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on right to safety
Charter on Right to
Safety
The right to life includes the right to live in good health according
to currently available knowledge and technology. However, while we would
never tolerate a person who introduced cholera germs in the city water
supply and then 'educated' every one to boil water before drinking it,
it is common to create a product or an environment which is likely to
cause injury, warn the user to be careful, and then blame the user if
a mishap occurs.
In the modern world people have to use products and do things at places
and at times which are determined by someone else or by society at large.
This holds true for activity at the work place, at home and in places
of leisure. Increasingly, people 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 a major part of the 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.
Indubitably, one aspect of safety is educating people to behave as careful,
responsible, human beings. However, to the safety paradigm, the structures
within which people are forced to function are a much more important cause
of accidents than 'operator negligence'. . This is particularly true for
activities which are universal in nature. Domestic chores, road use and
work in offices, factories or farms cannot be restricted to people who
will always be careful.
These structures are, in turn, rooted in historical power positions
in society. For this reason, policy makers and safety professionals in
every country find it very difficult to institute changes which actually
improve safety levels in society.
Clearly, therefore, safety promotion activities will not be successful
unless we address the social, economic and technological environments
and, the power available to people to influence decision making regarding
their own well being. In this context, community and class conflicts are
a major complication. The interests of poor communities are often in direct
conflict with the interests of the richer ones. Providing safety at the
work place to reduce injuries and deaths may reduce the profits of the
owners of the company. Slowing down traffic and providing a large number
of safer pedestrian crossings crossing annoy car owners. Providing low-cost
housing for low income groups takes away expensive land for making larger
houses for the richer ones.
The situation is also exacerbated by the fact that, globally, the problems
faced by poor societies are different from those currently prevalent in
the rich ones. Nor is the past experience of the currently affluent societies
of much use because of fundamental changes in the way systems are organised
today. Thus, while the theoretical base of safety promotion measures may
have international applicability the actual physical solutions may not.
Effective safety promotion also requires a great deal of understanding
between professional safety workers, the public and, policy makers because
a very large number of findings with respect to safety are counter-intuitive.
For example 'safer' technologies often promote riskier behaviour. Another,
major, cause of confusion is the fact that 'experts' disagree on most
safety related issues. In this general state of confusion it is easy for
vested political and business interests to give safety the go by, based
on 'technical' and 'cost-benefit' analyses.
Thus, safety promotion activities and systems need to be coherent in
conception, multi-disciplinary in approach and innovative in working.
Systems based upon such a foundation cannot be put in place unless there
is a societal and political understanding about the ethical and moral
responsibility of the State and Civil society to ensure the right to life
of all its citizens.
Having a common understanding of safety should favour a better co-operation
between the variety of disciplines and sectors concerned. It should also
stimulate the development of initiatives that can reduce the occurrence
of a given problem, and can improve the safety of the population in a
comprehensive perspective. This will help to create a positive vision
of safety as a value worth promoting in our communities. With a view to
initiating the establishment of such a universal paradigm of safety the
_____________, moots the following Charter.
A CHARTER FOR PEOPLES RIGHT TO SAFETY
This charter has been drafted in the spirit of learning from the past
so that a more humane future may be possible. The object of the charter
is to foster the development of new standards and legal norms which support
a safer environment for all living creatures. It is proposed that the
charter be placed before United Nations and other international bodies
for consideration.
Safety hazards are proliferating on a global scale and they pose a serious
threat to life and health. They are inherent in the existing political,
social, economic, technological, legal and medical systems. No aspect
of life is untouched by these systems. Yet, these systems completely fail
to acknowledge their liability to protect the lives of the people and
to provide a safe environment in which they can live. Safety, as a factor,
is of peripheral significance, if at all, in any system. At the very least,
it is a readily sacrificed commodity on the altar of "cost effectiveness".
Given the totalitarian nature of the technology based world order, "choice"
is increasingly a fallacy and an illusion. People are born into one or
the other "system" which then dictates virtually every aspect
of their life, till they die. The lack of choice pervades the home, the
common public spaces, the work place and the places of leisure.
Further, the dominant international order promotes, trades and protects
hazards to safety, without effective controls. As a result, not only has
life become exceedingly hazardous, the victims of these hazards are confronted
with a system which is grossly inadequate to protect them from death,
injury and persistent insecurity.
This Charter, besides making out a case for establishing universal norms
of safety, submits that it is the prime responsibility of the systems
of the world to ensure the safety of the people, to provide them a secure
environment, and to establish quick, effective and just mechanisms for
compensating the victims of these systems.
Effective safety enhancement requires an integrated approach which takes
into account several aspects within a framework that allows all these
aspects to be viewed comprehensively. The charter attempts to delineate
such a framework, which involves individuals, community groups, trade
unions, public interest organisations, corporate enterprises and government
in a plan of common responsibility and duty. The charter seeks to make
these rights both, a gift from the comity of nations to the people of
this world as also a set of demands arising from below, to be seized by
individuals and groups acting in the context of particular struggles.
The way in which it is interpreted and used will necessarily vary from
one situation to the next. It nevertheless, seeks to articulate a universal
vision of a world in which people are able to lead their lives with safety.
Following the Universal Declaration of the Rights of Peoples, the Universal
Declaration of Human Rights, the International Covenant on Civil and Political
Rights, the International Covenant on Economic, Social and Cultural Rights,
the Convention on the Elimination of All Forms of Discrimination Against
Women, the United Nations Convention on the Rights of the Child, the Vienna
Declaration and Programme of Action of the World Conference of Human Rights,
the Beijing Conference on Women, the Programme of Action of the World
Summit for Social Development and other relevant international human rights
instruments.
Guided by the Rio Declaration on Environment and Development, agenda
21, the draft declaration on Principles of Human Rights and the Environment,
the Draft Declaration on the Rights of the Indigenous People and other
relevant instrument for Prevention of Industrial and Environment Hazards.
Guided further by International Labour Organisation conventions and recommendations,
including the Convention on Freedom of Association and Protection of the
Right to Organise, the Convention on the Right to Organise and Collective
Bargaining and the Convention Concerning the Prevention of Major Industrial
Accidents.
Gravely concerned by the widespread diffusion of hazardous products and
processes resulting in industrial and other practices which cause human,
social and environmental destruction, threatening in particular the habitat,
life, economy, society and culture of indigenous peoples.
Deeply concerned by the frequency of small-scale but harmful hazardous
events, as well as the magnitude and nature of major industrial accidents,
including the incidents in Seveso, Chernobyl, Bhopal, Basel and elsewhere;
Concerned by the ineffectual national and international system of hazard
prevention, post-disaster relief, medical and legal assistance and legal
accountability which in their current forms have failed both to adequately
prevent occupational, environmental and other hazards and to bring to
account those responsible for world-wide deaths and injuries;
Noting that urgent action is needed to prevent future degradation to
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.
Cognizant of the inherent limitation of national and international law,
as well as the vital role of community organisations and people's movements
in preventing and ameliorating these hazards;
Convinced that new national international systems of prevention, relief
and legal accountability must be formulated and established; Basing themselves
on the seminal, Charter on Industrial Hazards and Human Rights DECLARES
THE FOLLOWING:
PART-I CONCEPT, OBJECTS & PROCESSES
Article 1: Safety, defined as a concept.
Safety is a fundamental right and an essential condition for the sustainable
development of societies
The concept of "safety" is, however, quite difficult to understand
in all its dimensions, physical, social, psychological, etc., and therefore
difficult to promote. Safety is more than the absence of violent events
or of injuries. When present, it leads to a feeling of well-being. So,
as for health, safety is a resource necessary to individuals or communities
to achieve their aspirations.
Since most individuals seek safety by all means, safety improvement,
as an explicit goal, can be a powerful mobilising force. However, the
absence of a common thread among various safety promotion interventions
makes it difficult to understand each group's actions in the realm of
possible interventions. It is, therefore, essential to have a common understanding
of safety which will stimulate the development of initiatives to improve
the safety of people in a comprehensive perspective, helping thereby to
create a positive vision of safety as a value worth promoting in our communities.
a) 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. It is an essential
resource for everyday life, needed by individuals and communities to realise
their aspirations.
b) 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.
c) 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 convey a
certain " immunity " to resist against potentially more severe aggressions.
Therefore, the object of this definition 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 - 2: The Objects Of Safety
There are two dimensions to safety: one is objective and assessed by behavioural
and environmental objective parameters and the other is subjective and
appreciated according to the feeling of safety of the population. 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.
NOTE: These conditions are not exhaustive.
Article - 3: The Processes Of Safety
Different approaches in the field of safety promotion and injury prevention
use a specific vocabulary and often have very different ways of understanding
reality, as well as of designing interventions and putting them to place.
However, many safety issues share common risk factors.
For example, firearms, medication, drugs and alcohol, are all related
to suicide, violence, criminality and non intentional injuries. Interventions
that take into account these risks and problems globally are liable to
be more effective and efficient.
Similarly, measures to prevent one problem can worsen another problem.
For example, the decision to lower alcohol taxes to prevent criminal activities
leads to a greater accessibility and more consumption and therefore may
have untoward effects on violence, suicide and non intentional injuries.
Such a decision must therefore be taken after considering its effects
on all aspects of safety rather than only one problem at a time.
Finally, a same organisation is often concerned by a set of safety issues.
For example, the solutions to road safety problems, criminality and violence
all involve municipalities. Therefore, it should prove timely and efficient
for a municipality to consider all these problems and solutions "globally"
rather than on a one by one basis.
Broadly speaking, however, at least two types of processes (will, must,
shall, can) be used to promote safety in a community: the problem-oriented
process and the setting-oriented process. Both are complementary and essential.
The problem-oriented process is the search for specific solutions
to problems considered one at a time.
The setting-oriented process consists, above all, in the assessment
of the safety problems of a specific setting in a global perspective and
in the identification of an integrated set of solutions aimed at improving
the safety level of the population.
PART-II RIGHTS
Article - 4: 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 in
almost every aspect of life, attention should be given to the specific
application of the rights stated below where women may be affected.
3. 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.
4. 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 aadivasis and indigenous people.
Article - 5: 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, the right to safety, depends upon the full
implementation of social and economic rights, including the rights to
education, health and an adequate standard of living.
Article - 6: Right to accountability
All persons have the right to hold accountable any individual, company
or government agency 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 - 7: Right to organise
1. All persons have the right to organise for the purpose of seeking
to ensure a safe life and environment.
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 strike or take other forms of pro-active action.
Article - 8: 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, 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 - 9: Right of refusal and complaint
1. All persons have the right to refuse the introduction, expansion
or continuation of unsafe or hazardous activities or structures in the
environment in which they live, work or play without fear or retaliatory
action by the owner/promoter/operator of such activities or structures,
or by the local, regional or, national government or authority within
whose purview the said activities or structures fall. In particular, this
right applies where the lack of safety or hazards arise from: a)
the manufacture, sale, transport, distribution, use and disposal of hazardous
materials, and 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, or to the appropriate government
or local authority regarding activities (or proposed activities) of the
enterprise or government which he or she believes are unsafe or hazardous
to life or to the environment.
3. Any person living or working in an environment from which it
is impossible to eliminate a hazard shall have the right to protective
safety systems necessary to eliminate the effects of any such hazard as
far as possible. The owners or occupiers or the government or local authority,
as the case may be, of the concerned hazardous enterprise or activity
shall not refuse to provide the most effective systems available on the
grounds of cost or inconvenience.
4. The right to reject inappropriate legal, medical or scientific
advice shall not be infringed, abridged or abrogated.
Article - 10: 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 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) 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 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.
Article - 11: Right to information and education
1. All persons have the right to the effective dissemination of
information regarding safety and hazards to safety in the community and
at the work place. 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,
processes and activities; c) training of police, medical professionals
and other service providers on hazardous products, processes and activities.
d) Reasonable notice to all persons of any proposal to establish,
expand or modify a hazardous industry or other activity, in such location
or in such a manner, as may put at risk public health, safety or the living
environment. To achieve the full realization of the right, the following
steps shall be taken: i) Communities, individuals and non-governmental
organisations shall be provided full access to information regarding the
proposal well in advance of official authorization and, without being
abridged by claims of commercial secrecy. ii) Prior to official
approval of any hazardous enterprise or other activity, independent and
thorough assessments of its impact upon the environment and public safety
and health, shall be conducted in consultation with the community. The
methods and conclusions of such impact assessments shall be made available
for public debate.
3. States shall ensure that information is provided in the language
and in a manner which is comprehensible to all the people concerned so
that they are able to understand any possible hazards or risks associated
with any product, process or other activity with which they may come into
contact.
4. The information provided shall include information about the
safety record of any enterprise, whether privately owned or owned by a
government or local authority, whose activities could affect the 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.
5. No one shall be entitled to use or store any type and/or quantity
of any hazardous substance at any facility and emitted from the facility
and contained in any final products, without making a full disclosure
of information about the said substance including, regular information
about toxic release inventories where appropriate. Further, all persons
who live, work or otherwise use any locality, area or place, in the neighbourhood
of facilities which are potentially hazardous or unsafe shall have the
right to inspection of the premises of the facility and to physical verification
of hazardous substances that may be used or stored there or, processes
or activities that may be performed there, as the case may be.
6. All persons who live in environments in which they may come
into contact with materials, processes or activities that are known to
be seriously hazardous and which emanate from the existence or functioning
of an enterprise, have the right to be examined regularly by an independent
medical expert paid for by the owner or occupier of the enterprise.
Article - 12: Right to Participation
1. All persons have the right to participate in planning and decision
making processes affecting their life or living environment. This includes,
the right to express their concerns and objections relating to safety
hazards associated with establishing, modifying or expanding any activity.
2. For the above right to be meaningful, planning and decision-making
proceedings must be: 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.
Article - 13: 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 activities.
2. All persons have the right to be consulted on the frequency,
character and objectives of environmental monitoring. They shall also
have the right to organise non-professional monitoring strategies, such
as lay epidemiology. The rights of women, whose experience in providing
health care may reveal otherwise unidentified consequences of hazards,
are particularly affirmed.
3. Any person who bonafide believes that his or her community environment
is endangered by any activity, shall have the right to an immediate and
thorough investigation, to be carried out by an independent agency at
the expense of the party who (or which) is alleged to be responsible for
the hazard.
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 any activity.
Article 14: Right to emergency preparedness procedure
1. All persons have the right to an appropriate emergency preparedness
procedure, at all places. Such procedure shall include warning systems
for impending dangers and systems for immediate relief efforts.
2. All States shall take steps to provide people and communities
with adequate emergency services, including the provision of police, fire
fighting, medical and paramedical facilities and disaster management services.
Article 15: Right to enforcement of safety laws
1. All persons have the right to have their local environment adequately
and frequently inspected by a trained 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 safety 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 III Rights to relief
Article 16: Right to relief and compensation
1. All persons injured or otherwise detrimentally affected by any
unsafe or hazardous 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 unsafe, hazardous
or potentially unsafe/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 unsafe or hazardous
processes, products or activities;
g) environmental rehabilitation.
3. All persons affected by hazards have the right to effective
and innovative policies to reduce, abate or compensate for unsafe or 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 17: Right to immediate interim relief
1. All persons adversely affected by any unsafe or hazardous 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 responsible party fails to provide interim relief,
it shall be the duty of the State to do so. Where the State is itself
a responsible party the claimants shall be entitled to move against the
State, for interim relief, before any domestic or international forum
that may be available for this purpose. Interim relief so provided will
not be set off against any final compensation allowed by the court.
Article 18: Right to medical information
All persons immediately or subsequently affected by unsafe or 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.
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 19: Right to professional services
1. All persons adversely affected by hazardous activity have the
right or 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 20: 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 21: 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 stats 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 22: 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 23: 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 24: 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 25: 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 citizen so affected.
Article 26: Right to shift burden of proof
1. Where there is prima facie evidence that death or injury was
caused by an industrial hazard, the hazardous economic enterprise as 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 27: 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 lines and or prison sentencing are to be imposed as to have a punitive,
exemplary and deterrent effect.
Article 28: 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 29: Corresponding duties
All persons, individuality 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 30: 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 31: Non-state action
The absence of state action to protect and enforce the rights set out
in this Charter does not extinguish the duties and employers, trade unions,
non-governmental organisations and individuals to protect and assert these
rights.
Safety as a Human Right
by Dinesh Mohan, Transportation Research and Injury Prevention Programme
Indian Institute of Technology, Delhi
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