A/HRC/36/41 102. States have the primary obligation to ensure timely remedy for victims, but must also ensure that in time the businesses responsible for rights abuses are held accountable, including through restitution for all costs incurred in realizing an effective remedy for victims. In the context of transnational business activities, international cooperation is often essential to help ensure that victims have timely access to an effective remedy. 103. It is essential that as part of an effective remedy States take measures to avoid recurrence of the type of violation in question, which may require changes in the State’s laws or practices regarding toxics. 79 States have strengthened information requirements and enforcement actions and phased out toxic chemicals of concern, among other measures, to avoid recurrence. However, States must not wait until risks materialize as harm to progressively strengthen protections. 104. States must ensure that perpetrators of human rights violations related to toxics can be brought to justice and held criminally liable. In recent years there has been an increase in illegal and criminal activities surrounding the sale, use, emission and disposal of toxic chemicals, pesticides and wastes.80 These activities coincide with a range of criminal acts, including money laundering, fraud and racketeering. B. Obstacles to remedy 105. Everyone has the right to equal and effective access to justice and remedy. In practice, however, elements of discrimination and other challenges remain when victims who are most vulnerable to toxic exposures seek justice. Some of the specific challenges that must be addressed to ensure access to justice and an effective remedy in the context of toxics are discussed below. Causation and the burden of proof 106. The burden placed upon victims to prove a causal link between health impacts that take years or decades to manifest and potential exposure to thousands of different substances with known and unknown hazardous properties, through any number of exposure routes, can be an insurmountable obstacle. This is often because information on intrinsic hazards and exposures is either not available or not accessible, and is complicated by the vast number of potential diffuse sources of exposure, periods of heightened sensitivity during a lifetime, the latency of visible impacts and other factors. Placing the burden on victims of the effects of toxic chemicals to prove the cause of their illness, rather than on businesses with access to and control of relevant information and the power to generate it when it is missing, can be a grave injustice. States should further explore options to better balance the right of victims to justice and remedy. Greater accountability can help to incentivize the development and adoption of safer alternatives that carry less risk of human rights abuses. Costs 107. Access to justice requires that procedures not be prohibitively expensive. 81 In general, but particularly for low-income communities who are disproportionately affected by toxic exposure, the expense of legal proceedings can obstruct access to justice and remedy. The complex legal cases for alleged injuries resulting from toxics can incur prohibitively expensive legal fees. In addition to attorney fees, other related costs may be incurred, such as court fees, fees to pay for scientific experts and transportation, and lost pay. The obligation of an unsuccessful claimant to pay the legal expenses of other parties can also prevent access to justice and remedy. States must ensure that access to justice and remedy for the impacts of toxics is not prohibitively expensive. 79 80 81 20 See, for example, Human Rights Committee, general comment No. 31, para. 17. See www.unep.org/newscentre/unep-interpol-report-value-environmental-crime-26. See, for example, the Aarhus Convention, art. 9.