable populations of the world; the role of the nation-state is
increasingly contested as a vehicle for development; and the international
community is more divided than ever. The challenge of determining who
is accountable for these worsening outcomes and who will be responsible
for ensuring a different and more sustainable future are central questions
of governance, and for the purposes of this article, of global governance.
RTD could provide a framework for tackling these questions, if it is reori-
ented to include dimensions of limits imposed by social, environmental,
and political factors.1 Indeed, it was realized from the beginning of the
articulation of the right to development in the 1980s that its achievement
hinged on deep-rooted transformations in the authorities, institutions, and
processes of decision-making at multiple levels within which nation-states
pursued their development goals. These levels were not only national and
international but also sub-state and within social systems in constant inter-
action—in other words, a transformation of global governance rather than
simply international governance. It is in this sense that I use the term “global
governance,” instead of seeing “global” as the arena beyond or outside the
state and “governance” as a one-dimensional exercise of authority rather
than an interactive one among layers of decision-making. In this article, I
analyze the inherited challenges of global governance to the realization of
RTD and emerging new challenges that have become apparent.

1. The idea that RTD needs to be rethought without being abandoned is something I have
expressed in many ways before. See Balakrishnan Rajagopal, International Law from Below:
Development, Social Movements and Third World Resistance 219–30 (2003). The idea that
development and RTD have natural and ethically imposed limits, for environmental,
social, and political reasons is inspired by many, including Ivan Illich, Tools for Convivial-
ity (1973), who elaborated the thesis of limits with respect to modern industrial society.
For more on this, see Section IV (D) of this article.
2013 Right to Development and Global Governance 895

ii. RTD and Global Governance: Some Preliminary

Considerations

A. The Relationship Between Development, Globalization, and Human

Rights

Human rights have been brought to bear on globalization in recent years

insofar as decisions made at the meta-state levels—e.g., in international orga-
nizations, foreign governments, and private networks—affect the fundamental
human rights of ordinary people around the world who have little say in
making those decisions. A traditional understanding of human rights as the
rights of citizens of a single state to whom that state owes corresponding
obligations became increasingly untenable as the model of accountability
and justice in a world in which the source of violations and the remedy
for them appeared to arise beyond the traditional regulatory competence
of such states. One usual call to action by human rights policy advocates
has relied on the idea that globalization can be tamed by human rights,
by more participation in the processes of decision-making (usually in the
form of civil society),2 or by developing new norms that impose obligations,
including extraterritorial obligations on States for the conduct of non-state
actors.3 The idea is that there is basically nothing wrong with globalization
except that the weak and the vulnerable get little of its benefits and most of
its burdens. The idea is that if we can somehow tweak, change, or human-
ize globalization, we can then have it all. Many influential writers such as
Joseph Stiglitz articulate this view, which I shall call the dominant view.4
It is fair to say that this assumption is not universally accepted. Many
scholars and practitioners believe that, in the light of our experience with
development and globalization, human rights violations are often essential
for the production and reproduction of wealth and productivity in the eco-
nomic sense. In this view, the violation of human rights is often part and
parcel of what we call successful development or globalization. Such a view
maintains that in fact it is not the denial of development or the exclusion
from globalization that causes human rights violations and economic and

2. U.N. High Comm’r, Analytical Study of the High Commissioner for Human Rights on
the Fundamental Principle of Participation and its Application in the Context of Glo-
balization, U.N. Doc. E/CN.4/2005/41 (23 Dec. 2004), available at [Link]
org/EN/Issues/Globalization/Pages/[Link].
3. See Maastricht Principles on Extraterritorial Obligations of States in the area of Economic,
Social and Cultural Rights, (28 Sept. 2011), available at [Link]
noticeboard/launch-of-maastricht-principles-on-the-extraterritorial-obligations-of-states-
in-the-area-of-economic-social-and-cultural-rights.
4. See Joseph Stiglitz, Making Globalization Work (2006).
896 HUMAN RIGHTS QUARTERLY Vol. 35

social deprivation in general, but rather that the misery of the poor is in fact
a “planned misery,” as Susan Marks has recently called it.5
The above two radically opposing views on the nature of globalization
and its relationship to human rights have a fundamental impact on how we
think about global governance. If we start from the premise that globalization
is essentially benign in its impact on the weak and subalterns, and that the
problem is one of lack of adequate insertion of the poor into global markets,
circuits of capital, and culture, then the reform of global governance yields
one set of proposals.6 Those may include the further democratization of
international organizations by increasing the voice of developing countries
in their governance, increasing the participation of civil society in global
governance, and imposing and enforcing obligations against private entities
and so on.
However, if we start from the premise that globalization is a problem-
atic project because it has a structural bias against the weak, the poor, and
the vulnerable—one which is hard to separate from its logic of production,
consumption, and distribution—we must then address a different set of
reform proposals regarding global governance. Such reforms may be more
far-reaching and fundamental than any which are currently on the global
agenda. They might include fundamental changes to the way markets, finance,
and governance are organized at multiple levels and call for sharp augmen-
tation of the capacity for solidarity, collective action, and self-governance.
There is nothing inherent in RTD that makes us choose one view over the
other, but the politics of that right, and of other human rights, especially the
struggle for economic and social rights, may yet determine such a choice.
It is imperative to bear this structural dimension in mind as we approach
global governance from the perspective of RTD.

B. The Shift from Government to Governance

The second issue that we must consider regarding global governance is the
meaning of the term “governance.” Implied in it is a rejection of the term
“government” as the appropriate frame. Indeed, a shift from government to
governance has been one of the signal shifts of the post-Cold War consolida-
tion of neoliberal democracy on a global scale.7 This shift, which occurred

5. See Susan Marks, Human Rights and Roots Causes, 74 Mod. L. Rev. 57 (2011). There
is a long line of thinking and writing that echoes this across several disciplines, most
recently captured through the post-development critique.
6. A recent example of this, which concludes by advocating reform of international gover-
nance, is Paul Collier, The Bottom Billion: Why the Poorest Countries are Failing and What
can be Done About it (2007).
7. See James N. Rosenau & Ernst Otto Czempiel, Governance without Government: Order and
Change in World Politics (1992).
2013 Right to Development and Global Governance 897

in the literature in international relations, is distinct from, but related to,

the shift to the language of governance in new governance theory8 as well
as to “good governance” in the development field.9 The common ground
between the first two senses of the term “governance” is that a government-
centered regulatory approach to effectiveness and legitimacy of functioning
social and economic systems is no longer adequate. This is due to many
reasons, including the rise of non-state actors, networks among them, their
ability to act in situations where conventional state-based action seemed
to be lacking, as well as the absence of supranational systems of order. But
at a deep normative level, the governance focus was too often parasitic on
the good governance agenda, which articulated an ideal vision of what the
limits of state action ought to be.10 It was postulated that such an approach
must emphasize deregulation, privatization, public-private partnerships,
decentralization, democratization (often procedural), human rights (often
thin versions), and transparency. The problems of this ideal vision have,
during the last two decades, become apparent, and in many respects, it has
been abandoned in practice. This is not the place to discuss these problems
at length, but it can be noted that the good governance agenda served to
undermine the development potential of robust state action while disciplin-
ing the populations using a highly limited and hypocritical deployment of
human rights and democracy.11 Robust state action is now, once again,
recognized as central to development success12 while the need to ensure the
accountability of states through human rights and democracy is also well

8. The literature is vast. See, e.g., Bob Jessop, The Rise of Governance and the Risks of
Failure: The Case of Economic Development, 50 Int’l Soc. Sci. J. 29 (1998); Orly Lobel,
The Renew Deal: The Fall of Regulation and the Rise of Governance in Contemporary
Legal Thought, 89 Minn. L. Rev. 342 (2004).
9. See, e.g., World Bank, World Development Report: Building Institutions for Markets 5 (2002);
International Monetary Fund (IMF), Good Governance: The IMF’s Role (1997); World Bank,
Governance: The World Bank’s Experience (1994); United Nations Development Programme
(UNDP), Reconceptualising Governance (1997); Daniel Kaufmann et al., Governance Mat-
ters: From Measurement to Action, 37 Fin. & Dev. 2 (June 2000); Merilee Grindle, Good
Enough Governance Revisited, 25 Dev. Pol’y Rev. 553 (2007).
10. This is not often recognized. For an attempt to recognize the distinct deployment of
the term “governance” that nevertheless does not make this link, see Thomas G. Weiss,
Governance, Good Governance and Global Governance: Conceptual and Actual Chal-
lenges, 21 Third World Q.795 (2000).
11. See, e.g., James Gathii, Good Governance as a Counter Insurgency Agenda to Opposi-
tional and Transformative Social Projects in International Law, 5 Buff. Hum. Rts. L. Rev.
107 (1999).
12. The heterodox literature that processes this point is by now vast, starting with Gerschen-
kron, and extends through Amsden, Chang, and Rodrik. See Alexander Gerschenkron,
Economic Backwardness in Historical Perspective: A Book of Essays (1962); Alice Amsden, The
Rise of the “Rest”: Challenges to the West from Late Industrializing Economies (2003); Ha-Joon
Chang, Kicking Away the Ladder: Development Strategy in Historical Perspective (2002); Dani
Rodrik, Why Do More Open Economies Have Bigger Governments?, 106 J. Pol. Econ.
997 (Oct. 1998).
898 HUMAN RIGHTS QUARTERLY Vol. 35

recognized. Where one or the other is missing, it has produced undesirable

and often violent social consequences. The recent rise of global protests and
instability is a consequence.
An approach to global governance must begin by clarifying what one
means by governance, and in particular, whether or not it is related to good
governance with its anti-Third World government ideology. A global gover-
nance agenda is doomed to fail if it is grounded on the idea of disciplining
states and celebrating private actors while failing to recognize the centrality
of states for positive economic and social outcomes, or if it celebrates a nar-
row understanding of development while sacrificing accountability of state
and private actors. Rather, the challenge we face is the need for a global
governance agenda that reinstates accountable and embedded statehood as
part of the solution, while committing itself to deep democratic structural
transformation of such states, private networks, and supranational systems
of order, and the creation and strengthening of norms and structures to hold
states and other actors accountable to their commitments.

C. Where and What is “Global” in Global Governance?

The third issue that needs to be clarified in advance is the meaning of the
word “global” in global governance. Where is global located? What is its
spatial, geographical domain and how does that relate to other spatial
boundaries that we use in political discourse such as that of the nation,
village, city, or home? This question is central to understanding the ambit
and the reach of global governance reform that one must propose to bring
about an improvement in RTD. If one assumes that global is whatever is
outside or beyond the reach of all nation states, such as the regulation of the
Antarctic, high seas, or outer space, governance of such domains is properly
the subject of transnational efforts beyond the state. However, there is no
self-evident reason—if there ever was one—why this should be the case at
the current world juncture.
I have argued for many years that there is a need to move beyond a
physical, geographical understanding of international order to a cultural ge-
ography that takes place, community, and culture more seriously as grounds
of resistance, resilience, and rebuilding.13 In many domains of development
practice, it is evident that global influences the local and that local can
often be understood only as the interplay of many forces that include the

13. Balakrishnan Rajagopal, Locating the Third World in Cultural Geography, 15 Third World
Legal Stud. 1 (1998–1999) (Special issue on Postcolonialism, Globalization, and Law).
2013 Right to Development and Global Governance 899

global.14 To take one example, regulation of land use in Mexico by local

communities might be governed by normative and institutional systems of
law that stretch from the local to the national and international—i.e., both
Mexican and NAFTA regulation—such that it is impossible to say where a
site of production of “the global” might be.15 It is everywhere from the actual
site of the land and community to the NAFTA tribunals, which may hear the
case in Canada. To “govern” such a global phenomenon, one needs change
at all of those levels in order to protect the human rights of Mexicans af-
fected by such land use. Without such a comprehensive understanding of
the term “global,” there is a perennial danger that we are like the proverbial
blind men groping in the dark around an elephant.

III. RTD and Global Governance: Challenges at the Origin

The key demands of developing countries when the UN Declaration on

the Right to Development (DRTD) was adopted in 1986 focused on the in-
ternational barriers to development, although the DRTD itself attempted to
alter the meaning and process of development in profound ways to position
the “human person” as the central subject of the development process.16
Among the international barriers identified were: the lack of democracy
at the international level and the resulting concentration of economic and
political power of the North; the rigged rules of the system which worked
against developing countries; the precarious condition of self-determination
in developing countries; the lack of effective sovereignty over natural re-
sources due to the aggressive interventionist policies of powerful countries;
and the prevalence of structural conditions that prevented the state in the
developing world from performing a more robust function in economic
policy formulation, coordination, and implementation due to the prevail-
ing neoliberal economic orthodoxy in the 1980s. As a legal claim, the

14. There is a long line of work that posits and defends such a meaning of the term “global,”
from Saskia Sassen to Arjun Appadurai. See, e.g., Saskia Sassen, Globalization and its Dis-
contents (1998); Arjun Appadurai, Deep Democracy: Urban Governmentality and the
Horizon of Politics, 13 Envir. & Urb. 23 (Oct. 2001). See also Arif Dirlik, Globalism
and the Politics of Place, in Globalisation and the Asia-Pacific: Contested Territories (Kris
Olds, Peter Dicken, Philip F. Kelly, Lily Kong, & Henry Wai-chung Yeung eds., 1999).
15. For an example see the Metalclad case in Mexico: Arbitral Award in the Case of
MetalClad Corporation and United Mexican States, Case No. ARB(AF)/97/1 (30 Aug.
2000), Presided over by Sir Elihu Lauterpacht. For a discussion, see Fernando Bejarano
González, Investment, Sovereignty and the Environment: The Metalclad and NAFTA’s
Chapter 11, in Confronting Globalization: Economic Integration and Popular Resistance in
Mexico, (Timothy A. Wise, Hilda Salazar, & Laura Carlsen eds., 2003).
16. Declaration on the Right to Development, UNGA Res. 41/128, Pmbl., U.N. A/RES/41/128,
Declaration on the Right to Development (4 Dec. 1986).
900 HUMAN RIGHTS QUARTERLY Vol. 35

RTD attempted to reassert the primacy of national sovereignty in economic

policy making while claiming that RTD imposed international obligations
on richer countries and on the international system for a more redistributive
world order, which was also a more level playing field in economic terms.
It is fair to say that the original demands of developing countries relating
to the RTD were more focused on changes in the international order than
on changes within states to achieve rights-based development outcomes,
as they understood in more recent years. The latter meaning, which has
attempted to resurrect the more radical meaning of DRTD as the right of
individuals although with imperfect corresponding obligations, has animated
the work of UN experts and academics,17 and given substance by the actual
struggles of social movements and activists on the ground against the costs
of development. But in assessing the meaning of DRTD and its implications
historically, one must consider the original challenges as envisaged by its
leading proponents. They had more to do with international barriers.
In reflecting upon the twenty-five years since then, one must render a
verdict that the record of achievement of the original demands of the RTD
with respect to international barriers has been a mixed bag. In fact the
developing countries have succeeded in resurrecting the idea of the strong
state in economic policy formation and implementation, which is under-
girded by a strong sense of national sovereignty.18 There is even a sense that
industrial policy is now back in action as a policy tool, even in western
circles. Large and medium sized developing countries have also benefited
from the state-based systems of supranational order, especially the World
Trade Organization (WTO).19 Unfair trading rules and unilateral punitive
measures in trade relations persist but are increasingly challenged at the
WTO, while the rules-based regime has been exploited by large developing
countries to increase their “policy space.” Terms of trade between developing
and developed countries have changed for the better, although they tend
to be dominated by exporters of fuels and mining products.20 Exporters of

17. The late Arjun Sengupta, Prof. Philip Alston, Prof. Stephen Marks, and Prof. Upendra Baxi
are foremost in this regard. See, e.g. Arjun Sengupta, Fifth Report of the Independent
Expert on the Right to Development, U.N. Doc. E/CN.4/2002/WG.18/6 (18 Sept. 2002);
See also Philip Alston, Ships Passing in the Night: The Current State of the Human Rights
and Development Debate seen through the Lens of the Millennium Development Goals,
27 Hum. Rts. Q. 755 (Aug. 2005); Stephen Marks, The Human Right to Development:
Between Rhetoric and Reality, 17 Harv. Hum. Rts. J. 137 (2004); Upendra Baxi, Develop-
ment as a Human Right or as Political Largesse? Does it Make any Difference?, (2006).
18. Even the Economist recognizes the rise of the state again, in the form of the “visible
hand,” or state capitalism in emerging economies. See The Visible Hand, Economist (21
Jan. 2012), available at [Link]
19. Alvaro Santos, Carving Out Policy Autonomy for Developing Countries in the World
Trade Organization: The Experience of Brazil and Mexico, 52 Vir. J. Int’l L. 551 (2012).
20. See United Nations Conference on Trade and Development (UNCTAD), Development and
Globalization: Facts and Figures 10 (2008).
2013 Right to Development and Global Governance 901

agricultural commodities continue to suffer from long-term negative terms of

trade, thereby revealing the structural conditions under which global capital-
ism operates. Very little has been done to improve their conditions including
through long-advocated international mechanisms such as buffer stocks and
price support, or even extending DFQR (“Duty Free, Quota Free”) market
access to LDCs (“Least Developed Countries”).21 Similarly, while South-South
trade flows have also vastly increased, they have tended to create new rela-
tions of domination, especially by large raw-material consuming countries
like China.22 All this has undoubtedly been made possible by globalization
and the resultant circulation of capital, technology, culture and manufactur-
ing. Western domination of capital and technology has decreased, even as
it persists in the formal structures of international economic and political
governance continue to be dominated by them. The rise of new contenders to
power, especially China and the other “BRICS” (Brazil, Russia, India, China,
and South Africa), has posed new questions of power and accountability
unlike those faced by the first generation of DRTD champions. In particular,
the very same forces that enabled medium and large developing countries
to exploit globalization have also revealed serious fissures in the solidarity
of developing countries, which were the original champions of the DRTD,
and have given rise to new challenges of global governance.

IV. New Challenges of Global Governance

for Realizing RTD

The new challenges of global governance that matter for RTD are four-fold:
the changing character of global governance and where it is located; the
geopolitics of RTD due to the rise of the “Rest,” including the BRICS, and
the transformation of the global development agenda due to their rise; the
reorientation of the Third World, the traditional constituency of RTD, and
the emergence of a more counter-hegemonic form of the Third World; and
the global crisis of ends and means. This was most visibly seen in the global
financial and economic crisis that burst forth in 2008, and strongly suggests

21. Indeed, the dire situation of the LDCs reveals the stagnant or negative progress made
in achieving the goals of the DRTD. Only three countries have “graduated” from the
status since the 1980s even as most global poor do not live in LDCs anymore, but
rather in middle income and emerging economies like India. For an assessment and
proposal, see the Istanbul Declaration of the Academic Council on the occasion of the
Fourth U.N. Conference on Least Developed Countries, Istanbul, Turkey (13 May 2011),
available at [Link]
pdf?OpenElement [hereinafter Istanbul Declaration].
22. For a recent assessment of South-South trade, see Bailey Klinger, Is South–South Trade
A Testing Ground For Structural Transformation?, UNCTAD, Policy Issues in International
Trade and Commodities Study Series No. 40 (2009).
902 HUMAN RIGHTS QUARTERLY Vol. 35

that RTD can no longer rest on a conception of development that is merely

rights-friendly, humane and participatory, and otherwise neoclassical, but
must reckon with the limits to development itself, and must reckon with the
implications of such an approach for human rights. These challenges are
by no means the only ones, nor are they entirely new, but they appear to
have gained sharp momentum in recent years and have shown the need to
rethink RTD in new and even daring ways.

A. Changing Characteristics of Global Governance

The nature of global governance—who governs, at what level, how, and

toward what end—has become a central issue with deep implications for
RTD. As mentioned previously, global governance is an ongoing project of
transformation in which neither the location of regulation nor the scale of
the activities encompassed is set already. Global governance is not merely
what lies beyond the nation-state; it is also what lies in between and below,
and how all of those levels relate to one another. Reforms of the UN system,
or of international organizations such as the WTO or the Bretton Woods
institutions, are a necessary but not a sufficient condition of real change in
global governance. The first reason why this is the case has to do with the
question of who governs. The world that existed before 1986, when RTD
was adopted, was much less characterized by the fluidity of identities, the
rapidity of cultural and financial flows, the thickness of private networks of
NGOs, or private actors than those that characterize today’s world. It was
a world wherein the nation-state had a much more central role in imagina-
tion. The state was expected to govern its population internally and statist
organizations like the UN were expected to coordinate actions towards
achieving the goals of RTD.
Now it is not clear if the state alone governs, if it ever did. Private net-
works, NGOs, humanitarians, business enterprises, and quasi-public sover-
eign entities all function with much more authority and effectiveness in a
range of security, economic, environmental, and other domains. To analyze
this transformation is not within the purview of this article, but it may be
noted that many research projects of global governance are underway to try
to comprehend the nature of the changes outlined above, such as “global
administrative law,” autopoiesis, law and regulation, global expertise, etc.23
In each of these modes of comprehension, global governance takes place
in different locations—for some it is in the expertise of professionals, for

23. For an analysis of these various approaches to global governance, see David Kennedy,
The Mystery of Global Governance, 34 Ohio N. U. L. Rev. 827, 842–45 (2008).
2013 Right to Development and Global Governance 903

others it is in the inexorable mechanisms of domination and power, and

yet for others, it is in the social and cultural domains of meaning-creation.
To give one example of this complexity, the climate change regime
is not only composed of states, treaties, standards, and the behavior of
formal participants in the circulation of norms and institutions. It is also
found in the interstices of finance in the form of climate change bonds, or
in the form of NGO intervention in local land use by rural and indigenous
people in regimes such as the UN Programme on Reducing Emissions from
Deforestation and Forest Degradation.24 To imagine changes to the global
governance of climate from an RTD perspective, one must change all of
these mechanisms and actors, their expectations, interests and values, and
the way they relate to one another. The complexity of effecting change at
so many levels makes the project of global governance much more difficult
from an RTD perspective compared to the more limited apparent challenge
of global governance in the 1980s. The stakes of effecting change in climate
change may also differ fundamentally depending on the vantage point of
those effecting change—a UN official, a government bureaucrat, a village
chief or a climate change expert from a University. It will raise basic ques-
tions about the ends of governing climate and for whom governance is
intended. These factors combine to introduce a powerful reality check on
which global governance reform is the right one from an RTD approach.

B. Rising Powers and the Transformation of the Development Agenda

A second challenge to global governance is introduced by the rise of the

“Rest”—the formerly colonized or marginalized countries, which have
come to achieve rapid progress in economic terms and a certain measure
of political, if not military, power. This rise has serious implications for the
geopolitics of the RTD and the meaning of the development agenda.
At one level, the rise of these powers, especially in the form of the BRICS,
has resulted in the demand for changes in the governance of international
organizations and has led to the rise of new groupings such as the G20,
which has now supplanted the G8 as the world’s economic club of nations.
Demands for a “second Bretton Woods” were heard after the 2008 global
financial crisis, and led to a new lease of life for the International Monetary
Fund (IMF), which stood discredited and underutilized by then.25 Now the
IMF has replenished its funds, and the quotas of member states have been

24. UN-REDD Programme (2008), available at [Link]

[Link].
25. See Ngaire Woods, Global Governance After the Financial Crisis: A New Multilateralism
or a Last Gasp of the Great Powers?, 1 Global Pol’y 51 (Jan. 2010).
904 HUMAN RIGHTS QUARTERLY Vol. 35

increased. In particular, the voices of emerging economies such as China,

Brazil, Russia, and India have been increased through an amendment in
2008 and another (yet to enter into force) in 2010.26 By contrast, the reforms
of the World Bank, the UN Security Council, and the WTO have not seen
much movement. The proponents of RTD have advocated many of these
reforms for a long time. There is a question of why IMF reform has begun,
however weakly,27 while the reform of others stagnates. The answers lie
partly in the political economy of development and globalization in today’s
world. The response by the BRICS to these halting reforms also shows the
changed conditions of development and globalization.
In short, one can attribute the limited progress on reform of international
organizations to the global financial crisis and the resultant policy weakness
of rich countries in macro-economic terms. As the crisis exposed the weak-
ness of the currency regime prevailing in the world, including the status of
the US dollar as a reserve currency and the overleveraged nature of private
debt, the role of credit and borrowing from countries such as China became
imperative as a tool to manage the crisis. The rise of sovereign wealth funds,
primarily from emerging economies or economies that experienced a com-
modity boom, weakened the grip of Western capital over global liquidity. The
reforms at the IMF can be explained primarily due to this weakening and the
lessons learned by the IMF about the value of short-term capital controls—a
reversal of its orthodoxy from the 1990s during the Asian economic crisis.
The reform of the other organizations does not have the immediacy and
urgency that the global financial crisis provoked and the resistance of the
rich countries continues unabated.
The BRICS have responded to this impasse by considering alternatives to
the current system of global governance. They have held five summits since
2009 (with a sixth planned for 2013), have strengthened their economic
interactions, including trade, and have tried to coordinate policy on issues
like Libya, Syria, and Iran, with partial success.28 At their summit in China
in April 2011, the BRICS adopted the Sanya Declaration, which spells out
a different vision for international relations from the current US-dominated
world system—vision that perhaps bears more similarity to the original vi-
sion of the UN Charter.29 For instance, implicitly rejecting the use of force
under emerging principles of the Responsibility to Protect (R2P), the Sanya
Declaration pronounces, “We share the principle that the use of force

26. See Press Release, The IMF’s 2008 Quota and Voice Reforms Take Effect, No. 11/64 (3
Mar. 2011).
27. See Woods, supra note 25.
28. See Fifth BRICS Summit Declaration and Action Plan (27 March 2013), available at
[Link]
29. See BRICS, Sanya Declaration (14 Apr. 2011), available at [Link]
04/14/content_1844551.htm.
2013 Right to Development and Global Governance 905

should be avoided. We maintain that the independence, sovereignty, unity

and territorial integrity of each nation should be respected.”30 At the March
2012 meeting in New Delhi, they announced their intention to create closer
financial integration, starting with the creation of a benchmark equity index
derivative shared by the stock exchanges of the five BRICS nations (which
would be cross-listed, so stocks can be bought in local currencies), as well
as a BRICS development bank modeled on the Brazilian development bank,
Banco Nacional de Desenvolvimento Econômico e Social (BNDES), and a
possible competitor to the World Bank (which can extend credit guarantees in
local currencies).31 In the Sanya Declaration, the BRICS countries also make
it clear that they will pursue diversification of world currencies, including
the possibility of replacing the US dollar as the world’s reserve currency
by Special Drawing Rights (SDR) or some other basket of currencies. These
are significant steps to reform global economic governance, although they
could turn out to be hegemonic as well. Importantly, the BRICS countries
are pursuing reform of global governance through two tracks—one that
pushes for greater voice for them in existing institutions such as the Bretton
Woods institutions, and another which explores alternatives to the existing
system itself.
A final note on the impact of the rise of the “Rest” on global gover-
nance: it is clear from the various BRICS declarations that they aim to offer
an alternative blueprint to global governance which may not necessarily
result in an RTD-friendly approach. In particular, the BRICS’ summit decla-
rations have barely mentioned human rights as an important element in the
world order which they seek to establish. Instead, the emphasis is solely on
sovereignty and territorial integrity based on the UN Charter. This can be
contrasted to the Bandung Declaration of 1955,32 the founding moment of
the Third World in international relations, which mentioned human rights
as a central element in the kind of world order that those countries wished
to establish. The absence of human rights in the BRICS’ declarations may
not mean that they seek to ignore the importance of human rights, but may
rather indicate their level of discomfort at the way in which the West has
made recourse to rights as a toxic pretext for use of force and other illegal
interventions. The question is whether the new BRICS approach may lead
to the toleration of problematic means and ends in their respective fields

30. Id.
31. See BRICS, Delhi Declaration (29 Mar. 2012), available at [Link]
ref_notes/82.
32. For a discussions of the importance accorded to human rights at the 1955 conference,
contrary to popular misconception that the Third World was always anti-human rights,
see Roland Burke, “The Compelling Dialogue of Freedom”: Human Rights at the Bandung
Conference, 28 Hum. Rts. Q. 947 (2006).
906 HUMAN RIGHTS QUARTERLY Vol. 35

of development and economic cooperation with less powerful developing

countries, for example between African nations and China or India. More
importantly, the idea that the human person is at the center of the develop-
ment process, a central contribution of the RTD, appears to be absent in
the BRICS’ approach.

C. The Reorientation of the Third World and the Emergence of a

Counter-Hegemonic Global South

I have detailed elsewhere the ways in which the category “Third World” is
no longer just a collection of states united by ideology, economic develop-
ment, and a shared sense of historic wrongs, but is instead a fragmented idea
with a hegemonic and a counter-hegemonic frame.33 Indeed, the transition
from Third World to global South is indicative of this fragmentation and
reorientation. It is by now the case that the Third World is a collection of
social movements and collective mobilizations of workers, peasants, farm-
ers, urban poor, women, indigenous peoples, and many others who do not
benefit from the insertion of the Third World into the global economy or
who share costs and benefits disproportionately. While many of these move-
ments are embedded in, or intertwined with, states and statist structures such
as the UN, states and statist structures have themselves become an arena
of contestation between hegemonic and counter-hegemonic social forces.
The rise of counter-hegemonic and hegemonic forces in the Third World
poses serious challenges of global governance to the RTD but also an op-
portunity to reinvent itself. The challenges posed by global social movements
to global governance are indicated by the motto of the World Social Forum:
“Another World is Possible.”34 In this approach, social movements seek to
be both modern and different, and not caught up in the binary of modernity
versus tradition. The challenge that they pose is one of epistemology and
ethics as they seek to problematize the superiority of expert knowledge, the
overreliance on professionalism, the over-bureaucratization of social life,
the pervasiveness of power and its tendency to corrupt, and the possibilities
inherent in collective action and solidarity. Many of these challenges are, as
noted above,35 the ones identified by current analysts of global governance as

33. See Balakrishnan Rajagopal, Counter-Hegemonic International Law: Rethinking Human

Rights and Development as a Third World Strategy, 27 Third World Q. 767 (2006); see
also Rajagopal, supra note 1.
34. See Are Other Worlds Possible?: Talking New Politics (Jai Sen & Mayuri Saini eds., 2005);
World Social Forum: Challenging Empires (Jai Sen & Peter Waterman eds., 2d ed. 2007);
Boaventura de Sousa Santos, The Rise of the Global Left: The World Social Forum and Beyond
(2006).
35. See Kennedy, supra note 23, and the accompanying text.
2013 Right to Development and Global Governance 907

key to the understanding of today’s world and of the possible ways to govern
it better. From an RTD perspective, these challenges reveal the limits of its
current framing but also show ways in which it can be made more relevant
to the counter-hegemonic global south. It is no secret that the RTD framing
has not had a significant impact as a tool of struggle or activism in the hu-
man rights field, but rather has remained esoteric at the level of geopolitics
of the nation-states. This can be contrasted to the way other human rights,
including economic and social rights, are deployed in struggles around the
world. It is partly this failure to “connect” with the real politics of human
rights that has kept the RTD weak. The radical potential in it can be unleashed
well if it links creatively with the politics of the counter-hegemonic South.
The work by Arjun Sengupta, the former UN expert on RTD, on the
measurement of poverty in India in the unorganized sector, is one example
of how expert knowledge can be deployed in counter-hegemonic ways to
help those who need RTD most.36 RTD must expand its domain to include
active political engagement on a range of issues which have multiple dimen-
sions—such as economic, security, livelihood, ecological, and accountability
dimensions—as it serves as a Grundnorm of the human rights regime to
legitimate the voices of the most marginalized.

D. Limits to Development and its Implications for RTD

The most difficult challenge for the RTD from the perspective of global gov-
ernance is the one posed by the crisis of development and the models of
human rights—especially economic and social rights—now revealed most
clearly in the form of the global economic crisis that burst forth in 2008. The
debate over the DRTD in the 1980s was characterized by the double sense
that developing countries were deprived of the fruits of modern technology
and economic and social progress due to the unjustified and oppressive
policies of the rich countries, and that development was unfair in process
and outcome to the rights of individuals and communities within states. Ergo,
the reasoning went, development should be expanded, countries should
grow economically, and the standard of living for everyone must go up to
catch up with the best of the West. However, this catching-up rationale had
an insidious and self-defeating logic to it. So long as the planet can sustain
economic growth, endless growth is indeed possible. But that assumes that

36. National Commission for Enterprise Unorganized Sector, Report on conditions of work
in the
and promotion of livelihoods in the unorganised sector,
at i (2007), available at [Link]
[Link]/file/d/0B9w08mnxUvF9U2JSOWFtUi1US2VkSm0xR3BacFhUZw/edit?pli=1.
The report found that 77 percent of India’s population lives under Rs. 20 per day, deeply
contradicting more rosy Indian government and World Bank estimates.
908 HUMAN RIGHTS QUARTERLY Vol. 35

the real costs of economic development and globalization, in human and

environmental terms, can be fully accounted for, assessed when they go too
far, and mitigated before crisis becomes catastrophe. The barriers to such
honest accounting and response are well known by now—the myopia of
expertise and specialization, the narrow professionalism of the ruling class,
the lack of ethical regard for the values of human solidarity, and the self-
serving exploitation of the weak and of the planet’s resources. Under these
circumstances, it is hard to see how RTD can rely on an ever-expanding
notion of development, material progress, and standard of living. Instead,
it is necessary to think of an approach to RTD wherein “development” is
within limits, both natural and ethical, to the industrial and globalizing
model, unlike the limitless model dominant today and in the past.
The 2008 global economic crisis is only a symptom of deeper underly-
ing malaise. It is a crisis of development itself—not just of growth, but of
the broader idea that a constant improvement in living standards and even
happiness is possible through technology, science, and rational thought,
and that development is realized through an increase in wealth. The basic
idea that the crisis is due to mistakes committed by a few “bad apples”—
Lehman Brothers, or overleveraged banks, or spendthrift Greeks or Irish—is
a mistaken understanding of the root of the problem. Rather, it has to do,
borrowing from Joseph Schumpeter, with a process that I will call “destruc-
tive creation.” Schumpeter, of course, is famous for his theory of “creative
destruction” to describe the process of economic innovation in capitalism
which destroys old structures and creates new ones and would, he argued,
eventually lead to capitalism’s demise.37 I want to flip this over—following
a more accurate Marxist reading of creative destruction by David Harvey
and others—to say that, in fact, the development process is more accurately
described as destructive creation.38 To create anything of value, it needs to
destroy what existed before; in relying on the idea of scarcity—which is at
the heart of economic theory—the process of development in fact leads to a
ceaseless accumulation, consumption, and destruction of resources.39 Every
act of creation of value in the economy now involves more destruction than
creation. Following this reasoning, the current economic crisis is structural
and not exceptional.

37. See Joseph Schumpeter, Capitalism, Socialism and Democracy (3d ed. 1962).
38. See David Harvey, Neoliberalism as Creative Destruction, 610 Annals Am. Acad. Pol. &
Soc. Sci. 22 (2007).
39. For an earlier attempt to argue along the same lines that the idea of scarcity drives much
of legal imagination in international law and human rights and why this is unsustain-
able, see Balakrishnan Rajagopal, International Law and the Development Encounter:
Violence and Resistance at the Margins, 93rd Am. Soc’y Int’l L. Proc. 16 (1999). See also
Leslie Sklair, Social Movements and Global Capitalism, in The Cultures of Globalization
(Frederic Jameson & Masao Miyoshi eds., 1998). He has articulated a critique of what
he calls the “culture-ideology of consumerism.” Id. at 302.
2013 Right to Development and Global Governance 909

The crisis indicates that the model of economic development and

globalization which is dominant today is based on a process of destructive
creation, which is not morally, economically, or environmentally sustain-
able. A search for alternatives through RTD must begin by critiquing these
foundational assumptions, which permeate the legal, social, political, and
cultural orders which defend development and globalization. As Immanuel
Wallerstein asked recently: “[A]fter development and globalization, what?”40
There is a broad recognition of the inherent limits of an economic model
which is based on scarcity, unending accumulation, and consumption instead
of human wellbeing and happiness. There are signals coming from stressed
civilizations and a stressed planet that the path we are on is unsustainable.

V. Conclusion

The DRTD shattered many shibboleths in world politics, international law,

and human rights even as it confirmed the centrality of many others. It tried
to shift the focus of development, which had remained nation-state centered
in legal terms, to individuals and communities; it posited an ethic of solidar-
ity as a soft legal obligation, giving substance to Article 28 of the UDHR;41
it reinforced the centrality of participation in the development process as
a key to making it better; it articulated the Gandhian idea that the purpose
of development was the fulfillment of human personality; it fulfilled the
geopolitical needs of a frustrated Third World coalition at the UN which
had seen its demand for a new international economic order ignored by the
West. Despite these impressive achievements, DRTD remained disconnected
from the real politics of human rights, which arose from the struggles of
social movements; it gave ideological cover to a sovereigntist approach to
development, which actually ignored human rights, and most importantly,
it remained wedded to a vision of development and human rights without
limits. The global economic crisis from 2008 reveals most clearly the prob-
lems with these dimensions of RTD, even if it highlights the need to recover
the more progressive elements of RTD. The stakes of global governance for
achieving such a progressive vision of RTD have never been higher.

40. See Immanuel Wallerstein, After Development and Globalization, What?, 83 Soc. Forces
1263 (2005).
41. Universal Declaration of Human Rights, adopted 10 Dec. 1948, G.A. Res. 217A (III),
U.N. GAOR, 3d Sess, art. 28, U.N. Doc. A/RES/3/217A (1948) states: “Everyone is
entitled to a social and international order in which the rights and freedoms set forth
in this Declaration can be fully realized.” For an articulation of the importance of this
revolutionary idea in today’s world for the world’s most marginalized, see Istanbul
Declaration, supra note 21.