Abstract
The globalization of the world economy has as one of its side-effects the rapid proliferation of pollution around the globe. Developing countries are especially vulnerable to polluting activities that, predominantly because of market incentives, are still transferred from the north to the south.
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Notes
- 1.
Pellow, David Naguib. (2007). Resisting Global Toxics: Transnational Movements for Environmental Justice, The MIT Press.
- 2.
Jim Puckett, the executive director of the Basel Action Network, quoted in Pellow, D. N. supra n. 1, p. 80.
- 3.
Since many international organizations, as well as NGOs are closely following the case, much information is available through the internet. We also interviewed a few persons involved in the case.
- 4.
4The description of the facts is based upon a wide variety of sources, mostly reports by investigating commissions that were instituted after the incident, including the report by the Commission Internationale d’enquête sur les déchets toxiques dans le District d’Abidjan (CIEDT/DA). Feb. 2007, available at the Dechetcom website at <http://www.dechetcom.com/comptes/jcamille/rapport_abidjan_probo_koala.doc> (last visited 17 July 2009); the report by the UN mission in Ivory Coast (ONUCI): Situation des droits de l’homme en Côte d’Ivoire, Rapport No. 7, Sept. 2007, available at the ONUCI website at http://www.onuci.org/spip.php?rubrique/ 55 (last visited 17 July 2009); the Report of the Conference of the Parties to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their disposal on its eight meeting, Distr. Gen. 5 January 2007, UNEP/CHW.8/16, pp. 6–9; the report by the Secretariat of the Basel Convention: Report on actions taken by the Secretariat in response to the incident of dumping of toxic wastes in Abidjan, Côte d’Ivoire, Distr. Gen. 13 Nov. 2007, UNEP/CHW.8/INF/7; the report by the Dutch Hulshof Commission: Rapport van bevindingen naar aanleiding van het onderzoek naar de gang van zaken rond aankomst, verblijf en vertrek van de Probo Koala in juli 2006 te Amsterdam, Nov. 2006 (this report is available though the city of Amsterdam’s website at: http://amsterdam.nl/aspx/download.aspx?file=/contents/pages/21670/rapportcommissiehulshof.pdf/ (last visited 17 July 2009)); the report by the law firm De Brauw Blackstone Westbroek, which was reprinted in the Dutch Parliamentary Documents on 9 Feb. 2007, Parl. Docs. 2006–2007, 22 343, No. 161. Although these sources sometimes are somewhat contradictory on some of the facts, the below description is thought to be as accurate as possible.
- 5.
Reports on the number of causalities differ, probably because some of the injured died later. Some reports state that on September 26, the number of death had risen to ten. Sometimes higher figures are mentioned (11, 16, 17). Later reports question such severe health effects of the pollution. See below.
- 6.
Resolution of 26 October 2006, OJ C 313 E/432. The UN mission in Ivory Coast (ONUCI) even reports that between 100.000 and 150.000 people have been treated in hospitals in Abidjan following the dumping of the waste, see ONUCI, Situation des droits de l’homme en Côte d’Ivoire, Rapport No. 7, Sept. 2007, p. 24. This report is available from the ONUCI website at http://www.onuci.org.
- 7.
Resolution of 26 October 2006, OJ C 313 E/432.
- 8.
Answer of commissioner Dimas to questions E-4345/06, E-4365/06 by the European Parliament, 11 Dec. 2006.
- 9.
Outside of the UNDAC, there is also significant current pressure on First World nations to retrieve their toxics from the Third World. Such pressure has prompted action from the United States, Japan, and several countries in Europe. See Pellow, supra n. 1, p. 123.
- 10.
Supra n. 4.
- 11.
Wouters, J & Ryngaert, C. (2009). ‘Litigation for Overseas Corporate Human Rights Abuses in the European Union: The challenge of jurisdiction’, Institute for International Law Working Paper No. 124, Leuven, p. 11, available at: http://www.law.kuleuven.ac.be/iir/nl/onderzoek/wp/WP 124e.pdf (last visited 17 July 2009).
- 12.
See pres statement by Trafigura, available at the BBC’s website at: http://news.bbc.co.uk/2/hi/programmes/newsnight/8049024.stm (last visited 17 July 2009).
- 13.
Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, 1989. For the text of the Convention, see the Convention’s website at http://www.basel.int
- 14.
International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978, in short: Marpol 73/78. The many Annexes to this convention are regularly amended. For the latest version, see the website of the International Maritime Organization, http://www.imo.org.
- 15.
Rotterdam Convention on the Prior Informed Consent Procedure for certain Hazardous Chemicals and Pesticides in International Trade, 1998. For the latest version of the Convention and its Annexes, see the Convention’s website at: http://www.pic.int.
- 16.
See for instance Articles 6 and 16.
- 17.
Regulation 1013/2006/EC, OJ L 190, replacing similar provisions that are in place since 1993 (Regulation 259/93).
- 18.
Since 2007, negotiations on accession to the OECD with such countries as China, India, Indonesia, Chile, and South Africa are being held.
- 19.
Article 9 of Directive 2006/12/EC, OJ L 114 on waste, replacing similar provisions that are in place since 1975 (Directive 75/442/EEC).
- 20.
Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and Their Disposal, 1999. For the text of the protocol, see the Basel Convention’s website at http://www.basel.int/pub/protocol.html (last visited 17 July 2009).
- 21.
See the status of ratifications at the Basel Convention website at: http://www.basel.int/ratif/protocol.htm (last visited 17 July 2009).
- 22.
Article.4 of the Liability Protocol.
- 23.
Article 5 of the Liability Protocol.
- 24.
Article 2(c) of the Liability Protocol.
- 25.
Article 25 of Regulation 1013/2006/EC.
- 26.
Directive 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental damage, OJ L 143. See Annex III No. 12.
- 27.
Article 6 and Article 7 of the Directive.
- 28.
Regulation 8(9) of Annex II.
- 29.
Directive 2000/59/EC, OJ L 322.
- 30.
Article 7 and Article 10 respectively.
- 31.
Article 7.
- 32.
Article 10.
- 33.
Directive 95/21/EC, OJ L 157, as amended by Directive 2001/106/EC.
- 34.
Paris MoU of January 1982, amended regularly since. For the latest version, see the Paris MoU website at: http://www.parismou.org.
- 35.
Article 1(3)(b) of Regulation (EC) 1013/2006. According to Article 1(3)(a). waste that is generated by the normal operation of ships does not fall under the scope of the Regulation at all. The level of toxicity of these slops indicates that these slops should be regarded under letter b, rather than under a of Article 1(3). This was also concluded by the Commission Hulshof, that investigated the role of the Dutch authorities on behalf of the Amsterdam municipal authorities, ‘Rapport van Bevindingen’, Amsterdam, 2006, p. 12 (supra n. 4).
- 36.
Parliamentary Docs. (Netherlands). 2006–2007, 22 343, No. 161, pp. 19–20.
- 37.
Parliamentary Docs. (Netherlands). 2006–2007, 22 343, No. 161, p. 30.
- 38.
For instance the report by the law firm De Brauw Blackstone Westbroek, reprinted in: Parliamentary Docs. (Netherlands). 2006–2007, 22 343, No. 161, at pp. 25–26. Regulation 2(3) of Annex I to Marpol 73/78 refers to the possibility that oil tanks also hold noxious substances.
- 39.
Commission Hulshof (supra n. 4). pp. 20–22.
- 40.
For an overview, see the two most important Dutch investigations into the case by the Commission Hulshof (supra n. 33). and by De Brauw Blackstone Westbroek (supra n. 38).
- 41.
The parties to the Basel Convention respond to this in COP8 by deciding to start a cooperation between the Basel Convention and the International Maritime Organization, Report of the Conference of the Parties to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their disposal on its eight meeting, Distr. Gen. 5 January 2007, UNEP/CHW.8/16, p. 9.
- 42.
IMPEL is an informal network of the environmental authorities in the EU member states. For more information, see the network’s website at: http://ec.europa.eu/environment/impel/.
- 43.
IMPEL-TFS seaport project II, International cooperation in enforcement hitting illegal waste shipments, project report September 2004 – May 2006, Brussels, June 2006, p. 10.
- 44.
The April 2008 document on the programme budget for 2009–2010 of the Basel Convention (for COP9) pays considerable attention to enforcement, see the Basel Convention’s website at: http://www.basel.int/meetings/cop/cop9/docs/advance%20-%2035e.pdf (last visited 17 July 2009). See also the European Commission’s proposal for a Directive on the protection of the environment through criminal law, COM (2007)51, that also applies to illegal shipments of waste (cf. Article 3(e)).
- 45.
A typical situation caused by the past civil war in Ivory Coast.
- 46.
Information obtained in an interview with the director of the law firm, Bob van der Goen (interview by phone, May 7, 2008).
- 47.
This part of the deal is heavily criticized in the media. Some newspaper reports described it as “a dirty deal”, for instance on 14 Feb. 2007 by Deutsche Presse Agentur.
- 48.
Supra n. 46.
- 49.
Sachs, Noah (2008). ‘Beyond the Liability Wall: Strengthening Tort Remedies in International Environmental Law’, UCLA Law Review, 55, 4, 837–904. Also available at: http://works.bepress.com/noah_sachs/1/ (last visited 17 July 2009).
- 50.
See Annex II under (1) and (1.1.3) of the Directive.
- 51.
The Guardian, 10 July 2009, also available at: http://www.guardian.co.uk (last visited 17 July 2009).
- 52.
Proposal for a Directive on the protection of the environment through criminal law, COM (2007) 51 final.
- 53.
Article 3, Section (e).
- 54.
For an introduction to the former discussions see Wouters, J. and Ryngaert (2009). C., ‘Litigation for Ooverseas Ccorporate Hhuman Rrights Aabuses in the European Union: Tthe challenge of jurisdiction’, Institute for International Law Working Paper No. 124, Leuven, supra at n. 11.
- 55.
Anderson, R. Michael. (2002). ‘Transnational Corporations and Environmental Damage: Is Tort Law the Answer?’, Washburn Law Journal, 41, 399.
- 56.
See Wouters & Ryngaert, supra n.11, for the relevant discussion on jurisdiction and standing.
- 57.
Among other more specific examples, this top-down pressure derives in the European situation from the principles of solidarity and subsidiarity, the former declaring that signatory countries to the European Convention on Human Rights will take active steps to secure the rights contained therein, and the latter declaring that action at the lowest levels should be taken toward those goals. See Ovey, Clare & White, Robin (2006). The European Convention on Human Rights, Oxford University Press, p. 18.
- 58.
Notably the venerable Boyle, Alan & Anderson, Michael (eds.) (1996). Human Rights Approaches to Environmental Protection, Clarendon Press; and, inter alia, recent additions Turner, J. Stephen (2009). A Substantive Environmental Right: An Examination of the Legal Obligations of Decision-Makers Toward the Environment, Kluwer; Kravchenko, Svitlana & Bonnie, E. John (2008). Human Rights and The Environment: Cases, Law, and Policy, Carolina Academic Press; Hayward, Tim (2005). Constitutional Environmental Rights, Oxford University Press.
- 59.
Inter alia Gomien, Donna (2005). Short Guide to the European Convention on Human Rights, Council of Europe; DeMerieux, Margaret (2001). ‘Deriving Environmental Rights from the European Convention for the Protection of Human Rights and Fundamental Freedoms’, Oxford Journal of Legal Studies, 21, 3, 521–561.
- 60.
Article 2 of the Convention, e.g. Öneryildiz v. Turkey, application no. 48939/99, Grand Chamber judgment of 30 November 2004.
- 61.
Article 8 of the Convention, e.g. Hatton and Others v. the United Kingdom, application no. 36022/97, Grand Chamber judgment of 8 July 2003; Guerra and Others v. Italy, application no 116 /1996/735/932, Grand Chamber judgment of 19 February 1998.
- 62.
Article 13 of the Convention, e.g. Powell & Rayner v. the United Kingdom, application no. 9310/81, judgment of 21 February 1990.
- 63.
Article 6, e.g. Taskin v. Turkey, application no. 46117/99, judgment of 10 November 2004; specifically 6(1).
- 64.
Inter alia G. Handl, Human Rights and the Protection of the Environment, in: A. Eide, C. Krause, A. Rosas (eds.). Economic, Social, and Cultural Rights, Kluwer 2001, pp. 303–328; Also Anderson & Boyle, supra n. 58.
- 65.
Mowbray, Alistair (2004). The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights, Hart Publishing.
- 66.
Noted simply on the ECHR website as a frequently asked question for applicants: “You do not need to be a national of one of the States bound by the Convention. The violation you are complaining of must simply have been committed by one of those States within its ‘jurisdiction’, which usually means within its territory.” See: http://echr.coe.int/ (last visited 17 July 2009).
- 67.
Which was the primary purpose in composing Article 2. Ibid., p. 25.
- 68.
Öneryildiz, supra n. 60, para. 71.
- 69.
Ibid.
- 70.
See Markaratzis v. Greece, judgment of 20 December 2004 (Grand Chamber).
- 71.
Öneryildiz, supra n. 60, para. 101.
- 72.
Powell & Raynor v. the United Kingdom, judgment of 21 February 1990.
- 73.
Hatton & Others v. the United Kingdom, judgment of 8 July 2003 (Grand Chamber); Powell & Rayner v. the United Kingdom, judgment of 21 February 1990; Moreno Gómez v. Spain, judgment of 16 November 2004.
- 74.
López Ostra v. Spain, judgment of 9 December 1994.
- 75.
Guerra & Others v. Italy, judgment of 19 February 1998.
- 76.
Fadeyeva v. Russia, judgment of 9 June 2005.
- 77.
Article 1 of Protocol 1 also serves to protect property and possessions.
- 78.
Fadeyeva v. Russia, para. 69.
- 79.
Council of Europe, p. 17.
- 80.
Guerra v. Italy, para. 53.
- 81.
Council of Europe, p. 53.
- 82.
Formally, United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters.
- 83.
Procedural environmental rights are the form of an environmental right most supported by Alan Boyle. See Boyle (2007). ‘Human Rights or Environmental Rights – A reassessment’, Fordham Environmental Law Review, 18, 471.
- 84.
Golder v. the United Kingdom. Judgment of 21 February 1975.
- 85.
Balmer-Schafroth and Others v. Switzerland, case no. 67/1996/686/876, Grand Chamber judgment of 26 August 1997.
- 86.
E.g. Zander v. Sweden, application 14282/88, judgment of 25 November 1993; Taskin, supra n. 54 para. 117. Also see Hayward (2005) supra n. 58.
- 87.
Bothe, M. (1998). ‘The Right to a Healthy Environment in the European Union and Comparative Constitutional Law’, in: Développements récents du droit européen de l’environment, Antwerpen, pp. 1–9.
- 88.
Leander v. Sweden, para. 77.
- 89.
Klass & Others v. Germany, application no. 5029/71, judgment of 6 September 1978, para. 64; Silver and Others v. the United Kingdom, judgment of 25 March 1983, para. 113. Also note Hatton & Others v. the United Kingdom, supra n. 73 where a violation of Article 13 was found in spite of no violation of Article 8 being found.
- 90.
That rights-language changes the game was pointed out early by: Stone, D. Christopher (1972). ‘Should Trees Have Standing – Toward Legal Righs for Natural Objects’, Southern California Law Review, 45, 450–501.
- 91.
See also Birnie, Boyle & Redgewell (2009). International Law the Environment, Oxford University Press, p. 270. As further anecdotal evidence of how international instruments can put pressure on national legislatures, note the pressure Principle 10 of the Rio Declaration has exerted on national legislatures to facilitate effective access to justice has undoubtedly led to developments in protection of the environment “Environmental issues are best handled with the participation of all concerned citizens, at the relevant level.’ Principle 10 para. 1 of the Rio Declaration on Environment and Development.
- 92.
A recent panel discussion touches on many of the debated issues. See Roberts, Anthea et al. (2006). ‘The Extraterritorial Application of Human Rights. Panel Discussion’, in: American Society of International Law Proceedings, 100, pp. 85–102.
- 93.
Lowe, V. (2003). ‘Jurisdiction’, in: M.D. Evans (ed.), International Law, Oxford University Press, p. 329.
- 94.
Banković & Others v. Belgium and 16 Other Contracting States, Grand Chamber Decision as to the Admissibility of Application no. 52207/99, judgment of 14 November 2000. (inadmissible).
- 95.
Id., para. 84. Notably, a similar finding would be likely interpreting the issue under the umbrella of the UN’s Human Rights Covenants as well. See M. Dennis, M. (2006). ‘Application of Human Rights Treaties Extraterritorially During Times of Armed Conflict and Military Occupation, ASIL Proceedings’, American Society of International Law Proceedings, 86, 100, 90.
- 96.
Esp. Loizidou v. Turkey, application no. 15318/89, Chamber judgment of 18 December 1996; Cyprus v. Turkey, judgment of 10 May 2001; Öcalan v. Turkey, application no. 46221/99, Grand Chamber judgment of 12 May 2005. Notably, the admissibility of the Loizidou case also enunciated that “registered ships and aircraft” are partly within the State’s jurisdiction wherever they might be. See Admissibility of Application Nos 15299/89, 15300/89, 15318/89, decision of 3 April 1991 at para. 32. Cf. M. Kearney, Extraterritorial Jurisdiction of the European Convention on Human Rights (2002) 5 Trinity College Law Review. 126, 137.
- 97.
Trial Smelter Case (U.S. v. Canada) 3 R.I.A.A. 1905 (1938 & 1941); discussing trans-boundary environmental burdens.
- 98.
See Robert McCorquodale in The Extraterritorial Application of Human Rights, Panel Discussion in supra n. 82, citing Case Concerning United States Diplomatic Consular Staff in Tehran (U.S. v. Iran). Judgment 1980 ICJ Rep. 3, paras. 57, 69–71. A State can also share responsibility when they aid or abet a corporate national operating internationally. Acts that can be attributed to the state fall within the ambit of the International Law Commission’s (ILC) Articles on the Responsibility of States for Internationally Wrongful Acts. (2001) UN GAOR. 56th Ses. Supp No 10, UN Doc A/56/10(SUPP).
- 99.
See Kearney, supra n. 96 at p. 131; noting the addition of the adjective, ‘primarily’, in the wording of (1999) Appl. No. 25781/94, Eur Comm HR at para. 71, suggesting that those within their jurisdiction are not the only set of individuals receiving rights from the Convention.
- 100.
Arguments to limit the reach of the Convention, besides the limits set by the doctrine of effective control, are legitimate. Notably, and similar to the arguments of NATO in the Banković case, one could argue that if the framers of the Convention had wanted to secure rights in all situations, they would have worded the Convention similar to the Geneva Conventions. See Banković, para. 25, 40, 75, 80; Also T. Abdel-Monem, How Far Do the Lawless Areas of Europe Extend? Extraterritorial Application of the European Convention on Human Rights (2005) J. Transnational Law & Policy 14, 159 at 185. Further, compare: Article 2(1) of the International Covenant on Civil and Political Rights (ICCPR) under which contracting parties take obligations to people “within its territory and subject to its jurisdiction”; also a more restrictive wording.
- 101.
See id. establishing that the ECHR does apply to members’ actions abroad if their operations can be said to fall within the member state’s sphere of effective control. Also Report of the Committee on Legal Affairs and Human Rights, Areas where the European Convention on Human Rights cannot be implemented, Eur. Parl. Doc. 9730, \S V para. 41 (11 March 2003).
- 102.
The Court has also established that acts or omissions on the part of the State which affect persons outside of jurisdiction, the responsibility of that State can be engaged by the Convention. See Stocké v. Germany, case no 28/1989/188/248, judgment of 18 February 1991, where potential unlawful collusion between German police authorities and a private investigator were acknowledged to potentially involve violation of Convention rights. The rights claimed were later found not to be violated.
- 103.
Supra n. 66.
- 104.
Artico v. Italy, application no. 6694/74, judgment of 13 May 1980, at 33.
- 105.
A v. the United Kingdom, application no. 15599/94, judgment of 18 September 1997 at para. 48.
- 106.
DeSchutter, O. (2005). ‘The Accountability of Multinationals for Human Rights Violations in European Law’, in: Non-state Actors and Human Rights, Oxford University Press, pp. 491–512.
- 107.
Resolution on EU Standards for European Enterprises Operating in Developing Countries: Towards a European Code of Conduct, 1999 O.J. (C 104). Also note UN Norms on Responsibilities of Transnational Corporations, UN Doc. E/CN.4/Sub2/2003/12/rev 2 (2003).
- 108.
28 U.S.C. §1350. See Steinhard, R.G. (2005). ‘Corporate Responsibility and the International Law of Human Rights: The New Lex Mercatoria’, Non-State Actors and Human Rights, Oxford University Press, pp.177–226, at 198–202. Also Wouter and Ryngaert, supra n. 11.
- 109.
Ratner, S. (2002). ‘Corporations and Human Rights: A Theory of Legal Responsibility’, Yale Law. Journal, 111, 443, 470.
- 110.
“So long as environmental rights cases are brought individually, the ability to develop a systematic jurisprudence will be limited’ Osofsky, Hari. M. (2005). ‘Learning from Environmental Justice: A New Model for International Environmental Rights’, Stanford Environmental Law Journal, 24, 71–147.
- 111.
Ratner, supra n. 109, at 448.
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Verschuuren, J., Kuchta, S. (2011). Victims of Environmental Pollution in the Slipstream of Globalization. In: Letschert, R., van Dijk, J. (eds) The New Faces of Victimhood. Studies in Global Justice, vol 8. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-9020-1_6
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