Dr.iur. Daniel Rietiker[1]
Introduction
By adoption of UNGA Resolution 44/25 of 20 November 1989, the Convention on the rights of the child (CRC) was established. It therefore celebrates its 30th anniversary these days.[2] Today, nearly all Governments – to the exclusion of the USA – have pledged to respect, protect and promote those rights.[3] This makes the CRC one of the most – if not the most – universally accepted human rights treaty in history.[4]
This anniversary creates a momentum for the international community to step up its efforts and to renew its commitment to protect and promote all their human rights. While notable progress has been achieved in the past three dsecades, significant challenges remain, in particular for girls, children with disabilities and children in disadvantaged and vulnerable situations, according to a statement of the office of the UN High Commissioner for Human Rights.[5]
The purpose of this note is to briefly address the serious human rights issues that face children in the context of the 2011 Fukushima tragedy, and to highlight the relevance of the CWC in the legal assessment of the suffering caused to children, in particular in light of the right to health.
The relevant CRC provisions
Article 24 § 2 d) of the CRC directs States Parties to ensure access to essential health services for the child and his or her family, including pre- and post-natal care for mothers. It is well recognized that the key determinants of children’s health, nutrition, and development depend on the mother’s health and the role of the parents.[6]
As far as infant and child mortality is concerned, Article 12 § 2 a) of the ICESCR provides that States Parties must take those steps necessary for “the provision for the reduction of the still-birth rate and of infant mortality and for the healthy development of the child.” In spite of the vagueness of those formulations, the Committee on the rights of the child stated unambiguously that “States have an obligation to reduce child mortality.”[7] The legal obligation to reduce infant and child mortality rates is moreover confirmed by Article 6 CRC (Right to life, survival and development) that reads as follows: “1. States Parties recognize that every child has the inherent right to life. 2. States Parties shall ensure to the maximum extent possible the survival and development of the child.” The Committee on the rights of the child expects States to interpret “development” in its broadest sense as a “holistic concept, embracing the child’s physical, mental, spiritual, moral, psychological and social development.”[8]
The special vulnerability of children facing radiation and radioactive fallout
Children everywhere are suffering from the impacts of toxics and pollution. These impacts materialize in different forms, at various stages of life, and from very diverse routes of exposure.[9] Moreover, children have higher levels of exposure and are also more sensitive to it, which makes them more vulnerable than adults. Such impacts can be irreversible and can even be passed down from one generation to the next.[10] This is obviously diametrically opposed to what is prescribed by Article 3 § 1 of the CRC, namely that the best interest of the child must be a “primary consideration” in the interpretation and application of the rights enshrined in that instrument.[11] The American Academy of Pediatrics reported in 2018 that several tissues (e.g., thyroid, bone marrow, breast, and brain) are more sensitive to radiation in children than in adults, and children are at higher risk of radiation-related cancers of these tissues. Other tissues do not appear to be more sensitive in children than in adults (e.g. lung and bladder).[12]
Legal assessment of the health situation of children after the 2011 Fukushima accident
The 2011 Fukushima accident is a recent example for the particular challenges that pose nuclear accidents to the health and human rights of affected children. The special rapporteur for the right to health in the aftermath of the Fukushima, Anand Grover, observed in 2013 that children are most at risk of thyroid cancer cause by radioactive iodine intake.[13] Certain reports, established approximatively at the same time, observed a rise in infant mortality in Japan and thousands of children were diagnosed with thyroid gland nodules or cysts that had to be classified as pre-cancerous.[14] There were also the first documented cases of thyroid cancer in children.[15]
Japanese government policies in Fukushima have been criticized heavily by civil society, in particular concerning human rights of children. “Human Rights Now”, in its 2017 submission to the Committee on the rights of the child, stated that the government has generally failed to established free, periodic, and comprehensive health checks for affected persons.[16] In its submission to the Committee in October 2018, “3.11 Fund for Children with Thyroid Cancer”, criticized the current health survey system used by Fukushima prefecture, which has not been construed to accurately assess the thyroid cancer incidence of children who had resided in the prefecture at the time of the nuclear accident. It is argued moreover that this system does not allow tracking all children who were in the prefecture during the accident.[17]
At the session held in January 2019, members of the Committee on the rights of the child raised multiple issues to the Japanese delegation in relation to the Fukushima nuclear accident.[18] These included children’s rights to information and the consequences of the accident and questions over long-term health monitoring, and the measures taken to take account of thyroid cancer rates among children of Fukushima.[19] In its report of 1 February 2019, the Committee made seven recommendations to the government of Japan, including to “(a) reaffirm that radiation exposure in evacuation zones is consistent with internationally accepted knowledge on risk factors for children; (b) continue providing financial, housing, medical and other support to evacuees, children in particular, from the non-designated areas [and] … (d) conduct comprehensive and long-term health checkups for children in areas with radiation doses exceeding 1mSv/year.”[20]
In a recent report, published in March 2019, Greenpeace argues that the current Japanese government policy is clearly in violation of its obligations under the CRC by not preventing childhood exposure to radioactive contamination in Fukushima resulting from the 2011 nuclear disaster, and recalling that this obligation flows naturally from the right of children to physical integrity and from the fact that such exposure makes it nearly impossible to realize every child’s right to the highest attainable standard of health, to survival and to maximum development, given their extreme sensitivity to pre- and postnatal exposure.[21]
General conclusions
In light of what precedes, it can be concluded that the CRC, at its 30th anniversary, remains very relevant, including in the assessment of human rights violations caused in the aftermath of the 2011 Fukushima disaster. It is obvious that nuclear power plants, with their inherent safety and health risks, are hardly compatible with the duty to create an environment in which children can develop and grow up healthy and happily. The Fukushima tragedy demonstrates well this dilemma.
The article was first published on safna.org: https://safna.org/2019/11/24/the-un-convention-on-the-rights-of-the-child-celebrates-its-30th-anniversary-an-instrument-that-remains-relevant-including-to-asses-the-right-to-health-after-the-2011-fukushima-disaster/
[1] International Law Lecturer (Lausanne University), President of Swiss Lawyers for Nuclear Disarmanet (SAFNA), and author of “Humanization of arms control: paving the way for a world free of nuclear weapons”, Routledge, 2017.
[2] It entered into force on 2 September 1990.
[3] http://indicators.ohchr.org/
[4] https://www.ohchr.org/EN/HRBodies/CRC/Pages/CRC30.aspx
[5] Ibid.
[6] Committee on the Right of the Child, General Comment no. 15 (2003), mentioned above, § 18.
[7] General Comment no. 15 (2013), § 33. A similar duty derives from Article 14 § 2 a) of the African Charter on the Rights and Welfare of the Child, adopted on July 11, 1990.
[8] General Comment no. 5 (General measures of implementation of the CRC), UN Doc. CRC/GC/2003/5, November 27, 2003, § 12.
[9] UN Human Rights Council, Report of the Special Rapporteur on the implications for human rights of the environmentally sound management and disposal of hazardous substances and wastes, 2 August 2016, § 2, A/HRC/33/41, see:
https://www.refworld.org/docid/57d6a3154.html
[10] Ibid.
[11] Article 3 § 1 of the CRC: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”
[12] M.S. Linet, Z. Kazzi, J.A. Paulson, Pediatric Considerations Before, During, and After Radiological or Nuclear Emergencies, Pediatrics, 2018, Vol. 142(6):e20183001, see:
http://pediatrics. aappublications.org/content/pediatrics/142/6/e20183001.full.pdf
[13] Report Grover, quoted above, § 28.
[14] H. Paulitz, W. Eisenberg and R. Thiel, “Health Consequences Resulting from Fukushima”, Berlin, 6 March 2013, p. 2.
[15] Ibid.
[16] Human Rights Now, “Shadow Report Submission: Children’s Rights in Japan”, CRC 76th Session, 2017, see http:// hrn.or.jp/wpHN/wp-content/uploads/2017/11/CRC_Shadow_Report_Submission_HRN_Nov_2017.pdf
[17] 3.11 Fund for Children with Thyroid Cancer submission to the CRC, October 2018.
[18] The 80th Session Committee on the rights of the child, consideration of Japan – 2346th Meeting, January 16-17 2019, can be viewed at:
http://webtv.un.org/meetings-events/watch/consideration-of-japan-2346th-meeting80th-session-committee-on-the-rights-of-the-child/5990465578001/?term= and http://webtv.un.org/meetingsevents/watch/consideration-of-japan-contd-2347th-meeting-80th-session-committee-on-the-rights-of-thechild/5990588517001/?term=
[19] Greenpeace, On the Frontline of the Fukushima Nuclear Accident: Workers and Children. Radiation risks and human rights violations, March 2019, p. 44, see:
[20] A/HRC/23/41/Add.3), see: Click to access CRC_C_JPN_CO_4-5_33812_E.pdf
[21] Greenpeace, 2019, op.cit., p. 44.24/11/2019 in Nuclear, Uncategorized.