United Nations Special Rapporteur on human rights and the environment, John H. Knox has been mandated by the United Nations Human Rights Council to promote the implementation of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment. To that end, one of his tasks is to visit countries, discuss issues relating to human rights and the environment, and prepare a public report to the Human Rights Council that describes good practices and challenges in the application of human rights to environmental protection. As part of this mandate John H. Knox visited Mongolia in late September this year.
I understand that your mission is to assess how Mongolia is promoting human rights and environment protection. What have you been able to find and what is wanting in terms of this particular issue?
What I found in Mongolia is that for the most part Mongolian laws are strong in respect to human rights of people, with respect to environment, other they could be improved in some respects. On the whole, the laws and the books are good. The problems I found were more in the nature of the implementation gap between the laws and the books, and the laws that are put in practice.
Although Mongolia does have some good implementation measures, I was still made aware of the limitation of implementation, including with respect to illegal mining, with respect to rehabilitation funds that are not adequately used, with respect to mining permitting decisions that are opposed by local communities but they go ahead anyway, and similar issues.
Implementation of laws, not only with respect to human rights and environment, we have a big gap. What needs to be done to set things aright in this respect?
It depends. Failures in implementation can have a number of different causes. Sometimes, they can be due to inadequate resources, for example, then the answer is to provide the technical and financial resources necessary. But other times, the failures can be due to confused responsibilities within the government, multiple agencies, each may have some responsibility to address the problem, but because the responsibilities are not clearly defined then the problem is not effectively addressed at all. In this respect, I have proposed in my statement (see pages 32-35) that Mongolia consider adopting an office of an environmental ombudsperson and this ombudsperson for the environment would be a kind of green door to the government, that if you had a concern about environmental protection, you had a complaint or you are just seeking information, this would be the office you would know to go to. It will not replace other offices, it will not replace the General Agency on specialized inspection for example. But this office would provide interface with the public to allow them to be able to know where in the government they should go and then it would provide a point of responsibility, as the ombudsperson would then be able to follow up on complaints with other agencies to make sure that they have actually been addressed. They could issue public reports. They could pull together information on the environment in one set of easy-to-access records or online databases and so forth,
So, I have recommended this in other situations, and I think it would be helpful to Mongolia as well.
You had a proposal addressed to the National Human Rights Commission. What does it boil down to?
The NHRC in Mongolia has drafted a good law on the protection of human rights defenders. This is not a law limited to environmentalists, although it would include environmentalists. It would cover everyone who fights for the protection of human rights, for themselves and for others, for the community as a whole. The law would set out clearly the responsibilities of the government to investigate those cases to make sure that they are taken seriously to protecting human rights defenders who have been attacked (find another appropriate word) and would create a new committee within the NHRC, which has specific responsibility to make sure that these obligations are being fulfilled with respect to human rights defenders.
In your statement, you mentioned about illegal mining, in Mongolia there is a term for it and is called Ninja mining. Their rights are being violated, they are deprived of their livelihood, and they have no choice but to go in for illegal mining.
To be clear, when I referred to illegal mining I don’t mean necessarily only ninja mining. I think also there is small-scale mining done on an organized basis, but it’s done without a permit or is done contrary to the terms of the permit, so I included that in my definition of illegal mining as well.
I think artisanal mining is a difficult problem because many of the people who are engaged in it are not really criminals, so much as they are people who are driven by poverty and difficult circumstances who see this as an option for making some additional money. However, we have to clearly understand that there is a serious problem not only for the environment, because it’s not good for the environment in the way artisanal mining is usually done. It is also not safe for the miners themselves. It’s not safe for them because the techniques they use are often highly dangerous, especially if they use chemicals such as mercury, a high toxic substance. It is also not safe for the children and families, who are often working with them. So artisanal mining is a difficult problem to deal with and I know that Mongolia is quite aware of the issue. I don’t want to see that the answer is simply to lock everyone up. I don’t think that is true. I do respect that Mongolia is taking such steps to address the issue, however, I do think that more needs to be done here because the problem is not going to go away on its own.
Mine rehabilitation, for both artisanal and so-called responsible mining, is extremely important. I understand poor mine rehabilitation can affect the livelihood of the livestock herders, because livestock breeding is the mainstay of Mongolia’s economy, apart from mining.
Mining rehabilitation is an extremely important issue in Mongolia and it’s one that deserves more attention than it has received so far. The minimal requirements for rehabilitation, that I have often heard about while I was here, boil down to simply grading off the slopes of the tailings done so it is less a steep and then receding it. That’s not much rehabilitation. That’s very minimal rehabilitation. In many cases even that doesn’t seem to be done. There is a need, I think, for Mongolia to raise the standards for rehabilitation. This does not address the entire problem because, at least mining companies like Rio Tinto have the resources and the capability of doing very high-quality rehabilitation. But smaller mining companies and especially artisanal miners simply are not in a position to do much rehabilitation.
So, one thing Mongolia needs to think about is how to handle rehabilitation for sites where the original mining companies or original miners are simply nowhere to be found.
Finally, climate change. It is affecting Mongolia and the weather in the country is changing drastically. This summer has been very hot and dry. Do we pass news laws or do we follow the Paris Agreement?
Climate change has caused the greatest threat to human rights in the 21st century. Mongolia is a good example of why it is such a huge threat. Mongolia is already experiencing the effects of climate change. Mongolia has already experienced warming at its territory by over 2 degrees Celsius much more than other countries have and it is already experiencing more intensified dzuds, which seems to be caused, in part, by global warming and climate change. So, Mongolia is definitely being affected by climate change in many ways. The problem is that Mongolia simply does not contribute very much to the problem, so it is not a problem that Mongolia can solve on its own. That means that other countries, in my mind, have human rights obligations to protect countries like Mongolia and vulnerable communities like the herders from the effects of climate change by implementing and strengthening the commitments of the Paris Agreement. At the same time, the Mongolian government does have an obligation to do what it can, and in particular, to have a national adaptation plan that helps those who are most vulnerable to climate change adjust as quickly and easily as possible, and in this respect from human rights perspective it is very important that the national adaptation plan include opportunities for the public, including the most vulnerable communities, to give their opinions and inputs as how the adaptation plan should work. This should be simply imposed top down but which allows bottom up ideas about how best to adapt to climate changes.
What you are suggesting is a participatory approach.
Absolutely. In summary, that’s the whole human rights perspective is that people have the right to participate in environmental decision making.
John Knox: “I was deeply impressed with the dedication of the many people I met in Mongolia who are working to protect the environment and human rights.”
From the statement made by John Knox at the end of his mission to Mongolia
Environmental harm to human rights
Human rights and environmental protection depend on one another. A healthy environment is necessary for the full enjoyment of many human rights, including the rights to life, health, food, and water. At the same time, the exercise of human rights, such as rights to information, participation, and remedy, is necessary in order to protect the environment.
Perhaps the most obvious environmental harm to human rights in Mongolia is the air pollution here in Ulaanbaatar. As you know, most of this pollution is caused by burning coal in household stoves in ger districts, although pollution from power plants and vehicles contributes to the problem. During the cold months in winter, Ulaanbaatar becomes one of the most polluted cities in the world. A brown haze fills the sky and the air is infused with levels of particulates and other pollutants that are many times higher than the World Health Organization air quality standards.
This air pollution interferes with the rights to life and health because it causes respiratory and cardiopulmonary illnesses that lead to premature mortality. The effects are felt most severely by the most vulnerable, including the old and the ill. Many studies have shown that children are particularly at risk. For example, in 2016, UNICEF estimated that over 400 children under the age of five were dying every year in Ulaanbaatar as a result of pneumonia related to air pollution. In addition, exposure to air pollution in childhood can result in long-term health problems, including lung cancer and cardiovascular disease.
Another important type of environmental harm is the increasing pollution of Mongolian rivers, which prevents enjoyment of the human right to safe drinking water. In particular, the Tuul River, on whose water the capital and many other communities rely, is polluted from mining operations and untreated sewage, as well as other sources. During my visit, I saw gold and coal mining occurring next to communities along the river, and I observed coal ash and other waste being dumped without treatment next to the river as it flowed through Ulaanbaatar.
Environmental harm can also interfere with the right of everyone to enjoy their culture. Mongolia is famous throughout the world for its nomadic herders. Nomadic herding is obviously closely dependent on the environment; indeed, it is a brilliant strategy for the sustainable use of semi-arid and arid grasslands. But in recent years, the culture has come under threat. Global warming is changing Mongolia’s climate more rapidly than that of many other countries, and it appears to contribute to the increasing incidence of dzuds. Other stresses on the nomadic culture include the loss of pasture lands to mining and agriculture. And, not least, the increase in the number of livestock has led to overgrazing and degradation of pastures.
The pressures on the herders’ culture also illustrate how environmental problems can be interconnected. Herders forced from their land are going to Ulaanbaatar, where the increasing numbers of people add to the problems of air, water and soil pollution there.
Although these environmental problems are specific to Mongolia, the overall challenge it faces is similar to that faced by many other countries: how can it manage the exploitation of its natural resources in a way that continues to improve the economic condition of its population without destroying the environment on which its people depend? In other words, how can it achieve truly sustainable development?
For development to be sustainable, it must be based on human rights. A human rights perspective promotes human dignity, equality and freedom, the benefits of implementing all human rights. It also improves the effectiveness of policy-making generally. Ensuring that those most affected by development and environmental policies are able to obtain information, freely express their views and participate in the decision-making process makes the policies more robust. Assessing development and environmental policies in the light of human rights, including the rights to life, health and an adequate standard of living, helps to ensure that the policies improve the lives of human beings who depend on a healthy environment — which is to say, all human beings.
States therefore have obligations under human rights law to protect the environment on which human rights depend. Those obligations include procedural duties to assess environmental impacts on human rights and to make environmental information public, to facilitate participation in environmental decision-making, and to provide access to remedies. States should also set strong substantive environmental standards and effectively enforce them. They should ensure that their laws and policies protect those who are particularly vulnerable to environmental harm, including communities such as herders, who depend closely on the environment for their material and cultural needs.
Environmental laws and policies in Mongolia
Mongolia has recognized the linkages between human rights, the environment and sustainable development in many ways. Perhaps most significantly, the Mongolian Constitution provides for the “right to healthy and safe environment, and to be protected against environmental pollution and ecological imbalance”.
Mongolia has adopted sustainable development as its guiding policy. In 2013, it became the first country in the world to join the Partnership for Action on Green Economy (PAGE) program, a United Nations program that promotes the transition to sustainable practices. In fact, a PAGE team visited Mongolia just last week, and I attended their meeting with the interim Minister of the Environment at which she reaffirmed Mongolia’s commitment to sustainable development. In 2014, the State Great Khural (Parliament of Mongolia) approved the Green Development Policy, and in 2016, it adopted Sustainable Development Vision 2030, which clearly spells out “principles of environmental sustainability”. The same year, the Government approved the Action Plan for implementation of green development policy, incorporating initiatives and activities on green development indicators, green jobs, green economy learning, sustainable public procurement, green building, sustainable financing and waste management. I welcome the Government’s commitment to orient national economic development planning and guide sectoral policies towards more inclusive and green growth.
Obviously, mining requires particular attention in Mongolia, because it is so important to the economy and because it can be so environmentally destructive. In general, the human rights obligations relating to the effect of mining on the environment are clear. To ensure that human rights and the environment are respected, mining permits should be issued only after a full assessment of environmental and social impacts is completed, all relevant information is provided publicly, and local communities are consulted for their views on the proposed operation. Mining standards should ensure that the mining is done safely, that it minimizes environmental harm, and that after the mining is completed, the site is restored as far as possible to its original status. Unavoidable harm should be offset and/or compensated. When done correctly, this process can and should result in benefits not only for the country as a whole, but also for the local communities directly affected by the mining.
On paper, Mongolia has a host of pertinent environmental laws that set out strong environmental standards and procedural safeguards, including with respect to mining.
For example, the law requires that, before an extractive project is approved, environmental assessment, public consultation, and the approval of the local community are required. The proponent of a mine must provide an environmental management plan and deposit one-half of the amount of rehabilitation into a special fund. There are requirements according to which proceeds from the mining benefit local communities. Some areas are ruled off-limits for mining, for example because they are specially protected areas, or because they are covered by the Law on the Prohibition of Mineral Exploration and Mining Operations at Headwaters of Rivers, Protected Zones of Water Reservoirs and Forested Areas (known as the Law with the Long Name).
Although there may still be some improvements needed to this legal framework, it has many admirable aspects. However, the country must do much more to effectively implement and enforce these standards.
Problems of implementation
There are many examples of failures of implementation. There is widespread illegal mining, not just by artisanal miners, but also by more organized mining operations. The environmental assessment process is often not taken seriously. I was told that impact assessments are often simply cut-and-pasted, so that an assessment of a mine in the Gobi, for example, addresses the impacts on forests found in northern Mongolia. When assessments are carried out, they do not adequately examine the likely social as well as environmental effects of the proposed mining operation. And the assessments are often not made available to the local community, which may learn of the project only when they see the bulldozers heading to the site.
The requirement of local government approval, while excellent in principle, often fails in practice. First, the law provides only about a month for the local governments to express their views – not nearly enough time to circulate the environmental assessment and have an informed public consultation. Second, local government officials may not have sufficient information, or may not adequately represent the views of their people. There is an obvious potential for corruption, with local officials using their ability to block a mine as a method of soliciting illegal payments. Third, even when local authorities oppose mining licenses, their views are sometimes overturned by the national government or simply ignored.
Zaamar soum illustrates this last problem. When I visited Zaamar, I saw the extensive gold mining that has already taken place there as a result of the “Gold-1” project, which began many years ago and resulted in dozens of mining licenses. Massive dredgers, each as large as an office building, churn up the river; children play near unguarded, dangerous open pits; dust clouds cause respiratory illnesses; wells dry up; fish are no longer to be found; and pasture lands for herders are greatly decreased. Recently, a new project, named Gold-2, was announced, that would lead to many more mining licenses in the soum. The new mines would destroy much of the remaining pasture land and cause far more environmental damage. Understandably, the local community has opposed the project. In spite of this opposition, the Gold-2 project was approved and licenses have begun to be issued. This is contrary to the relevant human rights obligations.
To comply with those obligations, the Government should conduct a full-scale, detailed assessment of the proposal for Gold-2, which looks at the environmental and social effects of Gold-1 and examines the cumulative effects of granting additional licenses. It should make that assessment public, it should provide for the effective rehabilitation and compensation for the effects of Gold-1, it should ensure well-informed public consultations, and – most important – it should abide by the decision of the local community as to whether to allow Gold-2 to go forward.
Some problems of implementation appear to be due to insufficient resources. For example, the General Agency for Specialized Inspection does not always appear to have sufficient technical resources and capacity to adequately inspect mining operations. I visited coal mining sites in Nalaikh, and was shown sites of apparently illegal mining taking place next to residential homes. Indeed, houses there have suffered damage that seems to have been caused by underground mining. In spite of their efforts to seek help from the Agency and to complain to other government agencies, local residents seem to have been provided with no recourse.
Another failure of implementation is that rehabilitation requirements are often not met. I heard from many sources that the rehabilitation funds required to be deposited are either not paid or redirected to purposes other than rehabilitation. Sometimes companies pretend to carry out rehabilitation while they actually continue to extract minerals from the mining site.
Beyond mining, another area where laws could be more effectively implemented is with respect to environmental information. Although the law provides for environmental information to be made available to the public, the accessibility of information varies greatly. On the positive side, I was impressed by the easy availability of information about air quality in the capital. However, this level of accessibility is not matched with respect to information about water quality, mining operations, pollution from dust, and other issues. A recent report by the World Resources Institute, in cooperation with Mongolian partners, indicated that information about water quality, in particular, was often unavailable, and that requests to the Government seeking such information often met with no response.
Points of improvement
In some cases, the laws themselves still need to be strengthened. For example, local communities should be given more time to conduct consultations on proposals for mines. Standards for rehabilitation need to be clarified and strengthened. I understand that the Government is engaged in an effort to extensively amend the law on mining, and I urge the Government to ensure full and meaningful participation by civil society to ensure that the revised law takes into account their perspectives and concerns.
Having said this, much greater emphasis should be placed on implementation of the policies and laws already on the books. With respect to air pollution in Ulaanbaatar, for example, the Government, the city of Ulaanbaatar, and international donors have all pursued programs in recent years aimed at improving air quality. These efforts should be provided the funding necessary for them to succeed – literally, the future of the country is at stake. At the same time, the programs must respect the human rights of the people who they are trying to protect. In particular, forbidding people to move to Ulaanbaatar is contrary to their human right of freedom of movement and, in any event, very unlikely to be effective.
Mongolia has taken some important steps already towards strengthening implementation of its environmental laws. Including environmental crimes in the criminal code is a very significant step. In addition, by facilitating the right of Mongolians to bring cases against government agencies, the relatively recent General Administrative Law should go far towards ensuring that agencies carry out their legal responsibilities.
However, as a practical matter, suits against the government will rarely be the first recourse of citizens seeking better enforcement of the laws. Citizens concerned with the failure of implementation of a particular legal requirement, or who are simply interested in finding out information about environmental matters, should be able to turn directly to the Government. To that end, my chief recommendation is that the Government establish an Environmental Ombudsperson, whose mandate would be to serve as a focal point for environmental information and complaints.
The Environmental Ombudsperson would not take the place of other agencies. Instead, it would serve as a kind of Green Door to the Government. Mongolians raising complaints or seeking information on environmental matters would be able to contact the Ombudsperson, which would then direct their inquiry to the correct office and ensure that they receive a response in a timely manner. It would follow up with public reports and recommendations. The Ombudsperson would also proactively bring together environmental information from throughout the Government and make it publicly available in easy-to-understand forms. For example, with respect to water quality, it could provide information about water pollution levels at different points in the Tuul and other rivers, as well as indications of what the water quality means for different types of uses. With respect to mining, it could provide information about locations of mining operations, emissions of pollutants, the timing and results of government inspections, and rehabilitation. It could also provide information on the beneficial ownership of mines. The Ombudsperson could also support local communities in understanding the effects of proposed mines, and in negotiating agreements with mining companies.
John Knox has urged Mongolia to adopt the first two new laws, apart from strengthening implementation.
The first is the Aarhus Convention on Access to Information, Public Participation in Decision-making, and Access to Justice in Environmental Matters. Mongolian law already complies with these standards in most respects, but joining the Convention would enable to it to ensure that it is meeting international standards. Many other central Asian, as well as European, countries, belong, and Mongolia has considered joining for many years. I suggest that now is a good time to do so.
Second, Mongolia should enact the law on human rights defenders that was drafted by the National Human Rights Commission, which is currently being reviewed by the Sub-Committee on Human Rights of the Parliament.
Enacting the law to protect environmentalists and other human rights defenders should be among Mongolia’s highest priorities, underlined in conclusion United Nations Special Rapporteur John H. Knox at the end of his mission to Mongolia.