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Upcoming Canadian Country Visit of the Special Rapporteur on Human Rights and Toxics

 By Associate Professor Sara Seck and JD candidate Meg Williams, Schulich School of Law, Marine & Environmental Law Institute, Dalhousie University.

It has just been announced that the UN Special Rapporteur on human rights and toxics, Baskut Tuncak, will conduct an official country visit to Canada from 24 May to 5 June 2019. The Special Rapporteur has issued an invitation to all interested individuals and organizations in Canada, including civil society organizations, activists, and academics, to submit information that they consider relevant in preparation of this visit by 15 April 2019 to srtoxicwaste@ohchr.org. The information may be sent in English or French and must not be longer than 10 pages. The call for submissions is now online and is available in both English and French. The Special Rapporteur is interested in receiving information on “human rights and and exposure to toxic substances and wastes in Canada, including on pollution, contamination, occupational diseases linked to toxic exposures, toxic consumer products, and other sources of exposure to hazardous substances and wastes.” He has also expressed interest in receiving information on “cases concerning activities of Canadian businesses operating abroad.” Among priority concerns are “circumstances involving toxic exposures of children, indigenous peoples, workers, low income communities, and other groups at high risk.” Information on legal frameworks for the regulation of human rights and toxics in Canada is also invited, as well as contact information for organizations and civil society representatives who wish to meet with him during the country visit.

In our last blog post, we reflected on recent work of a different United Nations Human Rights Council Special Rapporteur, the Special Rapporteur on human rights and the environment, and drew attention to the 2018 Framework Principles on Human Rights and the Environment and its implications for local environmental justice concerns. In light of the upcoming visit by the Special Rapporteur on Toxics, we will consider a selection of his reports, building on our previous consideration in an earlier blog post of Mr. Tuncak’s 2015 report on the right to information. Specifically, this post will focus on Mr. Tuncak’s 2016 report on The Rights of the Child and Hazardous Substances and Wastes (2016, A/HRC/33/41), as well as his  2018 report on the The Rights of Workers and Toxic Chemical Exposure (2018, A/HRC/39/48), while also referring to the 2017 Guidelines to Good Practices (2017, A/HRC/36/41).

Mr. Tuncak assumed the mandate as the Special Rapporteur on Toxics in 2014, taking over from the previous Special Rapporteur, Mr. Calin Georgescu. The UN Human Rights Council mandates the Special Rapporteur to provide comprehensive and current information on the impacts of hazardous substances on human rights, and covers all hazardous substances and wastes that are used, produced and released by human activity. Mr. Tuncak’s 2014 mandate reaffirms the commitments of the 2012 mandate of Mr. Georgescu which notably calls for the monitoring of not only States but also “transnational corporations and businesses enterprises in connection with the environmentally sound management and disposal of hazardous substances and wastes” (para 2(a)). As a result, Mr. Tuncak’s reports pay close attention to the responsibilities of business enterprises in regards to the issue of toxics and human rights.

Mr. Tuncak’s 2016 report focuses specifically on childhood exposure to toxic substances and the resulting human rights impacts. The report examines how children’s rights are violated by State and business actors through exposure to toxic chemicals and pollution. Mr. Tuncak describes the impacts of toxics and pollution as the “silent pandemic” as children are born “pre-polluted” resulting from maternal exposure that continues after birth and into childhood (para 5). He takes notice that children of low-income, Indigenous, or marginalized communities are at greater risk to exposure, leading to questions of environmental racism that undermine equality and non-discrimination (para 6). The report recognizes that the impacts of toxics and pollutants on children are affected by their familial, communal, and environmental situation.

The Convention on the Rights of the Child provides guiding principles for State obligations in preventing childhood exposure from toxics and pollutions, and Mr. Tuncak elaborates upon eleven State obligations in his report. These include implementation of the best interests of the child framework (para 19-21) as well as the right to be heard (paras 22-26), the right to life, survival and development (paras 27-28), the right to physical and mental integrity (paras 29-38), the right to effective remedy (paras 39-43), the right to the highest attainable standard of health (paras 44-48), the right to a healthy environment (para 49), the right to adequate standard of living (para 50), the right to non-discrimination (paras 51-53), the right to be free from the worst forms of child labour (paras 54-56), and the right to information (paras 57-61). The report observes that “toxics released into air, wind and water can directly or indirectly lead to childhood exposure, impacting on the child’s right to health.” (para 49). In this sense, children are not treated as bounded autonomous individuals but instead are understood as embodied beings who are inseparable from the environments in which they live.

The 2016 report also considers the business responsibility to prevent the exposure of children to toxics. Businesses are to undertake human rights due diligence to prevent childhood exposures (paras 75-78), to prevent toxic exposure at all points in business activities (paras 79-89), to ensure responsible business relationships (paras 90-97), and to ensure effective remedy through non-recurrence, rehabilitation, and compensation (paras 98-106). Notably, Mr. Tuncak links business activities and industrialization to toxics and pollutants in the environment, and in turn to the adverse effects on children. However, this report does not link labour and employment conditions, and the exposure of workers, to childhood exposure, an issue that is taken up in subsequent reports.

 In 2017, Mr. Tuncak released a Guidelines for Good Practices report in response to the disparities existing within and among countries in reducing the impacts of hazardous substances. The Guidelines acknowledge both the duties of States and the responsibilities of businesses in addressing these disparities. The Guidelines highlight the foundational obligation of States to “respect, protect, and fulfill recognized rights implicated by the production, use, release, storage and disposal of hazardous substances and wastes” (para 4), including the rights of those impacted by transboundary and transnational harms. Additionally, the report confirms that special attention is required with regard to the rights of vulnerable populations, including low-income communities, children, workers, older persons, Indigenous peoples, minorities, post-conflict communities, and vulnerable genders. With regard to businesses, the Special Rapporteur confirms that “virtually all businesses bear some responsibility” (para 81) to respect the human rights that are impacted by their activities, supply chains, products, policies, procedures, and business relationships. He notes that due diligence is fundamental to this responsibility, and then outlines a number of responsibilities of businesses in regards to reducing human rights impacts of toxics. These include the duty of businesses to identify and assess the potential human rights impacts of their activities. Importantly, this means that businesses must “go beyond mere compliance with existing legislation and regulations” (para 83) which is usually behind compared to rapid industrial sector expansion. Second, businesses have the responsibility to prevent and mitigate the impacts on human rights. Prevention of impacts is most effectively achieved through the elimination of hazardous substances from business activities while mitigation should occur immediately, even before the State gives orders to do so. The third responsibility outlined is the duty to account for efforts to address the impacts on human rights. This involves publicly communicating information about the risks created by business activities as well as mitigation plans to address the actual and potential impacts involved.

While the 2017 Guidelines Report focuses briefly on the rights of workers, the 2018 report “The Rights of Workers and Toxic Chemical Exposure” is devoted to this issue, and proposes principles to guide State and non-State actors in protecting workers from toxic occupational exposures and to provide remedy for rights violations. The report examines the human rights of workers affected by their occupational exposure to toxic and hazardous substances, a summary of the current challenges facing workers globally, and proposed principles to respect and protect the rights of these workers (para 10). He notes that worker’s rights and human rights are “interrelated, indivisible and universal” (para 14) in that no worker can be deprived of their civil, political, economic, social or cultural rights based on the work that they perform (para 14). The Special Rapporteur also examine the challenges in realizing the rights of workers affected by toxic substance exposures. These challenges include inadequate standards of protection (para 38), limited progress in preventing exposure (paras 39-41), poor monitoring and enforcement gaps (para 42), the exploitation of those most at risk, including those living in poverty (paras 45-46), women (para 48), children (paras 49-50), migrant and temporary workers (para 51-52), workers with disabilities (para 53), and older worker (para 54).  Additionally, the report notes the challenges introduced by the informal economy (para 55), the deliberate efforts to delay or obstruct protection (paras 56-58), the opaque nature of supply chains (paras 59-60), the disconnected efforts on occupation and environmental health (para 61), failures to realize the right to information (paras 62-66), limited implementation of ILO instruments (paras 67-68), restrained freedom of association (para 69), and inaccessible remedies, justice, and accountability (paras 70-71).

Following an examination of the current state of workers’ rights in light of exposure to toxic substances, and challenges for realizing such rights, the Special Rapporteur proposes 15 Principles to assist States, businesses and other stakeholders to protect, respect, and fulfil the human rights of workers who have been victims of occupational exposures to toxic and hazardous substances (para 73). These are grouped into three subsections: (A) Principles on duties and responsibilities to prevent exposure, (B) Principles regarding information, participation and assembly, and (C) Principles regarding effective remedies. Without going into detail on the 15 Principles, some are worth further reflection. For example, Principle 7 acknowledges that protecting workers from exposure to toxic substances will in turn protect their families, their communities and the environment. Additionally, Principles 13 and 14 recognize the importance of considering the burden of exposure on workers’ families.

These principles, together with the observation in the 2016 report on Children’s Rights that “toxics released into air, wind and water can directly or indirectly lead to childhood exposure, impacting on the child’s right to health” suggest an awareness that individuals, whether adults or children, should not be viewed as surrounded by impermeable boundaries that are capable of protecting individual autonomy from the toxins that exist in workplaces and local environments. This need to move beyond an understanding of the worker as a bounded autonomous individual is something that I have explored in a recently published article in the Canadian Journal of Law and Society entitled Transnational Labour Law and the Environment: Beyond the Bounded Autonomous Worker.* There, I suggest that reconceptualizing the worker as a relational being, rather than a bounded autonomous citizen, may help to bridge labour and environmental law, two disciplines that too often operate in silos.

Currently, the focus of international and transnational labour law is primarily on workers and their rights so that they may work without fear and with the assurance of a sustainable livelihood. However, I propose that it may be helpful to reframe transnational labour law to better embrace environmental rights. For example, we might reimagine the individual worker as a corporeal citizen who is embedded in a material environment, and so better appreciate that workers and children exposed to toxics arising from industrial activities cannot be viewed as autonomous individuals separate and distinct from families, communities, and environment. This holistic approach reinforces the interdependent duties of both States and businesses to protect both workers and the environment in which they and their families live. As I observe in my article, signs of such a conceptual shift are evident in a 2015 study by UNICEF which recognizes that the rights of children of predominantly female garment workers in Bangladesh were affected by the working and living conditions of the garment worker through impacts relating to the conditions inside and outside of the factory. This focus on the worker as a family and community member, and specifically their role as a parent, aligns with the Special Rapporteur’s reports on Children’s Rights and the Rights of Workers which, in light of their focus on toxic substances, illustrate a shift from thinking of the worker as an autonomous bounded individual to viewing the rights of workers as interdependent with rights to live in a clean and healthy surrounding environment.

The upcoming Canadian country visit by the UN Special Rapporteur on Toxics provides an opportunity to reflect upon these issues and, more pressingly, to take action to prevent and remedy harms. For further information on previous country visits by other UN human rights Special Rapporteurs to Canada, as well as other human rights reviews, see here. For outcome reports of other country visits by the UN Special Rapporteur on Toxics, see here.

*Sara L Seck, “Transnational Labour Law and the Environment: Beyond the Bounded Autonomous Worker” (2018) 33:2 Canadian Journal of Law & Society 137-157, published online 5 September 2018, https://doi.org/10.1017/cls.2018.15

 Featured image: Anna Grear

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Swiss climate case rejected, could proceed to Federal Supreme Court next

Zurich, Switzerland, 7 December 2018 – In conflict with overwhelming scientific evidence, the Swiss Federal Administrative Court has ruled that women over 75 years old are not more impacted by the effects of climate change than other population groups. The court rejected a case led by the group Senior Women for Climate Protection Switzerland and four individual complainants [1]. The decision prevents senior women and other vulnerable groups from demanding the protection of fundamental human rights threatened by climate change.

The group of more than 1100 senior women now has 30 days to take the case to the highest court in Switzerland, the Federal Supreme Court.

In response, Rosmarie Wydler-Wälti, co-president of Senior Women for Climate Protection, said, “I am shocked that the Federal Administrative Court failed to recognize the special health concerns older Swiss women face as a population highly vulnerable to climate change. The decision completely failed to consider the heightened health risks senior women face in a warming world [2]. As older women are hospitalized and even dying due to climate-induced heat waves, we demand a proper legal examination of the current and ongoing violations of our rights to life and health.”

 Georg Klingler, climate expert from Greenpeace Switzerland, has supported the Swiss seniors’ case from the beginning. He added, “The Paris Agreement explicitly affirms the importance of human rights in climate protection. If the Federal Administrative Court’s decision stands uncontested, the Swiss government would be free to ignore human rights in its climate actions. As the UN High Commissioner for Human Rights Michelle Bachelet recently explained, climate change is already affecting people’s lives and the enjoyment of human rights, particularly for vulnerable communities. Governments have an obligation to to step up their commitments to action in order to avoid the worst impacts of climate change [3].”

The link between climate change and human rights also weighs heavily in the recent Urgenda vs. The Netherlands decision, in which a Dutch court defined minimal obligations of the state to act on climate change and protect human rights [4].
Notes:
[1] Link to decision (in German): https://klimaseniorinnen.ch/wp-content/uploads/2018/12/Scan_urteil-BvG_20180512.pdf
[2] The 2018 report of the Lancet Countdown on health and climate change: shaping the health of nations for centuries to come, published online on 28 November 2018 http://dx.doi.org/10.1016/S0140-6736(18)32594-7, see page 6.
For detailed information on the scientific and legal basis of the case, see C Bähr, U Brunner, K Casper, S Lustig, ‘KlimaSeniorinnen: lessons from the Swiss senior women’s case for future climate litigation’ (2018)  9 Journal of Human Rights and the Environment 194, available at: https://www.elgaronline.com/view/journals/jhre/9-2/jhre.2018.02.04.xml.
[3] UN High Commissioner for Human Rights Michelle Bachelet, Open Letter, 21 November 2018, available at: https://www.ohchr.org/Documents/Issues/ClimateChange/OpenLetterHC21Nov2018.pdf
[4] For more details about Urgenda v. The Netherlands, see: https://www.urgenda.nl/en/themas/climate-case/

History of the case:

See also article published in september 2018 in the Journal for Human Rights and the Environment: https://www.elgaronline.com/view/journals/jhre/9-2/jhre.2018.02.04.xml

In November 2016, Senior Women for Climate Protection filed a legal request with the Federal Department of the Environment, Transport, Energy and Communications (DETEC) and other federal authorities, calling for greater climate ambition in order to protect their fundamental rights to life and health. After the authorities rejected the request, the group filed an appeal with the Federal Administrative Court. The Federal Administrative Court has now rejected the appeal, using the flawed reasoning that everyone is impacted by climate change and thus the senior women do not have a right to have their case heard.

Contacts:
Kristin Casper, Litigation Counsel, Greenpeace International, +1 720 917-8498, kristin.casper@greenpeace.org

Rosmarie Wydler-Wälti, Co-president, Senior Women for Climate Protection, +41 79 567 67 73, rosmariewydler@sunrise.ch

Ursula Brunner, Legal Counsel, Senior Women for Climate Protection, +41 79 293 0282 / 43 377 66 88, brunner@ettlersuter.ch

Cordelia Bähr, Legal Counsel, Senior Women for Climate Protection, +41 78 801 70 34, baehr@ettwein.ch

Georg Klingler, Climate Expert, Greenpeace Switzerland, +41 79 785 07 38, gklingle@greenpeace.org

Feature image: Anna Grear

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Carbon Majors inquiry – London hearings and student competition

The London hearings of the Carbon Majors inquiry http://essc.org.ph/content/nicc/ will take place this week at the London School of Economics.

Joana Setzer and Annalisa Savaresi have written a short blog post on what to expect from the hearings. The blog includes information on how to follow the live webcast. You can access the blog here: http://www.lse.ac.uk/GranthamInstitute/news/the-carbon-majors-inquiry-comes-to-london/

The hearings will conclude on Thursday 8th November with a public debate, where Commissioner Cadiz, Luke Harrington, Kristin Casper, Joana Setzer, Stephen Humphreys and I will reflect on the theme of ‘Human Rights and Climate Change’. You can find the details on how to attend here:  http://www.lse.ac.uk/GranthamInstitute/event/human-rights-and-climate-change/.

A recording of the event will be available here: http://www.lse.ac.uk/lse-player?category=public+lectures+and+events

At the event,  a student competition to support the drafting of the Philippines Human Rights Commission’s recommendations will be launched. The competition is supported by the Institute of Environmental Science for Social Change in the Philippines, the London School of Economics and Political Science, and the University of Stirling. Details of the competition are available here: http://essc.org.ph/content/student-competition

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Urgenda Climate Change Judgment Survives Appeal in the Netherlands

By Jonathan Verschuuren

This blog post was originally published on the Tilburg University Environmental Law Blog

Today, the Higher Court in the Dutch city of The Hague rendered its judgement in the Urgenda case. As explained here, in 2015, the District Court decided that the Dutch State acted negligently and therefore unlawfully towards the environmental NGO Urgenda by implementing a policy aimed at achieving a GHG emissions reduction for 2020 of less than 25% compared to the year 1990. The government of the Netherlands appealed the case mainly because it objected against the interference by the court with the content of government policies which should be discussed in Parliament rather than in Court, following the principle of separation of powers.

Climate change impacts affect the enjoyment of human rights: courts have to intervene

In another sensational judgment, the Higher Court today rejected all objections by the State in firm and straightforward language. The Higher Court stated that there is an imminent and real danger that the right to life and the right to private and family life as protected under the European Convention of Human Rights (Articles 2 and 8 respectively) will be infringed by climate change impacts. To reach this conclusion, the Higher Court, like the District Court in 2015, follows IPCC reports, but also resolutions adopted on all UNFCCC COPs of the past decade, which all indicate that the COconcentration in the atmosphere has to remain within the 450ppm limit or even within a 430ppm limit if the 1.5 degree target were to be observed. The Higher Court briefly summarized the impacts that are considered certain when global average temperatures reach 2 degrees Celsius (No. 44)

The State is obliged, under this human rights treaty, to take protective action. When so asked by individuals or NGOs, courts are obliged to test government actions (including policies) against human rights. So no infringement of the principle of separation of powers, on the contrary: testing government actions against human rights belongs to the core of the power of courts. By only setting the required outcome of policies (at least 25% emissions reduction by the end of 2020), the court leaves it up to the Cabinet and Parliament to discuss through which policy interventions this aim will be achieved.

In remarkably clear language, the Higher Court rejects all objections that the State had brought forward and which resemble arguments brought forward in many of the other climate litigation cases across the world. I will deal here with the most relevant ones:

Uncertainty and precautionary principle

The State argued that climate change impacts are too uncertain a basis for claims like the one by Urgenda. Here, the Higher Court invokes the precautionary principle. The Higher Court stressed the importance of the precautionary principle, which it considers a binding principle in cases like these (referring to the text of the UNFCCC and the 2009 Tatar case decision of the European Court of Human Rights). Opposite to what the State argues, it is precisely the uncertainty (especially with regard to the existence of dangerous tipping points) that requires the State to have proactive climate policy (No. 73).

Causal link

Many cases elsewhere were unsuccessful because of a lack of causal link between the government policy on the one hand and climate change impacts on the other. In this case, the Higher Court argues that causality is less of an issue as no damages have been claimed, just an order to implement a certain policy. In that case, it “it suffices (in brief) that there is a real risk of the danger for which measures have to be taken. It has been established that this is the case.” (No. 64).

Relationship to EU policies

The State argued that it has to follow and is following EU laws and policies and cannot be required to do more as within the EU, climate laws have for a large part been harmonized. The Court rejects this statement by referring to the latest Dutch policy goals for 2030, which aim at 49% reduction, which is more than the current EU target for that year. If the State wants to do more than the EU in 2030, it cannot argue that it cannot do more in 2020. Furthermore, the State did not substantiate its claims that having a stricter policy in place than that required by the EU harms the level playing field for Dutch companies. (Nos. 57-58)

Relationship to adaptation measures

According to the Dutch government, the Court should have taken into account the adaptation policies that have been put in place to protect the Dutch population against climate change impacts. This argument was rejected too. The Higher Court considers it unlikely that all severe climate change impacts can be dealt with through adaptation measures. (No. 59)

Interdependence policies other countries

The Dutch government also indicated that avoiding dangerous climate change impacts requires strict policies to be adopted across the world: since it cannot influence these domestic policies abroad, the Netherlands cannot be required to reduce emissions on its own. The Higher Court simply rejects this by referring to the special position of the Netherlands as a rich, developed state, that has gained much of its wealth through extensive use of fossil fuels. Quite humorful, it adds: “Moreover, if the opinion of the State were to be followed, an effective legal remedy for a global problem as complex as this one would be lacking. After all, each state held accountable would then be able to argue that it does not have to take measures if other states do not so either. That is a consequence that cannot be accepted, also because Urgenda does not have the option to summon all eligible states to appear in a Dutch court.” (No. 64) There was an outbreak of laughter in the Court room after the latter sentence was spoken by the president of the Higher court!

2020:  too short notice

Drastic policy changes like the one ordered by the Court in first instance are unattainable, we need more time. This argument used by the State in appeal was rejected too. The Higher Court simply refers to the fact that the State was aware of the IPCC reports dating back to 2007, and even, originally, had a much stricter policy in place for 2020. That policy, however, was changed in 2011, following elections. It now comes back as a boomerang!

Role of future generations

In the 2015 Court judgment, the Court indicated that the State also acts unlawful towards future generations. In today’s judgment, the Higher Court does not repeat this, but instead argues that human rights infringements are imminent already for current generations, so there is no need to also go into the question whether legal obligation towards future generations exist. (No. 37)

Today the Dutch Higher Court followed the bold move by the District Court in the world’s first successful climate litigation case of Urgenda. That first judgment of 2015 has sparked many initiatives across the world to start similar proceedings. The decision in appeal shows that the legal arguments used are valid. The new decision will, in my view, therefore, further boost global climate litigation.

Feature image: Dina Townsend

 

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New edition of the JHRE

The latest edition of the Journal of Human Rights and the Environment is now out! The theme of the edition is Indigeneity, Human Rights and the Environment:

You can read more about this latest edition (including two open access articles here)

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