Inward looking strategy? Shifting conceptions of development in international law

By Arjun Kumar, Anshula Mehta, Sakshi Sharda, Chhavi Kapoor, Mahima Kapoor*
With the COVID-19 pandemic, counties across the world have adopted an inward-looking and isolated strategy. Given this, how we conceptualize development in the purview of international law and what mechanisms we use for the same become pertinent questions. Keeping in line with this, the Centre for Human Dignity and Development, IMPRI, in collaboration with the Centre for Development, Communication and Studies, Jaipur, organized a web policy talk on Shifting Conceptions of Development in International Law under the State of Development Discourses- #CohesiveDevelopment series.
The chair and moderator, Professor Sunil Ray, Director of A. N. Sinha Institute of Social Studies, Patna; Advisor CDECS and IMPRI laid the groundwork to facilitate the discussion of new ideas and concepts regarding the theory of development, which has been a part of the literature for several decades, in the context of international law. The underpinnings of the same are to analyze the role of international law to bring international relations and co-operation for development.
While GDP growth and other related parameters have been written about and incorporated in policymaking extensively, other areas such as social injustice, social discrimination, patriarchy, and human rights and the legal system built around them have to be brought to the center stage. In order to ensure sustainability, solidarity among the people, with institutions, and with ecology will have to be incorporated in the legalization process.
The esteemed speaker, Professor Koen De Feyter, Professor of Public International Law; Spokesperson of the Law and Development Research Group at the Law Faculty of the University of Antwerp, Belgium started with a research project that he was involved in. It concerned slum dwellers utilizing water and sanitation resources to access drinking water. While the right to clean water is recognized in the legal system of India, there exists a gap between what exists on paper and the ground reality. Strategic insight into understanding the context in which the law will work becomes necessary.

The Conception

The inception of the intersection of law and development emerged post-colonialism periods, where researchers in former colonial powers aimed to understand their role with respect to the newly independent countries. In “The Limits of Law and Development”, Sam Adelman and Abdul Paliwala argued the feasibility of discarding the concept of development altogether. The basis of this was that development, especially economic development, has been used to create injustices.
In the post-colonialism era, international law paved the way for international society. The members would have to have a state that resembled that of the West. The focus was more towards establishing sovereignty over the newly independent countries, rather than establishing rights. The Third World Approaches to International Law (TWAIL) argues that even today, the platform has been influenced by the power dynamics among countries, reinforcing inequality. Scholars can come together to hold intellectual debates and publish research as an attempt to reach a global consensus for cooperation.
In the “Encyclopaedia of Law and Development”, Prof De Feyter discussed the strategy of law and development to address inequality. The process is not automatic, but conscious in order to be inclusive in nature.

The Dimensions of Development

The definition of development in international law tends to vary from treaties and resolutions to governmental and international organizations. The sources include development as economic growth, basic needs fulfillment, enabling international environment, freedom, human rights, sustainable development, and planetary boundaries.
Under this, there has been a shift from human development to sustainable development. The environment had been looked at as a resource and source of income until recently. It is time to rethink the impact of human activities on the non-human and take into account the intrinsic value of the planet.
Within the United Nations Agenda, sustainable development has three dimensions- economic, social, and environmental. The challenge is to operationalize these aspects.
Sustainable development has become a general principle of law, as claimed by Christina Voigt. This means that if there is a resolution of a treaty or dispute on one of the abovementioned aspects, the other two also need to be incorporated.

International Law and Sustainable Development

The Sustainable Development Goals are global and aspirational. While the motivation may be economic prosperity, legal standards in social and environment need to be formulated by giving them appropriate weights. The resulting solution has to be optimal in as many standards as possible. However, the SDGs are based on the traditional economic growth model, making it difficult to balance multiple parameters together. In the context of capitalism, the enforcement of planetary boundaries has not been fully comprehended in the Agenda.

Definition Revisited

Prof De Feyter opined that formulating a concrete definition of development is not necessary at the global level because the theme of development indicates plurality. Across and within countries, people will hold different ideas and goals for development, which their respective governments will have to organize and operationalize. However, at its core, it should ensure free, active, and meaningful participation within the society, human dignity- at the individual and collective level, and solidarity internationally.
One solution is to move beyond international law and work together through international civil societies and alternative international law.
Thus, there has been a visible shift from development as growth and basic needs fulfillment to include empathy, human dignity, human rights, and environmental sustainability in the scholarly circles. Today, the focus should be to understand that a single definition of development is not necessary and countries are required to formulate and operationalize their respective priorities, with the core international standards in mind.

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*With IMPRI