Evolving Paradigm of Right to Development in International Human Rights Law and Its Transformation into the National Legal System: Challenges and Responses in Pakistan

Authors: Naeem Ullah Khan, Kalsoom Khan

Abstract:

No state can be progressive and prosperous in which a large number of people is deprived of their basic economic rights and freedoms. In the contemporary world of globalization, the right to development has gained a momentum force in the domain of International Development Law (IDL) and has integrated into the National Legal System (NLS) of the major developed states. The international experts on human rights argued that the right to development (RTD) is called a third-generation human right which tends to enhance the welfare and prosperity of individuals, and thus, it is a right to a process whose outcomes are human rights despite the controversy on the implications of RTD. In the Pakistan legal system, the RTD has not been expressly stated in the constitution of the Islamic Republic of Pakistan, 1973. However, there are some implied constitutional provisions which reflect the concept of RTD. The jurisprudence on RTD is still an evolving paradigm in the contextual perspective of Pakistan, and the superior court of diverse jurisdiction acts as a catalyst regarding the protection and enforcement of RTD in the interest of the public at large. However, the case law explores the positive inclination of the courts in Pakistan on RTD be incorporated as an express provision in the chapters of fundamental rights; in this scenario, the high court’s of Pakistan under Article 199 and the supreme court of Pakistan under Article 184(3) have exercised jurisdiction on the enforcement of RTD. This paper inter-alia examines the national dimensions of RTD from the standpoint of state practice in Pakistan and it analyzes the experience of judiciary in the protection and enforcement of RTD. Moreover, the paper highlights the social and cultural challenges to Pakistan in the implementation of RTD and possible solution to improve the conditions of human rights in Pakistan. This paper will also highlight the steps taken by Pakistan regarding the awareness, incorporation, and propagation of RTD at the national level.

Keywords: Globalization, Pakistan, RTD, third-generation right.

Digital Object Identifier (DOI): doi.org/10.5281/zenodo.2643671

References:

[1] Sengupta A, Negi A, Basu M. Reflections on the Right to Development: Sage; 2005.
[2] Arts K, Tamo A. The Right to Development in International Law: New Momentum Thirty Years Down the Line? Neth Int Law Rev. 2016;63(3):221-49.
[3] Ganji M. The Realization of economic, social and cultural rights. 1969.
[4] Nation U. Sales No. E.75 XIV.2. United Nation’s publication. part.6, para 122.
[5] The approach adopted by these conferences is analyzed in document E/6056/Add.1 sIp, entitled “participation in the development process” paras, 62-64.
[6] Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya dotACoHaP.
[7] Marks S, Malhotra R. The future of the right to development. American University International Law Review. 2000;15:1425-67.
[8] Uvin P. Human Rights and Development, Bloomfield: CT: Kumarian Press, Inc; 2004. 43 p.
[9] Myneni SR. International Economic Law. 2006. p. 9.
[10] Assembly RabtG. Charter of Economic Rights and Duties of States. 3281 (XXIX) 1974.
[11] WTO. Marrakesh Agreement Establishing the World Trade Organization. Availablefrom: https://www.wto.org/english/docs_e/legal_e/04-wto_e.htm last visited: 28-12-2018.
[12] IMF. Available from: https://www.imf.org/en/About last visited: 05-01-2019.
[13] Osaka. Available from: https://www.hurights.or.jp/archives/focus/section2/2003/03/regional-cooperation-for-the-promotion-and-protection-of-human-rights-in-the-asia-pacific-region.html, last visited 05-01-2019.
[14] Iqbal K. The right to development in international law: the case of Pakistan: Routledge; 2009.
[15] Suprem Court of Pakistan. Shehla zia v. wapda. 1994. p. 693.
[16] Lahore High Court Lahore, Maulana Aman Ullah Haqani v. Government of Pakistan (2018), at p.364.
[17] Supreme Court of Pakistan Muhammad Nawaz Sharif v. President of Pakistan (1993), at p.413.
[18] Suprem Court Monthly Review, Al-Jehad Trust (1999), at p. 1379
[19] Lahore High Court, Lahore, Mohammad Shafique Ur Rehman v. Federation of Pakistan (2017), at p.558
[20] Supreme Court of Pakistan, Nasreen v. Fayyaz khan (1991) at p.412.
[21] United Nations Special Rapporteur on the Right To Development, available at https://www.ohchr.org>development , last visited: 21-02-2019.
[22] Human Rights Education, available at https://www.amnesty.org/amnesty.interantional, last visited: 21-02-2019.
[23] A/RES/41/128, Declaration on the Right to Development, available at http://www.un.org/documents/ga/res/41/a41r128.htm, last visited: 24.02.2019.
[24] Pakistan Today, available at https://www.pakistantoday.com.pk/2018/04/27/pakistan-suffered-126bn-losses-due-to-terrorism-in-17-yrs-pakistan-economic-survey/ last visited: 24.02.2019.
[25] United Nations Population Fund. Available at https://www.unfpa.org/resources/human-rights-principles last visited: 24.02.2019.
[26] Article 9 of Constitution of Islamic Republic of Pakistan, 1973.
[27] United Nations OHCR’s Publication, Realizing the Right to Development. Available at https://www.ohchr.org/EN/issues/Development/Pages/IntroductionStatement.aspx , last visited 06-03-2019.
[28] UNDP Statistical Report, 2018 on Human Development indices and indicators,