Statement of the Special Rapporteur on the implications for human rights of the environmentally sound management and disposal of hazardous substances and wastes at the 33rd session of the Human Rights Council

15 September 2016

Excellencies, distinguished delegates, friends and colleagues:

I am pleased to present my second thematic report to the Human Rights Council, which examines the rights of child implicated by toxics and pollution, as well as reports from missions to South Korea and Germany.

In my thematic report, I argue that States have an obligation to prevent children from being exposed to toxics and pollution. Case after case has illustrated the myriad of rights violated when States and businesses fail to prevent the exposure of children to toxics and pollution.

Article 24 of the Convention of the Rights of the Child (CRC) recognizes the right of the child to the highest attainable standard of health.  It explicitly requires States to take into account the risks of contaminated food and water as well as pollution in the realization of the right to health.   

This explicit linkage between children’s rights, health, contamination and pollution in the CRC is powerful.  And appropriately so.

Children are arguably the most vulnerable to toxics and pollution.  For years, they are completely defenseless.  They are impacted in ways in which adults are not.  They are exposed at higher levels than adults, including to toxic chemicals found in their mother’s body. Numerous health impacts are linked to childhood exposure to toxics, such as cancer, developmental disorders, learning disabilities, and respiratory illnesses. Many of these diseases and disabilities do not manifest for years or decades after exposure.

Doctors refer to the present state of impacts on children’s health as a “silent pandemic.” 

In one country, childhood cancer rates have increased nearly 20 percent over a twenty-year span. Types of diabetes are now seen in children that were previously only observed in adults. Rates of asthma, early puberty and birth defects have also increased dramatically.  Most of these and other increases cannot be explained by lifestyle choices or genetics alone, and have come during periods of rapid industrialization.  

Human rights are indivisible, interlinked and interdependent.  A child’s right to health is closely linked to a child’s right to life, survival and development, and numerous other rights. 

Latest figures from the World Health Organization estimate over 1.5 million children under the age of five, died prematurely from toxics, pollution and other exposures.  This does not account for children who died after the age of five, or those who suffer from non-fatal diseases or disabilities.

The right to safe food, the right to safe water and sanitation, the right to adequate housing, the right to be free from the worst forms of child labor, have all been interpreted to require that States prevent exposure to hazardous substances.

A child’s best interests should guide the interpretation and implementation of the Convention on the Rights of the Child.  The child’s best interests are best served through the prevention of exposure.  Today, however, laws and polices around the world essentially permit children to be exposed to toxic chemicals and pollution.

Every child has a right to bodily integrity, which recognizes the autonomy of the individual, to be free from unwanted invasions of its body.

Yet, the child’s right to physical integrity is abused by an endless stream of exposure, by an invisible cocktail of dozens if not hundreds of hazardous substances, to which they are exposed before and after birth. 

Sadly, pediatricians now refer to children as being born “pre-polluted.”

The inability to ensure a child’s views are heard before they are exposed to hazardous substances, and the impossibility to realize a truly effective remedy after exposure, strongly imply that States prevent exposure. 

Children in low-income, indigenous, minority or otherwise marginalized communities bear a disproportionate burden of our inaction on toxic chemicals, implicating the human rights principles of dignity, equality and non-discrimination.  In my view, the only solution to this injustice is the prevention of exposure.

The obligation of States to prevent childhood exposure to toxics and pollution lies at the nexus of these rights and freedoms. There too lies a corresponding responsibility on businesses.

Toxics and pollution are an insidious threat to human rights, with some of the gravest impacts on children. 

However, this is a human rights issue where solutions are available to prevent violations.   While considerable progress has been made by States to prevent exposure, some of which are described in the reports from visits to Germany and South Korea, much work remains to be done, which is also described in those reports. 

To defend the most defenseless, our future generations, an effective framework is required.  This consists of effective legislation, regulation and enforcement; ensuring businesses conduct human rights due diligence; realization of an effective remedy for violations; and international cooperation to address what is unquestionably a global problem.  

Mr. Vice-President,

Over the past two years under this mandate, I have witnessed grave deficiencies in all of these aspects, in all regions and countries both rich and poor.

In one of the world’s wealthiest countries, 6,000-12,000 children were exposed to high levels of lead in their drinking water.  The community of Flint Michigan is predominantly African-American, and nearly 30% live below the poverty line.  Moreover, Flint is not an isolated case. Children in other minority, indigenous and low income communities around the United States & elsewhere also have, and continue to face, similar toxic threats from lead and other hazardous substances in the water they drink, food they eat, air they breathe, as well as their homes, schools and playgrounds.

During my visit to the Republic of Korea, the plight of over 1000 victims of an untested, under-regulated consumer product loomed large. Unknowingly, consumers added the toxic product to water tanks of humidifiers, hugely popular in Korea, which led to over 90 deaths.  Among the dead, young babies and pregnant women whose bodies were especially vulnerable. The vast majority of the product was sold by the Korean subsidiary (Oxy) of an UK pharmaceutical company (Reckitt Benckiser) that certainly should have known the risks, regardless of the fact that it was in compliance with certain laws at the time. 

During my visit to Germany, I learned of the case of a highly hazardous pesticide, which was banned in Germany but allegedly sold by a German company, Bayer,  in Peru. The pesticide killed 24 school children and injured 26 others when they mistakenly consumed it as powdered milk.  The victims and their families have had no semblance of a remedy for nearly 20 years.  The case is emblematic of children regularly killed and injured by highly hazardous pesticides around the world.

Mr. Vice-President,

In addition to children, workers are also among the most vulnerable to toxic chemicals.  States set so-called permissible exposure levels for workers hundreds of times higher than the average population, and often fail to effectively monitor workplaces.  Businesses have the audacity to insist they cannot monitor their supply chains, while simultaneously propagating more and more complex supply chains by the day.

The ILO estimates that nearly 2 million workers die annually from occupational diseases linked to hazardous substances.

During my mission to South Korea, the situation of former workers in the electronics industry was brought to my attention.

Over 150 former workers of Samsung Electronics fought for more than a decade to realize their right to a remedy for diseases they developed from using toxic chemicals in the manufacture of electronic devices.  Many of these former workers were young women, who should have been of good health but contracted cancers and other diseases within a few years of working at Samsung Electronics. Some of the victims were children whose mothers worked at Samsung Electronics while pregnant. 

Over 120 victims have now received compensation from Samsung Electronics and an apology.  Another company, SK Hynik, has compensated 39 of its own former workers in the industry. I am particularly pleased to report that Samsung Electronics agreed to create an Ombudsman Committee to ensure measures for prevention are in place, as part of an effective remedy. 

However, the problem of workers in the supply chains of electronics who fall victim to toxic working conditions is far from over. Electronic conveniences of modern society, from computers to mobile phones, have historically come at the expense of the health and lives of workers, consistently shifting from one country of manufacture or disposal to another.

I would like to take this opportunity to emphasize one point in particular because it has been misrepresented in the Korean media the past week.

Neither Samsung Electronics nor the Government of the Republic of Korea demonstrated that working conditions were safe.  They did not demonstrate that working conditions did not kill or injure over 120 victims that Samsung Electronics compensated recently. 

In my view, there is no basis to question the findings of the South Korean courts that cases cancer in former workers of Samsung Electronics were likely caused by their working conditions.  Furthermore, there is no basis to question Mediation Committee, which linked working conditions at Samsung Electronics to various other diseases in former workers.  

For many of these victims, the issue of causation was a major obstacle to remedy for as many as twelve years. Around the world, there is a grave injustice with the level of proof placed on victims of toxic chemicals to prove the cause of their illness; not profit making businesses with access to and control of relevant information, and the power to generate it when it is missing, to prove they did no harm.  

My report discusses the steps taken by the Government of the Republic of Korea in this regard, and areas for improvement in greater detail.

Thank you, Mr. Vice-President.