A/HRC/36/41
Transnational claims, corporate structures and acquisitions
108. The impacts of businesses often manifest in countries other than those in which
decisions are made or where financial resources for remedies are available. In some
countries, the lack of an independent judiciary, undue influence on regulatory decisions and
other factors can make claims difficult to pursue. States must ensure that corporations in
their territory are accountable for abuses abroad, including by enabling foreign victims to
bring claims for abuses.
109. Corporate structures, for example parent-subsidiary relationships, have prevented
access to justice and remedy. Despite recognition that parent companies influence conduct
within the corporate group, victims of corporate human rights abuses linked to toxic
exposure can be left without justice or remedy because courts are reluctant to pierce the
corporate veil. Furthermore, the acquisition of assets without the transfer of liabilities can
deprive victims of the resources necessary to secure an effective remedy. States must
ensure that corporate structures and acquisitions do not prevent victims from accessing
justice or remedy for human rights abuses linked to toxic exposure.
Conflict
110. The lack of transparency demonstrated by States regarding the pollution caused by
their actions during conflict can impede the identification of contaminated sites, and thus
limit access of affected communities to preventative health care, information on how to
reduce risks and other protective measures. Moreover, States recovering from conflict often
lack technical assistance and funding to remediate toxic remnants of war, leading to further
harm post-conflict. Communities affected by military bases and testing of weapons often do
not have access to the classified information necessary to ensure an effective remedy for
victims of the resulting contamination.
V. Conclusions and recommendations
111. Over the past several decades, many States have made welcome progress in
reducing the impacts of toxics. However, this progress has not been shared equally.
There remain disparities within and among countries of all income levels in
respecting, protecting and fulfilling human rights implicated by toxics. The disparity
between high-income countries and low- to middle-income countries is serious.
112. The above guidelines for good practices are intended to assist States in ensuring
that their laws and other practices are in line with their human rights obligations. In
this vein, the Special Rapporteur recommends that States and other stakeholders
apply the following principles:
(a)
States must ensure that legislation and other practices reflect their duty
to respect, protect and fulfil human rights obligations implicated by hazardous
substances and wastes, including the rights to life, to health and to physical integrity;
(b)
States must ensure that their practices relating to hazardous substances
and wastes ensure equality, do not discriminate against any vulnerable group,
including children, the poor, workers, persons with disabilities, older persons,
indigenous peoples, migrants and minorities, and take into account gender-specific
risks;
(c)
States should use inherently safer design, implement a life-cycle
approach to protect the most vulnerable from hazardous substances and wastes and
should, with urgency, apply a global approach;
(d)
States must enact and enforce legislative and regulatory frameworks to
protect human rights against infringement caused by business operations that
produce, use, release, store and dispose of hazardous substances and wastes, including
the foreign operations of businesses based in their territory; States must not lower
standards of protection and must continuously improve protections; to fulfil their
obligations, States should explore cost-recovery systems;
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