ENVIRONMENTAL JUSTICE

COMPARATIVE EXPERIENCES IN LEGAL EMPOWERMENT

June 2014
INTRODUCTION

Global dialogues around the Sustainable Development Goals (SDGs) in the context of the post-2015
development agenda and the UN Conference on Sustainable Development (Rio+20) highlight that in the twenty
first century our ability to sustain development will hinge on two converging threats to humanity - rising
inequality between and within nations, and the complex risks from environmental change as we continue to
surpass the Earth s planetary boundaries.1
Bearing in mind that the post-
In a world of stark and growing inequality, ecosystem services and
2015 development agenda will be
natural resources can be of great benefit to achieving goals of inclusion
a sustainable development
and poverty reduction. But too often the critical ecosystem services the
agenda, it is important to
planet provides us suffer from mismanagement and lack of effective
highlight the role of the rule of
governance. Meanwhile, as critical ecosystem functions and resource
law and access to justice in
security decline, it is the poor who bear little responsibility but who
suffer the most, with impacts on lives and livelihoods.2 Around the
natural resource management.
world the poor suffer disproportionately from more frequent and severe
For UNDP, inter-generational
storms, floods and droughts, health impacts of toxic pollution, and
equity is of great importance,
insecurity of access to productive resources such as arable land, and justice systems have a key
freshwater and sustainable energy. role to play in ensuring
environmental sustainability.
As the world seeks responses to converging risks from inequality and
environmental change, attention is placed on the role of improved Helen Clark, UNDP Administrator, Lecture
governance for sustainable development. The way in which ecosystems at University of Auckland Law School, the
Role of the Rule of Law and Access to Justice
and natural resources are currently governed often results in multiple in Development, 2014
deprivations, marginalization, and structural inequality. In many
contexts environmental degradation generates further poverty by the exhaustion of natural resources and
creates prejudice to the exercise of basic rights. 3 Poor and vulnerable communities suffer from various forms of
environmental injustice, often unable to fight back and reverse trends which keep them mired in a state of
exclusion. Without a paradigm shift in how natural resources and the environment are valued and governed,
inequality will deepen and post-2015 development goals will be threatened, if not reversed. Of particular
importance are ways legal and institutional innovations can empower the poor to challenge and reverse declining
levels of natural capital and ecosystem services.
The concept of environmental justice has arisen in this context: a mechanism of accountability for the protection
of rights and the prevention and punishment of wrongs related to the disproportionate impacts of growth on the
poor and vulnerable in society from rising pollution and degradation of ecosystem services, and from inequitable
access to and benefits from the use of natural assets and extractive resources. In 1992, the Rio Declaration in
Principle declared Environmental issues are best handled with the 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.
1
UN (2013) Breaking Down the Silos: Integrating Environmental Sustainability into the post-2015 Agenda, Report of the Thematic Consultation on
Environmental Sustainability in the post-2015 Development Agenda, New York.
2
See Rob Nixon (2011), Slow Violence and Environmentalism of the Poor, Harvard University Press, Cambridge.
3
IUCN (2007), Human Rights and the Environment: Overlapping Issues, IUCN, Gland, 1. Also see UNHRC (2011), Study on human rights and the
environment, Report of UN High Commissioner for Human Rights, 19th Session of Human Rights Council, UN Doc. A/HRC/19/34. Geneva
5
INTRODUCTION
Taking action to make this principle a reality is more important today than ever before. At its core,
environmental justice is about legal transformations aimed at curbing abuses of power that result in the poor and
vulnerable suffering disproportionate impacts of pollution and lacking equal opportunity to access and benefit
from natural resources. This applies both to vulnerable parts of society today, and how unsustainable use of
resources and ecosystem services can create risks for securing equity and justice for future generations.

Around the world citizens seek to engage the rule of law as a means to reverse the impacts of growth on social
and ecological well-being. Beyond mere revisions of strategies and regulations, empowering the poor requires
broad systemic changes to laws and institutions that help overcome exclusion of the poor from their right to a
healthy environment and support equal opportunity to access and benefit from natural resources. Improved
governance is seen as a force to regulate social, environmental and economic trade-offs in the process of
development, and supporting an enabling environment of institutions that engender triple win solutions for
goals of sustainability, inclusion and resilience.4

This comparative experiences paper outlines for national partners, sustainable development practitioners and
UN Country Teams key challenges and innovations arising around the world as communities pursue an agenda of
justice based on the inclusive and sustainable use of natural resources and the environment. It does so from the
perspective of legal empowerment of the poor, an approach that emphasizes rule of law, systems of justice and
inclusion in attacking the structural causes of poverty.5 For UNDP, legal empowerment is a fundamental
approach in responding to the call of the United Nations and civil society in the SDG in post-2015 and Rio+20
processes for rights-based development solutions. The UNDP Strategic Plan (2014-2017) commits the
organization to promoting legal reform to fight discrimination and address emerging issues, such as
environmental justice, and to assisting with the reform of legal and regulatory frameworks so that the poor,
indigenous populations and local communities can have secure access to natural resources (including land, water
and forests) as well as to ensure that benefits arising from the sustainable use of biodiversity and ecosystem
services can be shared in a fair and equitable way, consistent with international instruments and national
legislation.

What follows is an overview of experiences from regional and country cases showing how accountability-driven
movements and actions by national governments and judiciaries, civil society and other stakeholders are
catalyzing legal and policy responses for the goals of environmental justice. This builds on the background
papers and discussions held during an inter-regional UNDP Workshop on Legal Empowerment and the
Environment convened as a mini-forum of the 2012 Global South-South Expo, Energy and Climate Change:
Inclusive Partnerships for Sustainable Development in Vienna.

4
Triple win solutions in the sustainable development context covers economic, social and environmental pillars to be thought of as synergistic and
integrated stands that lend themselves to inter-weaving and linkages. For more information, see http://www.undp.org/content/dam/undp/library/Cross-
Practice%20generic%20theme/Triple-Wins-for-Sustainable-Development-web.pdf
5
See UN (2009) UN Secretary-General Report on Legal Empowerment and Poverty Eradication (A/64/133), New York. See also UN (2008) Making the Law
Work for Everyone, Commission on the Legal Empowerment of the Poor, New York.
6
 REGIONAL & COUNTRY PROFILE

ASIA & THE PACIFIC

The Asia-Pacific region hosts the world s largest
emerging economies, accompanied by a rapid growth
in industrial pollution and demand for natural
resources, both placing serious burdens on globally
critical ecosystems and creating risks to sustaining the
region s hard-won results in poverty reduction. As the
environmental justice movement grows, rights-based
approaches to use of natural resources and the
environment are making their way into legal reforms.
A series of legal and institutional measures have arisen
to increase access to remedy and justice in
environmental matters, enhance levels of
accountability within decision-making processes, and
empower local traditional communities through
recognition of historic claims and customary norms on
the use of natural resources and the environment.
India is the world s largest democracy and one of its
largest emerging economies. It also has the largest Women working at a brick factory in West Bengal, India.
Photo: Partha Pratim Saha. UNDP Picture This Photo Contest.
concentration of people living in extreme poverty and
in recent years has experienced a surge of environmental justice movements as the pressures of growth make
themselves felt on communities and ecosystems. )ndia s judiciary has evolved a special role in this process.
Historically, the entry point for environmental claims was through two legislative provisions: Article 21 of the
Constitution on the Right to Life; Article 48-A (4) of the Directive Principles of State Policy (1976), which notes
that the State shall endeavor to protect and improve the environment and to safeguard the forests and wildlife
of the country , and Article -A(g) of the Indian constitution on the fundamental duties of every citizen of India,
which states that it shall be the duty of every citizen of )ndia to protect and improve the natural environment
including forests, lakes, rivers and wildlife, and to have compassion for living creatures. 14
Over the years, the Supreme Court has spoken out for the impacts of industrialization on the ordinary citizen
through a series of cases attempting to strike a balance between growth, equity and sustainability. This followed
a series of incidents where the poor were disproportionately impacted by industry, including the Bhopal tragedy
of . By , alongside the launch of )ndia s neo-liberal reforms and its pathway to re-emergence as a global
economic power, the Supreme Court declared that issues of environment must and shall receive the highest
attention from this court. 15 In Subhash Kumar v State of Bihar, the Supreme Court observed that [t]he right to
live is a fundamental right under Article 21 of the Constitution, and it includes the right of enjoyment of
pollution-free water and air for full enjoyment of life. 16 This landmark interpretation by the Supreme Court set
the foundation for the expansion of rights-based approaches to challenging environmental impacts of growth.

14
R. Sharma, Green Courts in )ndia: Strengthening Environmental Governance? 008) 4(1) Law, Environment and Development Journal, 50.
15
Tarun Bharat Sangh, Alwar v Union of India, Supreme Court of India, Judgment of 11 October 1991, 1992 Supp (2) SCC 448.
16
Subhash Kumar v State of Bihar, AIR 1991 SC 420.
12
 REGIONAL & COUNTRY PROFILE
This was followed by a series of citizen and NGO lawsuits where the Courts upheld citizens rights to clean air17
and clean water.18 Courts in Bangladesh, Pakistan, and Nepal also came to recognize broad environmental rights
in similarly worded provisions.19 Beyond its successes in re-interpreting the substantive core of constitutional
rights to address environmental justice, India also has spearheaded procedural innovations including Public
Interest Litigation (PIL), allowing groups of citizens to file lawsuits claiming broad societal harms and inequities
from environmental change. India is home to thousands of NGOs that advocate environmental justice on behalf
of the poor and vulnerable, carrying forward the Gandhian ethic of civil disobedience and the enduring spirit of
the Chipko tree huggers .20
As )ndia s economy continues to emerge and as pressures on equity and ecosystems grow, calls have arisen in
recent years for further expansion and deepening of systems of access to remedy, leading in 2010 to passage of
the Green Tribunal Act, meant to catalyze the emergence of a nation-wide system of local tribunals over
environmental matters.21 The idea of a system of green tribunals first arose in 1996 in Indian Council for Enviro-
Legal Action v Union of India, where the court stated that a system of green tribunals with jurisdiction over civil
and criminal aspects of environmental claims could help achieve expediency of justice, establish panels of
experts to resolve highly technical cases, and help reduce large caseloads faced by the general courts.22 The
Green Tribunal Act now sets the foundation for the emergence in coming years of the world s largest network of
local environmental tribunals, expected to increase citizen access to environmental justice. 23
Another priority has been to recognize the plight facing )ndia s Adivasi tribal population. Of the over million
people living below the poverty line in India, 70 million are tribals, partially or wholly dependent on forests and
occupying % of )ndia s forested areas.24 Access to environmental justice is particularly important in relation to
access to and benefit sharing from natural resources, with most of )ndia s extractive resources located in the
tribal belt across central and northeastern )ndia, where tribal communities host highly-valued minerals but also
experience )ndia s lowest rankings on the (uman Development )ndex (D) . Recent years have seen a rise in
tribal protests against expansion of state-corporate mining interests into tribal areas.25
The 2006 Forest Dwellers (Recognition of Forest Rights) Act was passed to address the historical injustice
experienced by tribals and establishes a new process to recognize rights to forest land and resource use. 26 The
landmark Act acknowledges the social function of natural resources in tribal peoples lives, and encourages
community-based management through inclusion of tribal peoples in conservation measures. It also calls for
prior informed consent (PIC) before forest lands can be acquired by the State for extractive or other resource
development projects. Village councils (gram sabhas) are delegated the power to oversee the process of

17
M.C. Mehta v Union of India, Supreme Court of India, Judgment of 12 May 1998, (1998) 6 SCC 60 & Judgment of 18 November 1998, (1998) 9 SCC 589;
M.C.Mehta v Union of India, Supreme Court of India, Judgment of 16 April 1999, (1999) 6 SCC 9; Murli S. Deora v Union of India, Supreme Court of India,
Judgment of 2 November 2001, (2001) 8 SCC 765.
18
A.P. Pollution Control Board v Prof. M.V. Nayadu (Retd.) & Ors, Supreme Court of India, Judgment of 27 January 1999, (1999) 2 SCC 718; Mrs. Susetha v
State of T.N. & Ors., Supreme Court of India, Judgment of 8 August 2006, (2006) 6 SCC 543; Narmada Bachao Andolan v Union of India, Supreme Court of
India, Judgment of 18 October 2000, (2000) 10 SCC 664.
19
Tim Hayward (2005), Constitutional Environmental Rights, Oxford University Press, New York, 206.
20
Kishan Khoday and Usha Natarajan Fairness and International Environmental Law from Below: Social Movements and Legal Transformation in
India Leiden Journal of International Law, Volume 25 Edition 2, Nederlands.
21
Law Commission of India (2003), 186th Report on Proposal to Constitute Environment Courts, New Delhi. (September 2003)
22
Indian Council for Enviro-Legal Action v. Union of India (1996) 3 SCC 212, 252.
23
Lin T, Wang C, Chen Y, Camacho T, Lin, F (2009), Green benches: Learning from environment courts of other countries? Asian Development Bank (ABD),
Manila, p. 9-10
24
S. Patnaik, Can Tribals Continue to Depend on Forests?, International Conference on Poverty Reduction and Forests, Bangkok, September .
25
Center for Science and Environment (2011) Sharing the Wealth of Minerals, New Delhi, 3.
26
Ministry of Tribal Affairs (2006), Scheduled Tribes and Forest Dwellers (Recognition of Forest Rights) Act, New Delhi.
13
 REGIONAL & COUNTRY PROFILE
recognizing tribal rights claims, and to ensure goals of forest conservation.27 While still far from reaching its
stated goals, the Act has triggered a number of new cases in recent years led by tribal communities. One
example has been the Vedanta case, involving a planned bauxite mine by the private sector in the Niyamgiri Hills
in Odisha State, considered a biodiversity hotspot and sacred grounds for the Dongria Kondh tribal group. The
project was cancelled owing to strong protests and a finding of lack of compliance with social and environmental
requirements.
China is the world s fastest growing major economy and has been witness to surging demand for natural
resources and rising impacts from pollution on ecosystem services and social welfare. A spirit of accountability
has emerged in society with individuals and communities increasingly demanding access to justice and human
rights in environmental matters. As the environmental impacts of rapid growth continue to take their toll on
social health and welfare, a key challenge for China has been to craft new policies and systems to prevent and
manage new conflicts between local government, the private sector and communities.
)n China s State Council issued China s first National (uman Rights Action Plan. Of significance, Section 1
on Environmental Rights states that the goal of the Action Plan is to uphold the principle of harmonious
development between man and nature and the rational exploitation and utilization of natural resources. China
will take an active part in international cooperation in an effort to create an environment favorable for human
existence and sustainable development and build a resource-conserving and environment-friendly society to
guarantee the public's environmental rights and to strengthen the rule of law in the sphere of environmental
protection to safeguard the public's environmental rights and interests. 28 A related development has been the
rise of over 47 environmental courts and tribunals at the local level across the country, largely in China s industrial
eastern provinces. Examples of normative expression through regulation include the 2006 Measures for Public
Participation in Environmental Impact Assessments, a 2006 Regulation on Public Participation in Environmental
Appraisals and 2007 Measures on Open Environmental Information. Taken together these measures show some
level of progress in expanding public access to information and participation in environmental decisions.
A key trend in recent years has been the growth of internet based social media and discourse through websites
and blogs, as well as the rise of local community organizations demanding a stronger voice in decision-making.
China has seen the rise of thousands of environmental NGOs, and a surge of environment related protests. 2011
for example saw one of China s largest protests in recent times of any kind, the Dalian PX mass protest over toxic
pollution in northeast China. This was one among hundreds of protests over the environmental impacts of
growth led by communities across the country in recent years. Recent years have seen the rise of the All China
Environment Federation (AFED), a government-affiliated social organization.29 This serves as an umbrella for
local NGOs across the nation and has developed since its inception a specialized focus on environmental justice
in response to community claims around industrial centers where toxic impacts have been a major call to action.
In 2009 AFED achieved an important step forward in the quest for environmental justice when it successfully filed
China s first-ever PIL cases in the Wuxi Environmental Court and the Qingzhen Environmental Court.30 In the
Wuxi Environmental Court, AFED was successful in settling its pollution case against the Jiangyin Port Container
Company, while in Qing Zhen Environmental Court, AFED was successful in its claim based upon fifteen years of
administrative inaction by the local Bureau of Land and Resources. The process of establishing environmental
27
Khoday and Natarajan supra.
28
State Council of China (2009) National Human Rights Action Plan, Beijing.
29
Yuming Wang (2012), Legal Empowerment through the All China Environmental Federation Environmental Rights Safeguarding Initiative, Presentation to
the UNDP Workshop on Legal Empowerment and the Environment, November 2012, Hofburg Palace, Vienna.
30
Ibid.
14
 REGIONAL & COUNTRY PROFILE

courts and tribunals in China has also been an experiment in jurisdiction with courts in cities like Guiyang, Qing
Zhen, Wuxi and Yunnan taking an integrated approach by including jurisdications over civil, criminal and
administrative matters.
Concerns have also arisen over impacts of resource development initiatives on the poor and minority
communities in China s west, now a core element of environmental justice challenges in China. Western China
covers nine provinces and autonomous regions, and dozens of municipalities, covering 60% of Chinese territory,
with a population over 370 million (25% of the national total). The region is increasingly vital to sustaining
national growth, hosting % of China s total water supplies, % of China s mineral reserves, and the majority
of China s coal and natural gas reserves.31 In Western China, environmental justice invokes two foundational
principles of the State noted in the 1982 Constitution; equal protection under the law, and the duty of the State
to ensure rational use of natural resources for the public good. Of particular importance are China s Western
Development Strategy and its Go West policy aimed at connecting less-developed minority regions to the
benefits of rapid industrialization in the East. This includes the risk of western migration of heavily polluting
industry as greater regulation and adaptation to environmental justice concerns arise in the east of the country,
alongside a new surge of investments into the West, particularly in Autonomous Regions such as Tibet and
Xinjiang where vast reserves of extractive resources attract global and local investors.
Xinjiang is host to a large share of China s coal reserves along with a significant share of its oil and gas reserves,
which are critical to China s continued economic rise, while Tibet hosts the source waters of the Yangtze and
Yellow Rivers and holds vast copper and minerals reserves. In recent years Tibet has experienced tense situations
among protesting communities and monks against local corporate actors and officials related to mining
developments, sometimes alongside sacred sites. Some such protests such as in Nagchu Prefecture have led to
delays or stoppage of planned mining developments. A series of grievances are also increasingly being expressed
in Xinjiang province, where local minority communities claim unequal benefits from use of natural resources and
unequal protection against pollution from heavy industry. As a result of rapid growth of investments and
industry, and fears of a race to the bottom as ventures head West to less regulated areas, Tibet and Xinjiang
have experienced levels of increasing citizen demands for access to and benefit sharing from resources as well as
legal measures to prevent toxic impacts on the poor and vulnerable.
In the Philippines, environmental justice is a guaranteed state policy affiliated to Section 16, Article II of the 1987
Constitution which states that the State shall protect and advance the right of the people to a balanced and
healthy ecology in accordance with the rhythm and harmony of nature. 32 In applying this provision, the seminal
landmark case was Oposa v. Factoran decided in 1993, in which the petitioners were a group of minors,
represented by their parents.33 The petitioners filed a class suit for themselves, for others of their generation, and
for the succeeding generations. They wanted to stop deforestation by asserting that specific permits granted by
the Government to license holders to cut trees in the country s forests violated the right of citizens to a balanced
and healthy environment. The petitioners asked that the Government be ordered to cancel all existing licenses in
the country and desist from granting and renewing new ones.
The Supreme Court in Oposa ruled that minors could file a class action lawsuit, for themselves, others of their
generation and for future generations. This was the first time globally that future generations were recognized as

31
State Council of China (2000) Development Strategy for Western China, Beijing
32
Dennis Baldago (2012), Promoting the Right to a Balanced and Healthful Ecology: Environmental Justice in the Philippines, Background Paper to the
UNDP Workshop on Legal Empowerment and the Environment, November 2012, Hofburg Palace, Vienna, 4.
33
Ristroph, 205-08 cited in Long, 25. See G.R. No. 101083, July 30, 1993, 224 SCRA 792, 802-803.
15
 REGIONAL & COUNTRY PROFILE
having standing to bring claims, and the first time that environmental rights of future generations had been
considered and upheld by a country s apex court, and to this day serves as a milestone in the process of granting
access to justice in environmental matters and upholding environmental rights. The Philippine Supreme Court
has explicitly invoked the interests of future generations in other cases as well, most notably Metro. Manila Dev.
Auth. v. Concerned Residents of Manila Bay, in which the court described an obligation to future generations of
Filipinos to keep the waters of Manila Bay clean and clear as humanly possible. 34
In addition to a number of other legal cases and policy responses in the years that followed, a notable landmark
was the establishment of new Environmental Courts. Through the lead role of the Supreme Court, a decision was
enacted in designating trial courts as green courts with intended special competency and jurisdiction
to oversee cases concerning the environment.35 This was followed in 2009 with a national forum on
Environmental Justice and Upholding the Right to Balanced and Healthy Environment, convened by the court
and partners to explore further means of empowering the poor through systems of environmental justice. The
2009 Environmental Justice forum was organized to validate new draft Rules of Procedure for Environmental
Cases seen as a legal innovation to further support the goal of environmental justice. In 2010, the Court approved
new Rules of Procedure for Environmental Cases, regarded as the first of its kind in the world and a significant
reform in support of access to justice in environmental matters by the poor. The Rules also adopted the Oposa
approach with a broad interpretation of the doctrine of legal standing towards future generations.
A citizen s suit provision in the Rules was enacted to empower communities to ask for suspension or stoppage of
destructive activities that threaten communities rights to a healthy environment. This was coupled with a new
procedure, the Writ of Kalikasan (nature) enacted to empower the Supreme Court and/or the Court of Appeals to
issue temporary or permanent orders to protect the environmental rights of communities, where a threatened
damage is of such magnitude that it prejudices the environment of two or more cities or provinces. 36 To ensure
the effective implementation of the new rules, the Supreme Court also launched a capacity building initiative
covering all duty-bearers and claim-holders in the realm of environmental justice, including judges, clerks of
courts, prosecutors, law enforcement, NGOs, civil society and community representatives.
Among other things the rules specifically aim to advance the constitutional rights of citizens to a healthy and
balanced environment and to provide a simplified, speedy, and inexpensive procedure for increased access to
environmental justice. To complement institutional responses and build knowledge and capacity, a sourcebook
on environmental justice entitled Access to Environmental Justice: A Sourcebook on Environmental Rights and
Legal Remedies was issued in 2011 alongside a Citizens Handbook on Environmental Justice. 37 A process was
also commenced to develop a roadmap for further strengthening the implementation of environmental justice in
the country. This included a review of environmental justice experiences in the criminal justice system and the
state of implementation of the Rules of Procedure on Environmental Cases and the status of the cases submitted
to designated green courts nationwide. 38
The Asia-Pacific region stands as a dynamic context for the evolution of environmental justice challenges and
responses. Re-emerging at the center of global growth, the region has seen the dramatic rise of civil society
movements as issues of equity and sustainability arise, institutional and legal innovations in response to the call
for greater access to participation and remedy, and attempts to strengthen the nexus between traditional norms
34
Baldago, 8. See Metro Manila Development Authority v. Concerned Residents of Manila Bay, G.R. Nos. 171947 48, Dec. 18, 2008, 574 SCRA 661.
35
Ristroph, 181-195 cited in Long, 25.
36
Baldago, 10. See also Ristroph, 199-200 cited in Long, 26.
37
Baldago, 10.
38
Ibid.
16
 REGIONAL & COUNTRY PROFILE
of resource use and formal systems for environmental governance. These challenges and innovations are
important to learn from and scale-up in the region itself. Meanwhile as the region rises in importance in the
global economy, these new experiences and lessons will be of great value to both government and civil society
actors around the world.

SUB-SAHARAN AFRICA
In Sub-Saharan Africa, the natural resource sector is arguably
the largest driver of environmental justice claims and actions,
with a surge of extractive sector activity leading to a dramatic
transformation of landscapes, pressures on arable land,
destruction of ecosystems critical to rural livelihoods, and
creation of highly toxic forms of air and water pollution which
create lasting challenges to human health and ecosystem
services. Africa hosts about % of the planet s mineral
reserves, including 40% of its gold, 60% of its cobalt and 90%
of platinum group minerals.39 Relatively unconstrained
executive power, strong incentives for private investment and
powerful interests by external entities in extracting African
resources have converged to create rapidly growing
challenges of environmental sustainability and social equity.
Environmental provisions began appearing in constitutions of
African nations in the early 1990s, and have spread across the
region since then. Today approximately 32 African nations
have constitutional provisions related to the environment, Children collecting water in Pokot region northwestern Kenya.
albeit suffering often from lack of effective institutional Photo: Kai-Otto Melau. UNDP Picture This Photo Contest.
capacities to ensure implementation.40 In support of local action are also a number of regional policies promoting
environmental rights and justice. The African Charter on (uman and Peoples Rights for example was the world s
first regional human rights treaty to explicitly recognize a right to live in a healthy environment, with Article 24
calling Member States to ensure that, all peoples shall have the right to a general satisfactory environment
favorable to their development. While the African Court on Human and Peoples Rights has yet to rule in any
cases involving this right, influence has been seen in various national court decisions.
Furthermore, in 2011 a set of regional guidelines were also issued by the African Commission on Economic,
Social and Cultural Rights requiring that States ensure strict controls of the use and pollution of water resources
for industrial purposes, and especially of extractive industries in rural areas." And in 2012, in advance of the
Rio+20 Conference on Sustainable Development, the African Commission on (uman and Peoples Rights issued
Resolution 224 on a Human Rights-Based Approach to Natural Resources Governance stating that "the State has
the main responsibility for ensuring natural resources stewardship with, and for the interest of, the population."
This is also reflected in a Mineral Resources Development Policy also passed by the Economic and Social
Commission for West Africa the same year to promote prior, free and informed consent (PIC) and protection of
customary resource rights, community access to information and participation, and access to systems of justice

39
African Union and UNECA (2011). Minerals and Africas Development Report. Addis Ababa.
40
Boyd, 149 cited in Long, 16.
17
 CONCLUSIONS AND THE WAY FORWARD

The Rio+20 outcome document entitled The Future We Want underscored the importance of an institutional
framework for sustainable development which responds coherently and effectively to current and future
challenges and efficiently bridges the gap in the implementation of the sustainable development agenda and
recognizes that effective governance at local, sub-national, national and global levels representing the voices
and interests of all is critical for advancing sustainable development. )t further emphasizes that broad public
participation and access to information and judicial and administrative proceedings are essential and that
[s]ustainable development requires the meaningful involvement and active participation of regional, national
and subnational legislatures and judiciaries, and all major groups: women, children and youth, indigenous
peoples, non-governmental organizations, local authorities, workers and trade unions, business and industry, the
scientific and technological community, and farmers, as well as other stakeholders, including local communities,
volunteer groups and foundations, migrants and families as well as older persons and persons with disabilities. 74
While the s ie e of resour e i se urity a d e iro e tal ha ge has ell ela orated the hy a d hat of
many sustainable development challenges for the poor, there has been less analysis of governance challenges
ith regards the ho - including legal and judicial institutions and regulatory frameworks that address the
environmental plight of the poor. In addressing implementation gaps, discussions around Rio+20 and the SDGs in
the post-2015 process place particular emphasis on the role of governance, the rule of law and integrated policy
responses.
There are many calls to strengthen the focus of development policy and practice on the role of rights and justice
in achieving and sustaining development results. In recent years the world has seen the rise of civil society as a
transformative global force, now a critical agent of change on the path to a more inclusive and sustainable
future. Around the world a major barrier to achieving sustainable development goals is that existing governance
systems and mechanisms are not sufficient to address the complex multi-disciplinary challenges of sustainable
development across economic, social and environmental domains. Without a paradigm shift in how natural
resources and the environment are valued and governed, inequality will deepen and the achievement of post-
2015 development framework will be threatened, if not the progress to date reversed.
Environmental justice has arisen as a core element in this agenda for change. Governments and civil society
movements around the world are now crafting new development policies, laws and institutions that can help
mitigate or prevent the disproportionate impacts from growth on the poor while catalyzing the positive benefits
that can arise from sustainable resource use. Environmental justice is being used by communities and
Governments as a means of addressing the distributional impacts of toxicity on the poor and vulnerable, as well
as social dimensions of the challenge that have led to divergent development results between rich and poor,
between and within countries.
It is important to better understand the contextual, political-economy factors that Governments and
communities face in responding to the call for more sustainable and equitable development. There is increasing
recognition by countries across the South that enhanced legal institutions and processes play a key role in
managing trade-offs and catalyzing triple-wins across economic, social and environmental priorities. Another
key lesson is that the success of such measures hinges on the ability to adapt governance responses to a diversity
of social, normative and ecological contexts. Understanding the evolving synthesis between global and local
norms and systems will be critical to understanding the future of environmental justice principles.

74
http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/66/288&Lang=E. Paragraphs43 and 44. Last accessed on June 03, 2014.
29
 CONCLUSIONS AND THE WAY FORWARD

Key conclusions, and potential areas for further policy and capacity development programming, are encapsulated in the
below table.

Environmental justice as a As countries chart new pathways to sustainable development, a priority has emerged for
rights-based and gendered development of rights-based frameworks to achieve goals of environmental
sustainability and equity for the poor in the use of natural resources and the environment.
framework for
Environmental justice has arisen as an important framework for achieving this goal, with
development women s community groups, environmental justice leaders and civil society movements
catalyzing adaptations to legal systems and institutions. Opportunities are arising to
further empower women, national leaders and civil society as a transformative force for
sustainable development goals. This includes a need for capacity development, and
building global networks of dialogue, expertise and knowledge sharing.

Innovations to national The world s constitutions now engage the right to healthy environment or broader
legal and justice systems principles on the need for equitable use of natural resources and the environment,
including the rights of future generations. The right to development is increasingly seen
are emerging around the
in need of balance within planetary boundaries. Relatedly, the emergence of specialized
world courts and tribunals, increased use of class action law suits and public interest litigation
are expanding access to justice for the poor in environmental matters. Still at an
embryonic stage, further analysis is needed on the challenges and successes that will
emerge in these systems, with capacity development assistance needed to support
effective implementation of rights-based systems, new constitutional regimes and legal
and judicial reform efforts aimed at increasing access to environmental justice for the
poor and sustainable governance of the environment.

Incorporate legal and social To empower the poor and engage the voice of socially excluded segments of society in
accountability mechanisms decision-making over use of natural resources and the environment, legal regimes need
to incorporate social accountability mechanisms. In particular, enhanced check and
in government systems to
balance mechanisms between government, the private sector and civil society, are
empower the voice of the needed to rebalance often asymmetrical power relations. These should include
poor expanding systems for access to information and participation in decision making
process, and enhancing legislative oversight mechanisms. A particularly important focus
is for scaling up and capacity development in the area of community and civil society
organization and watchdog functions, as well as financial support for community
paralegal services that help protect the poor from toxic impacts and enhance access to
and benefit sharing from natural resource use.

Enhance institutional and Overcoming barriers to environmental justice goals also hinge on our ability to
contextual analysis with an understand the various contextual political-economy factors that drive conditions of
social exclusion, resource insecurity and environmental change. For poor and vulnerable
environmental justice
communities, the benefit of a legal empowerment approach goes well beyond reform of
perspective individual laws and regulations, aspiring rather to change development thinking and
policy, and shift from a political-economy of exclusion and ecological decline to a system
conducive to their full participation in decision-making over natural resources and the
environment. Institutional and contextual analysis can map the political-economy
barriers to and opportunities for change.

30
 CONCLUSIONS AND THE WAY FORWARD

Special attention is needed A special focus is required on indigenous and tribal communities, as they remain the most
towards indigenous and excluded communities globally while often hosting critical natural assets involved in
resource-based growth. While pushing their agenda for change and turning to rule of law
tribal communities, and
and rights-based approaches for greater participation in decision-making, indigenous and
community norms and tribal peoples also confront the fact that in many ways systems of law have been
justice systems complicit in the very problems they seek to redress. Expanded use of indigenous
autonomy regimes recognises that indigenous communities are agents of change with
value in finding hybridity among formal and informal systems of law and justice. Working
towards synergies among global, national and local norms and the diversity of indigenous
and tribal systems and worldviews on nature and justice will be critical for environmental
justice.

Integration of rights-based With the rapidly growing role of the private sector in resource governance, a need exists
environmental justice to integrate rights-based environmental justice approaches and principles into
investment decision-making processes and industrial ventures to mitigate social and
approaches in the work of
environmental risks to communities. This includes addressing issues of equity and
the private sector sustainability within resource development contracts between governments and the
private sector, corporate transparency and access to information by the public, and
effective means of compensation for damage to ecosystem services.

Build on knowledge sharing

An opportunity exists for new South-South knowledge sharing platforms to engage
and south-south emerging innovations on ways to develop integrated legal and institutional responses
cooperation platforms to for environmental justice. This can build on positive and negative experiences and
advance environmental lessons from developing countries, and support scaling-up of environmental justice
justice solutions.

A transformational shift to sustainable development will not generate economic, social and environmental
triple wins unless it is underpinned by the necessary constituency in civil society, effective governance
institutions and the political will to bring about change. Putting in place institutions that address environmental
justice concerns of the poor is no easy feat, but countries can build on and scale-up good practices and lessons
learned that are beginning to emerge. This comparative analysis supports this process, exploring challenges and
innovations around the world in moving to more environmentally-just forms of development. An opportunity
exists for sharing such innovations among countries, as environmental justice leaders from across the South
become agents of change both locally and globally. This transnational constituency for change can be the
source of new principles and approaches to environmental justice. The future we want is not just greener; it is
also more equitable, fair and just.

31
 FURTHER READINGS

Vassos Argyou (2005), Logic of Environmentalism: Ecology and Post-Coloniality, Berghahn Books, Oxford.
David R. Boyd (2012), The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights, and
the Environment, University of British Columbia Press.
Tim Bullard (2005), The Quest for Environmental Justice: Politics of Pollution, Sierra Club, San Francisco.
Paul Collier (2010). The Plundered Planet: Why We Must and How We Can Manage Nature for Global Prosperity.
Oxford University Press.
Tim Hayward (2005), Constitutional Environmental Rights, Oxford University Press, New York.
Kishan Khoday and Leisa Perch (2012), Social Accountability in Natural Resource Management, Discussion Note
91, International Policy Center for Inclusive Growth (IPC-IG), Brasilia.
Svitlana Kravchenko and John E.Bonine (2008), Human Rights and the Environment Cases, Law and Policy,
Carolina Academic Press.
James R. May & Erin Daly (2011), Constitutional Environmental Rights Worldwide, in Principles Of Constitutional
Environmental Law, James R. May,ed., Eli Press.
McHarg A., B. Barton, A. Bradbrook and L. Godden (2010), Property and the Law in Energy and
Natural Resources. Oxford University Press, Oxford.
Timothy Mitchell (2011), Carbon Democracy: Political Power in the Age of Oil, Verso.
George Pring and Catherine Pring (2009), Greening Justice: Creating Environmental Courts, WRI, Washington.
Balakrishnan Rajagopal (2003), International Law from Below: Development, Social Movements and Third World
Social Resistance, Cambridge University Press.
Rob Nixon (2011), Slow Violence and Environmentalism of the Poor, Harvard University Press.
UN (2013) Breaking Down the Silos: Integrating Environmental Sustainability into the post-2015 Agenda, Report of
the Thematic Consultation on Environmental Sustainability in the post-2015 Development Agenda, New York.
UN (2009). State of the Worlds Indigenous Peoples. UNDESA, New York.
UNDG (2009) Mainstreaming Environmental Sustainability into Country Analysis and the UNDAF, New York.
UNHRC (2011), Study on human rights and the environment, Report of UN High Commissioner for Human Rights,
19th Session of Human Rights Council, UN Doc. A/HRC/19/34. Geneva.
Articles
Carl Bruch, Wole Coker, and Chris VanArsdale, Constitutional Environmental Law: Giving Force to Fundamental
Principles, 26 Columbia Journal of Environmental Law 132 (2001).
Rose Francis, Water Justice in South Africa: Natural Resources Policy at the Intersection of Human Rights,
Economics, and Political Power, 19 Georgetown International Environmental Law Review 149 (2005).
Dante B. Gatmaytan, The Illusion of Intergenerational Equity: Oposa v. Factoran as Pyrrhic Victory, 15 Georgetown
International Environmental Law Review 457 (2003).

32
 FURTHER READINGS

Joshua Chad Gellers, Greening Constitutions with Environmental Rights: Testing the Isomorphism Thesis, 29 Review
of Policy Research 522 (2012).
Barry E. Hill, Steve Wolfson, & Nicholas Targ, Human Rights and the Environment: A Synopsis and Some
Predictions, 16 Georgetown International Environmental Law Review 359 (2004).
Patricia Kameri-Mbote and Collins Odote, Courts as Champions of Sustainable Development: Lessons from East
Africa, 10 Sustainable Development Law & Policy 31 (2010).
Kishan Khoday and Usha Natarajan Fairness and International Environmental Law from Below: Social Movements
and Legal Transformation in India Leiden Journal of International Law, Volume 25 Edition 2, (2012)
Louis J. Kotze and Anel du Plessis, Some Brief Observations on Fifteen Years of Environmental Rights Jurisprudence
in South Africa, 3 Journal of Court Innovation 157 (2011).
James R. May, Constituting Fundamental Environmental Rights Worldwide, 23 Pace Environmental Law Review
113 (2006).
James R.May & Erin Daly, Vindicating Fundamental Environmental Rights Worldwide, 11 Oregon Review Of
International Law 365 (2009).
George Pring and Cathrine Pring, Specialized Environmental Courts and Tribunals at the Confluence of Human
Rights and the Environment, 11 Oregon Review of International Law 301 (2009).
Elizabeth Barrett Ristroph, The Role of Philippine Court in Establishing the Environmental Rule of Law, 42
Environmental Law Reporter: News & Analysis 10866 (2012).
Rhuks Temitope, The Judicial Recognition and Enforcement of the Right to Environment: Differing Perspectives
from Nigeria and India, 3 NUJS 423 (2010).
Erika de Wet and Anel du Plessis, The Meaning of Certain Substantive Obligations Distilled from International
Human Rights Instruments for Constitutional Environmental Rights in South Africa, 10 African Human Rights
Journal 345 (2010).
Mary Elizabeth Whittemore, The Problem of Enforcing Nature's Rights Under Ecuador's Constitution: Why the 2008
Environmental Amendments Have No Bite, 20 Pacific Rim & Policy Journal 659 (2011).
Online Resources
Susan Casey-Lefkowitz, William J. Futrell, Jay Austin, and Susan Bass, The Evolving Role of Citizens in
Environmental Enforcement (Environmental Law Institute, undated), available at:
http://www.inece.org/4thvol1/futrell.pdf at pg. 4
Emma Algotsson and Tumai Murombo, Water Supply and Sanitation in South Africa Environmental Rights and
Municipal Accountability, LHR Publication Series (1/2009), available at:
http://www.lhr.org.za/sites/lhr.org.za/files/DBSA_Water_Report.pdf
Adriana Fabra and Eva Arnal, Review of Jurisprudence on Human Rights and the Environment in Latin America,
http://www2.ohchr.org/english/issues/environment/environ/bp6.htm
George Pring and Catherine Pring, Greening Justice: Creating and Improving Environmental Courts and Tribunals,
(2009), available at http://www.accessinitiative.org/resource/greening-justice.

33

Powered by TCPDF (www.tcpdf.org)