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Nuclear Non-Proliferation in International Law - Volume IV pp 147–163Cite as

Human Rights, Disability, Economics and Nuclear Releases

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Abstract

Economics can in fact be used to promote human rights. While others make distinctions between the intentional use of nuclear material as a part of a weapons system, on the one hand, and the inadvertent release of material in a nuclear accident on the other, the author points out that for those affected by the release, the distinction may not really be meaningful. Therefore, he refers to both collectively as ‘nuclear releases’. The author then turns to the connections between nuclear issues and disability. Some are positive; others are not. Disablement often leads to a downturn in economic performance. But, the relationship does not work only one way. Economic downturn (almost inevitable after nuclear releases) can lead to psychological disablement in far greater number than the physical consequences from the release. Also, regardless of who provides care to those who were disabled prior to the release (whether family members or paid service providers), disabled persons are generally less adaptable to major life changes caused by disasters, including nuclear release. This increased need for service for service following disaster occurs at precisely the time when there is less tax revenue to cover the needs of the population. Considering the impact of the United Nations Convention of the Rights of Persons with Disabilities. the author argues that this Treaty requires States to be forward-looking and proactive to protect persons with disabilities. Finally, he puts forward some tentative thoughts on how a State might choose to fund the needs of persons with disabilities in the event of a nuclear release.

Professor, Faculty of Law, University of Manitoba, Winnipeg, Manitoba; Research Associate, Marcel A. Desautels Centre for Private Enterprise and the Law, Faculty of Law, University of Manitoba, Winnipeg, Manitoba; Doctoral Candidate, Osgoode Hall Law School, York University, Toronto, Ontario. An early draft of this paper was presented at the Human the Dimensions and Perspectives in a Nuclear World: Legal Issues of Non-Proliferation, Disarmament and the Right to Nuclear Energy Conference, October 12, 2017, Winnipeg, Manitoba. Thanks are owed to the participants at this conference, many of whom offered substantive comments and suggestions for improvements. Thanks are also owed to Dr. Mary Shariff of the Faculty of Law who read an earlier draft with extensive improvements, and Anna Tourtchaninova and Matthew Renaud, Acting Reference Librarian at the E. K. Williams Law Library at the University of Manitoba, who provided research assistance.

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Notes

  1. 1.

    I was honoured to be included in a tribute volume to Professor Pothier. See MacPherson 2013.

  2. 2.

    John Hart, ‘It’s Still The Economy, Stupid’ Forbes (December 27, 2017), https://www.forbes.com/sites/johnhart/2017/12/27/its-still-the-economy-stupid/#63b9da0f2c9.

  3. 3.

    ‘Economic rationality’, as the term is used here, refers to the idea that individuals and groups will make economic decisions that are most likely to increase overall welfare, utility or benefit for the actor making the decision.

  4. 4.

    The project, entitled ‘Inclusive Education for Children with Disabilities in Ukraine’, was funded by what was then the Canadian International Development Agency for contributions totaling $5 million (CDN).

  5. 5.

    See MacPherson 2008.

  6. 6.

    See GHK Consulting Ltd. Human Rights and Economics: Tensions and Positive Relationships (Prepared for the Nordic Trust Fund/World Bank, 2012), http://siteresources.worldbank.org/PROJECTS/Resources/40940-1331068268558/Report_Development_Fragility_Human_Rights.pdf. Admittedly, the point made here is not a universally held position. For example Amartya Sen argues that achieving government goals should be judged by inherently human ends. In other words, Sen argues that government choices should be driven by rights (such as autonomy), rather than having ‘rights’ be driven by economic considerations. To be clear, I am not disagreeing with Sen. There are many ‘rights’ that can be recognized and appreciated without reference to economics. Rather, my argument is much simpler. If people see economic benefit resulting by the recognition of a ‘right’, that ‘right’ can be much easier to acknowledge.

  7. 7.

    Human Dimensions and Perspectives in a Nuclear World: Legal Issues of Non-Proliferation, Disarmament and the Right to Nuclear Energy Conference, 12 October 2017, Winnipeg, Manitoba.

  8. 8.

    Mohamed ElBaradei, ‘The Enduring Lessons of Chernobyl’, International Atomic Energy Agency Statements (6 September 2005), https://www.iaea.org/newscenter/statements/enduring-lessons-chernobyl; ‘Mental health effects of the Chernobyl disaster live on’ (2005) 366:9490 The Lancet 958.

  9. 9.

    See for example UN Chernobyl Forum, ‘Environmental Consequences of the Chernobyl Accident and Their Remediation: Twenty Years of Experience’ (2005); Radiological Assessment Reports Series 8; Drozdovitch et al. 2007, 515; Auvinen et al. 1994, 151.

  10. 10.

    Hore-Lacey 2006, at 34–36.

  11. 11.

    Nuclear Energy Institute, ‘Nuclear Energy’s Economic Benefits - Current and Future’ (April 2014) White Paper, https://www.nei.org/corporatesite/media/filefolder/policy/papers/jobs.pdf.

  12. 12.

    On this point, see Kaplan 2007, c. 7. As I explain in my review of this book (MacPherson 2017), I have a personal connection to the coal-mining industry. My father was a coal miner for a short period early on in his life. My paternal grandfather spent 55 years in the coal mines of Cape Breton, Nova Scotia. Both of them would ultimately die of lung cancer.

  13. 13.

    Kort 2012.

  14. 14.

    U.S. Strategic Bombing Survey: The Effects of the Atomic Bombings of Hiroshima and Nagasaki (19 June 1946), Kansas City, Truman Library Archives, https://www.trumanlibrary.org/whistlestop/study_collections/bomb/large/documents/index.php?pagenumber=42&documentid=65&documentdate=1946-06-19.

  15. 15.

    ‘Relief for A-Bomb victims’, The Japan Times Online (15 August 2007), https://web.archive.org/web/20071011123702/http://search.japantimes.co.jp:80/cgi-bin/ed20070815a2.html; Bernard and Homma 2015, 507.

  16. 16.

    Ibid. For a brief overview of economic consequences of the Chernobyl disaster, see Kimberly Amadeo, Chernobyl Nuclear Power Plant Disaster: Economic Impact, The Balance (26 April 2017), https://www.thebalance.com/chernobyl-nuclear-power-plant-disaster-economic-impact-3306335.

  17. 17.

    Dower 1999, at 557.

  18. 18.

    FAQ: Fukushima Five Years On, http://www.who.int/ionizing_radiation/a_e/fukushima/faqs-fukushima/en/.

  19. 19.

    See also Paul et al. 2014; National Institute of Mental Health, ‘Post Traumatic Stress Disorder’ (NIMH Fact Sheet): National Institute of Mental Health, https://www.nimh.nih.gov/health/topics/post-traumatic-stress-disorder-ptsd/index.shtml.

  20. 20.

    Certainly, workforce participation is considered to be far more likely to be ‘precarious’ for persons with disabilities. See Boonstra 2012.

  21. 21.

    Ibid. The point of the study referenced, ibid., insecurity in work and economics can lead to problems in other areas of life as well.

  22. 22.

    See for example discussion in van Griensven et al. 2006.

  23. 23.

    For discussion of mental illness related to non-economic factors related to Chernobyl see for example: Havenaar et al. 1997. See also Bromet et al. 2011.

  24. 24.

    See for example discussion in Dew, A comparative analysis of two community stressors’ long-term mental health effects, http://onlinelibrary.wiley.com/doi/10.1007/BF00919277/full. See also http://onlinelibrary.wiley.com/doi/10.1348/096317999166518/full.

  25. 25.

    A brief, yet useful, summary of the work of John Maynard Keynes (written for the purposes of an introductory course in income tax law and policy) is provided in Brooks 2015, Chapter 1, at 61–63.

  26. 26.

    MacPherson 2005, at 255–256.

  27. 27.

    Ibid., at 256–257.

  28. 28.

    See supra notes 18–21 and associated text.

  29. 29.

    See for example discussion in Schwartz and Choubey 2009.

  30. 30.

    The logic of this position is simple. The Participation and Activity Survey, 2006 (Statistics Canada, 2006) shows (at http://www.statcan.gc.ca/pub/89-628-x/2008011/tbl/5201078-eng.htm) that, on average, persons with disabilities have a lower income than other Canadians. Given that the majority of tax revenue is raised by taxing on the basis of income (see Brooks, supra note 25, at 15–17), it then follows that given the lower income that can be expected to result from disablement of the working population, the government is very likely to have less tax revenue with which to conduct its operations, including, but not limited to, the support of persons with disabilities.

  31. 31.

    ‘Japan Per Capita Income Slightly Increases in FY 2011’, Jiji Press English News Service (25 June 2014).

  32. 32.

    Ibid.

  33. 33.

    FEMA, ‘Historic Disaster Response to Hurricane Harvey in Texas’ (22 September 2017), https://www.fema.gov/news-release/2017/09/22/historic-disaster-response-hurricane-harvey-texas; FEMA, ‘FEMA Provides Update on Federal Support to Hurricane Irma Response’ (16 September 2017), https://www.fema.gov/news-release/2017/09/16/fema-provides-update-federal-support-hurricane-irma-response.

  34. 34.

    Congressional Budget Office, Budget Outcomes For FY 2017, https://www.cbo.gov/topics/budget.

  35. 35.

    Supra note 20.

  36. 36.

    See also re Chernobyl, supra note 21.

  37. 37.

    UN General Assembly, Convention on the Rights of Persons with Disabilities: resolution/adopted by the General Assembly, 24 January 2007, A/RES/61/106, http://www.refworld.org/docid/45f973632.html.

  38. 38.

    Ibid., Article 11.

  39. 39.

    The Humanitarian Coalition, http://humanitariancoalition.ca/what-is-a-humanitarian-emergency.

  40. 40.

    See for example, R. v. Big M Drug Mart, [1985] 1 S.C.R. 295, per Justice Dickson (as he then was), for the majority, invalidating the a provision of the federal Lord’s Day Act, R.S.C. 1970, c. L-13, s. 4; and Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, invalidating certain anti-prostitution provisions of the Criminal Code, R.S.C. 1985, c. C-46.

  41. 41.

    See for example, Doré v. Barreau du Québec, 2012 SCC 12; [2012] 1 SCR 395, where the Court refused to invalidate a regulatory decision of a professional body.

  42. 42.

    There are of course exceptions to this basic rule. On this point, see Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 SCR 134, per Chief Justice McLachlin, for the Court, requiring the government to extend a regulatory exemption to a particular party. See also Eldridge v. British Columbia (Attorney General), [1997] 3 SCR 624, per Justice LaForest, for the Court, requiring the government to ‘provide funding for sign language interpreters for deaf persons when they receive medical services’ (at para 1).

  43. 43.

    Canada, Declaration and Reservation with respect to the United Nations Convention on the Rights of Persons with Disabilities, CRPD/C/CAN/Q/1. See also, Press Release, Council of Canadians with Disabilities, ‘Canada Ratifies United Nations Convention on the Rights of Persons with Disabilities’ (11 March 2010), http://www.ccdonline.ca/en/international/un/canada/crpd-pressrelease-11March2010.

  44. 44.

    United Nations, Division for Social Policy and Development, Disability, Convention on the Rights of Persons with Disabilities (CRPD), https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities.html.

  45. 45.

    For example, in Nazi Germany, prior to the adoption of the ‘final solution’ in the form of the attempted will extermination of Jews, there was already the attempt to remove persons with disabilities from German society. It could be argued that the German people's acceptance of the removal of persons with disabilities was both a precursor to the Holocaust, and extended past it. On this point, see, for example, Evans 2004.

  46. 46.

    One could also see a need to protect others as well. For example, the response to a disaster may need to be specifically tailored to the unique needs of children where a large number of minors are affected. However, it is beyond the scope of this contribution to even attempt to even identify all the groups that may legitimately require a tailored response.

  47. 47.

    See for example The Workers Compensation Act, CCSM, c. W200.

  48. 48.

    Canada, Office of the Chief Actuary, Brief Summary of Canadian Workers’ Compensation System (Ottawa: OCA, January 2010).

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  1. Room 305J, Robson Hall, Faculty of Law, University of Manitoba, 224 Dysart Road, Winnipeg, MB, R3T 2N2, Canada

    Darcy L. MacPherson

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  1. Faculty of Law, University of Manitoba, Winnipeg, MB, Canada

    Jonathan L. Black-Branch

  2. Cologne, Germany

    Dieter Fleck

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MacPherson, D.L. (2019). Human Rights, Disability, Economics and Nuclear Releases. In: Black-Branch, J., Fleck, D. (eds) Nuclear Non-Proliferation in International Law - Volume IV. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-267-5_7

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