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the toxic truth
Obligations to prevent exposure to hazardous waste As states parties to the International Covenant on Economic, Social and Cultural Rights (ICESCR), the governments of the Netherlands and Côte d’Ivoire are required to respect the right to health of all persons and to take all necessary measures to prevent third parties, such as companies, from infringing people’s rights to health. The Committee on Economic, Social and Cultural Rights (the Committee, or CESCR) has emphasized that a state’s obligation under Article 12.2(b) extends to “the prevention and reduction of the population’s exposure to harmful substances such as ... harmful chemicals or other detrimental environmental conditions that directly or indirectly impact upon human health.”428 Violations of the obligation to protect follow from the failure of a state to take all necessary measures to safeguard persons within their jurisdiction from infringements of the right to health by third parties. “This category includes such omissions as the failure to regulate the activities of individuals, groups or corporations so as to prevent them from violating the right to health of others; … and the failure to enact or enforce laws to prevent the pollution of water, air and soil by extractive and manufacturing industries”.429 The Committee has also clarified the obligations of states parties to prevent third parties, such as companies, interfering with the right to health of people in other countries. “To comply with their international obligations in relation to article 12, States parties have to respect the enjoyment of the right to health in other countries, and to prevent third parties from violating the right in other countries, if they are able to influence these third parties by way of legal or political means, in accordance with the Charter of the United Nations and applicable international law.”430
A vendor of water bags in Abidjan protecting herself from the smell, September 2006. © ISSOUF SANOGO/AFP/Getty Images
The ICESCR also protects the right to work. Article 6 of the Covenant obliges states parties to recognize the right of everyone to the opportunity to gain their living by work, which they freely choose or accept, and to take appropriate steps to safeguard this right.431 States parties are under an obligation to take all necessary measures to prevent third parties from infringing on the right to a gain a living through work. In relation to the transboundary movement of hazardous waste, both the Côte d’Ivoire and the Netherlands are also parties to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (the Basel Convention). The purpose of the treaty is to control and regulate waste material that requires special attention or may pose a hazard to human health or the environment.432 Under the Convention, states parties are required to: prohibit the export of waste to countries which have prohibited the import of such waste; prohibit the export of waste without prior notification and consent from the state of import; prohibit the export of waste if there is reason to believe the waste cannot be managed in an environmentally sound manner (ESM).433 ESM is defined as “taking all practicable steps to ensure that hazardous wastes or other wastes are managed in a manner which will protect human health and the environment.”434 States parties to the Basel Convention have accepted that illegal traffic in hazardous wastes or other wastes is a criminal offence and each state party is obliged to take “appropriate legal, administrative and other measures to implement and enforce the provisions of [the] Convention, including measures to prevent and punish conduct in contravention of the Convention.”435
For state parties who are party to both the ICESCR and the Basel Convention, the Basel Convention can be viewed as the lex specialis which sets out specific measures that states are required to take to regulate the disposal of hazardous waste in order to protect people’s right to health and other economic, social and cultural rights. The Bamako Convention on the Ban on the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa The Bamako Convention has many similarities to the Basel Convention, but contains stronger provisions on prohibiting all imports of hazardous waste to Africa. Under the Bamako Convention, states parties agree to “take appropriate legal, administrative and other measures within the area under their jurisdiction to prohibit the import of all hazardous wastes, for any reason, into Africa from nonContracting Parties. Such import shall be deemed illegal and a criminal act.” Bamako deals specifically with the obligation of states parties to cooperate in the prevention of the import of hazardous waste. States parties are required to: “(a) forward as soon as possible, all information relating to such illegal hazardous waste import activity to the Secretariat who shall distribute the information to all Contracting Parties; (b) co-operate to ensure that no imports of hazardous wastes from a non-Party enter a Party to this Convention. To this end, the Parties shall, at the Conference of the Contracting Parties, consider other enforcement mechanisms.”