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the toxic truth
obligations to prevent exposure to hazardous waste
As states parties to the International
Covenant on Economic, Social and Cultural
Rights (ICESCR), the governments
of the Netherlands and Côte d’Ivoire
are required to respect the right to
health of all persons and to take all
necessary measures to prevent third
parties, such as companies, from
infringing people’s rights to health.
The Committee on Economic, Social
and Cultural Rights (the Committee, or
CESCR) has emphasized that a state’s
obligation under Article 12.2(b) extends
to “the prevention and reduction
of the population’s exposure to harmful
substances such as ... harmful chemicals
or other detrimental environmental
conditions that directly or indirectly
impact upon human health.” 428 Violations
of the obligation to protect follow
from the failure of a state to take all
necessary measures to safeguard
persons within their jurisdiction from
infringements of the right to health by
third parties. “This category includes
such omissions as the failure to regulate
the activities of individuals, groups
or corporations so as to prevent them
from violating the right to health of
others; … and the failure to enact or
enforce laws to prevent the pollution
of water, air and soil by extractive and
manufacturing industries”. 429
The Committee has also clarified the
obligations of states parties to prevent
third parties, such as companies,
interfering with the right to health of
people in other countries. “To comply
with their international obligations in
relation to article 12, States parties
have to respect the enjoyment of the
right to health in other countries, and
to prevent third parties from violating
the right in other countries, if they are
able to influence these third parties
by way of legal or political means, in
accordance with the Charter of the
United Nations and applicable international
law.” 430
A vendor of water bags in Abidjan protecting
herself from the smell, September 2006.
© iSSouF SanoGo/aFp/Getty iMaGeS
The ICESCR also protects the right to
work. Article 6 of the Covenant obliges
states parties to recognize the right
of everyone to the opportunity to gain
their living by work, which they freely
choose or accept, and to take appropriate
steps to safeguard this right. 431
States parties are under an obligation
to take all necessary measures to prevent
third parties from infringing on the
right to a gain a living through work.
In relation to the transboundary movement
of hazardous waste, both the
Côte d’Ivoire and the Netherlands are
also parties to the Basel Convention
on the Control of Transboundary Movements
of Hazardous Wastes and their
Disposal (the Basel Convention). The
purpose of the treaty is to control and
regulate waste material that requires
special attention or may pose a hazard
to human health or the environment. 432
Under the Convention, states parties
are required to: prohibit the export of
waste to countries which have prohibited
the import of such waste; prohibit
the export of waste without prior notification
and consent from the state of
import; prohibit the export of waste if
there is reason to believe the waste
cannot be managed in an environmentally
sound manner (ESM). 433 ESM is
defined as “taking all practicable steps
to ensure that hazardous wastes or
other wastes are managed in a manner
which will protect human health and
the environment.” 434
States parties to the Basel Convention
have accepted that illegal traffic in
hazardous wastes or other wastes is a
criminal offence and each state party
is obliged to take “appropriate legal,
administrative and other measures to
implement and enforce the provisions
of [the] Convention, including measures
to prevent and punish conduct in
contravention of the Convention.” 435
For state parties who are party to both
the ICESCR and the Basel Convention,
the Basel Convention can be viewed as
the lex specialis which sets out specific
measures that states are required to
take to regulate the disposal of hazardous
waste in order to protect people’s
right to health and other economic,
social and cultural rights.
The Bamako Convention on the Ban
on the Import into Africa and the Control
of Transboundary Movement and
Management of Hazardous Wastes
within Africa
The Bamako Convention has many
similarities to the Basel Convention,
but contains stronger provisions on
prohibiting all imports of hazardous
waste to Africa. Under the Bamako
Convention, states parties agree to
“take appropriate legal, administrative
and other measures within the
area under their jurisdiction to prohibit
the import of all hazardous wastes,
for any reason, into Africa from non-
Contracting Parties. Such import shall
be deemed illegal and a criminal act.”
Bamako deals specifically with the
obligation of states parties to cooperate
in the prevention of the import of
hazardous waste. States parties are
required to:
“(a) forward as soon as possible, all
information relating to such illegal
hazardous waste import activity to the
Secretariat who shall distribute the
information to all Contracting Parties;
(b) co-operate to ensure that no
imports of hazardous wastes from a
non-Party enter a Party to this Convention.
To this end, the Parties shall,
at the Conference of the Contracting
Parties, consider other enforcement
mechanisms.”
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