Draft Convention

On

People’s Right to Safety

 

The parties to this Convention

 

·        Acknowledging that safety is a fundamental human right and an essential condition for the sustainable development of societies.

·        Concerned at the existence of safety hazards on a global scale and the serious threat that this poses to the life and health of the people of this world.

·        Aware that the concept of safety is complex and difficult to understand in its entire dimensions, physical, social, psychological and, therefore, difficult to promote.

·        Noting that in modern ways of living people have to use products and do things at places and at times which are determined by some one else or society at large.

·        Aware that people often have little choice in the design of, the home they live in, the design of the tools they use, the work place where they spend major of their day, the roads they use, the vehicles in which they travel or the amusement park where they go with their families on weekends and holidays

·        Recognising that individuals cannot be expected to be careful all the time and that, particularly with respect to activities that are universal in nature, such as, domestic chores, road use and work in offices, factories, farms, etc., the structures within which people are forced to function are an  important  factor in the occurence of accidents and injuries than just ‘operator negligence’.

·        Realising that effective safety enhancement requires an integrated approach, which takes into account several aspects in a framework that allows them to be viewed comprehensively

·        Reaffirming the principle of sovereignty of States in international cooperation to address the issue of safety

·        Recognising that safety legislation, safety standards and management objectives should all reflect the safety and sustainable development context, and that standards applied by some countries may be inappropriate and of unwarranted social and economic costs to other countries

·        Affirming that, nevertheless, it is necessary to articulate a universal vision of a world in which people are able to lead their lives with safety

·        Recognising the vital role that women play in the propagation of safety and safe practices in everyday life and affirming the need for the full participation of women at all levels of policy making and implementation of a global safety regime

·        Stressing the importance of and the need to promote international, regional and global cooperation among States and inter-governmental organisations and the non-governmental sector for the promotion of safety, safe technology and sustainable development

·        Acknowledging that the provision of new and additional financial resources and access to relevant technologies is essential if a global regime of safe and sustainable development is to become the norm

·        Acknowledging, further, that special provision is required to meet the needs of  countries with relatively low incomes, including the provision of new and additional financial resources and appropriate access to relevant technologies

 

·        Noting that, ultimately, safe and sustainable development on a global scale will strengthen friendly relations among States and contribute to peace for human kind

·        Following the Universal Declaration of The Rights of Peoples, The Universal Declaration of Human Rights,[1] The International Covenant on Civil And Political Rights,[2] The International Covenant on Economic, Social And Cultural Rights,[3] The Convention on The Elimination of All Forms of Discrimination Against Women,[4] The United Nations Declaration on the Elimination of Violence Against Women,[5] The United Nations Declaration on the Protection of Women and Children in Emergency and Armed Conflict,[6] The United Nations Convention on The Rights of The Child,[7] The Vienna Declaration And The Programme of Action of The World Conference of Human Rights,[8] Beijing Declaration and Platform for Action: The Beijing Conference on Women,[9] Copenhagen Declaration on Social Development and Programme of Action of the World Summit for Social Development,[10] The United Nations Declaration on Social Progress and Development,[11] The Draft United Nations Declaration of Rights of Indigenous Peoples,[12] and other relevant international human rights instruments.

·        Guided by the Rio Declaration on Environment And Development, Agenda 21,[13] and other relevant instruments for prevention of industrial and environmental hazards, and recognising the many linkages between protection of human rights and protection of the environment.[14]

·        Guided, further, by the International Labour Organisation conventions and recommendations, including the ILO Declaration on Fundamental Principles and Rights at Work,[15] The United Nations Convention concerning Freedom of Association and Protection of the Right to Organize,[16] The United Nations Convention concerning the Application of the Principles of the Right to Organize and to Bargain Collectively,[17] and, The Convention Concerning The Prevention Of Major Industrial Accidents.

·        Gravely concerned at the widespread diffusion of hazardous products and processes resulting in practices that cause human, social and environmental destruction, threatening in particular the habitat, life, economy, society and culture of the indigenous people.

·        Deeply concerned by the frequency of the small scale but harmful hazardous events as well as by the magnitude and nature of major industrial accidents, including the incidents in Seveso, Chernobyll, Bhopal, Basel and elsewhere.

·        Concerned that the existing national and international system of hazard prevention, post disaster relief, medical and legal assistance and legal accountability are relatively inadequate and unable to both, prevent occupational, environmental and other hazards and to bring to account those responsible for avoidable deaths and injuries.

·        Noting that urgent action is needed to prevent future degradation of human life, animal life and the environment and, to adequately remedy the harms caused by the myriad safety hazards that proliferate in the modern world.

·        Cognisant of the inherent limitation of national and international law as its stands, as well as of the vital role of community organisations and peoples movements in preventing and ameliorating these hazards.

·         Deeply concerned that injuries have become a prime cause of fatalities in all countries of the world

·        Convinced that new national and international systems for prevention, relief and legal accountability must come into existence.

·        Basing themselves on the seminal Charter on Industrial Hazards and Human Rights

 

Have agreed as follows:

Article 1:

The Principle 1.

The contracting parties declare that safety is a fundamental right and an essential condition for the sustainable development of societies

Article 2:

The Definition 1

 

Safety is a state in which hazards and conditions leading to physical, psychological or material harm are controlled in order to preserve the health and well being of individuals and the community.

The Definition 2

Safety is considered as a state resulting from a dynamic equilibrium that is established between the different components of a given setting. It is the result of a complex process where humans interact with their environment. Environment includes not only the physical but also the social, cultural, technological, political, economic and organisational environments.

The Definition 3

Safety is, however, not defined as a total absence of hazards. A certain level of danger can stimulate a state of vigilance, which in turn can have a protective effect. Exposure to minor hazards conveys a certain immunity to resist against potentially more severe aggressions. Therefore, the object of this convention is not to eliminate all dangers but rather to control dangers in order to protect the health and well being of individuals and the community.

Article 3

The Objectives

 

The contracting parties agree that there are two dimensions to safety

 

1.      The objective, assessed by behavioural and environmental parameters and, the subjective, appreciated according to the feeling of safety of the population. Both are important.

2.      An optimum level of safety requires individuals, communities, governments and others to create and maintain the four following conditions: a) A climate of social cohesion and peace as well as of equity protecting human rights and freedoms, at a family, local, national or international level; b) The prevention and control of injuries and others consequences or harms caused by accidents; c) The respect of values as well as the physical, material and psychological integrity of individuals; and d) The provision of effective preventive, control and rehabilitation measures to ensure the presence of the three previous conditions. This includes efforts to modify the environment and structures as well as attitudes and behaviours related to safety. It would necessarily be based on a multi-sectorial approach, including community enabling activities.

3.      NOTE: These conditions are not exhaustive.

Article – 4:

Non-discrimination

 

The contracting parties agree that:

 

1.      Everyone is entitled to all the rights and freedoms set forth in this Convention, 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 in almost every aspect of life, attention should be given to the specific application of the rights stated below where women may be affected.On account of their vulnerability in general and their exploitation in the labour market, special protection should be accorded to the safety needs of children.

3.      On account of the overwhelming, empirical connection between low incomes and absence of adequate safety provisions and, the disproportionate impact of safety hazards on racial, ethnic and other minorities, special protection should be afforded to low income societies and groups, and all minorities, including indigenous people.

Article  5

Relation to other rights

1.      The contracting parties recognise that many of the rights in this convention already form part of the body of international humanitarian law, comprised in the various treaties, charters, conventions, declarations, etc. that have come into existence since the end of the second world war. These include – human rights, civil, political, economic, social and cultural rights, the right to a safe environment, the right to information and informed choice, etc. All these rights are universal, interdependent and indivisible.

2.      A list of documents, along with a list of relevant provisions contained therein that are particularly related to or covered by the provisions of this Convention is being annexed to this Convention for ready reference

3.      The contracting parties agree that the right to safety, depends upon the full implementation all these civil, political, social, economic and other rights, including the rights to education, health and an adequate standard of living.

Article 6

Permanent sovereignty

 

The contracting parties recognise and agree that:

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 unsafe, hazardous and potentially hazardous activities and 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 unsafe or hazardous products or processes;

b.       made subject to external threats or coercive measures, whether military, diplomatic, social or economic, intended to, detrimentally, affect regulations or policies regarding unsafe or hazardous production, or other activities.

4.      Trans-national corporations and multinational enterprises shall not intervene in the internal affairs of a host State with the object of suborning that State’s safety standards and/ or policies, laws, rules and regulations governing safety. Provided that the refusal by a trans-national corporation or a multi-national enterprise to do business with or in a host State with the object of improving the safety standards or regime of the said State shall not attract this provision.

Article  7

Accountability

1.      The contracting parties agree that all individuals, companies or government agencies are, and shall be, accountable for actions resulting in hazards to safety. In particular, parent companies, including trans-national corporations, shall be liable for the actions of their subsidiaries.

Article – 8

Freedom and Right of Association

1.      The contracting parties recognise and undertake to ensure the right of all persons to form associations and to otherwise organise themselves for the purpose of seeking to ensure a safe life and environment.

2.      In particular, this right 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 strike or take other forms of pro-active action.

Article 9

Right to appropriate health care

1.      The contracting parties recognise and agree that 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, ayurvedic, homeopathic, naturopathic, 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 safety hazards affect women, men and children.

f.         The right to health education.

g.       The development of national, regional and international networks to facilitate sharing of information and experience.

Article – 10:

Decentralisation and Informed Consent

1.      The contracting parties agree that the introduction, expansion or continuation of unsafe or hazardous activities or structures into an environment should be based upon the informed consent, given without fear or undue influence of any kind, of the community likely to be affected by such actions. The contracting parties, further, agree that in order to give effect to the foregoing provision, they shall ensure the following:

a.       Effective dissemination of general information regarding safety and hazards to safety in the community, at the work place, home, roads and streets, and other public places, based upon the best available information and standards drawn from both national and international sources;

b.       Provision of appropriate information and education to communities, including children on hazardous products, processes and activities;

c.       That all proposals to establish, expand or modify in any manner a hazardous industry or any activity situated within a community, as may put public health or the safety of the living environment at risk are preceded by an independent and thorough impact assessment, which shall be conducted in consultation with the affected community;

d.       That complete information about the safety record of the enterprise (or enterprises) in question, whether privately owned or owned by a government or a local authority whose activities could affect the living environment, is made available to the entire community likely to be affected. This information shall include the number and type of accidents that have occurred, the nature and extent of injuries resulting from the accidents and information about possible long term adverse effects on health and environment;

e.       That all information in this regard is provided in the language (or languages) and in the manner (or manners), which is comprehensible to all the people concerned;

f.         That before the introduction, expansion or continuation of unsafe or hazardous activities or structures into an environment, all concerns and objections by the local community or experts retained by them for assistance are effectively and properly met or answered.

Article 11

Complaints

1.      The contracting parties agree that there shall be a right to raise a bonafide complaint against the owner or occupier of an economic enterprise, whether privately owned or owned by the government or local authority, regarding activities or the proposed activities of the enterprise or the government as the case may be, which the complainant believes are unsafe or hazardous to life or to the environment. Provided that where it is established that the complaint is frivolous or vexatious, the complainant or complainants, as the case may be, shall be liable to be prosecuted for the same under the normal law of the land.

2.      The contracting parties agree that where it is impossible to eliminate a hazard the complainant or the complainants shall have the right to demand protective safety systems necessary to eliminate the effects of such hazard, as far as possible. The offending party or parties shall not be entitled to refuse to provide the most effective safety system available on the ground of cost or inconvenience.

3.      The contracting parties agree to strengthen or to put into place legislation regulating and controlling the movement and/ or storage of hazardous substances. These regulations shall require full disclosure of information about the substance in question, including regular information about toxic release inventories, where appropriate. In order to ensure proper enforcement of these laws the contracting parties shall enlist participation of all persons and association of persons who live, work or otherwise use any locality, area or place where potentially hazardous or unsafe substances are used, stored or emitted.

Article 12

Environmental Monitoring

4.      The contracting parties shall ensure regular and effective monitoring of the living environment for possible, immediate and long term, effects of hazardous or potentially hazardous activities.

5.      The contracting parties shall also ensure regular monitoring of all environmental parameters in areas where hazardous materials, processes or activities are stored or carried out, as the case may be. This shall include regular monitoring of the health of the population group or groups that come into contact with or are exposed to hazardous materials, processes or activities in any manner. The costs of such monitoring may be shared by the enterprise or enterprises involved and the contracting parties, in such proportion as may be appropriate to the specific circumstances.

Article 13

Emergency Preparedness

1.      The contracting parties shall take steps to ensure provision of adequate emergency services including the provision for police, fire fighting, medical and paramedical facilities, and disaster management services to all persons and communities.

2.      The steps to be taken by the contracting parties in this regard shall include systems and procedures to provide warning for impending dangers and hazards.

Article 14

Enforcement of laws

3.      The contracting parties shall ensure rigorous and effective enforcement of all laws relating to safety. This shall include prompt prosecution or such other punitive legal action, in all cases of breach of these laws.

Article 15

Relief and compensation

4.       Contracting parties shall establish adequate mechanisms to provide relief and compensation to all persons injured or otherwise detrimentally affected by any unsafe or hazardous activity.

5.      The mechanisms so established shall provide for the right to fair and adequate monetary compensation, so as to cover all costs that may be incurred by or visited upon the affected population groups. These costs shall include the cost of: drugs, tests, therapies, hospitalisation and other medical treatments; travel and other incidental costs; lost wages, bridging loans and other pecuniary loss; redundancy and unemployment in the case of plant shut down; additional unwaged work, including health care, borne by the family and the community; environmental rehabilitation.

6.      In order to ensure the realisation of the right to fair and adequate compensation and relief, the mechanisms established by the contracting parties shall include plant shut down; pollution abatement or cessation; guarantees by liable defendants to keep the assets unencumbered; forced liquidation of assets of a corporation whose liability is equal to or greater than its measurable assets; placement of corporate assets in annuity funds controlled by the affected parties or their authorised representatives

Article 16

Immediate, interim relief

7.      The contracting parties shall ensure that all persons and enterprises involved in hazardous or potentially hazardous activities shall provide adequate financial security, through insurance or other means, to cover potential interim relief costs, which may be payable during the interregnum between the injury suffered and the determination of the liability and compensatory damages.

8.      Where the contracting party is itself a responsible party, the affected persons shall be entitled to interim relief from the concerned contracting party, through such domestic or international forum, as may be available for this purpose.

9.      The contracting parties further agree that all persons adversely affected by unsafe or hazardous activities shall have the right to obtain full disclosure of all documents pertaining to injuries, including medical records, test results and other information, as may be relevant or necessary for the purposes of medical treatment or for securing compensation and relief.

Article 17

Right to fair procedure, etc.

1.      The contracting parties agree that it is essential to provide for special procedures to deal with the complaints or actions arising out of effects of hazardous activities. These procedures shall, inter alia, provide for the following:

a.       The right to a fair public hearing within a reasonable time by an independent and impartial tribunal established by law and acting in strict conformity with the due process of law. This shall include: right to opt out of class actions; right to a reasonable notice before an out of court settlement is reached; the right to bring a law suit notwithstanding the period of limitation set by administrative, legislative, judicial or by other means; the right to protection against fraud, such as, declaration of bankruptcy, abuse of legal process to prolong adjudication, fabrication of evidence, etc., by the offending parties; the right to seek and receive relevant documents, records or other information from the offending parties, for submission in before the court or other independent tribunal or forum, with the object of establishing individual, corporate, organisational or governmental liability; the right to bring a law suit in the forum of choice against alleged wrong doers including individuals, governments, corporations or other organisations. In particular the contracting parties shall review and remove where necessary, legal restrictions relating to ‘inconvenient forum’, statutory limitations, limited liability of parent corporations, enforcement of foreign money judgments and the charging of excessive fees for filing of civil suits. the right to genuinely independent advice, free from fear or favour from scientific experts, doctors, lawyers, journalists, etc. The right to employ independent legal counsel.The contracting parties shall provide funds for engaging such counsel or the services of other necessary experts where the interests of justice so require.

b.       The right to consolidate claims under the auspices of a workers’ or a community organisation or into a class action suit. Where there is prima facie evidence that the death or injury was caused by an industrial hazard, the right to shift the burden of proof so as to require the hazardous economic enterprise that it was not negligent. The right not to be subjected to excessive documentation requirements or strict standards of proof in establishing the link between the hazardous activity and the adverse effect on the health of the affected persons. This link shall be presumed if the affected person(s) establish: that they suffer from symptoms commonly associated with a harmful substance or a component thereof, which contaminated the environment; that they were either present within the geographical area of contamination during the period of contamination, or that 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.

c.       The right to enforcement of judgement or settlements against the asset of the liable or settling party in any other country. It shall be the duty of each contracting party to facilitate such enforcement by making appropriate amendments to its domestic law.

Article 18

Corporate or State criminal accountability

2.      The contracting parties agree that all persons who have suffered injury or death as a result of an industrial hazard or product or any other activity shall have the right to a full criminal investigation into the conduct of the economic enterprise involved in the said hazard product or other activity. The investigation shall be immediate and rigorous. It shall include an assessment of whether potential criminal offences, including homicide or man slaughter have been committed. Where sufficient evidence exists, prosecution shall be pursued promptly and vigorously. The contracting parties further agree that where the criminal liability of a company or of an individual is proved, the law shall be suitably amended to provide that the fines and / or prison sentences to be imposed have a punitive, exemplary and deterrent effect. The contracting parties agree that they shall not refuse to extradite any person within their jurisdiction who is wanted in connection with criminal offences arising out of hazardous activities or products to the jurisdiction where the trial for such offences is being or will be conducted.

Article 19

State responsibilities

1.      All States shall respect and protect the rights of workers and communities to live in conditions that are safe and free from industrial hazards as far as possible. Accordingly the contracting parties agree to adopt and incorporate within their Domestic Law such legislative, administrative and other measures as are necessary to implement the provisions of this convention.

 

 

 

 

DOCUMENT SOURCES



[1] The Universal Declaration Of Human Rights, http://www.unhchr.ch/udhr/index.htm.

[2] The International Covenant On Civil And Political Rights, http://www.unhchr.ch/html/menu3/b/a_ccpr.htm

[3] The International Covenant On Economic, Social And Cultural Rights, http://www.unhchr.ch/html/menu3/b/a_cescr.htm

[4] The Convention On The Elimination Of All Forms Of Discrimination Against Women, http://www.unhchr.ch/html/menu3/b/e1cedaw.htm

[5] The United Nations Declaration on the Elimination of Violence Against Women, http://www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/A.RES.48.104.En?Opendocument

[6] The United Nations Declaration on the Protection of Women and Children in Emergency and Armed Conflict, http://www.unhchr.ch/html/menu3/b/24.htm

[7] The United Nations Convention On The Rights Of The Child, http://www.unhchr.ch/html/menu3/b/k2crc.htm

[8] The Vienna Declaration And The Programme Of Action Of The World Conference Of Human Rights, http://www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/A.CONF.157.23.En?OpenDocument

[9] Beijing Declaration and Platform for Action: The Beijing Conference On Women, gopher://gopher.undp.org/00/undocs/gad/A/CONF.177/95_11/20

[10] Copenhagen Declaration on Social Development and Programme of Action of the World Summit for Social Development, gopher://gopher.undp.org/00/unconfs/wssd/summit/off/a--9.en%09%09%2B

[11] The United Nations Declaration on Social Progress and Development, http://www.unhchr.ch/html/menu3/b/m_progre.htm

[12] The Draft United Nations Declaration Of Rights Of Indigenous Peoples, http://www.unhchr.ch/html/racism/indileaflet5.doc

[13] Rio Declaration On Environment And Development, http://www.unep.org/Documents/?DocumentID=78&ArticleID=1163

[14] Human Rights and the Environment, http://www.unhchr.ch/environment/

[15] ILO Declaration on Fundamental Principles and Rights at Work, http://www.ilo.org/public/english/standards/decl/declaration/text/index.htm

[16] The United Nations Convention concerning Freedom of Association and Protection of the Right to Organize, http://www.unhchr.ch/html/menu3/b/j_ilo87.htm

[17] The United Nations Convention concerning the Application of the Principles of the Right to Organize and to Bargain Collectively, http://www.unhchr.ch/html/menu3/b/j_ilo98.htm