Realizing the right to development through judicial reform: the strategic connection and practical integration

• Author: LIAO Yi
• Pages: 593-621

FRONTIERS OF LAW IN CHINA

VOL. 10 DECEMBER 2015 NO. 4

DOI 10.3868/s050-004-015-0033-9

FOCUS

THE RIGHT TO EQUAL DEVELOPMENT

REALIZING THE RIGHT TO DEVELOPMENT THROUGH JUDICIAL REFORM: THE

STRATEGIC CONNECTION AND PRACTICAL INTEGRATION

LIAO Yi *

The birth of the right to development (RTD) shifted the paradigm of international

discourse from need, charity, and aid towards human rights, shared responsibilities, and

cooperation. The implementation of RTD requires effective development policies at the

national level, and equitable economic relations and a favorable economic environment

at the international level. From the new theory perspective, RTD is a type of integrated

human rights, charazterized by integration feature and process-oriented approach, by

the method of dialogue, in order to achieve the idea of equilibrium. It would be ideal to

overcome the dilemma of implementing RTD based on overall strategic framework and

improve the legal and judicial reform in the context of globalization. However, for the

developing countries that have been struggling to change the unequal international

political and economic order, it is the core driving force of realizing RTD in the process

of deepening dialogue and negotiations, which is reflected in the process of legal and

judicial reform. Therefore, it is necessary for us to change the strategy from legislative

base to judicial focus, from one-way path to plural view, exploring the possibility of new

model to realize the RTD in the context of comprehensive judicial reform.

INTRODUCTION .................................................................................................................... 594

ICONFUSION, DILEMMA AND OPTION..................................................................... 594

A. Concept of Right to Development (RTD) and Declaration on RTD.................. 594

B. World Conference on Human Rights in Vienna and Independent Expert ..........596

C. Summary Based on Reflection........................................................................... 598

II. THE NEW CONCEPTUAL BASIS OF RTD ................................................................. 600

A. Development Compact ......................................................................................600

B. Human Rights-Based Approach ........................................................................601

III. JUDICIAL REFORM AS DEVELOPMENT AID ............................................................ 604

A. Law & Development Movement ........................................................................604

B. Failure of the First Round................................................................................. 606

*() Ph.D and Professor, at School of Law, Wuhan University, Wuhan 430072, China. This article is

funded by Collaborative Innovation Center of Judicial Civilization and Independent Research Project of

Wuhan University. Contact: fxyly@whu.edu.cn

594 FRONTIERS OF LAW IN CHINA [Vol. 10: 593

C. Misleading of Modernization Theory and Rectification....................................609

IV. BEYOND THE MYTHS ............................................................................................ 614

A. The Myth of Relationship between Law and Economic.....................................614

B. The Myth of Judicial Independence................................................................... 615

C. The Myth of American Law Centralism ............................................................616

CONCLUSION........................................................................................................................ 618

INTRODUCTION

The concept of right to development (RTD), placed in the interface between human

rights and development, has been quite controversial within the system of the United

Nations (UN) and acknowledged by the international community as an important human

right. However, in spite of RTD getting this acknowledgment as a new human right

through a number of declarations, the “right” is neither justifiable nor enforceable.

Consequently, when we think about the issue of implementing RTD, it seems that a lot of

ground needs to be covered. For more and more persons — politicians, human rights

activists, and scholars included — how to accomplish the legal commitment of RTD in

the global context and to shape future work on the effective implementation of the whole

human rights system has become the critical task, which is related to overall situation and

millions of people in the reform and development progress.

Toward this crucial issue, mostly existing studies are based on the theoretical

controversy of RTD and follow the traditional human right discourse paradigm, from

moral rights to legal rights and then to the real rights, cannot demonstrate the history

complexity and deeply practical reasons. More importantly, these studies did not see the

inherent association between implementation of RTD and law and development

movement, especially failed to find clues from the equilibrium essence of the RTD as

well as the practical integration of the global legal and judicial reform strategy. In light of

this situation, the purpose of this article is to broaden the perspectives of history and

process, focusing on the new path of RTD’s implementation through the judicial reform

and looking forward to making benefit for the human rights theory and the institutional

practice of legal operation.

ICONFUSION, DILEMMA, AND OPTION

A



Concept of Right to Development (RTD) and Declaration on RTD

Academics generally consider the term of RTD was first coined by leaders of

developing states pursuant to the decolonization process in 1960s. It was originally

connected with the concept of a New International Economic Order (NIEO) and intended

to strengthen the capability of developing countries in their process of development.1 The

1 Dick Foeken, Ton Dietz & Leo Haan et al eds. Development and Equity: An Interdisciplinary

Exploration by Ten Scholars from Africa, Asia and Latin America, Brill Academic Publishing (Leidon), at

192–193 (2014).