Category Archives: Community

The Rights of Nature (Rivers) and Constitutional Actions in Colombia

By Héctor Herrera-Santoyo[1]

In this blog, I synthesize the cases that have protected the rights of rivers in Colombia, first summarizing the two main constitutional actions used in these cases. I finish with some conclusions.

“Acción de Tutela”

This legal action was created by the Colombian Constitution of 1991 and is applicable to protecting fundamental constitutional rights. About its relevance for protecting the right to a healthy environment, the Constitutional Court of Colombia, the highest Court in the Constitutional jurisdiction, ruled in Judgment T-341 of 2016:

Since the promulgation of the Political Constitution of 1991, the protection of the environment occupies a significant place in the Colombian legal system. From this perspective, this Court has recognized the ecological nature of the Constitution, the fundamental spirit of the right to a healthy environment and its connection with the fundamental rights to life and health, among others, which imposes correlated duties on the State and on the inhabitants of the national territory.”[2]

Compared to other legal actions, a “tutela” does not require a lawyer, has much simpler procedures and gets processed expeditiously.

Popular Action

Popular actions are enshrined in the Constitution and are intended for the protection of collective rights and interests related to the environment and public health, among others. The popular action was stipulated in Law 472 of 1998. Article 4 contains a non-exhaustive list of collective rights and interests that can be protected with this legal action for the public interest. Among them are the enjoyment of a healthy environment, the existence of ecological balance and access to public services. The purpose of the popular action is to halt a danger or threat to or violation of collective rights and restore things to their previous state when possible.

The Atrato River Case (2016)

Given the serious pollution caused by mining on the Atrato River in the Colombian Pacific, the ancestral territory of Afro-Colombian and indigenous communities, in 2015 the organization Tierra Digna, representing several Afro-Colombian communities, filed an “acción de tutela” before the Administrative Court of Cundinamarca, which declared it inadmissible. On second instance the Council of State also declared the legal action inadmissible.

Finally, the Constitutional Court reviewed the case and granted the protection through Judgement T-622 of 2016. Among other protections, this judgement ordered: protection of the rights to life, health, water, food security, a healthy environment, culture and territory for the actors; the design and execution of a plan to decontaminate the basins of the Atrato River; an action plan to definitively eradicate illegal mining in the region, and; a socio-ecological evaluation of the impacts of mining.

Specifically, on the rights of nature, the Court ordered: “RECOGNITION of the Atrato River, its basin, and tributaries as an entity subject to rights of protection, conservation, maintenance and restoration by the State and ethnic communities.” As a result, a government representative and community representative were put in charge of the legal representation of the river’s rights, making them “the guardians of the river.”[3]

The Coello, Combeima, and Cocora Rivers case (2019)

This popular action was interposed by the local Ombudsman of the central-western province of Tolima, Colombia to protect the collective rights of the inhabitants of these areas in the face of mining.

In June 2019, the Regional Court of the Province of Tolima recognized rights to three rivers: “It establishes the recognition of the Coello, Combeima, and Cocora rivers, their basins, and tributaries as individual entities, subject to rights of protection, conservation, maintenance and restoration by the State and the communities.” This ruling also ordered a mining stoppage in these rivers and also declared the shared responsibility of mining companies for environmental impacts.[4]

Cauca River case (2019)

Senator Juan Luis Castro and activist Diego David Ochoa filed an “acción de tutela” in response to the serious environmental situation of the Cauca River, one of the most important in Colombia.

In 2019, the Superior Court of Medellín recognized the Cauca River, its basin, and its tributaries as a subject of rights and ordered their protection, conservation, and maintenance by the State and Public Companies of Medellín (EPM in Spanish). EPM is building the largest hydroelectric plant in Colombia on the Cauca River. Similarly, it “recognized that future generations are subject to special protection and, as such, the protection of their fundamental rights to dignity, water, food security, and a healthy environment are granted in their favor.”[5] This case shows that not only is mining a threat to the rivers of Colombia, but also hydroelectric projects causing social and environmental impacts. Currently, the energy grid of Colombia relies mostly on hydro energy.

Conclusions

In Colombia, a judicial precedent for the rights of nature has been consolidated and is likely to be developed further by future decisions both in the highest Courts and local Tribunals. The judgments of the Constitutional Court are especially important in a context where the rest of the world is also advancing in the recognition of the rights of nature, such as is the case with the Vilcabamba River case in Ecuador (2011), the Te Awa Tupua (Whanganui River) law in New Zeeland (2017), and the Ganges and Yamuna Rivers case in India (2017).[6]

In Colombia’s case, there are several challenges in materializing this type of judicial order and guaranteeing these rights, including the implementation of judicial orders for the protection of rivers and other ecosystems subject to rights amidst a complex context of conflicts and weak institutions, the implementation of complex judicial orders that involve the protection of the rights of future generations, and a lack of clarity about which communities and institutions should assume legal representation for the purpose of daily procedural activities in the name of nature.

[1] GNHRE Deputy Regional Director for Latin America and Coordinator in the Observatory for Marine and Coastal Governance (Colombia)

[2] Constitutional Court of Colombia. Judgment T-341 of 2016. Available in Spanish at this link.

[3] The Dignity Rights Project translated the entire Atrato River Judgment into English, available at this link.  For an academic analysis of the case, consult the chapter, “Implementing Environmental Constitutionalism in Colombia,” published in 2018 and available at this link.

[4] More information about this case in Spanish can be found at this link.

[5] A broader context of the situation and the complete Judgment in Spanish can be consulted at this link.

[6] Mesa Cuadros, Gregorio (ed.) (2019) Environmental Standard and Environmental Rights in post-peace agreements: some case studies. Bogotá: National University of Colombia, Unijus, Chapter 1, pp. 25-51.

Featured image: Atrato River, Chocó, Colombia (Wikimedia).

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Implementing the Paris Agreement – A special issue of Climate Law

A special issue of Climate Law co-edited by Annalisa Savaresi and Joanne Scott  has just been published, on the theme  ‘Implementing the Paris Agreement: Lessons from the Global Human Rights Regime’. The volume features contributions by John Knox, Lavanya Rajamani, Sebastien Duyck, Margaretha Wewerinke, Juan Auz and Annalisa Savaresi. The special issue collects selected papers from a workshop entitled ‘Implementing the Paris Agreement: Comparative Lessons from the Global Human Rights Regime’, organized by the authors in collaboration with Tom Pegram and Gita Parihar, and held on 11-12 May 2018. The workshop was hosted by the Academy of European Law at the European University Institute. The idea behind both the workshop and the special issue is to look at the use of instruments, procedures, and processes developed for human rights governance at the international, regional, and national levels, as a way of supporting climate governance. The aim is to assess pathways to implementing the Paris Agreement drawing on lessons from, and using tools developed in the context of, human rights governance.

The volume may be accessed by subscribers here: https://brill.com/abstract/journals/clla/9/3/clla.9.issue-3.xml

The article by Annalisa Savaresi and Juan Auz is also available for download free of charge from SSRN: https://ssrn.com/abstract=3374730

Feature Image: Anna Grear

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A Breathtaking View of the Kidron Valley 

View of Kidron from Mar Saba towards Jerusalem

by Richard Laster[1] & Dan Livney[2]

“Jerusalem: A port city, on the edge of eternity”.[3]

When Yehuda Amichai wrote these lines, he did not envision Jerusalem as a “port city” overlooking twenty-five million cubic meters of raw sewage in the Kidron Valley. [4] But that is how the citizens of Jerusalem view the Palestinian Authority, through the prism of a sewage pipe.[5]

For an eastern flowing stream the Kidron (in Arabic Wadi Nar[6], in Hebrew Nahal Kidron), poses political/environmental challenges practically insurmountable.  It begins below the Temple Mount, Haram al Sharif, one of the holiest places in the world, and probably the most contentious; the Kidron drops from an elevation of above 700 meters to minus 450 meters below sea level; it receives around one million cubic meters annually from the holy waters of the Gihon Spring, the fountain head of the Kingdom of David. To this is added 20 million cubic meters of raw sewage from West and East Jerusalem, to be joined by 5 million cubic meters of sewage from Bethlehem and other Palestinian towns and villages. Together, Palestinian and Israeli untreated sewage meander in harmony  through the Judean Desert to the Dead Sea; the most breathtaking example of joint neglect in the Middle East.

This article explains the chronic neglect of the Kidron Valley, and its impending rehabilitation. It is a story reminiscent of the baby in dispute in King Solomon’s day. But it is more reminiscent of Buddy Hackett’s joke about a dispute between a hunter and a farmer over a deer shot by the hunter[7]. Both stories have the same beginning: no one wants to relent; they end differently; one, with a moral of love; the other, revenge is sweeter than possession.[8] In the case of the Kidron, there is as yet no end, but the project approved to rehabilitate the valley promises a new horizon for the Middle East. Caveat: The Middle East is famous for mirages in the desert.

The Causes of the Conflict

The chronic bickering between Israel and the Palestinian Authority is the major cause of harm to the Kidron. The Valley runs through five different jurisdictions- West Jerusalem (within Israel), East Jerusalem (annexed after the 1967 war by Israel)[9], and areas A, B and C created by the Oslo Accords[10].  Area A is under Palestinian civil and security control, Area B is under Palestinian civil control and Israeli security control, and Area C under Israeli civil and security control[11]. These temporary “borders” have been in place since 1995, complicating any system of basin management.

Secondly, outside the cities of Jerusalem and Bethlehem, there is no large, local, vocal population affected by the harm done to the stream to demand its protection[12].  The farmers, who previously used the stream for irrigation of crops and drinking water for their animals, have no clout with the Palestinian Authority, nor with the Israel Civil Administration. And the towns located in the Valley have little sewerage infrastructure, or none. They do not see a problem adding their untreated sewage to the existing outpour.[13] Thirdly, the political situation impedes access to most of the Kidron Valley’s sites, discouraging its use by hikers and tourists. These stakeholders can be vociferous, making change a necessity, but since very few ever travel to a nuisance, their voice has no impact on the political scene, making investment in the tourist infrastructure unproductive.

The untreated sewage poisons the stream and the surrounding soil and groundwater. The aerosols created by the sewage reach the offices and homes of the residents of Ubadia. During the hot summer the stench in some areas is overbearing. In short, without purifying the effluent flowing into the stream there can be few plans for environmental enhancement and local development, especially tourism.  Therefore, it is of primary importance that the first step to rehabilitation of the valley be sewage purification.

Legal Institutions

Both Israel[14] and the Palestinian Authority[15] have comprehensive water laws, enabling administrative control over all aspects of water use and reuse. The Head of the Israel Water Authority can determine the cost, use, reuse, quality, quantity of water in use in the country. Here is a brief description of the powers of the Israel Water Authority, followed by a brief description of the Palestine Water Law.

The Israeli Water Law creates a Director of the Water Authority (the Director) ‘to manage the water affairs of Israel’ (Art. 138). The Director determines who gets water at what quality and quantity. Each water abstractor/ supplier requires an annual license. The Director determines river flows and ground and surface water levels. The Director has the power to require anyone polluting a water source to repair the situation within a reasonable amount of time at the expense of the polluter (Art. 11).

The Director chairs the National Drainage Board and determines rights along drainage channels. He is appointed to a five-year term by the government rather than by any one minister responsible for the Water Law, thus making the Director the real authority in the decision-making process. The Director’s powers provide the flexibility needed in managing Israel’s highly developed water system. The law creates a Water Authority to set policy and advise the Director (Art. 125), establishes a national water supply company (Art. 46), and a Water Court, where claims for unjust supply or other complaints against the Director are filed (Art. 140).

View of the waterfall

The overpowering weight given to the Water Authority has been somewhat tempered by the gradual development of river and drainage authorities, working in the meso, neither central government, nor local. The Israel law for drainage and flood prevention[16] has gradually been expanded to give the drainage authorities power over soil conservation, river rehabilitation and environmental amenities associated to rivers and streams. These authorities are the front-line troops facing geopolitical problems in cross boundary rivers and streams. Where the central government has failed to understand or accommodate the needs of the rivers, they become carriers of sewage and solid waste, not to mention silt. Who is left to address these issues? The drainage authorities. But they have no mandate to deal with geopolitical issues.

In the case of cross boundary environmental problems, the Civil Administration for the Occupied Territories has the mandate to work with the local residents and improve their lot[17]. In the case of sewage generated in the territories, flowing to Israel, one would expect the Civil Administration to step in and create the conditions to remove the nuisance. This would improve the life of the local Palestinians and reduce the sewage burden for cross boundary flows. Yet the Civil Administration seems to be frozen in time; their policy, if there is one, is to do as little as possible, either by looking the other way as the Israeli settlers settle the West Bank, or neglecting the Palestinians, under a policy of benign neglect[18]. To their credit, however, if another authority does act to benefit the environment, the Civil Administration will not go out of their way to hinder the effort. This will be evidenced in the Kidron-Nar Initiative, described below after a description of Palestinian water law.

The Palestinian Water Law, like its Israeli counterpart, declares water to be public property (Article 3). In Palestine, water is managed by a Water Authority, which establishes general water policy and plans, including water allocations for various sectors (Article 8). The Water Authority reports directly to the Cabinet of Ministers (Article 7). The law puts an emphasis on sustainable and integrated management of water resources (Article 2).  This includes power to protect water resources from pollution. A national water company, fully owned by the government, is responsible for the extraction, supply and sale of bulk water to water service providers (Articles 37-39).    A Water Sector Regulatory Council monitors water services and prices (Article 24). Regional Water Utilities take the place of local authorities and other institutions in providing water and wastewater services to consumers, while Water Users Associations supply irrigation water at the local level (Articles 45-49).

Under the Oslo Accords, Israel and the Palestinian Authority agreed to implement several principles of water management in the West Bank, including sustainable use, the prevention of harm, and flexible utilization to assure the ability to adhere to these principles.[19]  The parties also created a Joint Water Committee (JWC), for the purpose of coordinating water and sewage-related issues in the West Bank including common management of water sources and their protection. But when the JWC agrees to meet[20], the focus is generally on water supply projects. Under normal circumstances, a stakeholder meeting for the Kidron/Wadi Nar would include national, regional and local government representatives, NGOs, the academic public and all concerned parties whose lives are affected or connected to the Kidron/Wadi Nar. As important as it is, sewage flow is only one element requiring action under a comprehensive plan for multi-uses of the Valley. In fact, to this day there has never been a meeting of even the local government representatives in the Kidron Valley, i.e. the mayors of Jerusalem, Bethlehem and Ubadia.[21]

Research and plans for the Kidron/Nar sewage has increased the GNP of Israel and Palestine, but has done little to enhance the quality of the stream. There have been numerous research groups, studies, plans and meetings plus several real attempts to build a purification plant on the river.[22] None of these efforts bore fruit. In fact, if every dollar invested in studying the problem would have been invested in a purification plant, there would be enough to build the plant and maintain it for years. But the conflict has stymied every attempt at cooperation.

In 2005 a group of Palestinian, German and Israeli scholars joined together to compare the Elbe River with the Kidron River, both separated by political borders at one time.[23] The objective was to see what could be learned about integrated basin management in a transboundary basin cut up by borders and acrimony on both sides of the border. Some 80 stakeholders on both sides of the Kidron basin were interviewed, revealing that there could be agreements on environmental issues but no one had the fortitude to begin the process.  Even among the researchers there was no consensus for basin management of a divided river. Yet, from the interviews with the stakeholders could be heard their true hope for cooperation in the joint basin, provided that the “other side” recognized their legitimate rights to water in the basin. All it took then was to convince the Dead Sea Drainage and River Authority to sponsor a master plan process, similar to the one in the Yarqon River, but this time, to go beyond the green line and bring on board Palestinian stakeholders. This brings us to the theme of this article, the geopolitics of the Kidron/Nar valley.

Creating the Steering Committee[24]

The Yarqon River master plan provided a blueprint for success[25]. Stage one was the creation of a steering committee of as many key stakeholders as needed to get backing and oversight for the project. Discussions that included the Dead Sea Drainage and River Authority and the City of Jerusalem resulted in the formation of a Kidron Stream steering committee. Members came from the City of Jerusalem, the largest city in the Kidron basin, and the Dead Sea Drainage and River Authority, the only statutory body dedicated to the renovation of the Kidron Stream. Joining the committee were the Peres Center for Peace, well known for its work with Palestinians and Israelis, the Milken Center, a think tank from California with a record of economic analysis of environmental solutions and the Jerusalem Institute for Policy Research, a local think tank which had already studied the upper Kidron and was capable of holding sessions which would be neutral ground for Palestinians and Israelis.[26] The team approached the then Head of the Palestinian Water Authority, Dr. Shaddad Attili,[27] and asked that he join the steering committee.  But he argued that the Kidron basin was too “politicized” with Jerusalem at the headwater for an objective master plan. He asked to work on any other basin for a joint project.  But the Kidron was the key to understanding basins in conflict, and success in the Kidron would pave the way for cooperation in other basins.

For four years, the basin team spent hours studying the basin with their eyes, ears, legs and brains. Maps were prepared of the basin from a geographical standpoint, economic, ecological, demographic, political, legal and hydrological. All the information was compiled into a report submitted to numerous stakeholders in Israel and the Palestinian Authority. It was even “approved” by the Jerusalem Municipality in a formal meeting of the City Council and local NGO’s and citizens. On the Palestinian side, it was informally approved by the Palestinian Water Authority, and the towns adjacent to Jerusalem, Ubadia, Suwahra, Abu Dis, Beit Sahur and Sheik Said. The towns appointed the mayor of Ubadia, Suleiman El Assa, to represent their interests and he joined the steering committee and participated in its discussions. In fact, the Mayor was a key member of the team. He allowed the team access to the town’s planning and engineering team, who also gave advice during the process, which continues today.

Aerial view of Kidron – Jerusalem

More than any politician we met during the planning process, Suleiman El Assa embodied the soul of the Kidron. He understood better than anyone the potential of the Valley for human and environmental dignity and worked tirelessly to achieve this goal. With the limited resources at his disposal, he wrought major changes in his town, and he was unafraid to criticize the Palestinian Authority for its apathy to the plight of his citizens living alongside a sewage conduit, in one of the holiest basins in the world. It was Suleiman who came up with the idea of a “tent meeting” on the River to serve as a starting point for joint cooperation discussed in the next section on sewerage treatment.

The Palestinian Water Authority refused to officially join the steering committee, but the Master Plan team met with the Dr. Attilli and the staff of the PWA, showing them the compiled data and plans for sewage treatment. In fact, they were as much involved in the process as the named steering committee, without being a member of the committee. And in time, more and more Palestinians joined the process as stakeholders or as researchers. Some of them warned us in advance that they would not formally join the basin team, but they all helped with advice, introductions to stakeholders and they participated in stakeholder meetings and workshops held during the process. The same is true of numerous Israeli stakeholders, especially the statutory authorities, who attended stakeholder meetings but refused to formally join the effort. The information we gleaned, the meetings we held and the numerous phone calls and discussions enabled us to move the process forward to implementation.

Implementation of the Plan: Sewage Treatment

The normal approach to sewage purification is to purify it close to source and with little use of energy in transport. This would mean that designating a location for a joint Jerusalem and Bethlehem wastewater treatment plant should be located near both locations. Such an attempt was made by the German government in 1994[28], but as the contracts were being prepared for the joint plant, the Palestinian Authority rejected the proposal. Their argument was that building a joint Israeli Palestinian plant in the West Bank to treat Jerusalem sewage was tantamount to the Palestinian Authority recognizing Israel sovereignty over Jerusalem. [29]

A second attempt was prompted by the Palestinian Water Authority in 2009.[30] Their idea was to have a pipe take the sewage to the Horcania basin and there treat the sewage in a plant to be built by the Palestinians. This the Israelis rejected; they did not want Palestinians to treat Jerusalem’ sewage. Both sides having rejected the logical solution, the Israelis embarked on several different plans to treat Jerusalem sewage. One plan, supported by the District office of the Ministry of Environment, was taken from Jules Verne’s sketchbook. It designed a pumping station in the valley facing the old City of Jerusalem underneath a monastery and a cemetery. Raw sewage was to be pumped to an elevation of over 200 meters, to take the sewage out of the Kidron Valley and pump it west to be treated in an existing Israeli purification plant in the Soreq Stream.

As the plans became more numerous and farfetched, the master plan basin team worked quietly with both Palestinians and Israelis to design a system amenable to both side What brought about the change?  The Coordinator of Government Activities in the Territories (COGAT), General Mordechai. General Mordechai sent an aid to meet the coordinators of the basin plan to better understand the idea of the removal of sewage in the Kidron Valley. The aid visited the area and requested that there be held a meeting of all the parties at a site visit, coordinated by the Civil Administration for the Occupied Territories.  This site visit, attended by over thirty government employees from different ministries, the Jerusalem Water Company and the Civil Administration brought home the stench and neglect under Israel control. More important, the government employees, so used to hearing that there is no such thing as a Palestinian partner, met the Mayor of Ubadia, Suleiman Al Assa. Suleiman, spoke with passion about the effect of the polluted stream on his constituents, but, more important, he broke protocol. He spoke in spite of the Palestinian Authority ban on Palestinian politicians “cooperating with the Israel government.” Everyone in the audience understood that he put his life on the line to remove an environmental health hazard.

To cap this performance, the financial advisor to the Israel Water Company, made an even more impressive performance when he put the numbers before the audience. He showed that the only feasible way to remove, treat and reuse the sewage in the Kidron Valley was to act in accordance with the Master Plan concept.  It is interesting how money brings common sense back into the equation. With the consensus achieved, General Mordechai reached an agreement with the Israel Water Authority and the Jerusalem Water Company regarding financing the project and then he met with the Prime Minister of the Palestinian Authority to sign a memorandum of understanding to move the project forward.

Many cups of coffee later, the plan developed by the Basin Committee, taking sewage from Jerusalem and the surrounding Palestinian towns, treating the sewage and piping it to where it can be used for agriculture was adopted by the Joint Water Committee created under the Oslo Accords. At this writing, the parties are actually designing the pipes and treatment plants to remove, treat and reuse the sewage in the Valley. Funding for the project will come from the Jerusalem Water Company and other sources. Some, if not all of the treated waste water will irrigate the date farms of Jericho.

Even if the sewerage system is built, the town of Ubadia, in the middle of the Kidron/Nar basin will not benefit from it. Ubadia sits on the edge of the Judean Desert, east of Jerusalem and Bethlehem, perched above the Kidron stream. The town numbers approximately 12,000 inhabitants, and covers an area of 45,000 dunams (11,250 acres). The homes are connected to a municipal water system, but not to a sewage collection and treatment system. The sewage flows onto  land adjoining homes and eventually reaches the Kidron stream, or worse, the Marsaba monastery springs[31]. Two pilot treatment systems have been installed to test whether this method can prevent water pollution and allow safe reuse of the treated sewage. One system is installed in a school yard and serves a thousand pupils[32]. It will be used by the students for their scientific work in testing water quality and the treated sewage for toilet flushing. The system will serve as a model for further wetland purification plants, using off the grid technology now being promoted in Europe. In addition, a crowd funding program has been launched to build another wetland in a lower portion of Ubadia in order to purify the sewage reaching the Marsaba monastery.

Implementation of the Plan:  Science Hub and Environmental Education Programs

The attention given to the Kidron Basin gave rise to a groundswell of educational activities.  These projects developed from local patriotism, not towards a government or political party, but patriotism for their geographical and environmental location. Previous to the Master Plan project, most people did not even realize they lived in or around a basin, or what a basin even was. With financial assistance and professional guidance from the master plan team, Schools installed rainwater harvesting systems as an educational tool for teaching about the water cycle and its importance.  Local projects and initiatives were established, empowering people, especially women, to help create a more environmentally friendly physical infrastructure and increase people’s abilities to make improvements themselves[33]. The projects included community gardens, women as environmental watchdogs, teacher training program in environmental education, advanced science education for girls, and more.

Implementation of the Plan:  Long Term Socio-economic and Ecosystem Research Platform 

The Kidron Valley was selected as the site for establishing the first LTSER (Long Term Socio-economic and Ecosystem Research) site within the Palestinian Authority[34]. This project builds upon the general knowledge generated by the Kidron Master Plan, and focuses on the socio-ecological aspects of the Kidron/Nar basin by using the LTSER approach. The main, organizing intellectual aim of LTSER programs is to understand patterns and processes of socio-ecological systems driven by natural and anthropogenic forces and their effect on ecosystem services. The LTSER platform provides scientific and practical knowledge of the long-term dynamics of the interaction between society and nature, enabling scientists and policy makers to address sustainability concerns effectively.

Implementation of the Plan:  A Bird Observatory in the Kidron[35]

As an adjunct to the wetland, Dr. Anton Khalilah, native of Bethlehem with a Ph.D. from Ben- Gurion University is conducting a survey of the flora and fauna of the site. He will identify species, record them, map their location, and photograph them. This will serve as a monitoring site for migratory soaring birds (MSBs). The site will be used during the autumn and/or spring migration season to document MSBs during their migration. This will include, species, numbers and time of the year. This observatory site will be used for research, education and as an ecotourism attraction point. Dr. Khalilah, together with Dr. Hassan will use the purified effluent from the wetland to create a small pond. A bird blind will be built at one side of the pool which will serve as an observation point to watch birds and other wild animals that come to use the water.

Coming full circle

View south to tombs

Probably the most important lesson learned from work in basin management is that, not only “where there is a will, there is a way”, but the parallel is just as accurate: “where there is a way there is a will”. In a conflict situation having willpower is not enough. There needs to be a platform for the release of positive energy. A basin viewpoint can provide that platform, since most conflicts surround ownership and territory.  One small example will suffice.

East Jerusalem was annexed by Israel after the Six-Day War but the annexation was neither recognized by the United Nations nor by any foreign country. As a result, schools in East Jerusalem may choose an Israeli curriculum or one proposed by the Palestinian Authority. During the master plan process, the master plan team worked on numerous initiatives to improve the life of the residents in the Basin. One such initiative was introducing an environmental curriculum into Palestinian schools.

This was done by hiring and training staff to teach the pupils about hydrologic basins using the Kidron as an example. Within a few months some 20 schools were teaching subjects such as environmental quality, water pollution, hydrology and basin management. Some then progressed to saving water in schools, rainwater harvesting, school gardens, greenhouses, community gardens and school trips to the Kidron Valley.  One school even entered its students into an international water competition and took home a prize. The pride that this engendered, the dignity resulting from this process forced the parents and teachers to consider changing the curriculum. They looked outside the school window into a large world of achievement.

Yet had there not been a basin study and community outreach, there would have not been the willingness to understand that there is a world outside the local conflict. The Master Plan process taught the principals and teachers that they were part of a community, communities are part of a hydrological basin and basin problems of integrated water use and reuse are world issues. And some of the schools were able to change their curriculum in order to give a better future for their pupils.

Climate Change and the geopolitics of water

“Humankind today faces three common problems that make a mockery of all national borders, and that can only be solved through global cooperation. These are nuclear war, climate change and technological disruption.”[36]

“For several generations, the world has been governed by what today we call “the global liberal order”. Behind these lofty words is the idea that all humans share some core experiences, values and interests, and that no human group is inherently superior to all others. Cooperation is therefore more sensible than conflict. All humans should work together to protect their common values and advance their common interests. And the best way to foster such cooperation is to ease the movement of ideas, goods, money and people across the globe.”[37]

In 2011 the Ministry of Environment published a policy paper on Israel’s response to climate change[38]. This paper is now being reviewed and updated. The paper combines carrot and stick measures, but the overall picture presented is an isolationist one- that Israel has to take care of itself. Criticism has been levelled at the Ministry for not taking a comprehensive stand and including its neighbors in a policy paper on climate change. The Ministry should take heed of the above quote, go beyond local patriotism and reach for a geo- political solution to the water problems in the neighborhood.

Hope springs eternal as the Gihon springs, which feed the Kidron Valley, and it changes paradigms, some entrenched for years. It created a paradigm change in the management of surface water in Israel in 1995, and it is about to break an impasse in sewage purification and river rehabilitation in the Kidron Valley, that has been waiting for a saviour for fifty years. As changes take place, dignity gains adherents, and the environment is the first to feel the change.  Dignity cannot be bought and sold in the marketplace but the search for environmental dignity brings rewards in human and environmental resources that cannot be measured.

Mar Saba today

The search for environmental dignity is a natural outgrowth of the development of rights. Scholars have always equated the Declaration of Independence and the Declaration of the Rights of Man as necessary building blocks on the edifice of democracy. Without these rights, democracy could not exist. Government of the people, by the people and for the people does not in itself protect a person. With similar logic, people have argued that the cornerstone to free trade is the democratic model of government. Without freeing the individual to pursue his/her happiness, trade could exist between governments, but not individuals. Making the pursuit of happiness a basic right, does not curtail a person’s natural affinity to enrich his possessions, knowledge, prestige and power, all forms of human happiness.

We also know that happiness, or well-being, is a natural pursuit; it knows no boundaries and serves a function in human development. Scholars have been studying human well- being for over half a century and have developed theories to delineate its parameters: Subsistence, protection, affection, understanding, participation, leisure, creation, identity, and freedom.[39]  At the same time, other scholars have developed criteria for ecological well-being. Some forty countries are working together to map the biological health of the world, also called ecological integrity.[40]   This program, entitled Long Term Social and Ecological Research, has scholars working under the same scientific parameters to understand the health of the environment.[41] These parameters include the quality of the soil, lower forms of plankton and flora in built up areas and preserved areas. There is a difference, however, between ecological integrity and environmental dignity.

Environmental dignity first appeared in the Stockholm Declaration: “Both aspects of man’s environment, the natural and the man-made, are essential to his well-being and to the enjoyment of basic human rights the right to life itself.”[42]  The Stockholm Declaration was an attempt to equate environmental rights with human rights. It tried to balance man’s search for happiness with the environment’s equal right to equanimity. The Bruntdland Report, “Respect and care for the community of life,” further refined this doctrine with the theory of sustainability; allowing man to develop happiness in a sustainable fashion, i.e. not at the expense of future generations.[43]

 

Environmental dignity does not flourish in conflict; neither human nor environmental. So, what is one to do who believes in human and environmental rights, but finds himself living and working in a conflict situation?[44] How does one apply his skills as an attorney resolving conflicts to an arena, in which he has no official part? Does one leave the scene for others, or look for avenues to apply his skill to achieve a modicum of human and environmental well -being? The authors have chosen the latter and have changed the goal with one more in line with legal thought: from well-being to human and environmental dignity. This article documents our trip along the Kidron/Nar River in search of environmental and human dignity within the Palestinian Israeli conflict.

Basin Management

The trip actually started years ago, with Bruce Ackerman and James Sawyer’s sentinel article, The Uncertain Search for Environmental Policy: Scientific Factfinding and Rational Decisonmaking along the Delaware River.[45] Ackerman and Sawyer demolished theoretical approaches to river remediation, and pointed lawyers to a role model, representative river authorities. Following their advice, we have represented river authorities for much of our professional careers,[46] trying as best we could to be skeptical of engineering approaches and simple solutions. In time, we learned that the only way to achieve a modicum of river remediation is to adopt their three tenets: “An agency embarking upon a water pollution program must, in one way or another, resolve three basic issues. First, it must determine the level of water quality that is desired. Second, it must determine the amount of pollutant that must be removed from the stream in order to achieve the water quality standard selected. Third, the agency must determine the way in which the burden of cleaning up the river to the desired level will be allocated among the polluters… “[47] To these three tenets, one should add: The governing body should have an independent budget and an enforcement arm. [48]

The key to all this, however, is to use a working model, not a theoretical one.[49] Therefore, we embarked upon a hair-raising adventure in the pursuit of environmental dignity: The Kidron/Nar Master Plan process. Because of its vision and the atmosphere created, the master plan process melted the intransigent approaches of the conflicting parties, and enabled them to reach a solution for removal and treatment of sewage in the Valley; the use of the basin management approach to a cross boundary basin, scarred by conflict, is a brilliant platform for creating an atmosphere of cooperation.  It enhances the exchange of ideas and information, it furthers discussion and reduces tension between conflicting parties; it prepares a level playing field for a joint basin management forum; it encourages democratic processes, and, it adopts the one rule of international water law universally accepted: reasonable and equitable use of water. In short, it lays the basis for human and environmental dignity by treating all players as equal and all with equal rights to the basin and its resources. At the same time, it raises the rights of the natural environment to protect it for future generations, thereby increasing environmental dignity. It universalizes the basin for all mankind, and encourages others to do similar work. And eventually it will lead to basin rehabilitation.

 

[1] Professor of Environmental Law & Policy, Hebrew University

[2] Associate, Laster & Gouldman Law Offices, Jerusalem

[3] This quote from the poem “Jerusalem is a Port City” (1968) by Israeli poet Yehuda Amichai is inscribed on a stone to his memory in the Yehuda Amichai quarter of Jerusalem, in Talbiah.

[4] There is no other place on earth holy to the three monotheistic religions as is Jerusalem and the Kidron Valley.

[5] It is interesting to note that Herman Melville, on his short trip to Jerusalem used the same analogy for the monks living in the Marsaba monastery, on the brink of the Kidron:

“But that is hard to think.

Seemly the port, gentle the cheer

Of friars which lodge upon this brink

Of Kedron, and do worship here

With rites august, and keep the creed.”

[6] The word Nar means fire and it refers to the fact that the Kidron is the Valley between the Mount of Olives and the Temple Mount, or Haram al Sharif. When the Messiah comes he will begin raising the dead on Mount of Olives. Those rising will then have to cross the narrow bridge from the Mount of Olives to the Temple Mount, but only the righteous will be able to cross; the sinners will fall in Wadi Nar.

[7] A hunter shoots a deer and is pulling it back to his truck. A farmer passes by and says, “Hey you shot that deer on my property. That makes that deer mine.”

The hunter says, “No way, I tracked it, I shot it, it’s mine.”

The farmer says, “Ok Ok…we’ll settle this the old way.”

“The old way?”

“Yes. We’ll take turns kicking each other in the groin and the first guy who can’t take it anymore loses. The winner gets the deer.”

The hunter thinks about this and he says, “Ok, let’s do it.”

The farmer says, “Ok, let me go first.” He takes a big wind up and just nails the hunter right in the groin with his big dirty farmer boots.

The hunter doubles over in pain, huffing and puffing for a few minutes. He finally gets up, still panting and says, “Ok Ok…I’m still in…my turn.”

The farmer says, “Nah, you can keep the deer.”

[8] There is also an African proverb that when elephants (or men) fight, it is the grass that gets trampled.

[9] Israel’s legislature, the Knesset, expanded the borders of Jerusalem by amending the Law and Administration Ordinance, 1967 21 L.S.I 75, Article 11B, and   the Cities Ordinance (Amendment No.6), 1967This was further entrenched by the passing of The Basic Law: Jerusalem the Capital of Israel, 1980 34 L.S.I. 209. The law declared a “United Jerusalem” to be the capital of Israel.

[10] Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, September 28, 1995, Israel-PLO .

[11] In accordance with international law, existing Jordanian and Ottoman laws were not cancelled in the West Bank after the Israeli army occupied the area. Israeli law confirmed this, declaring that the law that existed in the region on June 7, 1967 will remain valid, with changes to be made as needed by the Israeli military government in the region.  See:  Manifest Concerning Taking Control by the IDF (Manifest Number One) 1967; Manifest Concerning Governance and Legal Procedure (Judea and Samaria) (Number 2), 1967. Both became valid on June 7, 1967.

[12] Outside of Bethlehem (which contributes sewage to the Kidron but is located outside the Basin) and Jerusalem, the largest town in the Kidron Basin is Ubadia, with a population of 12,000.

[13] Alice’s Restaurant all over again.

[14] Water Law, 1959

[15] Decree No. (14) For the Year 2014 Relating to the Water Law.

[16] Drainage and Flood Control Law, 1957, 12 L.S.I 5.

[17] Israel Military Order No. 947 Concerning the Establishment of a Civilian Administration from 1981.

[18] Both authors have spent hours working with, studying and interviewing the civil administration staff for education, water, environment, archeology and planning. Richard Laster is also a member of the civil administration’s committee on drainage and flood control.

[19] Oslo II Accords, Article 40 of Annex III.

[20] After a seven year hiatus, the JWC renewed its meetings in May of 2017.

[21] The authors have met with all three who share a hope for purifying the sewage.

[22] Some examples: Almog, R. (2006) Hebrew University Jerusalem. Feitelson, E. and Abdul-Jaber, Q. H. (1997) Prospects for Israeli-Palestinian cooperation in wastewater treatment and re-use in the Jerusalem region, The Jerusalem Institute for Israel Studies, Palestinian Hydrology Group, Jerusalem. FoEME (2005) Pollution of the Mountain Aquifer by sewage, Friends of the Earth Middle East, Tel Aviv. Mutlak, N., Khateeb, N. and Klawitter, S. (2007) Macro-economic setting and water supply, consumption and waste water disposal practise in the Kidron Valley/Wadi Nar, Discussion paper, CollectiveWater project, Berlin, Jerusalem. IHE Delft: The importance of off the grid technology for removal and treatment of sewage in the Kidron Valley, 2108.

[23] The Applicability of the Governance Scheme for the Elbe Catchment to the Kidron Valley/Wadi Nar, From Conflict to Collective Action: Institutional Change, R Laster, D Livney – 2007 – BMBF Germany and Israel Ministry of Science.

[24] Professor Richard Laster, one of the authors of this article, served as the Kidron steering committee chairman and Dan Livney provided advice on the legal and administrative issues of the master plan.

[25] The Master Plan can be found on the Yarqon River Authority website (in Hebrew) https://www.yarqon.org.il/he/#

[26] http://en.jerusaleminstitute.org.il/

[27] Presently the head of the water negotiating team for the Palestinian Authority

[28] GTZ (1998) Final design and preparation of tender documents for Bethlehem, Beit Sahour waste water collection and storm water drainage system, Gesellschaft für Technische Zusammenarbeit (GTZ) mbH, Eschborn.

[29] Here geopolitics trumped good will and a donation of 45 million Deutsch Marks.

[30] Israeli-Palestinian Joint Water Committee, Application 294, September 25, 2009

[31] The Mar Saba monastery, built into the Kidron cliff walls,  was established in the year 483, and is considered one of the oldest inhabited monasteries in the world.

[32]   Kidron Valley/Wadi Al Nar Rehabilitation Project – SIPProjects

www.sipprojects.org/projects/kidron nar-basin/

[33] https://en.urbanclinic.huji.ac.il/book/december-2017-kidron-valley

[34] For a description of the Wadi Nar LTSER station, see: https://deims.org/85b2c11a-8d09-4582-8048-195f3519c41c. The LTSER site was set up and run by Dr. Jawad Hassan of Al Quds University.

[35] The bird observatory and bio diversity project is run by Dr. Anton Khalilah.

[36] Yuval Noah Harrari, the Economist, September 26, 2018.

[37] Ibid. See also Universal Declaration of Human Rights, Article I: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”

[38] State of Israel- Ministry of Environmental Protection, Climate Change Policy in Israel, November 2011.

[39] Matrix of fundamental human needs (Max-Neef, 1989).

[40] Personal communication, Prof. Moshe Shachck, Ben Gurion University, Dr. Jawad Shoquir, Al-Quds University. These two gentlemen created a Palestinian LTER site in the Kidron Valley.

[41] Personal communication, Dr. Michael Mirtl, President, LTER International, 2015.

[42] Declaration of the United Nations Conference on the Human Environment, Stockholm, June 1972.

[43] “Our Common Future” (The Brundtland Report), Caring for the Earth: A Strategy for Sustainable Living, 1991, IUCN p. 9

[44] There is nothing more exhilarating than taking on a project which has no chance of success.

[45]  120 U. Pa. L. Rev. 421, 1972

[46] We serve as the legal advisors to the Yarqon River Authority, the Kishon Drainagae/River Authority, the Arava Drainage/River Authority, the Shiqma-Besor Drainage/River Authority and are of counsel to the Galil Maarvi  Drainage/River Authority.

[47]  120 U. Pa. L. Rev. 421, 1972

[48]  Laster, R., Livney, D., Holender, D. “The Sound of One Hand Clapping: Limitations to Integrated Resources Water Management in the Dead Sea Basin.” Pace Environmental Law Review, Vol. 22 p. 123 (2005),

Laster, R., Livney, D., Gat, J. “Water Flowing Under the Law. ‘  Food Security Under Water Scarcity in the Middle East: Problems and Solutions (Hamdy and Monti, eds.) (2004).

[49]  Laster, R., Livney, D. “The Applicability of the Governance Scheme for the Elbe Catchment to the Kidron Valley/Wadi Nar”, prepared as part of the joint German-Israeli-Palestinian project “From Conflict to Collective Action: Institutional Change and Management Options to Govern Transboundary Watercourses”, BMBF/Israel Ministry of Science, 2008.  Also see, Metzenbaum, Shelley. “Measurement that Matters: Cleaning Up the Charles River.” Regulatory Policy Program Working Paper RPP-2001-05. Cambridge, MA: Center for Business and Government, John F. Kennedy School of Government, Harvard University.

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Climate Change in the Anthropocene

GNHRE Europe held a workshop on Climate Justice in the Anthropocene on 2-3 May 2019 at the International Institute for the Sociology of Law in Oñati, Spain. The workshop was conceived, initiated and coordinated by Sam Adelman and Luis Kotze, and attended by several GNHRE members.

Over two days, participants from all over the world engaged in in-depth debate over the contours of climate justice in the Anthropocene, the limits of current approaches and possible ways forward, especially in light of the IPCC report Global Warming of 1.5oC.

The discussion touched on the criteria for climate justice; who owes what to whom, in what form and why; the extent to which Holocene categories of justice – distributive, environmental, gender, global, reparative – are relevant in the Anthropocene; and how climate justice relates to vulnerability and resilience.

In a highly interactive setting, the workshop participants discussed fourteen draft papers on the theoretical underpinning of climate justice, earth system governance, and climate change litigation. Selected papers from the workshop will be published in the prestigious publication series of the International Institute for the Sociology of Law.

By Annalisa Savaresi

Feature image: Josh Gellers

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Upcoming Canadian Country Visit of the Special Rapporteur on Human Rights and Toxics

 By Associate Professor Sara Seck and JD candidate Meg Williams, Schulich School of Law, Marine & Environmental Law Institute, Dalhousie University.

It has just been announced that the UN Special Rapporteur on human rights and toxics, Baskut Tuncak, will conduct an official country visit to Canada from 24 May to 5 June 2019. The Special Rapporteur has issued an invitation to all interested individuals and organizations in Canada, including civil society organizations, activists, and academics, to submit information that they consider relevant in preparation of this visit by 15 April 2019 to srtoxicwaste@ohchr.org. The information may be sent in English or French and must not be longer than 10 pages. The call for submissions is now online and is available in both English and French. The Special Rapporteur is interested in receiving information on “human rights and and exposure to toxic substances and wastes in Canada, including on pollution, contamination, occupational diseases linked to toxic exposures, toxic consumer products, and other sources of exposure to hazardous substances and wastes.” He has also expressed interest in receiving information on “cases concerning activities of Canadian businesses operating abroad.” Among priority concerns are “circumstances involving toxic exposures of children, indigenous peoples, workers, low income communities, and other groups at high risk.” Information on legal frameworks for the regulation of human rights and toxics in Canada is also invited, as well as contact information for organizations and civil society representatives who wish to meet with him during the country visit.

In our last blog post, we reflected on recent work of a different United Nations Human Rights Council Special Rapporteur, the Special Rapporteur on human rights and the environment, and drew attention to the 2018 Framework Principles on Human Rights and the Environment and its implications for local environmental justice concerns. In light of the upcoming visit by the Special Rapporteur on Toxics, we will consider a selection of his reports, building on our previous consideration in an earlier blog post of Mr. Tuncak’s 2015 report on the right to information. Specifically, this post will focus on Mr. Tuncak’s 2016 report on The Rights of the Child and Hazardous Substances and Wastes (2016, A/HRC/33/41), as well as his  2018 report on the The Rights of Workers and Toxic Chemical Exposure (2018, A/HRC/39/48), while also referring to the 2017 Guidelines to Good Practices (2017, A/HRC/36/41).

Mr. Tuncak assumed the mandate as the Special Rapporteur on Toxics in 2014, taking over from the previous Special Rapporteur, Mr. Calin Georgescu. The UN Human Rights Council mandates the Special Rapporteur to provide comprehensive and current information on the impacts of hazardous substances on human rights, and covers all hazardous substances and wastes that are used, produced and released by human activity. Mr. Tuncak’s 2014 mandate reaffirms the commitments of the 2012 mandate of Mr. Georgescu which notably calls for the monitoring of not only States but also “transnational corporations and businesses enterprises in connection with the environmentally sound management and disposal of hazardous substances and wastes” (para 2(a)). As a result, Mr. Tuncak’s reports pay close attention to the responsibilities of business enterprises in regards to the issue of toxics and human rights.

Mr. Tuncak’s 2016 report focuses specifically on childhood exposure to toxic substances and the resulting human rights impacts. The report examines how children’s rights are violated by State and business actors through exposure to toxic chemicals and pollution. Mr. Tuncak describes the impacts of toxics and pollution as the “silent pandemic” as children are born “pre-polluted” resulting from maternal exposure that continues after birth and into childhood (para 5). He takes notice that children of low-income, Indigenous, or marginalized communities are at greater risk to exposure, leading to questions of environmental racism that undermine equality and non-discrimination (para 6). The report recognizes that the impacts of toxics and pollutants on children are affected by their familial, communal, and environmental situation.

The Convention on the Rights of the Child provides guiding principles for State obligations in preventing childhood exposure from toxics and pollutions, and Mr. Tuncak elaborates upon eleven State obligations in his report. These include implementation of the best interests of the child framework (para 19-21) as well as the right to be heard (paras 22-26), the right to life, survival and development (paras 27-28), the right to physical and mental integrity (paras 29-38), the right to effective remedy (paras 39-43), the right to the highest attainable standard of health (paras 44-48), the right to a healthy environment (para 49), the right to adequate standard of living (para 50), the right to non-discrimination (paras 51-53), the right to be free from the worst forms of child labour (paras 54-56), and the right to information (paras 57-61). The report observes that “toxics released into air, wind and water can directly or indirectly lead to childhood exposure, impacting on the child’s right to health.” (para 49). In this sense, children are not treated as bounded autonomous individuals but instead are understood as embodied beings who are inseparable from the environments in which they live.

The 2016 report also considers the business responsibility to prevent the exposure of children to toxics. Businesses are to undertake human rights due diligence to prevent childhood exposures (paras 75-78), to prevent toxic exposure at all points in business activities (paras 79-89), to ensure responsible business relationships (paras 90-97), and to ensure effective remedy through non-recurrence, rehabilitation, and compensation (paras 98-106). Notably, Mr. Tuncak links business activities and industrialization to toxics and pollutants in the environment, and in turn to the adverse effects on children. However, this report does not link labour and employment conditions, and the exposure of workers, to childhood exposure, an issue that is taken up in subsequent reports.

 In 2017, Mr. Tuncak released a Guidelines for Good Practices report in response to the disparities existing within and among countries in reducing the impacts of hazardous substances. The Guidelines acknowledge both the duties of States and the responsibilities of businesses in addressing these disparities. The Guidelines highlight the foundational obligation of States to “respect, protect, and fulfill recognized rights implicated by the production, use, release, storage and disposal of hazardous substances and wastes” (para 4), including the rights of those impacted by transboundary and transnational harms. Additionally, the report confirms that special attention is required with regard to the rights of vulnerable populations, including low-income communities, children, workers, older persons, Indigenous peoples, minorities, post-conflict communities, and vulnerable genders. With regard to businesses, the Special Rapporteur confirms that “virtually all businesses bear some responsibility” (para 81) to respect the human rights that are impacted by their activities, supply chains, products, policies, procedures, and business relationships. He notes that due diligence is fundamental to this responsibility, and then outlines a number of responsibilities of businesses in regards to reducing human rights impacts of toxics. These include the duty of businesses to identify and assess the potential human rights impacts of their activities. Importantly, this means that businesses must “go beyond mere compliance with existing legislation and regulations” (para 83) which is usually behind compared to rapid industrial sector expansion. Second, businesses have the responsibility to prevent and mitigate the impacts on human rights. Prevention of impacts is most effectively achieved through the elimination of hazardous substances from business activities while mitigation should occur immediately, even before the State gives orders to do so. The third responsibility outlined is the duty to account for efforts to address the impacts on human rights. This involves publicly communicating information about the risks created by business activities as well as mitigation plans to address the actual and potential impacts involved.

While the 2017 Guidelines Report focuses briefly on the rights of workers, the 2018 report “The Rights of Workers and Toxic Chemical Exposure” is devoted to this issue, and proposes principles to guide State and non-State actors in protecting workers from toxic occupational exposures and to provide remedy for rights violations. The report examines the human rights of workers affected by their occupational exposure to toxic and hazardous substances, a summary of the current challenges facing workers globally, and proposed principles to respect and protect the rights of these workers (para 10). He notes that worker’s rights and human rights are “interrelated, indivisible and universal” (para 14) in that no worker can be deprived of their civil, political, economic, social or cultural rights based on the work that they perform (para 14). The Special Rapporteur also examine the challenges in realizing the rights of workers affected by toxic substance exposures. These challenges include inadequate standards of protection (para 38), limited progress in preventing exposure (paras 39-41), poor monitoring and enforcement gaps (para 42), the exploitation of those most at risk, including those living in poverty (paras 45-46), women (para 48), children (paras 49-50), migrant and temporary workers (para 51-52), workers with disabilities (para 53), and older worker (para 54).  Additionally, the report notes the challenges introduced by the informal economy (para 55), the deliberate efforts to delay or obstruct protection (paras 56-58), the opaque nature of supply chains (paras 59-60), the disconnected efforts on occupation and environmental health (para 61), failures to realize the right to information (paras 62-66), limited implementation of ILO instruments (paras 67-68), restrained freedom of association (para 69), and inaccessible remedies, justice, and accountability (paras 70-71).

Following an examination of the current state of workers’ rights in light of exposure to toxic substances, and challenges for realizing such rights, the Special Rapporteur proposes 15 Principles to assist States, businesses and other stakeholders to protect, respect, and fulfil the human rights of workers who have been victims of occupational exposures to toxic and hazardous substances (para 73). These are grouped into three subsections: (A) Principles on duties and responsibilities to prevent exposure, (B) Principles regarding information, participation and assembly, and (C) Principles regarding effective remedies. Without going into detail on the 15 Principles, some are worth further reflection. For example, Principle 7 acknowledges that protecting workers from exposure to toxic substances will in turn protect their families, their communities and the environment. Additionally, Principles 13 and 14 recognize the importance of considering the burden of exposure on workers’ families.

These principles, together with the observation in the 2016 report on Children’s Rights that “toxics released into air, wind and water can directly or indirectly lead to childhood exposure, impacting on the child’s right to health” suggest an awareness that individuals, whether adults or children, should not be viewed as surrounded by impermeable boundaries that are capable of protecting individual autonomy from the toxins that exist in workplaces and local environments. This need to move beyond an understanding of the worker as a bounded autonomous individual is something that I have explored in a recently published article in the Canadian Journal of Law and Society entitled Transnational Labour Law and the Environment: Beyond the Bounded Autonomous Worker.* There, I suggest that reconceptualizing the worker as a relational being, rather than a bounded autonomous citizen, may help to bridge labour and environmental law, two disciplines that too often operate in silos.

Currently, the focus of international and transnational labour law is primarily on workers and their rights so that they may work without fear and with the assurance of a sustainable livelihood. However, I propose that it may be helpful to reframe transnational labour law to better embrace environmental rights. For example, we might reimagine the individual worker as a corporeal citizen who is embedded in a material environment, and so better appreciate that workers and children exposed to toxics arising from industrial activities cannot be viewed as autonomous individuals separate and distinct from families, communities, and environment. This holistic approach reinforces the interdependent duties of both States and businesses to protect both workers and the environment in which they and their families live. As I observe in my article, signs of such a conceptual shift are evident in a 2015 study by UNICEF which recognizes that the rights of children of predominantly female garment workers in Bangladesh were affected by the working and living conditions of the garment worker through impacts relating to the conditions inside and outside of the factory. This focus on the worker as a family and community member, and specifically their role as a parent, aligns with the Special Rapporteur’s reports on Children’s Rights and the Rights of Workers which, in light of their focus on toxic substances, illustrate a shift from thinking of the worker as an autonomous bounded individual to viewing the rights of workers as interdependent with rights to live in a clean and healthy surrounding environment.

The upcoming Canadian country visit by the UN Special Rapporteur on Toxics provides an opportunity to reflect upon these issues and, more pressingly, to take action to prevent and remedy harms. For further information on previous country visits by other UN human rights Special Rapporteurs to Canada, as well as other human rights reviews, see here. For outcome reports of other country visits by the UN Special Rapporteur on Toxics, see here.

*Sara L Seck, “Transnational Labour Law and the Environment: Beyond the Bounded Autonomous Worker” (2018) 33:2 Canadian Journal of Law & Society 137-157, published online 5 September 2018, https://doi.org/10.1017/cls.2018.15

 Featured image: Anna Grear

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