The gaps in MEAs and their effect on accessing justice

In his 2015 report on the implications for human rights of the environmentally sound management and disposal of hazardous substances and wastes’, sections 76-80, the UN Special Rapporteur identified the need to enable people to claim and defend their rights. The special Rapporteur is of the opinion that enjoyment of human rights is at the core of rights-based environmental agreements such as the Aarhus Convention.¹¹¹

In my view, the limitation of the chemicals and toxic waste related MEAs in facili-tating access to justice, as proposed by the UN Special Rapporteur, is rooted on the fact that they lack a rights-based approach in their design. Access to justice, from a rights-based perspective, refers to the ability of people from disadvantaged groups to prevent and overcome human poverty by seeking and obtaining a remedy, through formal and informal justice systems, for grievances in accordance with human rights principles and standards.¹¹² This definition by the UN High Commissioner applies to situations where people and their environment are negatively affected by tox-ic chemtox-icals and waste. In a situation where people are affected by dumped toxtox-ic chemicals and waste and are unable to access justice, their levels of poverty increase due to increasing expenses on health services, loss of livelihoods and incomes, etc.

While a number of international instruments have established principles and min-imum rules for the administration of justice and offer fairly detailed guidance to states on human rights and justice, the majority of MEAs provide limited support to these objectives. There is, therefore, a mismatch between MEAs and international human rights instruments and this is due to the fact that MEAs have failed to take into account elements that are critical for accessing justice. These elements include legal protection, legal awareness, legal aid and counsel, adjudication, enforcement and civil society oversight.¹¹³ The ability to access justice depends on these elements which, in my opinion, are not fully taken into account by most of the MEAs.

111 ‘Report of the Special Rapporteur on the implications for human rights of the environmentally sound management and disposal of hazardous substances and wastes, Başkut Tuncak’, UN Doc A/HRC/30/40 (2015).

112 OHCHR, ‘Principles and guidelines for a human rights approach to poverty reduction strategies’ (2002), available at <https://www.ohchr.org/Documents/Publications/PovertyStrategiesen.pdf> (visited 7 June 2019) at 9.

113 UNDP, ‘Access to Justice’, Practice note (2004), available at <https://www.undp.org/content/dam/

aplaws/publication/en/publications/democratic-governance/dg-publications-for-website/access-to-jus-tice-practice-note/Justice_PN_En.pdf> (visited 7 June 2019) at 5-6.

Since the Basel Convention is the most relevant to the theme of this paper, let us examine its provisions viz-a-viz the key elements for accessing justice mentioned in the preceding paragraph.

In terms of legal protection, the Basel Convention has a limitation; in order for an instrument to provide legal protection, it first must have a legal mandate over the matter brought before it. For some time, the Basel Convention could not handle cases related to dumping of toxic plastic waste because this type of waste did not fall under its mandate. People affected by the dumping of hazardous plastic waste could not enjoy legal protection under the Convention.

This limitation was acknowledged by the international community and the 14th Conference of the Parties (COP14) adopted a decision whereby plastic waste was moved from Annex IX to Annex II (other wastes) under the Convention.¹¹⁴ The main significant impact of this extension is that it will allow plastic waste to be managed in an environmentally sound manner and support less developed nations that import waste. The Basel Convention framework will now be used to implement a transparent and traceable system for the export and import of most plastic wastes under which exporting states must now obtain prior written consent from import-ing states. This development represents a positive change in the global management of plastic waste and places plastic waste within a globally recognized legal standard for the control of international movements of waste.¹¹⁵

Another limitation within regard to the provision of legal protection can be seen in the preamble where Parties to the Basel Convention issued a series of statements of purpose. None of the statements provides an indication that the protection of human rights (including the right of access to justice) is one of the objectives of the signatories to the Convention. This is so despite the fact that the last statement in the preamble aims at protecting human and environmental health.

Access to compensation (provided under Article 12 on Consultations and Liability and the right to recourse (provided under Article 18 has proven elusive to victims due to the non-inclusion of the other key elements i.e. legal awareness, legal aid and counsel and adjudication in the articles of the Convention.

The Basel Convention is not very clear on whether an individual or a group of in-dividuals can submit a dispute to a court of law. The lack of clarity originates from Article 20 (Settlement of disputes) of the Convention and Article 17 of the Protocol

114 ‘Amendments to Annexes II, VIII and IX to the Basel Convention’, Basel Dec. BC-14/12 (2019).

115 Latham & Watkins LLP, ’Basel Convention Extends to Include Transboundary Movements of Plas-tic Waste’ (23 May 2019), available at <https://www.globalelr.com/2019/05/basel-convention-ex-tends-to-include-transboundary-movements-of-plastic-waste/> (visited 2 September 2019).

The Case of Exposure to Hazardous Chemical Substances in Africa

for Liability and Compensation.¹¹⁶ They both refer only to disputes between Parties and provide no clarity on whether any other affected individual or group of indi-viduals has the right of submitting a dispute to the International Court of Justice or before a competent court. In my view, this lack of clarity forces an affected individ-ual or a group of individindivid-uals to rely on national authorities for accessing justice. In a situation where government authorities are party to the abuse or are shrouded with corruption and abuse of human rights, access to justice becomes a challenge.

Another limitation of the Basel Convention is the time limitation that is recognized under the Protocol for Liability and Compensation. Article 13 (Time limit and liability) contains a requirement under para. 1 that claims for compensation must be brought within 10 years from the date of an accident. While it is always good for the conduct of justice for claims to be lodged as soon as the incident has happened, in the case of toxic dumping this can pose some serious challenges. First of all, most cases of dumping happen secretly, and it may take more than the 10 years for people to discover it or even identify the perpetrator(s). In many developing countries, lo-cal legislation needs review in order to allow victims to access justice; the process of review may take several years. In principle, it does not make sense for a serious crime of dumping of toxic chemicals and waste to be exonerated from facing a judicial process simply because of a time limit. A crime remains a crime no matter the length of the period it has gone un-reported or un-litigated.

Access to justice is also limited in the framework of the Basel Convention in a very serious manner by its non-recognition of the role of CSOs in its implementation.

The only article that makes a reference to CSOs is Article 15(6) where NGOs are allowed to attend a COP. However, this right of participation is not fully guaran-teed since if one-third of the Parties show objection an NGO may be barred from attending a COP. For people to access justice, their representative organizations, i.e. CSOs, ought to have a role in the implementation of the Basel Convention.

Excluding CSOs in Articles 9 (illegal traffic), 12 (Consultations on liability), 13 (Transmission of information), 19 (Verification) and 20 (Settlement of disputes) has seriously limited the ability of CSOs to ensure that the people they represent have access to justice and that the perpetrators are held liable and that appropriate remedy is provided to the victims.

Dispute resolution is an area where access to justice can be made possible; however, as was the case with the Basel Convention, the Rotterdam Convention also restricts the settlement of disputes (Article 20) only to Parties. In the rules on arbitration (Annex VI), the role of CSOs in the arbitration process is not recognized. The no-tion presented here is that disputes will only arise between Parties; however, in the trade on chemicals and pesticides people and their environment may be negatively

116 Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Haz-ardous Wastes and their Disposal, Basel, 10 December 1999, <http://www.basel.int/Portals/4/Basel%20 Convention/docs/text/BaselConventionText-e.pdf> (visited 27 March 2019).

affected. This may be due to non-compliance with the prior informed consent (PIC) procedures or an unexpected event such as a spill-over during handling. In such a case, the Convention does not provide means of accessing justice through the International Court of Justice as provided under Article 20(b) or through the Arbitral Tribunal as provided under Annex VI of Article 2(1). In my view, this is a result of this MEA not embracing the rights-based approach during its negotiation and eventual design.

The Rotterdam Convention also resembles the Basel Convention on civil society representation in the COP context. In fact, the text under Article 15(6) in the Basel Convention was copied and pasted into Article 18(7) of the Rotterdam Convention.

The participation of CSOs is not fully guaranteed since if one-third of the Parties object this right will be withdrawn. In a way, this precondition may affect access to justice; for fear of being rejected by a COP, a CSO may negate its obligation of en-suring access to justice is given to victims by a Party or a corporate entity.

However, Article 10 of the Stockholm Convention introduced an important aspect with regard to access to justice. It assigned Parties the duty of ensuring that the public receive information and education to raise their level of awareness about gov-ernment actions towards implementation of the Convention and on the human and environmental impacts that can be caused by POPs.

In similarity with its predecessors, i.e. the Basel and Rotterdam Conventions, the Stockholm Convention also restricts submission of a dispute only to Parties. The Convention does not provide a procedure for settling disputes that may arise if an individual or a group of individuals or any other stakeholder is negatively affected when Parties and corporations operate under the rules and guidelines of the Con-vention. For instance, if an individual or a group of individuals want to appeal against a request by their government for an exemption¹¹⁷ on DDT or any other hazardous substance, because they think it will erode their right to good health and safe environment, the Convention fails to facilitate this objection.

The Stockholm Convention also failed to recognize the role that CSOs can play in research and monitoring. There is no specific recognition of CSOs in Article 11 (Research, development and monitoring). Research and monitoring can generate data that is relevant to the promotion of human rights including the right of access to justice. Access to justice requires independent and pro-people research and mon-itoring; by nature of their work CSOs are better positioned to provide this service than those recognized in Article 11 i.e.; governments, industry and academia. Since governments and the industry are potential offenders, the right of access to informa-tion as stipulated under Article 10 (Public Informainforma-tion, Awareness and Educainforma-tion) may be undermined and thus negate the good intentions of Article 10.

117 Under the Stockholm Convention, exemptions to specific use of certain listed substances can be secured under Article 4.

The Case of Exposure to Hazardous Chemical Substances in Africa