In my capacity as the United Nations Special Rapporteur on human rights and hazardous substances and wastes, I undertook an official country visit to the Germany, at the invitation of the Government, from 30 November to 7 December 2015.
I would like to begin by thanking the Government of Germany for the invitation to visit the country. I would like to express my appreciation for the businesses, industry associations, civil servants, trade unions and members of the civil society organizations who had open and frank discussion with me about the implications of hazardous substances on human rights. I would like to extend my deep appreciation to the Ministry of Foreign Affairs for their extensive efforts to make necessary arrangements for my mission.
During the course of the past week, I met with the officials of the Federal Foreign Office; Ministry of Environment and Construction; Ministry of Economic Affairs and Energy; the Federal Institute for Risk Assessment (‘BfR’); Ministry of Health; Ministry of Justice and Consumer Protection. In addition, I met with the German Institute for Human Rights and a distinguished Member of Parliament. I also had the pleasure to meet the representatives of BASF, Bayer CropSciences, and the German Chemical Industry Association (Verband der Chemischen Industrie).
One of my main motivations for undertaking this mission was to gather information on good practices by the Government and businesses, as requested by the UN Human Rights Council. I wish to emphasize at the outset that these are only preliminary observations. A full report of the mission, which will contain a more comprehensive analysis of the situation and recommendations from a human rights perspective, will be prepared and submitted to the Human Rights Council in September of 2016.
I am pleased to note that several good practices have developed in Germany and the European Union in recent years to prevent harm from toxic and hazardous substances. However, as is the case in all countries, hazardous substances continue to present profound challenges, particularly when viewed through the human rights lens. The production, use and disposal of hazardous substances continue to have a broad range of human rights impacts around the world, only a few of which I comment on below.
The chemical industry has a long history in Germany, and a responsibility to respect human rights implicated by hazardous substances, such as the right to information and the right to health. This includes both the responsibility to undertake due diligence to prevent adverse impacts and to help realize an effective remedy when violations result.
I was very pleased to learn that BASF and Bayer have begun to implement the UN Guiding Principles on Business and Human Rights within their own activities and their supply chain. I encourage other businesses in the global chemical industry to join BASF and Bayer in revisiting their activities in light of the Guiding Principles.
Human rights due diligence speaks directly to the responsibility of businesses to prevent harm from hazardous substances and wastes. As the scientific evidence continues to grow of both the health risks and impacts of hazardous substances in Germany and around the world, the transition to safer chemicals is necessary to ensure the progressive realization of human rights, particularly of those most vulnerable. The risks to those most vulnerable must be the basis of efforts by governments and businesses.
When viewed through the human rights lens, several recent achievements in Germany and the EU on chemicals management stand out; but so do ongoing challenges. These rights that illuminate progress toward good and better practices include the right to information, meaningful public participation, an effective remedy, life, health, safe food and water, adequate housing, a healthy environment, a safe workplace, and others. I will elaborate on these and other rights and principles in the above-mentioned report; but, for now, I would like highlight a few issues of current relevance.
Rights of the child
Children are among the most vulnerable to the adverse impacts of hazardous substances.
Studies show the presence of hundreds of toxic substances in children—during highly sensitive periods of development—exposed from the air we breathe, the food we eat, the water we drink, the consumer products we buy, and the places we live and work. Scientific evidence continues to grow about a diverse range of illnesses, from cancer to diabetes to impaired brain function, that manifest later in life and are linked to exposure to hazardous substances during these sensitive pre- and post-natal periods.
The provisions of the EU’s REACH Regulation, the EU’s hazard-based approach to pesticides, the EU’s Toys Directive, and other laws in force in Germany stand to make important contributions in this regard. The phase-out of nuclear power in Germany, together with ambitious targets for renewable energy, also stands to be a positive example of our collective responsibility to respect the rights of present and future generations.
However, it was brought to my attention that certain types of fundamental health and safety information on the risks of chemicals to young children who may be exposed during development are not available or accessible, even when in some cases the information is required under the REACH Regulation. I look forward to additional information in this regard. Moreover, tests of various toys in Germany continue to show levels of toxic chemicals beyond legal limits, in spite of the EU’s Toys Directive. And, of course, children are exposed to hazardous substances from a far wider range of everyday products than just toys.
The ongoing development of criteria for endocrine (hormone) disrupting chemicals (EDCs) is an opportunity for Germany and other Member States of the EU to be global leaders in protecting the rights of the child from toxic chemicals, but only if the criteria prioritize the “right of children to the highest attainable standard of health.”
Double standards, and the principles of non-discrimination and equality
Many German businesses play a central role in international supply chains that use, produce or release hazardous substances, including hazardous pesticides. Businesses have a responsibility to ensure that human rights are respected by their customers and suppliers—both at home and abroad— by preventing harm from hazardous substances. However, there remains a wide gap between risk reduction measures in Germany and measures taken outside the EU, particularly in developing countries.
According to UNEP and the OECD, chemical production and use is projected to sharply accelerate in developing countries and “transition economies” over the next several years. This rapid acceleration presents considerable challenges to the responsibility of businesses to respect human rights through their business relationships.
Among positive developments I heard were companies developing private procurement policies, creating necessary incentives for greater respect for human rights, and the potential development of a public procurement policy that reflects the state’s duty to protect human rights as well.
However, I was left unsatisfied with answers regarding a long-standing problem. Unfortunately, chemicals banned from use in the EU are still exported or manufactured for use outside EU borders by German companies, including to countries with far weaker or essentially non-existent systems for chemicals management. Typically, these chemicals are banned or restricted by the EU because their safe use cannot be guaranteed in the EU. The likelihood of safe use outside in Africa, South-East Asia, Latin America and other regions is unlikely for these substances, with repeated evidence of risk mitigation attempts by companies not being successful, despite the efforts of chemical manufacturers. Workers and communities in developing countries are particularly at risk from such continued practices.
For example, certain hazardous pesticides are banned from use in the EU, but still exported or manufactured by German companies in countries without adequate systems in place to manage these dangerous pesticides. A similar situation exists for industrial chemicals as well. Companies are seriously challenged in tracing the use of chemicals throughout the supply chain, despite the reporting requirements of REACH.
Under a global policy framework, the global community has called for heightened efforts on highly hazardous pesticides (HHPs). The Special Rapporteur on the right to food and myself are calling for the phase out of HHPs, which can be substituted with safer alternatives, according to the FAO. Although many are banned in the EU, European businesses continue to produce HHPs for use in countries where the risks cannot be managed.
For all stages—extraction, production, use, emission and disposal—of hazardous substances, strong global standards are necessary to prevent double standards from emerging, and to ensure businesses respect human rights at home and abroad. However, the vast majority of hazardous substances produced and used by businesses around the world are unregulated under global environmental laws. I encourage the German government to be active in developing a stronger global regime for chemicals management.
German businesses have a long-standing reputation for innovation that achieves high standards of quality and performance. I have been impressed with the capacity of the German industry to improve performance by a number of indicators, such as energy efficiency. I am confident that Germany can lead efforts to reduce the use of hazardous substances and prevent double standards, creating a level playing field for all. I look forward to seeing German businesses emerge as leaders in the transition to safer chemicals and to the German Government’s effort to better enable this shift. Thank you again for the invitation to visit the Germany and the open and honest discussions we have had over the past week.