First established in 1995 by the United Nations Commission on Human Rights, the purpose of the Special Rapporteur’s mandate on toxics and human rights seeks to expose the ways in which exposure to hazardous substances infringe on human rights and guide states, businesses, and others to adopt better practices.
Appointed in August 2020, Dr. Marcos A. Orellana is the current UN Special Rapporteur on the implications for human rights of the environmentally sound management and disposal of hazardous substances and wastes.
This is this the second instalment of the International Environmental and Resources Law Committee’s interview series Top Talks, where our committee articles co-vice chairs speak with top legal experts about developments in the world of international environmental and resources law. Next up, Dr. Marcos A. Orellana.
A: The UN Human Rights Council has set up a system of special procedures, to enable it to carry out its tasks. These procedures have been described as the eyes and ears of the Council, as they help the Council connect with reality. They are monitoring and reporting mechanisms. In the specific case of the toxics mandate, the mandate has the role to monitor issues concerning human rights implications of sound management of chemicals and wastes throughout the world. That includes issues of exposure to hazardous substances such as pesticides, heavy metals, and hazardous wastes. The mandate then reports on those issues to the Human Rights Council. The toxics mandate was created back in 1995, as a result of concern over global environmental injustices resulting from the dumping of hazardous wastes generated in the Global North and dumped in the Global South. In 2011, the toxics mandate was reframed and renewed by consensus. It was reframed to address the lifecycle of chemicals and wastes, and not just hazardous wastes. That revised frame opens a much broader array of opportunities for the mandate. I should emphasize that the toxics mandate, as every other special procedure of the Human Rights Council, is 100 percent independent. There is of course a Resolution of the Council that sets up the thematic parameters of the mandate, but the specific priorities and issues that the mandate holder decides to take on, are of its exclusive province.
A: The unsound management of chemicals and wastes can impair the enjoyment of several human rights. The most obvious are the right to life; the right to health; and the right to a clean, healthy, and sustainable environment. These rights can be compromised when people are exposed to hazardous wastes or hazardous chemicals. Take the issue of mercury for example. Mercury used in small scale mining has direct impacts on the miners themselves but also, since mercury bioaccumulates and is capable of long-range transport, it has impacts on Indigenous peoples and local communities living downstream rivers. These communities depend for their livelihoods, and in many cases also for their cultural and spiritual identity, on a clean environment, including the fish in the rivers. Mercury is a hazardous chemical and metal. The serious impacts of mercury on human health and the environment have been well-documented, both resulting from acute exposure as well as chronic exposure. That gives you a very clear example of the human rights dimensions of exposure to toxics. And while the right to life, health, and a healthy environment are perhaps the prime rights implicated, in exposure to hazardous wastes and hazardous chemicals, there are certainly other rights involved such as the right to food, the right to water, the right to housing, the right to self-determination, the right to personal integrity, the right to information, and the right to science. Many of these chemicals enter our bodies without our consent and that is an affront to personal integrity. The right to be free from toxics in our bodies, and the right to live in a toxic free environment, are guiding forces for the conduct and pursuit of the mandate on toxics and human rights.
A: In October 2020, the Human Rights Council for the first time recognized, at the global level, the right to live in a clean, healthy, and sustainable environment. This is a critical moment in the development of international human rights law, because the global recognition of the right to a healthy environment strengthens the tools available for people and communities that have been negatively impacted as a result of pollution and exposure to hazardous substances. Nowhere is this more visible than in so-called sacrifice zones. These are areas where pollution levels are incredibly high. They are the result of governments favoring economic activities without regard to the environment or the rights of people. They often involve the concentration of highly polluting industries, such as petrochemical industries, or refineries, or smelters. In sacrifice zones the dignity of life is compromised. The environment is so degraded that it has been sacrificed for the benefit of some, at the expense of others: there is a severe environmental injustice dimension. There is also a clear disregard of human rights obligations in respect of the right to life, health, and a healthy environment. In collaboration with the Special Rapporteur on Human Rights and the Environment, we have produced a thematic report on sacrifice zones to highlight how the right to a clean, healthy, and sustainable environment involves the right to a toxic free environment, and second, how people living in these zones are sacrificed. There can be no doubt that sacrifice zones are incompatible with the human rights obligations of states.
A: I decided to focus my first thematic report to the Human Rights Council on the right to science given the misalignment that I often see between the scientific evidence of risks and harms and the regulatory responses of states. This state of affairs is no accident. The manufacturing of doubt about the risks and harms of hazardous substances by producers of deadly products has become a lucrative business. Certain business entities specialize in deliberately spreading ignorance and confusion in society. In addition to attacks on scientific evidence, scientists themselves are often the target of campaigns that malign, harass, discredit, threaten, or otherwise undermine them if they question, publish, or speak out about the risks and harms of hazardous substances. In the specific context of toxic substances, the right to science provides humanity with the tools to confront the severe toxification of the planet and its people. It requires that governments adopt measures to correct scientific disinformation and to prevent exposure to hazardous substances on the basis of the best available scientific evidence. One of the report’s key recommendations is the creation of a global science-policy interface on the sound management of chemicals and waste that is free of conflict of interests. I feel encouraged to see that the 5th UN Environmental Assembly taking place in February in Nairobi is taking up this issue.
A: Businesses have a key role to play when it comes to reducing or eliminating the sources of exposure to hazardous substances that impair the enjoyment of human rights or that violate human rights. There are two big strands of work in this area.
I make it a priority to engage businesses whenever I go on country visits, which is one of the tools that mandate holders have at their disposal. This is important in order to understand better what are the business dynamics and problems at hand, but also to advocate for respect of the rights of people that are impacted by business operations. I was recently in Italy, on an official country visit and had the opportunity to visit the Ilva steel plant in the city of Taranto down in the south of Italy, which can be described as a sacrifice zone because of the very high levels of pollution. In that context, I reached out to the company in order to better understand what are steps that are being taken in order to prevent levels of pollution that would compromise peoples’ health or lives.
I also use the normative tools available and push for the creation of new tools. I have submitted, for example, comments to the negotiation on a treaty on transnational corporations in respect of human rights, pointing out certain gaps and issues of relevance to toxics. I am very pleased to see that those comments have been incorporated into the current negotiating draft. That process might still be a long way from producing a final text, but it shows the importance of articulating in human rights law, human rights responsibilities of businesses. And of course, the UN Guiding Principles on Business and Human Rights as well as the Framework Principles on Human Rights and Environment provide other tools to hold corporations accountable when they operate in irresponsible ways and impair the enjoyment of human rights.
A: A couple of the greatest challenges in the chemicals and waste cluster is the failure of the international community to achieve the goals it itself has articulated back in the Johannesburg Summit on Sustainable Development in 2002. The UN Environment Programme has concluded that the so-called “global 2020 goal” to minimize the adverse impacts of chemicals and waste by 2020, was not met. Collectively, we failed on that goal. The implications of this are severe. It means that children, women, Indigenous peoples, workers, and other groups in vulnerable situations are exposed on a daily basis to chemicals that impose risks to their lives and health. This is a major shortcoming, a major challenge, especially considering the scientific evidence that points to humanity breaching the planetary boundary of chemical pollution. The increasing toxification of the planet is a direct and grave threat to human rights.
Moving forward, it is expected that the fifth session of the international conference on chemicals management, will articulate a post-2020 goal to drive and guide action for the sound management of chemicals and wastes. But this conference has been postponed because of COVID-19. With dates to be determined, it’s very much up in the air when it will take place. In the meantime, the production of hazardous chemicals and wastes continues to increase.
In addition, the new global goal should not repeat the failed model. It would be unconscionable to ignore the human rights dimensions of chemicals and wastes management. And by that I mean that the goal of minimizing adverse impacts is incompatible with a rights-based approach. This is because by speaking of minimizing, we are speaking in relative terms and we are assuming, and even accepting, that some people will be hurt due to exposure to contaminants and chemicals that are known to place a threat on their lives and their health. This is incompatible with a rights-based approach that demands that no one be left behind, that preventive action must be taken to avoid human rights violations and preserve personal integrity, life, health, and a healthy environment. I would say that is perhaps the biggest global challenge on the horizon.
In terms of opportunities, there is increasing awareness of the global toxification of the planet. For a number of years global climate change has dominated the environmental agenda, and for good reason, as the global climate emergency is a threat to the existence of humanity on the planet. At the same time in recent years, I have seen how the greater awareness of the triple environmental crisis of the climate emergency, the toxification of the planet and biodiversity loss, has acquired greater visibility. This greater awareness is critical to mobilizing action at all levels to confront the growing impacts of the increasing number of chemicals produced, traded and used, and that are hazardous to human health and the environment.
The interview took place on January 13, 2022.
