P.O.

Box 5675, Berkeley, CA 94705 USA

The Illicit Tran!er an" #$%&in' o! Toxic (ate) The A"*ere
+!!ect o! Toxic an" +lectronic (ate on ,$%an -i'ht
I!eo%a .*onne A/$n0a
1arch 05, 2007
Unite" 3ation Co$ncil on ,$%an -i'ht
4
th
Seion
A'en"a Ite%) S&ecial Proce"$re 4 S&ecial -a&&orte$r on Toxic an" S&ecial +x&ert on
Trannational Cor&oration.
Contact In!or%ation)
I!eo%a .*onne A/$n0a, 5rank +. 3e0%an Intern
ia/$n0a6'%ail.co%
-e&reentin' ,$%an -i'ht A"*ocate thro$'h
Uni*erity o! San 5rancico School o! 7a08
International ,$%an -i'ht Clinic
Pro!eor Connie "e la 9e'a
2:;0 5$lton Street
Ifeoma Ajunwa, Human Rights Advocates Representative
Report to 4
th
Session of the United Nations Human Rights Council
San 5rancico, CA 94::7
Tel) 4:544224696:
I. Intro"$ction
here is no !uestion that there is an im"alance of wealth in the world# $ore
wealth leads to more consumption and ultimatel% to more waste# he United States
&nvironmental 'rotection Agenc% reports that in ())) alone, over *+,+++ to,ic waste
generators produced more than 4+ million tons of to,ic waste in the United States#
(
he
&uropean Commission reports that each %ear the &uropean Union accumulates (#- "illion
tons of waste, of which a"out 4+ million tons is ha.ardous#
*
/ith each nation possessing
finite space, a pro"lem arises from the need to dispose of waste0 this pro"lem "ecomes
more acute when the waste is ha.ardous# /hile argua"l% it is just that richer populations
share their wealth with less fortunate countries, few would see the fairness in richer
populations sharing their waste# his is especiall% true when such sharing of waste
products is ha.ardous to the health of poorer populations# he sad realit%, however, is
that as consumption increases in developed countries, less developed countries 123Cs4
are o"liged to "ear the "runt of the waste# 5or e,ample, China alone imported - million
tons of plastic waste in *++-#
-
his report focuses on two issues concerning the disposal of ha.ardous waste#
5irst, the report investigates the effects and causes of the illicit transfer and dumping of
to,ic waste# Although the report o"serves that governments and corporations are "oth
culpa"le, research indicates that most violations are "% multinational corporations#
Second, the report ma6es recommendations as to the "est mechanisms to stem the
(
5re!uentl% As6ed 7uestions A"out /aste, U#S# &nvironmental 'rotection Agenc%,
http899www#epa#gov9epaoswer9osw9"asifact#htm#
*
&uropean Commission, :/aste; last updated +<9(49*++<,
http899ec#europa#eu9environment9waste9inde,#htm#
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:China revises law == doesn>t want to "e ?world>s largest dumping ground#; People's Daily Online,
Novem"er 4, *++4, http899www#"an#org9"an@news9*++49+4((+4@china@revises#html#
*
Ifeoma Ajunwa, Human Rights Advocates Representative
Report to 4
th
Session of the United Nations Human Rights Council
pro"lem# 'articularl%, research has shown that e,isting legal instruments against the
illicit transfer of to,ics is lac6ing in enforcement and effectiveness# he report also notes
that in addition to the governments of the mem"er states entering into multi=lateral
environment agreements, there is a greater need for corporate accounta"ilit%#
Although the illegal action of a private entit% usuall% ma% not legall% "e imputed
to the State, at least one human rights "od% has found circumstances under which a State
ma% "e held responsi"le# he Inter=American Commission on Human Rights 1IACHR4
found8 :the State will incur responsi"ilit% for the illegal acts of private actors when it has
permitted such acts to ta6e place without ta6ing ade!uate measures to prevent them or
su"se!uentl% to punish the perpetrators#;
4
&ven if multinational corporations operate
inter=continentall%, the fact remains that the% are incorporated under the laws of a single
State and thus ma% "e regulated "% the laws of that State# hus, individual States should
"e held responsi"le for ensuring that corporations within their jurisdiction do not engage
in practices that result in human right violations#
II. The International 7e'al Co%%$nity8 5oc$ on ,a<ar"o$ or Toxic 0ate
A. #e!inition o! toxic 0ate
o,ic waste is defined as waste material that can cause death or injur% to living
creatures# his waste is produced from industr% or commerce, "ut is also derived from
residential use, agriculture, the militar%, medical facilities and radioactive sources# he
term is often used interchangea"l% with :ha.ardous waste,; or discarded material that can
pose a long=term ris6 to health or environment# o,ics can "e released into air, water, or
land#
A
Some e,amples of to,ic waste include chemical waste, medical or pharmaceutical
4
Inter=American Commission on Human Rights 1IACHR4, hird Report on the Human Rights Situation in
Colom"ia at (=B, C#A#S# 3oc# C&A9Ser#29D9II#(+*, doc# ) rev# ( 1()))4#
A
he Colum"ia &lectronic &nc%clopedia, Si,th &dition Cop%right E *++-, Colum"ia Universit% 'ress#
2icensed from Colum"ia Universit% 'ress# All rights reserved, http899www#cc#colum"ia#edu9cu9cup9
-
Ifeoma Ajunwa, Human Rights Advocates Representative
Report to 4
th
Session of the United Nations Human Rights Council
waste, and electronic waste 1:e=waste;4 which includes discarded computers and other
electronic devices that contain highl% to,ic chemicals such as lead and mercur%#
B. International 7e'al Intr$%ent on the +n*iron%ent
As to,ic waste degrades the environment, it also impacts the human right to a
health% environment# he Stoc6holm 3eclaration, adopted on Fune (<, ()G* is the first
document in international environmental law to e,plicitl% recogni.e the right to a health%
environment#
<
'rinciple ( of the Stoc6holm 3eclaration states8 :$an has the
fundamental right to freedom, e!ualit% and ade!uate conditions of life, in an environment
of a !ualit% that permits a life of dignit% and well="eing # # #;
G
'rior to that, the Universal
3eclaration of Human Rights Article *A affirmed that8 :&ver%one has the right to a
standard of living ade!uate for the health and well="eing of himself and of his famil%,
including food, clothing, housing # # #;
B
he International Covenant on &conomic, Social
and Cultural Rights Article (( further states8 :he States 'arties to the present Covenant
recogni.e the right of ever%one to an ade!uate standard of living for himself and his
famil%, including ade!uate food, clothing and housing###;
)
he right to housing is
affected "% the illicit dumping of to,ic waste which renders the environs of the dump site
uninha"ita"le#
5urther the State 'arties stipulated that8 :Hall "eneficiaries of the right to
ade!uate housing should have sustaina"le access to natural and common resources, safe
<
3eclaration of the United Nations Conference on the Human &nvironment 1Stoc6holm, Fune A=(<, ()G*4,
http899www#unep#org93ocuments#multilingual93efault#aspI3ocumentI3J)GKArticleI3J(A+-#
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Id.
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Universal 3eclaration of Human Rights, adopted and proclaimed "% Leneral Assem"l% resolution *(G A
1III4 of (+ 3ecem"er ()4B, http899www#un#org9Cverview9rights#html#
)
International Covenant on &conomic, Social and Cultural Rights adopted "% Leneral Assem"l%
resolution **++A 1MMI4 of (< 3ecem"er ()<<, entry into force - Fanuar% ()G<, in accordance with article
*G, http899www#unhchr#ch9html9menu-9"9a@cescr#htm#
4
Ifeoma Ajunwa, Human Rights Advocates Representative
Report to 4
th
Session of the United Nations Human Rights Council
drin6ing water###;
(+
As improperl% dumped to,ic waste leaches into the soil and
groundwater of the site where it is dumped, the illicit transfer and dumping of to,ic waste
does have a negative impact on the right to safe drin6ing water# 5inall%, the United
Nations Leneral Assem"l% has stressed the need to ensure a health% environment for the
well="eing of individuals#
((
he operative paragraph of the resolution reads :all
individuals are entitled to live in an environment ade!uate for their health and well=
"eing#;
(*
Darious reports show that the dumping of to,ic waste without the correct
precautions results in harm to the environment and to the health of human "eings#
Several $ulti=lateral &nvironmental Agreements 1$&As4 have "een enacted to
address the international transfer of waste, to,ics and chemicals# 5ew of them, however,
focus on the human rights implications of the illicit transfer of to,ics and wastes# he
Aarhus Convention is an e,ception as it allows individuals to demand information
sharing on projects or industries that affect the environment or human rights#
(-
&ntered
into force "% the &uropean Union and other States, the Aarhus convention is, however,
limited in its power to hold private corporations accounta"le as onl% pu"lic authorities are
re!uired to provide information#
he Nasel Convention on the Control of rans"oundar% $ovements of Ha.ardous
/astes and heir 3isposal is an international treat% that was entered into force on $arch
**, ()B) and is designed to prevent transfers of ha.ardous waste from developed to less
(+
The right to adequate housing (Art.11 (1)) 1!"1#"$1. C&SCR L&N&RA2 CC$$&N 4 he right to
ade!uate housing 1Art# (( 1(4 of the Covenant4 1Si,th session, ())(4, http899www#unhchr#ch9t"s9doc#nsf9
1s%m"ol49C&SCROLeneralOcommentO4#&nICpen3ocument#
((
Leneral Assem"l% Resolution 4A9)4 1())+48 Need to ensure a health% environment for the well="eing of
individuals# http899www#un#org9documents9ga9res94A9a4Ar+)4#htm#
(*
Id.
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United Nations &conomic Commission for &urope Convention on Access to Information, 'u"lic
'articipation in 3ecision=ma6ing and access to Fustice in &nvironmental $atters, done at Aarhus,
3enmar6, *A Fune ())B, http899www#unece#org9env9pp9documents9cep4-e#pdf#
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Ifeoma Ajunwa, Human Rights Advocates Representative
Report to 4
th
Session of the United Nations Human Rights Council
developed countries 123Cs4#
(4
Among the ConventionPs important o"jectives are8 the
curtailment of the amount and to,icit% of wastes generated, the regulation of the
management of waste from the source of generation in as environmentall%=sound manner
as possi"le, and the assistance of 23Cs in environmentall%=sound disposal of the
ha.ardous wastes the% generate or receive# Although entered into "% (<) countries
including most &uropean countries, the United States has %et to ratif% the Convention#
(A

A major limitation of the Nasel Convention is that it did not prohi"it waste
e,ports to an% location e,cept Antarctica# Also, as a prere!uisite for e,ports, the
Convention merel% re!uired a notification and consent s%stem 6nown as ?prior informed
consent? or 'IC#
(<
And as there was no "an on the e,portation of rec%cla"les, man%
waste traffic6ers e,ploited this loop=hole# he Nasel Nan Amendment to the Nasel
Convention 1which has not %et entered into force4 is the onl% proposed mechanism for
closing the loop=holes in the Nasel Convention. he Nasel Nan prohi"its the e,port of
ha.ardous waste from *) of the wealthiest developed countries to developing countries#
(G

his would appl% to all e,ports including those for the purpose of rec%cling# hus, the
Nasel Nan would "e of major assistance in addressing the mounting e=waste pro"lem in
the continents of Africa and Asia# Although the Nan Amendment has "een signed "% <-
mem"ers, it is strenuousl% opposed "% a num"er of industr% groups as well as nations and
has not "een ratified "% the United States and Canada#
(B
he &uropean Union full%
(4
he Nasel Convention on the Control of rans"oundar% $ovements of Ha.ardous /astes and heir
3isposal, http899www#"asel#int9te,t9con=e=rev#pdf#
(A
Secretariat of the Nasel Convention, United Nations &nvironment 'rogramme :'arties to the Nasel
Convention,; http899www#"asel#int9ratif9frsetmain#php#
(<
he Nasel Convention on the Control of rans"oundar% $ovements of Ha.ardous /astes and heir
3isposal, http899www#"asel#int9te,t9con=e=rev#pdf#
(G
he Nasel Action Networ6, :/hat is the Nasel NanI,
http899www#"an#org9a"out@"asel@"an9what@is@"asel@"an#html#
(B
Secretariat of the Nasel Convention, United Nations &nvironment 'rogramme, Nan Amendment to the
Nasel Convention on the Control of rans"oundar% $ovements of Ha.ardous /astes and their
3isposalLeneva, ** Septem"er ())A, ratifications, http899www#"asel#int9ratif9frsetmain#php#
<
Ifeoma Ajunwa, Human Rights Advocates Representative
Report to 4
th
Session of the United Nations Human Rights Council
implemented the Nasel Nan in its &=/aste Shipment Regulation 1&/SR4, ma6ing it
legall% "inding in all &U mem"er states#
Regional treaties involving the transfer of to,ics have "een formed in adversel%=
affected parts of the world# he Nama6o Convention on the Nan on the Import into
Africa and the Control of rans"oundar% $ovement and $anagement of Ha.ardous
/astes within Africa was adopted in())(# &ntered into force "% *+ of the -< mem"ers
of the Crgani.ation for African Unit% 1CAU4 in ())(, the fundamental intent of the
Convention is to raise awareness of the :ris6 of damage to human health and the
environment caused "% trans"oundar% movements of ha.ardous wastes#; In Article ) of
the Nama6o Convention, :illegal; transfer of waste is defined as the :deli"erate disposal
of ha.ardous waste in contravention of this Convention and of general principles of
international law#;
()

he Nama6o Convention was prompted "% the failure of the Nasel Convention to
prohi"it trade of ha.ardous waste to 23Cs, and from the reali.ation that man% developed
nations were e,porting to,ic wastes to Africa# An incident in Qo6o, Nigeria in ()BG is
"elieved to "e the spur for the Nama6o Convention# Italian "usinessmen Lianfranco
Raffaeli and Renato 'ent, of the waste "ro6er firms &comar and Fell% /a, respectivel%,
entered into an illegal contract with Nigerian "usinessman, Sunda% Nana, to use his
propert% for storage of (B,+++ drums of ha.ardous waste 1pol%chlorinated "iphen%ls and
dio,in4 for appro,imatel% R(++ a month#
*+
After the waste lea6ed from the "arrels, the
man% wor6ers emplo%ed in the clean=up were hospitali.ed with chemical "urns, nausea,
paral%sis and coma# he seven premature "irths that occurred within the time period
()
Nama6o Convention on the Nan of the Import Into Africa and the Control of rans"oundar% $ovement
and $anagement of Ha.ardous /astes /ithin Africa. Crgani.ation of African Unit% 1CAU4, Fanuar% -+,
())(, http899www#"an#org92i"rar%9"ama6o@treat%#html#
*+
Nigerian /aste Imports from Ital%, http899www#american#edu9&39nigeria#htm#
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Ifeoma Ajunwa, Human Rights Advocates Representative
Report to 4
th
Session of the United Nations Human Rights Council
were also attri"uted to the high to,icit% of the dumpsite#
*(
Although the Nama6o
Convention uses a format and language similar to that of the Nasel Convention, it is much
stronger in prohi"iting all imports of ha.ardous waste, and in not ma6ing e,ceptions 1li6e
those for radioactive materials4 made "% the Nasel Convention#
C. The role o! the S&ecial -a&&orte$r
he Commission appointed a Special Rapporteur in ())A to stud% the adverse
effects of the illicit movement of to,ic wastes on the enjo%ment of human rights# he
United Nations Commission on Human Rights has determined that to,ic waste affects the
human right to health, "oth ph%sical and mental, and the human rights to clean water,
food, ade!uate housing and wor6#
**
he Commission has also affirmed that illicit traffic
in and dumping of to,ic wastes constitute :a serious threat to the right to life and the
enjo%ment of the highest attaina"le standard of ph%sical and mental health and other
human rights # # # particularl% of individual developing countries that do not have the
technologies to process them#;
*-

he mandate of the Special Rapporteur is crucial to addressing this growing
pro"lem# his report calls for the scope of the mandate of the Special Rapporteur on
o,ics to "e enlarged such as to encompass, "oth the illicit trans"oundar% movement of
to,ics and the illicit dumping of to,ics "% foreign entities# Such a mandate would
encompass multinational corporations present in developing countries and who engage in
illicit dumpings#
III. The e!!ect o! the illicit tran!er an" "$%&in' o! toxic 0ate
*(
Lreenpeace International# 1())(4# Lreenpeace waste trade update, 4 1(4#
**
Commission on Human Rights, Report on the <(
st
Session, (4 $arch =** April *++A, resolution *++A9(A,
:Adverse effects of the illicit movement and dumping of to,ic and dangerous products and wastes on the
enjo%ment of human rights,; http899www#ohchr#org9english9"odies9chr9docs9<(chr9reportCHR<(#pdf#
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Ifeoma Ajunwa, Human Rights Advocates Representative
Report to 4
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Session of the United Nations Human Rights Council
A. +!!ect in #e*elo&in' Co$ntrie
'eople in developing countries are in the greatest danger from the illicit transfer
of to,ics as the% often lac6 the technolog% to safel% dispose of the waste# Africa has
"een particularl% affected "% the dumping of to,ic waste# 5or the past (A %ears, the coast
of Somalia has "een used as an illegal dumping ground for several &uropean
companies#
*4
hese companies have dumped their most to,ic su"stances including
nuclear and chemical wastes into SomaliaPs waters# he Asian sunami has further
e,acer"ated the pro"lem as the tidal waves smashed open the containers of to,ic waste
and spread the contaminants as far awa% as (+ or more 6ilometers inland# Some of the
groundwater has also "een contaminated# he dumping is illegal0 "ut the low cost 1R*#A+
per ton to dump the wastes on SomaliaPs "eaches as opposed to the R*A+ to dispose of it
in &urope4, the ease of the dumping due to the a"sence of a functioning government, and
the lac6 of accounta"ilit% has prompted man% corporations to continue this dangerous
practice in Somalia and in other parts of Africa#
*A

Another recent e,ample involved the dumping of to,ic waste in the Ivor% Coast
"% rafigura, a 3utch Compan%# he waste was not incinerated as re!uired for health
reasons and the emissions from the waste resulted in the death of (+ people and the
hospitali.ation of <) others#
*<
A Nritish law firm instituted a lawsuit against the
corporation and "oth the Ivorian and 3utch authorities started criminal proceedings
against the corporation and its officers#
*G
An agreement was reached "etween rafigura
*4
Qevin Caruso, :Illegall% 3umped Ha.ardous /aste Released in Somalia After sunami,; 5e"# *-, *++A,
http899www#tsunamis#com9tsunami=ha.ardous=waste=somalia#html#
*A
Id.
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:3echets o,i!ues8 2e *e Navire a !uitte A"idjan,
http899www#jeuneafri!ue#com9jeune@afri!ue9article@depeche
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'eter $urph% :Nritish 2aw%ers to Sue rafigura over o,ic /aste,; Nasel Action Networ6,
http899www#"an#org9"an@news9*++G9+G+(+)@law%er@of@victims#html#
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Ifeoma Ajunwa, Human Rights Advocates Representative
Report to 4
th
Session of the United Nations Human Rights Council
and the Ivorian government wherein rafigura is to pa% the Ivorian government R()Bm
1S(+*m4 for a clean=up#
*B
However, rafigura admits no lia"ilit% for the incident and, a
condition of the deal is that the Ivor% Coast drop an% prosecutions or claims against the
firm# rafiguraPs emplo%ees, who had "een jailed "% the Ivor% Coast authorities after the
incident, would also "e released#
*)

Lreenpeace International has condemned the deal as 5austian and premature# In
an issued statement, Fasper eulings the Senior 2egal Counsel of Lreenpeace
commented, ?one cannot do justice without 6nowing the facts in their entiret%# At this
stage, it would have "een more appropriate to secure a provisional settlement with an
advance pa%ment, rather than one that closes the "oo6s definitivel%, especiall% when the
full e,tent of lia"ilities have not %et "een determined#;
-+

Although this settlement has no "earing on the legal rights of the victims 1the civil
lawsuit against rafigura is e,tant4, the general impression is that as a result of this deal,
the victims will now receive little support from their government in pursuing justice#
Helen 'erivier, the o,ics Campaigner for Lreenpeace International notes, ?the ease with
which international environmental laws are "ro6en and !uestiona"le deals e,changed for
real justice, painfull% highlights %et again, that the international communit% creates laws
"ut simpl% lac6s the political will to implement and enforce them#?
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B. +!!ect in #e*elo&e" Co$ntrie
'eople in developed countries are also adversel% affected "% the illegal dumping
of to,ic waste# he to,ic waste that is dumped in developing countries leaches its wa%
*B
:Ivor% Coast to,ic clean=up offer; "% NNC News, 5e"# (-, *++G,
http899www#"an#org9"an@news9*++G9+G+*(-@ivor%@coast#html#
*)
Id.
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Lreenpeace condemns rafigura=Cote 3PIvoire deal as travest% of justice# 5e"ruar% (4, *++G,
http899www#"an#org9"an@news9*++G9+G+*(4@travest%@of@justice#html#
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Ifeoma Ajunwa, Human Rights Advocates Representative
Report to 4
th
Session of the United Nations Human Rights Council
into the soil and eventuall% into the agricultural products grown on it# And as man%
developed countries depend on developing nations for agricultural products, to,ins
eventuall% find their wa% to dining ta"les in developed nations#
C. The "$%&in' o! +40ate i a 'ro0in' &ro=le%
he dumping of electronic waste 1e=waste4 has "een of particular issue in Asia
1specificall% China, India and Nangladesh4 and is a growing pro"lem in Africa
1specificall% Nigeria4# According to Nasel Action Networ6 1:NAN;4, some estimates
suggest "etween A+ per cent and B+ per cent of electronic waste ends up somewhere in
Asia#
-*
2ast %ear, Nritain sent more than *++,+++ tons of plastic to China for rec%cling,
along with * million tons of used paper or card"oard and large !uantities of steel and
redundant electrical goods#
--
At a"out SA++ to send a *<=tonne container of waste to
China, it is now cheaper to send plastic to the 5ar &ast than "% road from 2ondon to
$anchester#
-4
he human and environmental cost to China seems to "e dire, however, as
the &nvironment Agenc% has alread% prosecuted several Nritish companies for attempting
to e,port ?green? paper waste mi,ed with unrec%clea"le ru""ish#
-A
Although the
&uropean Union has issued the /aste &lectrical and &lectronic &!uipment 1/&&&4
directive in order to regulate how companies and consumers are to rec%cle and dispose of
e=waste, the effectiveness of this directive is !uestiona"le as the responsi"ilit% of
regulating e=waste lies onl% on the producer, and individual mem"er states ma% transpose
the directive into law as the% see fit# As of *++A, onl% C%prus has transposed the entire
-*
%ari&'en De (u)*an, :he pungent stench of e=waste,; I /orld Canada, August (), *++A
http899www#"an#org9"an@news9*++A9+A+B()@pungent@stench#html#
--
Nasel Action Networ6, :he Slow Noats to China filled with our refuse,; "% Cahal $ilmo, he
Independent, UQ, http899www#"an#org9"an@news9*++G9+G+(*<@slow@"oats#html#
-4
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Ifeoma Ajunwa, Human Rights Advocates Representative
Report to 4
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Session of the United Nations Human Rights Council
directive into law0 $alta and the United Qingdom have failed to incorporate an% part of
the directive#
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Reports show that as of April *++<, :A++ loads of computer e!uipment are
arriving in 2agos, Nigeria each month#;
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As much as GA percent of the incoming
e!uipment 1mostl% from governmental entities in the United States4 is unusa"le and are
simpl% dumped# 'hotographs ta6en "% NAN in 2agos show scrapped electronics l%ing in
wetlands, along roadsides, "eing e,amined "% curious children and "urning in
uncontained landfills#
-B
/hile the United States is an e,porter of e=waste, it is commenda"le that
California has passed legislation to stem illicit transfers#
-)
he law is effective "ecause
of its dual re!uirement8 (4 that e,porters notif% the state and demonstrate that all devices
sent to foreign destinations will "e handled in a manner that is at least in accordance with
the environmental and pu"lic health laws of rec%cling and disposal of such devices in the
state0 and *4 that manufacturers must demonstrate that the countr% of destination does not
prohi"it the importation of ha.ardous electronic waste#
4+
5urther, the law would re!uire
manufacturers to meet graduated rec%cling goals, ending in rec%cling )+T of the amount
of products sold on the mar6et "% *+(+# California has also esta"lished a deadline of
*++G for eliminating to,ics in production, the compliance of which would "e determined
"% the state agenc% in charge of to,ic su"stances control#
-<
?/aste &lectrical and &lectronic &!uipment 3irective,? &uropean Commission,
http899ec#europa#eu9environment9waste9weee@inde,#htm#
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&li.a"eth Lrossman, :/here computers go to die == and 6ill;
http899www#"an#org9"an@news9*++<9+<+4(+@where@computers@go#html#
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Id.
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Cal Health K Saf Code U *A*(4#) et se!# he e=waste legislation also provides :emergenc%; power to
the California 3epartment of o,ic Su"stances Control to implement rules necessar% to protect pu"lic
health#
4+
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Ifeoma Ajunwa, Human Rights Advocates Representative
Report to 4
th
Session of the United Nations Human Rights Council
he &uropean Commission should also "e e,tolled for its recent draft law of
5e"ruar% ), *++G that would punish corporations and individuals found responsi"le for
environmental disasters with criminal charges resulting in five %ears in prison or a
R)GA,+++ fine# he 3irective will have to go through "oth the Council and 'arliament
"ut once it is adopted, its implementation "% mem"er states would "e controlled "% the
&uropean Commission and the &uropean Court of Fustice# he proposal is aimed to
ensure a minimum level of protection of the environment under criminal law throughout
the &uropean Union and it replaces "oth the Council>s 5ramewor6 3ecision of *++- and a
proposal for a directive alread% presented "% the Commission in *++(#
4(
Among the
activities that would "e covered are :releasing ha.ardous su"stances that pollute the air,
water or soil VandW illegal shipments or treatment of waste#;
4*
As the &U Fustice
Commissioner 5ranco 5rattini noted, corporations are "ehind G- percent of
environmental crimes and thus it is important that offending corporations are punished
with more than fines# he proposed law, however, faces stiff opposition from
governments li6e Nritain and 3enmar6 who view it as infringing upon their sovereignt%#
4-
I9. Ca$e o! the illicit tran!er an" "$%&in' o! toxic 0ate
A. +xitin' Incenti*e an" an A=ence o! #eterrence
$an% countries lac6 an esta"lished regime for the disposal of to,ic waste "% their
pu"lic and private entities# hese countries also suffer from a lac6 of environmental laws
or la, enforcement of the few laws that do e,ist# he governments of these countries are
unli6el% to address this pro"lem as the% must often turn a "lind e%e to environmental
4(
Commission strengthens environmental protection through criminal law, a"olishing ?safe havens? of
environmental crime, 5e"# +), *++G, http899europa#eu9rapid9pressReleasesAction#doI
referenceJI'9+G9(<<KformatJH$2KagedJ+KlanguageJ&NKgui2anguageJen
4*
Aoife /hite, :&U $a6e Harming &nvironment a Crime; 5e"# ), *++G, http899www#sfgate#com9cgi=
"in9article
4-
Id.
(-
Ifeoma Ajunwa, Human Rights Advocates Representative
Report to 4
th
Session of the United Nations Human Rights Council
a"uses to successfull% compete for foreign investment# he complicit% of some
government officials ma% sometimes "e "ought "% "ri"er%#
44
Also, there is a financial
incentive for poor and inde"ted nations to ta6e pa%ments in return for accepting to,ic
waste# As one article notes, :povert% is the reason people have "een lured into accepting
su"stances that otherwise the% would not have#;
4A
here is an economic incentive for
corporations to engage in the illicit transfer of to,ics "ecause it is cheaper to dispose of
such wastes in developing countries than to pa% for their proper disposal# he pro"lem is
further e,acer"ated "% the lac6 of legal mechanisms for victims to redress their wrongs or
affect change#
$an% mem"er states have %et to enter into multilateral environmental agreements
1$&As4 such as the Nama6o Convention, the Nasel Convention and its proposed
amendment, and even when ratified, the pro"lem remains that, as previousl% discussed,
these $&As suffer severe limitations in terms of enforcement and incentive for
compliance# It has "een revealed that man% State 'arties ta6e advantage of the
am"iguit% of the language of these conventions to engage in the illicit transfer of to,ic
waste# 5or e,ample, :the majorit% of the waste trade destined for cheap dumping
locations in Africa is clandestinel% conducted, through false la"eling and under the guise
of rec%cling#;
4<
B. 7ack o! Cor&orate Acco$nta=ility
44
NNC News, :o,ic /aste Adds to Ivor% CoastPs woes#; "% Fames Copnall,
http899news#""c#co#u69*9hi9africa9A-*-***#stm#
4A
Nigerian /aste Imports from Ital%, http899www#american#edu9projects9mandala9&39nigeria#htm#
4<
Sitawa R# Qimuna, :Ha.ardous /aste ransfer to Africa8 Implications for the 'oor and $arginali.ed,
Sustaina"le Communities Review, Dolume G, No# (, *++4#
(4
Ifeoma Ajunwa, Human Rights Advocates Representative
Report to 4
th
Session of the United Nations Human Rights Council
As a result of glo"ali.ation, multinational corporations 1$NCs4 have su"stantial
power over polic%=ma6ing in "oth developed and less developed countries#
4G
hus, an%
law to address human rights violations must include corporations "ecause :the effects of
the human rights violations upon the individual are the same whether perpetrated "%
states or private actors#;
4B
he Nasel Convention has recogni.ed this need and imposed
lia"ilit% :directl% on individuals, including corporations, and re!uires signator% states to
enact domestic regulator% measures to punish offenders#;
4)
hus, the Human Rights
Council should recogni.e the necessit% for a code of conduct for multinational
corporations in regards to human rights#
A universal declaration of corporate responsi"ilit% is important to protect the
human rights of victims of corporate malpractices# Unfortunatel%, as current codes of
conduct are voluntar%, the% are ineffective in regulating corporations# he corporate code
of conduct proposed "% the UNPs Human Rights Su"=Commission in August *++- is a
good starting point for an% further wor6 in this area#
A+
However, an% approved code
should "e strengthened with an enforcement mechanism#
9. -eco%%en"ation
he Council should e,tend the mandate of the Special Rapporteur on the illicit
transfer and dumping of to,ics# Special Rapporteur should continue to focus his
investigation on the effects of illicitl% dumped to,ic waste on the human rights and
should anal%.e the effectiveness of remedies, such as those in the Ivor% Coast# he
Council should urge all mem"er states to ratif% the Nasel Convention and its Nan
Amendment or the Nama6o Convention# he Council should also advise governments to
enact legislation "anning e,port of waste to :rec%cling; centers a"road that lac6
standards for safe disposal# he Council should encourage governments to re!uire that
4G
Aguirre, 3aniel, %ultinational +orporations and the ,eali)ation of -cono*ic, .ocial and +ultural
,ights, -A Cal# /# IntPl 2#F# A-, AA 15all *++44#
4B
Id.
4)
/eiler, odd, /alancing 0u*an ,ights and In1estor Protection, *G N#C# IntPl Comp# 2# Rev# 4*), 44-
1Spring *++44#
A+
2or*s on the responsi3ilities of transnational corporations and other 3usiness enterprises, U#N# Su"=
Commission on the 'romotion and 'rotection of Human Rights, 3oc# &9CN#49Su"#*9*++-9(*9Rev#*#
(A
Ifeoma Ajunwa, Human Rights Advocates Representative
Report to 4
th
Session of the United Nations Human Rights Council
corporations produce goods with fewer to,ic components and adopt a code of
ethics9conduct#
he Council should specif% the human rights standards applica"le to corporations
involved in to,ics transfer and dumping and should wor6 on norms for corporate
accounta"ilit% with effective enforcement mechanisms and penalties# &nforcement
mechanisms would include fines, revocation9loss of corporate charter for repeat
offenders, and lia"ilit% for individual officers when corporations violate human rights#
2astl%, the Council should urge the e,tra=territorial application of environmental
laws# hus States ma% implement the environmental laws of another State in prosecuting
an offending corporation# Dictims ma% also sue $NCs within the legal s%stem of the
countr% in which the% are incorporated# he Council should draft a model framewor6 for
such suits and should encourage its mem"ers to adopt it and allow suits under this model#
5or e,ample, the Council ma% use the &uropean UnionPs current e,tra=territorial
application law as a model# he lawsuit against the 3utch corporation rafigura finds its
legal "asis in the &#UPs e,tra=territorial provisions0 specificall% Article * of the Nrussels
Convention of *G Septem"er ()<B on Furisdiction and the &nforcement of Fudgments in
Civil and Commercial $atters# hat Convention allows that :persons domiciled in a
Contracting State shall, whatever their nationalit%, "e sued in the courts of that State#;
A(

hus, since the rafigura "ranch that hired the ship to carr% the to,ic waste was
domiciled in the United Qingdom, the Nritish law firm of 2eigh and 3a% were a"le to sue
that "ranch on "ehalf of the Ivorian citi.ens# he cause of action is negligence and the
complaint alleges that rafigura "reached a dut% of care "% allowing its ship to off=load
waste in a countr% that had no facilities to ta6e care of it#
A(
Article * of the Convention of *G Septem"er ()<B on Furisdiction and the &nforcement of Fudgments in
Civil and Commercial $atters 1CF ()GB 2 -+4, p# -<4, as amended "% the Convention of ) Ccto"er ()GB
on the Accession of the Qingdom of 3enmar6, Ireland and the United Qingdom of Lreat Nritain and
Northern Ireland 1CF ()GB 2 -+4, p# ( and Xamended version Xp#GG4, "% the Convention of *A Ccto"er
()B* on the Accession of the Hellenic Repu"lic 1CF ()B* 2 -BB, p# (4 and "% the Convention of *< $a%
()B) on the Accession of the Qingdom of Spain and the 'ortuguese Repu"lic 1CF ()B) 2 *BA, p# (0 the
Nrussels Convention4# http899www#jura#uni=s"#de9convention="ru,elles9en9c=te,tes9"ru,#htm#
(<