FRONTIERS OF LAW IN CHINA · FRONTIERS OF LAW IN CHINA VOL. 10 DECEMBER 2015 NO. 4 DOI...

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

*(廖奕) 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: [email protected]

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).

2015] REALIZING THE RIGHT TO DEVELOPMENT THROUGH JUDICIAL REFORM 595

concept of RTD was formally proposed by Justice Keba M’Baye of Senegal in a speech to the United Nations Commission on Human Rights in 1972. In his view, the adoption of the enabling covenants of the Universal Declaration of Human Rights (UDHR) had room for development advocates to make claims on the international community through new human right discourse, but such efforts had been largely frustrated by the politics of the Cold War. The idea of RTD initially aimed at rectifying structural disparities in the global economic system and assumed the developed countries’ obligations to repay the deprived developing countries for the legacy of colonial exploitation. In 1977, under M’Baye’s leadership, the UN Commission on Human Rights (CHR) recognized the existence of RTD and injected the new conception into the NIEO agenda, which was supported by the elaboration of “third generation” solidarity rights to peace and development.2 Solidarity rights are the collective rights of people that require international as well as national efforts for their implementation.3 These efforts indicated one fact: The concept of RTD led to a valuable opportunity to provide a practical framework that enabled fulfillment of human rights at multiple levels to realize equilibrium development in the global system.

As far as the concept of RTD is concerned, however, there are series of confusions: What is so unique about the new human rights? How can we achieve its vision at an international and a national level through effective strategies? Especially, how do we implement the morality of RTD in courts and apply it to human rights law?4 These questions are still wrapped around the scholars and policy makers. Aimed at the “three generations” human rights theory, academic criticism has focused on the idea that it undermines the integrity of the human rights, as well as inter-relativity and indivisibility. The content of human rights depends on the historical stage wholly and the situation of the commission specially. In this sense, the RTD is the product of human rights evolutional process, which primarily concentrates on the strategy of correcting uneven and anti-equilibrial development system at international level, then gradually expanding to the national and local level, and finally, forms a huge and sustainable global social movement for the integration of national development and human rights law.

Nearly ten years later, on December 4, 1986, the UN General Assembly adopted a Declaration on the Right to Development, which defined RTD as “an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized.” (Article 1.1) The

2 The division of human rights into three generations was initially proposed in 1979 by the Czechjurist

Karel Vasak at the International Institute of Human Rights in Strasbourg. He used the term at least as early as Nov. 1977. See Karel Vasak, Human Rights: A 30-Year Struggle: The Sustained Efforts to Give Force of Law to the Universal Declaration of Human Rights, 30(11) UNESCO Courier, 214 (1977).

3 Roger Normand & Sarah Zaidi, Human Rights at the UN: The Political History of Universal Justice, Indiana University Press (Bloomington), at 290 (2008).

4 Michael J. Perry, Toward a Theory of Human Rights: Religion, Law, Courts, Cambridge University Press (Cambridge), at 94 (2007).


language of the UN Charter strongly supports a combination of development activities and the promotion of human rights. Despite this, both the UN and most states have treated them separately from the two sets of concerns and different professional expertise came to dominate the two: Legal experts tended to dominate the human rights field, while economists played a major role in operating development. To change the situation, the Preamble of the Declaration goes on to define development as “a comprehensive economic, social, cultural and political process which aims at the constant improvement of wellbeing of the entire population and of all individuals on the basis of their active, free and meaningful participation in development and in fair distribution of benefits resulting therein.” Under the Declaration, “States have the primary responsibility for the creation of national and international conditions favorable to the realization of the right to development.” (Article 3) Therefore, the RTD is the right to a process of development where all human rights — economic, social and cultural rights, and civil and political rights — are implemented. According to the Declaration, the RTD entitles every person and all peoples to participate in, contribute to, and enjoy development, in which all human rights can be fully implemented. The key to implement RTD is an approach and process that should be equitable, accountable, participatory, transparent, and non-discriminatory. To a certain extent, RTD can be viewed as a cluster of rights, bringing together civil and political rights on one hand and economic, social, and cultural rights on the other. As such, RTD can serve as a bridge to achieve equilibrium between these two categories of human rights and between individual rights and collective rights.

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

Although the Declaration made such the principle decisions, it is not necessarily legally binding and on the issue of how to implement the RTD, a lot of conceptional differences and ideological conflicts do still exit. The Western countries were willing to accept a moral commitment to implement RTD but not a legal obligation to change institutions or transfer resources. They further argued that RTD was limited in demotic policy and required developing counties’ governments to respect individual human rights in the development process. In the ideological battlefield of the Cold War, RTD as collective rights were generally associated with Communism, and this ideological battle highly likely had an impact on the discussion with the UN.

At the 1993 World Conference on Human Rights in Vienna, the RTD was acclaimed by temporary consensus. The Conference opposed the distinction between civil and political rights (negative rights) and economic, social, and cultural rights (positive rights) that resulted in Vienna Declaration and Programme of Action proclaiming that “all human rights are universal, indivisible, interdependent and interrelated.” The Conference declared that “the right to development, as established in the Declaration on the Right to Development, as a universal and inalienable right and an integral part of fundamental


human rights.”5 The RTD has also been given prominence in the mandate of the High Commissioner for Human Rights as the General Assembly required the High Commissioner to establish “a new branch whose primary responsibilities would include the promotion and protection of the right to development.” The right is regularly referenced in declarations of international conferences and summits and in the annual resolutions of the General Assembly and the CHR.6 Until the Vienna Conference, the reaffirmation of the RTD provided an opportunity for the debate to move from rhetoric towards actual implementation and strategic idea that all human rights were unified under the RTD. The principle of the indivisible, interdependence and non-hierarchical nature of rights has been the mantra since the 1993 Conference.

The Vienna Declaration and Programme of Action recognized the RTD and found clear guidelines as a universal and inalienable right as well as an integral part of fundamental human rights. Accesses to the core task on the practical issue, various institutions on the RTD were set up by the UN Commission on Human Rights (CHR) and its successor body, the Human Rights Council. An open-ended intergovernmental working group mandated with monitoring and reviewing the implementation of the right to development established in 1988, and the working group continues until today.7 In spite of continuous efforts, the RTD still encounters a degree of skepticism as to its judicial and enforceable right status.

Even this did not give up the efforts of international community, striving to build bigger integrated framework.8 In 1996, the CHR reaffirmed the implementation of the RTD and to ensure a dynamic process towards the same intergovernmental group of experts with a mandate to elaborate a strategy for promotion of the RTD in its integrated and multidimensional aspects. This group would take into consideration the deliberations and recommendations that emerged from not only the World Conference on Human Rights but also the UN Conference on Environment and Development (Rio de Janeiro, 1992), the International Conference on Population and Development (Cairo, 1994), the World Summit on Social Development (Copenhagen, 1995) and the Fourth World Conference on Women (Beijing, 1995). This group of experts submitted a global strategy

5 Report of the World Conference on Human Rights, Vienna Declaration and Program of Action,

available at http://www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/A.CONF.157.24+(PART+I).En?Open Document (last visited Apr. 11, 2014).

6 Stephen P. Marks, The Human Right to Development: Between Rhetoric and Reality, 17(1) Harvard Human Rights Journal, 135 (2004).

7 The working group was assisted in its task first by an Independent Expert (1988–2004) and later by a High-Level Task Force (HLTF, 2004–2010), also composed of individual experts. Dr. Arjun Sengupta, a prominent Indian economist, was appointed Independent Expert and by 2004 had produced 8 reports, while the OEWG had held five sessions. At the request of the Working Group, the high-level task force proposed a set of criteria and corresponding operational sub-criteria for the implementation of RTD.

8 Shewli Kumar, Right to Development: A Sustainable Approach to Substantive Equality, available at http://www.ipacindia.org/pdf/reports/discussion_paper_on_RTD.pdf (last visited Oct. 8, 2015).


for the promotion and implementation of the RTD which was directed at the UN, other international organizations, states and civil society.

However, the Declaration was considered by many observers to be too vague and controversial to have any real impact on development issues.9 By the standard of one popular measure, the RTD appears to be highly political due to its imprecision and the fact that no third party has been delegated the task of legal enforcement. 10 The Declaration rather than resolve the question of whether there is a RTD further polarized the membership of the UN. The developing countries contend for the RTD while the developed countries oppose the existence of such a legal right. In order to resolve this impasse and implement the Declaration, the UN appointed independent experts on the RTD, called for the establishment of an equilibrium development compact between developed and developing countries.

The breakthrough took place on April 22, 1998, when the UN Commission on Human Rights adopted by consensus a resolution on the RTD, recommending to the Economic and Social Council the establishment of a follow-up mechanism consisting of an open-ended working group and an Independent Expert. The purpose of the working group was to monitor and review the progress of the Independent Expert and report back to the Commission. The Independent Expert was to “present to the working group at each of its sessions a study on the current state of progress in the implementation of the right to development as a basis for a focused discussion, taking into account, inter alia, the deliberations and suggestions of the working group.”11 Although with no statutory function or power, this mechanism is similar to “justice” verdict of the third party. If we admit the essence of judicial authority beyond positive power, view, at the same time, Independent Expert and evaluation of the working group can get everybody’s identity, its effect will occur naturally. The performance has been very close to the power of judicial judgment. Accordingly, this kind of breakthrough is the international level the development trend of judicial a case in point. There is sufficient evidence that various new development concepts put forward by the Independent Expert promoted the legal and judicial reform from top to bottom. For the integration of all kinds of power and good interaction, it also supplied great benefit and assistance.

C. Summary Based on Reflection

The birth of the RTD shifted the paradigm of international discourse from need, charity and aid towards human rights, shared responsibilities and cooperation. The implementation of the RTD requires effective development policies at the national level,

9 E. S. Nwauche & J. C. Nwobike, Implementing the Right to Development, 2(2) Sur, Rev. int. direitos human, 120 (2005).

10 Kenneth W. Abbott, Robert O. Keohane, Andrew Moravcsik, Anne-Marie Slaughter, Duncan Snidal, The Concept of Legalization, 54(3) International Organization, 401 (2000).

11 See Marks, fn. 6 at 137.


and equitable economic relations and a favorable economic environment at the international level. Dr. Hivonnet, Head of UN Section, Permanent Delegation of the European Union, provided views on practical initiatives for moving the RTD forward.12 She stressed that global problems required global solutions. In this context, the RTD should be addressed collectively through an operational framework. She outlined the main elements of the RTD. First, the RTD brings together two sets of human rights: civil and political rights, as well as economic, social and cultural rights. Second, the RTD provides a connection between all human rights and development, which requires coherent policies and the involvement of various actors at different levels. Third, states — acting individually and collectively in global and regional partnerships — have the primary responsibility to create a national and international environment favorable to the implementation of the RTD. Fourth, the RTD places an individual at the center of all policies and regards the individual as an actor of development rather than a mere beneficiary. In summary, the RTD is a kind of integrated human right, characterized by integrationand process-oriented approach, by the method of dialogue, in order to achieve the idea of equilibrium. The implementation of the RTD should be based on overall strategic framework and improve the legal and judicial reform in the context of globalization.

Needless to say, natural school and deliberative school of human rights (“HR”) still dominate the discourse of the RTD. Natural scholars believe that human rights constitute minimal entitlement originating from an immanent source which, taking a Kantian route, they variously label as nature, God, reason, humanity, etc. Such entitlement can and should be provided for in positive law. Deliberative school does not put human rights as pure holy and advocate the importance of agreement. Deliberative scholars look at HR as procedural principles, which reflect the consensus to how the rules of the political game — and the political game only — should be conducted.13 The two HR schools had not seen the protest and interactivity behind the human rights, especially for the RTD, ignoring the integrity of the strategic and practical context means impossibility to define the real logic and find the way of implementation.

Whether custom law or positive law, the RTD as a legal instrument to achieve the intended goal, only has a part of the meaning. Legal norm is one thing, legal operation is quite another. If we allow ourselves to be content with the normative concept of RTD alone, its implementation can be delayed indefinitely. The political game around the development interests will exist for a long time, so the “consensus” can only be a temporary compromise. For the developing countries, struggle to change the unequal

12 See The Right to Development: A Tool to Boost Coherence between Trade, Development and Human

Rights?, available at http://www.wto.org/english/forums_e/public_forum10_e/session02_summ_e.doc (last visited Oct. 8, 2015).

13 Marie-Bénédicte Dembour, Who Believes in Human Rights?, Cambridge University Press (Cambridge), at 11 (2006).


international political and economic order is the core driving force of implementing the 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 shift the strategy from legislative base to judicial focus, from one-way path to plural view, exploring the possibility of a new model to implement the RTD in the context of comprehensive reform.

II. THE NEW CONCEPTUAL BASIS OF RTD

A. Development Compact

To remove the obstacles, the Independent Expert was mandated to find a way of operating and realizing the RTD. The Independent Expert has recommended a development compact between a specific developing country and the international community and international financial institutions as a mechanism for implementing the RTD. According to Sengupta, a development compact would be a country-specific arrangement establishing reciprocal obligations between developing countries and the UN system, international financial institutions, and bilateral donors.14 Developing countries would be under the obligation to implement the RTD and the international community under an obligation of cooperation to enable the implementation of the program. If a developing country fulfills its responsibilities, the international community would need to take the corresponding measure, and provide resource transfers and technical assistance as previously agreed.

We should take the “development compact” seriously, just as Laure-Hélène Piron demonstrated:

The debates surrounding the RTD are concentrated in the UN human rights arena, and remain highly politicalized between Northern and Southern governments. In particular, agreements reached in the various development fora are not always replicated at the Commission on Human Rights. The Independent Expert on the Right to Development has made positive contributions to the debate. His proposal for a “development compact” needs to be given serious consideration as it may lead to a politically acceptable solution. The “compact” may need to be further defined in a manner consistent with current best practice, or presented as a theoretical framework to guide real partnership agreements.15

How can this development compact be implemented? The Independent Expert says that any developing nation interested in a development compact must accept to design

14 A. Sengupta, Fourth Report of the Independent Expert on the Right to Development,

E/CN.4/2002/WG.18/2 20. Dec. 2001, Paragraph 54. 15 Laure-Hélène Piron, The Right to Development: A Review of the Current State of the Debate for the

Department for International Development, available at http://www.odi.org.uk/sites/odi.org.uk/files/ odi-assets/publications-opinion-files/2317.pdf (last visited Oct. 8, 2015).


and implement their national development programs in a rights-based manner, including participation in civil society, national incorporation of human rights instruments and a monitoring role for national human rights institutions. The compact could focus on a few core rights, or on the achievement of poverty reduction objectives.16 Sengupta further argues that poverty reduction can be seen as the target of the RTD, and that national poverty reduction strategies, when implemented in a rights-based manner, will lead to economic growth with equity and justice. He defines rights-based approach as “a manner that follows the procedures and norms of human rights laws, and which is transparent, accountable, participatory, non-discriminatory with equity in decision making and sharing of the fruits or outcomes of the process.”17 In short, a rights-based development program will regard the goals of human and social development as entitlements or as rights that can be claimed by individuals as right holders against corresponding duty holders, such as the nation-state and the international community.

B. Human Rights-Based Approach

As the new conceptual basis of RTD, human development (HD) approach embodies a robust paradigm, which may be contrasted with the neoliberal paradigm of the Washington consensus. The Indian economist Amartya Sen is certainly very close to embodying the HD position better than anyone else. The pioneering work of Sen was crucial in establishing the nexus both in academic discourse and at the UN. His concept of human capabilities wedded rights values of individual empowerment and public accountability with a human-centered approach to development.18 He has had the greatest intellectual influence on its arguments, while the longevity of his career and the magnitude of his contributions across a wide spectrum of issues — covering choice theory in economics to philosophical interventions on the idea of justice itself — have taken such arguments well beyond questions of economic development.19 He tends to evaluate improvements in human lives as an explicit development objective and use human achievements as key indicators of progress. This contrasts with paradigms that focus on economic performance partially.

In short, “Goal right determine social ordering.”20 The reason that human rights are understood in the language of capabilities is that capabilities provide function to realize rights. Undoubtedly, the realization of the RTD as “goal rights” called by Sen can

16 See Nwauche & Nwobike, fn. 9. 17 A. Sengupta, On the Theory and Practice of the Right to Development, 24(4) Human Rights Quarterly,

849 (2002). 18 Amartya Sen, Development as Freedom, Oxford University Press (New York), at 39 (1999). 19 Simon Reid-Henry, Amartya Sen: Economist, Philosopher, Human Development Doyen, available at

http://www.theguardian.com/global-development/2012/nov/22/amartya-sen-human-development-doyen (last visited Oct. 8, 2015).

20 Mitchel de S-O-l’ E. Lasser, Judicial Transformations: The Rights Revolution in the Courts of Europe, Oxford University Press (New York), at 68 (2009).


enhance capabilities comprehensively and deeply. Goal rights can be formulated in terms of people’s rights to capabilities, that may be listed by theorists, such as education, health services, food, housing and employment. In the new conceptual framework, the RTD, being a comprehensive economic, social and political development, may be defined as a goal right — a right can be understood as a reform goal.

Applying a HD-based approach to development will enable UNDP, the UN system, and its partners to enhance the implementation of the RTD through their effective work focusing on equality and nondiscrimination, accountability, justice, and transparency as the core of the HD results.21 A human rights-based approach to development has been proposed as a new conceptual framework that is based on international human rights standards and operationally directed to promoting and protecting human rights. Essentially, a human rights-based approach integrates the norms, standards, and principles of the international human rights system into the plans, policies, and processes of development. Therefore, High-Level Task Force on global food and nutrition security (HLTF) initially examined the obstacles and challenges to the implementation of the Millennium Development Goals in relation to the RTD, social impact assessments in the areas of trade and development at the national and international levels，and the best practices in the implementation of the RTD. Consequently and in conclusion of its mandate, the Task Force submitted to the Working Group the criteria and operational-sub-criteria for the implementation of the RTD. With the purpose of translating the RTD from political commitment to development practice, the criteria were designed to serve as an operational tool to:22

“assess the extent to which States are individually and collectively taking steps to establish, promote and sustain national and international arrangements that create an enabling environment for the realization of the right to development;

serve as a useful tool for stakeholders to assess the current state of the implementation of the right to development and facilitate its further realization at the international and national levels;

contribute to mainstreaming the right to development in the policies and operational activities of relevant actors at the national, regional and international levels, including multilateral financial, trade and development institutions; and

evaluate the human rights implications of development and trade policies and programmers.” The growing acceptance of the relevance of human rights-based approaches to

21 See A UNDP Capacity Development Resource, available at http://lencd.com/data/docs/

252-Applying%20a%20Human%20Rights-based%20Approach%20to%20Development%20Co.pdf. (last visited Oct. 8, 2015).

22 See High-Level Task Force on the implementation of the right to development, available at http://www.ohchr.org/EN/Issues/Development/Pages/HighLevelTaskForce.aspx (last visited Oct. 8, 2015).


development not only “empowers” the beneficiaries of development, by purporting to make them the active participants of the development process, and by giving greater legitimacy and legal force to their demands. It also fundamentally requires greater accountability from all actors in the development process: through legal, administrative, or political mechanisms, individuals, as right-holders, can make claims on the conduct of individual and collective agents, including states, which, as duty-holders, can be held responsible for not meeting their obligations.23 The RTD, which was meant to become the umbrella-notion unifying human right and development, rather than divided the international community.

Nevertheless, interpretation of this resolution differs from one political group to another. The Non-Aligned Movement (NAM) reiterated that the RTD should be translated into an “international legal framework on par with other human rights” — thus cast into a new human rights treaty. The European Union (EU) opposed an international legal standard of a binding nature. Instead, the EU favored implementation of the RTD through the elaboration of benchmarks and indicators for States to empower individuals as active agents in the development process. The EU argued that international human rights law only recognized clearly that states have obligations with regard to persons falling under their national jurisdiction.24 The debates and conflicts on the realizing of the RTD demonstrate how the legitimizing language of human rights has been used to press goals that have more to do with the international politics of power and resistance, and with the interests of regimes, than with welfare and empowerment of ordinary citizens.25 The most controversial element of the RTD lies in the international judicial implementation of the right. In the past it was seen by some as giving rise to an obligation of developed states and international organizations to provide development assistance to developing states. However such a human rights obligation of a morally binding nature cannot be grounded in international law. The RTD is often interpreted as including a duty to provide international assistance, which would potentially be legally binding.

The discussion on the RTD in the UN is guided by political considerations. As Stephen P. Marks has observed: “the first obstacle to the realization of RTD is a political one.”26 The nature of this political obstacle is that delegates in the UN forum voted for the RTD merely as a goal of foreign policy at legislative level rather than to pursue a practical approach of mainstreaming the RTD through judicial reform in national and international development process. The mechanisms established by the CHR have failed,

23 See Piron, fn. 15. 24 Koen De Feyter, Towards a Framework Convention on the Right to Development, available at

http://library.fes.de/pdf-files/bueros/genf/09892.pdf (last visited Apr. 11, 2014). 25 Bonny Ibhawoh, The Right to Development: The Politics and Polemics of Power and Resistance, 33(1)

Human Rights Quarterly, 79 (2011). 26 Stephen P. Marks, Obstacles to the Right to Development, available at http://www.hsph.harvard.edu/

fxbcenter/FXBC_WP17—Marks.pdf (last visited Oct. 8, 2015).


so far, to achieve a legal consensus on the realizing of the RTD; more importantly, on its practical implications. The Independent Expert has been criticized, from various angles, by almost all countries. For example, in his reports, written in sufficient detail the structural and systematic analyses of the causes and implications of the present situation; that the collective dimension of the RTD has not been sufficiently taken into account, that no policy strategy has been sketched out, nor even have the requirements of such a strategy been analyzed, for a real promotion of the RTD.27 In one of his reports, the Independent Expert proposed that such compacts be placed under the aegis of the Organization for Economic Cooperation and Development (OECD). It is not hard to see, just because the conceptual differences of the RTD still exist, especially the nature of collective human rights is not recognized by developed countries, the implementation of the RTD as a specific right enforces by legal mechanisms may be obliged in dilemma. Although there has been a new human-rights-based development concept and the integrated development impact assessment system designing, the basic misunderstanding of individual human right has not been changed. Thus, it remains unanswered whether the RTD is a national right or not. Developing countries affirmed the existence of a collective RTD and insisted that developed countries have a legal obligation to provide unconditional assistance. Therefore, on the disposal of aid resources, the country receiving assistance has full control power according to their development status, while the state as assistance provider should not interfere. As far as the fact that developed countries do not recognize collective human rights is concerned, in addition to the traditional concepts ideology, the unnecessary fear of being kidnapped by the least-developed countries’ interests is also an important factor. With the adjustment process of the US foreign policy in 1970s, individual human rights in Western countries increasingly become the banner of globalization. Thus, an additional condition for aid reform project model emerged. Under the dominance of developed countries, developing states had no choice but be fully or partially accepted and stated a massive judicial reform movement. However, facts and practices have shown that few examples of such judicial reform success. Many countries have turned to autonomy reform, exploring to meet the requirements of their own rule of law with its characteristics. The implementation of the RTD through judicial reform has emerged new opportunity era.

III. JUDICIAL REFORM AS DEVELOPMENT AID

A. Law & Development Movement

From the historical analysis above, it is relatively clear that the dispute surrounding the concept and implementation of the RTD are rooted in the real needs of developing

27 See the Centre Europe-Tiers Monde’s written statement to the Working Group, E/CN.4/1999/

WG.18/CRP.3, available at http://www.unhchr.ch/Huridocda/Huridoca.nsf/0/078df144750210cb802568af00348bed/ $FILE/G9916136.pdf (last visited Oct. 9, 2015).


countries for the strategic equilibrium and social justice in the new globalization process. The struggles for the RTD may seem new, but in fact, the struggles for implementation of social, economic, and cultural as well as civil and political rights have long been a feature of the political landscape of the developing nations. Rights talk has always centered on liberation and resistance movements in developing nations with the starting point being the nationalist and anti-colonial movements for self-rule. These movements were a spontaneous response to the everyday constraints and oppressions that the colonial rule imposed upon the people not just on their liberty but also on their livelihoods. It was this very act of struggling together that the RTD was articulated and came to form the basis of action for interest equilibrium and social justice.28

As strategic response, in the 1960s, United States Agency for International Development (USAID), together with the Ford Foundation and other smaller, non-governmental American donors; were among the first aid agencies that entered the judicial reform scene. They did so as part of the “law and development movement”, whose ambition was to reform laws and legal systems of countries in Asia, Africa, and Latin America. Legal scholars from leading American law schools wrote many articles discussing the contribution of judicial reform to economic development. The guiding assumption of the movement was that the legal system was an instrument to reform society, and the main motivation was to contribute to economic development. However, after only one decade, both highly involved scholars and former Ford Foundation officials declared this movement failed.29 On this basis, the integrated new idea of RTD was put forward and established, promoting the comprehensive judicial reform and the second wave of law & development movement. Although judicial reform has been given increasingly more scholarly attention over the last 25 years or so, it is important to note that the issue of judicial reform itself is not new. Countries have constantly revised and adjusted their legal systems throughout history. However, the large-scale involvement of international organizations or bilateral donors in promoting judicial reform is a relatively recent phenomenon.30 Undoubtedly, the theme of implementing the RTD through judicial reform is more recent and challenging.

As Sen argues, legal and judicial reform is an integral part of comprehensive

28 Protest scholars of HR have a “fiery heart,” on their view, human rights is first and foremost a language of protest. They would not share the hope of natural scholars that positive law could ever put human rights definitions and/or implementation at rest and they regard the enthusiasm of deliberation through human rights law as fired by a delusion that power is not a major player. Based on the logic of protest, Marxists ask man to behave as a member of humankind whose individual interest correspond with the protection of the community. As a group and collective right, RTD represents the equity claim of minority. See Marie-Bénédicte Dembour, Who believes in Human Rights?, Cambridge University Press (Cambridge), at 11 (2006).

29 David Trubek & Mark Galanter, Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development Studies in the United States, 4(1) Wisconsin Law Review, 1062 (1974).

30 Elin Skaar, Ingrid Samset & Siri Gloppen, Aid to Judicial Reform: Norwegian and International Experiences, Chr. Michelsen Institute 2004, available at http://www.cmi.no/publications/file/ 1924-aid-to-judicial-reform.pdf. (last visited Oct. 8, 2015).


development, not only because it is causally related to other aspects of development, but because it is a constitutive part of development in terms of development in general and/or of a particular notion or definition of development, such as legal development. Sen calls these two lines of reasoning causal interdependence, which highlights the interconnections between different aspects of development, and conceptual integrity, which sees these different aspects as conceptually incomplete and thus inseparable in the first instance. Conceptual integrity highlights two important considerations of legal development. The first is that development as a whole cannot be considered separately from legal development; legal development is an integral element of development as a whole and should be seen as a central development aim, not just an instrument for achieving other aspects of development. The second consideration is development in a specific sphere (such as economic development) may be contingent on institutions, policies, and instruments in other spheres. For example, pursuit of economic development generally requires some level of social, political, and legal intervention or change. For Sen, recognizing the foundational significance of legal development does not mean we should ignore the causal interdependence of different aspects of development as a whole. Examining the casual connections allows us to think about the possible sequencing of reforms, as well as assess the effects of certain interventions on other aspects of development.31 In addition, human development theory also emphasizes the importance of the legal empowerment through collective action and social movements. The basic logic can be summarized as follows: Firstly, some kind of idealized index system should be constructed and applied to overall reforms, and then deduced the comprehensive reform program, strengthening the omni-directional pressure on developing countries from inside to outside to urge the realization of “democracy” as soon as possible; Finally, the result of the development achieved, with strong Western Centralism New Colonialism suspect. In the human development theory, judicial reform is part of political and social “empowerment” to realize the goal of political democracy and social equality, concentrating on the protection of educational, health care and other rights. However, it essentially cannot break the old category of solving the imbalance of traditional individual human rights and find a new implementation strategy of RTD in the process of globalization, especially ignoring the key function of comprehensive judicial reform to make the RTD effective, toward stable equilibrium to rule of law.

B. Failure of the First Round

For the fundamental dilemma of the RTD’s realization, it can be attributed to the non-equilibrium pattern of the international political and economic power game and the fact that it is difficult for developing countries and developed countries to reach a consensus on the distribution of development benefits and human rights issues. Although

31 Amartya Sen, What Is the Role of Legal and Judicial Reform in the Development Process?, 2(1) The World Bank Legal Review, 124 (2006).


they can form a temporary consensus regarding the basic concept of the text, once stepping into the concrete practice of the legal mechanism, “their own thing” will be the most important. Development assistance led by the Western countries become the only “common ground”, but unfortunately, on the understanding and positioning of this action there are fundamental differences. In the end, is the development assistance conditional exchange or unconditional obligation? International organizations, national regime, and non-governmental organizations, in the process of development assistance are inclined to think that this is a kind of conditional exchange, whose fundamental purpose is to improve the investment environment and pave the way for economic globalization. Developing countries accepted this positioning partly and in the limited areas economic and social reforms achieved commitments, but for the fundamental reform of the political system had a great rebound. According to the established policies and concepts of human rights in Western countries, legal and judicial reform aiming at the political system is regarded as the core of the RTD’s realization.

In addition, development aid dependence in the area of judicial reform can potentially undermine the quality of governance and public sector institutions by weakening accountability, encouraging rent-seeking and corruption, fomenting conflict over control of aid funds, siphoning off scarce talent from the bureaucracy, and alleviating pressures to reform inefficient policies and institutions. Stephen Knack’s analysis of cross-country data in his paper provide evidence that higher aid levels erode the quality of governance, as measured by indices of bureaucratic quality, corruption, and the rule of law.32 Scholars argued two important lessons might be drawn from the judicial reform aid of Norway: firstly, the aid strategy is influenced by the historical background to the Norwegian judicial reform engagement and may be not suit the receptive country. Secondly, even though there are certain advantages and disadvantages connected to using the intergovernmental, government-to-government, or non-government channels; the viability and usefulness of each channel must be considered in the given country context. What works well on one country does not necessarily work well in another.33 Merryman criticized first round judicial reform aid in law and development movement on several grounds: failing to develop a paradigm to focus research and action on generally agreed upon questions and purposes, neglecting the interaction of law with social change, and ignoring the specific cultural background of “target” societies.34 In terms of Sen’s theory, this kind of circumstance severely damaged by the reform capability of developing countries, producing the opposite consequences.

32 Stephen Knack, Aid Dependence and the Quality of Governance: Cross-Country Empirical Tests, 68(2) Southern Economic Journal, 328 (2001).

33 Elin Skaar, Ingrid Samset & Siri Gloppen, Aid to Judicial Reform: Norwegian and International Experiences, Chr. Michelsen Institute 2004, available at http://www.cmi.no/publications/file/ 1924-aid-to-judicial-reform.pdf. (last visited Oct. 8, 2015).

34 John Henry Merryman, Comparative Law and Social Change: On the Origins, Style, Decline and Revival of the Law and Development Movement, 25(3) American Journal of Comparative Law 457, 483 (1977).


Thus, after decades of aid reform, the gap between developed and developing countries not only has not become narrower, but has become wider instead. The last decade has been marked by an unprecedented increase in inequalities and a spectacular growth of the gap between developed countries and developing countries as well as the growth of a gap within countries themselves. Debates about trends in global income distribution continue to rage. Less open to debate is the sheer scale of inequality. The world’s richest 500 individuals have a combined income greater than that of the poorest 416 million. Beyond these extremes, the 2.5 billion people living on less than $2 a day 40% of the world’s population — account for 5% of global income. The richest 10%, almost all of whom live in high-income countries, account for 54%.35 This catastrophic increase in poverty and inequality makes it imperative to search for the effective method to realize the RTD deeply and fully.

After the first wave of judicial reform in the 1960s, two decades followed when little judicial reform took place. In this second wave of aid to judicial reform, a greater number of donors have been involved than in the first. The pioneer from the 1960s, USAID, renewed its efforts to promote and assist in judicial reform, and other agencies followed suit. The main multilateral donors are:36

· the United Nations Development Programme (UNDP),

· the World Bank (WB),

· International Monetary Fund (IMF),

· the regional development banks, including

· the Inter-American Development Bank (IDB),

· the Asian Development Bank (ADB),

· the African Development Bank (AfDB), and

· the European Bank for Reconstruction and Development (EBRD), and

· the European Union/Commission (EU/EC). In the context of the new round of globalization, especially with the implementation

of neoliberal policies almost everywhere in the world, the task remains formidable. The international financial institutions (e.g., IMF, World Bank) encourage states to implement neoliberal policies through structural adjustment programs. The rules of the World Trade Organization, in spite of its declared principle of equality among states, only reinforce the

35 See V. UNDP, Human Development Report 2005, Overview: International Cooperation at a

Crossroads — Aid, Trade and Security in an Unequal World, available at http://hdr.undp.org/reports/global/ 2005/pdf/HDR05_overview.pdf. (last visited Oct. 8, 2015).

36 There is also a large range of governmental organizations and NGOs involved in judicial reform. Among the most important ones we find, in addition to USAID, the UK’s Department for International Development (DFID), and the German Agency for Technical Cooperation (GTZ). For an overview of bilateral donor agencies and NGOs involved in judicial reform agencies and their publications, available at http://www1.worldbank.org/publicsector/legal/otherdocs.htm. (last visited Oct. 8, 2015).


positions of the most powerful countries. Through their policies, these institutions aim for the hegemony of market forces to the detriment of democratic rule and judicial development. In such a context, it is worth noting that, when states are put under pressure, they tend to abandon their role and their responsibilities, which consist, among others, of promoting equality and justice in the distribution of wealth. Unfortunately, they limit themselves to lobbying and repression, for the benefit of transnational corporations. The “space” thus made available by states is “occupied” by various bodies, national and international, whose activities cannot, however, replace governmental action as a response to the immense need of populations whose poor and oppressed continue to grow in number. Thus, a series of RTD projects dominated by the international organizations in “Law and Development” movement are based on the policy of individual human right and essentially in order to continuously strengthen the dominance of developed countries, to maintain the NL ideas for the “old” international political and economic order. Many developing countries are also actively involved in this game and destined to be losers. They naively believe in single “modernization theory” and unreasonably image that the rule of law in western countries is naturally superior and absolutely universal. Therefore, without any recognition and defense, they accepted conditions attached to development aid, consequently not only failed to achieve the purpose of the final realization of the RTD, but also jeopardized the national economic performance, political order, social stability, and cultural security interests.

C. Misleading of Modernization Theory and Rectification

Tracing the source, from the terms of the concept, the plight of judicial reform and implementation of the RTD should be attributed to the misleading of single modernization theory. The notable nineteenth century German sociologist, Max Weber, who attempted to analyze systematically the role of the modern legal system in the emergence of Western civilization and concluded that the legal system played an important role in the economic advancement made in Europe, became the analytic and philosophical “godfather” for many of the legal reform exercises of the 1960s.37 Max Weber established theory links between industrial development and the “rule of law” — one cannot proceed without the other and his main thesis was summarized as follows by Prof. Trubek:

Weber’s research led him to three basic conclusions. First, that the more “rational” a legal system was, the more conducive it would be to the emergence of a capitalist, industrial system. Second, that European legal systems were more rational than those

37 For overviews of the law and development movement, see David Trubek, Reconstructing Max Weber’s

Sociology of Law, 37(3) Stanford Law Review, 919–926 (1985); Sally Ewing, Formal Justice and the Spirit of Capitalism: Max Weber’s Sociology of Law, 21(3) Law Society Review, 487–500 (1987); Brian Tamanaha, The Lessons of Law-and-Development Studies, 89(2) American Journal of International Law, 470 (1995).


which had emerged in other civilizations. Finally, that this legal rationalism existed in large measure in Europe before the full development of the industrial, economic system. From these observations, Weber concluded that Europe’s legal system was one of the factors responsible for the rise of capitalism.38

This view of the role of law in economic development has become more commonplace and was shared by the President of the World Bank, Mr. James D. Wolfensohn, who has also championed the role of law and the legal and judicial system as an important factor in economic development. One of the key pillars of the Comprehensive Development Framework reflects the point:

Without the protection of human and property rights, and a comprehensive framework of laws, no equitable development is possible. A government must ensure that it has an effective system of property, contract, labor, bankruptcy, commercial codes, personal rights laws and other elements of a comprehensive legal system that is effectively, impartially and clearly administered by a well-functioning, impartial and honest judicial and legal system.39

Most of the Bank’s assistance in the initial stages was associated with the structural adjustment instrument introduced in the Bank in the early 1980s. Structural adjustment programs were designed to assist governments in supporting clearly defined sets of reforms aimed at economic growth and development. These included reform of legislation in banking, insurance, securities, commercial corporations, trade, and land law. From the late 1980’s through the 1990s, legal and judicial reform started to receive more attention. From 1991 onward, support for such reforms became an even more important aspect of the Bank’s assistance programs, following the long and arduous discussion on the parameters and extent of the Bank’s work on “governance,” a term that has only recently become part of the development lexicon.

For Example，the Bank’s first freestanding project in the law and justice sector was made to the People’s Republic of China in 1994. The Economic Law Reform Project, as it is known, was designed to assist in the improvement of the legal framework in support of economic reform, by strengthening training methods, curricula and opportunities for lawyers and law teachers, and by preparing specific laws on particular subjects, including enterprise reform, corporate restructuring, competition policy, tax, trade, procurement, and intellectual properties. Like the countries in Eastern and Central Europe, this project was intended to assist the government in adopting an appropriate legal reform program consistent with its goals for development and its interactions with the international

38 Passim Trubek, Max Weber on Law and the Rise of Capitalism, 3 Wisconsin Law Review, 720 (1972). 39 Memorandum from James D. Wolfensohn, to the Board, Management, and Staff of the World Bank, A

Proposal for a Comprehensive Development Framework (A Discussion Draft), The World Bank, (Jan. 21, 1999), available at http://www.worldbank.org. (last visited Oct. 8, 2015).


business community. This ongoing project is expected to be completed in 2005.40 However, law and judicial reform as development aid did not bring the RTD’s spring in China; on the contrary, the idea of the RTD is still in a very weak area, let alone its practical way of institutionalization. Of course, we cannot blame this missing completely on the aid program, but needless to say, judicial reform as development aid projects was embedded in the trap of single modernization theory, regarding the economic growth as the core purpose of the judicial reform, replaced the comprehensive system of equilibrium process.

To rectify the lack of single modernization theory, institutionalism economics and development theory became popular. Much of the 1980s and early 1990s academics and policy makers were interested in development focused on policies that had little or nothing to do with the legal system. In order to improve theoretic basis, the focus of attention has shifted to institutions, which Douglas North denes as “the rules of the game of a society.” Those rules of the game include formal legal rules, and consequently the new reform agenda — the Second-Generation Reforms — is typically understood to include legal and judicial reforms. Douglass North speculated that transplanted Western commercial laws require compatible dispute resolution forums, debt enforcement, and bankruptcy mechanisms. His reasoning persuaded legal assistance programs in socialist-transforming East Asia (including Vietnam) to concentrate resources to refashion (capacity building) institutions into a Western legal mold.41 Based on the developed countries’ new theory, by systematic review of the theoretical literature on law and development, Kevin E. Davis and Michael J. Trebilcock argue that different perspectives on development generate different claims about both which legal institutions are important in the development process and how those institutions ought to be reformed to induce or facilitate development. Only this fact allows us to hint at the potential conflicts between the prescriptions associated with different theoretical perspectives. 42 The institutionalism revival in the development community has included a resurgence of interest in the role that legal and judicial institutions play, or ought to play, in promoting material improvements in the quality of life of the world’s poor.

At a 1995 conference hosted by the British Council, participants debated whether the mistakes of the law and development movement are likely to be repeated as donor institutions now embark on legal technical assistance programs. Faundez argued that although the old programs and the World Bank’s new initiatives appear to be quite similar on the surface, the context in which the Bank’s current programs are being carried out is

40 W. Paatii Ofosu-Amaah, Legal and Judicial Reform in Developing Countries: Reflections on World

Bank Experience, 8(3) Law and Business Review of the Americas, 551 (2002). 41 See Douglass North, The New Institutional Economics and Third World Development, Routledge

(London), at 17–27 (1995). 42 Kevin E. Davis & Michael J. Trebilcock, Legal Reforms and Development, 22(1) Third World

Quarterly, 120 (2001).


significantly different. Behind the law and development movement was the premise that the state “would initiate and promote the process of economic development.” By contrast, today the Bank sees law as facilitating market transactions by defining property rights, guaranteeing the enforcement of contracts, and maintaining law and order. Because the state is no longer the protagonist of social change, as in the law and development model, there is less room for error. Nevertheless, as his analysis proceeded, Faundez seemed to be less sure that the mistakes of the law and development movement would be evitable. He recognized that current development theories, inspired by the work of Douglas North and other Neo-institutional economists, still contemplate a role for the state. It is, to be sure, a different one from the activist theory implicit in the law and development movement, and it is one that is informed by economic analysis. But Faundez doubted whether this shift in attention from legal institutions to economic analysis would thereby avoid the problems of the earlier attempts at reform. His concern is that all the unanswered questions that lurked behind the law and development movement — the role of law and the formal legal system in development, the relationship between law and politics, and the relationships among democracy, authoritarianism, and development — still remain. 43 Pure economic analysis cannot solve the problem, only the new development theory of human rights based on the combination of law and economics represents the hope to resolve the paradox.

Influenced by the progress of the RTD theory, it is widely acknowledged that governments must provide the institutional infrastructure that makes competitive markets work, and that the legal system is a key element of that institutional development infrastructure. For example, in a report by the African Governors of the Bank, the Governors recognized that capacity inadequacies in the legal system as a whole pose major constraints to the development of capacity in the private sector. They proposed that:

A high priority should be given to a thorough reform of the legal system, including enhancing the local capacity to draft laws, providing support for the redrafting of legal codes, improving the judiciary, the capacity of State attorneys and private lawyers, and the capacity of legal and judicial training institutions.

They went on to say that: It is clear that “piecemeal” reform of the legal system often does not yield the desired

result. When an entire legal system has broken down, it is not enough to reform only a limited area of the law, such as banking laws, for example, without confronting the weaknesses in law enforcement in general. Modern banking laws are of little use when the lawyers, courts, and other legal institutions responsible for implementing them lack the capacity to do so effectively. What is required is a broader strategy of reform which

43 Faundez, Julio, Good Governance and Law: Legal and Institutional Reform in Developing Countries,

St. Martin’s Press (New York), at 23 (1997).


addresses the legal system as a whole.44

Reform of legal institutions and processes is integral to the promotion of human rights, democratic development, and good governance. Furthermore, it facilitates private economic activity by establishing a secure basis for contractual relations. Justice reform can also assist in promoting the participation of women in sustainable development, though it is fair to say that this is an area that remains to be explored in concrete programming. Judicial reform is also necessary to establish a framework for environmental protection. In other words, legal and judicial reform is both a worthy end in itself and is most probably a means to facilitate other RTD’s objectives.45 It is both causally interdependent with other development initiatives and conceptually necessary in any comprehensive approach to development.

Although the great progress has been obtained, the practical difficulties are still alive. In brief, there are three recurring problems that bedevil efforts to design and implement effective legal and judicial reform projects in the process of realizing the RTD.46 The first problem is a straight forward resource constraint problem: Improving the capacity and quality of a judicial system requires material and human resources that are in short supply in developing economies. The second problem is an incentive compatibility problem: The ability of the judicial system to perform a positive role in promoting development depends on the willingness of affected parties to use the courts to resolve disputes and to abide by judicial decisions, and on the willingness of judges and other law officers to behave in a manner that is consistent with the requirements of a well-functioning judicial system. It is urgent to enhance judicial capability of general public and strengthen the foundation of rule of law. The third problem is an institutional version of the General Theory of the Second Best: When a legal system is suboptimal in more than one respect, improving the law or the courts along one dimension may not improve overall institutional performance, and may even worsen it. Scholars and practitioners should pay more attention to the inherent trade-offs induced by resource scarcity; the importance of making sure that individual incentives are aligned with institutional objectives; and the dangers that particular institutional reforms that appear to be welfare-improving when considered in isolation may have counterproductive effects, if other institutional reforms are unachievable. This is actually the overall coordination issue of judicial reform, deeply speaking, is a game equilibrium choice concerned modern rule of law and traditional rule of man in the transformation process. If we cannot find rational strategy to reveal the

44 Douglas Webb, Legal and Institutional Reform Strategy and Implementation: A World Bank Perspective, 30(1) Law and Policy in International Business, 161 (1999).

45 Stephen J. Toope, Legal and Judicial Reform through Development Assistance: Some Lessons, 48(1) Mcgill Law Journal, 361 (2003).

46 Matthew C. Stephenson, Judicial Reform in Developing Economies: Constraints and Opportunities, Presented in Annual World Bank Conference on Development Economics 2007, available at http://www.law.harvard.edu/faculty/mstephenson/pdfsNEW/JudicialReformABCDE.pdf (last visited Oct. 8, 2015).


reform myth, achievement is impossible to obtain.

IV. BEYOND THE MYTHS

A. The Myth of Relationship between Law and Economic

In this myth, law is embedded in the development of economic can only provide a limited part of the realization of the RTD and unable to solve the problems of the un-equilibrium development. For example, the developed countries and developing countries equilibrium development at the international level, the urban and rural development equilibrium and capability equilibrium between the rich and the poor at the national and local levels, etc. As the theoretical core of law and development movement, traditional modernization theory has been widely questioned and deeply criticized. In the single modernization picture, developing countries were urged to copy the modern institutional features of Western countries, such as judicial independence, legal education, the rule of law and especially the enactment of rights-based commercial laws. Just as Posner’s remarks:

A modernizing nation’s economic prosperity requires at least a modest legal infrastructure centered on the protection of property and contract rights. The essential legal reform required to create that infrastructure may be the adoption of a system of relatively precise legal rules, as distinct from more open-ended standards or a heavy investment in upgrading the nation’s judiciary. A virtuous cycle can arise in which initially modest expenditures on law reform increase the rate of economic growth, in turn generating resources that will enable more ambitious legal reforms to be undertaken in the future.47

Acknowledging the importance of sound judicial systems to good governance and economic growth, the World Bank and several other donor organizations have funded judicial reform projects in more than two dozen developing countries and transition economies during the past few years. As Trubek observed, law and development scholars conveniently ignored Weber’s cautioning that law develops over time by interacting with local socioeconomic environment — processes that induce path-dependent development.48 Little is known about the actual effect of judicial reform on economic performance or even about what elements constitute a sound reform project.49 It is unclear to what extent the rule of law has fostered economic growth in the first group of countries and to what extent economic growth has allowed these countries to devote more

47 Richard A. Posner, Creating a Legal Framework For Economic Development, 13(1) World Bank

Research Observer, 10 (1998). 48 David Trubek, Toward a Social Theory of Law: An Essay on the Study of Law and Development, 82(1)

Yale Law Journal, 1 (1972). 49 Richard E. Messick, Judicial Reform And Economic Development: A Survey of the Issues, 14(1) World

Bank Research Observer, 12 (1999).


resources to the development and refinement of the rule of law and (in particular) of specific mechanisms designed to promote and protect economic activity and markets, which in turn may have promoted further economic growth. The relationship between the rule of law, economic growth, and economic stability may well vary during different stages of a country’s economic development. A failure to understand the social, economic, political, and legal contexts in which reforms are proposed to be implemented can be even more damaging to the prospect of successful judicial reform to realize the RTD than an exclusive focus on economic benefits. Everyone has his own favorite example of well-meaning development assistance gone awry.50 Even as China is often touted as an economy that has grown without having a strong Western style rule of law, it has its own systems of informal institutional arrangements that stimulated market exchange. Its recent focus on fortifying the rule of law is consistent with the view of decentralized markets, increasingly influenced by international economic norms and laws, as needing more effective legal institutions. 51 However, the crucial role of informal institutional mechanisms and local decent resources must be recognized and reconciled for legal reforms to be effective, as they have been a key aspect of China’s success.

Fortunately, today there have been many competing theories promoting the RTD’s concepts and ideas to mature. Based on the development of these theories, the realization of the RTD became a high-profile and challenging theme. Independent judicial reform path in many countries has achieved remarkable results in promoting the RTD. In China, for example, in addition to the remarkable economic growth, unique law reform model has also been affirmed by more and more Western scholars. Summary of these practical experiences provide an important basis for the development of the new RTD theory to break the law and economic relation myth.

B. The Myth of Judicial Independence

With the development of the common law in England, there arose a dangerous myth of judicial independence which, although it reached its intellectual culmination in the late nineteenth century, is believed by many to be the basis of current popular beliefs about law and the judicial process.

The official theory of judicial behavior is that judges stand outside the body politics. They decide cases, at least the good judges do, by a body of rules and according to the inexorable and unvarying commands of logic. They are the spokesmen for the law. Politicians, like Congressmen and Presidents, should not interfere, for if they do, we will lose our independent judiciary and will cease to have a government of laws and not of men. Such is the core of the official theory that has wide and powerful support and

50 John L. Walker, Building the Legal and Regulatory Framework, available at http://www.bostonfed.org/

economic/conf/conf44/cf44_3.pdf (last visited Oct. 8, 2015). 51 YANG Yao & Linda Yueh, Law, Finance, and Economic Growth in China: An Introduction, 37(4)

World Development, 761 (2009).


requires those who would influence the judiciary to do so within the context of this belief.52

In the searching process for realizing the RTD, numerous international resolutions, conferences and United Nations agencies have highlighted the significance of judicial independence. They emphasize that independent judiciary should be ensured by providing it the means and resources for the proper fulfillment of its human rights protection function. When the reform model of judicial independence was adopted by law and development aid projects, it has been forced to be acceptable by developing countries in a hypocritical way. This situation will inevitably led to fundamental reform at the level of national regime and the final results nothing but two choices: a mere formality fail, or the failure of the chaos.

Strong theoretical and empirical evidence shows that laws are not bare sets of prepositional rules and that legal transplants are most likely to produce desired outcomes in culturally compatible countries have not appreciably influenced the thinking of many foreign donors.53 Judiciary should be independent, but this does not mean unconditional legal transplant. In the strategic map of the RTD’s implementation, judicial independence is not the first decisive tactics. Especially the mode of constitutional power separation, with huge political risk and the cost of radical institutional change, for many developing countries is difficult to accept. It turns out that many development aid projects directed by the myth of judicial independence failed to ease the tensions in the globe relations and development.

C. The Myth of American Law Centralism

In the process of theoretical reflection, many scholars attributed the failure of law development movement to the American Legal Centrism and the lack of Comparative law. America should categorically abandon law and development and should fundamentally reorient its relationship to foreign legal experience through a self-interested practice of comparative law. As exemplified in the debate over judicial citation of foreign precedents, this shift will require basic changes in how American legislative and administrative bodies relate to foreign law, as well as the place of comparative law in American law schools. Such a reorientation will enable America to strategically perceive foreign legal developments and, most critically, productively adapt foreign legal experience as an energizing stimulant to our own legal innovation.54 Relevant lessons included: Too little participation by the lawyers and others in the target country who would either have to carry out the reforms or who would be affected by them; An exclusive focus on the

52 Wesley G. Skogan, Judicial Myth and Reality, 2 Washington University Law Quarterly, 309 (1971). 53 Carol Rose, The “New” Law and Development Movement in the Post-Cold War Era: A Vietnam Case

Study, 32(1) Law and Society Review, 126 (1998). 54 Jedidiah Kroncke, Law and Development as Anti-Comparative Law, 45(3) Vanderbilt Journal of

Transnational Law, 477 (2011).


formal legal system to the exclusion of customary law and the other informal ways to settle disputes and maintain justice; and, finally, A lack of cultural sensitivity, as the American legal system was exported to foreign countries without taking the local legal culture and environment into account.

Critics assert that the most significant reason for the failure of the judicial aid movement was the naive belief that the American legal system, which Trubek and Galanter refer to as “liberal legalism,” could be easily transplanted to developing countries.55 In the United States, judges play a significant role in policymaking, and as a result, lawyers are often able to engineer significant changes in policy through litigation. This is not true in civil law systems or indeed even in the United Kingdom and other nations that share the same common law background as the United States. As Merryman put it, the law and development movement reflected the American “legal style,” and this was a style that those in other cultures did not find particularly attractive.56

As we all know, the US opposes the right to development; but in fact, in the history of the development of the American legal system, social movements based on people sovereignty played very important role in accessing to RTD. For example, the right to an economic live-hood, adumbrated by agrarian and labor organization in the nineteenth century and again in the New Deal was specified in Four Freedoms as “freedom from want” and in the Atlantic Charter as “improved labor standards, economic advancement and social security” for all. Its worldwide appeal was enshrined in Article 23 of the UDHR in 1948 as “the right to work.” Martin Luther King had reasserted the right to work in the civil rights movement.57 Nowadays, whether right to adequate housing or the right to work, is considered an important part of RTD. In some famous constitutional cases of the U.S., we can also find a lot of relevant judicial decisions to realize the RTD. Thus, U.S. is not naturally and absolutely against the RTD and its implementation, whose strategy is a typical “double standard”: For the RTD in domestic affairs it is very concerned and enthusiastic, aiming at political stability, economic growth and social prosperity; but for the RTD at the international level, it has remained opposed attitude, not willing to give up the vested superpower monopoly profits, unwilling to share the due interests with other countries in the process of the globalization and development fairly. Because of the double standard, the United States launched the absolute, unipolar legal transplant program, trying to reconstruct the rule of law sketch map of the developing countries gauging its own interests as supreme criterion. Facts have shown that this strategy has produced a powerful side effect and destroyed the formation of new political

55 D. Trubek & M. Galanter, Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and

Development, 14 Wisconsin Law Review, 1089 (1974). 56 See Merryman, fn. 34 at 468. 57 David L. Chappell, Walking From the Dream: The Struggle for Civil Rights in the Shadow of Martin

Luther King, Jr., Random House (New York), at 88 (2014).


and economic order of the world.

CONCLUSION

Although the ideas and reflections of the RTD become the consensus after the failure of the law and development movement, whether the new round of law and the judicial reform movement can achieve a breakthrough to realize the RTD remains a question to be answered. But now we can be sure that the theme of “implementing the RTD through judicial reform” has been increasingly recognized and accepted by the international community and nation-state. From “law in books” to “law in action,” the key advocate of the sociological jurisprudence also applies to the realization of the RTD. We cannot be of excessive dependence on the Declaration of the RTD, fantasy it overnight from soft law into hard law, from no compulsory execution force into an legal obligation, from the international level compromise agreement into the domestic level of institutional law, from the wonderful idea into real benefit in a second time. On the basis of the existing basic consensus, we should seek the judicial channels though which the ought right can be transformed practical. Nowadays the main differences are not like this kind of reform, but how to effectively promote it. In the new wave of judicial reform in the world, there is a subtle tension that comprises both cooperation and competition in international relations. Finding out the feasible road of implementing the RTD firstly means initiative and advantage in the future global strategy game. Therefore, it is foreseeable that with the continuous polymerization of the RTD movement and the tide of judicial reform, the justifiability of the RTD right will be bound to realize and the safeguard of the judicial human rights will be continuously achieved, in the end, the new global legal system centered as the judicial RTD will become a beautiful reality.

Firstly, judicial reform on the basis of self-determination could promote the realization of the RTD. The RTD is rooted in developing countries’ equilibrium demands for balancing the development interests. The core of this requirement is the national self-determination right based on “self-determination RTD.” As explained by Sengupta, the right to self-determination entails that the international community of states has a duty to cooperate not only in respecting the right to self-determination of all peoples (abstaining from violative practices) and in protecting it (regulating the activities of third parties), but also by taking legislative, administrative, budgetary and judicial measures in order that the right is fulfilled. The scope of the obligation in relation to self-determination and sovereignty over natural resources would apply when they are considered as rights unto themselves and as part of the RTD. Within this explanation one can locate the fact that self-determination is a right close to the hearts of the indigenous peoples and this can be explained more clearly as a “right to self-determined development.” It is the freedom to pursue economic, social, cultural, and political development. It is a right that facilitates the enjoyment of indigenous peoples of the right to their cultural identities and their ability to determine their own economic, social, and


political system through democratic institutions and actions. It is about sustainable and equitable use of natural resources in a manner that fully and completely integrates the range of rights provided to indigenous with regard to their lands, territories and resources, their values, traditions and economic, as well as religious and spiritual relationships to their land.58 For scholars, exploring the reform measures from the judicial view to realize RTD is a new topic in the future.

Secondly, Drafting a Legal and Judicial Reform Framework Convention on the RTD seems to be the best option for accommodating the concerns of the different political groups, as it allows for a step-by-step approach. A framework convention is a treaty under international law: Such a treaty is open to States, and once it has entered into force, it is binding on States that have expressed consent. As Prof. WANG Xigen, the famous RTD scholar, argued the following:

A solid foundation in theory and practice of the RTD establishes a basis for legislation and its implementation. Absence of common knowledge and understanding in legal philosophy is a major problem. No right will ever be realized if its justification for being valuable and legitimate is only through natural law instead of positivism. A practical approach to realize this right is to achieve its “positivization” into a legal norm.59

The potential added value of a Framework Convention on the RTD is to complement the current human rights regime with a treaty that goes beyond individual State responsibility and takes inspiration from principles derived from international development efforts, such as mutual accountability, alignment of policies among partner countries, and inclusive partnerships. In addition, the more important and urgent, framework should integrate all the subjects in the development assistance, judicial process, and national decision-making body, exploring more operational and targeted implementation mechanism for the RTD’s realization through exemplary and influential case.

It is essential for the implementation of the RTD to establish the special interactive equilibrium mechanism between the collective human right at the national level and the international level. The duty bearers of the RTD are both the state acting at the national level and the international community of states acting individually or collectively, and a balance is struck between duties entailing international cooperation and those that require domestic implementation. Based on the “integrity of multidimensional equilibrium,” we can design the strategic framework both acceptable to the realization of RTD and judicial reform.

58 Sengupta A. & Salomon M., Issue Paper: The Right to Development: Obligations of States and the

Rights of Minorities and Indigenous Peoples, Minority Rights Group International, London, 2003. 59 WANG Xigen, On the Right to Sustainable Development: Foundation in Legal Philosophy and

Legislative Proposals, in Stephen P. Marks eds. Implementing the Right to Development: The Role of International Law, Friedrich-Ebert-Stiftung (Geneva), at 46 (2008).


Thirdly, in the process of constructing the global judicial reform and realization of the RTD, we can achieve re-integration of the various forces by using the systematic thinking mode of “social physics.”60 From three aspects: international, national and local. Social process means social interaction at any level. Social process/interaction consists of human beings (human capital) pursuing values, through institutions based on resources. This model can be expressed with greater complexity and clarity at any level of social organization. It may be a tool that can bridge the division between the universe of macro-economics and the universe of micro-economics. This model is compatible with the UN Declaration of the Right to Development as well.61 Using the collective thinking of social networks, we can bridge the differences between individual human rights and collective human rights from the philosophy and practice and form the equilibrium force to implement the RTD. Over time, the idea of rationality and individualism changed the entire belief system of Western intellectual society, and today it applies to the belief system of other cultures. As we had seen so far, new data are changing this argument, and we now coming to realize that human behavior and rights is determined as much by social physics as by rational thinking or individual desires.

The institutional framework for realizing of the RTD should integrate the three dimensions of sustainable development in an equilibrium model and enhance implementation by, inter alia, integrating the local, subnational, national, regional and global levels representing the voices and interests of all is critical for advancing the RTD, meanwhile strengthening coherence, coordination, avoiding duplication of efforts and reviewing progress in implementing the RTD. We also reaffirm that the framework should be inclusive, transparent, and effective; additionally, it should find common solutions related to global challenges to the RTD.

We should reaffirm the key role of all levels of government and legislative bodies in promoting the RTD. We underscore that broad public participation and access to judicial process and judicial reform proceedings are essential to the promotion of the RTD. Implementation of the RTD through judicial reform requires the meaningful involvement and active participation of regional, national, and sub-national legislatures and judiciaries, and all major groups: women, children and youth, indigenous peoples, non-governmental organizations, local authorities, workers and trade unions, business and industry, the scientific and technological community, and farmers, as well as other stakeholders, including local communities, volunteer groups and foundations, migrants and families as well as older persons and persons with disabilities. In this regard, we agree to work more closely with the major groups and other stakeholders and encourage their active participation, as appropriate, in processes that contribute to decision-making, planning,

60 Alex Pentland, Social Physics: How Good Ideas Spread — The Lessons from a New Science, The

Penguin Press (New York), at 59 (2014). 61 Winston P. Nagan, The Right to Development: Importance of Human and Social Capital as Human

Rights Issues, 1(6) Cadmus, 25 (2013).


and implementation of policies and programmers for sustainable development at all levels.

Finally, it is crucial that social (“grass roots”) movements and NGOs, in both developing and developed countries, in their daily struggle, call for an effective implementation of the Declaration on the Right to Development and oppose all attempts, on the part of governments and the private (i.e. commercial) sector, to strip it of its meaning. One of the major challenges that civil society organizations face is to make the RTD a judiciary instrument whereby it can be used by the people to demand justice for themselves. These organizations need strategies to focus on development of people’s agenda and what they feel should be the “development paradigm.” Instead of looking towards nationalistic approaches only, there needs to be a concerted effort to build and strengthen the diverse voices, create spaces, and develop a judicial RTD with these diversities.

FRONTIERS OF LAW IN CHINA · FRONTIERS OF LAW IN CHINA VOL. 10 DECEMBER 2015 NO. 4 DOI...

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