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End of Visit Statement by the United Nations Special Rapporteur on human rights and hazardous substances and wastes, Baskut Tuncak (Republic of Korea 12 - 23 October 2015)

Korean

23 October 2015

Introduction

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 Republic of Korea, at the invitation of the Government, from 12 to 23 October 2015. The purpose of the mission was to monitor and assess steps taken by the Government of the Republic of Korea to protect the human rights implicated by the management of hazardous substances and wastes throughout the life-cycle.

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 would like to begin by thanking the Government of the Republic of Korea for the invitation to visit the country. During the course of the last two weeks, I have met with the Ministry of Foreign Affairs; Ministry of Defense; Ministry of Employment and Labour; Ministry of Trade, Industry and Energy; various divisions of the Ministry of Environment; and, the National Human Rights Commission. I also had the pleasure to visit the new low and intermediate level radioactive waste disposal center at the courtesy of the Korea Radioactive Waste Agency.

I also would like to express my appreciation for the businesses, members of the civil society organizations and residents and victims who shared their aspirations and challenges toward the full realization of all human rights implicated by the management of hazardous substances and wastes. I had the pleasure to visit Gimpo, Danyang, Wolsung and Boryung to meet with residents living near casting factories, cement factories, a nuclear power plant and army bases.

I also had the pleasure to meet the officials of Samsung Electronics and Oxy Reckitt Benckiser, as well as touring Samsung Electronics’ production line.

General observations

One of my main motivations for undertaking this mission was to monitor the development of human rights protection after the rapid industrialization of the country over the past few decades, which is viewed as a model for economic development by other emerging economies. Of particular interest was the corresponding acceleration in chemical production and use in the country in a short period of time, and the challenges it presents.

I am pleased to note several positive developments in the Republic of Korea in recent years, which I will address later. However, I would at the outset like to highlight a few cases that came to my attention during the course of the mission. I would like to highlight these prior to my report as I believe that these cases are relevant not only to the situation in the Republic of Korea, but also offer lessons for countries around the world.

It is widely known that 140 people died and over 500 were injured after purchasing and using a humidifier disinfectant that contained one or more hazardous substances. Most of the victims were women and children, who suffered from a range of illnesses, including respiratory illnesses. It does not appear that Oxy Reckitt Benckiser conducted any investigation into the health risks of inhaling the substance dispersed by the humidifier despite what appears to be virtually no information about its hazards, in compliance with weak legal standards of protection at the time.

Oxy Reckitt Benckiser, which has its headquarters in the United Kingdom, sold 80 % of the humidifier disinfectant on the market, with the remaining sold by four other companies. Oxy Reckitt Benckiser maintains its position that the company has not been proven liable. They claim causation has not been proven for health impacts, despite their failure to prove the product was safe before being sold to consumers. According to the victims, neither the companies concerned nor the Government have offered a meaningful apology to the victims, which both explain as due to ongoing litigation. The victims remain concerned that subsequent measures by the Government and businesses are not adequate to prevent the reoccurrence of a similar tragedy. As of now, the Government has not provided compensation to support approximately 55% of the alleged victims because the causation between their symptoms and the substances in the sterilizer has not been ascertained.

Secondly, the vulnerability of workers to hazardous substances was prominent during my visit. The case of workers in the electronics sector reoccurred in my discussions. I am concerned that the challenges faced by workers in this industry are not isolated; but, rather, emblematic of the challenges faced by workers across a range of industries that use hazardous substances in manufacturing processes both in the Republic of Korea and in other countries.

I am afraid that many workers at Samsung Electronics have fallen victim to priorities that place profits before human rights. Victims, and family members of those now deceased, shared common stories of grave and irreversible health impacts including leukemia, lymphoma, brain cancer, breast cancer, thyroid cancer, miscarriage, hormonal complications and other diseases. The victims claim that they used or otherwise exposed to hazardous substances every day, sometimes for 12 hours a day, with only 1 or 2 days off per month.

Many victims were women who started working in the semiconductor factory immediately after high school. Many testimonies I heard described intense pressure to meet production goals, little to no training or information about the risks of the hazardous substances they were using and inadequate safety measures to prevent exposure. One mother’s testimony was gripped with frustration and grief, blaming herself for the fact that her son was born with deformations, which she believes were caused by her working with toxic chemicals while pregnant without her knowledge.

Victims, labor unions, civil society groups and the Government all acknowledge that occupational disease is an increasing problem and that the amount of information and protection available to workers is a challenge, particularly for sub-contractors Yet despite what appear to be massive information gaps, victims bear the burden of proving their suffering is a result of hazardous substances in the workplace.

The burden of proof placed by the Government on victims is so great that only three former Samsung Electronics workers out of 67 claimants (4.5 %) have been able to establish causation in order to gain some degree of compensation through the Government’s “Occupational National Insurance” for injuries suffered from hazardous working conditions. Estimates of the total number of alleged victims who worked at Samsung Electronics ranges from 90 to several hundred, with the total number across the industry unknown.

My last observation comes from visits to communities living close to hazardous conditions. In the city of Gimpo, located a few hours outside Seoul, small-scale industrial facilities have overrun a once quiet community, as a result of the Government’s deregulation policies to promote economic growth. Family homes, subsistence farms and rice fields are now wedged between metal works and other factories emitting dangerous levels of heavy metals and other toxic chemicals into homes and agricultural land. Only a few local officials have the nearly impossible task of monitoring approximately 10,000 industrial facilities in the area for pollution, thereby offering little evidential support to local residents who hold the burden of proving which companies to hold accountable.

I spoke with many people in other communities who expressed similar concerns with the inability to relocate away from dangerous areas due to the need to establish causation and their inability to do so on their own. For example, residents just beyond the 914-meter safety zone around a nuclear power plant are demanding relocation. The residents have been waiting for years for causation to be determined between thyroid cancer and other types of illnesses and radioactive emissions from the power plant.

Communities frustrated by this challenge include those living near the nuclear plant in Wolsung; coal-fired power plants, cement factories and steel factories in Danyang and Dangjin; and military bases in Boyrung. For example, Boyrung once known for its natural beauty; but studies have revealed three times the safe level of various toxic chemicals and residents claim all but a few deaths in their village have been due to cancer. I believe that the communities I met with are only a fraction of the wider community at risk. I am concerned that many of these residents are elderly, socio-economically disadvantaged and are being denied an effective remedy. Furthermore I am concerned by reports of threats of intimidation including death threats against individual residents and community leaders.

Conclusions

Throughout my fact-finding mission, the dependency of individuals and communities on both the Government and businesses to prevent harms and reduce risks of hazardous substances was clearly apparent. There exists a sense of powerlessness of those at risk, and betrayal of those who believed they have been wronged. Notably, the inability to prove causation between the health impacts that individuals are suffering from and the hazardous substances that they have been exposed to presented an insurmountable obstacle to the vast majority of victims.

Under international human rights treaties ratified by the Republic of Korea, as well as the Constitution’s provision for a safe and healthy environment, the Government has an obligation to protect and realize rights implicated by hazardous substances and wastes. These rights include both economic, social and cultural rights, as well as civil and political rights, such as the right to information and the right of access to an effective remedy. I encourage the Government to immediately ratify the Optional Protocol to the Covenant on Economic, Social and Cultural Rights.

In response to the humidifier disinfectant case, the Republic of Korea has taken steps towards improving the management of hazardous substances through its recently enacted Act on the Registration, Evaluation of Chemical Substances. Although necessary steps should not wait for a tragedy to unfold and the victims still not have been offered a solution for their loss of life, morbidity or the death of their loved ones, it is a positive development and I commend the Government for taking such steps. In addition, the Government has provided medical and funeral expenses for a subset of victims whose health impacts have been acknowledged as being caused by humidifier disinfectants.

However, despite recent measures taken by the Government in response to safety of some chemical consumer products, I remain concerned about the sufficiency of preventative measures taken by the Government to prevent similar tragedies in the future arising from consumer products. And, I share similar concerns about industrial chemical disasters. While the Government says the number of deaths and injuries have decreased since the catastrophic chemical disaster in Kumi in 2012, it is reported that the number of small and large industrial chemical accidents may have increased since then. I would like to stress that, with the vast amount of chemical substances and its usage in fast moving industries, prevention is a key aspect.

New institutional and legislative grounds are established for environmentally sound chemicals management by enacting and implementing the Act on Registration and Evaluation of Chemical Substances and the Chemicals control. However, the establishment of necessary information system and governance structures to detect risks before they manifest into adverse impacts were just initiated. I look forward to clarification from the Government and businesses about the adequacy of information systems and governance structures now present to detect risks before they manifest into adverse impacts. There must be a robust legislative framework and implementing regulation to protect everyone, particularly those who are most at risk, such as children, workers including irregular and migrant workers and those living in rural areas that have been recently industrialized, from the various threats to life and health presented by hazardous substances.

During the course of my visit, I have observed the unjust burden placed on hundreds of victims by the legal system to establish causation, which can add insult to injury, prolonging suffering and an undeserved sense of guilt, and ultimately prevent victims from accessing an effective remedy. In order to help address this, I am happy to learn that Act of Liability, Compensation and Relief from Damages Caused by Environmental Pollution will enter into force in 2016. The spirit of this Act is highly compatible with human rights principles, in particular, the right to an effective remedy. This law represents a paradigm shift, which may, if properly implemented, lessen the burden of proof for victims. While I am optimistic that this law will be implemented successfully for wider number of victims, there is much wider range of victims that face an overwhelming burden of proof that I understand is not within the scope of this Act.

As reflected in the UN Guiding Principles on Business and Human Rights, businesses have a responsibility to respect human rights. This includes both the responsibility to undertake due diligence and to help realize an effective remedy. I understand that the Republic of Korea is developing a National Action Plan on the responsibility of businesses to respect human rights, and I hope it pays adequate attention to the issues raised by hazardous substances and wastes.

The realization of an effective remedy requires both compensation for harms and measures to prevent reoccurrence. In both the case of workers at Samsung Electronics and consumers of the humidifier disinfectant, victims are demanding both compensation and prevention. It does not seem that the companies involved are at all interested in discussing prevention in any meaningful manner. Instead, it appeared that the urgent need of victims for essential health care and other expenses is being used to circumvent the prospects of increased scrutiny into whether businesses are taking steps to prevent reoccurrence and are transitioning toward the development and use of safer chemicals.

Along these lines, the recent developments in the mediation process between workers and Samsung Electronics are deeply troubling. The unilateral decision to establish an internal “Compensation Committee” within Samsung Electronics without any indication of how prevention will be addressed does not reflect well. The three mediators appointed by Samsung Electronics and the victims did not recommend an internal body focused solely on compensation of victims. Rather, the mediators recommended an external body focused on both prevention and compensation. Although the Compensation Committee is by no means a Grievance Mechanism, under the UN Guiding Principles on Business and Human Rights and international best practices for the resolution of disputes, processes for compensation must be legitimate, transparent and source of continuous learning, among other elements. I look forward to receiving further information about how the “Compensation Committee” is in line with international human rights standards.

Korean businesses have quickly emerged as technological leaders over the past few decades. With this growth, not only come greater responsibilities and challenges, but also greater capacity to innovate, to enable a transition to safer homes, cleaner workplaces and healthier communities. I look forward to seeing Korean businesses emerge as leaders in this transition and also look forward to the Korean Government’s effort to better enable this.

I will present in more detail of my analysis, assessment of the situation and recommendations in my report to the Human Rights Council in September of 2016.

Thank you again for the invitation to visit the Republic of Korea and the open and honest discussions we have had over the past two weeks.