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Linking environmental protection, health, and
human rights in the European Union: an argument
in favour of environmental justice policy
Alexios Antypas
Associate Professor, Department of Environmental Sciences and Policy, Central
European University, Budapest, Hungary
Claude Cahn
Head of Advocacy Unit, Centre on Housing Rights and Evictions, Geneva,
Switzerland
Richard Filcak
Visiting Scholar, Department of Environmental Sciences and Policy, Central European
University, Budapest, Hungary
Tamara Steger
Assistant Professor, Department of Environmental Sciences and Policy, Central
European University, Budapest, Hungary
Introduction1
Over the past few decades the conceptual and legal
integration of environmental protection, the protection
of human health and human rights has given rise to new
forms of social activism, new constitutional protections
in many countries, at least one major regional treaty and
new human rights norms at the international level. The origins
of the linkages between environment, health, and human
rights derive from four streams of thought and research:
1) research showing discrimination in the distribution
of environmental risks and benefits and related health
impacts, which has fostered in several countries the
emergence of ‘environmental justice’ initiatives on
behalf of marginalised social groups;
2) research showing that developed countries export
environmental risks to developing countries, resulting
in increased attention to this problem by UN agencies;
3) the movement to establish the right to life, health,
and an environment adequate for well-being as a
universal human right, resulting in the provision of
such a right in the constitutions of 53 nations as of
2004 and
4) arguments claiming that environmental protection and
human health are enhanced when citizens are armed
with civil rights that ensure that they have access to
information, participation, and justice in
environmental matters, resulting in the Aarhus
Convention in the UN Economic Commission for
Europe region, and legal directives that implement
the Aarhus Convention in the European Union.
Of these four streams linking the environment, health, and
human rights, the movement for environmental justice has
come late to the European Union. With the EU’s growing
leadership in establishing a framework for environmental
protection and given the recent Eastern enlargements,
the time to confront the problem of environmental
in
justice in Europe has arrived.
The conjuncture of environment, health, and human
rights’ discourses can be described as a discourse about
justice – substantive justice (the rights to life, health, and
environment), procedural justice (the rights to
information, participation, and access to justice), and
distributive justice (the right not be discriminated against
on the basis of group characteristics). This article
emphasises the latter – the issue of distributive justice
and environmental discrimination, which is, perhaps
confusingly, commonly referred to as ‘environmental
justice’.2 We will argue that while a basic framework for
addressing problems of discrimination in environmental
matters is emerging at the international level it is, first,
far from adequate; secondly, not yet fully coherent and
harmonised with other policy processes and thirdly, not
widely enough known to ensure its effective
implementation. At the European level the issue has hardly
been engaged at all, but as we will show, Europe faces
severe problems of discrimination in areas of relevance
for environmental justice, especially but not exclusively in
the new EU Member States.
1 The authors would like to thank Vito Buonsante for his valuable research
assistance for this article.
2 As will be evident from the discussion that follows, the authors of this
paper apply a definition of ‘environmental justice’ going beyond that
suggested by the Aarhus Convention as well as beyond that of the
draft EU directive aiming to bring the justice elements of the Aarhus
Convention into the legal order.
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This paper will also show that although a basis exists
to extend anti-discrimination law (a particularly elaborated
area of EU law in the field of human rights) to
environmental areas, to date, the EU has confined its action
on the front of human rights law and environmental
regulation to the matter of securing standing for
individuals and civil society organisations in environmental
proceedings. In light of the remarkable growth of EU
commitments in the field of human rights, this paper will
argue that there is a basis for further steps by the EU
institutions in these areas.
The ambitions of this paper are broadly as follows.
• To note that evidence indicates that, as elsewhere,
environmental harms in Europe are very frequently
clustered in poor and minority or other marginalised
communities.
• To provide a summary of international developments
in human rights law and related law indicating an
emerging basis for EU-level rules and/or policy in the
field of combating disparate environmental harms of
the types understood within the framework
‘environmental racism/environmental justice’.
• To describe a vacuum of law and policy in Europe in
matters related to the problem of race-based or class-
based environmental harms and recommendations for
remedying this.
These elements are brought in order to note the need
for a comprehensive treatment of environmental racism/
environmental justice by European Union institutions,
such that Europe can begin seriously to tackle problems
of race- and class-based systemic exclusion issues as
they are expressed in matters relating to the environment.
Environmental justice: a brief history and a
definition
The environmental justice movement began in the United
States in the late 1980s with research showing racial
discrimination in the citing of hazardous waste facilities,
with African American communities shown to be far
more likely to be located near such facilities.3 In many
cases, the citing of waste facilities simply followed the
path of least resistance – poor and marginalised
communities lack the organisational capacity to
influence decision making. In other cases, however,
discrimination has taken a more direct form. In the
United States, on the basis of the popularisation of
the concept of environmental justice, some
communities in the past two decades have moved to
challenge the placement of hazardous industrial plants
and waste sites in minority and other marginalised
communities.4 In response, the federal government
developed an environmental justice policy based upon an
Executive Order signed by President Clinton in 1994.5
Secondly, the Executive Order led to the development of
a broad Environmental Protection Agency (EPA)
programme on environmental justice and to the
development of a Draft Environmental Justice Strategy.6
Last but not least, the Federal Government allocated
money for addressing cases and the impact of industrial
hazards (the Superfund). Although environmental
injustices are far from being eliminated in the United
States, the basic principle that governmental authorities
must take positive steps in order to prevent deliberate or
inadvertent unequal distribution of environmental risks
and benefits is now widely accepted in the United States.
Through the work of organisations such as Friends of
the Earth and the Black Environmental Network, the
movement for environmental justice took root in the
United Kingdom in the 1990s.7 Julian Agyeman, a leading
researcher in the field in the UK, states that ‘[t]here are
currently at least three different constructions of
environmental injustice in the UK: 1) access to the
countryside among those from ethnic minority groups;
2) Friends of the Earth England, Wales and Northern
Ireland’s ‘Pollution Injustice’ campaign; and 3) Friends of
the Earth Scotland’s, ‘Campaign for Environmental Justice’.8
3 Commission for Racial Justice (United Church of Christ) ‘Toxic Wastes
and Race in the United States: A National Report on the Racial and
Socio-Economic Characteristics of Communities with Hazardous Waste
Sites’ 1987.
4 For example, see B Hill ‘Chester, Pennsylvania – Was It a Classic Example
of Environmental Injustice?’ 23 Vermont Law Review (1999); J White
‘Environmental Justice: Is Disparate Impact Enough?’ 50 Mercer Law
Review 1999; V P Mahoney ‘Environmental Justice: From Partial Victories
to Complete Solutions’ 21 Cardozo Law Review 1999; R J Lazarus ‘The
Meaning and Promotion of Environmental Justice’ 5 Maryland Journal
of Contemporary Legal Issues 1994; R D Bullard ‘Levelling the Playing
Field Through Environmental Justice’ 23 Vermont Law Review 1999.
5 Executive Order 12898 on Federal Actions to Address Environmental
Justice in Minority Populations and Low-income Populations, issued by
President Clinton in 1994, enjoins each federal agency to: ‘Make
achieving environmental justice a part of its mission by identifying and
addressing, as appropriate, disproportionately high and adverse human
health or environmental effects of its programs, policies, and activities
on minority populations and low-income populations’. The order
establishes a federal administrative framework for coordinating and
overseeing the development of environmental justice strategies and
regulations in all federal agencies. The agencies are required to develop
databases and research programs capable of identifying trends in
environmental discrimination and to work in cooperation with minority
and low-income groups in designing the research strategies. The order
also contains special provisions ensuring appropriate public
participation and access to information associated with actions
undertaken by the government concerning environmental justice, taking
account of non-English speaking populations and the need to
communicate with the public in ‘concise, understandable, and readily
accessible’ language. Unfortunately, the Clinton era order has not led
to enforceable laws and regulations that would ensure the environmental
rights of poor and minority groups in the US.
6 The United States’ Environmental Protection Agency defines
Environmental Justice as the: ‘Fair treatment for people of all races,
cultures, and incomes, regarding the development of environmental
laws, regulations, and policies’ (EPA 2002). The draft strategy of
environmental justice was developed in 1996 (EPA 1996).
7 J Agyeman and B Evans (2004) ‘Just Sustainability: The Emerging
Discourse of Environmental Justice in Britain?’ The Geographical Journal
170 (2): 155–164.
8 J Agyeman, R Bullard and B Evans (2002) ‘Exploring the nexus: bringing
together sustainability, environmental justice and equity’.
Space and
Polity
1 (6): 77–90.
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The official position of the former Eastern-block
countries was that there were no poor people under
communism, and conditions and opportunities were
absolutely equal for all. However, significant inequalities
did exist, and have been exacerbated with the transition
to democracy and market economies.9 The transition of
the CEE economies has led to further impoverishment of
groups and individuals with low adaptability to the new
conditions.10 People lacking education and marketable
skills are those most hurt by the transformation (UNDP
2002; WB 200311 ). Since 2003 the Coalition for
Environmental Justice spearheaded by the Central
European University, Center for Environmental Policy and
Law has brought attention to major challenges to
environmental justice in Central and Eastern Europe,
focusing especially on the extreme environmental
injustices suffered by the Roma (gypsy)12 communities of
the region.13
While there is no universally agreed upon definition
of environmental justice, all definitions converge upon the
concepts of discrimination and distribution of harms/risks
and benefits.14 For the purposes of this article we will use
the definition of environmental injustice and environmental
justice developed in a workshop on environmental justice
held at the Central European University in 2003 that dealt
specifically with environmental injustices in Europe:15
• An environmental injustice exists when members of
disadvantaged, ethnic, minority or other groups suffer
disproportionately at the local, regional (sub-
national), or national levels from environmental risks
or hazards, and/or suffer disproportionately from
violations of fundamental human rights as a result of
environmental factors, and/or are denied access to
environmental investments, benefits, and/or natural
resources, and/or are denied access to information
and/or participation in decision-making, and/or
access to justice in environment-related matters.
• A condition of environmental justice exists when
environmental risks and hazards and investments and
benefits are equally distributed without direct or
indirect discrimination at all jurisdictional levels; and
when access to environmental investments, benefits,
and natural resources are equally distributed; and
when access to information, participation in decision-
making, and access to justice in environmental matters
are enjoyed by all.
These definitions bring together issues of equitable
distribution of risks and benefits, substantive rights
regarding the enjoyment of environmental quality and
resources, and procedural rights regarding access to
information, participation, and justice in environment
related matters. Neither current environmental policies nor
human rights policies/rules in the European Union are
adequate to address the special set of problems that
environmental injustices entail. In the next section, some
of these problems are outlined in brief case summaries.
Factual profiles of environmental injustice in
Europe
The problem of environmental injustice in Europe is
becoming evident as increasingly more research reveals
discrimination in the distribution of environmental benefits
and risks. Research supported by the Central European
University in Budapest has found that in Central and
Eastern Europe the main patterns of environmental
injustice are exposure to hazardous waste and chemicals,
vulnerability to floods, limitations on access to potable
water, and waste management practice. 16 The situation of
Roma (gypsies) has consistently been found to be most
perilous, endangering the health and even lives of entire
communities throughout the region.
The prevailing patterns of environmental injustice are
toxic exposure from environmental liabilities, lack of basic
environmental services, and disease, risk of death, and
homelessness related to flood vulnerability.17 For example,
as noted in a recent submission under the new United Nations
Human Rights Council Universal Periodic Review mechanism,
Romani communities in a number of places in Romania face
severe environmental threats as a result, for example, of forced
placement near sewage and waste-water treatment plants.18
Exposure to environmental harms is a persistent threat to
9 Steger et al ‘Making the Case for Environmental Justice in Central and
Eastern Europe’ (2007) Health and Environment Alliance and the
Center for Environmental Policy and Law, Budapest. R Filèák
‘Environmental justice in the Slovak Republic: the case of Roma ethnic
minority’ (2007) dissertation, Department of Environmental Sciences
and Policy, Central European University Budapest.
10 World Bank 2000.
11 UNDP 2002 The Roma in Central and Eastern Europe – avoiding the
dependency trap, a regional human development report
.
Bratislava:
United Nations Development Programme. World Bank 2003. Roma in
expanding Europe – breaking the poverty gap. Washington DC: World Bank.
12 Because of the negative connotations of ‘gypsy’ (or
Tsigan
), we use
Rom (plural Roma, adjective Romani), the term promoted by most
Romani organisations and Roma in the region.
13 See www.cepl.ceu.hu for more information. Also see Steger, et al (2007)
‘Making the Case for Environmental Justice in Central and Eastern
Europe’ Health and Environment Alliance and the Center for
Environmental Policy and Law, Budapest, Hungary, and the special issue
of
Local Governance Brief
(Summer 2004) devoted to environmental
justice in Central and Eastern Europe, available online on the website
of the Open Society Institute at http://www.soros.org/resources/
articles_publications/publications/lgi_20040805.
14 For example, see the US Environmental Protection Agency’s definition
(www.epa.gov/compliance/environmentaljustice/), or that of the
United Church of Christ Commission for Racial Justice (http://
ecojustice.net/document/principles.htm).
15 ‘Improving Environmental Justice in Central and Eastern Europe’ 6–7
December 2003, Budapest. The workshop was hosted by the Central
European University’s Center for Environmental Policy and Law and
included academics, activists, and attorneys from the Central and
Eastern European Region as well as from Western Europe. The project
was supported by grants from the European Commission’s Phare
Programme and the Open Society Institute.
16 Steger, Filèák (n 9).
17 The following case studies are taken from Steger et al (n 9) unless
otherwise noted.
18 See Centre on Housing Rights and Evictions (COHRE) and Romani
CRISS ‘Submission to the Office of the High Commissioner for Human
Rights, Romania, to assist in preparation of documents for the first
cycle of the Universal Periodic Review’ Geneva, Bucharest, February
2008 .
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Romani communities throughout Europe particularly, but not
only, in southeastern Europe. Extreme risks of this sort are
not uncommon in Romani settlements, although the full
extent of the problem across the region is unknown
because no large-scale studies have been commissioned
to investigate it.
The
Rudnany-Pätoracke
Roma settlement in Eastern
Slovakia has been identified as one of Slovakia’s 10 most
problematic ‘hot spots’. As a result of past mining activity
and other industry, the whole territory of the settlement
is contaminated by toxic emissions, waste dumps and
abandoned mine tailings. The toxic mine tailings contain
traces of mercury, which can cause mental illness, birth
defects, kidney failure and other diseases. The abandoned
mines are gradually collecting water from underground and
surface sources, and in a few years they will start to release
highly toxic effluents into the environment. The settlement
is surrounded by a giant hill of debris of loose rock from
the mine. White Slovaks were formerly evacuated from the
site as the ground began to give way and homes began to
sink into the ground. Other Roma in the region live on a
derelict factory site (
Rudnany-Zabijanec
) where mining
waste surrounds the community and the ground is
contaminated by industrial waste. Children playing in their
backyards are exposed to these toxins which have long-
term effects on health, including a risk of neurological
damage.19
One of the larger European Roma settlements is
Sredorek
, an exposed settlement with approximately 3500
inhabitants on the edge of the town of Kumanovo, a multi-
ethnic20 municipality in northern Macedonia. It is a poor
settlement characterised by high unemployment rates
(between 90 and 100 per cent),21 low access to education,
and poor health status with no water or sewage system
prior to 1998. There is new generation of Roma who
cannot be a part of some employment programmes or
receive state-owned apartments, so they were forced to
buy land and make houses near the old settlement.22
However, the old settlement is located on an island
between a split river (the Kumanovo). Part of the ‘down
river syndrome’, it is heavily polluted and floods in most
years. In January 2003, flooding took the homes of 406
families or around 3000 Roma and forced them to live in
collective centres.23 Similar flooding occurred again in
2005.
Some of the most dramatic cases of health problems
caused by environmental discrimination against the Roma
have occurred in Kosovo, where groups of Romani have
come under the ostensible protection of the United
Nations authorities. In 2004 the WHO discovered that
Romani residents in Kosovar camps for internally displaced
persons (IDPs) located very near a toxic waste site have
extremely harmful levels of lead in their blood. The US
Center for Disease Control recommends that special
attention be given to blood lead levels (BLL) higher than
10 mg/dl. WHO testing of 18 Romani persons indicates
that all have BLLs above 10 mg/dl, six of whom tested
between 45 and 64.99 mg/dl BLL and six of whom tested
above 65 mg/dl BLL. The BLLs are reportedly highest
among young children, with 12 children between the ages
of two and three years of age old experiencing such high
BLLs that they require anti-convulsive medication. Similar
cases of Romani communities being forced to live on toxic
waste sites have been documented in Germany, Italy and
elsewhere.
A recent UNDP survey of Slovakia illustrates the scale
of the differences in access to water between Roma and
non-Roma in the country. While the great majority of
households were supplied by the public water main (73.2
per cent), water sources for the Roma were more diverse.
Nearly a quarter of them draw water from a covered well
or bore-hole (compared to a tenth of majority households)
and 12.8 per cent use a public water source in the local
community. 3.9 per cent of Roma households obtained
water in a completely non-standard way (water from a
spring or stream).24
PP
PP
Perer
erer
ercentcent
centcent
centage of Rage of R
age of Rage of R
age of Roma populaoma popula
oma populaoma popula
oma populations living in householdstions living in households
tions living in householdstions living in households
tions living in households
withoutwithout
withoutwithout
without
acce acce
acce acce
access running wss running w
ss running wss running w
ss running waa
aa
att
tt
ter and saniter and sanit
er and saniter and sanit
er and sanitary facilitieary facilitie
ary facilitieary facilitie
ary facilitiess
ss
s
Bulgaria Czech Hungary Romania Slovakia
Republic
Running
45 4 34 65 32
water
Toilet in the
75 15 46 65 44
dwelling
Sewage
51 6 63 62 46
treatment
Bathroom in
70 12 41 66 37
the dwelling
Source: UNDP/ILO Regional Survey 200225
19 Filèák (n 9).
20 Besides Roma there are Macedonians and Albanians living in this place.
21 The official unemployment rate in Macedonia registered in 2005 was
37.2 per cent (see http://www.worldbank.org.mk/ for more details).
22 See M Koinova (2000). (CEDIME-SE). Minorities in southeast Europe
– Roma of Macedonia. Center for Documentation and Information on
Minorities in Europe – Southeast Europe. Or Dzeno Association:
Flooding of Roma Settlements in Macedonia from 10 August 2005.
Available at: http://www.dzeno.cz/?c_id=8355.
23 World Heath Organization 2005 ‘Rapid Health Assessment of Flooding
in The former Yugoslav Republic of Macedonia’ Final Report of Open
Society Institute Macedonia: Annual Report 2003.
Or ‘Internal Replacement Monitoring Centre: Floods displace some
4,000 Roma’ (January 2003). Available at: http://www.internal-
displacement.org/idmc/website/countries.nsf/(httpEnvelopes)/
7ED359A43AC42657802570B8005AAAC6?OpenDocument.
24 J Filadelfiová, D Gerbery and D kobla (2007) ‘Report on the
living conditions of Roma in Slovakia’ United Nations Development
Programme: Regional Bureau for Europe and the Commonwealth
of Independent States.
25 UNDP 2002 ‘The Roma in Central and Eastern Europe – avoiding
the dependency trap, a regional human development report’
Bratislava: United Nations Development Programme.
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Among European Union countries outside of the Central
and Eastern European area, the United Kingdom has
received the most intensive research scrutiny, and also
has the most developed environmental justice movement.
A study in the UK comparing large factory sites with
average household incomes revealed that 662 of the
largest factories are located in areas where the average
household income is less than £15,000.26 Only five of
the UK’s largest factories are located in areas where the
average household income is £30,000 or more. The
communities with the lowest average incomes had the
highest numbers of factories. The non-governmental
organisation Friends of the Earth emphasised that whether
or not this condition was the result of discrimination, the
impact is clear. 27
The United Kingdom Department of Health funded
(in 2004) a study on the health status of gypsies and
travellers.28 The study has discovered that these groups
have significantly greater health needs than other ethnic
minority communities and that there is an inverse
relationship between health needs and related services.29
The majority of existing gypsy and traveller sites in the
UK are located in areas that are fully unsuitable for housing
and raising families. Some sites can be found next door to
waste sewerage plants whilst others may be situated
alongside busy dual carriageways.
International and Pan-European context for
environmental justice
General frameworks
The international context for realising fairness in the
distribution of environmental benefits and risks consists
of the bodies of international human rights law,
environmental law and policy, and the initiatives and
principles that tie them together. While the rights to life
and health have been asserted earlier in a number of
international declarations, conventions and treaties,30 the
right to a healthy environment was first recognised by
the United Nations Conference on the Human
Environment in 1972, which issued the Stockholm
Declaration in which Principle 1 asserts the right to a
healthy environment.31 The Brundtland Commission
report, ‘Our Common Future’, proposed a set of ‘Legal
Principles for Environmental Protection and Sustainable
Development’, thereby setting the stage for much of the
ensuing debate around the law of sustainable
development. The first proposed principle asserts that:
‘All human beings have the fundamental right to an
environment adequate for their health and well-being’.
Subsequent to the Brundtland Report, the United Nations
Conference on Environment and Development in Rio de
Janeiro (1992) made the link between human rights and
environmental protection and provided the necessary
forum for the adoption of Agenda 21 and the Rio
Declaration on Environment and Development. Principle1
of the Rio Declaration asserts that: ‘Human beings are at
the centre of concerns for sustainable development. They
are entitled to a healthy and productive life in harmony
with nature’.32
The UN Committee on Economic, Social and Cultural
Rights (CESCR) recognised the relationship between the
environment and the right to the highest attainable
standards of physical and mental health, established under
Article 12 of the International Covenant on Economic,
Social and Cultural Rights (ICESCR). In 2000,
commenting on Article 12 matters in its General Comment
14 on ‘Substantive Issues Arising in the Implementation
of the International Covenant on Economic, Social and
Cultural Rights’, the Committee stated: ‘The right to health
… extends to the underlying determinants of health, such
as … a healthy environment’.33 Further, the UN Committee
on the Elimination of Discrimination against Women
(CEDAW) has directly acknowledged the importance of
environmental conditions including those associated with
industrial accidents, in relationship to women’s health.34
The UN Committee on the Rights of the Child also
acknowledged this in its ‘Concluding Observations on
Jordan,’ pointing out the need to: ‘… Prevent and combat
the damaging effects of environmental pollution and
contamination of water supplies on children’. 35
According to Agenda 21, one of the principles of
sustainable development is combating poverty, while the
long-term objective of enabling all people to achieve
sustainable livelihoods should be based on an integrating
factor that allows policies to address issues of
development, sustainable resource management and
poverty eradication simultaneously. The goal is to improve
the social, economic and environmental quality of human
26 Friends of the Earth 2000: ‘Pollution Injustice’ http:www.foe.co.uk/
pollution-injustice/.
27 J Agyeman (2002) ‘Constructing Environmental (In)justice:
Transatlantic Tales’
Environmental Politics
. 1:3 31–53.
28 According to the Online guide to Human Rights Law in England and
Wales Gypsy is a racial definition – for a people originating in northwest
India who left in the first millennium AD. In the UK the term ‘travellers’
refers not only to ethnic Roma, but also to other ethnic and social
groups. There are in the UK Irish travellers, Scottish travellers (Nachins),
Welsh gypsies (Kale) and English gypsies (Romanichals) among others.
There are also travelling showpeople (fairground travellers), boat
dwellers (bargees) and circus travellers. Then there are new travellers
or new age travellers, often defined as people who have made a
conscious decision to adopt an alternative lifestyle, seeking a perceived
greater community spirit. Available at http://www.yourrights.org.uk/
(Consulted 12 July 2006).
29 P Aspinall (2004) Health status, behaviour, wider determinants of health,
and use of services. University of Kent: Centre for Health Services Studies.
30 The Universal Declaration of Human Rights (1948), the International
Covenant on Civil and Political Rights (1966); the International
Covenant on Economic, Social, and Cultural Rights (adopted in 1966);
the World Health Organization’s (WHO) Constitution’s Preamble
(adopted in 1945); the International Labour Organization’s (ILO) Annex
to its Constitution (adopted 1944).
31 Declaration of the United Nations Conference on the Human
Environment, Stockholm 16 June 1972, 11
Int’l Leg. Mat.
1416 ( 197 2 ).
32 Declaration of the United Nations Conference on Environment and
Development UN Doc A/CONF.151/26 (vol. I); 31 ILM 874 (1992).
33 UN CESCR, General Comment 14 UN Doc E/C 12/2000/4 (2000).
34 UN CEDAW Concluding Observations on Romania UN Doc CEDAW/
C/2000/II/Add 7 at para 38 (2000).
35 UN CRC. Concluding Observations on Jordan, UN Doc CRC/C/15/
Add 125 at para 50 (2000).
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settlements and the living and working environments of
all people, in particular the urban and rural poor, through
providing adequate shelter for all, and integrated provision
of environmental infrastructure: water, sanitation, drainage
and solid-waste management.
Certainly, the most important global initiative to
combat the congeries of ills that afflict the world’s poorest
people is the effort to implement the Millennium
Development Goals (MDGs). The MDGs represent a de
facto international consensus in principle that poverty
eradication and environmental sustainability are mutually
dependent upon each other. From an environmental justice
perspective, Goal 1 (Eradicate extreme poverty and
hunger) and Goal 7 (Ensure environmental sustainability)
are of particular importance. While Goal 1 calls for a 50
per cent decrease in the proportion of people living on
less than one dollar a day and those who suffer from
hunger, Goal 7 promotes the integration of the principles
of sustainable development into country policies and
programmes; a reversal in the loss of environmental
resources; a reduction (by half) in the proportion of
people without sustainable access to safe drinking water;
and significant improvement in the lives of at least 100
million slum dwellers by 2020. Unfortunately, environmental
protection has not been well integrated into projects that
seek to achieve Goal 1, and therefore opportunities to
alleviate the poor of disproportionate environmental
burdens are being lost.36 In part, surely, this is due to the
fact that the international community has not fully
endorsed an environmental justice agenda. As we will argue
below, it need but recapture valuable work already done
within the United Nations system and multiple
stakeholders who have crafted a solid set of draft principles
that encompass the range of environmental rights,
including those pertaining to distributive justice.
The United Nations Commission on Human
Rights, and its successor body, the UN Human
Rights Council
The now-defunct United Nations Commission on Human
Rights initiated work on the human rights/environment
linkage in 1989, asking one of its members, Fatma Ksentini,
to review the methodological means for studying the
environment and human rights linkage.37 In 1990, the UN
General Assembly addressed the issue of environmental
rights, and recognised the work begun in the Commission
and its sub-bodies. General Assembly Resolution 45/94
declared that ‘all individuals are entitled to live in an
environment adequate for their health and well-being’, and
formally asked the Commission, through the Sub-
Commission on Prevention of Discrimination and
Protection of Minorities, to develop the environment-
human rights linkage in its work. Ms Ksentini was appointed
Special Rapporteur on Human Rights and the Environment
for the Sub-Commission in the same year, and the
following year the Commission adopted a resolution on
human rights and the environment in which it welcomed
the initiative of the Sub-Commission and formally
endorsed the importance of the human rights and
environment nexus for its own work. In 1994 the Special
Rapporteur submitted her Final Report.38
The Ksentini Report legitimised the human rights and
environment agenda that environmental and human rights
non-governmental organisations such as the Friends of
the Earth, the Sierra Club Legal Defense Fund,39 and the
Association of Humanitarian Lawyers, had been promoting
since the early 1980s. It found widespread violation of
fundamental human rights as a result of environmental
degradation, and also established that some environmental
harm could be traced to the violation of human rights.
Fundamental human rights found to be affected by
environmental degradation included the right to self-
determination and sovereignty over natural resources,
cultural rights, and the rights to life, health, food, housing,
information, participation, safe and healthy working
conditions, and association. Importantly, the report also
establishes the link between environmental rights and the
right to non-discrimination.
Unfortunately, the principle of non-discrimination in
the context of environmental risk is not fully developed in
the report, and has subsequently suffered some degree
of marginalisation in debates on human rights and the
environment at the international level. The Ksentini Report
stresses the fact that the fundamental human rights of
the poor and indigenous peoples are disproportionately
violated as a result of environmental factors, noting
especially that environmental rights are closely linked with
the right to development, and that poor citizens of
developing countries often suffer simultaneous violations
of their rights to development, environmental quality, and
fundamental human rights. The Report also identifies the
special vulnerability of other groups such as women,
children, the disabled and environmental refugees to
environmental risks. The Report does not deal explicitly
with the problem of racial or ethnic discrimination, and it
does not fully extend the concept of environmental rights
to cover non-discrimination in the distribution of
environmental investments and improvements. Nor does
the report directly address the human rights’ problems
associated with environmental risk in the developed
northern countries, with the exception of the violation of
the rights of indigenous peoples.
Prior to the submission of the Ksentini Report, an
expert group meeting on behalf of Ms Ksentini drafted a
set of principles on human rights and the environment in
May 1994, which were subsequently annexed to the report
itself. The ‘Draft Principles on Human Rights and the
Environment’40 declare a broad range of human rights
36 The United Nations Development Programme has launched the Poverty
and Environment Initiative (PEI) to promote closer integration of
environment and poverty reduction. See the PEI website for details:
http://www.undp.org/pei/aboutpep.html.
37 E/CN.4/Sub.2/1989/58.
38 UN Doe E/CN.4/Sub.2/1994/9 (Hereafter Ksentini Report)
39 Re-named Earthjustice.
40 Appended to the Ksentini Report (n 38).
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relating to the environment, found by the expert group
to be implicitly contained in existing human rights law,
including the Universal Declaration of Human Rights, the
International Covenant on Economic, Social and Cultural
Rights, the International Covenant on Civil and Political
Rights, and the Vienna Declaration and Programme of
Action of the World Conference of Human Rights. The
principles have not yet been formally endorsed by the
UNCHR and have not led to changes in existing
international human rights laws; they serve as a solid
foundation upon which environmental rights can be
elaborated at international, regional, and national levels.
The four principles in Part I provide the foundation
for the subsequent 22 rights identified in the Draft
Principles. Principle 1 establishes the interdependence and
indivisibility of human rights, an ecologically sound
environment, sustainable development and peace while
Principle 2 establishes the right of all persons ‘to a secure,
healthy and ecologically sound environment’.41 Principle
3 then establishes the foundation of a framework for
environmental justice:
• all persons shall be free from any form of
discrimination in regard to actions and decisions that
affect the environment
• this principle can reasonably be interpreted to cover
both directly injurious environmental discrimination
(exposure to disproportionate risk) and indirectly
injurious discrimination (disproportionate denial of
environmental goods, such as infrastructure
investments).
Other principles established in Part II of the Draft
Declaration that are directly relevant to cases of
environmental injustice include ‘the right to adequate
housing, land tenure and living conditions in a secure,
healthy and ecologically sound environment’ (Principle
10); protection from eviction on the basis of decisions
affecting the environment (Principle 11); the right to
restitution, compensation and/or new housing if evicted
(Principle 11); the right to equitably benefit from
conservation and other ecological goods (Principle 13);
and the rights of indigenous peoples to control and
protect their lands and resources (Principle 14). Part III
of the Draft Declaration reiterates the Rio Principles
regarding access to information and access to
participation in planning and decision-making in
environmental matters (Principles 15 and 18). Principle
25 in Part V of the Declaration underscores the awareness
of the especially difficult problem of environmental
discrimination:
• in implementing the rights and duties of this
Declaration, special attention shall be given to
vulnerable persons and groups.
Given the limited list of vulnerable groups identified in
the Ksentini Report itself, further elaboration of this
principle is necessary. Indeed, the Special Rapporteur
specifically expressed the hope that the Draft Principles
would serve as a foundation for the development of ‘a set
of norms consolidating the right to a satisfactory
environment’42 within the United Nations system. To date,
that hope has not been entirely fulfilled.
Developments in the past several years are,
nevertheless, encouraging.43 After submitting her final
report, Ms Ksentini was appointed as Special Rapporteur
on Toxic Waste by the Commission. Her task was to
investigate the human rights implications of the illicit
movement and dumping of toxic products and wastes.
Finding a widespread global pattern of illegal dumping of
wastes that primarily harms developing countries and has
been only partially stayed by the Basel Convention on
the Control of Transboundary Movements of Hazardous
Wastes and their Disposal, her final report,44 delivered in
2001, explicitly addresses the issue of discrimination.
Discrimination on grounds of race or social, ethnic,
political or cultural affiliation is aggravated by
‘environmental’ discrimination, since the wastes are buried
in developing countries and in zones inhabited by the
needy, migrants, indigenous peoples or racial, religious,
linguistic or other minorities. Moreover, these people are
excluded from the decision-making and environmental
monitoring processes; they are generally unable to afford
medical care or to sue or seek any other form of
administrative or legal remedy.45
The Special Rapporteur also noted at in at least one
country case that came to her attention: ‘Race is said to
be one of the parameters from which the location of
hazardous waste treatment facilities can be predicted’.46
Given the paucity of systematic and reliable empirical
research across Europe examining this issue, it cannot at
this time be categorically stated that this is a widespread
phenomenon in the EU. The problem here is the lack of
research, for which adequate funds have not yet been made
available by Member States or EU institutions.
In April of 2003 the UN Commission on Human Rights
adopted Resolution 2003/7147 on ‘Human Rights and the
Environment as Part of Sustainable Development’, which
lays out the range of issues included in the human rights
and environment nexus. It cuts across issues of poverty
alleviation, substantive and procedural environmental
41 Ksentini Report (n 38) + Corr 1 (13 September 1994).
42 Note at Section 261.
43 The watchdog and advocacy organisation Earthjustice provides ongoing
monitoring of human rights and environment developments at
international, regional, and national levels, and submits regular issue
papers summarising its findings to the UNCHR. Reports are available
on the Earthjustice website at http://www.earthjustice.org,
44 E/CN 4/2001/55 ‘Economic, Social and Cultural Rights: Adverse
Effects of the Illicit Movement and Dumping of Toxic and Dangerous
Products and Wastes on the Enjoyment of Human Rights’ a Report
submitted by the Special Rapporteur on Toxic Waste, Mrs Fatma-Zohra
Ouhachi-Vesely.
45 ibid para 67.
46 Ibid para 68.
47 Resolution 2003/71 adopted by the 59th session of the UN
Commission on Human Rights, Geneva 25 April 2003.
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rights, good governance, and discrimination. It also refers
to the importance of an explicitly distributive justice
approach to environmental rights, stating that: ‘[In the
development of environmental policy states should] take
into account how environmental degradation may affect
disadvantaged members of society, including individuals
and groups of individuals who are victims of or subject to
racism’.
While the statement itself is mild, suggestive, and not
comprehensive, its inclusion in the resolution is indicative
of the importance the Commission lays on distributive
justice issues related to the environment and human rights.
In response to the Special Rapporteur’s report
discussed above, the Commission issued Resolution
2004/17 on the Adverse Effects of the Illicit Movement
and Dumping of Toxic and Dangerous Products and Wastes
on the Enjoyment of Human Rights. Strongly urging
Member States and international bodies to take action
on this issue, the resolution also extends the Special
Rapporteur’s mandate for an additional three years.
The Commission also issued a report on Human
Rights and the Environment as Part of Sustainable
Development during its 2004 session in which it
summarised information provided by governments,
international bodies, and non-governmental organisations
on the human rights and environment issue. The report
itself is testimony to how slowly the principles of
environmental rights are being adopted into the body of
human rights laws and accepted norms. The report argues
that environmental rights are implicit in several
international human rights treaties.
Following extensive discussion on reform of the UN
Charter-based human rights machinery, the Commission
was abolished in 2006 and replaced in March of that year
with the new Human Rights Council. It is still too early to
know how the new body – which was both upgraded in
status within the UN system and at the same time shorn
of some its more independent powers – will act on matters
related to human rights and the environment, or indeed
how effective it will be generally.
One thing that is apparent is that under the weight
of growing concern over issues such as climate change,
environmental matters appear to be being mainstreamed
throughout a number of mandates reporting to the new
Council. Thus, while the mandate of the Special
Rapporteur on toxic waste continues to exist, the
December 2007 Human Rights Council resolution
extending the mandate for UN Special Rapporteur on the
right to adequate housing now explicitly for the first time
includes a link to environmental matters.48
Other mandates to have taken up environmental
matters include those on the right to health and the right
to food. And this work is only set to expand; the 7th
Human Rights Council, taking place in March 2008, was
slated to consider proposals including a German and
Spanish proposal to create a new mandate on the right to
water and sanitation, a mechanism which will inevitably
be called on to address linkages between human rights
and the environment. In addition, the government of
Maldives has tabled a motion addressing human rights
and climate change.
Relevant case law
In addition to the UN Charter-based intergovernmental
proceedings addressing explicitly the environment/human
rights nexus, including the issues understood to fall in the
environmental justice category, the interface between
human settlements and the environment also in principle
benefit from fundamental legal protections available under
international human rights treaty law, as well as the law of
regional human right protection instruments. The
International Covenant on Economic, Social and Cultural
Rights and the European Convention on Human Rights
have established rights that have direct bearing on
environmental justice issues, including the right to
adequate housing, the right to family and home life, the
right to the highest attainable standard of physical and
mental health, the right to the peaceful enjoyment of one’s
possessions and the ban on racial segregation. For
example, the International Covenant on Economic, Social
and Cultural Rights General Comment on the Right to
Adequate Housing states that: ‘Housing should not be
built on polluted sites nor in proximity to pollution sources
that threaten the right to health of the inhabitants’.49 Some
of these rights have been invoked by claimants in
environment related complaints that have reached the
European Court of Human Rights, and although issues
directly related to environmental justice have not yet been
heard by the court, coupled with the ban on racial
discrimination form a preliminary underpinning of the right
to equity in the distribution of environmental goods and
risks.
The case of
Lopez Ostra v Spain
50
represented a
significant turning point for environmental claims under
the European Convention on Human Rights.
Lopez Ostra
was the first case in which the court found a breach of
the Convention as a consequence of environmental harm
and affirmed the right to a clean environment as an
extension of the rights stated in Article 8 of the
Convention. The applicant resided in a Spanish village
48 The chapeau of Resolution 6/27 on the ‘Right to adequate housing as
a component of the right to an adequate standard of living’ includes,
for example, the following: ‘3
Expresses concern
at the prevalence of
homelessness and inadequate housing, the growth of slums worldwide,
forced evictions, the increase in challenges faced by migrants in relation
to adequate housing, as well as of refugees in conflict and post-conflict
situations, challenges to the full enjoyment of the right to adequate
housing caused by the impact of climate change, natural disasters and
pollution, insecurity of tenure, unequal rights of men and women to
property and inheritance, as well as other violations of and impediments
to the full realisation of the right to adequate housing’ (included in
the report of the 6th Human Rights Council, document A/HRC/6/
L.11/Add.1, 19 December 2007).
49 General Comment 4 of 13 December 1991, United Nations,
Compilation
, HRI/GEN/1/Rev.3 63 para 5.
50
Lopez Ostra v Spain
, judgment of 9 December 1994, ECHR 41(1994)
436–515.
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called Lorca and owned a house few metres away from a
privately owned solid and liquid waste-treatment facility.
The pollution released from the plant had proven to have
adverse effects on her health. Notwithstanding numerous
complaints, after a short time of inactivity, the plant
restarted its activity. The citizens of Lorca were evacuated
from the toxic area for only a short period of time by the
municipality.
Ms Lopez Ostra then complained to the European
Court of Human Rights, and petitioned the court that
she had suffered a violation of her right to privacy and
freedom from inhuman or degrading treatment (Articles
8 and 3 of the ECHR respectively). The applicant
supported these allegations by establishing a nexus
between adverse effects on her health and the unregulated
operation of the plant. In reviewing the applicant’s expert
testimony, the court took into account the persistent
nature of environmental pollution and interpreted the rules
of procedure to include evidence of: ‘Facts occurring after
the application has been lodged and even after the
decision on admissibility has been adopted’. In finding for
the applicant, the court employed the fair balance test
set forth in Article 8(2) and examined whether the local
authorities struck a fair balance between the interest of
the town’s economic well-being and the applicant’s
effective enjoyment of her right to respect for her home
and her private and family life. The court found that
Spanish authorities had failed to enforce domestic law by
enabling the plant to operate without a licence and
without compliance with the appropriate national
standards. This amounted to a breach of its affirmative
duty to ensure the respect for home and private life under
Article 8(1).
In
Guerra and Others v Italy
51 a petition was submitted
on behalf of forty applicants who lived in Manfredonia,
1km away from an Enichem chemical factory. In 1988 the
factory, was classified as ‘high risk’ according to the criteria
set out in Presidential Decree No 175 of 18 May 1988
(DPR 175/88), which transposed into Italian law Directive
82/501/EEC of the Council of the European Communities
(the Seveso Directive), on the major-accident hazards of
certain industrial activities dangerous to the environment
and the well-being of the local population. The
government did not dispute the asserted release by the
factory of large quantities of inflammable gas, sulphur
dioxide, nitric oxide, sodium, ammonia, metal hydrides,
benzoic acid and above all, arsenic trioxide. Accidents due
to malfunctioning had already occurred in the past, and
150 people were admitted to hospital with acute arsenic
poisoning. In the case, the court found an Article 8
violation, but rejected a claim that the applicants Article
2 right to life had been violated. The application of Article
8 rather than Articles 2 or 3 may be advantageous insofar
as cases of pollution and interference in people’s lives of
a lesser scale than those required by Articles 2 or 3.
It is not yet clear if Article 8 provides only protection
against actual pollution or also hazard. In the case of
Asselbourg and Others v Luxembourg
,52 the applicants
complained of the polluting effects of producing steel from
scrap rather than iron ore. In this case the court rejected
the application but stated that:
It is only in wholly exceptional circumstances that the
risk of a future violation may nevertheless confer the
status of ‘victim’ on an individual applicant, and only
then if he or she produces reasonable and convincing
evidence of the probability of the occurrence of a
violation concerning him or her personally: mere
suspicions or conjectures are not enough in that
respect. In the instant case, the court considers that
the mere mention of the pollution risks inherent in
the production of steel from scrap iron is not enough
to justify the applicants’ assertion that they are the
victims of a violation of the Convention. They must
be able to assert, arguably and in a detailed manner,
that for lack of adequate precautions taken by the
authorities the degree of probability of the occurrence
of damage is such that it can be considered to constitute
a violation, on condition that the consequences of the
act complained of are not too remote.
The feature of the Convention as a ‘living instrument’ can
be found in the creative interpretation of the court of
Article 10 of the ECHR53 as including the right for
environmental information, considered of great
importance for the purposes of the environmental
safeguard. In
Guerra,
the Commission states that ‘... [The
Convention] should be interpreted as granting an actual
right to receive information, in particular from the
competent authorities, to persons from sections of the
population which have been or may be affected by an
industrial or other activity dangerous to the environment’.
Accordingly, the Commission held that Italy violated its
Article 10 obligations by failing to disseminate sufficient
information on issues concerning the protection of the
environment and in failing adequately to inform the
applicants that they were living in a high-risk area. By a
21 to 8 vote, the Commission agreed that a violation had
occurred. But the court, deciding in the case, ruled there
was no violation of Article 10 but instead that the lack of
communication to the interested populations of the
environmental risks constituted a violation of Article 8 of
the Convention. With this interpretation, the court
51
Guerra & Others v Italy
, 19 February 1998, ECHR App No 14967/89.
52
Asselbourg and Others v Luxembourg
29 June 1999, ECHR App No
29121/95.
53 Article 10 of the ECHR reads: ‘1Everyone has the right to freedom of
expression. This right shall include freedom to hold opinions and to
receive and impart information and ideas without interference by public
authority and regardless of frontiers. This article shall not prevent States
from requiring the licensing of broadcasting, television or cinema
enterprises. 2 No restrictions shall be placed on the exercise of these
rights other than such as are prescribed by law and are necessary in a
democratic society in the interests of national security or public safety,
for the prevention of disorder or crime, for the protection of health or
morals or for the protection of the rights and freedoms of others. This
article shall not prevent the imposition of lawful restrictions on the
exercise of these rights by members of the armed forces, of the police
or of the administration of the State’.
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affirmed the right to environmental information as a
necessary element of the right guaranteed by Article 8.
Another step forward in the interpretation of the court
to recognise the right to be protected from damages to
the environment can be found in the recent case of
Öneryildiz v Turkey
.54 Relying on Articles 2, 8 and 13 of
the Convention and on Article 1 of Protocol No 1, the
applicants submitted that the national authorities were
responsible for the deaths of their close relatives and for
the destruction of their property as a result of a methane
explosion on 28 April 1993 at the municipal rubbish tip
in Ümraniye (Istanbul). They further complained that the
administrative proceedings conducted in their case had
not complied with the requirements of fairness and
promptness set forth in Article 6 (1) of the Convention.
Since the early 1970s a household-refuse tip had been in
operation in Hekimbasi, a slum area adjoining Kazim
Karabekir. When the rubbish tip started being used, the
area was uninhabited and the closest built-up area was
approximately 3.5km away. However, as the years passed,
rudimentary dwellings were built without any authorisation
in the area surrounding the rubbish tip, which eventually
developed into the slums of Ümraniye. On 28 April 1993
at about 11 am a methane explosion occurred at the site.
Following a landslide caused by mounting pressure, the
refuse erupted from the mountain of waste and engulfed
some 10 slum dwellings situated below it, including the
one belonging to the applicant – 39 people died in the
explosion.
Regarding the alleged violation of Article 2, the Grand
Chamber noted that since the Turkish authorities had
known or ought to have known that there was a real or
immediate risk to persons living near the rubbish tip, they
had had an obligation under Article 2 of the Convention
to take such preventive operational measures as were
necessary and sufficient to protect those individuals,
especially as they themselves had set up the site and
authorised its operation, which had given rise to the risk
in question. However, Istanbul City Council had not only
failed to take the necessary urgent measures but had also
opposed the recommendation by the Prime Minister’s
Environment Office to bring the tip into line with the
applicable standards. It had also opposed the attempt in
August 1992 by the mayor of Ümraniye to obtain a court
order for the temporary closure of the waste-collection
site. As to the government’s argument that the applicant
had acted illegally in settling by the rubbish tip, the court
observed that in spite of the statutory prohibitions in the
field of town planning, the Turkish State’s consistent policy
on slum areas had encouraged the integration of such
areas into the urban environment and had thus
acknowledged their existence and the way of life of the
citizens who had gradually caused them to build up since
1960, whether of their own free will or simply as a result
of that policy. In conclusion, the court noted that the
regulatory framework applicable in the present case had
proved defective in that the tip had been allowed to open
and operate and there had been no coherent supervisory
system. That situation had been exacerbated by a general
policy which had proved powerless in dealing with general
town-planning issues and had undoubtedly played a part
in the sequence of events leading to the accident. The
court accordingly held that there had been a violation of
Article 2. In the case, the court also found violations of
Article 1 of Protocol 1 (right to peaceful enjoyment of
one’s possessions) and Article 13 (right to an effective
remedy). Having regard to the findings it had already
reached, the court did not consider it necessary to
examine the allegations of a violation of Article 6 para 1
and Article 8.
The
Öneryildiz v Turkey
case shows that the right to
life as from Article 2 of the ECHR can be a source of
protection of people from environmental damages
requiring not only abstention from injurious actions, but
also sets positive obligations on the governments. The
recognition of a violation of Article 2 sets a wider human
right protection from the environmental harms on
marginalised groups than the protection provided from
the mentioned interpretation of Article 8.
In a more recent case of direct relevance to Roma, in
2005, the court held that degrading living conditions,
combined with evident racial discrimination, could be of
such a severe nature that they would rise to the level of
‘degrading treatment’ as banned under Convention Article
3 – a very high bar.55 The persons concerned had been
burned out of their homes in a pogrom in 1993 and forced
to live for a number of years in pigsties and other
humiliating circumstances. The court also found violations
of the Article 14 discrimination ban of the Convention in
conjunction with Articles 6(1) and 8.
Other non-discrimination principles established by
the court may provide fertile ground for actions to
challenge environmental racism in Europe. For example,
ruling in the case of
Thlimmenos v Greece
in 2000, the
court established the following principle:
The court has so far considered that the right under
Article 14 not to be discriminated against in the
enjoyment of the rights guaranteed under the
Convention is violated when States treat differently
persons in analogous situations without providing an
objective and reasonable justification [...]. However,
the court considers that this is not the only facet of
the prohibition of discrimination in Article 14. The
right not to be discriminated against in the enjoyment
of the rights guaranteed under the Convention is also
violated when States without an objective and
54
Öneryildiz v Turkey
18 June 2002, ECHR App No 48939/99.
55 ‘In the light of the above, the court finds that the applicants’ living
conditions and the racial discrimination to which they have been publicly
subjected by the way in which their grievances were dealt with by the
various authorities, constitute an interference with their human dignity
which […] amounted to “degrading treatment” within the meaning of
Article 3 of the Convention.’ (
Moldovan and Others v Romania
ECHR
App nos 41138/98 and 64320/01, Judgment No 2 12 July 2005 para
113).
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reasonable justification fail to treat differently persons
whose situations are significantly different.56
This reasoning may provide the nucleus for any number
of future actions at the Court, for example complaints to
challenge the failure by authorities to move minority
groups situated in areas known to be more hazardous than
areas inhabited by members of the majority society. This
reasoning also supports the claims made by environmental
justice advocates that authorities bear an obligation to
create special policies and programmes to ensure that
disadvantaged groups develop the knowledge and
capacities to adequately take advantage of available rights,
such as the procedural rights guaranteed by the Aarhus
Convention.
Procedural rights for environmental justice
The importance of procedural rights for environmental
justice lies in the fact that marginalised groups are often
victim to environmental discrimination because they
either lack adequate information regarding risks, fail
to understand that information, are excluded from or
unable to participate in decision making regarding their
own environments, or lack access to justice or
knowledge of judicial options to redress wrongs they
have suffered. Because of their social exclusion, often
exacerbated by a low level of education, marginalised
groups may often suffer disproportionately from
violations of their procedural rights or are unable to
take effective advantage of those rights, putting an extra
burden on authorities to take active measures to ensure
that such populations are informed as to the
environmental risks they face and are brought into
policy and planning decision making processes that
affect their communities.
The issue of procedural rights was formally addressed
at the 1992 UN Conference on Environment and
Development. Principle 10 of the Rio Declaration
recognised procedural environmental rights, stating
that environmental issues are best handled with
participation of all concerned citizens, at the relevant
level. At the national level, each individual shall have
appropriate access to information concerning the
environment that is held by public authorities, including
information on hazardous materials and activities in
their communities, and the opportunity to participate
in decision making processes. States shall facilitate and
encourage public awareness and participation by
making information widely available. Effective access
to judicial and administrative proceedings, including
redress and remedy, shall be provided.
Rio Principle 10 established the basis for negotiations
that led to the celebrated United Nations Economic
Commission for Europe’s Aarhus Convention on Access
to Information, Public Participation in Decision-making and
Access to Justice in Environmental Matters, which has
become one of the few great success stories in
international environmental law in the late 1990s, albeit
at a regional level. The Aarhus Convention proclaims the
legal ‘right of every person of present and future
generations to live in an environment adequate to his or
her health and well-being’57 and seeks to ensure this right
through enjoining parties to the convention to proactively
and reactively make information on environmental
conditions available to citizens, to provide for citizen and
NGO participation in environmental decision making, and
to ensure that a denial of these rights can be appealed
through judicial review.
In principle the Aarhus Convention offers minorities
in most European countries the kinds of protections that
they need to ensure that environmental justice is
established on a procedural level.58 However, neither Rio
Principle 10 nor the Aarhus Convention take account of
the special conditions of marginalised groups, leaving open
the possibility that these groups will not reap the benefits
of the Convention, even in countries where it is adequately
implemented. Without provisions that require authorities
to develop special programmes that reach out to minority
and marginalised groups, it is hard to see how communities
such as rural Roma villages in Central Europe will develop
the capacity to effectively absorb information about their
immediate environmental conditions and risks, much less
participate in decision making processes.
In an indication that the concept of environmental
justice is penetrating the discourse on access to
information, participation and justice in environmental
matters, a recently released report, Environmental
Democracy in Hungary,59 explicitly refers to marginalised
and minority groups, including the Roma, in the
implementation of the procedural rights embodied in the
Aarhus Convention, to which Hungary is a party.
Specifically, the consortium of NGOs and universities that
conducted the research for the report found that it could
identify no cases in which ‘authorities preparing [a]
decision made special efforts to involve marginalised
groups in the decision making process’.60 Moreover,
information regarding legal remedies is not published by
the government, and the one NGO that does provide
published information does not make it available in forms
and forums readily accessible to the Roma minority.61
The European Court of Human Rights has also
recently reaffirmed the procedural aspects of human rights
issues related to the environment. In a recent ruling
concerning the arbitrary deprivation of water to an
57 Aarhus Convention art 1.
58 Most states in the UNECE region have signed and ratified the Aarhus
Convention, with the notable exceptions of the Russian Federation,
Slovakia, Uzbekistan, Serbia and Montenegro, and Bosnia and
Herzegovina.
59 The Access Initiative is an NGO led multi-country effort to monitor
environmental rights. Information is available on the TAI website at
http://www.accessinitiative.org/.
60 ibid s II.B.–C.10.
61 ibid s IV.C.5.
56
Thlimmenos v Greece
, 6 April 2000 ECHR App No 34369/97.
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applicant from Romania, the court found violations of the
European Convention, but framed these in terms of Article
6, guaranteeing the right of access to an effective tribunal.
The court evidently found compelling the problem that
the denial of water for a period of three years was indeed
a core human rights issue, but it was moved to engage
the international/regional justice framework around the
fact that a decision on the matter in favour of the applicant
by the Romanian Supreme Court had been blatantly
disregarded.62
The European Union context for
environmental justice
Environmental rights at the level of the EC are generally
under-developed, having thus far warranted no specific
mention in the basic legal framework for human rights in
the EU. That said, however, the EU institutions have in recent
years strongly embraced the discourse on sustainability as
an organising framework; anchored fundamental human
rights at the heart of EU law; and dramatically expanded
their competences in the field of anti-racism broadly, and
anti-discrimination law in particular.
On 7 December 2000 in Nice, a Charter of
Fundamental Rights of the European Union63 was signed
and proclaimed by the Presidents of the European
Parliament, the Council and the Commission on behalf of
their institutions. The adoption of the Charter is a move
the implications of which have yet to be fully seen, but
they set all EU action – including action in the field of
environmental law – on a fundamental human rights basis.
The implications of this move may reshape a number of
policy areas in the coming years.
Actions of more immediate and clear import in the
EU relating to combating discrimination and racism,
including discrimination and racism against Roma, has been
the adoption of a series of anti-discrimination directives,
adopted pursuant to the revised Article 13 of the Treaty
Establishing the European Community (TEC) after its
Treaty of Amsterdam amendments.64 Insofar as the anti-
discrimination directives constitute the standard for anti-
discrimination laws in Europe, they are also relevant for
countries not yet members of the European Union.
Particularly significant for Roma is Directive 2000/43/
EC, implementing the principle of equal treatment between
persons irrespective of racial or ethnic origin (the Race
Directive).
The Race Directive introduced legal standards
throughout the EU aimed at ending differential treatment
based on the arbitrary criteria of race or ethnicity. The
Race Directive provides details as to the scope and content
of laws banning racial discrimination. It includes, among
other provisions, bans on both ‘direct’ and ‘indirect’
discrimination,65 the requirement of legal remedies for
victims of racial discrimination through ‘judicial and/or
administrative procedures’, for the enforcement of anti-
discrimination obligations ‘available to all’66 and the
provision that in cases in which complainants: ‘Establish,
before a court or other competent authority, facts from
which it may be presumed that there has been direct or
indirect discrimination, it shall be for the respondent to
prove that there has been no breach of the principle of
equal treatment’.67 The directive also requires that
domestic law impose effective, proportionate and
dissuasive sanctions for violation of anti-discrimination
norms. These should include: ‘The payment of
compensation to the victim’.68
The inclusion of a ban on ‘indirect discrimination’ is
of particular relevance for environmental justice. According
to Race Directive Article 2 (2)(a), ‘indirect discrimination’
occurs: ‘Where an apparently neutral provision, criterion or
practice would put persons of a racial or ethnic origin at a
particular disadvantage compared with other persons, unless
that provision, criterion or practice is objectively justified by
a legitimate aim and the means of achieving that aim are
appropriate and necessary’. The inclusion of a ban on
indirect discrimination, so defined, potentially opens the
way for legal challenge under EU law to issues such as systemic
substandard housing, the arbitrary siting of hazardous
factories in minority neighbourhoods, and unregulated
hazardous waste in close proximity to minority areas.
Separately, the EU has also adopted a Community
Action Programme to combat discrimination (2000–
2006), managed through the DG Employment and Social
Affairs. The Programme is designed to support and
complement the implementation of the directives through
the exchange of information and experience and the
62 European Court of Human Rights, Arrêt, Affaire Butan et Dragomir c
Roumanie,
(Requête no 40067/06),
14 février 2008.
63 2000 OJ (C 364) 1.
64 Beginning in 2000, and in particular under expanded powers provided
by an amended art 13 of the Treaty Establishing the European
Community, the European Union adopted a number of legal measures
that have significantly expanded the scope of anti-discrimination law
in Europe, notably three directives: (i) Directive 2000/43/EC
‘implementing the principle of equal treatment between persons
irrespective of racial or ethnic origin’ (Race Directive) (ii) Directive
2000/78/EC ‘establishing a general framework for equal treatment in
employment and occupation’ (Employment Directive) and (iii) Directive
2002/73/EC ‘on the implementation of the principle of equal
treatment for men and women as regards access to employment,
vocational training and promotion, and working conditions’, providing
an increased level of protection against discrimination based on sex
and amending an earlier directive in this area. In addition to the
Directives adopted under art 13, a revised art 29 of the TEC now gives
police and judicial authorities heightened powers to co-operate on
matters related to, among other things, ‘preventing and combating
racism and xenophobia’.
65 For the purposes of the EU directive, ‘direct discrimination’ is defined
as having occurred ‘where one person is treated less favourably than
another is, has been or would be treated in a comparable situation on
grounds of racial or ethnic origin’ (EU directive art 2(2)(a), while
‘indirect discrimination’ occurs ‘where an apparently neutral provision,
criterion or practice would put persons of a racial or ethnic origin at a
particular disadvantage compared with other persons, unless that
provision, criterion or practice is objectively justified by a legitimate
aim and the means of achieving that aim are appropriate and necessary’
(EU directive art 2(2)(b). The full text of the European Union Race
Directive is available online at: http://europa.eu.int/comm/
employment_social/fundamental_rights/legis/legln_en.htm.
66 EU Race Directive art 7(1).
67 EU Race Directive art 8.
68 EU Race Directive art 15.
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dissemination of best practice. The Programme promotes
measures to combat discrimination based on racial or
ethnic origin, religion or belief, disability, age or sexual
orientation.
To date, however, the EU has not yet undertaken
thoroughgoing measures to link its anti-discrimination law
and social inclusion policy frameworks with its efforts in
the field of environmental law and policies, issues
addressed under a distinct Directorate General of the
European Commission. Legal measures to address
environmental justice matters adopted by the EU have to
date remained for the most part within the narrow confines
of the Aarhus Convention. Two directives and one
regulation incorporate Aarhus within the EU legal order.
These are Directive 2003/4/EC on public access to
environmental information and Directive 2003/35/EC
providing for public participation in respect of the drawing
up of certain plans and programmes relating to the
environment, and Regulation (EC) No 1367/2006 of the
European Parliament and of the Council on the application
of the provisions of the Aarhus Convention on Access to
Information, Public Participation in Decision-making and
Access to Justice in Environmental Matters to Community
institutions and bodies.
In addition, the Commission has
adopted a proposal for a directive on access to justice in
environmental matters.
Like the Aarhus Convention itself, none of these
instruments provides for justice in the substantive terms
set out above, nor do they link concepts of justice with
the need for remedy for weak groups, the need to correct
disparate environmental harms, or related matters. The
Regulation on access to justice in environmental matters
aims to set criteria for access to proceedings in
environmental matters for individuals and other relevant
entities. It does not, however, risk inclusion of any
substantive rights matters above and beyond a statement
in its pre-ambulatory provisions that the regulation:
‘Respects the fundamental rights and observes the
principles recognised by Article 6 of the Treaty on the
European Union and reflected in the Charter of
Fundamental Rights of the European Union, in particular
Article 37 thereof’.69 Stress is laid upon the environmental
aspects of the Charter, to the detriment of its other
provisions, including its non-discrimination provisions.
For these reasons, the Coalition for Environmental
Justice, a grouping of NGOs working on environmental
racism/environmental justice issues in Central and Eastern
Europe, recommended, in the context of public European
Commission discussion of the future of EU anti-
discrimination action,70 that explicit wording be included
in the draft directive to the effect that in matters related
to the environment as they pertain to racial and ethnic
discrimination, the directive should be read in conjunction
with Directive 2000/43/EC: ‘Implementing the principle
of equal treatment between persons irrespective of racial
or ethnic origin’.71 To date, the Commission has not yet
acted on this recommendation.
In the area of European Union soft law and other
policy measures, the 6th Community Environment Action
Programme (EAP) establishes the principles, norms, and
priorities that Member States as well as EU institutions
themselves should adopt in pursuing environmental goals.
The Sixth EAP integrates human health objectives
throughout – and devotes a full article to environment
and health, coving chemical safety, chemical exposure,
pesticides, air quality, water availability and quality, and
other issues. All of these issues are relevant to marginalised
communities. For example, Romani communities in rural
areas often suffer from both restricted availability of water
and from contamination of the water sources that do exist.
Communities and countries not working diligently to
ensure ‘a high level of protection of surface and
groundwater’ for all citizens are not meeting the objectives
of the EAP.
Unfortunately, the EAP does not directly acknowledge
or address problems of environmental justice and the
special burdens put on disadvantaged communities. It
does, however, acknowledge the linkage between
environmental and social issues within the framework of
sustainable development72 and stresses the importance
of the Aarhus pillars of access to information, participation,
and justice in environmental matters. However, as argued
above, without explicit reference to marginalised groups
the rights to access to information, participation, and
justice could be made widely available and still not prevent
environmental injustices from occurring within their scope.
Of potentially greater importance is the EU Strategy
for Sustainable Development (SDS),73 originally adopted
by the Council at the 2001 Göteborg Summit, and now
revised. At the Lisbon Summit in 2000 the Council set
the EU’s goals as becoming: ‘The most competitive and
dynamic knowledge-based economy in the world capable
of sustainable economic growth with more and better jobs
and greater social cohesion’.74 The SDS adopted in
Göteborg interprets this language to mean that: ‘Economic
growth, social cohesion and environmental protection
69 Regulation (EC) No 1367/2006 of the European Parliament and of
the Council of 6 September 2006 on the application of the provisions
of the Aarhus Convention on Access to Information, Public Participation
in Decision-making and Access to Justice in Environmental Matters to
Community institutions and bodies.
70 European Commission’s DG Employment and Social Affairs opening
for public debate of a Green Paper on ‘Equality and non-discrimination
in an enlarged European Union’(COM (2004) 379 final, Brussels,
28.05.2004).
71 Signatories of the recommendation were the Center for Environmental
Policy and Law at Central European University (Hungary), the European
Roma Rights Centre (Hungary), the Centre for Economic Development
(Bulgaria), the Alliance for Lake Cooperation in Ohrid and Prespa
(Republic of Macedonia), the Milan Simecka Foundation (Slovakia) and
Development Alternatives (Slovakia).
72 Paragraph 6 of the Preamble states that ‘A prudent use of natural
resources an the protection of the global eco-system together with
economic prosperity and a balanced social development are a condition
for sustainable development’. Although ‘balanced social development’
is a frustratingly vague phrase, it could reasonably be interpreted to
include an equitable and just social development in which discrimination
of all forms against marginalised groups is alleviated.
73 SDS and Summit Conclusions.
74 Summit Conclusions.
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must go hand in hand’.75 It is not far to take the final step
and conclude that a healthy environment and a just society
that protects especially vulnerable groups are mutually
reinforcing objectives. Indeed, the SDS in the form of the
Commission’s communication states that: ‘Poverty and social
exclusion have enormous direct effects on individuals, such
as ill health, suicide, and persistent unemployment’. The next
step will be to acknowledge that poverty, social exclusion
and the durable phenomena of racism and racial
discrimination also have profound environmental dimensions,
allowing increased levels of pollution to persist due to the
inability of the poor and the socially excluded – including
especially members of pariah minorities – to effectively
combat polluters and discriminatory authorities, and exposing
the poor and socially excluded to greater levels of
environmental risk and lower levels of environmental
improvements, thereby further entrenching deep exclusionary
forces and extreme marginalisation.
Conclusions
It has been the ambition of this overview to describe the
contours of a vacuum. Despite compelling and powerful
exclusion issues falling along the nexus of environmental
regulation and human rights law European institutions have
not yet managed to tackle these issues outright. The
European Union has the competence to address these
matters as a result of powers included in existing treaties,
and should respond to the current regulatory vacuum by
providing leadership in this area. Authorities in EU Member
States, as well as in EU candidate countries and elsewhere
are also in a position to make powerful contributions to
the elaboration of this much-needed regulatory framework
by taking the initiative in advance of EU action to address
these compelling needs.
Some actions require little in the way of resources
and can be readily undertaken. These include:
• Establishing a working group on environmental justice
and task it to produce a white paper on environmental
racism/environmental justice matters in Europe;
• Amending the 6th Environment Action Programme
to make explicit reference to environmental justice
and set environmental justice policy objectives;
• Incorporating environmental justice objectives in the
EU Strategy for Sustainable Development;
• Linking the directives implementing the Aarhus
Convention to EU anti-discrimination frameworks;
• Providing funding for further research into
environmental justice issues in Europe, and
encouraging states to provide public research funds
for similar efforts.
In addition, EU officials in particular have available several
options for action in this area. Some possibilities include,
for example:
• Encouraging EU Member States and candidate
countries to establish coordination bodies at national
level to work on development and implementation of
law and policy in environmental racism/environmental
justice matters, as well as to facilitate forums for non-
governmental groups working on the issue to liaise
with relevant policy-makers;
• Through Eurostat and other data groups at EU level,
assisting states in developing data to measure possible
disparate environmental impacts on pariah minorities
and/or other weak groups;
• Encouraging Member States-level lawmakers to link
environmental legislation to laws adopted to comply
with EU anti-discrimination legal requirements.
Environmental injustices constitute a fundamental threat
to the European social model and policies in support of
social inclusion, anti-discrimination, and environmental
protection. To date no attention has been paid these issues
at policy making levels in the European Union. The civil
society sector has now adopted the issue of environmental
justice and can be expected to develop activist strategies
and lobbying campaigns. The European Union institutions
have the opportunity to anticipate the environmental
justice demands arising from non-governmental
organisations and marginalised communities by initiating
action in this area. They should not hesitate to do so.
75 EU Presidency Conclusions, Göteborg, 15 and 16 June 2001. SN 200/
1/01 REV 1.
