by Tom Syring
(Originally posted on the webpage of the American Society of International Law)
March 22, 2017 marks the 24th annual World Water Day  – an appropriate occasion to reflect upon the connection between environmental pollution, general health and living conditions, and forced migration in the broader context of the responsibility of states and businesses to improve the current global state of affairs. The recent inundations in Kinshasa, Democratic Republic of the Congo (DRC), exemplify the importance of this juncture.
In 2017, Western states continue to seal themselves off from the less fortunate. Perhaps the most radical approach taken thus far, even in its revised form, is the Trump administration’s announcement and intention to restrict the entry of people from a number of states entirely – even of refugees – to the United States, thereby negating a fundamental principle of refugee law, the right to seek protection from ill-treatment (See Footnote  for full text of Executive Order 13769). Meanwhile, in order to stem the flow of irregular migrants (a term here used to denote both ‘conventional’ refugees, i.e. those fleeing based on a ground included in the 1951 Refugee Convention and people leaving their home country for other reasons), the European Union concluded an agreement with Turkey, one of the main countries through which migrants and refugees to Europe would travel, essentially offering money for border control and tightened frontiers.
Under the terms of the deal, all new ‘irregular migrants’ crossing from Turkey to the Greek islands would be returned to Turkey. In addition, Turkey promised to “take any necessary measures to prevent new sea or land routes from Turkey to the E.U.[For full text see Footnote 3]” In exchange, the European Union would allocate three billion euros under the Facility for Refugees in Turkey, with an additional three billion euros to be mobilized by the end of 2018.
In parallel proceedings, the European Union is also pushing ahead with a migrant pact on Africa, offering similar incentives — a share in the EU Emergency Trust Fund for Africa — to a number of African countries in exchange for stemming the flow of potential refugees to Europe .
These deals and the situation in various conflict-ridden regions make it increasingly harder for people in need of protection to even reach a safe country where they might seek protection, and (legal) alternatives to traditional flight routes are still in short supply. A few weeks ago on March 7, 2017, the CJEU denied the (legal) obligation of EU Member States to grant humanitarian visas, i.e. visas with limited temporal validity, with a view to enable vulnerable people to apply for asylum after pursuing a legal route to Europe, avoiding the need for hazardous and expensive journeys at the hands of human traffickers .
Most recently, Hungary’s parliament approved by a large majority the automatic detention of all asylum seekers in container camps at the country’s borders, despite serious concern voiced by UNHCR .
Spring is already approaching, but it is still getting colder in Europe.
FIGHTING ROOT CAUSES OF MIGRATION AND THE ALLOCATION OF RESOURCES
But despite the various efforts at sealing-off Europe, the U.S., or other better-off regions, we should be very cognizant about certain facts: (1) conflicts and harsh living conditions will still exist and force people to leave; (2) irrespective of the level of border control or barriers, people will still flee and seek access to and a future in more secure countries; (3) providing refugees access to protection is not just a moral, but a legal obligation, flowing from the Refugee Convention.
There are some relevant points regarding resource allocation, providing help in the countries of origin, improving the situation in the regions where people flee from with a view to fighting some of the root causes of migration and refugee situations, and reducing the need or perceived need of those people to cross borders in order to seek protection. There is also a case to be made – based on utilitarian considerations – that resources could arguably be utilized differently and yield more benefits for a greater number of people, were they to be spent ‘on the ground,’ in the countries of origin. This may anyways only be regarded as an addition – the central right to seek protection (abroad) may not be tampered with. However, if we want to be serious about increasing the allocation of resources ‘on the ground,’ there are numerous ways of improving our contributions.
For starters, while the total amount of funds should be increased significantly, one may also voice concern regarding the amount of development aid money that appears to be spent by some international organizations and NGOs on administration and ‘personal infrastructure’ (oversized lodging, salaries, cars).
Looking at the example of Kinshasa in the DRC, it is striking to see the number of flood resistant SUVs circulating the inner-city center of the Congolese capital. Given, apart from a few roads in the center, SUVs are almost mandatory to get anywhere, but for example, an exhaust above a vehicle’s roof top would normally only be a necessity further outside the capital of the DRC and especially outside the better-off parts of Gombe. In other words, the exhausts are mandatory only in places a number of the very same organizations probably never go to, despite their vehicles.
INUNDATIONS IN KINSHASA
But then again, what is normal in a DRC context? The recent heavy rainfalls that come with the rainy season have yet again resulted in serious floods in Kinshasa – a giant metropolis of perhaps 12 million inhabitants most prominently in Limete, a part of Kinshasa bordering the city center. The rainfalls led to some side rivers of the monumental Congo River to burst their banks, rendering entire areas uninhabitable, affecting many thousand people, and causing several (known) deaths . The intermediate and long-term consequences of the flooding, leading to contamination and other health-related casualties, may only be speculated about.
It is true that heavy rains are to be expected in the rainy season; and yes, Kinshasa suffers already from one of the worst infrastructures in the world, with a canalization and electricity system largely still from the colonial era. Now, 57 years and about 10 million (more) inhabitants later, the structural arrangement, in lack of any serious upgrading, is seriously inapt for the task of sustaining habitable conditions. But, as far as the inundations go, the reason they repeatedly have such serious consequences is not only a matter of commission by inaction, but also commission by mal-acting and malpractice – certainly not made easier by the country’s long lasting armed conflict and political crisis. The DRC has never in its history since independence seen a peaceful transition of power .
Apart from ‘regular’ waste caused by a dilapidated or entirely absent trash disposal or even recycling system, the main congestion in the tributaries to the Congo River is actually caused by Polyethylene terephthalate (PET) bottles and other plastic products. The good news is that this is a situation that one could actually do something about, even in times of political stand-off in a conflict-prone country.
THE RESPONSIBILITY OF STATES AND BUSINESSES
Plastic waste degrades only very slowly, if at all , and in order to sustainably prevent such flooding, reducing the amount of waste, especially of plastic bottles, should be mandatory. Without a functioning waste disposal and recycling system, this would be hard to achieve. However, reducing pollution and supporting developing countries in water and sanitation-related activities forms part of the UN Sustainable Development Goals . Cleaning up rivers and improving canalization in a place like Kinshasa would certainly fall within that definition and could have a significant impact on the well-being of a large population.
To be sure, changing or rather creating from scratch an efficient waste disposal system is costly and time consuming, and establishing a sustainable new waste-organization method would depend on a stronger ‘responsibilization’ of the food and beverage processing companies. The producers of such bottles benefit from the sales of their products as well as from the absence of environmental regulations in the respective countries of destination. Perhaps new international regulation akin to the Hong Kong Convention for the safe recycling of vessels , or the possibility of environmental (import) taxes could be envisioned. Under GATT (General Agreement on Tariffs and Trade) rules and border tax agreements (BTA), implementing a deposit-and-return system of taxes would be permissible as long as they are equally applied to imported and domestic products [See Footnote 12]. In a country like the DRC, where there are not a whole lot of domestically produced or even processed products, that stipulation would not seem to represent a significant impediment to such border taxation.
This would also seem to be in line with provisions in articles 11 and 12 of the International Covenant on Economic, Social, and Cultural Rights (ICESCR) [Full Text See Footnote 13] (on food and adequate standards of living, and on the environment and health, respectively), an international human rights treaty binding on all the 165 State Parties to it, and would correspond to the aspirations pronounced in the 2011 UN Guiding Principles on Business and Human Rights .
Linking bottle-deposits to sales as a precondition for export might be feasible in the future and contribute to the above mentioned sustainability goals. For damages caused by the lack of adequate waste-reception and recycling facilities, extraterritorial application of human rights treaties might eventually be invoked based on defaulting on provisions in articles 11 and 12 of the ICESCR, as detailed above. Ultimately, in particular future cases, reparations based on corporate responsibility might then be claimed where companies do not live up to their duties, including due diligence – as had been at issue in the various Shell-Nigeria cases , where corporate responsibility for oil spills was established.
WHAT CAN BE DONE NOW?
With a view to the current lack of enforceable environmental regulations in the areas touched upon above, compelling states and businesses here to act responsibly may still be a long way off. However, there are many things that can be done in the meantime, starting immediately. Sending equipment and technical expertise for the deepening of the river bed and bank revetment would initially secure the congested tributary and have an enormously positive impact on a large number of people directly affected by recurring flooding. Perhaps plastic processing and recycling machines may eventually follow suit. In turn, this may also contribute to convincing the population to stay on and believe in their country, instead of protracting the feeling of being exposed and
left to their own devices.
The local population wants to take part in improving their situation. I have been regularly to the DRC and Kinshasa in the past few years and have spoken with many Congolese there, including in above mentioned parts of the city. But you don’t have to take it from me alone; the French radio station RFI also reported on this issue and came to similar conclusions .
March 22 is World Water Day and can be an opportunity to initiate positive change, if even, at first, on a moderate scale. Hence, if you or your company or organization is in a position (and willing) to contribute, let me know. I’d gladly join forces or put you in touch.
Tom Syring is a visiting scholar at the Norwegian Centre for Human Rights at the Faculty of Law at the University of Oslo & the Co-Chair of the Migration & Refugee Law Interest Group at the European Society of International Law.
 http://www.unwater.org/campaigns/world-water-day/en/ (http://www.unwater.org/campaigns/world-waterday/en/)
 Executive Order 13769 – Protecting the Nation from Foreign Terrorist Entry into the United States: https://www.whitehouse.gov/the-press-office/2017/03/06/executive-order-p… (https://www.whitehouse.gov/thepress-office/2017/03/06/executive-order-protecting-nation-foreign-terrorist-entry-united-states)
 European Commission: Implementing the EU-Turkey Agreement: http://europa.eu/rapid/pressrelease_MEMO-16-1221_en.htm (http://europa.eu/rapid/press-release_MEMO-16-1221_en.htm)
 European Commission: A European Union Emergency Trust Fund for Africa: http://europa.eu/rapid/pressrelease_MEMO-15-6056_en.htm (http://europa.eu/rapid/press-release_MEMO-15-6056_en.htm) and International Cooperation and Development: The EU Emergency Trust Fund for Africa: http://ec.europa.eu/europeaid/regions/africa/eu-emergency-trust-fund-afr… (http://ec.europa.eu/europeaid/regions/africa/eu-emergency-trust-fund-africa_en)
 http://curia.europa.eu/juris/document/document_print.jsf?doclang=EN&text.. (http://curia.europa.eu/juris/document/document_print.jsf?doclang=EN&text=&pageIndex=0&part=1&mode=lst&docid=188626&occ=first&dir=&cid271842) The case pertained to a Syrian couple and their three young children, living in Aleppo (Syria), who had submitted applications for humanitarian visas at the Belgian embassy in Beirut (Lebanon) before returning to Syria on the following day. The purpose of the applications was to obtain visas with limited territorial validity, on the basis of the EU Visa Code, in order to enable them to leave the besieged city of Aleppo with a view to applying for asylum in Belgium.
 This was also negatively highlighted when a whale recently was found dying in Norway as a result of having had more than 30 plastic bags and other type of plastic waste in his stomach. See: http://www.telegraph.co.uk/news/2017/02/03/whale-found-dying-coast-norwa… (http://www.telegraph.co.uk/news/2017/02/03/whale-found-dying-coast-norway-30-plastic-bags-stomach/)
 ‘Transforming Our World: The 2030 Agenda for Sustainable Development’, adopted by UN GA Res. 70/1, adopted 25 Sep. 2015: https://sustainabledevelopment.un.org/content/documents/21252030%20Agend… (https://sustainabledevelopment.un.org/content/documents/21252030%20Agenda%20for%20Sustainable%20Development%20web.pdf)
 Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships, IMO, Adopted 19 May, 2009: http://www.basel.int/Portals/4/Basel%20Convention/docs/ships/HongKongCon… (http://www.basel.int/Portals/4/Basel%20Convention/docs/ships/HongKongConvention.pdf)
 That was e.g. held in the so-called Canada Beer Cases (GATT), cf. Patricia Birnie et al. (eds.): International Law & the Environment, Oxford: Oxford University Press (2009), p. 799  International Covenant on Economic, Social and Cultural Rights of 16 Dec., 1966 (entry into force 3 Jan., 1976), available at: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx
 ‘Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework’, UN Office of the High Commissioner for Human Rights 2011, available at: http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_…
 Cf. e.g., ‘Dutch ruling on Nigeria could prompt more environmental cases’, Reuters, 18 Dec. 2015, available at: http://uk.reuters.com/article/us-shell-nigeria-pollution-idUKKBN0U11C520… (http://uk.reuters.com/article/us-shell-nigeria-pollution-idUKKBN0U11C520151218) ; ‘Shell agrees to payout over Nigerian oil spills’, Deutsche Welle, 7 Jan. 2015, available at: http://www.dw.com/en/shell-agrees-topayout-over-nigerian-oil-spills/a-1… (http://www.dw.com/en/shell-agrees-to-payout-over-nigerian-oilspills/a-18174123)