26 March-8 April 2015
In my capacity as the United Nations Special Rapporteur on human rights and hazardous substances and wastes, I undertook an official country visit to the Republic of Kazakhstan, at the invitation of the Government, from 26 March to 8 April 2015. The purpose of the mission was to assess steps taken by the Government of Kazakhstan to protect the human rights implicated by the management of hazardous substances and wastes.
I wish to emphasize at the outset that these are only preliminary observations. A full report of the mission, which will contain comprehensive analysis of the situation and recommendations from a human rights perspective, is expected to be prepared and submitted to the Human Rights Council at its 30th session in September of 2015.
I would like to begin by thanking the Government of Kazakhstan for the invitation to visit the country and its efforts in facilitating meetings with authorities and relevant stakeholders. I met with over a dozen national government agencies and departments; relevant local authorities in Almaty, Atyrau, Ust-Kamenogorsk and Karaganda; members of the Parliament, the Supreme Court and Prosecutor General’s Office; Office of the Ombudsman for Human Rights; and the private sector. I am grateful for those who took the time to meet with me during the course of this mission, and the frank and open discussions I shared with Government and industry alike.
I also want to thank the United Nations Country Team in Astana for providing support before and during the mission. And, last but not least, I would like to express my appreciation for members of the civil society organizations, social movements and community members who shared their problems, difficulties and aspirations toward the full realization of all human rights implicated by the management of hazardous substances and wastes.
Kazakhstan’s Constitution requires the Government set an objective to protect the environment so that it is “favourable” to the “life and health” of the person. This, in my view, is an essential provision. I also applaud Kazakhstan for ratifying most global treaties for human rights, as well as global and regional treaties for chemicals management that are currently in force. Under these international human rights treaties, the Government has an obligation to realize the right to the highest attainable standard of health, considering the dangers and risks of environmental pollution. Most stakeholders agreed that the existing legislation in Kazakhstan for hazardous substances and waste is generally adequate.
These are important legal obligations that I commend the Government for putting in place, which I believe reflects the Government’s aspirations to achieve a cleaner, more sustainable future. In addition, the Government has made several political declarations and begun various initiatives and dialogs that are premised on protecting human rights, including the global objective to achieve the sound management of hazardous substances and wastes by the year 2020.
Kazakhstan is unquestionably a land with substantial natural resources. These include substantial reserves of oil and gas, coal, uranium, and metals and minerals, such as lead, zinc, copper, gold and asbestos. Substantial refinery operations, as well as metallurgy, chemical production, and uranium processing facilities exist in Kazakhstan, supplying major economies around the world. Production is expected to increase in the short-term for most, if not all, of these industries on which the economy of Kazakhstan relies heavily.
However, these resources present both economic opportunities as well as considerable risks to people living in Kazakhstan. There seems to be evidence in every city I visited of a high-likelihood of human rights impacts caused by hazardous substances released from the extraction of natural resources, downstream processing, manufacturing activities, and the disposal of waste. In my visits around the country I have seen mountains of hazardous waste, cities engulfed in air pollution, houses coated in dust from industrial activities, and heard numerous stories of illegal radioactive and hazardous waste dumpsites.
The mismanagement of chemicals and wastes implicates numerous human rights — economic and social, as well as civil and political. Given the government’s aspirations for economic growth primarily based on exploitation of these resources without fully implementing a robust system for the sound management of hazardous substances and wastes, I am deeply concerned that the people residing in Kazakhstan are in the midst of a high-risk situation.
At the outset, I would like to note three over-arching issues of serious concern before delving into more specific details of my findings. I offer these comments in hopes of accelerating Kazakhstan’s path towards the sound management of hazardous substances.
First, although a generally adequate legal framework is in place, there is consensus that the environmental legislation in Kazakhstan is not being properly implemented, complied with, or enforced. This raises the question of the political will of the Government to protect human rights from hazardous substances and wastes.
Second, from my discussions with all stakeholders, I observed that protecting human rights through the sound management of hazardous substances and wastes is of low priority in Kazakhstan’s development agenda. I was given the impression that economic growth—even at the expense of human rights violations—often take precedence. I wish to reiterate that economic development and the realization of human rights are compatible, and this approach provides a path to sustainable development.
Third, there needs to be a stronger and more effective mechanism to protect people who are most at risk, especially children, workers and those living in industrial cities, from the various threats to life and health that are present in their environment.
With these general observations, I would like to note a few more specific observations.
The right to access information
Information is fundamental to guarantee numerous human rights, and a foundation for any regime to manage hazardous substances and wastes. It is necessary to enable free, active and meaningful public participation; to understand the severity of impacts on human rights by hazardous substances; and to realize the right to an effective remedy. In my view, in Kazakhstan there appears to be a systematic and wide-spread deficiency in: (1) generating information on pollution in the environment that threatens human rights, in particular the right to health; and (2) enabling public access to information in a manner that allows people to defend their rights.
For example, I heard from the father of a victim in Berezovka who’s son was evaluated eight times for certain toxic substances in his hair, blood and nails to explain the incidence of seizures, nausea and headaches, but could not access the resulting information. Dozens of children have suffered from similar episodes of seizures and other adverse health effects following the recent release of a large and unauthorized volume of a highly poisonous gas (hydrogen sulphide) from an oil and gas field next to the small town of Berezovka.
There is an overwhelming reliance on industry generated data, with limited measures in place to ensure the veracity of such information and to provide public access to such data. As a result, there is widespread public distrust of available information, and concern that relevant health and safety information is shrouded by claims of confidentiality by industry. The extent of the problem in one crowded industrial district has driven one or more companies to finance a public monitoring initiative to prove that they are not the source of emissions when faced with allegations of being the polluter responsible.
Although the government has ratified the Aarhus Convention, it has not ratified the Kiev Protocol on Pollutant Release and Transfer Registers (PRTR Protocol), which could help realize the right to access information in several respects.
The right to free, active, meaningful participation
I heard numerous statements that the consultations are more of a formality, and not an opportunity for meaningful participation. For example, the integrity of environmental impact assessments (EIAs) for development projects, on which public consultations are conducted, was repeatedly questioned. Without accurate information in EIAs, the public is not afforded an opportunity to consider risks and modify the project plans to address their concerns. EIAs, prepared by the private sector, do not appear to be subject to any systematic investigation by the Government.
In addition, there were troubling allegations of civil society members being unable to gain access to public consultations. One of the most serious cases seems to be the arrest of several environmental advocates before a public hearing this year, allegedly to prevent them from participating.
Additionally, I encourage the government to increase the participation of civil society organizations in the ongoing drafting of revisions to the 2007 Environmental Code.
The right to an effective remedy
I was deeply troubled by the number of people in Kazakhstan living in high-risk areas who are unable to relocate to protect themselves and their rights. These so-called “sanitary protection zones” or SPZs are located around industrial facilities, locations where natural resources are extracted, or where hazardous waste disposed. People who live in and around such locations require relocation to have access to an effective remedy for the denial of their right to health, housing, safe drinking water and food, an adequate standard of living and others. Community members are literally stuck, unable to sell or improve their houses and waiting many, many years for relocation, while continuing to be exposed to toxic substances and other potential hazards. People living in Berezovka, Kalachi and countless other communities should not have to wait several years for someone to prove the cause of the adverse effects they are suffering from in order to have an effective remedy.
Furthermore, penalties imposed on polluting industries should be directed to compensating victims, remediating contamination, preventing the reoccurrence of violations, and other directly relevant aspects of an effective remedy in a transparent manner. It appears that the government could improve its transparency in this regard.
As mentioned, the Government has a Constitutional requirement to have an objective of protecting the environment so that it is favourable to life and health. Recently, the Ministry of Energy took over the roles and responsibilities of the Ministry of Environment, which no longer exists. Furthermore, key functions of the Ministry of Health responsible for protecting human health from environmental pollutants were transferred to the Ministry of Economy. The objectives of the Ministry of Energy and the Ministry of Economy are closely linked given the dependence of the Kazakh economy on extractive industries, industries with inherent risks to human health and the environment. The Government’s explanation for this reorganization was the need for greater efficiency. However, in my view, there is a risk that increased efficiency will come at the costly expense of human health and the environment by enabling unchecked energy production in pursuit of economic development. In addition, there does not appear to be designated focal point for human rights and the sound management of hazardous substances and wastes to help decrease the challenges created by a fragmented governance structure.
Business and human rights
The dynamic of both large, multi-national corporations and state-owned enterprises raises several issues for how the Government engages with these businesses to protect and respect human rights. Although some improvements are noted for a few companies in Kazakhstan, it has been brought to my attention that a high number of companies operating in the country, across a range of industries, do not always employ best environmental technologies or practices. It has also been raised that double-standards exist, where certain corporations do not employ available technologies to mitigate environmental emissions and thus respect human rights in Kazakhstan despite using these technologies elsewhere.
Rule of law
It is apparent that strengthening the rule of law is necessary. Several cases were brought to my attention where courts have found violations of environmental laws, but the court’s decision to remedy, for example by taking measures to protect at risk individuals, has not been enforced. As mentioned above, the implementation and enforcement of existing legislation is a serious problem. Various sources noted moratoria on the inspection of small and medium-sized enterprises (SMEs) for compliance with environmental laws designed to protect human rights, additional evidence that economic interests take precedence over protecting human rights from hazardous substances.
I recognize that Kazakhstan, although deep in history and tradition, has a relatively young government. It does have an impressive record of economic growth and the proven ability to tackle many challenges. While I realize that these preliminary observations emphasize areas for improvement, I would like to again also emphasize that I offer them in hopes of accelerating a constructive path towards the sound management of hazardous substances in Kazakhstan. Better technologies and cleaner processes exist, and can be realized with political will and the cooperation of all stakeholders, with a shared objective of sustainable development and protecting human rights.
Protecting human rights from hazardous substances and wastes is a local, national, regional and global challenge. People in Kazakhstan have a right to healthy environment. Let’s move forward towards realizing this right for present and future generations.
We are all in this together. I hope this constructive engagement will continue to increase in the years to come, in particular with respect to enabling the active engagement of the civil society in working together with the Government to protect the rights of people in Kazakhstan. The time is now for aspirations to turn into action – toward the realization of human rights.
I will present in more detail of my analysis, assessment of the situation and recommendations in the near future.