The Challenges Faced By Human Rights Jurisprudence Due To Advents In Information Technology

By Anonymous

Introduction

In 1986 the General Assembly in its Declaration on the Right to Development (GA Res 41/128 of 4 December 1986) formulated the right to development in terms that “The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural, and political development, in which all human rights and fundamental freedoms can be fully realized.”

It is not proposed in this chapter to enter into jurisprudential discussions on the question of the status of this right in terms of international law or rigorous legal analysis. It is sufficient for our purposes if we recognize its existence, even as an evolving norm.

Nor is it proposed to attempt definitions of the concept of development, except to observe that development will not be taken as being confined to economic or material advancement, but is conceived of rather as “the upward movement of the entire social system and in conditions which afford individual members of the society the opportunity to benefit personally from the upward movement.”

To what extent, then, can technology be used to promote the objectives encapsulated in the General Assembly’s definition of the right to development? It will be seen that there are three principal elements involved, namely

  1. participation in decision-making regarding the introduction of new technology,
  2. contribution to the creation of the technology in question; and
  3. enjoyment of the development resulting from technology.

The development itself could be economic, social, cultural, or political

Participation

Where technology is of a sophisticated nature the stages of participation and contribution tend to be long delayed. There is also a greater tendency for the creators and the owners of the technology to keep to themselves the decision-making process regarding their product and adaptations. They tend to delay even more resolutely the process of scientific input into the technology itself. Thus, far from there being a spontaneous spread of technology and industrialization as some theorists once expected (cf. theories of the spontaneous spread of capitalism), the events, especially of the past half century, have shown that technology which is of monetary value tends to become concentrated in the hands of those who create or own it, thus confining it largely to the developed world.

This is despite theories of freedom of scientific knowledge. Although there is a desperate need for that technology in the developing world, the latter seems unable to draw the technology to itself and absorb it into its own social and cultural milieu. If it comes in, it does so with strings attached which can be manipulated from afar. It assumes a place in developing societies very much like that of a foreign body in a biological system, which never integrates fully with its host.

Contrary therefore to the theory that knowledge is universal, technological knowledge seems to belong and to retain the semblance of belonging to the developed world, wherever it may be actually applied. A principal reason for this is the lack of third-world participation and contribution, as outlined above. Through such a lack of participation, attitudes have evolved of viewing modern technology as a distant and foreign thing.

This sentiment often manifests itself in a plan for the total rejection of Western science, such as was voiced by some delegates at the recent conference on “Crisis in Modern Science” held at Penang, Malaysia in 1987 and hosted by the Third World Network and the Consumers’ Association of Penang. Some advocates of Islamic and Hindu science, pointing to the undoubted fact that science had made considerable independent and pioneering progress under these systems, sought to detach science from its existing international base and build it up anew on their own cultural base.

It is by participation and contribution that such attitudes of alienation can be averted and full use made of the beneficial potential of science and technology for every society. Everything traditional can sometimes be romanticized at too high a cost. An effort is therefore required to accelerate the ability to develop countries to participate in and contribute to such technology.

This brings us to an issue which lies very much at the heart of the problem – the way in which it tends to be assumed that the developing world’s role is that of passive receiver of technology rather than of active determinant of the particular technology it will receive. It is true there are many situations where the freedom to choose is circumscribed, at the same time the range of choices available is often much larger than is commonly supposed.

Elsewhere in this volume, and especially in the chapter by Dr. Chamarik, the point is made that a conscious choice on the part of the recipient country must determine what technology it will accept or reject. That choice is not purely a scientific one but depends upon social and economic factors and the expertise of many disciplines. This becomes all the more important when we realize that science is essentially a social product. Its development in Europe reflected a particular socio-economic context and as it developed it interacted in that socioeconomic context to provide a new set of needs which it began to serve. Technology has an even more intimate interaction in society than pure science.[3] All of this interaction, heavily influenced by Western needs and norms, can well render a particular technology ill-suited for a totally different third-world context – hence the importance of participation in determining the technology.

A prime factor in this process of determination is the principle that technological choice should turn in the direction of technologies which liberate the many rather than facilitate control of the few.[4] Unfortunately, the choice of technology in the developing world is often in the hands of those who would like it to be an instrument in the furtherance of their own power – the power of the controlling light. Unfortunately, also, there are many technologies, particularly in the information area, which facilitate processes of social and political control.

The bending of technology to service rather than oppression necessitates a preliminary examination of the routes through which a new technology finds its way into developing countries. We shall, therefore, look at some ways in which the developing world’s participation in the decision-making process can be strengthened.

Routes of Entry

New technology finds its way into a developing country either:
(1) by the country’s own decision, uninfluenced by external factors;
(2) under the pressure of external factors which for one reason or another it is unable to resist; or
(3) through a combination of internal and external factors.

It is the author’s view, which needs to be empirically tested, that the technologies introduced under head (2) are more numerous and extensive than is commonly acknowledged and that they tend to be the dominant technologies in nearly every developing country.

I will deal briefly with each of these in turn.

1. Internal Decisions Uninfluenced by External Factors

A developing country may take a decision to import a new technology because its government

(a) genuinely believes that that technology is truly essential to the well-being or development of the country;

(b) believes that there will be a political advantage to it in importing such technology, e.g. that computerization of the governmental process will give it greater control over its citizens or that some extensive project, e.g. an irrigation project, will gain it political mileage;

(c) is under pressure from internal vested interests to import such technology. Such pressures may come from economic interests it needs to cultivate for political reasons or from powerful individuals who will develop a vested interest in the new technology;

(d) has corrupt reasons, in the sense that individual members of the government or their associates may see private profit in it for themselves;

(e) sees advantages in the offer of technology highly attractive to the dominant classes in the target country, though not directly of benefit to the masses. Such a litist class and its demands are often psychologically linked to those of the consumer society of the West. As Marc Nerfin, the President of the International Foundation for Development Alternatives, so cogently observed at a UNU Workshop in Indonesia in 1986,[6] “there is a fracturing into two of every society, much worse than the traditional East-West and North-South rifts: the two Indias, the two Chiles, the two USAs, the two worlds.”

The list is not exhaustive. It becomes important to gather information regarding the factors preceding the decisional process. If there are circumstances pointing to the existence of such factors as are listed in (b), (c) and (d) above, they need analysis and exposure. This is not always easy, for we are here on the sensitive ground. It will is better, however, if the reality is recognized and is taken into consideration than we continueing to paying obeisance to the myth that the problem disappears when the decision is a purely autonomous one.

2. The pressure of External Factors

The government may be powerless to resist a new technology or product for many reasons, e.g.:

(a) It may be tied to an aid package and must, therefore, be taken along with it.

(b) It may be a technology sought to be introduced by a multinational corporation which is so influential in the country concerned that the government cannot afford to displease it and has no option but to permit its introduction.

(c) It may be associated with a military or economic alliance or grouping and the country concerned is hence not in a position to resist it.

(d) The country concerned may have adopted an open-door economic policy and feels it may damage its image as a free investment country by denying entry to a technology which is heavily pushed by powerful overseas financial interests.

(e) The technology emanates from a country which is the most powerful trading partner of the developing country concerned. Any refusal to permit the importation the technology could have severely damaging effects upon the trading relationship, to the grave detriment of the country concerned.

(f) The technology emerges from a country to which the country concerned is heavily in debt. Similar factors operate as in (e) above.

(g) The technology may be one associated with the arms trade. The armaments industry, already in a relationship with the country concerned, presses it and the country cannot resist.

(h) Massive advertising campaigns launched with all the powerful economic resources of the developed world may create a captive market in the target country, which exercises compelling pressures upon the government to permit admission of the project.

(i) The technology concerned may be made available apparently free of charge, but the strings attached are that the providing country becomes the sole market for the apparatus that needs to be purchased for implementing the technology, e.g. television infrastructure or a high-technology hospital.

3. Mixed Internal and External Factors

There could be a blend of one or more of the factors enumerated above, in numerous permutations and combinations. The decisional process prior to the creation or importation of the new technology must take account of all these possibilities, each in its own way a very real factor finally resulting in the entry of unsuitable or oppressive technologies.

The factors outlined above have serious implications not only in regard to the prevention of harmful technology but also as inhibiting factors preventing access to technology which could foster and promote human rights, as well as free choice of such technologies. The compulsion to choose a given technology in a limited economic situation often means compulsion to forgo another more beneficial or more desired technology.

Indeed, the matter does not end here, but these influences continue after the introduction of the technology. It brings more unsuitable technologies in its train as the original technology, once entrenched, becomes too expensive to dislodge. It is vital to the connection between technology and the right to development that there be a clearer understanding of these decisional processes and of the complex of factors that contribute to them. This is an important area of analysis in any study. It will be a useful research project to analyze in the context of two or three countries the decisional routes of entry into them of perhaps five selected technologies.

Such enhanced understanding is an important means of introducing more real participation in the decision-making that introduces technology into developing countries. Often these factors convert apparent freedom to decide into a situation of non-freedom – a situation where the vast bulk of a developing country’s population has the decision thrust upon them that they will receive an unsuitable or exploitative technology.

Such considerations lead logically to the need for the more widespread diffusion of information in those communities, regarding not only the alternative technologies available but also the inhibiting decisional factors outlined above. This involves an educational process which will produce results in the long term, but in the short term, it necessitates the setting up of multidisciplinary committees charged with the task of assessing the new technologies in the light of the country’s economic, social, and cultural needs. Purely scientific committees are inadequate to cope with these decisions, as has now been well accepted for several years.[7] A greater awareness of technological alternatives is important to the work of these groups.

In other words, there has to be a break from the deterministic theory regarding technology which holds that technology runs an inevitable course and that it cannot be resisted as it has a motive force of its own.

Technology Surveillance

In scanning the means by which the developing world’s participation in decision-making can be strengthened, the concept of technology assessment assumes great importance. Technology has a way of taking over the control of areas to which it applies. Once a sophisticated technology is introduced – be it in the field of information, engineering or agriculture- it tends to dictate its own requirements and make all else subservient to its own needs. Often the very problem itself, which the technology was intended to serve, becomes subordinate to the servicing of the technology. The intended servant becomes the master.

It is necessary, especially in developing societies, to keep constantly in view the principle that technology is there to serve the people and not to be served by them. There should be control over it at every point. This means among other things a continual process of review by committees or groups, of which citizens form an important element. The experts are no doubt necessary, but there needs to be constant questioning as to whether the technology is serving its purpose, creating new problems or being, in fact, counter-productive from the standpoint of the needs of any particular country.

A matter to be considered is whether in relation to developing countries mechanisms ought not to be recommended which will achieve this purpose.

Just as developing countries all too often exhibit an attitude of resignation to the inevitability of technology, they also entertain a feeling of futility in regard to any attempt to control it. It is both too complex and too powerful to admit to lay attempts at control. That attitude needs re-examination.[8]

It may well set trends in many developing countries if this study broadly recommends an essential human rights policy related to technology, suggesting that institutional structures for the constant surveillance of technology be set up as a matter of course. The habit of technology surveillance does not exist in most developing societies and it must be stimulated to emerge.

The techniques of technology assessment, well developed and entrenched in the affluent world, can afford useful guidelines. We have here an ironic situation. New technologies are evolved largely in the developed world and are hence suited for the developed world. They are scrutinized in the developed world by technological assessment committees. Yet before their introduction to the developing world, for which they are far more likely to be unsuitable, they are not scrutinized by comparable boards or committees. Indeed, the need for such scrutiny in the developing world is even greater, for another reason.

The developed world has already felt the impact of most of these technologies and adjusted to it, while the developing world has yet to feel the first impact of many of them. That impact must be assessed before the technology is foisted on them, for it can disrupt many factors essential to the stability of those societies; one example might be a labor-saving technology such as robotization for which that country is not yet ready.

A large segment of industrial production in the third world is directly or indirectly affected by new technologies – e. g. microchips and the creation and use of new materials. Even seemingly remote technologies such as organ transplants can assume human rights dimensions in the developing world, as for example when they generate traffic in organ donation between the rich and the poor worlds. Vigilance is required at all points of possible contact between new technologies and the developing world.

Often a correct choice cannot be made for lack of knowledge of the new technologies on the part of local decision-makers. It is essential therefore that decision-makers in third-world situations be better informed of the entire concept of technology assessment.

We cannot, of course, leave this topic without referring to the Bhopal disaster and the surveillance systems resulting from it. The chemical hazard control programme launched by India is a very ambitious one. It includes identification, analysis, and control of all industrial activities involving potentially hazardous chemicals and processes. It also involves a census of India’s estimated 5,000 chemical production units and a wide range of safety measures, including a greatly strengthened factory inspectorate. Unless developing countries think in these terms they are more than likely to be dumping grounds for careless or untested technology, with consequent damage to human rights.[9] If, on the other hand, they are prepared to think in these terms it will make possible a great enhancement of the enjoyment of technology.

Early Recognition and Alert Systems

When a new technology is introduced there should be early recognition and alert systems in regard to its impact. The Advanced Technology Alert System (ATAS) offered by the United Nations Committee on Science and Technology for Development is also making a substantial contribution to the early recognition of possible applications of new technologies. One of its earlier studies was on biotechnology and microchips. However, the output is not as steady and continuous as is necessary, considering the vast nature of the problem and the numerous countries that need this expertise.

Other international organizations like ILO and UNIDO offer international monitoring and warning systems, especially in the fields of microelectronics, genetic engineering, biotechnology, and materials. Pursuing these notions further, technology assessment prior to the creation of the product can lead to the fashioning of a product more suitable to the recipient’s needs and social and economic conditions. This is an important feature of the rights of protection against the harmful effects of scientific and technological developments. It is a vital part of the informational process preceding the evolution of an appropriate product. It is also an important way in which developing societies can make a greater contribution to development in the area of technology, as suggested in the General Assembly’s Resolution on the right to development.

International Exchanges of Technological Assessment

A network of information exchange between quality control and standards bureaux of all countries needs to be established in a co-operative spirit. This committee can perhaps contribute substantially to the evolution of such a network by studying ways and means for the collaboration and exchange of such information and by making facilities available for the exchange of policing and investigating services, information, and rules.

Technical Co-operation among Developing Countries

In the midst of all these discussions, we must not lose sight of the fact that there are great technical resources within the developing world itself. Much of this has evolved with special reference to the needs of the developing world. It is true that it comprises only a small percentage of the totality of global scientific and technological resources, but it is nevertheless significant enough for a concerted effort to be made to share this around among the developing countries themselves. They can do this with little expense to themselves, and the efforts that have so far been made for technical co-operation amongst developing countries (TCDC) need to be stepped up. TCDC is an idea which has already produced considerable results.

The problem relates also to the question of information flow, which we shall discuss later. There needs to be a network of communication among scientists of the developing world, and it could well be that the United Nations University can contribute to the global effort to promote such an exchange of information as well as of personnel.

Development Digest already provides a valuable information link for this purpose, and perhaps its linkage with the district and national papers can be explored. Such a network of information is also evolving in the form of ASSET (Abstracts of Selected Solar Energy Technology), and the work that has been done in the ASSET field could well be duplicated in other fields. Attention needs to be given to linking together technologists and scientists in particular areas of expertise from various developing countries.

Fields in which such exchanges of information and experience are obviously required are solar energy, tropical health and diseases, mining, health, agricultural procedures, low-cost housing, and cottage industries, to mention but a few. All of these are areas where technology can well be exchanged among third-world countries. It would be helpful if the journals in question also carried a list of experts in those fields, along with their addresses.

The programme of action on the establishment of a new international economic order states that “developing countries are urged to promote and establish effective instruments of co-operation in the fields of science and technology, transport, shipping, and mass communication media.” This can only be brought about if proper vehicles of communication can be devised. One of the means towards this end is that of an exchange of scientists and technologists; an exchange fellowship scheme needs perhaps to be considered in this context.

With more participation by developing countries, they will have a greater ability to resist deterministic beliefs about the inevitability of technological change. As an Australian study advocated for Australia, itself often a receiver of technology, “Technological change is not inevitable and predetermined. We must resist deterministic talk about inexorable change. . . There is and must be a choice. We can, and must, influence choices made in technological decision-making.”[11]

Contribution

We have dealt thus far with participation in decision-making about the introduction of new technology. If developing-world scientists and decision-makers are involved at the stage of evolution of a new technology, there can be an even more substantial attempt to turn technology to the service of development. At the same time we must be conscious of practical restraints, such as that a multinational can rely on expertise from all over the world to develop a project, while a local operator, who comes to the project for the first time, will have to make all the mistakes the multinational has already made and still not possess a fraction of the latter’s experience.

Participation in Product Designing

The needs of the country concerned, together with the dangers and the advantages, should wherever possible be part of the input into the designing of the technology. This avoids the unsatisfactory situation of the developing country being presented with a completed technology or technological product which it must either accept or reject. Every country has its own requirements and is entitled to products tailored to those requirements. This may not always be feasible but in many cases where it is, in fact, feasible the unsuitable product tends to be designed without adequate participation from the recipient country.

An important guideline for the export of technology should be that where a particular developing-world market is sought, representatives from the recipient country should wherever possible be brought into the designing stage prior to the final completion of the product. It is true that the forces of the market-place sometimes bring about that result, but the formulation of such guidelines will assist in making this a routine procedure wherever possible.

Joint Venture Enterprises

Where a technology is involved which is too sophisticated for the developing country to produce by itself, joint venture enterprises would be essential. The developing world would have a substantial share in these and hence be able to contribute its own expertise to the process of production.

Research in international trade law aimed at giving more strength to the local component of joint venture enterprises can establish more ways in which that local component can assert itself. At present, the foreign participant often enjoys dominance by virtue of being the owner of the technology.

Research would need to cover the basic transfer modes of technology, such as licensing or franchising, subcontracting, and supply of equipment, materials, or technology. Much technology comes in the form of total package transfer, including such matters as a market survey, product mix, design, production plan, quality control, and manufacturing processes and procedures. Also involved are the foreign exchange component and managing and marketing skills.  Selected aspects of this package can be scrutinized with a view to increasing the local input. Indeed, there should be the capability of untying the whole package in order to scrutinize its different component elements with a view to maximizing the local input in consonance with local needs.

Tied packages of conditions which must be taken or rejected as a whole often enable very exploitative conditions to be foisted upon recipients. There is an important field of work here for the lawyers and international consultants in the developing world. Currently, the legal expertise available in most parts of the developing world cannot match the expertise that can be commanded by the joint venture partners of the developed world. Perhaps the United Nations University or the Human Rights Commission could assist in this respect by organizing seminars or training courses for developing world lawyers and administrators in this field.

Where there is a process of subcontracting, the relationship between the large or parent enterprise and the subcontractor needs to move away from the “parent-child” type of relationship to one of equal partnership. Local legislation can provide additional strengths to the local partner, making the bargaining relationship closer to one of equality.

Where the transfer is through a supply of equipment, material, and basic technology there will be considerable room for adaptation to local needs. This will also generate technological skills in the recipient countries. In every one of these types of operation, the importance of the generation of local skills cannot be overemphasized.

An important area of legal research involved in all of these types of technology transfer is in the area of restrictive trade practices. Inherent in many of them are restrictions which severely inhibit local input and the spread of local expertise. For the socio-economic development of a nation, the latter is particularly important and cannot be left to the chance forces of the market-place. It requires deliberate policy measures by the government of the recipient country.

Indeed, government agencies, such as the Council of Science and Industrial Research set up by the Government of India, or Institutes of Small-scale Industries or National Science Development Boards can help in coordination and in giving advice on some of the technical aspects involved in such policies. Non-governmental organizations, such as trade associations and industrial co-operatives, can also provide these services.

There are heavy human rights overtones in the decision to be made. The chances are that the economically and often politically more powerful urban group would be the target of the introduced technology. The decision-makers invariably come from this group. Their needs tend to be supplied while the needs of the rest, however urgent, pass unheeded. Sophisticated cookers for the urban life would, for example, gain priority over the development of a simple solar cooker for the rural population. Instances could be multiplied.

Governments need to develop scales of priorities based on human rights, of which the most relevant for our purpose are the rights to food, health, shelter, and a decent standard of living. These must take priority over the sophisticated technologies demanded by life. The competing claims to the technology of these two groups are often lost sight of when technology is received or accepted by developing countries. It is important that the human rights aspect be given a higher profile so that decision-makers in receiving technology will bear in mind this dichotomy of demands within the same system.

The Computer as the Generator of New Products

To all this must be added the fact that the actual processing of information, as well as the dissemination of information – not to speak of the storing of information requires intensive investment in computerization. These again are largely within the control of one sector of the world’s economy and it is that sector which thus acquires increasing control over the product and the information embodied within it.
The computer is no longer merely an assembler of information. It is today extensively used to generate new products and tailor them for particular purposes and specific markets. This resource, extremely expensive and beyond the reach of most developing societies, gives the developed world an irreversible lead in the ability to design a product for the markets of the developing world so that there can, in fact, be little real competition.

The future will see the further spread of new computer techniques, including that of robot technology, which can have severe repercussions, Such technology could thus in effect deprive a developing economy of the use of its labor, which is one of its most important economic resources. Important policy decisions are called for in this area, in order to increase the ability of developing countries to make an input at the designing stage into the new technology.

Education for Participation

A steady policy aim of generating increasing technological skills in the local population is an important part of any policy aimed at turning technology to the service of human rights. Scientists and technologists from the country itself are likely to be far more aware of pressing local needs and demands than those from abroad. With more such skills available locally there will also be a greater trend towards discrimination in the acceptance of technology and towards taking apart a complex technological package rather than accepting it in its totality without question. An attitudinal change is required here in the entire educational structure- a change that will accept technology not as a foreign graft but as an integral part of the local culture.

Marrying traditional local technology to the new will have important psychological overtones for this process. The dichotomy between the traditional way and the technological way, which leads to ‘The Us/Them Syndrome’ regarding technology in developing countries, needs to be broken down. We are one world, and technology is the common inheritance of this one world, without which no part of it can survive. Just as Japanese culture integrated Western technology into its way of life to the extent that there is now nothing “foreign” about it, so also all developing countries must integrate technology.

Appropriate Technology

This is a topic that has generated a vast literature and there is no space here to give it the attention it deserves. Schumacher’s Small is Beautiful is perhaps still the outstanding work in this genre, which has now grown to thousands of titles and a flood of articles, reports, and symposia. Since appropriate technology aims at the adaptation of technology to the needs of the recipient country, the local input into the actual technology is considerable. This has the additional advantage of preventing a sense of alienation. Mahatma Gandhi’s approach was not against machines but against man becoming mechanized. With appropriate technology, which is adapted to the service of the receiving community, there is little chance of man becoming the servant of the technology.

Appropriate technology does not necessarily mean that it should be entirely the adaptation of the receiving country. Some developed countries have active programmes for contribution towards the evolution of appropriate technology, as for example the German Appropriate Technology Exchange (GATE) under which various German agencies joined in developing a service package for developing countries. It concerns itself with the planning and implementation of technical co-operation projects dealing with the development, adaptation, transfer, and propagation of appropriate technologies. Developed countries can assist considerably in this way.

Social Responsibilities of Scientists

Unfortunately, there has not been a sufficiently sustained effort to bring home to scientists the human rights implications of their work. Scientists as individuals are as well-intentioned as any other members of society, but their work has immense potential for the destruction of human rights. 19 All too often, however, the scientist, engrossed in his own particular research, does not see the social consequence of his work.

It is vital that a heightened consciousness of these social implications be fostered in scientists. This may be done through social responsibility courses introduced into all tertiary science curricula, where today they are singularly lacking, or by the introduction of ethical codes which different disciplines of scientists, e.g. engineers, would adopt. It could also be achieved through a wider diffusion of relevant information among scientists of the social consequences of their work, which international organizations such as UNEP (the United Nations Environmental Project), Unesco, or UNDP could stimulate. Indeed, there is room here for an international journal on the Current Social Consequences of Science, which one such organization, or even UNU, could undertake.

The Promotion of Humanistic Science

The development of a more humanistic approach to science and technology could be stimulated through the establishment of centers for the study of the human aspects of science and technology or centers for humanistic science. This is a needed corrective to the compartmentalization of science, which in this generation has seen scientific expertise fragmenting into ever smaller specialties and subspecialties.

The deeper one goes into a narrow area of science, the narrower becomes one’s outlook, and the less one communicates with other disciplines or even with the subdisciplines within one’s scientific field. The perspectives that ought constantly to be before the scientist hence tend to be shut out. The remedy for this is to see science in an overall or holistic context. Apart from the injection of social perspectives into existing science curricula, there is a need for the establishment of centers devoted to this holistic approach.

Such a holistic approach would necessarily involve interdisciplinary studies and would bring together sociology, economics, the humanities, philosophy, jurisprudence, and many other areas of human knowledge that can make a direct contribution to fostering in scientists and in the scientific product a greater regard for humanity and the environment, which in the last resort scientists and science are intended to serve. Many of the problems concerning the impact of science on society and in particular on third-world societies are the result of failure to have this broader dimension prominently placed before the scientific enterprise.

A prototype for such an enterprise could well be the Mitsubishi Kasei Institute of Humanistic Science, a large research center based upon this holistic and humanistic approach to science.

The informational aspects that go into the creation of new products need this orientation, and it is most important that these perspectives be fed III prior to the generation of the product – hence the importance of the humanistic approach at an early stage, before the technology is actually created The impact of such a new attitude will be felt also in the field of scientific method, where results are currently determined by experiments tightly controlled within their own narrow framework, without regard to the broader social dimension. Results that fit in with the postulates of that narrow frame of reference are not results that will necessarily sit easily within the postulates of a broader social frame. The framework of scientific research must, in other words, be considerably broadened to take on a humanistic dimension.

Information Technology

A second great roadblock on the way to the bending of science and technology to greater human service is the way in which information technology is helping in the polarization of developed and developing worlds. Although one would expect that the explosive growth of information technologies in recent years would turn out to the benefit of the average citizen in the developing world by making a knowledge of science and technology more freely available in quarters that it would not otherwise have reached, the information revolution has thrown up yet another obstacle to the delivery of appropriate technology to the third world.

It is to be remembered also that whereas earlier technology, dating back to steam and electricity, greatly magnified physical power, modern information technology greatly enhances man’s intellectual power,  therefore greatly magnifies its possessor’s powers of domination.

The Information Component of New Technology

It will be observed that the generation of information that is the prelude to the creation of a new scientific product often takes place through the availability of resources in the developed world, resources that few developing countries possess. These resources consist of trained researchers as well as an expensive apparatus for the collection of data. Although the collection of this raw data has to be undertaken in distant places, it is often processed in the rich world at centers far away from the sites where the information is collected. This is the first stage in the surrender of control by the developing world of knowledge concerning itself that could assist in the creation of a future product for use in its own territory.

Much of this information bears upon the increasingly recognized principle that international agencies are striving to protect under the head of transborder data flow. If knowledge is power, knowledge of local conditions, needs, strengths, and shortcomings is power over the society in question. Such data, once it travels beyond the boundaries of the country where it is collected, ceases to be under its control. The first stage in the fashioning or introduction of a new technology is thus placed beyond the control of the recipient country. It is vital that this question is addressed, bearing in mind also the proposition that knowledge is free and that research should be unfettered. There is here an important dilemma to which we should address ourselves.

The scarcity in the developing world of the two resources earlier mentioned, namely the human resource of the skilled researcher and the information-gathering apparatus, is one of the root problems creating this dilemma. It is possible that it could be addressed by devising an appropriate combination of resources from the two countries mentioned – the giver and the recipient of the technology – rather than there being a total surrender of control at this early stage to the giver. In other words, is it not possible to introduce a mandatory requirement of participation in the project, with property in the resulting information being shared between the two countries?

Even before the manufacture of the product resulting from the information thus generated, it thus already embodies property (in the form of raw or processed information) that belongs to the developed world, although its eventual target is the developing world. When the technological input takes place, the totality of the product becomes the property of the developed world and under current concepts of property and free trade it can do with it what it pleases and sell it on terms it alone determines. However much it might be needed in the developing country, barriers then arise between the product and the place in which it is to be used.

These barriers take the form of protection of intellectual property, protection of financial investments in the generation of the new product, and political barriers which need to be penetrated before the product can really serve the people for whom it is intended. These political barriers take the important form of levers of social, political, and economic control which are manipulated almost exclusively from the developed world.

Various aspects of human rights become relevant to a consideration of the resulting problems.

Clashes of Human Rights Principles

On the one hand, there is a recognized right of the creator to a product, whether material or intellectual and to the profits flowing therefrom. On the other hand, there is a general principle that science and technology are primarily intended for the use of humanity and that information is free. Other clashes of human rights principles occur when we consider that the right of property is heavily protected under the Western jurisprudential tradition, while in the traditions of the developing world considerations of social interest and of humanity occupy a higher position in the hierarchy of values. The limitations that must be placed in the social interest upon the absoluteness of ownership principles tend therefore to be blunted where the dominance of Western technology gives dominance to the Western position.

These conflicts are not easy to resolve, but there are some trends in human rights jurisprudence that can be called on. One of these is the growing emphasis upon the concept of universalization of human rights norms. Concepts of absolute rights of property that belong to an exclusively Western jurisprudential tradition find it increasingly difficult to maintain their regime unimpaired when confronted universally by rival human rights traditions that do not accord this sacrosanct importance to the concept of property.
Another is the increasing importance of social, economic, and cultural rights, as compared with the civil and political rights which formed the kernel of the Western human rights tradition. All of these result in the progressive attrition of property rights in the interests of social welfare.

The matter can be illustrated by a contemporary example. It has been advertised recently that a medical product which prolongs the life of an AIDS sufferer will shortly be on the market at a cost of approximately $20,000 a year for each user. We do not know how authentic this claim is but it offers a textbook illustration. Such treatment may well be beyond the financial reach of a person who desperately needs this drug. We can think in a similar context of a hypothetical cancer cure which is marketed at $1,000 a pill.

Such examples highlight the clash between two human rights – the property right of a creator in his intellectual creation and the right to life and health of the user. Each is valued in its own context but when posed in opposition to each other there is an inevitable subordination of the right which has less muscle behind it.

Such examples, though far-fetched, draw attention to the dilemma that constantly faces the international community in relation to expensive technologies which the developing world needs desperately but which can only be obtained at a price beyond their reach. While we must have due regard for the expense, risk, and expenditure of human resources involved in the generation of the product, it is not unreasonable to argue that the product once achieved belongs to all humanity, subject to a reasonable compensation to the generator of the product for the effort and expense involved.

Scales of Priorities of Human Rights

The clash of principles outlined above points to the need for international guidelines to be evolved and brought into play so as to achieve a workable reconciliation between conflicting principles.

For example, it may be possible to define a set of guidelines under which products that are vital to life, once generated, become universal property, subject to a right of compensation at a level deemed appropriate by an international authority set up for this purpose. Perhaps the analogy of non-derogable rights which we can draw from the learning regarding derogation from human rights principles21 could afford some guidelines as to human rights which are considered of such a compelling nature that they override others in the event of a clash. The funds for such compensation payments may not be available for those who need the product and it may be necessary to build up a buffer fund which can in such instances make the producer a fair reward for his initiative, effort, and expenditure.

This is not to say that every product thus generated will become the subject of such free transfer. The principles outlined above will apply in exceptional instances, such as are defined by the appropriate authority, and the justification for this would be that the rights to health and life stand above all other rights.

The writer is conscious of course that such a principle can operate as an inhibitor of research. It may well be that research organizations, particularly drug companies, would not invest the current level of effort in potential products if they knew there was a possibility of the appropriation of the resulting knowledge into the universal domain. On the other hand, it is only in exceptional cases that the principles outlined would be brought into operation, and in any event, there would be a reasonable costing of the effort and expense involved, so that loss would be averted and there would be a reasonable profit for the outlay.

Another consideration to be borne in mind is that the profits currently made through such technologies are well in advance of what may be described as reasonable remuneration. Pharmaceutical companies are well known for the very substantial profits they make, far exceeding what is considered, even in the competitive financial world, a reasonable remuneration for the outlay of resources. It may well be that similar principles apply in regard to new technologies that generate agricultural products.

The collection and processing of information, which, as we observe in this section, are an essential prelude to the creation of a product, thus involve not merely the collection and classification of facts but also an analysis and evaluation of any clash of principles involved. Seeing that the informational input prior to the creation of the product will be of increasing importance as the basis of scientific and technological development for the foreseeable future, the problem we are confronted with will, if at all, become more acute. We need to address it now.

The Role of the State

It is clear that the state has an important role to play in achieving the maximum enjoyment of technology by its citizens. One of the most important problems faced by developing countries is the nature and extent of this state role.

It would be of assistance to examine in this connection a pioneering Sri Lankan project, the Million Houses Programme (MHP). This programme offers both an interesting philosophical base and a practical example in fulfilling the basic human right to shelter of a large segment of the population. At the thirty-fifth General Assembly of the UN in 1980, Sri Lanka proposed the concept of a selected year to focus on shelter, which resulted in the UN’s International Year of Shelter for the Homeless, 1987. The rationale behind the proposal, as stated by Prime Minister Premadasa to the UN (12 October 1987) was that great industrial and agricultural visions tended to by-pass the center of human development – the home.

The programme, which has already achieved the construction of half a million houses, rests upon a support-based paradigm (S-BP) rather than the traditional provider-based paradigm (P-BP). This means that it is poor families and poor communities that both decide and do, the role of the government being to support and complement their initiatives. Under this philosophy, all technology issues are individually and locally determined by the micro-context rather than determined from above in conformity with a macro-scheme.

In making known the technologies available, the government has an important role to play, as it has in providing credit, basic services, training, and technological assistance. Housing options and loan packages (HOLPs) facilitate the choice of technology and materials. Yet the underlying philosophy is that the state participates in the people’s process rather than the people in the process of the state. State support is maximal; its intervention is minimal. Technology choices are for the people and individuals of the area. Their range of information is considerably magnified by the services provided by the state.

We refer later in this chapter to the importance of self-help. It may well be that there are principles of global significance in this regard in the Sri Lankan experience.

One-way Information Flow

Another area of marked imbalance in the current world order is the imbalance between the resources of the developing and the developed worlds in relation to news flow. This may not, at first sight, be seen as a means of perpetuating technology differentials, but it is, in fact, especially when one considers that the entire global communications network, as currently organized, presents a largely one-sided information flow.

Raw information may come in from the developing to the developed world but the processed information travels out in a one-way stream of traffic from the developed to the developing world, while nothing that can match it flows in the reverse direction. In order to improve the human rights of the vast sectors of the world population thus disadvantaged, it is necessary that telecommunication facilities and wire services be available to the developing countries, with a sufficient global spread to relay from them processed news information to all sectors of the globe.

The lack of availability of such a system means that the human rights of this vast group are impaired, for the entire world receives its news and forms its views on the basis of the one-way flow of information generated in the developed world. This is in regard not merely to information which we call “news,” but to all species of information, on the basis of which needs are perceived, policies are made and products are designed. In the result the problems of the developing world are not seen by the world public in the real way in which they should be seen, that is in their overall context, and the assessment in the developed world of a third-world problem or need tends often to be distorted, not for lack of goodwill but for lack of information.

This means that in the resulting political process or in the resulting economic transactions, the legitimate human rights of such developing-world populations tend to be negated or whittled down to an extent not permissible under current universal perceptions of human rights. Unesco at one stage considered in detail this imbalance of news.

We need also to consider the imbalance of technologically related information. The impact of technology on the development and developing societies cannot be considered adequately without due reference to this aspect, which forms an important segment of the area of research that this project should cover.

The Armaments Trade

Another dimension of the problem under review is the interconnection between disarmament and development. Although the intertwining of disarmament and global development is well acknowledged in theory, very little has been done in practice to achieve the desired result of diverting some portion of world resources currently wasted on armaments into the field of development. This is an area involving superpower and regional politics, but also one to which the Human Rights Commission may have some worthwhile contribution to make. Indeed, the Commission would perhaps fail in its duty to consider the overall picture if it did not give some attention to this vital aspect of the development dialogue.

There have been insufficient analytical studies of the ways in which the arms trade conflicts with nearly every canon of the current universally accepted body of human rights. This can be written on in extenso, but it is not within the scope of the present study.

However, an important area of the arms trade which needs continuing in-depth research is the question of diverting the productivity of the armaments industry into products of a peaceful nature. Conversion of swords into ploughshares is perhaps the most important and urgent of the studies that need to be undertaken. Considerations of space prevent a more detailed study of this area, which is rapidly becoming a major area of research.

The solution lies clearly not in the handing out of food bonanzas to the developing world on a regular basis but in their greater participation in such technology. To this end, we need revised attitudes of the ruling elites, greater scientific and social awareness, and international norms which regard food as a public resource rather than a purely private right.

The following areas are suggested as needing increased attention:

1. The development of norms of national and international law in the field of intellectual property, seeking to build up within the universal domain a pool of scientific and technological knowledge. By way of example, private companies seeking property rights to improved seed varieties tend often to fail to recognize the rights of the countries from which the plant matter was obtained. As the World Commission on Environment and Development pointed out (p. 139), such practices could discourage countries rich in genetic resources from making these internationally available, thus reducing the options for seed development in all countries. Norms of international cooperation can also be built up in these areas, just as such norms have been built up in the field of environmental law.

2. International organizations such as FAO already hold an unrivaled bank of agricultural statistics and inventories of the world’s physical resources. Such organizations can draw in the most sophisticated modern technology to help the third world. An outstanding example is FAO’s satellite-based alert system, backed by scientific establishments in the Federal Republic of Germany, used to give early warning of drought, crop failures, and insect plagues in Africa, thus enabling preparation for major food shortages before they occur.24 Databases are being built up covering agro-climatological statistics, day-to-day vegetation indexes, and an analysis of potential locust habitats in Africa, the Middle East, and South-West Asia.

3. Within the developing countries, there must be a greater readiness to set up and finance research institutions that can help in channeling the new technologies towards the needs of the country in question. Many third-world countries, knowing their weakness in research, tend to take this situation for granted. This further increases the technological gap with the world instead of providing the technological bridge we need.

4. More specific international guidelines and national laws are required for regulating food technology that is introduced into a developing country.

5. International lending institutions such as the World Bank and the Asian Development Bank can lay down firmer guidelines requiring the development of local technological skills in relation to agriculture and fisheries.

6. The world community, through its resources and encouragement, must seek to divert towards food technology an increasing segment of the world’s scientific skill, of which, according to the Brandt Report, less than I percent is devoted to the needs of the developing world. The vast bulk of scientific research on agriculture still concentrates on the needs of the developed world, whose resource-rich conditions and ample water supplies contrast with areas such as sub-Saharan Africa and the remoter areas of Asia and Latin America with unreliable rainfall and poorer soils. These call for new and specialized technologies suited to each particular area, which would represent a combination of the modern and the traditional.

7. The food problem is linked with the land problem and research is required to free the maximum amount of land for food production. Land law reforms would often have to be effected to meet this need. The necessary studies would include the disciplines of law and economics, having regard in particular to the fact that much of the most serviceable food-producing land in the developing world grows to produce for the developed world rather than food for its own population.

8. Freeing more land for food production involves environmental concerns as well, such as rehabilitation of mined-out land. Many new technologies are available for this, and they need to be harnessed, while, at the same time, the principles of environmental law need to be developed.

9. Human resources need development through educational processes, leading to a greater receptivity to modern technology – e.g. hydroponic cultivation, biomass generation of energy, use of wind power for irrigation, solar energy for such simple purposes as cooking, compost production in place of imported fertilizers, crystal distribution techniques for enhancing the water-retention capabilities of soil. Many of these technologies, often thought of as remote and sophisticated, are well within the reach of the average third-world peasant. Many new products such as fertilizers and pesticides are misused for lack of necessary technical knowledge. In short, a wider spread of technological knowledge both at the level of the research institute and the average farmer is required if the politics of food as an exploitative weapon is to be blunted and the technology of food production is to be brought into the affirmative service of promoting human rights.

10. A number of points concerning ethical aspects of the right to development were stressed in the 1978 UN study on development as a human right.[25] Since science and technology are a major component of the concept of development, every one of these propositions would apply to science and technology and the sharing of such knowledge, which is universal in its nature. There is thus a firm ethical base, soundly grounded in international law and its evolving norms, for the proposition that the shrinking world in which we live needs to be protected, for our common benefit, by treating science and technology not as a private preserve but as a universal inheritance.

Inadequacies of the Law

The dynamic growth of science and technology has outstripped the ability of the law to control it. Both legal procedures and legal concepts have proved unequal to the challenge.

Any study of legal inadequacies would have to concentrate on four important aspects: structures, concepts, procedures, and personnel. Quite often all of these in colonial and post-colonial contexts still bear the stamp of their colonial origins and are thus suited basically to the societies of the West.

A formalized legal structure, with formal and expensive procedures and legal concepts tailored to the needs of the individualist, property-owning Western society, are hardly adequate for guarding against technology’s potential for damaging human rights or for assisting in the transference of appropriate technology to the third world. This is an important roadblock on the way to turning technology to the affirmative service of human rights in those societies.

Even in Western societies, courts are recognized as not being suitable agents for the monitoring of technology or for determining in advance whether a given technology is suitable. Yet such questions tend often to come before the courts. Other agencies are required for this, as, in general, a court looks back at a past event rather than forward to the future. Value judgments, resource allocations, and community priorities are not appropriate matters for courts. Moreover, judges are not trained in science and technology, and therefore lack the expertise with which to judge the increasing proportion of technology-related disputes which come before them.

Against this background, the inadequacy of formal court structures and procedures to meet third-world conditions becomes even more apparent. Adversarial litigation does not provide for representation of the public interest but only for that of the two contending parties. It produces a finding which is effective only between the two parties and is not necessarily related to social needs. It aims at finding which of two parties should win by the rules of the game rather than at ascertaining the truth. Its procedures are expensive and dilatory, whereas technology often requires quick perception and action.

Evidentiary rules are often archaic and exclude for formal reasons many considerations which could be of real value in fact-finding. The thalidomide case provided an excellent example of the inadequacy of old procedures to deal with a great social issue resulting from technology. Thus, a decision of the British House of Lords had to be discarded recently by the European Court of Human Rights in order to enable publication in the public interest of material which the British courts had shut out on grounds of legal procedure and privilege.

Old concepts of the law are likewise proving inadequate. Concepts of privacy and physical trespass were worked out before the days of surveillance devices, “bugging,” and computers. Laissez-faire principles in scientific research are still accepted without limitation, despite the public interest in science and technological matters. Concepts of unrestricted private property are still unthinkingly applied by courts and judges.

Many third-world societies still believe that their courts and legal systems can carry burdens in the scientific and technological age which they were never designed to bear. In this belief, they refrain from constructing the new structures and instrumentalities which are needed to monitor technology and make it harmonize with the needs of people. The existence of this obstacle must be more widely realized if science and technology are to serve human rights more affirmatively in third-world societies.

It will be necessary for a special study to be made identifying legal obstacles that stand in the way of the realization of these objectives. Work has already been done in relation to development by such centers as the International Centre for Law and Development to identify legal obstacles to the realization of alternative development strategies. This work has studied the ways in which those who desire to preserve the status quo on the developmental and technological fronts use the law as a means of obstructing change.

The problem is both a national and an international one, and the study undertaken will thus have to be in the fore of domestic law as well as international law. There will also need to be a study of the ways in which co-operation can be achieved among domestic legal systems in eliminating these obstacles. More specifically, studies will be needed for ways of building into legal structures in developing countries a greater control over production and the processing of information. Other areas where greater legal control will be required will be in relation to control of trading relations and control of prices.

In the last section of this chapter, we consider the reorientation of lawyers’ attitudes that will be necessary for this purpose.

The Human Factor

In a programme on human rights and development, we cannot afford to lose sight also of the central fact that in all development processes one of the most important aspects is the human factor. In fact, this has sometimes been described as the missing factor in development because it tends so easily to be overlooked. This human resource consists of the basic skills of the workforce, the administrative skills, the social structure of the rural sector, and the expertise already contained within the scientific and technological communities, however small, in these countries. It is important that all these resources should be marshaled as part of the general effort towards making these societies receptive to the better impacts of the new technologies.

It is to be remembered also that, although in Western countries with a tradition of three or four centuries of industrial development there has been built up over the centuries an appropriate infrastructure for the spread of technology, in the developing world this long process is now being compressed within a very short timeframe. If the beneficial effects of the new technologies do not reach those who can best benefit from them, this is a principal cause. Much of the effort that we shall be putting into the use of new technologies will be dissipated in the absence of due attention to the human resources aspect of development.

Traditional technology, rich especially in relation to agricultural activity, embodies the wisdom of generations. The tendency to cast it aside without due examination under the impact of modern technologies, such as high-level fertilizers and Western machinery, should be resisted. This is a rich human resource which needs to be considered and sufficiently used.

As the Brandt Commission observed after a wide-ranging survey of the concept of development:

This Commission did not try to redefine development, but we agreed (among other things) that the focus has to be not on machines or institutions but on people. A refusal to accept alien models unquestioningly is, in fact, the second phase of decolonization. We must not surrender to the idea that the whole world should copy the models of highly industrialized countries.

Raising the Political Priority of Development

Another aspect to which the Human Rights Commission should give its attention is the means of raising the political priority of development, both in the developed world and in the developing world. In the developed world there is a strong feeling that the assistance given for the process of development finds its way into the wrong hands and that much of it is frittered away. Consequently, there is the feeling that money spent on such forms of assistance is not money that truly filters into the process of development.

In the developing countries themselves, there is a sentiment developing that assistance given in this way is, in fact, a means of increasing economic and political control over the recipient country. An effort needs to be mounted to ensure that both these criticisms will be met by appropriate corrective action. This can assist in countering the growing resistance now discernible in the developed countries, both in government and in public attitudes, towards the giving of assistance which does not really reach its target beneficiaries. Moreover, if assistance in relation to technology comes without economic or political strings, its acceptability and impact in the developing world will be all the stronger.

Studies of the extent to which development assistance is frittered away or made contingent on benefits to the donors will be useful pointers to the way in which these abuses can be minimized in the future. With a reduction of these abuses, the political priority of development will rise. At the same time the communication apparatus which is now growing up in the developing countries can also be used to spread, not only among political leaders but also among the people of those countries, the need for development aid to be received in an independent fashion, without political or economic strings attached to it Self-help groups need also to be generated, not only in local areas but also in relation to particular industries.

The communication technology available already in developing countries has not been used sufficiently for the purpose of generating the necessary concern and interest, which would result in viable self-help groups. There is a feeling that nothing one can do will halt the inevitable, and the resulting frustration needs to be countered. Demonstrations of the ways in which new technology can be used and new products generated need also to be taken to the rural areas, as well as to the workplace. A new work ethic and a new self-confidence must emerge.

Conclusion

Work needs to be done in the human rights field to elevate the status of the right to food. The UNU has done promising work in this regard. Approaches to the problem of hunger have taken many forms, and a useful summary of the different approaches is contained in the chapter by Thomas J. Marchione in the UNU volume, Food as a Human Right. The five approaches set out here are the epidemiological approach, the ecological approach, the econometric approach, the structural approach, and the advocacy approach. In each of these, there is a technological element, and the Commission would perhaps like to consider the ways in which the technology relevant to each of these approaches is harnessed in the course of making available this basic human right.

Formatted on 16th Febraury 2019.

BIBLIOGRAPHY

http://bizandlegis.blogspot.in/2011/09/basic-of-human-rights-jurisprudence.html
https://www.cdt.org/blogs/jumpstarting-human-rights-jurisprudence-internet

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