Development:
Do People have a Right?*
Mr. Rukshana Nanayakkara
According to UN sources 40% of the Sri Lankan
population is living in abject poverty. Unfortunately many
Sri Lankans who are not living in poverty do not seem to care
or sometimes they tend to help the poor as a gesture of extending
their sheer sympathy toward them. The latter sometimes attribute
poor people’s lack of initiative and courage to their
status. While it is recognizable that personal conviction
and courage is necessary in constructing one’s own experiences,
the history of power relationship of a State and the income
imbalances promoted by the legal system of a country play
a key role in establishing and maintaining an inequitable
societal structure.
Poverty was viewed primarily as a problem
of economic insufficiency. But it necessarily includes material
deprivation and human deprivation including low achievements
in education and health. This inevitably results and increases
vulnerability, voicelessness, powerlessness and exposure to
risk among the poor. Therefore to believe that poverty is
based on individual failure ignores these results created
by existing legal, societal and political structures. Rather,
such systems perpetuate income imbalances both internally
in a nation state and globally keeping the poor in the cyclic
effects of poverty.
For example, the prevailing legal rules in
some of the personal laws in Sri Lanka maintain an economic
imbalance between men and women contributing to a disadvantageous
economic status for women. The lack of knowledge of English
among the poor (in a system where easy access of learning
the language is only limited to a significantly small sector
of the society) may deprive them of advantageous economic
opportunities. Thus people with more opportunities can generate
higher income increasing their power of obtaining assets and
investing them. This increases their ability of providing
better benefits to their children (e.g. private, individualized
and, frequently superior academic experiences and extracurricular
lessons or opportunities) that then often lead to privileged
secondary education and access to higher paying jobs. This
process of continuation of privileges creates an ongoing “entitlement”,
in legal, sociological and political sense only for a particular
class of the society.
Another example can be found in present developments
in intellectual property and patent law which contribute to
maintain an income and power imbalance between developed and
developing nations. Interpretations on who owns and creates
a production results in profit to multi national cooperations
in developed countries while indigenous populations lose the
financial benefits of their knowledge.
Although there can be piecemeal efforts to
rectify such existing disparities, most fluid equal opportunity
schemes in employment, education, health etc, which are insensitive
to any category of people who were previously discriminated
against due to disability, sexual orientation, gender or race,
again ignores this asset imbalance.
Therefore in an environment where existing
societal, legal and political structures construct rather
than combat poverty anti-poverty, initiatives should be perceived
in a rights perspective. Such an approach will break open
the stereotypical idea of poverty as an issue of individual
failure as opposed to cross cultural, political and social
issue.
Right to Development
The right to development necessarily signifies the
creating of possibilities for the improvement of living conditions.
This improvement goes beyond the traditional yardstick of
economic development embracing education, health, culture,
democracy and respect to human rights. In other words, development
cannot be perceived simply as an economic issue, and it is
equally important to view it from a human stand point. In
his report to the UN Commission on Human Rights (1997), the
Special Rapporteur of the Sub-Commission on extreme poverty
wrote: “A person’s living and working conditions
had a direct effect on the quality of the work itself. It
was thus essential to take every aspect of life and not merely
the economic into account.”
The 1986 Vienna Declaration on Right to Development
recognized and described the right to development as a human
right. This means a universal and inalienable right that is
inherent in all human individuals by virtue of their humanity
alone, and as such should be respected, protected and promoted
not only by states, but also by the entire international community.
Further this recognition links this right with both civil
and political rights as well as socio economic rights, because
the primary idea of the right to development is to achieve
social development which covers the wider spectrum of human
life.
A vague recognition of the Right to Development
can be found in Article 28 of 1948 Universal Declaration of
Human Rights (UDHR). The Article reads: ‘Everyone is
entitled to social and international order in which the rights
and freedoms set forth in this Declaration can be fully realized.’
While the UDHR includes both civil and political rights and
socio economic rights, the emergence of the two legally enforceable
documents, the International Covenant on Civil and Political
Rights and International Covenant on Economic Social and Cultural
Rights fed more into the debate of indivisibility of human
rights. The idea of this article is not to focus on this debate.
Nevertheless, it should be noted that in the dichotomy between
civil and political rights on the one hand and social, economic
and social rights on the other, it is still the former which
is being given priority by the most affluent nations in the
world. This is important in the context of the historical
responsibility of developed countries in the present state
of poverty and backwardness in least developed countries.
It is well recognized that in order to repair the past misfortunes
of least developed countries the developed countries have
to assist them. In this regard it is paramount to recognize
the right to development.
The 1986 Vienna Declaration recognition of
Right to Development was further justified by the 1993, the
World Conference on Human Rights by including Right to Development
as a basic human right. The conference sustained the view
that ‘human rights, including individual or collective
rights, are intrinsically linked to the full realization of
the Right to Development. Any separation of these two types
from Right to Development undermines the universality, indivisibility
of and interdependency of human rights.’ Further the
High Commissioner of Human Rights made a similar observation
in 1998 where it was recalled that “in accordance with
the Universal Declaration of Human Rights, the ideal of free
human beings enjoying freedom from fear and want can only
be achieved if conditions are created whereby everyone may
enjoy his economic, social and cultural rights, as well as
his civil and political rights.
Theoretically this recognition should have
put an end to lengthy and fruitless discussion regarding the
priority of one set of rights over the other. Unfortunately,
in practice this sterile debate is still continuing and the
industrial world seems to be determined to promote individual
human rights and fundamental freedoms, while poverty is increasing.
According to the statistics, one-fifth of the world’s
population is living in extreme poverty while the richest
20 percent receive nearly 83 percent of the worldwide income.
As the world economy is growing the rich are getting richer
and the poor poorer, primarily due to unjust, unethical and
inequitable international economic order.
Right to Development and Sri Lanka
Being a less developed country Sri Lanka prominently
derives the notion of development from two difference and
complimentary factors. One is the above mention duty of developed
countries to assist Sri Lanka in her development goals. Second
is the extension of the recognition of rights related to development
in the legal structure of the country.
The basic law of Sri Lanka recognizes no
socio economic rights in its chapter. While there are a number
of other statutory provisions to safeguard the aspects of
right to development, this negation has justified the extreme
liberal view of championing civil and political rights. Nevertheless
it is commendable that this negation has overcome through
innovative interpretation of existing civil and political
rights in few a instances. The most discussed Eppawala case
provides a prime example where existing Article 12(1)- Right
to equality, 14(1)g- freedom to engage by himself or in association
with others in any lawful occupation, profession, trade, business
or enterprise and 14(1) (h)- freedom of movement and of choosing
his residence within Sri Lanka were used to protect the livelihood,
culture, environment, certain aspect of living condition as
well as the rights of yet to be born in terms of protecting
their future entitlement to use earth’s resources: aspects
included in right to development.
In SmithKline Beecham Biological v State
Pharmaceutical Corporation of Sri Lanka, the Supreme Court
took steps to protect the right to health of both present
and future generation in the country under Article 12(1) of
the Constitution. The arbitrary action of the Sate Pharmaceutical
Corporation to award a supply order to a company (Unregistered
Company under Cosmetic and Drugs Authority) for two million
doses of rubella viral vaccine was declared unlawful by the
court. Consideration of possible health risk for the future
generation was the main highlight of the case.
In Thuruwila case, water of Thuruwila tank,
a traditional water resource of people was arbitrarily decided
to divert to another use. While facilitating a settlement
between the parties the court recognized people’s right
to traditional waster sources a strong aspect of right to
water, another socio economic right.
Although these cases are significant milestones in the evolution
of socio economic rights in the country, it is equally imperative
to focus on Constitutional Amendments to include expressive
articles on socio economic rights. Otherwise, the realization
of socio economic rights will always require an innovative
judicial intervention.
Right to Development and Global Economic Order
While the national policies and the political system
of nation states pave the way for country specific realization
of right to development, such policies naturally get shaped
by the globalized economic order. The current economic order
is a result of carefully planned legal and institutional changes
embodied in a series of agreements and mainly controlled by
the international financial institutions. This economic globalization
poses great threat to the population in least developed countries
affecting the human rights situation in those countries as
a result of widespread poverty. Conditions imposed in international
trade, the growing energy crisis in many parts of world, adversely
affect the vulnerable segments in the developing countries
who have no or less bargaining power in shaping economic policies.
Massive cuts in healthcare, education, and social services
following World Bank and IMF programmes are causing instability,
racism, refugee and migrant flows, illicit drug-trafficking
and religious fundamentalism, ethnic conflicts and environmental
degradation.
Therefore it is important that the governments
of the industrial countries and international financial institutions
take into account these aspects of global order in their assistance
polices towards developing countries. In that sense the Right
to Development concept should be included in the structural
adjustment policies carried out by these players. It is essential
to move away from inflexible programmes that ignore the social
and political differences between countries and move towards
project that take into account social consideration and the
political feasibility of structural adjustment and investment
programmes, realizing that growth does not automatically benefit
the poor unless specific measures are taken to help the weakest
and most vulnerable groups.
Despite the negative ramification of globalization, it would
be wrong to place the entire burden of underdevelopment and
poverty on rich countries and international financial institution.
Many developing countries fail self-initiated progressive
actions at national level to adopt economic reforms which
suits their nations and the failure to create acceptable living
conditions has resulted in a situation where malnutrition,
homelessness and unemployment are on the increase. The high
level corruption, unnecessary expenditure (e.g. appointment
of a large pool of ministers in Sri Lanka) and non - utilization
of aid money confine these countries to the vicious circle
of debt, resulting in an increase of interest and loan installment
payments. The debt payment by third world countries is a modern
form of slavery and contributes largely to the expansion of
poverty. In most developing countries a significantly small
amount is allocated to poverty programmes and debt payments
play a key role in their budgets.
Conclusion
Though Sri Lanka possesses commendable physical living quality
standards, especially in the areas of health and education,
the overall fulfillment of development goals is far from being
realized. The proposed privatization schemes without public
participation and awareness, non existence of a legal structure
to protect socio economic rights, lackluster civil society
campaign in the protection and promotion of socio economic
rights, corrupt and non-transparent political structure and
lack of creative political willingness to bring peace to the
country, question our ability of fulfilling the goals of right
to development and have pushed Sri Lanka to an insignificant
status in the global campaign in this regard. Though Sri Lanka
is a vulnerable player in the universal process of globalization
its status provides no excuse for not fulfilling at least
its core minimum obligations to its people in the socio economic
rights sector.
The guidelines given by the Committee on
Economic, Social and Cultural Rights of the United Nations
in its General Comments can be used in identifying these core
minimum obligations in each sector in the socio economic field.
According to the Committee availability- e.g. in the field
of education the facilities in terms of both goods and care
should be available in sufficient quantities; accessibility
– e.g. in the field of health goods and services should
be accessible to everyone without any discrimination; acceptability-
e.g. any service provided in a particular sector should be
appropriate with in the existing socio, economic structure
of the society; quality – e.g. in the field of health
the service should be scientifically and medically appropriate
and of quality; should be considered in any development program
in the socio economic right field.
* Views expressed here are personal. |
