A Toxic Threat to Human rights: The Road Ahead

The United Kingdom (UK) stands at a critical juncture as it prepares its exit from the European Union (EU) (commonly known as ‘Brexit’). The country is already grappling with significant challenges relating to hazardous substances and waste which have negative implications on human rights (UN Report). Air pollution, toxic legacies (Toxic legacies are synthetic chemicals which have an adverse effect on world ecosystems such as toxic threats from nuclear waste]), the transnational impact of United Kingdom businesses operating abroad and their policy on decision-making all impose very real risks on affected communities (World’s top Firms cause $2.2tn of environmental damage) and require stringent regulations and enforcement mechanisms to prevent human rights abuses.

The Special Rapporteur on the Implication for Human Rights of the environmentally sound Management and Disposal of Hazardous Substances and Wastes, reported in September 2017 to the Human Rights Council, that there is a very real risk that the additional demands placed by Brexit will compound the existing weaknesses and place further strains on the complex governance structures and stretched resources of relevant regulators. It is crucial that the citizens of the United Kingdom, who already suffer from lack of information, participation and effective remedy when it comes to exposure to toxic substances, do not fall victim to lower protections and human rights standards as a result of Brexit.

Although the Government has given assurances that it intends to keep up with European Union standards on human rights and environmental protections, the lack of any clear guarantees and statements such as that existing laws would be maintained “wherever practical and desirable” are worrisome. (Department for Environment, Food and Rural Affairs, written questions about environmental protection) Additionally, despite the fact that the UK has specific laws and common law rules to protect human rights in the context of business activities, comprehensive legislation to hold businesses to account for human rights abuses is lacking. The National Action Plan on Business and Human Rights (launched September 2013, Updated in May 2016) not only lacks a timetable to meet the objectives but is worryingly vague, referring generally to business enterprises without setting out expectations or recommendations for specific sectors.

Another concern is the UK’s approach to business responsibility, which is to provide support and guidance to industry-led initiatives that seek to avoid human rights risks rather than rely on strong regulatory oversight or punitive measures. This dependence on reputational risk is evident in the revised National Action Plan. Despite its substantial legacy on developing jurisprudence and identifying cases of abuse (September 2017 UN Report of the Special Rapporteur), seeking remedy in the UK is extremely challenging for victims of pollution. The drastic reduction in the availability of legal aid, changes in the ability to recover legal costs, increases in fees, crippling costs of civil action, coupled with austerity measures have resulted in a lack of access to justice and an inability by many to pursue accountability for environmental abuses.

The dumping of toxic waste in August 2006 by the ship Probo Koala (chartered by London office of Trafigura, a Dutch international petroleum trader) at Abidjan, Côte d’Ivoire, remains one of the worst environmental disaters of 21st century. The waste was disposed of at open air sites around Abijdan, as a result of which, people living near the discharge sites began to suffer from a range of illnesses (nausea, diarrhea, vomiting, breathlessness, headaches, skin damage, and swollen stomachs). Consequently, more than 100,000 people sought medical attention and  authorities reported 15 deaths.

In November 2006, the High Court of Justice in London agreed to hear a group action (Trafigura case) by about 30,000 claimants from Côte d’Ivoire against Trafigura over the alleged dumping of toxic waste (Basel Convention on the Control of Transboundary Movements of Hazardous Wastes). In September 2009, the High Court approved a £30 million (US$45 million) settlement between the parties. The Trafigura case highlights serious weaknesses in the regulatory and compliance regime regarding the transboundary movement of hazardous waste. On 13 February 2007, Trafigura and the Government of Côte d’Ivoire reached a settlement, under which Trafigura agreed to pay the state of Côte d’Ivoire the sum of CFA Franc 95 billion (approximately US$195 million), and the government waived its right to prosecute or mount an action against the company. Simultaneously, Dutch prosecutors served notice that they intend to file criminal charges against Trafigura in February 2008. In July 2010 the Dutch court ruled that the company had concealed the dangerous nature of the waste aboard the Probo Koala and fined the company €1 million. The Dutch court also convicted a Trafigura employee and the Ukrainian captain of the Probo Koala for their roles in the matter (Trafigura lawsuits). The case brought to international attention the complex problems of the management of hazardous waste and called for responsible businesses. However, subsequent reports have warned that Trafigura lessons have not been learned as little has been done to strengthen regulations on toxic waste dumping.  

The effective governance of hazardous substances and wastes throughout their lifecycle is a complex process and requires a multisectoral approach. At present, the UK’s governance is linked to European Union institutions, as well as a myriad of central or regional agencies, devolved governments and local authorities. As the issue of toxic chemicals touches on numerous policy areas, effective coordination and cooperation between agencies is necessary to respect, protect and fulfill the implicated human rights. These increased responsibilities for environmental matters given to the devolved authorities coupled with the decreasing financial, technical and human resources due to austerity have created serious governance gaps.

If the UK fails to equal the European Union on air quality controls, chemical restrictions or product manufacturing standards (post Brexit), the UK’s market could risk becoming a haven for “dirty” industries and a dumping ground for products failing to meet European Union regulations.

Photo credit: AP