A/HRC/42/41
justice those responsible for exposure to toxic substances. An effective remedy delayed can
be an effective remedy denied.
77.
Every rights holder is entitled to initiate proceedings for appropriate redress before a
competent court or other adjudicator in accordance with the rules and procedures provided
by law. States must ensure timely access to effective remedies to victims of human rights
violations occurring from exposure to toxic substances. 70
78.
Workers exposed to toxics are harmed when they are exposed, not only when a
disease or disability manifests itself in a worker or in a worker’s child. The latency of
diseases and disabilities after exposure, which can be years or even decades, can make
access to an effective remedy impossible for many workers and their families. The
prevention of further exposure by workers is an essential element of a guarantee of nonrepetition.
79.
States have the primary duty to realize the worker’s right to an appropriate and
effective remedy, including under domestic legislation. States have an obligation to
automatically investigate the possible existence of widespread violations after a minimum
threshold is reached and to engage in international cooperation in doing so. This should be
separate from any investigations or actions undertaken by the victim to pursue an effective
remedy. States should ensure the timely cessation of conditions that give rise to
occupational exposures, including changes in relevant laws and practices, prohibitions on
the production and use of certain classes of substances and the dissemination of information
to prevent recurrence. 71 Penalties imposed should be significant enough to induce and
motivate business enterprises and other actors to take precautionary measures to prevent
workers’ exposure to toxic substances and to act as a deterrent to ensure non-recurrence.
80.
Workers most vulnerable to the adverse impacts of exposure often face the greatest
difficulties in accessing effective remedies. Female workers, for example, are less likely to
access effective remedies from toxic exposures due to economic insecurity, power
imbalances, unequal access to education and information, caretaking responsibilities and
other gendered roles, which further compound the challenge of accessing remedies for
exposure to toxic substances. 72 Therefore, mechanisms for remedy should pay special
attention to gender, age, status and other factors that may impede access. States should take
enhanced action to provide access to effective remedies to affected groups, specifically
women, as they and their offspring experience the impacts of toxic exposures differently
and face additional barriers for a multitude of social, economic, legal, technical and cultural
reasons.
81.
Business enterprises that cause, contribute to or are linked to occupational exposures
to toxic substances also have a responsibility to establish robust processes to enable
workers to have timely access to an appropriate and effective remedy. States and businesses
should consider all possible remedies, for example, by promoting the use of the best
available technologies and best environmental practices to prevent exposure.
82.
A major challenge, particularly for workers in supply chains, is that the business
enterprise may not have sufficient resources to provide an adequate and effective remedy to
affected workers. States must ensure that beneficiaries of services are also responsible for
the provision of remedies. Indeed, some States have developed legislation to address
circumstances where an enterprise provides or enables another to acquire benefits of any
kind from worker exploitation, which can include exposure to toxic substances.
83.
Information regarding settlements with workers is important to understand the extent
of violations of safe and healthy work. The information about remedies provided should be
confidential only to the extent necessary to respect the victims’ right to privacy.
Confidentiality provisions of settlement agreements (commonly known as gag or
70
71
72
E/CN.4/2006/42, para. 45.
A/HRC/33/41, para. 40.
See, e.g., Committee on the Elimination of Discrimination against Women, general recommendation
No. 33 (2015) on women’s access to justice, paras. 3, 8–10 and 13. See also The Danish Institute for
Human Rights, Women in Business and Human Rights (Copenhagen, 2018), pp. 50–51.
17
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