Second International Conference on War Tax Resistance and Peace Tax Campaigns

Vierhouten, the Netherlands 1988

The Right to Development

as a guideline for arms control by the United Nations

by Paul J. I. M. de Waart

Introductory remarks

1. According to the Encyclopaedia of the United Nations (Edmund J. Osmanczyck, 1985) development is the international term in the UN system for all cultural, economic and social problems arising from the relative backwardness of the Third World. The Encyclopaedia then defines international development strategy as the sum total of measures agreed among governments within the UN system to reach economic and social development targets. It strikes that neither the term development nor the definition refer to principles and rules of international law in general and human rights law in particular. Both development and international development strategy are thus reduced to mere problems of the Third World to be dealt with by politics only.

2. However, the ultimate effect of any development strategy hinges on a proper balance between state rights and human rights. Human rights are not merely instrumental to national and international order. The international Bill of Human rights does not imply that any international order would have such a predominant position that for its sake individual human rights might be sacrificed. The 1986 UN Declaration on the Right to Development (UNGA Resolution 41/128 of 4 December 1986, adopted by 146 to 1 (US) with 8 abstentions (Denmark, Finland, Federal Republic of Germany, Iceland, Israel, Japan, Sweden and the UK) plainly recognizes that the promotion of certain human rights and fundamental freedoms cannot justify the denial of other human rights and fundamental freedoms. Moreover it stresses that equal intention and consideration should be given to the implementation, promotion and protection of civil, political, economic, social and cultural rights.

Defining development

3. The UN Declaration on the Right to Development defines development for the purpose of the Declaration as

a comprehensive economic, social, cultural and political process, which aims at the constant improvement of the wellbeing of the entire population and of all individuals on the basis of their active, free and meaningful participation in development and in the fair distribution of benefits resulting there from.

In this definition development is a process and not a result.

The right to development has this approach in common with all economic, social and cultural rights. The latter rights differ in this respect substantially from the civil and political rights for these rights aim at securing a specific result indeed.

4. In its 1986 UN Declaration on Social Progress and Development (UNGA Resolution 2542 (XXIV) of 11 December 1969) the UN General Assembly expressed its unanimous view that international peace and security on the one hand and economic development on the other are closely interdependent and influence each other. This Declaration had long been seen by most development and human rights experts as the single most important and coherent statement of Western liberal values on the subject (Philip Alston & Bruno Simma, Second Session of the UN Committee on Economic, Social and Cultural Rights, in American Journal of International Law 3/82 (1988) page 614).

However, in November 1986 the US representative (Ms. Byrne) told the Third Committee of the UN General Assembly:

that the United States would no longer adhere to the Declaration on Social Progress and Development. The Declaration had been adopted at a time when ideas about the role of the Government in social development and in providing social welfare were very different. The United States had learned that Government, even in the richest countries, could not alone provide massive social welfare programmes on a scale such as that suggested in the Declaration. Individual needs varied so greatly that centralized social welfare schemes were often counterproductive to the effort to allow all individuals to become self-sufficient and independent. In the United States, the contribution of the private sector and of State and local Governments to social progress and development were an essential part of all effective social programmes.

5. It is not quite clear whether the withdrawal of the US support also pertains to Article 27 of the above mentioned Declaration, which includes among the means and methods to achieve the objectives of social progress and development:

The achievement of general and complete disarmament and the channelling of the progressively released resources to be used for economic and social progress for the welfare of people everywhere and, in particular, for the developing countries;

The adoption of measures contributing to disarmament, including inter alia, the complete prohibition of the development, production, and stockpiling of chemical, bacteriological (biological) weapons and the prevention of the pollution of oceans and inland waters by nuclear weapons.

6. Anyhow, the US member of the UN Working Group of Governmental Experts on the Right to Development and his colleague from the USSR could agree on the following provision of the draft Declaration on the Right to Development (now Article 7) at a relatively early stage:

All States should promote the establishment, maintenance and strengthening of international peace and security and, to that end, should do their utmost to achieve general and complete disarmament under effective international control as well as to ensure that the resources released by effective disarmament measures are used for comprehensive development, in particular that of developing countries.

The discussion in the Working Group showed that this article may have been less indicative of a true consensus among the superpowers on disarmament and development than of a general feeling among other States that efforts thereto were not really their business. However, the reasoning of the International Court of Justice (ICJ) in the Nicaragua v. USA case really surpassed this noncommittal attitude which was shown at the political level by the authoritative and imaginative way in which the Court showed that the 1970 UN declaration on Principles of International Law concerning Friendly Relations and Cooperation Among States in accordance with the Charter of the United Nations reveals an opinio juris in respect of the principles of peaceful coexistence (ICJ Reports 1986, paragraph 188) :

The effect of consent to the text of such resolutions cannot be understood as merely that of a “reiteration or elucidation” of the treaty commitment undertaken in the Charter. On the contrary, it may be understood as an acceptance of the validity of the rule or set of rules declared by the resolution. The principle of the non-use of force, for example, may thus be regarded as a principle of customary international law, not as such conditioned by provisions relating to collective security, or to the facilities or armed contingents to be provided under Article 43 of the Charter.

Arms control and disarmament

7. Usually a distinction is made between arms control and disarmament. The UN Charter uses both expressions. According to Article 11, paragraph 1 of the UN Charter, the General Assembly may consider

the general principles of cooperation in the maintenance of international peace and security, including the principles governing disarmament and the regulation of armaments, and may make recommendations with regard to such principles to the Members or to the Security Council or to both.

However, in respect of the Security Council the UN Charter states Article 26:

In order to promote the establishment and maintenance of international peace and security with the least diversion of armaments of the world's human and economic resources, the Security Council shall be responsible for formulating, with the assistance of the Military Staff Committee referred to in Article 47, plans to be submitted to the Members of the United Nations for the establishment of a system for the regulation of armaments.

8. In his essay on The law of arms control and disarmament (in Essays in international law in honour of Judge Manfred Lachs, J. Makarczyk (editor), Martinus Nijhoff, 1984, pages 731-747) the late Roling designated to arms control all measures which may prevent that armed power will turn dysfunctional, will create its own perils or will become unable to fulfil its own role, i.e. deterrence and defence. Disarmament then refers to a substantial reduction in the level of armed power:

This distinction is meaningful, because arms control is in all aspects advantageous to both parties as it removes the dangers that lie hidden in the arms themselves. The greater the tension between the parties, the greater the need for arms control. Hence it is an error to make the will to negotiate subject to the acceptable political behaviour of the opponent.

9. The current legal order for arms control and disarmament not only consists of rights and duties of states but also of human rights (and duties). By virtue of Article 28 of the 1948 Universal declaration of Human Rights everyone is entitled to such an order as a prerequisite for the full realization of the rights and freedoms set forth in this Declaration. According to Article 29 of said Declaration everyone has duties to the community in which alone the free and full development of his personality is possible.

10. Legal criteria and especially principles of international law are often too general in purport as yet to be capable of immediate application without further detailed specification in regulations. An important task is yet awaiting the nations in the field on the negotiations of treaties and the making of laws. The legal framework for negotiations on arms control and disarmament has been constituted by the UN Charter and the resolutions and treaties based thereupon relating to human rights and rights and duties of states. Both sets of rights underlie the so-called humanitarian law, which constraints the waging of war (F. Kalshoven, Constraints on the waging of war, International Committee of the Red Cross, 1987)

Negative and positive peace

11. Peace is the most central objective of the international legal order, at any rate in the sense of the absence of war. However, peace means more than such an absence only as appears from the UN purpose to promote worldwide respect for human rights. In 1986 the International Law Association's 62 Conference, held in Seoul, adopted the Declaration on the Progressive Development of Principles of Public International Law relating to a New International Economic Order (Seoul Declaration). This Declaration contains the following progressive set of NIEO Principles:

12. The principle of solidarity reflects the growing interdependence of economic development, the growing recognition that states have to be made responsible for the external effects of their economic policies and the growing awareness that underdevelopment or wrong development of national economies is also harmful to other nations and endangers the maintenance of peace. Development implies a continuous effort and not a definite result, at least above the level where the basic needs of all human beings are met. On the other hand there is a growing awareness among international lawyers that below the level of absolute poverty the international legal principle of development should result in a true claim of the poor(est) people towards the international community as a whole, states and even individuals. According to the UN Declaration on the Right to Development all human beings

have a responsibility for development, individually and collectively, taking into account the need for full respect of their human rights and fundamental freedoms as well as their duties to the community, which alone can assure the free and full fulfilment of the human being, and they should therefore promote and protect an appropriate political, social and economic order for development.

13. Recognizing that every state has the primary responsibility to promote the economic, social and cultural development of its people, the Declaration on the Right to Development stresses the entitlement of states to development assistance from the international community in order to overcome temporary or structural obstacles for the implementation of this task. In other words, the right to development underlies the fundamental duty of both states and non-state actors to alleviate absolute poverty as a matter of priority. It reflects the emerging opinio juris sive necessitatis that the alleviation of absolute poverty should be withdrawn from poor relief. The release of the resources by effective arms control is urgently needed also from this point of view. According to the so-called 1982 Thorsson report on The Relationship between Disarmament and Development (UN Document A/36/356) the world can continue to pursue the arms race with characteristic vigour or move consciously and with deliberate speed toward a more stable and balanced social and economic order. It cannot do both.

International legal framework for the use of armed force

14. The ICJ judgment in the Nicaragua v. USA case elaborates the definition of aggression and collective self-defence in relation to the prohibition of the use of armed force. The definition of aggression qualifies as an act of aggression (UNGA Resolution 3314 (XXIX) of 14 December 1974), Article 3 (g)):

the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.

The Court is of the opinion that this description may be taken to reflect customary international law on the understanding that the mere provision by a state of weapons or other forms of logistical assistance and the like to rebels in another state should not be identified as aggression. In doing so the Court opted for a strict interpretation of Article 51 of the UN Charter and rejected the extensive interpretation which denies that “armed attack” in that article means that self-defence is only possible in the case of an armed attack. The exercise of the right of self-defence presupposes that an armed attack has occurred indeed. This strict view which is referring to Article 1, paragraph 1 and Preamble, paragraph 7 of the UN Charter is one of the most important guarantees that the prohibition of the use of force in Article 2, paragraph 4 of the Charter is not being undermined. Provisions that for the purpose of military alliances an armed attack on one or more allies shall be considered an attack against them all does not imply that the state which is the victim of an armed attack must not itself form and declare the view that it has been so attacked. Commitments under collective defence systems, in other words, may be met only when the wrongful act provoking the use of force really was an armed attack.

The then president of the Court Nagendra Singh rightly pointed out in his separate opinion that non-use of force has become a cardinal principle in international relations (ICJ Reports 1986, page 151):

The logic behind this extension of the principle of the non-use of force to reprisals has been that if the use of force was made permissible not as a lone restricted measure of self-defence but also for other minor provocations demanding countermeasures, the day would soon dawn when the world would have to face the major catastrophe of a third World War.

15. In any community law may function as an instrument of power, a mere regulator of mutual interests or an effective means of truly coordinating common efforts. International law differs from national law in that the so-called law of coordination is still the exception and that it may become an instrument of power more easily (G. Schwarzenberger, A Manual of International Law, 6th edition, 1976, page 10). The 1986 ICJ judgment in the Nicaragua v. USA case gives much food for thought for those who answered the burning question: “Is international law really law?” in the affirmative. It reflects that according to the Court the maintenance of international peace and security underlies not so much an international law of power anymore as an international law of coordination. The Court apparently does not endorse the thesis that one has to accept that in the present state of international law the International Court is generally unable to solve disputes of vital political significance.

16. The International Court still has to operate in a legal system which is not fully endorsed by states in general and the permanent members of the Security Council in particular. Fortunately the Court did not yield to the temptation to consider itself as an institution not strong enough to deal with issues of civil war and subversion raised by the Nicaragua v. USA case. I strongly disagree with such views as that the Court should have been wiser knowing that the respondent state was likely to be extremely hostile to an adverse decision and there were tenable bases for the Court to avoid jurisdiction and a judgment that clearly endorses the position of the applicant (J.I. Charney, “Disputes implicating the institutional credibility of the Court: problems of non-appearance, non-participation and non-performance” in The International Court of Justice at a crossroads, L. Damrosch (editor) 1987, page 305)

17. Admittedly, an absolute refusal of the Court to consider the political circumstances in which a matter arises would be inappropriate and impossible. The less regulated a society is, the less support the judicature will receive from the legislature and the executive to the detriment of its own function. On the other hand neither law nor courts can prevent legal subjects from violating rules of law. However, the least the international legal order can do is to prevent offenders from pretending that they act legally. In this connection the discussion on the lawfulness of the political and military use of nuclear weapons is quite illustrative.

Political and military use of nuclear weapons

18. In September 1985 a Dutch Peace Tribunal consisting of Belgian and Dutch professors of international and constitutional law tried to define the limits, derived from the law, which should apply to power politics that are partly based on the possession and the use of nuclear weapons. A challenging but difficult task. For, according to a recent treatise on international judicial law the record of traditional international law on subject of the legality of biological, chemical, nuclear and other means of mass determination is still meagre (G. Schwarzenberger, International Judicial Law, 1986, pages 731-733). However, this meagreness is not structural and thus unavoidable shortcoming of international law itself but the result of political shortsightedness of governments, political parties and voters. In respect of nuclear weapons mankind is putting increasingly international law under heavy pressure indeed to adjust not merely antagonistic interests on a basis of reciprocity, let alone to exploit disparities in power positions only but to coordinate individual efforts for the better achievement of common purposes.

19. No general convention expressly prohibits the possession or the military use let alone the political use of military weapons. However, as regards the employment of nuclear weapons a number of criteria may already be derived from international customary law and general principles of law. Nuclear weapons are usually considered to have not so much a military value in wartime as a political value in peacetime, i.e. the prevention of war by deterrence. Deterrence in order to prevent armed violence is the only reasonable and legitimate function of national and allied armament. Deterrence is unlawful, if there is a question of economic interests or of defence or ideological interests. Dealing with the scope and content of non-intervention in the Nicaragua v. USA case the Court noted that (ICJ Reports 1986, page 108)

in view of the generally accepted formulations, the principle forbids all States or groups of States to intervene directly or indirectly in internal or external affairs of other States. A prohibited intervention must accordingly be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely. One of these is the choice of a political, economic, social and cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones.

20. Moreover the Court unambiguously expressed the view that (ICJ Reports 1986, page 133)

adherence by a State to any particular doctrine does not constitute a violation of international customary law: to hold otherwise would make nonsense of the fundamental principle of State sovereignty, on which the whole of international law rests, and the freedom of choice of the political, social, economic and cultural system of a State.

(...) The Court cannot contemplate the creation of a new rule of international law opening up the right of v intervention by one State against another on the ground that the latter has opted for some particular ideology or political system.

It is a matter for regret that the Court let the opportunity slip to qualify the freedom of states to choose their economic, social and cultural system. Apart from Nazism and apartheid as clearly illicit systems, human rights may check the freedom of states substantially. One may also question the right of a state to choose an economic system which intently causes substantial injury to other states.

Peacetime

21. There is a growing awareness that mankind may demand proper legislative measures for development as a principle of international law in general and human rights law in particular. According to the aforesaid UN Declaration on the Right to Development states have the right and the duty to formulate appropriate national development policies that aim at the constant improvement of the wellbeing of the entire population and of all individuals, on the basis of their active, free and meaningful participation. The political or deterrent function of nuclear weapons should take that into account. Moreover it is amenable to principles of international law concerning friendly relations and cooperation among states. In other words, the existing international legal setting already affects the political function and value of nuclear weapons. Deterrence may not imply the threat of use of nuclear weapons and may not serve hegemony or otherwise violate the freedom of states to choose their own system in conformity with principles and rules of international law, including international human rights law.

22. According to international law the UN and regional defence organizations may not dispose of the political function of nuclear weapons. Article I of the 1968 Treaty on the Non-Proliferation of Nuclear Weapons lays down that each nuclear weapon state party to the treaty undertakes not to transfer to any recipient whatsoever nuclear weapons or other nuclear explosive devices or control over such weapons or devices. Therefore deterrence undermines the UN Charter in respect of maintaining peace and security and the pertinent responsibilities of the UN organs and of regional defence organizations under UN supervision. For the Non-Proliferation Treaty excludes the transfer of even the control over nuclear weapons and devices to the UN system.

23. Neither the capitalist system nor the communist system may derive from international law any right to use deterrence as a means to prevent a state to opt for introducing, abandoning or changing one of these systems. Neither the capitalist nor the communist system may derive from international law any argument to claim hegemony. States should prevent their economic, political, social and cultural systems from degenerating into a systematic violation of international law, as has been the case already with Nazism and apartheid.

Wartime

24. The military use of nuclear weapons is covered by the so-called De Martens clause in general and principles of humanitarian law in particular. This clause provides that in cases not included in the pertinent regulations both civilians and combatants “remain under the protection and the rule of the principles of the law of nations as they result from the usages established among civilized nations, from the laws of humanity and the dictates of public conscience”. In view of the mass destructive nature of nuclear weapons it must be assumed that if they are used, principles of humanitarian law will be violated. As the Court observed in the Nicaragua v. USA case, there is no rule of international customary law permitting another state to exercise the right of collective self-defence on the basis of its own assessment of the situation. The Court's reasoning really surpasses the merits of the particular case. Therefore one should fully endorse a recent and authoritative argument that the UNGA should ask the Court for an advisory opinion whether the possession, manufacture and use of means of mass extermination is in conformity with “the principles of international law recognized by civilised nations”(Schwarzenberger, op. cit., pages 722-733).

Duty to negotiate on arms control: towards a law of arms control

25. The prohibition of the use of force as a peremptory norm of international law (jus cogens) by the International Court of Justice enhances the implied duty of states to pursue in good faith negotiations for the conclusion of a universal treaty on general and complete disarmament under effective international control. It also urges the Security Council to take seriously its responsibility for submitting to UN members plans for the establishment of a system for the regulation of armaments with the least diversion of the world's human and economic resources (UN Charter, Article 26).

26. According to a French saying, international agreements would be impossible without conflicting mental reservations (F. Ch. Ikle, How nations negotiate, Praeger 1964, pages 15-16). Lester Pearson recalled in his Diplomacy in the nuclear age (Harvard University Press 1949, pages 47-48):

I know there have been occasions and I have been concerned with one or two, when, as the lesser of two evils, words were used in recording the results of negotiations or discussions whose value lay precisely in the fact that they were very imprecise, that they could be interpreted somewhat freely and therefore could be used not so much to record agreements as to conceal a disagreement which it was desired to play down and which, it was hoped, would disappear in time. It is a practice, however, which is only rarely justified.

By way of a then recent example Ikle made reference to a possible link between the partial test ban treaty and a nonaggression pact, which the Western and Soviet negotiators put in their joint communiqué of July 25, 1963:

When Khrushchev finally realized that he could not exploit the Western desire for a test ban with such a tie in, he must have wanted to conceal his failure. The Western powers possibly cooperated in saving him embarrassment (...) by agreeing to the following equivocal language in their communiqué:

“(...) the three delegations discussed the Soviet proposal relating to a pact of nonaggression. (...) (They) have agreed fully to inform their respective allies in the two organizations concerning these talks and to consult with them about continuing discussions on this question with the purpose of achieving agreement satisfactory to all participants.”

27. The Final Document of the 1978 UN Special Session on Disarmament (UNGA Resolution S10/2 of 30 September 1978 states in its paragraph 28:

All people of the world have a vital interest in the success of disarmament negotiations. Consequently, all States have the duty to contribute to efforts in the field of disarmament negotiations. They have the right to participate on an equal footing in those multilateral disarmament negotiations which have a direct bearing on their national security. While disarmament is the responsibility of all States, the nuclear weapon States have the primary responsibility for nuclear disarmament, together with other military significant States, for halting and reserving the arms race. It is therefore important to secure their active participation.

However, the 1982 UN Special Session on Disarmament did not reflect the right to participate on an equal footing as appears from, for example, the statement of the Belgian Minister of Foreign Affairs on behalf of the European Community on 8 June 1988:

Nuclear disarmament is one of our highest priorities. We must look into the means to reach this goal, with the participation of the nuclear weapon States and, in particular, of those which have the largest arsenals. But it is for the major nuclear Powers to take the first step and effectively live up to the expectations of the international community.

28. The ongoing bilateral talks between president Reagan and General secretary Gorbachov should not be considered as belonging to the mere real of the discretionary powers of USA and USSR. On the contrary, in doing so, both superpowers are fulfilling the legal duty underlying the UN Charter. This also appears from Article VI of the Non-Proliferation Treaty which reads:

Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.

In other words, by virtue of current international law nuclear weapon states have no discretionary powers anymore to avoid or refuse negotiations on effective regulations which enable the cessation of the nuclear arms race and general disarmament.

29. In his essay on The law of arms control and disarmament, the late Roling stated that the rules of this new chapter of international law belong to the jus pacis, just as the jus ad bellum that concerns the kind of circumstances which permit a state to take up arms. Roling considered as a basic principle of this law that the right of the state to possess national power is not unlimited. He also stressed that the right of a state to possess armed force is related to the right to use that power. Thus the national state only has the right to possess the armed power which is indispensable for exercising its right to use that power. A third rule reads that only such national armed power is legitimate as is needed for deterrence and defence against an armed attack. According to Roling new military order has become necessary as a result of technological developments, and which proceeds from the above mentioned principle that the freedom of a national state to arm itself is not unlimited.

International humanitarian law

30. The freedom of a state to arm itself has also been restricted by international humanitarian law. None of the humanitarian treaties in force specifically deals with the use of nuclear weapons. Moreover there is no general convention expressly prohibiting the use of nuclear weapons as such. However, in its very first resolution the UN General Assembly requested the then established Atomic Energy Commission to formulate proposals on the elimination of nuclear weapons from national armaments (UNGA Resolution I (1) of 24 January 1946). Fifteen years later the UN General Assembly declared, albeit far from unanimously (UNGA Resolution 1653 (XVI) of 24 November 1961, adopted with 55 votes against 20 with 26abstentions) that

the use of nuclear and thermonuclear weapons is contrary to the spirit, letter and aims of the UN and, as such, a direct violation of the UN Charter; would exceed even the scope of war and cause indiscriminate suffering and destruction to mankind and civilization and, as such, is contrary to the rules of international law and the law of humanity; is a war directed not against an enemy or enemies alone but also against mankind in general, since the peoples of the world not involved in such a war will be subjected to all the evils by the use of such weapons.

31. Discussing the threat of the use of nuclear weapons against enemy cities whether defended or not (counter city strategy) Kalshoven rightly stated:

No matter what one may think of the legality of such a threat to destroy entire cities, uttered in peace time and in order that peace may be preserved, there is little room for doubt that one deterrence has failed and an armed conflict has broken out, the actual realization of a threatened counter strategy with the destruction beyond comprehension it would entail could never be justified with the simple reference to the “different” character of nuclear weapons. As the law stands, therefore, execution of the strategy could at best, if at all, be justified as a measure of reprisal against a comparable earlier wrong. Other, more “military” uses of nuclear weapons (for instance against military objectives such as concentration of enemy armed forces, missile launching pads or other extremely important military objectives) offer even less hold to those who wish to deny the application of the existing laws: any such military use of nuclear weapons would have to be tested against the rules and principles, those relating to the protection of the civilian people not excepted, which were developed as general standards for the military use of all weapons of war without exception.

It thus appears almost impossible to employ nuclear arms legally as Shylock in Shakespeare's famous play “The Merchant of Venice” was unable to lay claim to his debtor's heart for he had to cut it out without shedding one single drop of blood!

An international disarmament fund for development

32. In its resolution 1987/23 of 10 March 1987 the UN Commission on Human Rights (UNCHR) requested the UN Secretary General to circulate the Declaration on the Right to Development to all governments, UN organs, international government organizations (IGOs) and nongovernmental organizations (NGOs) and to invite them to offer their opinions and views on the implementation of the Declaration. The UN General Assembly will discuss at its present session an analytical compilation of the replies of governments and of comments received in the 1988 sessions of UNCHR and ECOSOC.

33. Among the governments which replied only the Federal Republic of Germany (FRG) opposed the Declaration as such and therefore considered the question of its implementation to be immaterial. Taking into account ongoing discussions in this respect its may be presumed that the reply of FRG reflects the opinions and views of the other states voting against the Declaration (USA) or abstaining (Denmark, Finland, Iceland, Israel, Japan, Sweden and the UK). The Government of FRG criticized the Declaration on the right to development strongly on a number of grounds such as that

the right to development cannot be derived from any relevant source of international law; no specific benefits or obligations between states can be derived from the duty of solidarity as a principle of international law; the right to development should not by its substance establish an entitlement by one state to obtain economic contributions of any kind from another state.

34. The position of FRG towards the right to development fails to appreciate the close relationship between human rights and state rights. By virtue of the right to development individuals and peoples have a claim towards states and their organizations IGOs that development will be secured as a comprehensive economic, social, cultural and political process which aims at the constant improvement of the entire population and of all individuals. To that effect States and IGOs have to take steps to ensure that policy, legislative and other measures are being formulated, adopted and implemented at national and international levels to eliminate the massive and flagrant violations of these rights; establish, maintain and strengthen international peace and security; ensure equality of opportunity for all in their access to basic resources, education, health services, foods, housing, employment and the fair distribution of income; secure fulfilment of basic needs for all in particular for the most vulnerable groups in a society; realize effective international cooperation to promote more rapid development of developing countries by proving them with appropriate means and facilities; incorporate promotion of human rights in programmes of IGOs, including international financial instructions; encourage popular participation in all spheres as an important factor in development and in the full realization of human rights.

35. The Thorsson report recommended that further consideration be given to establishing an international disarmament fund for development and that the administrative and technical modalities of such a fund be further investigated by the UN with due regard to the capabilities of the agencies and institutions currently responsible for the international transfer of resources. Such a fund requires the recognition by states and their nationals that security is part and parcel of socioeconomic policy (J. Tinbergen/D. Fischer Welfare and welfare, 1987). Development is endangered by manmade disasters such as environmental pollution and war indeed. Not only politicians but also researchers still tend to overlook the need for integrating security topics with socioeconomic topics. Legal aspects of NIEO should likewise include a new law of armaments for both economic and humanitarian reasons. The Oxford Human Rights Institute held a conference in May 1987 on the theme “Development, environment and peace as third generation human rights: is calling them rights a useful strategy towards their achievement?” However, the whole idea of such collective human rights is being considered by states like the USA and FRG like eroding the concept of human rights.

36. As for FRG it strikes that this state opposes the idea that a state may be entitled to obtain economic contributions of any kind from another state. As for the USA it should be recalled that this state refuses to participate in the voting on UNGA Resolution 42/45 of 30 November 1987 dealing with the relationship between disarmament and development. This resolution stresses that the holding of the International Conference on the Relationship between Disarmament and Development in New York from 24 August to 11 September 1987 constituted a significant development in the process of the multilateral review, at a political level, of that topic. It was adopted without a vote but that consensus was seriously affected by the American conduct.

Concluding remarks

37. As of 1945 the international community has recognized that the establishment and maintenance of international peace and security should be promoted with the least diversion for armaments of the world's human and economic resources. It also has stressed time and again the need for negotiations on disarmament and control. An international legal duty in that respect may be derived from the existing body of international law. On the other hand states are still inclined too easily to abide by the way in which the permanent members of the Security Council has conceived their function as a matter of pure discretion at the expense of everyone's right to a national and international order in which the universally recognized human rights can be adequately fulfilled. The establishment and maintenance of such an order is not a matter of international law only or even mainly. Its comprehensive character involves economic, social, cultural and political aspects as well. The outlawing of war results not from standard setting only. It requires implementation and supervision. In that respect the ICJ judgment in the Nicaragua v. USA case has given much food for thought by the way in which it showed unambiguously that the Court, as principle UN organ has to promote peace, and cannot refrain from moving in that direction (ICJ Reports 1986, page 153).