By: Britta Sjöstedt
In this piece, I explore the notion of environmental justice by looking at international environmental law and how it pertains to peacebuilding. Environmental degradation resulting from armed conflict and/or institutional collapse, disputes over land rights and management over ‘conflict resources’ must be dealt with in a just and fair manner to build positive peace. For this reason, there is a growing advocacy on how environmental justice can be applied to pave the way to sustainable peace. For instance, such advocacy can involve pushing for local communities’ participation in decision-making related to environmental matters; undertaking proper measure to clear areas contaminated with explosive remnants from the hostilities; restoring access to safe drinking water etc. The notion of environmental justice is however multifaceted and lacks a universal definition. Its meaning changes depending on place, period, and perspective. For instance, in the US, it referred to exposing racism in the allocation of waste and linking environmental justice to citizens’ rights, while in Latin America, it has been related to social movements showing the unequal exchange between the Global South and North in resource exploitation, extractives and destruction of local livelihoods. Thus, environmental justice must be regarded as something relative that has diverse meanings to different communities, societies and institutions. Environmental justice is not a purely legal concept. It goes beyond law, having also moral, philosophical and political underpinnings. Just as the notion of justice is fluid and relative, as there is no such a thing as absolute justice, the same goes for environmental justice. The law should be viewed as merely a compromise of different understandings of justice. Yet, a legal system must be perceived as fair and just to maintain its legitimacy and authority. This is especially important in post-conflict contexts where parallel, informal justice systems can otherwise develop and compete with the legal system, which endanger predictability and trust in the law. Such a development entails a risk of destabilising an already fragile peace. International environmental law can shed some light on the content of environmental justice, especially in terms of environmental peacebuilding.
The term ‘environmental justice’ has its roots from an American movement in the 1980s protesting the placing of hazardous waste sites and other environmentally toxic facilities in poor black communities. In this case, environmental injustice describes how members of disadvantaged groups suffer disproportionately from environmental risks and degradation. Today, the notion of environmental justice hosts a broader set of meanings going beyond environmental degradation and social fairness. Environmental justice usually evolves around differences in how people and/or communities are adversely affected by environmental risks or pollutions, uneven distribution of natural resources and lack of access to justice regarding environmental matters. On an international level, environmental justice between states focuses on geopolitical tensions, for instance, how environmental harm has more serious consequences in the poorest regions in the world. For instance, the effects of climate change are likely to affect severely and disproportionately developing states that are particularly vulnerable to such effects. At the same time, developed states have greater financial and technical capability to mitigate carbon dioxide emissions and to adapt to and diminish impacts resulting from climate change.
Environmental justice is commonly described as dealing with three kinds of concerns: distribution, procedure and recognition. Distributive justice relates to equal distribution of wealth and income from environmental resources, but also for carrying the burden of preventing and repairing environmental degradation in accordance with capacity and responsibility. Procedural justice concerns rights to access to information and participate in environmental decision-making. This is to make sure that those affected by the decisions also have influence during the decision-making process. The third kind relates to the respect for identities and cultural difference. It serves to ensure that local cultures, knowledge and ideas are valued in intercultural engagement. All these concerns of environmental justice are incorporated in international environmental law.
One of the most influential instruments in creating and shaping international environmental law is the 1992 Rio Declaration. In this instrument, there are mainly three principles expressing aspects of environmental justice: Principle 7 stating the concept of common but differentiated responsibilities; Principle 10 dealing with access to environmental justice; and Principle 22 acknowledging the role of indigenous people and their communities as well as other local communities in environmental management and development. The Rio Declaration is not binding as such; nevertheless, many of its principles reflect the content of international environmental customary law, which is binding for all states. Aspects of the principles just mentioned have also been expressed in several binding environmental agreements. In addition, specifically in regard to peacebuilding, Principle 25 in the Rio declaration highlights how peace, development and environmental protection are interdependent and indivisible.
The principle or the concept of common but differentiated responsibilities captures partly the essence of distributive environmental justice. It provides for states to contribute differently to prevent and mitigate environmental degradation depending on their capability as well as their responsibilities. To achieve an equitable distribution of the burdens to safeguard the environment, various environmental agreements have established financial mechanisms, expressed exemptions, and included provisions for transfer of technology and flexibility in the times required for compliance with international environmental obligations to benefit developing states. At the same time, developed states should take a greater responsibility than developing states to pay for past, present and future harms to the environment. Developed states should also transfer technology and invest in capacity building for developing states to assist them in complying with environmental obligations. This is due both to the larger capacity of developed states but also because they bear historically a greater responsibility for the current state of the environment. In the context of peacebuilding, this principle provides a framework to force other states to assist war-torn developing states under environmental stress. It provides for that developed states are under an obligation to provide technical, financial and other types of assistance to safeguard the environment, particularly in fragile states struggling to build an environmentally sound peace.
In relation to the procedural environmental justice, Principle 10 in the Rio Declaration ensures that individuals have rights to access to information concerning the environment that is held by public authorities, and the opportunity to participate in environmental decision-making. According to this principle, states have an obligation to facilitate public awareness by making information on environmental matters widely available. In addition, states are obligated under the same principle to provide effective access to judicial and administrative proceedings, including means of reparations and compensations. Similar rights can also be found in international human rights law instruments. In a peacebuilding process, international law provides for procedural environmental justice that can be applied to ensure access to information and public participation of local communities and individuals in decision-making in relation to the environment. Decisions on environmental management and allocation of natural resources should be invoked in this context in accordance with the law to provide procedural equity through decision-making with the participation of those affected. If such procedures are correctly incorporated, it will empower local communities in a peace process aiming at producing outcomes that treat all affected groups fairly in matters regarding land rights, exploitation of natural resources and environmental investments or risks. However, just because the principle exists in international law, it does not necessary mean that it is respected and enforced, especially in situations of post-conflict where the state may be facing problems to uphold its state functions and institutions. Still, the principle conveys an important message to all actors – internal as well as external – involved in the peace process to not bypass communities affected by environmental matters and an obligation to ensure them influence and access to justice. Even though the primary subjects of international law are the states, even private actors may be forced to comply with this principle depending on how well it has been implemented in national legislation of the post-conflict state or actors’ home state or due to voluntary measures initiated by the industry or international organisations.
Regarding the concern for recognition, Principle 22 in the Rio Declaration expresses that states should recognise and support indigenous and other communities, their identity, culture and interests. Furthermore, it calls for adopting means to enable their effective participation in the achievement of sustainable development. This includes respect of their traditional knowledge and practices in relation to environmental management. There are many examples on how indigenous peoples have suffered from conservation policies, in particular in states affected by armed conflicts including the Democratic Republic of the Congo, the Philippines, Colombia. States are under an international obligation to recognise indigenous peoples and to provide for appropriate procedures and institutions for indigenous peoples facilitate the respect for cultural differences. The environmental justice concern for recognising cultural identity both ensures rights for indigenous peoples to occupy and exploit their ancestral land as well as rights of varying degrees to participate and influence in matters regarding the land. As indigenous territories are usually rich in biological diversity and valuable natural resources, in many war-torn states, hostilities often takes place in these remote and biodiversity rich areas having severe impacts on indigenous peoples. In addition, when peace has been established, vulnerable indigenous communities can be marginalised if they are not recognised in the peacebuilding activities. The rights of the indigenous and other local communities expressed in international environmental law and human rights law are essential in a peace process to ensure social inclusion of different cultures.
To summarise, international environmental law does not provide a clear-cut solution on how to achieve environmental justice in post-conflict. However, it provides tools to address environmental entitlements, human vulnerability, and management of natural resources, which are all pressing concerns in a peacebuilding process. It contributes to stress the responsibility of states to equally distribute environmental risks and hazards as well as investments, benefits and natural resources. Also, the law ensures access to information, participation in decision-making and access to justice in all environmental matters and to recognise different cultural identities, ideas and practice. For that reason, international environmental law is a good starting point of how to build sustainable peace in an environmentally just manner. However, to fully understand the meaning and implications of environmental justice, the notion needs to be approached from other disciplines as well.