UN Expert Releases Principles to Protect Workers from Toxic Substances
In a new report, the United Nations Special Rapporteur on human rights and hazardous substances has laid out 15 principles to guide States and businesses in preventing and remedying workers’ exposure to toxics. [OHCHR Press Release] In September 2019, the Special Rapporteur, Baskut Tuncak, presented the principles to the UN Human Rights Council, which adopted a resolution calling on States and non-State actors to implement them. See UN Human Rights Council, Resolution 42/21, Protection of the rights of workers exposed to hazardous substances and wastes, UN Doc. A/HRC/RES/42/21, 8 October 2019. The principles center workers’ human rights, and emphasize that both States and employers must act to prevent workers’ exposure to toxic substances, that these obligations extend beyond national borders, and that workers’ access to information and to effective remedies are critically important. See Report of the Special Rapporteur on the implications for human rights of the environmentally sound management and disposal of hazardous substances and wastes, UN Doc. A/HRC/42/41, 17 July 2019. The report, which is the culmination of 25 years of work under the Special Rapporteur’s mandate, is grounded in and builds on the UN Guiding Principles on Business and Human Rights, International Labour Organization conventions, and multilateral agreements on toxic wastes. See id. at paras. 8, 12.
Principles on Human Rights & Toxic Waste
The UN Special Rapporteur on the implications for human rights of the environmentally sound management and disposal of hazardous substances and wastes divides the principles in the report into three sections: (1) prevention; (2) the link between the human right to safe and healthy work and workers’ rights to information, participation, and assembly; and, (3) effective remedies. See id. at paras. 20, 51, 73. The UN Special Rapporteur clarifies that any reference to “workers” in the principles “includes not only directly employed workers but also informal workers, as well as contract workers, subcontractors, agency and other sorts of temporary workers and all other persons performing work or work-related activities.” See id. at para. 18.
Principles on Prevention
The first seven principles focus on prevention. The first principle explicitly states that “[e]veryone must be protected from exposure to toxic substances at work.” However, the Special Rapporteur highlights that certain groups, such as women and children, the poor, persons with disabilities, older persons, and migrant workers face a greater risk of exposure. See id. at para. 25.
The principles then draw on various international standards to confirm that States and employers have duties to protect workers from toxic substances. See id. at paras. 29, 35. According to Principle 2, States must adopt and implement measures and laws that protect workers from “acts or omissions” that may infringe on their rights to life and health with respect to exposure to harmful substances. See id. at paras. 29-30. Businesses, for their part, also have a responsibility to prevent exposure “as part of the due diligence expected of them, to ‘prevent [and] mitigate’ impacts on human rights,” according to Principle 3. See id. at para. 38. This includes eliminating toxic substances from their production processes, including from their supply and value chains, and from their products to the extent possible. See id.
Principle 4 reiterates that the goal should be eliminating toxic substances in workplaces – rather than simply mitigating or controlling exposure – pursuant to the “hierarchy of hazard controls.” See id. at para. 40. The Special Rapporteur calls on States to legally require businesses to “eliminate hazards wherever possible.” See id. at para. 41.
Principle 5 asserts that these obligations extend beyond national borders. See id. at para. 42. According to the Special Rapporteur, States are responsible for businesses “over which they can exercise control” and any “reasonably foreseeable” activities that result in rights violations. See id. at para. 44. Similarly, businesses are responsible for upholding the “right to safe and healthy work and other applicable human rights…across borders.” See id. at para. 45.
Additionally, the principles on prevention require States to ensure that third parties do not “distort scientific evidence or manipulat[e] processes to perpetuate exposure.” See id. at para. 46. Principle 6 identifies a State obligation to prevent private parties from attempting to manipulate regulatory processes or to distort or hide scientific research in order to delay or avoid worker protections. While the explanation notes that States must respect the right to freedom of expression, it nonetheless urges governments to consider criminal prosecution of those who engage in this kind of tampering with information. See id. at para. 48.
While the principles focus primarily on preventing workers’ exposure to toxic substances, Principle 7 notes that exposure is often not limited to workers, rather it impacts the well-being of workers’ families, communities, and the environment. See id. at paras. 49-50. Thus, the Special Rapporteur calls on States to ensure that “[l]aws and policies to protect human health from toxic substances should take into account both occupational and environmental exposures.” See id. at para. 50.
Principles on Information, Participation & Assembly
Principles 8 to 11 address the rights to information, participation, and association as they relate to workers’ ability to defend their right to a safe and healthy environment and to prevent human rights violations that result from exposure to toxic substances. See id. at paras. 51-52, 64-65. The Special Rapporteur highlights that workers have the right to current and accurate information regarding implications of exposure, prevention activities or measures in place, and the potential for exposure to hazardous substances. See id. at paras. 53-59. In particular, the Special Rapporteur notes that “[h]ealth and safety information about toxic substances must never be confidential.” See id. at para. 60. Pursuant to Principle 10, States must “protect, promote, respect and fulfil the rights to freedom of association, to organize and to collective bargaining through effective legislation, regulation and policies.” See id. at para. 66. States’ obligations extend to businesses and private parties in their jurisdiction, and businesses also have an obligation to respect workers’ right to freedom of association and collective bargaining. See id. at paras. 66-67.
Principle 11 addresses protections for “[w]orkers, whistleblowers and human rights defenders…from intimidation, threats and other reprisals.” See id. at para. 70. The report calls on States to implement national protection programs for workers, human rights defenders, and whistleblowers to report threats or reprisals by employers. See id. at para. 72.
Principles on Effective Remedies
The final four principles address the right of workers, their families, and communities to access effective remedies. See id. at para. 73. In the context of Principle 12, an “effective” remedy is one that is available at the time of exposure and provides “reparation for harms suffered, including health care, compensation, guarantees of non-repetition and adequate training for rehabilitation, reinsertion and reasonable accommodation.” See id. at para. 76. The Special Rapporteur further clarifies that placing the burden of proof on those affected by toxic substances may limit their ability to access an effective remedy. See id. at para. 84. According to Principle 13, States must ensure that employers bear the burden of “disproving concerns with reasonable certainty.” See id. at para. 87.
As a type of effective remedy, Principle 14 calls on States to criminalize “[a]cts or omissions” by businesses or individuals that expose workers to toxic substances. See id. at paras. 89-91. While the Special Rapporteur acknowledges that criminal liability should not be the “primary or only means of enforcement,” he asserts that criminal liability can be an important deterrent that may also help advance accountability and the “fight against impunity.” See id. Finally, Principle 15 urges States to provide accountability and redress mechanisms for “cross-border” cases, noting that “[j]ust as duties and responsibilities to protect and respect extend across borders (principle 5), so too should accountability.” See id. at paras. 92-96.
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