A reading of the requirement of progressive realization under Article 2, para. 1 of the Covenant as imposing such duties concerning the definition of the royalties to be paid and the use of revenues accruing from the exploitation of the resource may find support in the right to development, which the General Assembly defined in 1986 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".96 The Declaration on the right to development expects States to "formulate appropriate national development policies that aim at the constant improvement of the well-being 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 the benefits resulting therefrom".97 It sees development as a process which should benefit "the entire population and […] all individuals on the basis of their active, free and meaningful participation in development and in the fair distribution of benefits resulting therefrom", which implies that States ensure the adequate participation of the local communities concerned by investment projects, and that the decision-making process is fully transparent.98 The revenues gained from the agreements concluded between host States and investors for the exploitation of natural resources should thus serve to fulfil the rights of the population, consistent with the duty of States to "ensure, inter alia, equality of opportunity for all in their access to basic resources, education, health services, food, housing, employment and the fair distribution of income".99 The conclusion was drawn by the Working Group on the Right to Development when it noted that the right to development had a direct impact on how foreign direct investment should support the fulfillment of the 8th Millennium Development Goal to develop a global partnership for development: that right, it stated, "implies that foreign direct investment (FDI) should contribute to local and national development in a responsible manner, that is, in ways that are conducive to social development, protect the environment, and respect the rule of law and fiscal obligations in the host countries. The principles underlying the right to development [...] further imply that all parties involved, i.e. investors and recipient countries, have responsibilities to ensure that profit considerations do not result in crowding out human rights protection. The impact of FDI should, therefore, be taken into account when evaluating progress in Goal 8 in the context of the right to development".100 Both bad practices and good practices can be identified in this regard. Bad practices consist in granting "tax holidays" or specific privileges to companies exploiting the subsoil, a tendency which is particularly suspect in the absence of transparency and accountability of the public officials negotiating the agreement -- and that is especially damaging where investors' rights are protected by specific provisions of investment treaties or free trade agreements, locking host governments into choices that may not benefit the population. Unfortunately, such bad practices are a frequent occurence. This is largely to be explained by the very nature of the resources concerned and of the means of exploiting them. The exploitation of mineral resources typically takes the form of large-scale projects in which a small number of individuals control vast amounts of wealth. The capture of the benefits can therefore be highly unequal, unless affirmative measures are taken to ensure that they will be fairly distributed across a large number. Moreover, natural resources are non-renewable: they are “assets in the ground” whose value depends on technology, market prices and political risk. The exploitation of mineral resources thus should be seen as the consumption of capital, rather than only of 96 UN General Assembly, resolution 41/128 of 4 December 1986 (adopted with only one negative vote (United States), and eight abstentions) (GA res A/RES/41/128, 4 December 1986, annex 41 UN GAOR Supplement. (no 53) 186 (A/RES/41/53) (1986)). For an excellent and well-informed account of the attempts done, since the Declaration, to clarify the implications of the right to development, authored by one key actor in this process, see Stephen P. Marks, The Politics of the Possible. The Way Ahead for the Right to Development (Dialogue on Globalization, Friedrich Ebert Stiftung, June 2011). 97 Art. 2.3. 98 Preambule, para. 2. See also Art. 6.3. and 8.2. 99 Art. 8.1. On the human rights-based economic development which is prescribed by the Declaration on the Right to Development, see Margot E. Salomon, Global Responsibility for Human Rights, World Poverty and the Development of International Law (Oxford University Press, Oxford, 2007), pp. 129-132. 100 Report of the Working Group on the Right to Development. 7th session (conclusions) E/CN.4/2006/26, para. 59. 23

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