The conflict between development and the right of the child to health.

• Author: Westra, Laura

1. Introduction

   This paper will examine the relation between development and human rights; specifically the right to health, as it applies to the most vulnerable, especially the child. Those most affected are local, land-based communities and indigenous groups located in resource-rich areas in South and Central America and Asia. So there are two main questions that arise: one is the precise meaning and reach of the right to development, as well as its feasibility; the other is the implications of public health in industrial development, especially in the light of scientific research, and the emergence of recent reports such as the World Health Organization Summary for decision-makers, State of the Science of Endocrine Disrupting Chemicals 2012 ("WHO EDC Report"), which clearly indicates that the child is at grave risk from the spread of industrial activities, during the period of its development; from embryo, to fetus, to born child. (1)

   Section 2 traces the rights of indigenous peoples and of local communities to the right to self-governance and the right to say no to intrusive and hazardous corporate activities in their own region. Section 3 focuses specifically on the child as the victim of so-called development, particularly in relation to mining and other extractive operations. Many of these involve Canada, whose human rights record is increasingly poor. Section 4 turns to a different perspective on the problem of the right to health, as Professor Benjamin Mason Meier, after arguing for the problems raised by neoliberal development, proposes another approach and a better hope. Professor Meier proposes that perhaps the Right to Development instrument (2) itself might be used to prescribe appropriate remedies to mitigate or even eliminate the difficulties I discuss. Finally, Section 5 notes the results of the impacts of globalization and neoliberal development on the public health services previously provided by state governments. As their services are increasingly privatized, rather than remaining within the ambit of state obligations, the poor, the unemployed, and the populations of so-called developing countries, fare poorly, especially the children and the others among the population who are the most vulnerable.

2. THE RIGHT TO SAY "NO" AS THE RIGHT TO NON-DISCRIMINATION

   Just as indigenous peoples have the right to pursue their own initiatives for resource extraction, as part of their right to self-determination and to set their own strategies for development, they have the right to decline to pursue such initiatives, as many do and no doubt will continue to do. Today, however, much more than being faced with the choice of whether or not to pursue their own resource extraction initiatives, indigenous peoples face resource extraction projects that are advanced by the State and third party business enterprises, typically when the State claims ownership of the resources. (3) State responsibility includes both positive and negative obligations; given the grave differences in the economic situation of the citizens of various regions of the world, the issue of development is one of central importance. In September 2000, an open-ended working group on the right to development, established by the Commission on Human Rights, (4) produced a report on the Right to Development, (5) While attempting to cover all aspects of poverty and hunger alleviation, this report also indicates clearly the grave problems present in such a right, and in the concept of "development" as such. (6)

   It might be best to start viewing the major problems that arise within the concept, let alone with terming it a "right." The first question that arises is: whose "right" is it? Presumably, one should think of "development" as being a right of those who are not yet "developed," that is, poor people in "developing countries." In fact, that right is intended as a remedy for the problems those persons encounter, to redress "the effects of poverty, structural adjustment, globalization, financial and trade liberalization and deregulations, on the prospects of the enjoyment of the right to development in developing countries." (7)

   Development then is related to the "removal of poverty," hence it is from the start, an economic goal, one to be implemented as a "process" of economic, social, cultural, and political development, so that "all human rights and fundamental freedoms can be fully realized." (8) Much of the language of the working group's report is patterned on the work of Amartya Sen. (9) But reliance on the work of even a famous economist carries its own pitfalls. The working group's report affirms that "[t]o have a right means to have claim to something of value on other people, institutions, the state, or the international community, who in turn have the obligation of providing or helping to provide that something of value." (10)

   No doubt, Sen would acknowledge that "something of value" would include more than the obligation to provide the economic means to relieve hunger or thirst. But it is unclear, with its globalizing drive to develop the undeveloped, whether this report takes into serious consideration the right of people not to "develop," if they so choose.

   Economic development goes hand-in-hand with certain grave costs. First and foremost, the rights of peoples' own traditions and cultural lifestyle is indubitably at stake. One needs only to consider the abundant jurisprudence that demonstrates unequivocally the number of indigenous and local communities who try to say "no" to development, but whose voice is neither heeded nor respected. (11) "The 'something of value' these people treasure is the right to be free not to develop, not to lose the freedom to choose their own lifestyle and their children's future." (12) In these cases, the "perfect obligation" (13) of states and other non-state agents, should be to respect agents' choices, especially when they represent the will of these communities.

   Similarly, the preferred means of viewing state obligations, that is "the Kantian view of imperfect obligations," applicable to anyone who is in a position to help, is no better, if it excludes the choice not to develop following Western economic patterns. (14) What remains problematic is the starting point of this report: the assumption that "development" unqualified (that is, not educational, moral, artistic, cultural, etc.), is the answer to poverty and hunger, despite the numerous ongoing examples to the contrary.

   Consider first who truly benefits from the commercial activities that are viewed as bringing "development." It is, first, the multinational corporations ("MNCs") who come to mine, extract, log, build, and--in general--"develop" an area rich in resources. (15) The impassioned pleas of those who are suffering the effects of those activities, mostly unrestrained by either environmental or public health mandates, ought to demonstrate that freedom is and must be understood as both negative and positive: the right to develop as well as the right to embrace and maintain the status quo, and refuse modern development.

   The second group who benefits from "development" activities, includes the bureaucracies and governments of the affected countries, who may receive a part of the profits enjoyed by the corporate actors involved, at best, or roads and other infrastructure, as well as military or para-military support for their warlike action, at worst. (16) When these elites are undemocratic or they represent outright military dictatorships, then any hope of even the least "trickle down" benefit is eliminated.

   This happened for instance in Ogoniland at the time of the rule of dictator Sani Abacha in the 1990s. (17) It was only in 2009 that finally Royal Dutch Shell Petroleum paid $15.5 million over the Saro-Wiwa killing, but without even admitting their guilt for the multiple murders, rapes, and other violence, and the truly incompensable harms they had perpetrated. (18) The Vienna Declaration states categorically, "[hjuman rights and fundamental freedom are the birthright of all human beings; their protection and promotion is the first responsibility of Governments." (19)

   When Shell arrived to bring its "development" to Ogoniland, the Ogoni people had a comfortable traditional lifestyle, cultivating their land and fishing, before the advent of what Saro-Wiwa termed the 'ecocide' and 'omnicide' that ensued once the oil extraction and open flares eliminated all possible cultivation in the area. (20) They eventually received some compensation, (21) but not all local communities today are so lucky.

   For the most part, today, "development" is aimed at economic profit, not at the health and freedom from want of peoples, (22) as it often destroys, alters, or removes the resources upon which local communities depend. (23) In addition, even when the community is neither an island nor a coastal one nor yet one that is located in the high Arctic, climate change effects can be felt across the globe, as it imposes extreme weather events and temperatures. (24)

   Essentially then, if the "imperfect obligations" of state and non-state actors ("the claims are addressed generally to anyone who can help"), according to the working group's report, the Right to Development must ensure freedom to (a) maintain and retain the cherished values of communities; and (b) to eliminate or at least reduce poverty and hunger. (25) This should have started long ago, before the present impasse was reached. The obligations would have included their own "no" to activities that harm the natural ecological basis upon which most of the world's people depend; "no" to international instruments that like the World Trade Organization, which place environment and public health behind trade; (26) "no" to the political and economic support of corporate bodies whose activities and whose human rights records demanded careful scrutiny and regulation, rather than friendly...