Right to Information on Hazardous Substances and Wastes

Summary of the Report of the Special Rapporteur on the implications for human rights of the environmentally sound management and disposal of hazardous substances and wastes, Mr. Baskut Tuncak (A/HRC/30/40)

The report is available in all UN languages here.

In his 2015 report, the Special Rapporteur clarifies the scope and content of the right to information throughout the life cycle of hazardous substances and wastes and identifies several challenges that have emerged in realizing this right—as well as potential solutions to these problems. He discusses several obligations of States and the responsibilities of business in relation to implementing the right to information on hazardous substances and wastes.

The Special Rapporteur emphasizes that the right to information on hazardous substances and wastes is central to the enjoyment of human rights and fundamental freedoms. He argues that information should be available, accessible and functional for everyone, consistent with the principle of non-discrimination.

Human Rights Implications of the Right to Information on Hazardous Substances and Wastes

People have a right to know whether they are being exposed to hazardous substances. Yet, whether in consumer products, food or other sources of exposure, information is not available or accessible. Over the past several decades, tens of thousands of different hazardous substances have been used by businesses with inadequate information on their properties and uses, as well as their fate as waste, to assess their impacts on human rights. The right of victims to an effective remedy, the right to meaningful participation, the right not to be subject to experimentation without consent, the right to the highest attainable standard of health and several other human rights have all been frustrated by large information gaps throughout the life cycle of substances and wastes.

Today, we are in the midst of an on-going global public health crisis due to hazardous substances. It is estimated that 62% of the volume of chemicals produced by industry are toxic. Time and time again, a chemical is produced and used for ten, fifteen sometimes twenty years before information becomes public that it can cause cancer or other serious and irreversible adverse effects. The number of hazardous substances used by industry around the world is unknown, but conservative estimates suggest over 2,000 different hazardous substances are produced, traded, used by workers, and in one manner or another, disposed.

Rates of cancer, diabetes and other illnesses linked to the production and use of hazardous substances have been on the rise over the past several decades. For example, over the past 17 years, there has been a twenty percent increase in childhood cancers; a twenty percent increase that cannot be explained by lifestyle choices or genetics alone. Children are now suffering from types of diabetes that in years past were only seen in adults. Breast cancer rates skyrocketed 40 percent in two decades. These and other diseases have been linked to the increased production and use of toxic chemicals. Children, minorities, indigenous people, workers, low-income communities and others are often exposed to higher levels of toxic chemicals, and all too often suffer disproportionately.

Although decades of insufficient action to prevent harm make the task today complex and perhaps overwhelming, solutions exist or can be developed to protect human rights. Central to these solutions is both the right to information and the responsibilities of businesses. As part of their human rights due diligence, business have a responsibility to develop and use less-hazardous chemicals, materials and production processes. Safer alternatives can be developed—but information must be available, accessible, functional and non-discriminatory in order to do so.

Today, information is neither available nor accessible about, inter alia, the safety of tens of thousands of chemicals on the market; the potential sources of exposure to substances with known and unknown hazards; the amount of human exposure to hazardous substances; and the impacts of exposure to a large number of hazardous substances starting from conception. According to reports by certain governments, 85% of industrial chemicals are approved for production and use without any health or safety information. Legislation presents a paradox in some cases, where regulators must first prove there is an unreasonable risk due to a chemical substance in order to ask the chemical’s manufacturer to provide necessary health and safety information in order for regulators to determine whether or not there is a risk. The public is aware that carcinogens and other hazardous substances are being manufactured, but claims of confidential business information can prevent the public from knowing the identity of the hazardous substance, or where it is used, produced or released. Consumers typically don’t know which products contain hazardous substances, even when chemical identities are provided.

Workers are among the most vulnerable given their high-levels of exposure, yet stories abound of the failure to realize their right to information about hazardous chemicals in the workplace, necessary to realize their right to a safe working conditions.

To protect human rights affected by hazardous substances, States are duty-bound to generate, collect, assess and update information; effectively communicate such information, particularly to those disproportionately at risk of adverse impacts; to ensure confidentiality claims are legitimate; and to engage in international cooperation to ensure that foreign Governments have the information necessary to protect the rights of people in their territory.

In discharging their duty to conduct human rights due diligence, businesses are responsible for identifying and assessing the actual and potential impacts of hazardous substances and wastes, either through their own activities or as a result of their business relationships; to communicate information to other businesses, governments and the public effectively.

Last year, a series of massive chemical explosions claimed the lives of 173 people in Tianjin, China. This disaster serves as yet another tragic example of the need of information about hazardous substances to protect, respect and realize human rights. Information about the dangerous chemicals stored may not have been made available and communicated to the residents living nearby and to governmental entities tasked with protecting the public. Availability and accessibility of information on dangerous chemicals are essential to prevent or mitigate such disasters. For instance, firefighters may be at risk and may lose their lives if they do not know which chemicals are being stored and thus how to safely extinguish a fire. Firefighters may unknowingly spray water on chemicals that are explosive on contact with water, causing a chain reaction that can trigger large chemical disasters.

More than thirty years have now passed since the catastrophe in Bhopal, India claimed the lives of several thousands of people living near a chemical factory. Although Bhopal sparked laws and voluntary business initiatives to make information available and accessible to prevent such disasters in certain countries, it is clear that lessons of that disaster have still not been fully learned. The continuing recurrence across the world of industrial disasters involving toxic chemicals shows the urgent need to elevate global laws and standards to protect human rights from hazardous substances and wastes. The weak patchwork of global treaties for hazardous substances and waste is by no means sufficient for the task at hand.

Information on risks, mitigation measures and safer alternatives can help prevent harm and save lives from premature deaths due to hazardous substances. On the other hand, information gaps create a fundamental impediment to realizing several human rights. For instance, lack of information and lack of consent to be exposed to substances and their risks affect the individual’s right not to be subjected without free consent to medical or scientific experimentation. Additionally, Information gaps regarding hazardous properties, uses and exposure to hazardous substances create additional uncertainties and unknowns that can obstruct access to an effective remedy for victims.