人权保障与经济发展：规范性与功利性的双重视角

Historically，development and human rights have existed entirely separately，at the levels of both discourse and practice.Since the General Assembly the United Nations proclaimed its Universal Declaration of Human Rights on 10 December 1948，the concept of human rights has become one of the most potent in contemporary politics.In historical perspective，this fact is astonishing.A concept not long ago discredited has made a remarkable revival，and a concept widely perceived as Western has become global.It is precisely when human rights campaigning and organizing for long term political and economic change is linking to field work that the strongest impact in terms of creating rights-based social guarantees can be achieved.As a result，the rights community has to build the bridges to the development community.Economic globalization is an inevitable trend，the struggle for economic and social rights is likely to become increasingly important in the era of globalization，and this struggle will be hard.Looking at both UN theory and actions of UN Development Program（UNDP）and the World Bank，this article will show those.Human rights and development are two central themes of the United Nations Charter，which are also Chinese Significant topic.It is critical factor for scientific development to properly understand and apply the relationship between human rights and development because development cannot define itself.Human rights and development is demonstrated by the social attributes of human and natural properties，and basic needs are the junction point for them.Human rights and development are connected by Declaration on the Right to Development.There are ‘three levels’ at which this interrelationship can be identified： Factual overlap；common principles and legal obligations.The relationship between human rights and development provides a rule to judge and monitor development，in order to achieve the mutual promotion of human rights.A rights-based approach to development embodies the value choice and development strategy，is the result of traditional ways of development.The notion of sustainable development can indeed be deemed an aspect of the rights-based approach to development.A Common Understanding of the human rights based approach to Development： All programs of development，policies should further the realization of human rights，and human rights standards and principles guide all development programming，including analysis and assessment.Analysis and assessment focus on the relationship between rights-holders and duty-bearers，and a rights-based approach to development is the integration of human rights principles and development.Democracy is most important measure for development，and based on the freely expressed will of the people and their full participation in all aspects of their lives.Democracy aims to empower the people in order to avoid economic and political disadvantage interact in a vicious rights-abusive cycle by addressing the asymmetries of power in the development process，and democracy is inherently attached to the question of governance.A rights-based approach to development embodies good governance，and which is stressed in development policy.Good governance is favorable to the efficient use of resources，and also reduces poverty in developing countries.Legal foundations on a human rights-based development are to outline the legal elements involving the interrelationship between human rights and economic development： the international bill of human rights in development；the link between economic and social rights and civil and political rights；the rights subjected to restrictions，derogation；democratic society；human rights law obligations；self- determination.The concepts of human rights and development are expanding and converging.Human rights are the claims of an individual to what is required for development，and development is process of actualizing what is believed to be good.An immediate consequence of integration of human rights into development is that the range of rights must encompass the whole of human development，which arefundamental rights.The distinction between the existence of a right and its exercise is essential in preserving the inalienable and universal nature of rights in a word of change and variety.All fundamental rights are absolute，universal and inalienable，and the nature of fundamental rights decides the content and ways of the realization of duty.Categories and scope of State obligations arise from the protection of human rights.Two categories of obligations may be identified positive and negative obligations，and three categories of obligations have been identified in this regard，the duty to respect，the duty to protect，the duty to fulfill，which also provide implementation ways of state obligations.Equality and Non-Discrimination are often described not only as a right but also a principle，which have also been described as the positive and negative statement of the same principle.Formal equality and substantive equality are the content of equality，and they are in the same important position.Non-Discrimination and positive action need state obligations，but Anti-Discrimination is also higher dimensions.For the law of international human rights protection，State Obligations may be identified obligations to respect，obligations to protect and obligations to fulfill.Obligations to respect economic，social，cultural Rights are to respect the freedom of rights holders，and the African commission on human and peoples' rights and European convention on human rights give us good examples of the implementation of economic，social，cultural Rights.In addition obligations to fulfill can be finished by legislation，regime and procedure and so on.Human rights，environment and development appear to be the prime issues for the developing countries.The right to development redefines development，which has a potential to make significant contributions to economic development.The Draft Principles set out in the Annex to the Right of the United Nations Special Rapporteur on Human rights and Environment set out a key general concept forenvironmental protection and economic development.Environmental assessment，the right to information and the right to public participation derived from the right to environment are very important to development projects.Such will lead to the right to environment-Based Approach to development and sustainable economic development.Development programming，with its focus on the notion and ultimate goal of human development，affords tremendous potential to integrate human rights into its process.A rights-based approach to development programming has the ability to practically infuse the goal of human development with a set of internationally endorsed duties and claims.In recognizing persons as subjects with claims rather than as objects of welfare or development targets，the rights-based approach to development programming empowers persons to become active agents in articulating their needs.The enjoyment ofthe right to an adequate standard living depends on a combination of efforts by the subsidiary principle，state obligation and equality and non-discrimination as overarching principle.The components of the right to an adequate standard living are the rights to food，housing，and health.The requirements for it are following： availability，accessibility and acceptability.And the right to an adequate standard living is closely linked to other human rights，such as the rights to social security and civil and political rights.Key Words：Human Rights Protection；Economic Development；Normative Perspective；Instrumental Perspective

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