Sustainable Development and Social Inclusion: Why a Changed Approach Is Central to Combating Vulnerability

I. IntroductionCreating a world where the equal dignity and worth of every individual is respected and valued is simple to articulate but difficult to deliver. 1 In the aftermath of World War II, as the world sought a new paradigm to ensure that mechanisms were created to secure robust protection against human rights violations, the Universal Declaration of Human Rights ("UDHR")2 stood as an important standard for the promotion of social inclusion and protection of the vulnerable. It served as a powerful statement of intent for what was to become an extensive human rights movement, and, in the intervening years, attempts have been made in every jurisdiction to create legislative, administrative, and judicial mechanisms to ensure the values it presents are upheld.3 Today, it may be said that a genuinely universal, if aspirational, set of human rights standards have emerged which have the buy-in of states and communities across the globe. 4 At the international level, this has resulted in an exponential growth of human rights and human rights law. States have come together to celebrate the universality of human rights by constructing legal regimes that bind and restrict their own actions and that of future governments and seek to reign in other relevant entities that may violate human rights norms. The success of the universal mechanism for human rights is visible in three ways: the proliferation of human rights legal standards,5 the emphases placed on human rights within state practice,6 and the adoption of human rights norms by international institutions.7 Yet, fundamental questions remain as to whether the international human rights law regime pays adequate attention to questions of development. This article seeks to engage the post-2015 global planning agenda-as articulated in the Sustainable Development Goals ("SDGs")-and whether it pays adequate attention to questions of social exclusion.The UDHR attempted to promote a holistic approach to the development of human rights by recognizing both civil and political rights (sometimes referred to as "first generation rights") as well as socioeconomic and cultural rights (also known as "second generation rights"). However, the evolution of human rights protection failed to achieve social inclusion for many, with vulnerable populations often neglected. Rights have been considered to accrue to individuals rather than groups.8 As a consequence, the emerging tools of protection ignored the fact that many human rights violations were often experienced by entire swathes of people, and protecting every individual within them one by one would not generate robust social policy. Instead, the more powerful or resourceful-or those closer to sites of power-would articulate individual claims that may be satisfied, while others in the same situation were ignored due to their lack of access. In addition, as human rights mechanisms developed and became codified into law, they followed Western legal ideology and tended to focus on civil and political rights, rather than the indivisible spectrum of human rights. Economic, social, and cultural rights were often labeled "nonjusticiable," or were subject to the caveat that enjoyment of such rights was subject to "progressive realization."9 Thus, rather than being "rights," socioeconomic needs, including development, became mere aspirations for governments. Courts of law were prevented from pronouncing on issues concerning socio-economic rights, including the fundamental goal of eradicating poverty, with significant ramifications for the vulnerable. The professed justification for such exclusion resided in an ideological unwillingness to leave decisions concerning public expenditure to an unelected judiciary-an extension of the separation of powers doctrine that dominates common law jurisdictions. 10 As a result, legal mechanisms in these jurisdictions became less effective in addressing questions of sustainable development and in adjudicating upon the creation of conditions where the socio-economic empowering of communities could thrive. …