The Coalition against BAYER-dangers participated in the „Permanent Peoples‚ Tribunal on Industrial Hazards and Human Rights“ which presented the following Charter:
Charter of Rights against Industrial Hazards
PART I, RIGHTS OF GENERAL APPLICATION
Article 1 Non-discrimination
1. Everyone is entitled to all the rights and freedoms set forth in this
Charter, without distinction of any kind, such as race, colour, sex,
language, religion, nationality, political opinion or affiliation, ethnic or
social origin, disability, age, property, sexual orientation, birth, income,
caste or any other status.
2. On account of the particular discrimination faced by women, both as
waged and unwaged workers, attention should be given to the specific
application of the rights stated below.
3. On account of their vulnerability and exploitation in the labour market,
special protection should be accorded to children exposed to industrial
hazards.
4. On account of the connection between low wages and hazardous
working environments and the disproportionate impact of industrial
hazards on racial and ethnic minorities, special protection should be
afforded low income groups and racial minorities.
Article 2 Relation to other rights
The rights in this charter and other human rights, including civil, political,
economic, social and cultural rights, are universal, interdependent and
indivisible. In particular, freedom from hazards, including the right to
refuse hazardous employment and the right to organise against hazards,
depends upon the full implementation of social and economic rights,
including the rights to education, health and an adequate standard of
living.
Article 3 Right to accountability
All persons have the right to hold accountable any individual, company or
government agency for actions resulting in industrial hazards. In
particular, parent companies, including transnational corporations, shall be
liable for the actions of their subsidiaries.
Article 4 Right to organise
1. All community members and workers have the right to organise with
other local communities and workers for the purpose of seeking to ensure
a working environment free from any hazard resulting from the
manufacturing or other industrial processes in which an employer is
engaged.
2. In particular, the right to organise includes:
(a) the freedoms of expression, association and peaceful assembly;
(b) the right to form local, national and international organisations;
(c) the rights to campaign, lobby, educate and exchange information;
(d) the right to form trade unions;
(e) the right to strike or take other forms of industrial action.
Article 5 Right to appropriate health care
1. All persons have the right to appropriate health care.
2. In particular, the right to appropriate health care includes:
(a) the right of individuals and groups to participate in the planning and
implementation of health care;
(b) the right of equal access of individuals and families to health care the
community can afford;
(c) the right to relevant health care services, including where appropriate
access to hospitals, neighbourhood clinics, specialist clinics, as well as the
services of general practitioners, other medical professionals and health
care workers drawn from the affected community;
(d) the right to independent information on the relevance and reliability of
health care services and treatments including allopathic, homeopathic,
nutritional, physiotherapeutic, psychotherapeutic, indigenous and other
approaches;
(e) the right to health care systems which recognise and take account of
the different ways in which hazards affect women, men and children;
(f) the right to health education;
(g) development of national, regional and international networks to
facilitate sharing of information and experience.
Article 6 Right of refusal
1. All communities have the right to refuse the introduction, expansion or
continuation of hazardous activities in their living environment.
2. All workers have the right to refuse to work in a hazardous working
environment without fear of retaliatory action by the employer.
3. The right to reject inappropriate legal, medical or scientific advice shall
not be infringed.
Article 7 Permanent sovereignty over living environments
1. Each state retains the right of permanent sovereignty over the living
environments within its national jurisdiction. No state shall exercise this
right so as to injure the health or living environments of its people, nor to
cause damage to the environment of other states or of areas beyond the
limits of national jurisdiction.
2. Each state has the right and the obligation to regulate and exercise
authority over hazardous and potentially hazardous enterprises in
conformity with the interests and well-being of its people and their
environment.
3. No state shall be:
(a) refused external finance or assistance on the grounds of its refusal to
import or establish hazardous products or processes;
(b) Compelled to grant preferential treatment to foreign investment;
(c) Made subject to external threats or coercive measures, whether
military, diplomatic, social or economic, intended to affect regulations or
policies regarding hazardous production.
4. Transnational corporations and multinational enterprises shall not
intervene in the internal affairs of a host state.
PART II , COMMUNITY RIGHTS
Article 8 Right to living environment free from hazards
1. All persons have the right to a living environment free from hazards. In
particular, this right applies where hazards arise from:
(a) the manufacture, sale, transport, distribution, use and disposal of
hazardous materials;
(b) any military or weapons application, regardless of national security.
2. Any person has the right to raise a bona fide complaint to the owner or
occupier of an economic enterprise regarding activities of the enterprise
which he or she believes are hazardous to the living environment.
3. Any person living in an environment from which it is impossible to
eliminate a hazard shall have the right to protective safety systems
necessary to eliminate any such hazard as far as possible. The owners or
occupiers of the concerned hazardous enterprise may not refuse to
provide the most effective systems available on the grounds of cost or
inconvenience.
Article 9 Right to environmental information
1. All persons have the right to be given reasonable notice of any proposal
to establish, expand or modify a hazardous industry in such location or in
such a manner as may put at risk public health or the living environment.
To achieve the full realization of this right, the following steps shall be
taken:
(a) All states shall ensure that communities, individuals and non-
governmental organisations have the right of access to full information
regarding the proposal. This right shall be effective well in advance of
official authorization and shall not be abridged by claims of commercial
secrecy.
(b) All states shall ensure that prior to official approval of any hazardous
enterprise, independent and thorough assessments of the impact upon the
environment and public health be conducted in consultation with the
community. The methods and conclusions of such impact assessments
shall be made available for public debate.
2. All persons have the right to be informed in their own language and in
a manner which they are able to comprehend, of any possible hazards or
risks associated with any product or process used by any enterprise with
which they may come into contact.
3. All persons have the right to be informed of the safety record of any
economic enterprises whose manufacturing or industrial processes could
affect their living environment, including the number of accidents, the
types of accidents that have occurred, the extent of injuries resulting from
such accidents and any possible long-term adverse health effects.
4. All persons have the right to be informed of types and quantities of
hazardous substances used and stored at the facility and emitted from the
facility and contained in any final products. In particular, the right to
information includes the right to regular toxic release inventories where
appropriate. All persons living in the neighbourhood of hazardous
facilities have the right to inspection of factory premises and to physical
verification of hazardous substances and processes.
5. All persons who live in environments in which they may come into
contact with materials or processes that are known to be seriously
hazardous and which emanate from the activities of an economic
enterprise, have the right to be examined regularly by an independent
medical expert provided by the owner or occupier of the enterprise.
Article 10 Right to community participation
1. All persons have the right to participate in planning and decision-
making processes affecting their living environment.
2. All persons have the right to planning and decision-making
proceedings which are:
(a) public and open;
(b) accessible to all in timing and location;
(c) widely advertised in advance;
(d) not restricted by literacy, language or format of contributions.
3. All persons have the right to express their concerns and objections
relating to hazards associated with establishing, modifying or expanding
any economic enterprise.
4. All persons have the right to participate in the design and execution of
on-going studies to determine the nature of any hazards to the living
environment resulting from an economic enterprise.
Article 11 Right to environmental monitoring
1. All persons have the right to regular and effective monitoring of their
health and the living environment for possible immediate and long-term
effects caused by hazardous or potentially hazardous economic enterprise.
2. All persons have the right to be consulted on the frequency, character
and objectives of environmental monitoring. The right to organise non-
professional monitoring strategies, such as lay epidemiology, shall be
protected. The rights of women, whose experience in providing health
care may reveal otherwise unidentified consequences of hazards, are
particularly affirmed.
3. Any person who bona fide believes that his or her community
environment is endangered by the actions of any economic enterprise, has
the right to an immediate and thorough investigation, to be carried out by
an independent agency at no cost to the person acting bona fide.
Article 12 Right to community education
1. All persons have the right to the effective dissemination of information
regarding hazards in the community. This right extends to instruction
based upon the best available information and standards, drawn from both
national and international sources.
2. States shall take effective steps to provide for:
(a) clear and systematic labelling of hazardous substances;
(b) appropriate education of the community, including children, on
hazardous products and processes;
(c) training of police, medical professionals and other service providers on
hazardous products and processes.
Article 13 Right to community emergency preparedness procedure
1. All persons have the right to an appropriate emergency preparedness
procedure. Such procedure shall include warning systems for impending
dangers and systems for immediate relief efforts.
2. All states shall take steps to provide communities with adequate
emergency services, including the provision of police, fire fighting,
medical and paramedical facilities and disaster management services.
Article 14 Right to enforcement of environmental laws
1. All persons have the right to have their local environment adequately
and frequently inspected by a trained environmental inspector who will
rigorously enforce the law and take punitive legal action when serious
breaches have taken place.
2. All persons have the right to environmental management legislation in
compliance with the precautionary principle, so that where there are
threats of serious or irreversible damage, lack of full scientific certainty
shall not be used as a reason to postpone cost-effective measures to
prevent hazards and environmental degradation.
Article 15 Rights of indigenous peoples
1. Indigenous peoples have the right to protect their habitat, economy
society and culture from industrial hazards and environmentally
destructive practices by economic enterprises.
2. Indigenous peoples have the right to control over their land and
resources management of their land which includes the right to assess
potential environmental impacts and the right to refuse to allow
environmentally destructive or hazardous industries to be set up on their
land.
PART III, RIGHTS OF WORKERS
Article 16 Specific Rights of Workers
In addition to their rights as members of the community, workers have
specific rights applicable to their working environments.
Article 17 Right to working environment free from hazards
1. All workers, both waged and unwaged, have the right to a working
environment free from any existing or potential hazard arising directly or
indirectly from the activities of any economic enterprise in particular from
manufacturing or other industrial processes.
2. Any worker has the right to raise bona fide complaints to the employer
or any outside parties regarding conditions or practices in the working
environment that he or she believes are harmful or hazardous without fear
of retaliatory action or other discriminatory action by the employer.
3. Any individual working in an environment from which it is impossible
to eliminate any hazard, shall have the right to have provided, fitted free
of charge and maintained in fully effective order, protective safety devices
including personal protective equipment necessary
to eliminate any such hazard as far as is possible. Employers may not
refuse to provide the most effective equipment available on the grounds of
cost or inconvenience.
4. All workers have the right to safe systems of work. All employers have
the
duty to devise, provide, maintain and regularly update safe systems of
work based on the best available information at all times.
5. No worker shall be subjected to exposure to a chemical, product or
process when a less hazardous one could be substituted.
6. Governments and employers are responsible for ensuring hazard-free
working environments. The inaction by either employer or government
shall not be an adequate excuse for a derogation of duty by the other.
Article 18 Right to health and safety information
1. All workers have the right to be given reasonable notice of any
proposed changes to their working environments which may pose a threat
to worker health and safety.
2. All workers have the right to be informed in their own language and in
a manner they are able to comprehend, of any known health hazard
associated with any substance, material or process with which they come
into contact during the course of their employment.
3. All workers have the right to be informed of the safety record of the
work environment in which they are employed, including the number and
type of accidents that have occurred, the extent of the injuries resulting
therefrom and any known long-term adverse health risks that result from
the substances, materials and processes used by the employer. Workers
have the right to be regularly informed of the safety records of any
economic enterprise affiliated by common ownership to the economic
enterprise in which they work, and which uses any similar substance,
material or process to that used in their work environment.
4. All workers employed in hazardous work environments have the right
to be examined by an independent medical expert provided by the
employer at the commencement of employment and thereafter at periodic
intervals defined on the basis of the most conservative estimate of
potential risks, but in any case not exceeding one year and to be furnished
with the resulting medical information.
Article 19 Right to worker participation
1. All workers have the right to participate effectively in management
decision-making affecting health and safety.
2. All workers have the right to elect safety representatives. Such
representatives have the right to participate in joint committees,
composed of worker and management representatives in equal number,
which meet regularly to address health and safety matters.
3. All workers have the right to participate in the design and execution of
ongoing health and safety studies in their working environments to
determine the nature of any risks to health and safety.
4. All workers have the right to establish and associate with community
hazards centres and information networks. Governments and employers
have a responsibility to support such organisations and programmes.
Article 20 Right to health and safety monitoring
1. All workers have the right to a work environment that is regularly and
effectively monitored for possible harmful effects to the health and safety
of the workers employed therein.
2. Notwithstanding the duty of employers to monitor working
environments, the right of workers to seek independent or worker-based
monitoring shall not be infringed. This right includes the right to regular
monitoring for possible adverse, long-term effects which may result from
contact with the substances, materials or processes used in the working
environment.
3. Any worker who bona fide believes that his or her health and safety is
being or will be endangered by any substance, material or process used in
the work environment has the right to an immediate and thorough
investigation, to be carried out by the employer, an independent agency or
by other means, at no cost to the worker.
Article 21 Right to instruction and practical training
1. All workers in contact with hazardous or potentially hazardous
substances, materials or processes have the right to ongoing instruction
and practical training regarding management of the hazard. The right to
instruction and practical training based on the best available information,
drawn from both national and international sources, is affirmed.
2. All workers and supervisors have the right to know and be fully
instructed about the proper use and handling of any hazardous materials,
the proper execution of any processes, the precautions necessary to
protect health, safety and the living environment, and any procedures
which should be followed in the event of an emergency.
Article 22 Right to workplace emergency preparedness procedure
1. All workers have the right to an emergency preparedness procedure
appropriate for the conditions or practices in their work environment
which shall include warning systems for impending dangers and systems
for immediate relief efforts, with full scale emergency preparedness
rehearsals and desk top exercises to be held frequently.
2. Emergency preparedness procedures shall take account of the
particular needs of individual workers, including those with visual, hearing
or mobility impairments.
3. All workers have the right to adequate emergency services, including
police, fire fighting, medical and paramedical facilities and disaster
management.
Article 23 Right to enforcement of health and safety laws
1. All workers have the right to have their work environments adequately
and frequently inspected by a trained health and safety inspector who will
rigorously enforce the law and take punitive legal action when serious
breaches have occurred.
2. All workers have the right to adequate planning control legislation in
compliance with the precautionary principle, so that where there are
threats of serious or irreversible damage, lack of full scientific certainty
shall not be used as a reason to postpone cost-effective measures to
prevent hazards and environmental degradation.
PART IV, COMMON RIGHTS TO RELIEF
Article 24 Right to relief and compensation
1. All persons injured or otherwise detrimentally affected by any
hazardous economic activity have the right to swift, comprehensive and
effective relief. This right applies to all persons affected by hazards or
potential hazards, including persons not yet born at the time of injury or
exposure, and those injured, bereaved or economically and socially
disadvantaged, whether affected directly or indirectly.
2. This right includes the right to fair and adequate monetary
compensation, paid to cover all costs associated with hazardous or
potentially hazardous activities, including the costs of:
(a) drugs, tests, therapies, hospitalisation and other medical treatments;
(b) travel and other incidental costs;
(c) lost wages, bridging loans and other pecuniary loss;
(d) redundancy and unemployment in the case of plant shutdown;
(e) additional unwaged work, including health care, born by family and
community;
(f) any purchase, measure or lost opportunity caused directly or indirectly
by hazardous processes or products;
(g) environmental rehabilitation.
3. All persons affected by hazards have the right to effective and
innovative policies to reduce, abate or compensate for hazardous
activities. To achieve the realization of this right, the steps taken by states
and businesses shall include:
(a) plant shutdown;
(b) pollution abatements or cessation;
(c) guarantee by liable defendants to keep assets unencumbered;
(d) forced liquidation of the assets of a corporation whose liability is equal
to or greater than its measurable assets;
(e) placement of corporate assets in annuity funds controlled by the
persons affected or their representatives for the interests of persons
affected;
(f) fair and adequate compensation for the costs of the medical monitoring
of symptoms;
(g) other remedies that may be deemed to be necessary for the benefits of
persons affected.
4. Funds shall be established adequately to satisfy the claims for the
persons affected and of those affected in future.
Article 25 Right to immediate interim relief
1. All persons adversely affected by any hazardous economic activity have
the right to immediate and adequate interim relief to alleviate their injuries
and suffering during the time that liability and compensatory damages are
being determined. States shall ensure that all hazardous or potentially
hazardous enterprises provide financial resources, through insurance or
other means, adequate to cover potential interim relief costs.
2. Where an economic enterprise fails to provide interim relief, it shall be
the duty of the state to do so. Interim relief so provided will not be set-off
against any final compensation allowed by the court.
Article 26 Right to medical information
All persons immediately or subsequently affected by hazardous activities,
including persons unborn at the time of the exposure to hazard, have the
right to obtain relevant documents
pertaining to injuries, including medical records, test results and other
information. This right may be exercised at the earliest opportunity and
may not be made subject to delay or non-compliance by either
government or industry. Such disclosure shall not be made in a manner so
as to prejudice the affected person‘s right of access to any service,
insurance, employment or any social or welfare opportunities.
Article 27 Right to professional services
1. All persons adversely affected by hazardous activity have the right of
access to effective professional services, including the services of lawyers,
journalists, scientific experts and medical professions.
2. Where questions of a scientific or medical nature are in dispute, all
affected persons, or their
representatives, have the right to genuinely independent advice, free from
fear or favour. The right to seek independent or multiple advice is
affirmed.
3. Professionals and experts shall refrain from:
(a) giving advice on the basis of inadequate information or expertise;
(b) obstructing the efforts of workers and communities to seek
information, conduct research or gather data through lay epidemiology or
other means;
(c) acting in concert against the interests of workers and communities.
4. All professionals having control of any information concerning the
health of any injured or hazard-affected person shall have a primary duty
of care towards the well being of that person. This duty shall at all times
take precedence over any allegiance to any third party, including any
government, professional organisation or commercial enterprise.
Article 28 Right to effective legal representation
1. All persons adversely affected by hazardous activities shall have the
right to employ independent legal counsel.
2. All states shall provide free legal representation and legal assistance by
an independent legal expert, in any case where the interests of justice so
require.
3. In the determination of any suit, the persons affected shall be entitled to
consolidate the claims under:
(a) the auspices of a workers‘ or community organisation; or
(b) class action laws in which the rights of any persons affected are
determined in one action.
4. All persons bringing or attempting to bring legal action have the right
to inspect any relevant legal files held by their legal representative.
Article 29 Right to choice of forum
1. All persons adversely affected by hazardous activities have the right to
bring law suit in the forum of their choice against alleged wrongdoers,
including individuals, governments, corporations or other organisations.
No state shall discriminate against such persons on the basis of nationality
or domicile.
2. All states shall ensure that in the specific case of any legal claims arising
from the effects of hazardous activities, any legal rule otherwise impeding
the pursuit of such claims, including legislative measures and judicial
doctrines, shall not prevent affected persons from bringing suit for full and
effective remedies. In particular, states shall review and remove where
necessary, legal restrictions relating to inconvenient forum, statutory
limitations, limited liability of parent corporations, enforcement of foreign
money judgements and excessive fees for civil suits.
Article 30 Right to pre-trial documentation
All persons adversely affected by a hazardous activity and their
representatives, have the right to seek and receive relevant documents,
records or other information for submission in court or other independent
tribunal or forum, for establishing individual, corporate, organisational or
governmental liability during litigation.
Article 31 Right to fair procedure
All persons adversely affected by hazardous activities shall have the right
to a fair and public hearing within a reasonable time by an independent
and impartial tribunal established by law. Included in this right is the right
to the due process of law, including:
(a) the right to opt out of class actions;
(b) the right to a reasonable notice and communication before an out-of-
court settlement in a civil suit is reached;
(c) the right to bring lawsuit notwithstanding the period of limitation set
by administrative, legislative or judicial or any other means.
Article 32 Right to freedom from fraud and delay
All persons adversely by hazardous activities shall have the right to be
protected against fraud by corporations, government or other
organisations. Also prohibited is intentional delay or obstruction of the
legal process, including:
(a) declaration of bankruptcy;
(b) abuse of the legal process to prolong adjudication;
(c) fabrication of evidence.
Article 33 Right to enforcement of judgements or settlements
All persons adversely affected by hazardous activities and their
representatives, shall have the right to enforce any judgement or
settlement against the assets of the liable or settling party in any other
countries and it shall be the duty of each state to provide under domestic
law such comprehensive instruments as assist any of its citizens so
affected.
Article 34 Right to shift the burden of proof
1. Where there is prima facie evidence that death or injury was caused by
an industrial hazard, the hazardous economic enterprise has the burden of
proving that it was not negligent.
2. No person adversely affected by hazardous activity shall be subjected to
excessive documentation requirements or strict standards of proof in
establishing that the hazardous activity caused their illness or symptoms.
The link between hazards and illness shall be presumed if the affected
persons establish
(a) they suffer from symptoms commonly associated with any harmful
substance, or any component thereof, which contaminated the
environment; and
(b) either
(i) they were present within the geographical area of contamination
during the period of contamination; or
(ii) they belong to a group of persons commonly identified as secondary
victims, including the
siblings, partners, children or close associates of the original victims of the
hazard.
Article 35 Right to corporate or state criminal accountability
1. All persons who have suffered injury or death from industrial hazards,
have the right to a full criminal investigation into the conduct of the
economic enterprise, any concerned government officials and any other
concerned individual or organisation. The investigation shall be both
immediate and rigorous and shall include an assessment of whether
potential criminal offences, including homicide or manslaughter, have
been committed. Where sufficient evidence exists prosecution shall be
pursued promptly and vigorously.
2. Where criminal liability of a company and or individual is proved, such
fines and or prison sentencing are to be imposed as to have a punitive,
exemplary and deterrent effect.
Article 36 Right to secure extradition
Where a person accused of a criminal offence in connection with
hazardous activities resides or is located in a state other than that in which
the trial is being or will be conducted, the right to demand and secure the
extradition of the accused to the trial state is hereby affirmed.
PART V
IMPLEMENTATION
Article 37 Corresponding duties
All persons, individually and in association with others, have a duty to
protect the rights set out in this Charter. Employers and government
officers are under a strict duty of care in vigilant application of the rights.
Special responsibility for the realization of the provisions of this Charter
lie with trade unions, community groups and non-governmental
organisations.
Article 38 State responsibilities
All states shall respect and protect the rights of workers and communities
to live free from industrial hazards.
Accordingly, they shall adopt legislative, administrative and other
measures necessary to implement the rights contained in this Charter.
Article 39 Non-state action
The absence of state action to protect and enforce the rights set out in this
Charter does not extinguish the duties of employers, trade unions, non-
governmental organisations and individuals to protect and assert these
rights.