Opening remarks of the 2017 COPs High Level Segment

Ms. Kate Gilmore
United Nations Deputy High Commissioner for Human Rights
4 May 2017, Geneva Switzerland

We are gathered here today to witness a solemn matrimony between sound management of chemicals and protection of human rights, a union not to be entered into unadvisedly or lightly, but reverently and soberly. If anyone can show just cause why they may not be lawfully joined together, let them speak now or forever hold their peace.

Well, this union between sound management of chemicals and waste and human rights is no celebrity marriage. We have been going out together for far too long – ducking the stricture of commitment and disappointing many a would be match‐maker! Ours is far too well‐hidden a relationship and even a union actively opposed by some. And yet the relationship between us is close, intimate and inviolable.

I hope you will forgive me if I take us back in time a little to illustrate just how established our relationship is, even if troubled. Allow me to remind us of our first date. I am not sure who asked who out first, but I do know that people’s rights and heavy metal (and don’t mean rock bands) were involved from the very outset of this journey of search for sound management of chemicals and toxic waste.

On April 21, 1956, a five‐year‐old girl exhibiting puzzling and disturbing symptoms was examined at a factory hospital.

A child at a health service in the context of heavy industry. It is worth emphasizing that children are particularly vulnerable to adult thoughtless disregard as they make their developmental journey into adulthood. And this is as apparent in the consequences for them of exposure to toxic chemicals and pollution, as it is in other area affecting human development. For children are those most vulnerable to toxics and pollution. Numerous impediments to full enjoyment of health and wellbeing are linked to childhood exposure to toxins, including developmental disorders, infertility, respiratory illnesses. Many consequences do not manifest for years or even decades after exposure. The implications for children but are so severe that doctors refer to the present state of impacts on children’s health as a “silent pandemic” while the extreme consequences for the new born are such that paediatricians also refer to children as being born “pre‐polluted”.

The drafters of the UN Convention of the Rights of the Child understood this to be the case: the Convention’s 24th Article obliges States to take into account the risks to children’s health of contaminated food and water as well as pollution. Every State in the world bar one alone has ratified this convention.

So our relationship together begins here – with toxins impacts on children. Back to our early story:

The mother of the girl in our story informed the treating doctor that her neighbour's daughter was also experiencing similar problems.

It is vital to note that in this it is the mother’s voice that was active, brave and persistent – she being a first responder to the crisis in her family and neighbourhood: She spoke out – exercising her freedom of expression – and demanding authorities’ attention. The world over, it is households and particularly carers in households i.e. women who are among the first and most persistent voices, warning their communities when things are not as they should be.

A house‐to‐house investigation revealed that others too had fallen ill.

Community engagement proved essential from the very outset of our story – with the community being both the holder of critical information and entitled to life saving information. The community ‐whose trust in officials is essential for the right information to emerge at the needed time and whose rights in turn to information must be upheld.

Our story continues: exactly, 61 years ago this week – on 1st May 1956:

The factory hospital director reported to the local public health office the discovery of an "epidemic” of an unknown cause.

This was the action of a brave official ‐someone who stepped forward to report, who knew where to report and who was clear about his responsibility to report.

So far so good. Basic rights of injured individuals have been exercised, calling on authorities to fulfil their human rights obligations.

A month later, the local government had formed a committee to oversee the response.

While on reflection, not a timely response, nonetheless, the State authorities are taking up their obligations.

However, the localised nature of the illnesses and lack of awareness of the possible consequences of toxins for people, saw officials blame first the community itself. Stigmatisation and discrimination infected the early public responses and, hardened through fear the attitudes of surrounding communities – whose bigotry frankly towards the affected populations serve to deepen the distress of the victims of this mysterious disease.

Discrimination against those affected by and exposed to toxic waste and chemical mismanagement is quite simply frequent: unlovely bedfellows ‐exposure to toxins and marginalization go hand in hand. Yet not only is such discrimination unacceptable – wrong in law and in principle – it is without doubt counterproductive to early warning, early intervention and to the formation of just responses.

Yet so longstanding is the toxic relationship between environmental degradation and inequality, discrimination and marginalization, that early definitions of the now more familiar term “environmental justice” focused not on calls for remedy or prevention but remarkably on calls the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income. To this list we must add, of course, disability and all other forms of discrimination prohibited under international law.

In our story, so dominant was prejudice against the rights of the affected communities that:

Only when strange behaviour in cats was reported; when crows had fallen from the sky; when seaweed no longer grew on the sea bed, and fish were found floating dead on the surface of the sea, did investigations begin to shift the blame away from the victims themselves.

There is an intricate relationship between bio diversity, protection of species, environmental sustainability and human habitat – the habitats that humans destroy, that humans create, the habitats that humans need. But this can be neither appreciated nor managed if humans themselves are left invisible; if they are discounted; when they removed from the page of our examination or otherwise rendered silent in the course of our consideration of environmental matters. People must be partners in our efforts and actively engaged in the design of agenda – they after all are our greatest resource.

It took five months after the first girls’ case was reported for the local authorities to abandon the victim‐blaming and instead finally seek help from the local university. The company that would ultimately be found responsible not only refused to cooperate with the research; it actively obstructed investigation of cause.

Let me reiterate here that bigotry and prejudice impede knowledge and understanding as it has where ever it is allowed to seep into our thinking. I should further recall that article 27 of the Universal Declaration of Human Rights asserts our human right to share in scientific advancement and its benefits. When scientific knowledge is interfered with improperly for political or commercial purposes; when it becomes, for example, hate’s vehicle as the Nuremberg trials famously established it was under the Nazi regime; then rights are betrayed – the rights of those who seek scientific knowledge from scientific method and the rights of those who are entitled to benefit from its findings.

A “post‐truth” world has been long in the making and its caustic consequences was evident early on in our relationship, for:

Despite the active efforts for cover up by the company concerned, the cause of this fatal and when not, debilitating disease was established eventually to be toxic waste and chemical mismanagement.

Legal standards must empower the State to oblige accountability from those whose conduct and resources have the potential to cause great harm to communities, even in the context of their manufacture of otherwise great benefit. Today the SDGs remind us that in these struggles the private sector can be, must be, friend and partner. But we need not be naive. Commercial interests – if their captains so choose as they did in this case ‐can be foe, and from them the full force of the law must not be withheld. After all governments are not merely managing economies – they are the stewards of societies as a whole – just, inclusive, fair and accountable societies.

The urgent need for empowering legislation to tackle impunity and to provide remedy when toxic waste and pollution destroys lives and livelihoods is revealed in a number of other elements of our story.

Disturbingly, it was uncovered that decades previously the local population had brought claim again this same company for its polluting practices. 30 years previously fishermen had demanded compensation for damage caused by water pollution. Intimidated into accepting a meagre and disproportionate compensation, they were required to drop all further complaints. But the pollution did not cease – instead it worsened.

When the State chooses to side with business over its citizens, it enters itself into a dangerous business. When it abandons its responsibility to its citizens – for remedy including compensation against wrong, it is arguably no longer acting as a State – but as something so much the lesser. No matter the economic imperative – and there are no doubt plenty – there can be no imperative so great or so pressing as to render people themselves merely casualties, simply collateral damage – in prosperity’s hot pursuit.

The polluted skies of our cities, and the waste ridden waterways of our urban centres the world over – driving up health budgets, eroding quality of life and deteriorating human dignity ‐must be entered into development’s calculus. The right to development is precious, it must be upheld and duly exercised but if one right is peeled away and treated separately from the consideration of all rights – when development runs ahead without regard for the right to health, to habitat and to fresh air, to food security, to water – then people are its casualties rather than its beneficiaries: people ‐women, children, men ‐and more often it is those who already have the least.

In our story, a man of conscience – who was a health worker in the company’s clinic – recognised that his employer was obstructing the university researchers. So he began to carry out his own experiments and within just two months, he had established the unequivocal causal link.

History does not fully record what then happened to our man of conscience, although many years later he would bravely testify at a related court hearing. However, his part in our story is a sober reminder that workers are the eyes and ears of environmental protection. They bury waste. They operate the incinerators. They transport the effluents and they are witness to the discharge of pollutants. We need their witness, their conscience. However, employees who bravely "blow the whistle" on wrongful practices are more often subject to harassment, dismissal, and blacklisting. The only ones who benefit from intimidation of those who “blow the whistle” are those who have something to hide.

In this instance, not only did the company not reveal their employee’s research findings publicly, they actually suppressed them; they ordered him to stop his research thereby ensuring that it would take some months longer before the external research group would arrive at the same conclusion.

Complicity by the company in the cover up was a corruption of public interest for the sake of commercial interest.

Extraordinarily another 2 years would pass before the company stopped its dumping of the toxic waste and even then it did so by moving its disposal methods to yet another waterway whose surrounding population of course then began to exhibit the same symptoms.

To the perspective of human rights, this is nothing more than palpable evidence of the toxic consequence of impunity: absent impartial investigation of culpability and judicial review of responsibility not only did those who knowingly committed grave wrong go free, there is an absence of due diligence for non‐recurrence.

Let me come to the conclusion of this tale of our earliest date. For although civil society organizations pursued both the company and the State down through the decades, at each turning point, commercial and political power chose against the interests of the relatively powerless. In the immediate decade after the cause and effect relationship was well established, the company continued its polluting ways, offering only meagre compensation that failed the most basic tests of due remedy and reparation – whose elements – under international law – are restitution, compensation, rehabilitation, satisfaction and guarantees of non‐repetition. The disproportionately pitiful figures of the first offers of compensation were so paltry as to add insult to injury.

But lack of financial compensation for the victims was indeed the least of it. The company went so far to publically deceive government, the community and victims’ families – putting in place pretend purifiers, sponsoring pretend research, lying about pretend disposal practices – driving further and further but very real human suffering and environmental degradation.

Freedom of information about hazards to health, about the nature and routines of toxins disposal and of governments’ steps to so provide – this is a fundamental human rights obligation and an essential responsibility of the State. In our story, the authorities knew of many of these continuing pernicious impacts but did not publish the results of their surveys’ findings. If there had been transparency in public reporting then perhaps local medical services in the affected areas would have recognised the related patterns of disease that told the story of continued toxic contamination and which led to unknown numbers of imminently preventable deaths. This is just one example of why cause‐of‐death surveillance – along with birth registration – are two essential elements of civil registration and the buildings blocks of legal personhood.

14 years after the little girl of our story fell ill, and following four years of legal review ­the State in question finally drew up a compensation plan for the victims and their families. However, a newspaper leak revealed the inadequacy, once again, of the compensation planned.

In this, the week in which on one day we always celebrate both the right to work and on another the freedom of the press, it is worth recalling how independent, impartial professional journalistic scrutiny is a friend to just and accountable public policy, however painful that scrutiny might be. 

It took a trial, and the exercise of the rule of law, to establish a complete victory for the victims:

"The defendant's factory was a leading chemical plant with the most advanced technology and ... should have assured the safety of its wastewater. The defendant could have prevented the occurrence of disease or at least have kept it at a minimum. We cannot find that the defendant took any of the precautionary measures called for in this situation whatsoever. The presumption that the defendant had been negligent from beginning to end in discharging wastewater from its acetaldehyde plant is amply supported. The defendant cannot escape liability for negligence."

You know, those who summoned the courage to pursue the company’s accountability through the courts came under fierce pressure: one woman was intimidated at her own home by the company’s executive; her family's property was attacked and human faeces were thrown at her in the street. How can it be that speaking out against environmental degradation should be such a dangerous business? Yet the Special Rapporteur on the Environment has reported just this year that on average, three people a week are killed somewhere in the world, simply for trying to protect the environment on which we all rely. Human rights defenders must be protected!

To conclude my recounting of our long and sometimes troubled relationship, that I trust today we can truly celebrate, let me sound a note of optimism. Historians reflecting on the legacy of this the story we have been considering – credit the protests, learning, law and scrutiny that it generated as being an enabler of democratization of the State concerned. Advocacy, protest, law reform, industry standards – all emerged phoenix like from the ashes of our story – a democratic dividend now enjoyed by millions.

As you may recognise, this is the story of Minamata disease. Its dynamics have been repeated over and over again elsewhere; whenever the consequences of toxic waste mismanagement are approached without regards to human rights and whenever respect for human rights fails to reach the contaminated terrain.

We recall this shared story ‐not to admonish but to urge; not to criticise but to point to that which is critical; not to compete for visibility but to visibly and tangibly collaborate.

In this human rights would urge you to:

  • Please put people in the picture as your partners ‐Ask people what they think, know, see; make it easy for people to tell you what they know and what they fear – without reprisal or retaliation or repercussion. Let quality, accurate information, like fresh water, flow freely.
  • Ensure that in pursuit of development, there is also always a public eye to the universal benefit for the people. Avoid selectivity and discrimination. Be impartial and proportional, particularly when companies seek to place themselves beyond the reach of the law.
  • Create laws that oblige and structure the conversation between people and developers; people and manufacturers; people and the State.
  • Monitor and report publically on incidents of mismanagement and evaluate.
  • Take action when promises are broken.

Let’s us vow now to do so together. In this struggle please know you have the High Commissioner, the Special Rapporteur on the Environment and the Special Rapporteur on Toxic Substances and Waste; you have the treaty bodies; the resolutions of the HRC and the SDGs. I hope you will take our hand so that we too can take yours. And, I most certainly hope there will be a wonderful reception party to follow forthwith.

Thank you.