Human Rights, Political Capture and Toxins in Water

Releasing toxins into the water involves human rights violations. An excerpt from the report of the 25th anniversary of the mandate on toxic substances presented to the United Nations General Assembly in 2020.

Diseases and disabilities that result from exposure to toxic substances are cruel, inhuman and degrading. ^{These include the excruciating pain of cancer, the suffocating torture of respiratory diseases, and the psychological torment of parents as they see the effects of their own exposures materialize on their children 1.}

With this preamble, I open the discussion on toxic substances, water, political capture and human rights (henceforth human rights).

It is commonplace that when talking about toxic substances, the topics that are correlated are those related to human health, occupational, environmental or health risks, but it is unlikely that they are related to human rights.

Human rights are prerogatives that all people have simply because they exist (universal), they are inalienable, inalienable, imprescriptible, indivisible, progressive and encompass a great diversity of issues, interdependent and interrelated to each other. Thus, the breach of a right can lead to non-compliance due to a relationship or dependence on another or other rights of human rights.

All human rights are comprised of different dimensions, such as availability, physical accessibility, economic accessibility (affordability), access to information, acceptability, quality and security.

Since they are indivisible, one dimension of a human right cannot be fulfilled without fulfilling the others. The full guarantee of the exercise of the right necessarily implies that each and every one of the dimensions of that right is guaranteed.

Every country on the planet has signed at least one treaty or convention related to human rights, so all States are part of the so-called International Human Rights Treaty System. Even if only one instrument was adopted, the interdependence and interrelation of human rights creates obligations for all States.

Within the framework of this System, States are obliged to respect, promote, protect and guarantee human rights, and in the event of a violation or violation of these rights, to investigate, sanction, repair and seek the justiciability of these rights for the persons concerned.

It is important to remember that the holders of human rights are people, and in some very particular cases, their communities (indigenous peoples, Afro-descendant communities), but in no case are legal persons, such as companies, the holders of these rights. In this regard, there is national and international case law that reinforces this meaning.

For their part, the obligated subjects are the States and those individuals who, due to the State's omission or complacency, may violate human rights.

In 1993, the World Conference on Human Rights was held, the result of which was the Vienna Declaration and Programme of Action, which recognized that:

The illegal dumping of toxic and dangerous substances and wastes can constitute a serious threat to everyone's right to life and health. ^{Therefore, the World Conference on Human Rights calls on all States to approve and rigorously implement existing conventions on the dumping of toxic and dangerous products and wastes and to cooperate in the prevention of illegal dumpment.2}

In 1995, the United Nations Commission on Human Rights approved a mandate “to review human rights obligations related to exposure to hazardous substances and wastes” ³. To this end, he appointed a Special Rapporteur on hazardous substances and wastes, henceforth special rapporteur on toxic substances.

^{In 2000, General Comment 14 of the United Nations Committee on Economic, Social and Cultural Rights recognized the importance of taking measures to reduce stillbirth and infant mortality, as well as promote the healthy development of children and requires that children have a safe environment 4.}

Recommendation number 34 of this General Comment established that:

^{States must also refrain from illegally polluting the atmosphere, water and land, for example, through industrial waste from State-owned facilities... 5.}

In 2010, the then human right to water and sanitation was recognized, which by 2015 would be modified to recognize two autonomous human rights. Both resolutions affirmed that water has a dimension related to its quality and safety, which implies being free of chemicals and other risks that may be a threat to human health.

By 2011, the Human Rights Council stated that “hazardous substances and wastes could constitute a serious threat to the full enjoyment of human rights.” ⁶

The special rapporteur on toxic substances in his last report states that:

Tragically, States tend to set exposure standards at levels that will inevitably cause such harm, even when eliminating exposure is both technically and financially feasible. Compliance with legal limits is not enough to remedy the discriminatory and sometimes predatory exposure to toxic substances to which low-income and other vulnerable communities are subject. ^{Workers, children, women of childbearing age, the elderly, low-income communities and minorities are among the vulnerable people who are legally poisoned 7.}

This statement made before the United Nations General Assembly stems to a large extent from the fact that some market players, mainly industries, have managed to control the definition of regulations on exposure to toxic substances, thus limiting controls on toxic emissions and, thus, preventing States from guaranteeing their obligations in the area of human rights. This is the result of the political capture of institutions.

Public capture is understood when an actor other than the State manages to control a public decision through different strategies, with the purpose of benefiting their private interests, over and above the public interest.

There are different forms of political capture, one of which is legislative capture, whose most paradigmatic case is the North American one, where the market directly finances electoral campaigns, without this being illegal. In terms of human rights and toxins, a clear example of this capture was the one known as the Halliburton slit, which, in 2005, exempted fracking from being considered an underground injection of potentially toxic substances by the United States Safe Drinking Water Act and with it, several regulations were annulled to prevent water pollution ⁸, which together with other environmental deregulations boosted the fracking industry in that country.

Another form of capture from the law is to influence institutional designs that facilitate or make it cheaper to capture the institutions responsible for designing, implementing or verifying the standard.

Speaking of institutional arrangements, there are also frequent ad hoc designs of regulatory bodies and their consultative bodies (technical committees) that incorporate in their seats people from or representatives of industries that will be regulated. Giving a voice and vote to those who will be regulated gives them the opportunity to block, boycott or adjust regulatory processes in such a way as to reduce implementation costs and maximize their profits, putting private interest before common interest.

Political capture, human rights and toxins in water are closely related.

For this reason, with the update of the Official Mexican Standard NOM-001-SEMARNAT-1996, which establishes the maximum permissible limits of pollutants in wastewater discharges into national waters and goods ⁹, in force since 1997, the door is enabled to observe, from the institutional arrangement and processes, the way in which the State enables compliance with its obligations in the area of human rights.

The updating of this standard responds to the State's obligations in the area of human rights, as described by the rapporteur on toxic substances, stating that:

No State can fulfill its human rights obligations, whether with regard to life, health or the right not to be subject to degrading treatment, if it prevents the exposure of human beings to dangerous substances ¹⁰.

States' obligation to protect and prevent human rights violations is not in question. On the other hand, any act contrary to this objective should be questioned and investigated because it would go the other way and would promote potential violations of human rights.

The rapporteur on toxins himself confirmed this last year before the United Nations General Assembly:

^{No State will comply with its human rights obligations unless it obliges companies and other agents in its jurisdiction to make the transition to cleaner, safer, healthier and more sustainable production, use and disposal of chemicals, whether in its territory or abroad 11.}

In this sense, the update of NOM-001 is an act of environmental and social justice, a mechanism promoted by the Mexican State to meet its obligations in the area of human rights and a process free of political capture.