Research Handbook on Law, Environment and the Global South 1784717452, 9781784717452

This comprehensive Research Handbook offers an innovative analysis of environmental law in the global South. It contribu

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Table of contents :
Contents
List of contributors
Introduction to the Research Handbook on Law, Environment and the Global South
PART I - QUESTIONING THE CONCEPTS OF DEVELOPMENT AND SUSTAINABILITY
Chapter 1: Intergenerational justice, water rights, and climate change
Chapter 2: Justice, development and sustainability in the Anthropocene
Chapter 3: Neoliberalism, law and nature
Chapter 4: Radical well-being alternatives to development
PART II - ENVIRONMENTAL RIGHTS, ENVIRONMENTAL JUSTICE AND ACCESS TO REMEDIES
Chapter 5: Environmental rights in the Global South
Chapter 6: North-South transboundary movement of hazardous wastes – the Basel Ban and environmental justice
Chapter 7: The Bhopal case: retrospect and prospect
PART III - LAND USE, ACQUISITION AND DISPOSSESSION
Chapter 8: Land rights, poverty, and livelihoods: the case of Ethiopia
Chapter 9: Wildlife conservation and land rights in Kenya: competing or complementary agendas?
Chapter 10: Land-grabs and dispossession in India: laws of value
PART IV - FORESTS: A CONTESTED RESOURCES OR COMMODITY
Chapter 11: Environmental impact assessment in the context of mangrove forest ecosystem management in Bangladesh: a case study of Rampal coal power plant project
Chapter 12: Forests, people and poverty: failing to reform the global development paradigm
Chapter 13: Access to and control over forest resources – the case of the Forest Rights Act, 2006 in India
PART V - INDIGENOUS PEOPLES: RESOURCE USE, CONSERVATION, LIVELIHOODS AND RIGHTS
Chapter 14: Forest rights and tribals in mineral rich areas of India: the Vedanta case and beyond
Chapter 15: Conservation and livelihoods: conflicts or convergence?
PART VI - ENERGY AND THE ENVIRONMENT
Chapter 16: International energy policy for development: human rights and sustainable development law imperatives
Chapter 17: Nuclear energy and liability: an environmental perspective
PART VII - WATER: PRIVATISATION, DEVELOPMENT AND HUMAN RIGHTS
Chapter 18: Realisation of the right to water: lessons from South Africa
Chapter 19: Dams and displacement: the case of the Sardar Sarovar Project, India
Chapter 20: Wastewater reuse in irrigated agriculture in urban and peri-urban India: a farmers’ rights perspective
PART VIII - COMMERCIAL AND INDUSTRIAL USE OF RESOURCES AND EQUITY
Chapter 21: Mining, development and environment in India
Chapter 22: Environment impact assessment in India: contestations over regulating development
Chapter 23: The informal waste sector: ‘surplus’ labour, detritus, and the right to the post-colonial city
Index
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© Editors and Contributors Severally 2019 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA

A catalogue record for this book is available from the British Library Library of Congress Control Number: 2019951102 This book is available electronically in the Law subject collection DOI 10.4337/9781784717469

ISBN 978 1 78471 745 2 (cased) ISBN 978 1 78471 746 9 (eBook)

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Contents

List of contributors Introduction to the Research Handbook on Law, Environment and the Global South Philippe Cullet and Sujith Koonan PART I

viii xvi

QUESTIONING THE CONCEPTS OF DEVELOPMENT AND SUSTAINABILITY

1 Intergenerational justice, water rights, and climate change Upendra Baxi 2 Justice, development and sustainability in the Anthropocene Sam Adelman 3 Neoliberalism, law and nature Larry Lohmann 4 Radical well-being alternatives to development Ashish Kothari PART II

2 14 32 64

ENVIRONMENTAL RIGHTS, ENVIRONMENTAL JUSTICE AND ACCESS TO REMEDIES

5 Environmental rights in the Global South Louis J. Kotzé and Evadne Grant 6 North-South transboundary movement of hazardous wastes – the Basel Ban and environmental justice Julia Dehm and Adil Hasan Khan 7 The Bhopal case: retrospect and prospect Usha Ramanathan PART III

86

109 138

LAND USE, ACQUISITION AND DISPOSSESSION

8 Land rights, poverty, and livelihoods: the case of Ethiopia Brightman Gebremichael 9 Wildlife conservation and land rights in Kenya: competing or complementary agendas? Patricia Kameri-Mbote 10 Land-grabs and dispossession in India: laws of value Preeti Sampat

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vi Research handbook on law, environment and the global South PART IV

FORESTS: A CONTESTED RESOURCE OR COMMODITY

11 Environmental impact assessment in the context of mangrove forest ecosystem management in Bangladesh: a case study of Rampal coal power plant project Jona Razzaque 12 Forests, people and poverty: failing to reform the global development paradigm Feja Lesniewska 13 Access to and control over forest resources – the case of the Forest Rights Act, 2006 in India Shankar Gopalakrishnan PART V

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COMMERCIAL AND INDUSTRIAL USE OF RESOURCES AND EQUITY

21 Mining, development and environment in India Felix Padel and Malvika Gupta

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WATER: PRIVATISATION, DEVELOPMENT AND HUMAN RIGHTS

18 Realisation of the right to water: lessons from South Africa Michael Kidd 19 Dams and displacement: the case of the Sardar Sarovar Project, India Varsha Bhagat-Ganguly 20 Wastewater reuse in irrigated agriculture in urban and peri-urban India: a farmers’ rights perspective Lovleen Bhullar PART VIII

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ENERGY AND THE ENVIRONMENT

16 International energy policy for development: human rights and sustainable development law imperatives Thoko Kaime 17 Nuclear energy and liability: an environmental perspective Saurabh Bhattacharjee PART VII

231

INDIGENOUS PEOPLES: RESOURCE USE, CONSERVATION, LIVELIHOODS AND RIGHTS

14 Forest rights and tribals in mineral rich areas of India: the Vedanta case and beyond Geetanjoy Sahu 15 Conservation and livelihoods: conflicts or convergence? CR Bijoy PART VI

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Contents vii 22 Environment impact assessment in India: contestations over regulating development Manju Menon and Kanchi Kohli 23 The informal waste sector: ‘surplus’ labour, detritus, and the right to the post-colonial city Kaveri Gill Index

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Contributors

Dr Sam Adelman teaches law at the University of Warwick and is a Research Associate at Nelson Mandela University in South Africa. His main areas of research are climate change, international environmental law, development and human rights. He has degrees from Warwick, the University of the Witwatersrand in South Africa – from where he was exiled after being banned and detained by the apartheid regime – and Harvard University. His recent articles include geoengineering, climate justice, human rights and climate change, and epistemologies of mastery. He is currently co-authoring a book on climate justice with Upendra Baxi. Prof. Upendra Baxi is Emeritus Professor of Law at the University of Warwick and Delhi. He served as a professor of law at the University of Delhi (1973–96) and as its Vice Chancellor (1990–94.) He also served as Vice Chancellor of the University of South Gujarat, Surat (1982–85) and Honorary Director (Research) of the Indian Law Institute (1985–88.) He was the President of the Indian Society of International Law (1992–95). Professor Baxi graduated from Rajkot (Gujarat University), read law at the University of Bombay, and holds LLM degrees from the University of Bombay and the University of California at Berkeley, which also awarded him with a Doctorate in Juristic Sciences. Professor Baxi has taught various courses in law and science, comparative constitutionalism and social theory of human rights at the University of Sydney, Duke University, the American University, the New York University Law School Global Law Program, and the University of Toronto. Professor Baxi’s areas of teaching and research include comparative constitutionalism, social theory of human rights, human rights responsibilities in corporate governance and business conduct, materiality of globalization, and Cold War and international law studies. Dr Varsha Bhagat-Ganguly is a former professor at Nirma University and the Centre for Rural Studies, Lal Bahadur Shastri National Academy of Administration (LBSNAA), Mussoorie. She actively engages in conducting research and research-based activities – publications, teaching, public-policy framing and critique, awareness raising strategies and material on social and developmental issues. Her recent and upcoming publications include: Land Rights in India: Policies, Movements and Challenges (Routledge 2016, 2018); Journey towards Land Titling in India (LBSNAA 2017); India’s Scheduled Areas: Untangling Governance, Law and Politics (e-book, Routledge, 2019) and Land Question in Neoliberal India: Socio-legal and Judicial Interpretations (forthcoming). Her research interests include discourses on rights perspectives, especially on land, processes of marginalization, people’s knowledge and collective action for desired social change, and Gujarat. She has contributed to nationally and internationally refereed academic journals, and has edited three journals: Studies in Humanities and Social Sciences (2008, 2011), Journal of Land and Rural Studies (2015, 2016) and Nirma University Law Journal (2017). viii

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Contributors ix Mr Saurabh Bhattacharjee is Assistant Professor at the West Bengal National University of Juridical Sciences (NUJS), Kolkata. Saurabh researches and teaches courses on Labour Law, Law and Impoverishment, Socio-Economic Rights, Nuclear Law and Sports Law. Dr Lovleen Bhullar is Research Fellow in Regulation and Antimicrobial Resistance at the School of Law, University of Edinburgh. She holds an undergraduate degree in Law from the National Law School of India University, Bangalore, LLM in Environmental Law from SOAS University of London, and MSc in Environmental Policy and Regulation from the London School of Economics and Political Science. Her doctoral research at SOAS University of London examined the potential and limits of environmental rights litigation as a solution to the problem of water pollution in India. She is the co-editor of Water Governance: An Evaluation of Alternative Architectures (Edward Elgar Publishing 2013), Sanitation Law and Policy in India: An Introduction to Basic Instruments (Oxford University Press, 2015), and Right to Sanitation in India: Critical Perspectives (Oxford University Press, 2019). Mr CR Bijoy works on forest rights with the Campaign for Survival and Dignity (www.forestrightsact.com), a national coalition of forest dwellers organizations that emerged in 2002, and researches natural resource and governance politics. Prof. Philippe Cullet is Professor of International and Environmental Law at SOAS University of London and Senior Visiting Fellow at the Centre for Policy Research, New Delhi. His work focuses on law and the environment, natural resources law, socio-economic rights, environmental justice, with a specific focus on water and sanitation in India. He received his doctoral degree in Law from Stanford University, an MA in Development Studies from SOAS University of London, an LLM in International Law from King’s College London and a law degree from the University of Geneva. He engages regularly with policymakers at the national and international levels and was a member of the Government of India’s Committee drafting the Draft National Water Framework Bill, 2016 and the Model Groundwater (Sustainable Management) Act, 2017. His latest books are Right to Sanitation in India: Critical Perspectives (co-edited with S. Koonan and L. Bhullar, OUP 2019) and Groundwater and Climate Change: Multi-Level Law and Policy Perspectives (co-edited with RM Stephan, Routledge 2019). Dr Julia Dehm is Lecturer at the School of Law, La Trobe University, Australia. Prior to starting at La Trobe Julia was a postdoctoral fellow at the Rapoport Center for Human Rights and Justice at the University of Texas at Austin and a resident fellow at the Institute for Global Law and Policy at Harvard Law School. Her research addresses international climate change law and regulation, transnational carbon markets and the governance of natural resources as well as the intersections between human rights and environmental issues as well as human rights and economic inequality. Her work has appeared in the Leiden Journal of International Law, the European Journal of International Law, the Windsor Yearbook of Access to Justice, the Journal of Human

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x Research handbook on law, environment and the global South Rights and the Environment, the London Review of International Law and the Macquarie Journal of International and Comparative Environmental Law as well as in climate justice-themed special editions of the Journal of Australian Political Economy and Local-Global Journal. She is the Co-Editor-in-Chief of the Journal of Human Rights and the Environment and a member of the Global Network for the Study of Human Rights and the Environment. She holds a BA, LLB (Hons) and PhD from the University of Melbourne. Dr Brightman Gebremichael studied Law (LLB, and LLM in Environmental and Natural Resource Law) at Bahir Dar University, Ethiopia and obtained his LLD at the University of Pretoria, South Africa. He is a former lecturer in Law and dean of the School of Law at Wollo University, Ethiopia. Currently, he is Assistant Professor of Law at the Institute of Land Administration, Bahir Dar University, Ethiopia. His area of research interest is land rights, property law and environmental law. Dr Kaveri Gill is an Associate Professor, Department of International Relations and Governance Studies, Shiv Nadar University. With a heterodox economics training, she completed a BA Tripos, MPhil, PhD and a Postdoctoral Fellowship at the University of Cambridge. Kaveri has more than fifteen years work experience with a range of institutions, including academia, government, multilateral and bilateral donors, international organisations, and development consultancies. She has worked with the Planning Commission of India; UNICEF; the International Development Research Centre (IDRC) and Oxford Policy Management (OPM) in Delhi. Kaveri has published widely, including a best-selling monograph with Oxford University Press, Of Poverty and Plastic: Scavenging and Scrap Trading Entrepreneurs in India’s Urban Informal Economy (2010). Her research interests include the political economy of development, poverty, informality and the environment, especially in cities of the global South and social policy for development, with a focus on healthcare, in India. Mr Shankar Gopalakrishnan is a researcher, writer and organiser. He is affiliated with Chetna Andolan, a state level social movement in Uttarakhand, and the Campaign for Survival and Dignity, a national platform of forest dwellers’ organizations. He has previously written on natural resource policy, political economy, law, hate politics, workers’ rights, political movements and other issues. He has also published four books on these topics, most recently Understanding the RSS and the Sangh Parivar, from Aakar Books (2017). Ms Evadne Grant is Associate Head of Department of Law (PG Programmes) at the University of the West of England, Bristol. Her areas of research include human rights and the environment and, more generally, social and economic rights. She also has a particular interest in human dignity and the relationship between dignity and social and economic rights. Her publications include Thought, Law, Rights and Action in the Age of Environmental Crisis (edited with Anna Grear, Edward Elgar Publishing 2015). She is co-editor of the Journal of Human Rights and the Environment and series co-editor of the Critical Reflections on Human Rights and the Environment series (Edward

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Contributors xi Elgar Publishing). She also serves on the Global Network for Human Rights and the Environment Core Team. Ms Malvika Gupta is presently a doctoral candidate at the Department of International Development, Oxford University, for which she is doing fieldwork and research on indigenous politics in Ecuador and India. She did her BA in Philosophy at Delhi University, switching to Social Work for her MA. She then moved to Jawaharlal Nehru University for an MPhil in Sociology, but left this and worked for several years with UN agencies, social movements and NGOs on issues of indigenous education, indigenous rights and extractivism in central India. She then did her MPhil in Education Studies at Delhi University, writing her thesis on India’s tribal education policy. She has published several articles on tribal issues in India, with many focused on repression of indigenous knowledge systems. Dr Thoko Kaime is Senior Lecturer in Law in the School of Law at the University of Essex and Deputy Dean for Postgraduate Research Education for the University. Thoko is a public international lawyer and maintains research and teaching interests in human rights and international environmental law. His work is an ongoing socio-legal critique of international legal arrangements which he expresses through a consideration of a number of critical issues in children’s rights and sustainability governance. He has written extensively on these subjects, focusing on the intersection between law, legitimacy and public participation in international rule-making and policy implementation. His publications include Cultural Legitimacy and the International Law and Policy on Climate Change (Routledge 2013) and The Convention on the Rights of the Child: A Cultural Legitimacy Critique (Europa Law Publishing 2011). Prior to joining Essex, Thoko served as lecturer in International Environmental Law at the University of Leicester; deputy director of the Environmental Regulatory Research Group at the University of Surrey and as a corporate consultant for risk management firm Exclusive Analysis Limited, where he was Head of Africa Division. Prof. Patricia Kameri-Mbote is Professor of Law and former dean at the School of Law, University of Nairobi. She is also Senior Counsel in the Kenyan bar. She has served as chair of the Department of Private Law at the School of Law, University of Nairobi. She has also served as the director of Research and Policy Outreach and acting executive director at the African Centre for Technology Studies, Nairobi. She was a member of the Committee of Eminent Persons appointed by His Excellency the President of Kenya in February 2006 to advise the government on the way forward for the stalled constitution review process. She has also been identified as a renowned thinker in the global environment and sustainable development field by the World Conservation Union (IUCN); as a renowned and innovative thinker and researcher by the International Development Research Centre (IDRC) on land rights and served as a Policy scholar at the Woodrow Wilson International Center for Scholars. Prof. Kameri-Mbote earned her doctorate from Stanford University in 1999 specializing in property rights and environmental law. She had earlier studied law in Nairobi, Warwick and Zimbabwe. She currently teaches Women, Access to Resources and the Law at the Southern and Eastern Africa Research Centre on Women’s Law (SEARCWL) and

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xii Research handbook on law, environment and the global South Property Law at the School of Law, University of Nairobi. Her research interests include environmental law and policy, land law, human rights, women’s rights, intellectual property, biotechnology and judicial and legal education institutional reforms. She has published widely in these areas. Dr Adil Hasan Khan is currently a McKenzie Fellow at the Melbourne Law School, where his research seeks to explore the intersections between international law and disasters, with a focus on South Asia. He completed his PhD in International Studies, with a specialization in international law and a minor in anthropology and sociology of development, at the Graduate Institute of International and Development Studies in Geneva. His doctoral dissertation, titled ‘Inheriting Persona: Narrating the Conduct of Third World International Lawyers’, narrates the conduct of two generations of Third World international lawyers in their struggles to reimagine, refound, and alternatively authorize international law, and identifies the defining struggle of the Third World in international law as being over temporal transmissions or inheritance. He was a residential institute fellow at the Institute for Global Law and Policy, Harvard Law School in 2016–17 and a junior visiting fellow at the Institute for Human Sciences (IWM), Vienna in 2015–16. Prof. Michael Kidd is Professor of Law at the University of KwaZulu-Natal in Pietermaritzburg, South Africa. His research interests include environmental law, water law and administrative law and he has published extensively in these fields. He holds a Bachelor of Commerce (BCom) degree, a Bachelor of Laws (LLB) degree, a Master of Laws (LLM) and a PhD from the University of Natal. He is the author of a leading text Environmental Law (2nd edn, Juta 2011) and has written numerous academic articles. He is the Chair of one of South Africa’s largest environmental NGOs, the Wildlife and Environment Society of South Africa. Ms Kanchi Kohli is a researcher working on environment, forest and biodiversity governance in India. Her work explores the links between law, industrialization and environment justice. She seeks to draw empirical evidence from sites of conflict and locates it within the legal and policy processes. Other than her independent work, Kanchi is presently a Senior Researcher at the Centre for Policy Research. She has individually and in teams authored various publications, including the book Business Interests and the Environmental Crisis (SAGE-India 2016). Her writings also include several research papers and popular articles. Kanchi regularly teaches at universities and law schools in India on subjects related to biodiversity, environment and community development. Dr Sujith Koonan is Assistant Professor at the Campus Law Centre, Faculty of Law, University of Delhi. He completed his PhD from SOAS University of London where he was a recipient of the SOAS Doctoral Research Scholarship (2013–16). He holds an MPhil in International Law from Jawaharlal Nehru University, New Delhi and LLM in Environmental Law and Human Rights from Cochin University of Science and Technology, Kochi. He is a member of the Editorial Board of the Law, Environment and Development Journal (LEAD), a joint publication of SOAS University of London

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Contributors xiii and the International Environmental Law Research Centre, Geneva. His main areas of interest are environmental law, water and sanitation, law and natural resources, human rights and public international law. His publications can be accessed at http://ielrc.org/ about_koonan.php. Mr Ashish Kothari is a founder member of Indian environmental group Kalpavriksh. He has taught at the Indian Institute of Public Administration, coordinated India’s National Biodiversity Strategy and Action Plan process, served on Greenpeace International and India Boards, helped initiate the global ICCA Consortium, and chaired an IUCN (International Union for Conservation of Nature) network dealing with protected areas and communities. He has been guest lecturer in several universities around the world. He helps coordinate the Vikalp Sangam and Global Tapestry of Alternatives processes in search of alternative well-being pathways to globalized development. Ashish has (co)authored or (co)edited over 30 books, including Churning the Earth: Making of Global India (with Aseem Shrivastava, Viking 2012), Alternative Futures: India Unshackled (with KJ Joy eds, AuthorsUpFront 2017), and Pluriverse: A Post-Development Dictionary (with Ariel Salleh, Arturo Escobar, Federico Demaria and Alberto Acosta eds, Tulika & AuthorsUpFront 2019). Professor Louis J. Kotzé is Research Professor of Law at the Faculty of Law, North-West University, South Africa, and Visiting Professor of Environmental Law at the University of Lincoln, UK. His research focuses on the Anthropocene, environmental constitutionalism, human rights, and Earth system law. He has over 130 publications on these themes. He has published Global Environmental Constitutionalism in the Anthropocene (Hart 2016); Research Handbook on Human Rights and the Environment (with Anna Grear, Edward Elgar Publishing 2015); Environmental Law and Governance for the Anthropocene (Hart 2017); and Sustainable Development Goals: Law, Theory and Implementation (with Duncan French, Edward Elgar Publishing 2018). He is co-editor of the Journal of Human Rights and the Environment and assistant editor of Earth System Governance. In 2016 he obtained a second PhD at Tilburg University, Netherlands, and has been awarded a European Commission Horizon 2020 Marie Curie Fellowship to lead a research project during 2018–19 at the University of Lincoln entitled: Global Ecological Custodianship-Innovative International Environmental Law for the Anthropocene. Dr Feja Lesniewska is Postdoctoral Research Fellow in the Department for Science, Technology, Engineering and Public Policy (STEaPP), University College London and a Senior Teaching Fellow in the School of Law at SOAS University of London. She currently a researcher on the ESPRC funded PETRAS project focusing on cyber physical systems, critical infrastructure and security issues. Feja’s previous research has primarily focused on international and comparative climate change law, sustainable development, energy and ecosystems law (forests, land, water). Her PhD at SOAS University of London was in international law-making processes in relation to forests based on fieldwork in China. Feja has also undertaken fieldwork in West Africa, East Asia and Russia on a range of forest-related issues including the illegal timber trade,

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xiv Research handbook on law, environment and the global South community tenure rights and REDD+ whilst working as a consultant with leading NGOs and on forest-related law and policy. Mr Larry Lohmann works with The Corner House, a British-based solidarity and research organization. He is a founding member of the Durban Group for Climate Justice and has been associated with the World Rainforest Movement for 25 years. He spent much of the 1980s working with NGOs in Thailand and has also lived in the US and Ecuador. Among his books are Pulping the South: Industrial Tree Plantations in the Global Paper Economy (with Ricardo Carrere, Zed Books 1996), Mercados de Carbono: La Neoliberalizacion del Clima (Abya-Yala 2012) and Energy, Work and Finance (with Nicholas Hildyard, The Corner House 2014). His articles have appeared in journals of Asian studies, politics, accounting, science studies, law, development, environment and politics, and have been translated into many languages. Most of his publications are available at www.thecornerhouse.org.uk. Ms Manju Menon is Senior Fellow at the Centre for Policy Research, New Delhi. Her main areas of work are resource politics, environmental law and regulatory decisionmaking. She has researched and published popular articles and papers on environment, law and development for over two decades. She collaborates with community organisations in India and regional and global networks working on decentralized resource governance and environmental compliance. She is currently completing her doctoral thesis on participatory environmental governance in Northeast India. Dr Felix Padel is an anthropologist trained at Oxford and the Delhi School of Economics, author of three books on tribal and environmental issues in India: Sacrificing People: Invasions of a Tribal Landscape (Orient BlackSwan 2011), Out of This Earth: East India Adivasis and the Aluminium Cartel (with Samarendra Das, Orient BlackSwan 2010) and Ecology, Economy: Quest for a Socially Informed Connection (with Ajay Dandekar and Jeemol Unni, Orient BlackSwan 2013). He read Classics at Exeter College, Oxford, and after doing a diploma in Social Anthropology, did an MPhil in Sociology at the Delhi School of Economics and received his DPhil from Oxford University. He has held various appointments in India, including professor of Rural Management at the Indian Institute of Health Management Research, Jaipur, has written and given talks on a large range of anthropological issues, and has been connected with a large range of social movements. Dr Usha Ramanathan is an internationally recognized expert on the jurisprudence of law, poverty and rights. Her doctorate is from the University of Delhi. Her research interests include mass displacement, civil liberties, torts and the environment. She has published extensively in India and abroad. In particular, she has devoted her attention to issues including the Bhopal gas disaster, the Narmada valley dams, slum eviction in Delhi, manual scavenging, poverty and, in recent years, the unique identification project and law and technology. Prof. Jona Razzaque is Professor of Environmental Law at the University of the West of England, Bristol (UWE). She holds a PhD in Law from the University of London.

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Contributors xv Prior to joining the UWE, she worked as a staff lawyer with the Foundation for International Environmental Law and Development. She previously taught at the University College London, SOAS University of London and Queen Mary University of London. She has held visiting fellowships at Wuhan University, China. She is a member of the Advisory Board of the Journal of Environmental Law and serves as a member of the IUCN World Commission on Environmental Law. Her areas of interest include international environmental law, natural resources law, environmental governance, EU environmental law and policy, environmental law in developing countries, water law and policy. She has published Public Interest Environmental Litigation in India, Pakistan and Bangladesh (Kluwer 2004), Globalisation and Natural Resources Law (with Elena Blanco, Edward Elgar Publishing 2011) and Environmental Governance in Europe and Asia (Routledge 2012) and co-edited Natural Resources and the Green Economy (with Elena Blanco, Brill 2012), International Environmental Law and the Global South (with Shawkat Alam, Sumudu Atapattu and Carmen G. Gonzalez, Cambridge University Press 2015), International Natural Resources Law, Investment and Sustainability (with Shawkat Alam and Jahid Hossain Bhuiyan, Routledge 2017) and Biodiversity and Nature Protection Law (with Elisa Morgera, Edward Elgar Publishing 2017). Dr Geetanjoy Sahu is Associate Professor at the Centre for Science, Technology and Society, School of Habitat Studies, Tata Institute of Social Sciences, Mumbai. He earlier served as post-doctoral associate at the Centre for Interdisciplinary Studies in Environment and Development, Bengaluru. He holds a PhD in Political Science from the Institute for Social and Economic Change, Bengaluru and MPhil from the Hyderabad Central University, Hyderabad. His research and teaching interests include environmental policy and governance, analysis of judicial behaviour on environmental litigation and politics of interaction between state and forest rights groups over forest resource management. He is the author of Environmental Jurisprudence and the Indian Supreme Court: Litigation, Interpretation and Implementation (Orient BlackSwan 2014). Dr Preeti Sampat is Assistant Professor in Sociology at Ambedkar University Delhi. She received her PhD in Anthropology from the Graduate Center, City University of New York. She works on land struggles in relation with urbanization and infrastructure projects in India, and is currently developing a book manuscript along these themes. Her research interests include legal anthropology; the anthropology of infrastructure; urbanization; land; capital; state; social movements; and democracy.

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Introduction to the Research Handbook on Law, Environment and the Global South Philippe Cullet and Sujith Koonan

Environmental law has grown over the past five decades around conservation measures, often linked to development concerns.1 At the international level, the Stockholm Declaration – often seen as the foundational instrument of international environmental law – had already linked environmental protection with economic development.2 This link was progressively strengthened up to the point where, in 1987, the notion of sustainable development officially sanctified the bond.3 Since then, there has been no turning back and sustainable development progressively became the anchor around which environmental measures have been structured.4 However, what was supposed to be a more or less equal relationship between environmental protection, social development and economic development became unhinged in 2012 with the introduction of the concept of green economy, which reflects policymakers’ desire to give more importance to economic growth.5 Indeed, one of the major trends over the past couple of decades has been the progressive economisation of environmental regulation.6 The linking of environment and development tends to make us forget that (economic) development has been and remains part of the problem that needs to be addressed. Policymakers have had for decades the benefit of reports like Limits to Growth highlighting the grave dangers associated with the existing development model.7 Yet, environmental law has been conceived mostly within a conceptual framework that makes conservation often subsidiary to economic development concerns. In other words, environmental conservation is largely centred around measures that will not hamper economic growth. This sidelines the fact that growth itself may be inimical to social development and the realisation of human rights. 1 Note that while concerns for the environment can be found in different earlier legal instruments, the term ‘environment’ was not in common use. 2 Declaration of the United Nations Conference on the Human Environment, Stockholm, 16 June 1972, UN Doc. A/CONF.48/14/Rev.1, principle 2. 3 World Commission on Environment and Development, Our Common Future (OUP 1987). 4 Rio Declaration on Environment and Development, 14 June 1992, UN Doc. A/CONF.151/ 26/Rev. 1 (Vol. I), Annex II (1992), principle 4. See also Sustainable Development Goals, in UNGA Res. 70/1, Transforming Our World: The 2030 Agenda for Sustainable Development, UN Doc. No A/RES/70/1 (21 October 2015). 5 United Nations Environment Programme, Towards a Green Economy: Pathways to Sustainable Development and Poverty Eradication – A Synthesis for Policy Makers (UNEP 2011) and UNGA Res. 66/288, The Future We Want, UN Doc. A/RES/66/288 (11 September 2012). 6 see Lohmann in this book. 7 Donella H Meadows and others, The Limits to Growth (Universe Books 1972).

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Introduction xvii In a world marked by vast inequalities in access to natural resources, in levels of economic development and in access to social benefits, an environmental law that is essentially structured around the development discourse is problematic. It fails to take into account the situation of the majority of countries and people, generally located in what is referred to as the global South. This term – often used interchangeably with ‘third world’ or ‘developing countries’ – refers broadly to countries of South America, Africa and Asia, in contrast with the developed world which has disproportionately high wealth and geo-political control.8 This binary understanding of a reality that is multi-faceted in diverse ways is itself limiting but reflects even today the reality of a divided world where the gap between countries with low human development and very high human development remains immense.9 This Handbook is centred around concerns of the global South and from a global South perspective. It looks at environmental law from the perspective of the vast majority of the world’s population, a perspective that is often sidelined in mainstream discourses and scholarship.10 This is necessary even for global environmental issues, such as climate change, desertification or biodiversity loss that have specific local dimensions that are often quite different in ‘developed’ and ‘developing’ countries. These issues are to be examined from a South-North perspective in addition to a global analysis.11 Various chapters of this Handbook thus examine environmental issues that may arise both in the global North and the global South but cannot be reduced to a perspective mostly focused on the global North.12 The rest of this introductory chapter looks at some of the central themes and approaches that inform the rest of this Handbook.13

1. ENVIRONMENTAL LAW: SOUTH-NORTH DIMENSIONS Environmental law is often perceived as having had its origins mostly in the global North and to have built, for instance, on developments in the United States from the

8 eg Nour Dados and Raewyn Connell, ‘The Global South’ (2012) 11(1) Contexts 12 and Global South Studies Center, Concepts of the Global South: Voices from Around the World (University of Cologne 2015), accessed at http://gssc.uni-koeln.de/node/452. 9 The Human Development Index was 0.504 for countries with low human development in 2018 and 0.894 for countries with very high human development. UNDP, Human Development Indices and Indicators: 2018 Statistical Update (UNDP 2018) 25. 10 Among the limited existing publications, eg Shawkat Alam and others (eds), International Environmental Law and the Global South (Cambridge University Press 2015); Usha Natarajan, ‘Third World Approaches to International Law (TWAIL) and the Environment’ in Andreas Philippopoulos-Mihalopoulos and Victoria Brooks (eds), Research Methods in Environmental Law: A Handbook (Edward Elgar Publishing 2017) 207. 11 eg Kaime in this book. 12 This is the case concerning environmental impact assessment, analysed by Menon and Kohli in this book. 13 Note that all URLs are up to date as of March 2019.

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xviii Research handbook on law, environment and the global South 1960s onwards.14 Further, the global North is seen as having taken a lead in addressing global environmental issues, such as in the case of the fight against the depletion of ozone layer where some developing countries needed to be coaxed into joining a regime addressing an issue that was not on their own domestic priority list at the time.15 Such narratives paint a picture of the global South being in part prodded by international standards in taking domestic action and in part lagging behind the global North in terms of environmental consciousness. This links with the idea that higher levels of development are associated with higher environmental consciousness and that environmental protection is a by-product of economic growth.16 The global South is consequently sometimes seen as failing to have its own environmental concerns and policies as well as struggling to catch up with global standards that it may fail to enforce effectively.17 This fails to appreciate the fact that ‘sustainability’ has often been a way of life for centuries in rural communities entirely dependent on their surrounding environment for survival and livelihoods.18 This also fails to recognise that the global South can also be a leader in terms of issues of global significance, such as in the case of the ban on single use plastic where African countries lead in terms of total or partial bans.19 The relationship between environmental law and the global South is thus a complex one that has been shaped by historical factors, by domestic factors and by the contribution of the South to the development and its reception of international environmental law. In historical terms, the subjugation and exploitation of most of the global South by a geo-politically and economically dominating global North resulted in environmental injustice where the benefits of economic development went to the North and adverse implications were suffered by the global South.20 This included, for instance, exploitation of natural resources, as in the case of forests where colonial governments asserted control to ensure smooth exploitation of timber in particular.21 This also included the 14

cf Richard J Lazarus, The Making of Environmental Law (University of Chicago Press

2004). 15 David Hurlbut, ‘Beyond the Montreal Protocol: Impact on Nonparty States and Lessons for Future Environmental Protection Regimes’ (1993) 4 Colorado Journal of International Environmental Law and Policy 344. 16 cf Chukwumerije Okereke, Global Justice and Neoliberal Environmental Governance: Ethics, Sustainable Development and International Co-Operation (Routledge 2008) 174. 17 eg Piers Blaikie and John Mope Simo, ‘Cameroon’s Environmental Accords: Signed, Sealed, but Undelivered’ in Edith Brown Weiss and Harold K Jacobson (eds), Engaging Countries: Strengthening Compliance with International Environmental Accords (MIT Press 1998) 437. 18 Even the much decried shifting cultivation can be found under certain circumstances to be a practice worth considering. See eg K Teegalapalli and others, ‘Recovery of Soil Macronutrients Following Shifting Cultivation and Ethnopedology of the Adi Community in the Eastern Himalaya’ (2018) 34/2 Soil Use and Management 1. 19 United Nations Environment Programme, Single-Use Plastics: A Roadmap for Sustainability (UNEP 2018) 25. 20 Carmen G Gonzales, ‘Human Rights, Environmental Justice, and the North-South Divide’ in Anna Grear and Louis Kotzé (eds), Research Handbook on Human Rights and the Environment (Edward Elgar Publishing 2015) 449. 21 Concerning forests in India, see Gopalakrishnan in this book.

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Introduction xix imposition of a form of environmental conservation, as in the case of the egregious treaties negotiated by colonial powers on behalf of their African colonies to preserve what was perceived as the last bastion of pristine wilderness on Earth.22 In both cases, colonial subjects were at the receiving end of measures that were justified either by a colonial conservation ethic or by economic growth imperatives. This probably led to the undermining of existing conservation policies and practices in the colonies. The pattern of economic growth that saw the global North benefitting from a division of labour that disadvantaged the global South in environmental terms, for instance as happened during the colonial period, has changed but not disappeared. Thus, the present global economic order is in large part organised around an international production chain where the most polluting activities and resource extraction that fuel the global economy take place in the global South, whereas environmentally less harmful activities take place in the global North, leading to a ‘relocation of the ecological burden’ to the global South.23 In other words, the prosperity in the global North has come at the cost of, not only environmental degradation in the global South, but also impoverishment and political conflicts. The inequity of the current framework can be summarised by looking at Africa’s very limited contribution to greenhouse gases (3.8 per cent) compared to the climate change-related damages it suffers.24 Another dimension of the encounter of the global South and global North in terms of the development of environmental law is the primacy of principles and norms developed in the North that acquire universal value through their incorporation in international environmental treaties. In practice, the majority of principles of environmental law found in domestic legal frameworks in the global South are thus either similar or directly incorporated from international environmental law, as with the case of the precautionary principle in India.25 The combination of the legacy of the colonial encounter with the influence of international law leads in some cases to unexpected results. Thus, while the conservation treaties signed in the first half of the twentieth century by the colonial powers on behalf of their African colonies have long been replaced by conservation treaties adopted by independent African nations, the conservation policy that demarcates tracts of land where human interactions are limited or prohibited has only changed progressively and to a limited extent.26 In other words, the same paradigm that saw the ‘natives’ kept off nature reserves but allowed hunting by Convention Designed to Ensure the Conservation of Various Species of Wild Animals in Africa, which are Useful to Man or Inoffensive, London, 19 May 1900 and Convention Relative to the Preservation of Fauna and Flora in their Natural State, London, 8 November 1933. 23 Wolfgang Sachs and Tilman Santarius, Fair Future: Resource Conflicts, Security and Global Justice (Zed Books 2007) 66. 24 Amadou Sy, ‘Africa: Financing Adaptation and Mitigation in the World’s Most Vulnerable Region’ (Brookings Institution 2016), accessed at https://www.brookings.edu/wp-content/ uploads/2016/08/global_20160818_cop21_africa.pdf. 25 Vellore Citizens’ Welfare Forum v Union of India and Others (1996) 5 SCC 647 (Supreme Court of India, 1996); Lavanya Rajamani, ‘The Precautionary Principle’ in Shibani Ghosh (ed), Indian Environmental Law: Key Concepts and Principles (OrientBlackswan 2019) 192. 26 see African Convention on the Conservation of Nature and Natural Resource, Algiers, 15 September 1968 and African Convention on the Conservation of Nature and Natural Resources, Maputo, 11 July 2003. 22

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xx Research handbook on law, environment and the global South the colonialists still sees national parks displacing people living in them or restricting their livelihood options.27 The main difference is that, in formal terms, these measures are taken by independent sovereign governments. The subjugation of the global South to the global North has not gone unchallenged. Thus, one of the first things that newly independent countries did was to assert control over natural resources, something that came to be reflected in the principle of permanent sovereignty over natural resources.28 For some time, this seemed to provide a strong basis on which the global South could build its own environmental policies. Yet, developments over the past few decades indicate that this has not necessarily been the case, as illustrated with the case of biological resources. Thus, the assertion of sovereign rights in the Convention on Biological Diversity was in part a pyrrhic victory since it was linked to an agreement to facilitate access to biological resources, thereby limiting the options that source countries have to restrict access. Even worse, all that developing countries got in return was a promise of ‘benefit sharing’,29 something that can be qualified as a nice gesture but one that does not equate with the rights that private parties accessing biological resources can assert, for instance, through intellectual property rights.30 In the meantime, the push for giving an economic value to nature, for instance, under the guise of ecosystem services has further affected the impact of principles like permanent sovereignty over natural resources, for which the global South fought hard a few decades ago.31 The global South has also attempted to challenge the very structure of international law that it saw as inimical to its interests. This culminated in an attempt to bring about a New International Economic Order that would have led to a new economic framework reflecting better the needs of the global South. These efforts failed to lead to the expected structural reforms of international law,32 but contributed to enshrining the idea that developing and developed countries were not equal in economic terms, even if they were now legally equal. Nevertheless, they led to the introduction of preferential treatment in favour of developing countries.33 This ended up being a precursor to the principle of common but differentiated responsibilities, a key principle of international see Kameri-Mbote in this book and Bijoy in this book. UNGA Res. 1803 (XVII), Permanent Sovereignty over Natural Resources, UN Doc. A/RES/1803 (XVII) (14 December 1962). 29 see Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization, Nagoya, 29 October 2010, UN Doc. UNEP/CBD/COP/ DEC/X/1. 30 eg Philippe Cullet, ‘Environmental Justice in the Use and Exploitation of Genetic Resources’ in Jonas Ebbesson and Phoebe Okowa (eds), Environmental Law and Justice in Context (Cambridge University Press 2009) 371. 31 Sumudu Atapattu, ‘The Significance of International Environmental Law Principles in Reinforcing or Dismantling the North–South Divide’ in Shawkat Alam and others (eds), International Environmental Law and the Global South (Cambridge University Press 2015) 74. 32 Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press 2004) 198. 33 eg Abdulqawi Yusuf, Legal Aspects of Trade Preferences for Developing States: A Study in the Influence of Development Needs on the Evolution of International Law (Martinus Nijhoff 1982). 27 28

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Introduction xxi environmental law that captures in part the South-North inequality and provides the basis for differential treatment in favour of the global South.34 The past few decades have also seen some large countries of the global South, in particular the BASIC countries (Brazil, South Africa, India and China), acquiring new economic and political clout. This has partly changed the nature of international negotiations, such as on climate change.35 At the same time, the global South cannot be equated with BASIC countries and there is, in fact, an increasingly apparent chasm between the latter, and least developed countries and a number of sub-Saharan African countries that find themselves at the receiving end of a new assertion of power by these countries.36 Thus, even though the unity of the global South remains largely intact as a negotiating group, this increasingly fails to capture the reality of a fractured large group of countries. The South-North perspective from a statist approach provides an appropriate starting point for discussing matters related to environmental law in the global South. Yet, this is today insufficient to grasp the various issues arising. Indeed, the private sector is also a key driver of regulatory action or inaction, from standard-setting to implementation and enforcement of environmental law. This is true from a South-North perspective, as well as from a domestic perspective. Various chapters of this Handbook deal directly or indirectly with private sector actors in an environmental context, ranging from Union Carbide’s Bhopal disaster that has local to international ramifications, to the NorthSouth movements of hazardous waste centred around activities of private sector actors within a public law regulatory framework.37 A second element that needs to be brought into the picture is the increasingly outdated fracture between the national and the international level that only considers South-North inequality at the level of countries. This tends to sideline the interests, issues and concerns of the poor and the marginalised in the South. In fact, strong economic growth in some countries of the global South over the past couple of decades has led to the strengthening of an economic and intellectual elite whose interests may be more aligned with those of people in the North than the majority of the poor in their own country.38 At the same time, the poor and marginalised in the North face similar

34

eg Philippe Cullet, Differential Treatment in International Environmental Law (Ashgate

2003). 35 see Rowena Maguire and Xiaoyi Jiang, ‘Emerging Powerful Southern Voices: Role of BASIC Nations in Shaping Climate Change Mitigation Commitments’ in Shawkat Alam and others (eds), International Environmental Law and the Global South (Cambridge University Press 2015) 214. 36 eg Tukumbi Lumumba-Kasongo, ‘China-Africa Relations: A Neo-Imperialism or a Neo-Colonialism? A Reflection’ (2011) 10(2-3) African and Asian Studies 234. 37 see Ramanathan in this book and Dehm and Khan in this book. 38 Commentators have emphasised the emergence of a transnational capitalist class as a global ruling class that consciously tries to obfuscate the impact of global capitalism on the poor and the marginalised and on the environment. See eg Leslie Sklair, ‘The Transnational Capitalist Class, Social Movements, and Alternatives to Capitalist Globalization’ (2016) 6(3) International Critical Thought 329.

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xxii Research handbook on law, environment and the global South neglect and victimisation as that of their counterparts in the global South.39 This leads to the need for an additional focus on the poor and the marginalised people in both the global South and North, given their relatable experiences of inequality, inequity and injustice, even though the intensity may be significantly different.

2. RETHINKING ENVIRONMENTAL LAW FOR MARGINALISED PEOPLE One of the central themes of this Handbook revolves around the need to reimagine environmental law from the perspective of the marginalised people in the global South and in the global North. An important part of this exercise is to challenge some of the premises on which existing environmental law has been built and to introduce new approaches and bases that serve the interests of the poor and the marginalised people in the global South and the global North. 1. Exposing the Pitfalls of Ostensible Neutrality and A-historicism Regulatory measures to protect the environment are today essentially justified by scientific data. Consequently, basic legal principles on which measures are justified, such as the prevention and precautionary principles find their legitimacy in scientific assessments.40 Environmental regulation based on scientific data has a neutral appearance because of the perceived objectivity of natural sciences’ results. Overall, environmental law is built on an understanding that reduces environmental issues to figures that we are called upon to understand as objective and therefore the most legitimate basis for lawmaking. One of the examples is that of climate change where the Intergovernmental Panel on Climate Change reports reflect a scientific consensus that is used as one of the main bases for lawmaking.41 In turn, this draws policymakers towards responses that address primarily the technological and economic dimensions of climate change. The perceived neutrality or objectivity of the scientific basis on which environmental law stands effectively undermines historical approaches to understanding environmental issues, which is problematic from the perspective of people and countries in the global South. First, the differential contributions to the problems and distinct sufferings by different people and countries are generally overlooked, leading to social inequity and inequality concerns.42 Legal rules are made, and regulatory measures are taken on the basis of the scientific assessment provided by experts, without necessarily addressing 39 eg Lucie Laurian, ‘Environmental Injustice in France’ (2008) 51(1) Journal of Environmental Planning and Management 55. 40 Concerning the precautionary principle often accused of being opposed to science-based regulation, see eg Peter Saunders and Mae-Wan Ho, ‘The Precautionary Principle is ScienceBased’ (2003) 18 Science in Society Archive, accessed at http://www.i-sis.org.uk/sapp.php. 41 eg Intergovernmental Panel on Climate Change, Climate Change 2014: Synthesis Report (IPCC 2014). 42 cf Gill in this book.

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Introduction xxiii the historical context. This necessitates an approach to environmental regulation based on historical considerations of equity and justice that challenge the status quo, which existing environmental law often contributes to uphold.43 Second, the lack of adequate focus on history also results in ignoring the rich history of environmental conservation and use strategies followed by people and communities particularly in the global South. The legal regime related to environment refuses to recognise and learn from the experiences of people and communities in the global South.44 Thus, the practices and systems of use, control and conservation of natural resources followed in pre-industrial societies of the global South hardly find any place in the mainstream narrative of evolution of environmentalism and environmental law. The denialist approach of the mainstream environmental law has, thus, systematically obstructed the potential contribution of the people and communities in the global South to the development of the legal regime and projected a discourse that accuses the poor of being the primary cause of environmental degradation.45 2. Challenging and Finding Alternatives to ‘Development’ The term ‘development’ has become a buzzword that signifies overall increase in wealth and prosperity.46 It has also been referred to as a tool for poverty eradication, a model rich countries adopted to become rich and a model which the poor countries have been following by default.47 This capitalist development model spearheaded by the global North promotes the idea of unlimited production and consumption. It has also been referred to as a discourse that makes people accept the narratives and promises of development uncritically.48 In a system that promotes unlimited production and consumption, environmental implications of this process are seen as inevitable side effects, which can be minimised with the help of science, technology and regulation. Thus, environmental law does not seem to question or challenge the dominant economic model but seeks to minimise its implications to the maximum extent possible. The concept of sustainable development seems to endorse this role for environmental law and underlines the fact that a balance between economic development and environmental sustainability is possible.

For a critique of international environmental law for its ahistoric narrative, see Karin Mickelson, ‘South, North, International Environmental Law, and International Environmental Lawyers’ (2000) 11(1) Yearbook of International Environmental Law 52. 44 eg Madhav Gadgil and Ramachandra Guha, This Fissured Land: An Ecological History of India (OUP 1992) 39. 45 cf Amita Shah, ‘Dryland Poverty and Climate Change in South Asia’ in Anushree Sinha and others (eds), The Environments of the Poor in South Asia: Simultaneously Reducing Poverty, Protecting the Environment, and Adapting to Climate Change (OUP 2015) 31, 32. 46 Jayati Ghosh, ‘Development’ in Bhupinder S Chimni and Siddharth Maalavarappu, International Relations: Perspectives for the Global South (Pearson 2012) 167. 47 ibid. 48 Rajan Gurukkal, ‘Death of Democracy: An Inevitable Possibility under Capitalism’ (2018) 53(34) Economic & Political Weekly 104, 106. See also Padel and Gupta in this book questioning this in the context of mining. 43

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xxiv Research handbook on law, environment and the global South The power of the dominant discourse of development is such that commodification of nature or economisation of natural resources has received wide acceptability. In the context of neoliberal policies that see economic value and commodification as a route to ensure long-term conservation by giving people incentives to sustainably use them, a number of ‘environmental resources’ have surfaced in recent years.49 This is well illustrated by the case of agricultural germplasm that was understood as a common heritage of humankind until the 1980s and was turned into a commodity that can in large part be appropriated and over which intellectual property rights can be claimed in an increasing number of cases.50 This is despite the fact that the main relevant treaty still proclaims its attachment to the idea of free flows of germplasm.51 Any attempt to rethink environmental law from the perspective of the marginalised people, therefore, needs to understand and assess this discourse. It is imperative to foster a critical approach to the link between development, environment and poverty because the relationship between development, and environmental quality and poverty eradication is not necessarily always positive. Development may thus lead to more impoverishment and marginalisation. The case of large dams reflects, for instance, situations where a negative relationship between development and poverty eradication, marginalisation and environmental degradation exists.52 The presumed capacity of the mainstream development model to foster poverty eradication and to maintain a workable balance between economic development and environmental sustainability also needs to be questioned.53 This leads to considering alternatives to ‘development’ that view human beings as part of the environment, view the environment primarily as a system for survival of all living beings rather than as a depository of resources to be exploited to become rich and are built on the needs, concerns and experience of marginalised people.54 3. Recognising Equity and Human Rights as Key Guiding Principles The process of rethinking environmental law internationally and domestically must include an assessment of the extent to which the existing legal regime at the international and domestic levels enshrine equity and human rights, for instance, in the context of equitable use of natural resources and equitable distribution of benefits and risks.55 This is, for instance, an important issue in the context of developmental activities, such as nuclear power plants and large dams where these activities are

see Lesniewska in this book. eg Philippe Cullet, Intellectual Property Protection and Sustainable Development (Butterworths/Lexis-Nexis 2005). 51 International Treaty on Plant Genetic Resources for Food and Agriculture, Rome, 3 November 2001, 2400 UNTS 303. 52 see Bhagat-Ganguly concerning dams in this book. 53 see Lohmann in this book and Adelman in this book. 54 see Kothari in this book. 55 eg Kotzé and Grant in this book. 49 50

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Introduction xxv frequently challenged on the ground of allocating risks mostly to marginalised and poor sections of society while the benefits accrue mostly to a privileged minority.56 Equity and human rights must be given a central place to ensure that environmental regulation pays special attention to the needs and rights of the poor and marginalised.57 This is necessary for several reasons: first, there is a need to put special emphasis on the environmental needs and concerns of the poor and marginalised related, for instance, to their livelihoods and cultural connections with the environment. Second, poverty often constrains the extent to which marginalised people can claim their rights and entitlements. In other words, there is a need to go beyond the formal recognition of the importance of ensuring equity and human rights and address the actual ability of people to enjoy their rights or to get them realised, especially when they have to stand against or confront the state or powerful multinational corporations. Third, equity and human rights present powerful tools allowing the poor and marginalised to challenge inequitable legal provisions and call for their modification. Overall, equity and human rights offer important analytical tools to assess rules of environmental law and the ways in which they are implemented and interpreted in the light of the experience of the pain, struggles and sufferings of the poor and marginalised people and the resistance they offer to existing rules. These aspects are highlighted in some of the chapters in this Handbook.58 The emancipatory or empowering capacity or potential of equity and human rights should, however, not be taken for granted. Adequate caution is necessary because these are malleable concepts or principles that can be used or interpreted differently in different contexts for different purposes. For instance, the language of human rights is used by anti-globalisation and anti-privatisation movements. At the same time, the language of human rights has been predominantly constructed to serve the purposes of neoliberalism and economic globalisation.59 This highlights the fact that they can be used in both hegemonic and counter-hegemonic strategies and policies.60 Therefore, equity and human rights are to be used and assessed for what they are capable of doing and what they have actually done rather than following them blindly on the basis of mainstream theories or narratives. Overall, this Handbook contributes to redefining or reconstructing the bases of environmental law from a global South perspective and from the perspective of the poor and the marginalised of present and future generations in both global South and 56 eg Minnie Vaid, The Ant in the Ear of the Elephant: The Story of the People’s Struggle against the Koodankulam Nuclear Plant (Rajpal 2016) 101–2. On liability, see Bhattacharjee in this book. 57 This is discussed in the context of the right to water by Kidd in this book. 58 eg Gopalakrishnan in this book and Sahu in this book. 59 eg Joe Wills, ‘The World Turned Upside Down? Neo-Liberalism, Socioeconomic Rights, and Hegemony’ (2014) 27(1) Leiden Journal of International Law 11. 60 For an analysis of human rights as discourse in the context of the human right to water, see Madeline Baer and Andrea Gerlak, ‘Implementing the Human Right to Water and Sanitation: A Study of Global and Local Discourses’ (2010) 36(8) Third World Quarterly 1527. For a critique of human rights from a third world perspective, see Balakrishnan Rajagopal, International Law from Below: Development, Social Movements and Third World Resistance (Cambridge University Press 2005) Ch 7.

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xxvi Research handbook on law, environment and the global South North, focusing on the impoverished, their livelihoods and their human rights.61 The chapters of this Handbook engage with these questions from a variety of angles, from specific case studies to proposals for structural reforms.62 The main thread that the chapters in this Handbook follow is an understanding that environmental law has failed to deliver on its promise, to the extent that it treats the poor and marginalised as either the cause of environmental harm or as an impediment on the road to achieving sustainable development. They highlight that we can reverse the catastrophic consequences of unconscionable development, but this will have to be done on entirely new bases.

see Baxi in this book. eg Razzaque in this book focusing on the Rampal coal power plant in Bangladesh and Kothari in this book addressing the need for change from a macro perspective. 61 62

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1. Intergenerational justice, water rights, and climate change Upendra Baxi

INTRODUCTION In 1992, the Union of World Scientists (numbering 1500) issued a first ‘Warning to Humanity’ which stated that ‘great change in our stewardship of the Earth and the life on it is required, if vast human misery is to be avoided’. They called for stabilization of the world’s population, substantial reduction of greenhouse gas emissions, the phasing out of fossil fuels, reducing deforestation, and resisting destruction of biodiversity. On a recent silver jubilee of that warning, the same Union issued a second warning (signed by 150,000 scientists) summoning urgent action now.1 William J Ripple and others, ‘World Scientists’ Warning to Humanity: A Second Notice’ (2017) 67(12) BioScience 1026, 1028. The Second Warning calls for a 13-point agenda as follows: Sustainability transitions come about in diverse ways and all require civil-society pressure and evidence-based advocacy, political leadership, and a solid understanding of policy instruments, markets, and other drivers. Examples of diverse and effective steps humanity can take to transition to sustainability include (not in order of importance or urgency): 1) prioritizing the enactment of connected well-funded and well-managed reserves for a significant proportion of the world’s terrestrial, marine, freshwater, and aerial habitats; 2) maintaining nature’s ecosystem services by halting the conversion of forests, grasslands, and other native habitats; 3) restoring native plant communities at large scales, particularly forest landscapes; 4) rewilding regions with native species, especially apex predators, to restore ecological processes and dynamics; 5) developing and adopting adequate policy instruments to remedy defaunation, the poaching crisis, and the exploitation and trade of threatened species; 6) reducing food waste through education and better infrastructure; 7) promoting dietary shifts towards mostly plant-based foods; 8) further reducing fertility rates by ensuring that women and men have access to education and voluntary family-planning services, especially where such resources are still lacking; 9) increasing outdoor nature education for children as well as the overall engagement of society in the appreciation of nature; 10) divesting of monetary investments and purchases to encourage positive environmental change; 11) devising and promoting new green technologies and massively adopting renewable energy sources, while phasing out subsidies to energy production through fossil fuels; 12) revising our economy to reduce wealth inequality and ensure that prices, taxation, and incentive systems take into account the real costs which consumption patterns impose on our environment; and 1

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Intergenerational justice, water rights, and climate change 3 Everyone currently alive is in the grip of the Anthropocene, whether one chooses to know about it or not. The Earth science evidence is overwhelming: small islands and peoples succumb to fluctuations in the rising sea levels, glaciers melt, desertification advances, forest cover is reduced to a bare minimum, so-called natural disasters and catastrophes regularly occur with predictable human and social adverse impact and distress, and potable water is expected to diminish substantially by 2030. The Anthropocene may soon be recognized by geologists and Earth scientists as a ‘human age’ but the scale of anthropogenic harm is already clear to scientists and many new social movements. The extent of such harms is fully recognized in the 2015 UN Paris Agreement, and the 2030 Agenda for achieving the sustainable development goals. It is further recognized that the discourse of climate change goes beyond the state and must address markets and people, which is yet to occur, through a global agenda for what is termed corporate social responsibility and for a climate change education. The Paris Agreement2 and Agenda 20303 both emphasize the importance of education, which probably merges with the human rights education agendum declared by the UN. Of course, the agendum is vast, and the resultant dilemmas are intimidating. The first dilemma consists in horror versus nostalgia. The question is whether to regard the advent of the Anthropocene as an apocalypse or a great opportunity for concerted action. The ecomodernist agenda, for example, celebrates the theology of a ‘good Anthropocene’.4 On the other hand, there is a view that there is no ‘bouncing back’ back to an earlier era: the Earth system is now operating in a different mode and nothing we can do now, even ending the burning of fossil fuels in short order, can get it to ‘bounce back’ to the Holocene. It will never look like the Holocene again, so arguments based on Holocene conditions are simply misleading. Whatever its validity at a local level, the ecomoderns’ ecosystem thinking has been superseded by Earth system thinking and applying it to the Anthropocene is akin to making Newtonian arguments about a quantum world.5

The second dilemma is perhaps best referred to as the gradations problem. Should we make some fine divisions between what has been called ‘dangerous climate change’ and others that are medium and long term? Does anthropogenic global warming lend

13) estimating a scientifically defensible, sustainable human population size for the long term while rallying nations and leaders to support that vital goal. Accessed at http://scientistswarning.forestry.oregonstate.edu/. 2 Paris Agreement, Paris, 12 December 2015, in Report of the Conference of the Parties on its Twenty-First Session, UN Doc FCCC/CP/2015/10/Add.1, Preamble, arts 11.2, 12. 3 Sustainable Development Goals and Targets, in UN General Assembly Resolution 70/1, Transforming our World: The 2030 Agenda for Sustainable Development, UN Doc. A/RES/70/1 (2015), goal 13.3. 4 See, John Asafu-Adjaye and others, ‘An Ecomodernist Manifesto’, accessed at www. ecomodernism.org/manifesto. 5 Clive Hamilton, ‘The Theodicy of the “Good Anthropocene”’ (2015) 7 Environmental Humanities 233.

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4 Research handbook on law, environment and the global South itself to such classifications for action or must these be seen holistically as requiring urgent social action on all fronts? Third is the dilemma of empowering actions by states and civil society. Is reform of state rationality that emancipates it from fossil fuel capitalism required, or recognition of the voice of the demos through peaceful insurrection against anthropogenic harms and a shift to alternative lifestyles that seek to avoid such harms? In other words, is there a social life beyond the state that should be captured? Or should prescient global social change action always emanate from state rationality reform? Fourth, of course, is the reform of human rationality itself: how is one to achieve a just society, or produce and reproduce fair and just social cooperation between co-nationals and non-nationals within and across the globe? Is it possible to achieve a just society that aims to preserve the mutually reinforcing relationship between all species and protects biodiversity leading to planetary loyalty through the multilevel processes of global governance? Or is this to be attained primarily through the constitution and law of domestic states through the social action of global to local communities? In short, how is an Earth jurisprudence to be conceived? Fifth (without being exhaustive), is the issue of reframing law, jurisprudence, and demosprudence:6 Are these simply going to perform the task of sculpting new hegemonies or somehow (even in the now proclaimed ‘endtimes’ of human rights7) create instruments to facilitate a new resilience through climate change global social action?

A. ACCESS TO WATER AND WATER-BASED RESOURCES The advent of the Anthropocene may be said to have diverted the attention of theories, practices, and movements of global social change from the global to local, access and use of water present distinctive profiles of diversity in local settings which deserve equal attention. Overall, the global, supra-national, regional, national, sub-regional, and the local accentuate the need to learn more about the ‘epistemologies’ of water, or the complex and contradictory relations between water, knowledge, power, law, and justice.8 In addition, the growth of ‘multiple’ (and, one may add, ‘multiplex’) demands for ‘global’ water resources ‘is expected to increase in the future’ and the historical focus on ‘increasing supply of water to different economic sectors’ will simply not do in the Anthropocene ‘without proper consideration for the role of water in sustaining the services of terrestrial and aquatic ecosystems’. Sustainability considerations have to incorporate ‘both short term direct use and longer-term sustainability of these services’ and ‘place demand-related studies at the forefront of water management plans, through

6 Upendra Baxi, ‘Demosprudence and Socially Responsible/Response-able Criticism: The NJAC Decision and Beyond’ (2016) 9(3-4) NUJS L Rev153. 7 Stephen Hopgood, The Endtimes of Human Rights (Cornell University Press 2013). 8 See Ravi Baghel and others (eds), Water, Knowledge, and the Environment in Asia: Epistemologies, Practices, and Locales (Routledge 2017).

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Intergenerational justice, water rights, and climate change 5 an emphasis on efficient management of global water resources’.9 Furthermore, there is the concern about the human right to water, which presents multiple anxieties.10

B. INTERGENERATIONAL JUSTICE Intergenerational justice has a varied genealogy. The question to consider is whether and to what extent its study is relevant to what I have called climate change justice theory,11 but I now name Anthropocene justice theory. This, in turn, raises the further question as to how far, if at all, is previous theorizing about justice critically relevant to Anthropocene justice theory. In contemporary theories of justice, intergenerational justice did not exist as such until the advent of postcolonial constitutionalism (to which India in the 1950s made an early and germinal contribution). The questions before the Constituent Assembly of India entailed consideration of the conception of time itself, something to which it accorded insufficient attention. However, at least in terms of duration there was some discussion as to how long India should continue with the constitutional innovation of reservations in legislatures (renewed every decade since independence by constitutional amendments). There was a similar, still ongoing, discussion about reservation/ dereservation in education and employment in state institutions and facilities. But these discussions did not adequately theorize intergenerational justice, partly due to which women’s reservation bills are still languishing in parliament. Access to justice emerged

9 Elizabeth Curmi and others, ‘Balancing the Needs of All Services Provided by Global Water Resources’ in Anik Bhaduri and others (eds), The Global Water System in the Anthropocene (Springer International 2014) 15. See also, HHG Savenije and others, ‘Evolving Water Science in the Anthropocene’ (2014) 18 Hydrol Earth Syst Sci 319; UN, Managing Water under Uncertainty and Risk: The United Nations World Water Development Report 4 (UNESCO 2012); Martin Falkenmark and Johan Rockström, Balancing Water for Humans and Nature: The New Approach in Ecohydrology (Earthscan 2004). 10 Upendra Baxi, ‘Marginal Remarks Regarding Water Policy Regimes; Governance Rights Justice and Development: An Epilogue’ in Philippe Cullet and others (eds), Water Governance in Motion: Towards Socially and Environmentally Sustainable Water Laws (Cambridge University Press 2010) 510; Ramaswamy R Iyer, Towards Water Wisdom: Limits, Justice, Harmony (Sage 2007); Upendra Baxi, ‘The Human Right to Water: Policies and Rights’ in Ramaswamy R Iyer (ed), Water and the Laws in India (Sage 2009) 149. 11 Upendra Baxi, ‘Towards a Climate Change Justice Theory?’ (2016) 7(1) Journal of Human Rights and the Environment 7. Burns Weston has summated the principal difficulties and objections to the very idea of intergenerational justice: see, Burns H Weston and David Bollier, Green Governance, Ecological Survival, Human Rights, and the Law of the Commons (Cambridge University Press 2012) ch 2; see also, Alan Boyle ‘Human Rights and the Environment: Where Next?’ (2012) 23(3) European Journal of International Law 613.

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6 Research handbook on law, environment and the global South as a constitutional value12 but the administration of justice in India continues to handle disputes filed in previous generations in this generation!13 In contrast, affirmative action in the United States has been a subject of much theorizing in relation to justice. Most notable is, of course, the justice theory of John Rawls, who in his insinuation of the ‘difference principle’ asserted that the problem of justice is not merely the realm of liberty, equality, and fairness but goes beyond to justification of inequality in distribution. As we recall, Rawls insisted that the distribution of inequality is unjust if it does not contribute to the expectations of the worst-off in the society.14 The conception of intergenerational justice stands in principle referred to three generations.15 The conception emerged differently in international law. One set of stirrings were signified by Ambassador Pardo’s stunning invocation of the common heritage of mankind. The common heritage of mankind has several promises and it served well in the early emergence of UNCLOS16 (and has served well in judicial decisions and arbitral awards pertaining to freedom of the seas).17 The common heritage of mankind has also been progressively developed by the International Law Commission.18 12 Upendra Baxi, ‘Spheres of Access to Justice, and of Territoriality: The Many Splendored Contributions of Ms. Sailabala Pujari’ (Public lecture delivered at National Law School University Odisha, Cuttack, June 2016). 13 See, Sejal Worah and others, India’s Forests and the Judiciary: The Godavarman Story (Enviro Legal Defence Firm and World Wildlife Fund for Nature, Printworks 2009); Ayesha Dias, ‘Judicial Activism in the Development and Enforcement of Environmental Law: Some Comparative Insights from the Indian Experience’ (1994) 6(2) Journal of Environmental Law 243; Geetanjoy Sahu, Environmental Jurisprudence and the Supreme Court: Litigation, Interpretation and Implementation (Orient BlackSwan 2014); Puja Sondhi, ‘Tribal Rights in Scheduled Areas: The Samatha Case Revisited’ (2002) 2(1) Indian Journal of Environmental Law 92. 14 John Rawls, A Theory of Justice (Harvard University Press 1971); John Rawls, Political Liberalism (Columbia University Press 1973); John Rawls, Law of Peoples (Harvard University Press 1999). Also see, Huw Lloyd Williams, On Rawls, Development, and Global Justice: The Freedom of Peoples (Palgrave Macmillan 2011). 15 Melissa S Williams, ‘Justice toward Groups: Political Not Juridical’ (1995) 23(1) Political Theory 67. 16 RP Anand, Legal Regime of the Sea-Bed and the Developing Countries (Thomson Press 1975); RP Anand, Origin and Development of the Law of the Sea: History of International Law Revisited (Martinus Nijhoff 1982). 17 Bimal N Patel, Law of the Sea (Eastern Book 2015). 18 But see, Scott J Shackelford, ‘The Tragedy of the Common Heritage of Mankind’ (2009) 28 Stanford Environmental Law Journal 109: The working elements of this concept are readily listed even though there is no universal and binding definition of what constitutes the common heritage of mankind (CHM) principle. The CHM principle wavers between the notions of res nullius and res communis. But such a definition would at least include five elements. First, there can be no private or public appropriation; no one legally owns common heritage spaces … Second, representatives from all nations must manage resources since a commons area is considered to belong to everyone. Therefore, governments are relegated to the role of representing their people. As popular management is practically unfeasible, a special agency to coordinate shared management must administer commons spaces in the name of all mankind … Third, all nations must actively share with each other the benefits acquired from exploitation of the resources from the commons heritage region. Private entities seeking profits would have to

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Intergenerational justice, water rights, and climate change 7 The second sustained impetus begins with, and has been developed since, the Brundtland report. Its paradigm of sustainability – as compared to sustainable development, which is after all a policy tool – still exerts a great deal of influence, especially in various aspects of development as growth. The interesting question is whether the concept of intergenerational justice emerged with the conceptions of ‘sustainability’. It appears at first sight that the concept was initially intra-generational but had the potential to extend to three generations. In this sense, intergenerational justice presented itself as akin to affirmative action discourse. A third site arose briefly in the discussion of ethical and moral aspects of population planning. The right to life movement concerned the ethical status of embryonic forms of life and theories of ‘self’ also made an appearance. The implication of the right to life movement (which was partly religious in origins and development) lay in the question whether anyone was entitled to limit the right of membership (the right to be born) or to determine the number of the species. A fourth site stands furnished in the question: where one can draw notions or images of intergenerational justice is the area of erga omnes and jus cogens doctrines in international law, as partly codified in the Vienna Convention on the Law of Treaties? These notions have also impacted the notions of ‘core’ human rights. Allied to this development, international humanitarian law has developed some absolute prohibitions under the banners of the Grotian temperamenta belli, which are even applicable and extend to modern warfare. These are very rich discourses in their own contexts. When extended to Anthropocene justice theory many questions arise: 1. 2. 3.

Does one study the evolution and application of these principles and doctrine with a view to adopt these to Anthropocene justice theory? Does one do so selectively? or Discard them altogether, entailing novel approaches? What may be the costs to knowing in each case? Clearly, Anthropocene justice theory must concern itself much beyond three generations; indeed (as I have said elsewhere) it engages the problem of infinite generations of species, including the human. The ethical problems (referred to above) stand much larger than the right to life movements and population planning. But, in a word, the problem of Anthropocene justice theory is that of interspecies solidarity, resisting all forms of anthropomorphism.19

perform a service that benefited all of mankind. Equitable distribution is intrinsic to the principle, but the application is ambiguous, necessitating a balance between economic benefitsharing and environmental protection. Fourth, there can be no weaponry or military installations established in commons areas. Armed conflict is unlawful in the commons since every nation has a stake in maintaining the peace. Fifth, the commons should be preserved for the benefit of future generations, and to avoid a “tragedy of the commons” scenario’. This has now been reconceptualized as ‘common concern of humanity; see, Dinah Shelton, ‘Common Concern of Humanity’ (2009) 39(2) Environmental Law and Policy 83. 19 Anna Grear, ‘Deconstructing Anthropos: A Critical Legal Reflection on “Anthropocentric”: Law and Anthropocene “Humanity”’ (2015) Law and Critique 1.

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8 Research handbook on law, environment and the global South

C. INTERNATIONAL ENVIRONMENTAL LAW AND ANTHROPOCENE JUSTICE THEORY The second question I wish to consider is the interpretation accorded to intergenerational justice in the evolving international environmental law regimes. International environmental law has varied justice approaches. Clearly, unjustified and unjustifiable inequality in access to the human rights to life and liberty count as unjust: environmental racism, the most extreme forms of which are represented by various apartheids, is now considered unacceptable. The same applies to ecological vulnerability as a form of social discrimination against the socially vulnerable – the condition of human rightlessness imposed by persistent denials of the rights to food, water, clean air, shelter and housing, and health. Theoretically, as John Rawls identified in his difference principle, the issue is not of inequality per se but that of justified inequalities from the standpoint of the worst-off and their expectations of justice from the social order. But as international environmental law approaches have taught us, more than conventional notions of distributive justice are at stake here: one needs to add to the notion of justice that of fair and equal participation by the impoverished and indigenous peoples and concepts of fair procedural justice. ‘Geographies of recognition and participation’ remain important for further development. Some theorists of environmental justice have sought to relate justice to ‘sustainable development’ – whether the last phrase is an oxymoron (or Baxi-moron) remains to be decided – but I have always maintained that to achieve ‘sustainable development’ one must dare to articulate unsustainable thought! There is today a shift in emphasis towards discussion about ‘just sustainability’ in a post-development era. Without exploring this further, it suffices to say that sustainability is more a matter of polices of governance rather than an agendum of justice. The central notion is that which pertains to development, and development (howsoever we choose to describe its processes and programmes) always signifies a degree of destruction: the motto of developers everywhere is ‘No development without destruction’ and this entails the idea not merely that some degree of development is inevitable but also that it is just. If so, and alternately put in terms of ethical meta-theory, some ‘moral loss’ is always entailed when we speak about the secular theologies of ‘development’, ‘free markets’, or ‘post-development’. As such, the major question is then whether ‘moral loss’ is always just, a question that always pertains to how much cost would/should the developees afford to pay and for how long? Do measures of rehabilitation and resettlement ever make up for the loss of worlds? Is moral loss always to be borne as the cost of development by the communities of the worst-off in all societies?20

20 The Brundtland Commission Report pioneered this conception of sustainable development well. Combining sustainability with development is a hard task, even when international environmental justice is confined to a single generation. The Brundtland Report extended the notion to the entire economy and society; its notion of development is that which ‘meets the needs of the present without compromising the ability of future generations to meet their own

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Intergenerational justice, water rights, and climate change 9

D. HISTORICAL INJUSTICES The third area of questioning relates to the issue of relation between historical injustices and intergenerational justice. Janna Thompson has shown that historical injustice essentially amounts to ‘taking responsibility for the past’.21 It assumes the function of material rehabilitation or a sincere act of moral apology, or both. Reparations are now an integral aspect of state practice in international law; positions vary, however, under the domestic law. Apology and acts of amnesty follow the findings of the truth commissions. Is the principle of common but differentiated responsibility and respective capabilities (CBDR-RC) a principle of Anthropocene justice?22 If it is, what kinds of histories does it encompass? Its normative pedigree surely makes it a principle of equity. In emerging climate change law and jurisprudence, it was negotiations for the CBDR-RC that first produced the term ‘common concern of humankind’ – a term of art for a new common sense of shared responsibilities for global environmental issues.23 Principle 7 in the 1992 Rio Declaration states: ‘In view of the different contributions to global

needs’: United Nations, Our Common Future: World Commission on Environment and Development (1987). For critical perspectives, see Dinah Shelton, ‘Legitimate and Necessary: Adjudicating Human Rights Violations Related to Activities Causing Environmental Harm or Risk’ (2015) 6(2) Journal of Human Rights and the Environment 139; Andreas PhilippopoulosMihalopoulos, Absent Environments: Theorising Environmental Law and the City (RoutledgeCavendish 2007). But see, for a celebrationist perspective, V Meg, Sustainable Development, Energy, and the City: A Civilisation of Visions and Actions (Springer Science+Business Media 2005). See also, David Schlosberg, ‘Reconceiving Environmental Justice: Global Movements and Political Theories’ (2004) 13(5) Environmental Politics 517; Nancy C Carre, ‘Environmental Justice and Hydraulic Fracturing: The Ascendancy of Grassroots Populism in Policy Determination’ (2012) 4(1) Journal of Social Change 1; Dale Jamieson, ‘Duties to the Distant: Aid, Assistance, and Intervention in the Developing World’ (2005) 9 The Journal of Ethics 151. See as to the realities of war/conflict displaced people and what happens in the process to sustainable development, Helen Young and Lisa Goldman (eds), Livelihoods, Natural Resources, and Post-Conflict Peace Building (Routledge 2015). 21 Janna Thompson, ‘Injustice and the Removal of Aboriginal Children’ (2000) 2 Australian Journal of Professional and Applied Ethics 2. See also, Janna Thompson, ‘Historical Injustice and Reparation: Justifying Claims of Descendants’ (2001) 112(1) Ethics 114; Janna Thompson, Taking Responsibility for the Past (Polity 2003); Janna Thompson, ‘Apology, Justice and Respect: A Critical Defense of Political Apology’ in Mark Gibney and others (eds), The Age of Apology: Facing Up to the Past (University of Philadelphia Press 2008) 31; Janna Thompson, Intergenerational Justice: Rights and Responsibilities in an Intergenerational Polity (Routledge 2009); Mathias Thaler, ‘Just Pretending: Political Apologies for Historical Injustice and Vice’s Tribute to Virtue’ (2012) 15(3) Critical Review of International Social and Political Philosophy 259. 22 The addition of respective capabilities is adopted in the Paris Agreement. 23 Chelsea Bowling and others, ‘The Common Concern of Humankind: A Potential Framework for a New International Legally Binding Instrument on the Conservation and Sustainable Use of Marine Biological Diversity in the High Seas’ (2016) accessed at http://docplayer.net/ 48698444-Chelsea-bowling-1-elizabeth-pierson-1-stephanie-ratte-2-executive-summary.html.

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10 Research handbook on law, environment and the global South environmental degradation, States have common but differentiated responsibilities’.24 Developed countries acknowledged ‘the responsibility that they bear in the international pursuit of sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command’. Article 4 of the United Nations Framework Convention on Climate Change (UNFCCC) enjoins state parties to undertake a range of commitments while taking into consideration ‘their common but differentiated responsibilities and their specific national and regional development priorities, objectives and circumstances’. The preamble to the Convention notes ‘that the largest share of historical and current global emissions of greenhouse gases has originated in developed countries, that per capita emissions in developing countries are still relatively low and that the share of global emissions originating in developing countries will grow to meet their social and development needs’.25 A less specific language concerning causation exists in the UNFCCC; while urging that all parties should act to protect the climate system, it enacted the CBDR-RC principle ‘on the basis of equality and in accordance with their common but differentiated responsibilities and respective capabilities’.26 What the italicized phrase here means, and may in future signify, remains open to fierce contention. Some would say that the Paris Agreement marks an advance over the Kyoto Protocol. A main reason for this view is the abolition of differences between global South and North through the abolition of Annex 1 emissions obligations for developed and transitional countries in the Protocol and the elevation of climate change to a common concern of humankind in the preamble to the Agreement. Others would say that it is not just to equate historically the two and the saviour responsibility must lie heavily on Western nations that spread industrialization following the Industrial Revolutions and promoted the ‘economy of speed’ in a globalized world. CBDR-RC, subject to a strong or weak version of historical causation, is certainly now an aspect of climate change justice. While underscoring the common responsibility of all for adaptation and mitigation, it takes into account the ‘respective capacities’ of countries at different stages of development.

E. THE HARM PRINCIPLE The fourth arena is the harm principle which is proposed as an extension of existing international environmental law principles as a principle of a theory of Anthropocene 24 UNGA, ‘Report of the United Nations Conference on Environment and Development (The Rio Declaration on Environment and Development)’, A/CONF.151/26 (Vol. I) (12 August 1992). 25 United Nations Framework Convention on Climate Change, New York, 9 May 1992; cf UN Committee on Economic, Social and Cultural Rights, General Comment No 15: The Right to Water (Articles 11 and 12 of the International Covenant on Economic, Social and Cultural Rights), UN Doc No E/C12/2002/11 (2002). 26 Emphasis added. See generally, Lavanya Rajamani, ‘The Increasing Currency and Relevance of Rights-Based Perspectives in the International Negotiations on Climate Change’ (2010) 22(3) Journal of Environmental Law 391; see also, Lavanya Rajamani, Differential Treatment in International Environmental Law (Oxford University Press 2006).

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Intergenerational justice, water rights, and climate change 11 justice. The harm principle is articulated in the Roman law maxim primum non nocere (above all, do no harm), and similar precepts are found in non-European cultures as comparative explorations in bioethics and medical ethics now reveal. The harm principle has been urged as an intersubjective but normatively shared ground for postulating certain duties or obligations of global climate justice. These grounds must rest on a new ethics that insists on a harm avoidance principle. In Peter Lawrence’s words, it prescribes that the ‘current generation, particularly those in positions of power, have an ethical obligation to refrain from action which has a high probability of causing serious harm to the basic interests and core human rights of (1) the current generation and (2) the future generations’.27 Calling this a ‘harm avoidance principle’ – indeed, a long ethical and social theory lineage in European as well as non-European thought and theory – Lawrence draws our attention to the fact that a harm avoidance principle has the merit of consistency with the ‘polluter pays’ principle and the precautionary principle.28 This principle also seems workable enough to give urgency and otherwise inform ongoing climate negotiations in the UNFCCC. The need for a binding climate change treaty can no longer be denied. What is most crucial, in the enunciation offered by Lawrence, is avoidance of harm to ‘core human rights’ and is eminently maintainable that the right to access to water is one such human right. Climatic harms extend to many future persons and generations. Stephen Gardiner demonstrates, first, that ‘climate change is not a static phenomenon’ and in ‘failing to act appropriately, the current generation does not simply pass an existing problem along to future people, rather it adds to it, making the problem worse’. The ‘costs of coping with climate change’ increase because failing to act now increases the magnitude of future climate change and climatic harms, and ‘increases mitigation costs: failing to act now makes it more difficult to change because it allows additional investment in fossil fuel-based infrastructure in developed and especially less developed countries’. Social inaction and indifference ‘raises transition costs, making future change harder than change now’. Finally, ‘and perhaps most importantly, the current generation does not add to the problem in a linear way. Rather, it rapidly accelerates the problem, since global emissions are increasing at a substantial rate. The total carbon dioxide emissions have more than quadrupled since 1950 …’. In other words, climatic harms are locked in due to historically emitted greenhouse gases.29 Gardiner seems to draw a distinction between human rights-oriented/based climate change justice 27 Peter Lawrence, Justice for the Future Generations: Climate Change and International Law (Edward Elgar Publishing 2014) 33. 28 Stephen M Gardiner, ‘A Perfect Moral Storm: Climate Change, Intergenerational Ethics and the Problem of Moral Corruption’ (2006) 15 Environmental Values 397, 398. But see, Dale Jamieson, ‘Jack, Jill, and Jane in a Perfect Moral Storm’ (2013) 3(1) Philosophy and Public Issues (New Series) 37, 38: Jamieson, I think rightly, maintains that ‘we do not have adequate norms and values that motivate us to address climate change. This is a profound ethical failure’ – or to use another of Gardiner’s descriptions, a ‘tragedy’ – but ‘it is not the same kind of failure or tragedy as failing to live up to one’s principles. In my opinion, the really profound moral challenge of climate change consists in formulating and implementing new moral norms and concepts that are adequate to the problems we face in this unprecedented period in human history’. 29 See Baxi (n 11).

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12 Research handbook on law, environment and the global South approaches and ‘environment/climate’-based rights concerns. Although he is not hostile to ‘deep ecology approaches’, he is moved to endorse ‘practical pluralism’ which encourages building on ‘human centered ethical and justice theories’, which are ‘less controversial’ and rely on ‘human rights to life, health, and subsistence, which are adequate in generating ethical obligations towards future generations’. Tremmel explicitly advocates the view that ‘the idea of justice is not suitable for this cause, but that supererogatory duties demand us to compensate the South for the North’s excessive use of atmospheric resources before 1990’, and he goes on to add that: Morality is not exhausted merely in complying with mandates of justice. The scope of morality also encompasses good-naturedness, benevolence, sympathy, compassion, altruism, generosity, and other such qualities. But of course, there is no moral obligation to these supererogatory duties, whereas it would be immoral not to fulfil obligations of justice.30

If so, more is necessary by way of thought and theorizing than the idea of Anthropocene justice.

CONCLUSION If the obligations of justice and global social change policy, theory, and movement are to extend to all peoples, communities, states, and non-state actors, a considerable renovation of justice theories and thought is required. We need, I reiterate, to more fully conceptualize and narrate intergenerational justice and Anthropocene justice and to devise approaches to answer some tough problems as follows: 1.

The Problem of Imagination: How far may we imagine new lifeforms and lifeworlds in the Anthropocene? (Is it too soon? We already hear the talk of a post-Anthropocene!)31 The Problem of New and Unforeseen Technologies: Are we free to imagine continuities with existing technologies or will the future be discontinuous and replete with new ones, including ethical/moral technologies? The Problem of Owing: Is it possible today to distinguish between obligations of justice that are owed to co-nationals as compared with obligations owed to all citizens, species, and objects of/in Nature? The Problem of Original Position: If justice were to be conceived mainly in terms of procedural justice, how can procedures be made relevant to future generations which cannot be at the table?

2.

3.

4.

30 Joerg Chet Tremmel, ‘Climate Change and Political Philosophy: Who Owes What to Whom’ (2013) 22(6) Environmental Values 725, 745. 31 Andrew Glikson and Benjamin Yoram, The Plutocene: Blueprints for a Post-Anthropocene Greenhouse Earth (Springer International Publishing 2017); Benjamin Bratton, ‘Some Trace Effects of the Post-Anthropocene: On Accelerationist Geopolitical Aesthetics’ (2013) e-flux Journal 46.

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Intergenerational justice, water rights, and climate change 13 5.

The Problem of Rights: Will the basic interests and core rights that the future people have, or ought to have, be almost the same as now, or at least similar? The Problem of Loyalty: In which ways do we owe (and, if owed, how do we foster?) loyalty to the Planet as distinct from the World, and to other species? The Problem of Righteousness: Is Anthropocene justice best brought about by being reverential to the anthropomorphic or by embracing all-species-relevant standards and norms of justice? What are the geographies of climate injustice? Are they always geographies of rightlessness? Or, what have been recently termed as ‘power geometries’?32 The Problem of Ethics of Rights: Is any theoretical approach to Anthropocene justice fated to remain ethically overdemanding?33

6. 7.

8.

32 Susannah Fisher, ‘The Emerging Geographies of Climate Justice’ (2015) 181 The Geographical Journal 73; Emma S Norman and Karen Bakker, ‘Transgressing Scales: Water Governance across the Canada-US Borderland’ (2009) 99(1) Annals of the Association of American Geographers 99; Diana Suhardiman and Mark Giordano, ‘Legal Plurality in Mekong Hydropower: Its Emergence and Policy Implications’ in Anik Bhaduri and others (eds) (n 9) 355; Pedi Obani and Joyeeta Gupta, ‘The Human Right to Water and Sanitation: Reflections on Making the System Effective’ in Anik Bhaduri and others (eds) (n 9) 385. For further development of the notion of geographies of injustice and rightlessness, see Upendra Baxi, ‘Some Newly Emergent Geographies of Injustice: Boundaries and Borders in International Law’ (2016) 23(1) Indiana Journal of Global Studies 15. 33 Torbjörn Tännsjö, From Reasons to Norms: On the Basic Questions in Ethics (Springer 2010); Thomas Risse and others (eds), The Power of Human Rights: International Norms and Domestic Change (Cambridge University Press 1999). Upendra Baxi, ‘Transgressions, Demosprudence, and Justice’ in Leila Choukroune and Parul Bhandari (eds), Exploring Indian Modernities: Ideas and Practices (Springer 2018) 21.

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2. Justice, development and sustainability in the Anthropocene Sam Adelman

INTRODUCTION In 1987, the World Commission on Environment and Development (WCED) described a world beset by multiple crises: ‘an environmental crisis, a development crisis, an energy crisis. They are all one’.1 Little has changed during the last 30 years; indeed, if anything, anthropogenic climate change, biodiversity loss and ecosystem degradation have intensified as the harms of the Anthropocene caused by the rupture to the Earth system manifest themselves.2 Fossil fuelled production, rising consumption and growth fetishism prevail almost everywhere, all of them clearly unsustainable but a solution is promised in the form of the Sustainable Development Goals (SDGs), adopted by the UN General Assembly in September 2015, three months before the Paris Agreement.3 The idea of development has been controversial since it was ‘discovered’ by the West after the Second World War and turned into a neo-colonial project of modernisation and Westernisation designed to incorporate what was then called the Third World into the global political-economy on unfavourable terms.4 The Soviet model of centralised, 1 World Commission on Environment and Development, Our Common Future (OUP 1987) 4. 2 Space considerations preclude a discussion of the debates about the name of the current geological epoch, its starting point and which parts of humanity are primarily responsible. I use Anthropocene because of the purchase the term has although I believe there is a good case to be made in favour of Capitalocene, which is preferred by Jason Moore amongst others: Jason W Moore, Capitalism in the Web of Life: Ecology and the Accumulation of Capital (Verso 2015). More generally, see Donna Haraway, ‘Anthropocene, Capitalocene, Plantationocene, Chthulucene: Making Kin’ (2015) 6(1) Environmental Humanities 159; Clive Hamilton and others (eds), The Anthropocene and the Global Environmental Crisis: Rethinking Modernity in a New Epoch (Routledge 2015); and Ian Angus, ‘When Did the Anthropocene Begin … and Why Does It Matter’? (2015) 67(4) Monthly Review 1. See also Clive Hamilton, ‘The Anthropocene as Rupture’ (2016) 3(2) The Anthropocene Review 93. 3 Sustainable Development Goals and Targets, in UN General Assembly Resolution 70/1, Transforming our World: The 2030 Agenda for Sustainable Development, UN Doc A/RES/70/1 (2015); Paris Agreement, Paris, 12 December 2015, in Report of the Conference of the Parties on its Twenty-First Session, UN Doc FCCC/CP/2015/10/Add.1. 4 Arturo Escobar, Encountering Development: The Making and Unmaking of the Third World (Princeton University Press 2011). In Escobar’s view, development characterised by endless growth, industrialisation, extractivism, rural to urban migration, scientific agriculture, and foreign aid turns into the ideology of developmentalism that provides the pretext for development to be done to rather than by people in the global South to save them from mass poverty, backwardness and other ‘absences’.

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Justice, development and sustainability in the Anthropocene 15 state-controlled industrialisation, which expired with the fall of the Berlin Wall, was equally problematic. The core problem in both approaches was that development was conceived primarily as a process of endless growth, whose limits provided the backdrop to the United Nations Conference on the Human Environment in Stockholm in 1972. Growth is the driving force behind capitalist accumulation, as Marx demonstrated, and became fetishized in the Great Acceleration in the middle of the twentieth century.5 In James Hansen’s words, we are in the midst of a planetary emergency because ‘Planet Earth, creation, the world in which civilization developed, the world with climate patterns that we know and stable shorelines, is in imminent peril’.6 The planetary crisis is exacerbated by neoliberal globalisation, a zombie form of economics itself in crisis but which nonetheless underpins the SDGs.7 The first decades of the twenty-first century are thus marked by intersecting and mutually reinforcing crises that produce and perpetuate exploitation, oppression, injustices and human rights violations. This chapter examines the crisis of the Anthropocene and the ways in which it intersects models of economic development that are inequitable and unsustainable. The rupture to the Earth system, which encompasses widespread environmental degradation, climate change, biodiversity loss, and the destruction of ecosystems is a crisis of unsustainability. As contemporary capitalist techno-industrialism breaches planetary boundaries, it undermines the material conditions for all forms of development and the subsistence needs and livelihoods of the poor such as arable land, fresh water and clean air. This intensifies food, water and energy insecurity, and the vicious cycle of unsustainable development and impoverishment prevalent throughout much of the global South. Neoliberal globalisation also undermines the conditions and possibilities of justice.8 The ostensible solution to these multiple crises is sustainable development, variously understood as a goal, a process, a norm or a principle, and the elixir that makes it possible to achieve endless growth on a finite planet while simultaneously protecting the environment and promoting social justice. It is an oxymoronic concept that has extraordinary purchase despite, or rather because it can be construed in a myriad ways, very few of which promote genuine ecological sustainability. The first section of the chapter analyses the contradictions of models of development that prioritise economic growth over environmental sustainability. This is followed by a discussion of the gap between sustainable development and ecological sustainability in the SDGs. The third section analyses unsustainable development and impoverishment from the perspective of environmental and climate justice, which cannot be achieved without seeking to eradicate impoverishment – the central aim of theories of global justice, and none of these is possible without distributive justice or gender justice and Clive Hamilton, Growth Fetish (Pluto Press 2004). James Hansen, Storms of My Grandchildren: The Truth about the Coming Climate Catastrophe and Our Last Chance to Save Humanity (Bloomsbury 2009) ix. 7 Richard Lachmann, ‘Neoliberalism, the Origins of the Global Crisis, and the Future of States’ in Gregory Hooks (ed), The Sociology of Development Handbook (University of California Press 2016) 463. 8 I use neoliberalism as a shorthand. It is not homogenous and has distinctive characteristics in different countries. States that follow different development paths such as China are at the very least complicit in the continuing predominance of neoliberal globalisation, for example through support for free rather than fair and more sustainable trade. 5 6

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16 Research handbook on law, environment and the global South alternatives to development. In truth, however, these characteristically modern, Holocene approaches to justice are incommensurate with the scale and urgency of the crisis of the Anthropocene. Mainstream understandings of sustainable development are so insidious, they turn the concept itself into an injustice. The fourth section discusses alternatives that seek to transcend the failings of development as growth. The chapter reaches the bleak conclusion that the dominant, weak form of sustainable development supported by most countries is unsustainable in both senses of the word. It is a recipe favoured by ecomodernists who celebrate the opportunities of a ‘good’ Anthropocene, the hubristic techno-fetishists who advocate technologies such as geoengineering to pursue profit while fixing the planet.9

A. THE CRISIS OF DEVELOPMENT Contemporary political institutions appear incapable of solving the linked crises of neoliberal capitalism and the Anthropocene. Instead, the answer they offer in the face of the ruptures and rifts of globalisation seems to be increasingly authoritarian biopolitical security surveillance states led by the likes of Trump, Erdogˇan, Modi and Xi Jinping.10 This political legitimacy crisis is accompanied by the failure of economics and, as Amitav Ghosh argues in relation to climate change, a crisis of culture.11 The diagnosis of the global political and economic elite is that neoliberal globalisation is not failing because it is riven with contradictions but rather because it has been insufficiently implemented. Thus, for example, the answer to the crisis of sustainability in the Anthropocene is sustainable development, the intensification of the policies that brought us to this conjuncture. The advent of the neoliberal era, coinciding roughly with the end of the Cold War (and of history, in Fukuyama’s hubristic formulation12), was based upon market fundamentalism characterised by privatisation, deregulation, corruption, inequality, technocratisation, the implosion of the global economy in 2008 and, above all, unsustainability.13 John Bellamy Foster and others, The Ecological Rift: Capitalism’s War on the Earth (Monthly Review Press 2010). On a ‘good’ Anthropocene, see Clive Hamilton, Defiant Earth: The Fate of Humans in the Anthropocene (Polity Press 2017) 21–7. On geoengineering, see Sam Adelman, ‘Geoengineering: Rights, Risks and Ethics’ (2017) 8(1) Journal of Human Rights and the Environment 119. 10 Sam Adelman, ‘Rio+ 20: Sustainable Injustice in a Time of Crises’ (2013) Journal of Human Rights and the Environment 1. Michel Foucault argued that biopolitics is a new technology of power that ‘deals with the population, with the population as a political problem, as a problem that is at once scientific and political, as a biological problem and as power’s problem’. Michel Foucault, Society Must be Defended: Lectures at the Collège De France, 1975–76 (Picador 2003) 245. 11 Amitav Ghosh, The Great Derangement: Climate Change and the Unthinkable (University of Chicago Press 2016). 12 Francis Fukuyama, The End of History and the Last Man (Simon and Schuster 2006). 13 Picciotto argues that the problem has not been a lack of regulation but rather the wrong forms of regulation. Sol Picciotto, Regulating Global Corporate Capitalism (Cambridge University Press 2011). One of the starkest consequences of neoliberal globalisation has been the 9

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Justice, development and sustainability in the Anthropocene 17 Arguably underpinning these multiple crises is another, a largely hidden ontoepistemological crisis of (eco)modernity and Eurocentric rationality based upon a misguided faith in possessive individualism, progress defined primarily as endless economic growth, and technology fetishism.14 Enlightenment rationality is characterised by the Descartian dualism in which nature is radically separated from society, the Baconian insistence that nature is a collection of resources (natural capital) that exists to serve human needs, and Lockean possessive individualism, each an example of dualistic, masculine, hierarchical and exploitative Enlightenment epistemologies of mastery.15 The Anthropocene destabilises the sovereign Kantian individual and homo economicus, the omniscient, utility maximising myth at the centre of neoclassical economics. The fundamental impulse of Eurocentric rationality is universalisation in various iterations from the Declaration of the Rights of Man (sic) and the Citizen to colonialism and neoliberal globalisation-paradoxical forms of inclusionary exclusion; it often appears to be a particularity incapable of accepting it is not universal. This crisis is compounded by the marginalisation of alternative epistemologies that offer ways out of the impasse through the epistemicide that accompanied colonialism and endures in the contemporary hegemonic ideological product of Eurocentric rationality, neoliberal globalisation.16 In turn, this spawns other crises: an ontological crisis in relation to nature, and the associated axiological crisis of neoliberal globalisation that cannot distinguish price and profit from value.17 If, as Einstein argued, no problem can be solved at the same level of consciousness that created it, we cannot solve the multiple crises we face unless we change the way we think. The poor live in perpetual crisis. Millions suffer from food, water and energy insecurity. Approximately 700 million people live in extreme poverty despite the substantial decline in their numbers during the 15-year span of the Millennium Development Goals (MDGs).18 Economic growth has contributed to a reduction of malnourishment in the global South, but approximately 793 million people are still undernourished, nearly a tenth of the world’s population. According to the UN Food and Agriculture Organization (FAO), ‘The decline is more pronounced in developing regions, despite significant population growth. In recent years, progress has been expansion of inequality within and between states: Thomas Piketty, Capital in the Twenty-First Century (Belknap Press 2014). 14 The epistemological crisis is not confined to the West. China’s model of development is beset by similar economic and environmental problems. See Adelman n (9). 15 Theodor W Adorno and Max Horkheimer, Dialectic of Enlightenment (Verso 2016) and Deborah Cook, Adorno on Nature (Routledge 2014). See also Sam Adelman, ‘Epistemologies of Mastery’ in Anna Grear and Louis J Kotzé (eds), Research Handbook on Human Rights and the Environment (Edward Elgar 2015) 9. 16 On epistemicide, see Boaventura de Sousa Santos, Epistemologies of the South: Justice against Epistemicide (Paradigm Publishers 2014). 17 Chandler argues that the human in neoliberal development discourse is a degraded biopolitical organism: David Chandler, ‘Where is the Human in Human-Centred Approaches to Development? A Critique of Amartya Sen’s “Development as Freedom”’ in Sandro Mezzadra and others (eds), The Biopolitics of Development: Reading Michel Foucault in the Postcolonial Present (Springer 2013) 67. 18 World Food Programme, accessed at www.wfp.org/climate-action. These numbers would be substantially higher but for China’s dramatic growth since 1979.

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18 Research handbook on law, environment and the global South hindered by slower and less inclusive economic growth as well as political instability’.19 Ecological degradation caused by extractive, fossil fuelled industrialisation compounds the risks faced by vulnerable communities. Impoverishment increases with the loss of employment in climate-sensitive sectors such as agriculture, and threats to livelihoods from slow onset disasters such as rising sea levels and desertification and ‘natural’ disasters in the form of increasingly extreme weather. Climate change is likely to drive up the cost of food as agricultural land is lost or converted to produce biofuels or animal feed, making poor households that are net buyers of food more vulnerable to price rises.20 Inhabitants of the global South, who generally have the least historical responsibility for greenhouse gas emissions, are amongst those most likely to suffer the harms it causes.21 For the impoverished, economic hardship is exacerbated by the depredations of neoliberal globalisation, under- or maldevelopment and the Anthropocene. In the views of the international economic institutions, poverty persists because the poor are not properly incorporated into the logic and operation of markets, and the circuits of capital. The World Bank regards people living on less than $1.90 per day as being in extreme poverty and those on less than $3.10 a day as moderately impoverished.22 In many Western eyes, poverty in the global South is commonly construed as the consequence of backwardness and fecklessness rather than historical exploitation and structural inequalities in the global political-economy. Poverty rarely results from natural causes alone, and Upendra Baxi insists that the correct usage is impoverishment because this highlights the role of human agency.23 Development policies are manifestations of power rather than laws of nature, and what counts as development is increasingly determined by the form of a country’s insertion into the global political-economy and the extent to which it is forced to comply with the dictates and conditionalities of the international economic institutions, aid donors, lenders and markets. Development has functioned as a discourse and technique of liberal governance. Sustainable development differs from previous incarnations in the extent to which it combines discourses of growth and ecology through ecomodernism and green capitalism. Its proponents accept that unbridled growth has

FAO, ‘Key Messages’ in The State of Food Insecurity in the World 2015, accessed at www.fao.org/3/a-i4646e.pdf. 20 IPCC, Fifth Assessment Report of the Intergovernmental Panel on Climate Change: Working Group I Contribution to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press 2013) 20 stating that ‘[c]hanges in the global water cycle in response to the warming over the 21st century will not be uniform. The contrast in precipitation between wet and dry regions and between wet and dry seasons will increase, although there may be regional exceptions’. 21 IPCC, Climate Change 2007: Impacts, Adaptation and Vulnerability, Contribution of Working Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press 2007). 22 World Bank, Understanding Poverty, accessed at www.worldbank.org/en/topic/poverty/ overview. 23 Upendra Baxi, Law and Poverty: Critical Essays (NM Tripathi 1988) viii. 19

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Justice, development and sustainability in the Anthropocene 19 negative environmental impacts but argue that these can be addressed through appropriately reformed neoliberal capitalism. The discussion in the following section suggests that such a conviction is tendentious at best.

B. THE CRISIS OF SUSTAINABLE DEVELOPMENT In 1972, the Limits to Growth simulated the interaction between the Earth system and human activity under the economic growth paradigm and explored scenarios that would avoid overshoot and collapse. More recently, abundant evidence has been adduced that conclusively demonstrates that current models of development are rapidly breaching planetary boundaries.24 It was against the backdrop of the Limits to Growth that sustainable development was introduced in the 1972 Stockholm Declaration that emerged from the UN Conference on the Human Environment. The imperative of development was expressed in Principle 8 of the Declaration: ‘[e]conomic and social development is essential for ensuring a favourable living and working environment for man and for creating conditions on earth that is necessary for the improvement of the quality of life’.25 The declaration promoted a weak form of sustainable development that failed to acknowledge that economic development and social justice are contingent upon a safe and healthy biosphere. As Christina Voigt notes, ‘the ideal of unlimited development remained, with Article 11 of the Declaration calling on States not to take any steps to promote environmental protection without duly taking into account the effects on development policy’.26 The World Bank reflects the dominant conception of weak sustainable development: accepting that ‘[u]nmitigated climate change is incompatible with sustainable development’, it nevertheless argues that ‘[e]conomic growth is needed, but growth alone is not enough if it does not reduce poverty and increase the equality of opportunity. And failing to safeguard the environment eventually threatens economic and social achievements’.27 Sustainable development rose to prominence at the 1987 WCED. The conference accepted the Brundtland Commission’s definition of sustainable development as ‘development that meets the needs of the present without compromising the ability of future generations to meet their own needs’.28 The Brundtland definition is based upon Donella H. Meadows and others, The Limits to Growth (Universe Books 1972). Bellamy Foster and others (n 9); Johan Rockström and others, ‘Planetary Boundaries: Exploring the Safe Operating Space for Humanity’ (2009) 14(2) Ecology and Society 32. Three planetary boundaries – climate change, the nitrogen cycle and biodiversity loss – have been crossed and a further four – land use change, the phosphorus cycle, ocean acidification and freshwater use – are in danger of being breached. 25 Declaration of the United Nations Conference on the Human Environment in Report of the United Nations Conference of the Human Environment, Stockholm, 5–15 June 1972, UN Doc A/CONF.48/14/Rev.1. 26 Christina Voigt, Sustainable Development as a Principle of International Law: Resolving Conflicts between Climate Measures and WTO Law (Martinus Nijhoff 2009) 13. 27 World Bank, World Development Report 2010: Climate Change and Development (World Bank 2010) 39. 28 WCED (n 1) 8. 24

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20 Research handbook on law, environment and the global South the so-called triple bottom line, economic growth, environmental protection and social justice, the latter a concern of intragenerational justice. It also took the needs of future generations into consideration in raising concerns about intergenerational justice. The Commission’s report stated that: A world in which poverty and inequity are endemic will always be prone to ecological and other crises. Sustainable development requires meeting the basic needs of all and extending to all the opportunity to satisfy their aspirations for a better life.29

Our Common Future provided a problematic framing that promoted ecological modernisation, an approach strongly endorsed more recently in the UN Environment Programme’s (UNEP) advocacy of the green economy concept.30 Basing sustainable development on the need to meet human needs, the Brundtland Commission conceived it as intrinsically anthropocentric. The Commission acknowledged the existence of limits to growth but argued that they are not absolute and could be overcome through technology: The concept of sustainable development does imply limits – not absolute limits but limitations imposed by the present state of technology and social organization on environmental resources and by the ability of the biosphere to absorb the effects of human activities.31

The Commission argued that the environmental, developmental and energy crises ‘all are one. Ecology and economy are becoming ever more interwoven – locally, regionally, nationally and globally – into a seamless net of causes and effects’.32 Sustainable development gained further traction at the 1992 Earth summit in Rio de Janeiro and was reincarnated 20 years later at the Rio+20 conference in the form of green economy in the context of poverty reduction and sustainable development.33 By 2012, the contradiction between economic growth and environmental sustainability had stretched to breaking point. Sustained growth appears 16 times in The Future We Want, the declaration that emerged from the second Rio summit. As Mark Wilson argues, this means:

WCED (n 1) 43–4. Carl Death, ‘Four Discourses of the Green Economy in the Global South’ (2015) 36(12) Third World Quarterly 2207. 31 WCED (n 1) 7. 32 WCED (n 1) 4. 33 Rio Declaration on Environment and Development, 14 June 1992, UN Doc A/CONF.151/ 26/Rev. 1 (Vol. I), Annex II (1992); UN General Assembly Resolution 66/288, The Future we Want, UN Doc A/RES/66/288 (2012); Adelman (n 10). In 1980, the IUCN published a World Conservation Strategy that sought to reconcile the clash between conservation and economic growth. 29 30

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Justice, development and sustainability in the Anthropocene 21 ‘economic growth, in perpetuity’. Sustained growth is a surprisingly transparent term that removes much of the ambiguity over how leading politicians interpret sustainable development. For anyone concerned about the dimension of social justice in this new policy, it is conveniently handled by the insertion ‘sustained and inclusive growth’.34 (emphases in the original)

To advocates of green capitalism such as UNEP, the answer to environmental problems resulting from capitalism is more of the same, based upon the perverse logic that the only way of saving nature is to commodify, monetise and subject it to market forces. In this way, they argue, the contradiction at the heart of sustainable development can be reconciled in discourses of nature that are simultaneously conceived as ‘political doctrine, as economic project, as regulatory practice, or as process of governmentalisation—and also of nature—as primary commodity, as resource, as ecosystem service, or as socio-natural assemblage’.35 Castree explains the subordination of nature to neoliberal dogma as a series of environmental ‘fixes’ to the contradictions between capital and nature.36 In 1949 US president Harry Truman observed that ‘More than half the people of the world are living in conditions approaching misery. Their food is inadequate. They are victims of disease. Their economic life is primitive and stagnant. Their poverty is a handicap and a threat both to them and to more prosperous areas’.37 In 2014, these problems had not been resolved despite decades of ‘sustainable’ development. The UN Secretary-General’s synthesis report on the negotiations leading to the adoption of the SDGs stated: We are deeply aware of the hunger, vulnerability, and deprivation that still shape the daily lives of more than a billion people in the world today … the 1.2 billion people living in extreme poverty … Today, 870 million people in the world do not have enough to eat. Undernourished women give birth to underweight babies, who are less likely to live to their fifth birthday and more likely to develop chronic diseases and other limitations.38

The primary goal of the MDGs was poverty reduction; as such, environmental protection was peripheral. Since absolute poverty was less of a problem in the global North, the MDGs were targeted at developing countries. Fifteen years later, poverty reduction was still a central goal in the universal SDGs (or Global Goals) but reflect greater awareness of the crisis of sustainability in the Anthropocene. Sustainable development is emphatically not the same as ecological sustainability. It is the putative 34 Mark Wilson, ‘The Green Economy: The Dangerous Path of Nature Commoditization’ (2013) 10(1) Consilience: The Journal of Sustainable Development 2. 35 Karen Bakker, Privatising Water: Governance Failure and the World’s Urban Water Crisis (Cornell University Press 2010) 715. 36 Noel Castree, ‘Neoliberalising Nature: The Logics of Deregulation and Reregulation’ (2008) 40(1) Environment and Planning A 131. On some of the problems associated with the concept of green economy, see Wilson (n 34). 37 Harold Truman, ‘Inaugural address of President Harry S. Truman’ (20 January 1949), accessed at https://www.bartleby.com/124/pres53.html. 38 UN, The Road to Dignity by 2030: Ending Poverty, Transforming All Lives and Protecting the Planet, Synthesis Report of the Secretary-General on the Post-2015 Agenda (UN 2014) 4, 40.

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22 Research handbook on law, environment and the global South solution to both sustainability and development, has justifiably been criticised as an oxymoron.39 It fosters the illusion that sustainability is compatible with endless economic growth. Since the 1992 Earth Summit, it has been enshrined in a range of multilateral environmental agreements such as the UN Framework Convention on Climate Change and the Paris Agreement, but it is not clear whether it is a norm or principle of international environmental law or merely a policy goal. Beyerlin and Marauhn argue that it is ‘somewhere in between a legally binding international principle and mere political ideal’.40 In principle, protecting the environment and alleviating poverty are components of an integrated process in which neither takes precedence. The reality is different. There are few examples of strong sustainable development in which environmental protection is given primacy over economic growth and social justice – not because the Earth system is more important than social justice but because it is a precondition for all economic activity designed to eliminate impoverishment.41 Julian Reid argues that ecological reasoning about sustainability in sustainable development has become increasingly vulnerable to the economic reasoning of neoliberalism concerning development: While sustainable development deploys ecological reason to argue for the need to secure the life of the biosphere, neoliberalism prescribes economy as the very means of that security. Economic reason is conceived within neoliberalism as a servant of ecological reason, claiming paradoxically to secure life from economy through a promotion of the capacities of life for economy. This is the paradoxical foundation on which neoliberalism constructs its appropriation of sustainable development.42

From one perspective, green capitalism fails because it does not reduce or prevent environmental degradation and destruction. This failure is measurable in many ways from climate change to the loss of ecosystems and biodiversity. The 2016 Living Planet Report found that animal populations fell by 58 per cent between 1970 and 2012, and that the number of wild animals on Earth is likely to decrease by two-thirds by 2020.43 Alternatively, green capitalism succeeds because it achieves what it is designed to do, 39 Herman E Daly, ‘Toward Some Operational Principles of Sustainable Development’ (1990) 2(1) Ecological Economics 1; Wolfgang Sachs, ‘Sustainable Development: On the Political Anatomy of an Oxymoron’ in Wolfgang Sachs, Planet Dialectics: Explorations in Environment and Development (Zed Books 1999) 71; Michael Redclift, ‘Sustainable Development (1987–2005): An Oxymoron Comes of Age’ (2005) 13(4) Sustainable Development 212; Ulrich Brand, ‘Green Economy: The Next Oxymoron? No Lessons Learned from Failures of Implementing Sustainable Development’ (2012) 21(1) GAIA 28. See also Death (n 30). 40 Ulrich Beyerlin and Thilo Marauhn, International Environmental Law (Hart 2011) 78. 41 On weak and strong forms of sustainable development see Bill Hopwood and others, ‘Sustainable Development: Mapping Different Approaches’ (2005) 13(1) Sustainable Development 38. 42 Julian Reid, ‘Interrogating the Neoliberal Biopolitics of the Sustainable DevelopmentResilience Nexus’ in Sandro Mezzadra and others (eds), The Biopolitics of Development: Reading Michel Foucault in the Postcolonial Present (Springer 2013) 108. 43 WWF, Living Planet Report 2016, accessed at www.worldwildlife.org/pages/living-planetreport-2016.

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Justice, development and sustainability in the Anthropocene 23 namely the privatisation, commoditisation and monetisation of nature while enabling the entrepreneurs of ‘ecotastrophe’ to greenwash their activities as environmentally friendly. Writing about the environmental services curse, Kronenberg and Hubacek argue that ‘Although PES [payment for environmental services] are intended to solve environmental problems and at the same time alleviate poverty, they may actually aggravate the latter’.44 Despite such trenchant and longstanding criticisms, green capitalism and ecomodernism underpin the SDGs. 1. The Sustainable Development Goals We may agree with the assertion in ‘Transforming our world: The 2030 Agenda for Sustainable Development’ that ‘a new approach is needed’ to effectively meet the challenges and commitments in the SDGs but disagree that the agenda offers a viable prospect of transforming the world. Goal 13 states that: Sustainable development recognizes that eradicating poverty in all its forms and dimensions, combatting inequality within and among countries, preserving the planet, creating sustained, inclusive and sustainable economic growth and fostering social inclusion are linked to each other and are interdependent.45

The agenda is ambitious, containing 17 goals and 169 targets, many of which are broad and hortatory. The agenda recognises that eradicating poverty in all its forms and dimensions, including extreme poverty, is the greatest global challenge and an indispensable requirement for sustainable development. However, the word poverty appears two dozen times in a document that contains no blueprint for eradicating it, not least because it does not indicate who will provide the requisite financial resources. The SDGs postulate the possibility of a peaceful, healthy global population whose basic needs are met in a clean and healthy environment but scratching this veneer reveals their vague, often vacuous and always contradictory nature. For example, target 17.14, which aims to ‘Enhance policy coherence for sustainable development’ is almost meaningless. A neoliberal conception of development is the leitmotif in the agenda.46 The goals include ending poverty in all its forms everywhere; ending hunger and achieving food security and improved nutrition and promoting sustainable agriculture; ensuring healthy lives and promoting well-being for all at all ages; inclusive and equitable quality education and the promotion of lifelong learning opportunities for all; gender equality; affordable, reliable, sustainable and modern energy for all; and reducing inequality within and amongst countries. These goals are possible but unlikely and achieving others in the agenda is all but impossible under neoliberal globalisation and the conception of sustainable development the SDGs implicitly promote. These include achieving sustainable consumption and production patterns; promoting sustained, inclusive and sustainable economic growth with full and productive employment Jakub Kronenberg and Klaus Hubacek, ‘From Poverty Trap to Ecosystem Service Curse’ (2016) 11(6) Sustainable Science 903. 45 Sustainable Development Goals and Targets (n 3). 46 ibid. 44

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24 Research handbook on law, environment and the global South and decent work for all;47 taking urgent action to combat climate change and its impacts; conservation and sustainable use of the oceans, seas and marine resources for sustainable development; and protecting, restoring and promoting sustainable use of terrestrial ecosystems, sustainably managing forests, combating desertification, and halting and reversing land degradation and biodiversity loss. It is worthwhile examining Goal 17 in greater detail because it distils my critique of the contradiction at the heart of the agenda. Its aim is to ‘Strengthen the means of implementation and revitalize the global partnership for sustainable development’. Leaving aside the saccharine assumption of the existence of a global partnership (between states, states and transnational corporations, the rich and the poor, the global North and South?), the goal promotes a form of sustainable development that perpetuates the failings of extractive development without providing the means for achieving sustainability. Target 17.1 covers finance and calls for a strengthening of ‘domestic resource mobilization, including through international support to developing countries, to improve domestic capacity for tax and other revenue collection’.48 As in the Addis Ababa Action Agenda,49 the SDGs contain no mention of how this can be achieved in the teeth of endemic corruption in much of the global South and the facilitation by the global North of systematic tax avoidance and evasion revealed in the Panama Papers that robs developing countries of much needed income.50 Target 17.2 urges developed countries ‘to implement fully their official development assistance commitments, including the commitment by many developed countries to achieve the target of 0.7 per cent of ODA/ONI to developing countries’, a goal adopted in a 1970 UN General Assembly resolution and repeatedly ignored by most OECD countries. In 2015, the target was met only by the Netherlands, Denmark, Luxembourg, Norway, the UK and Sweden, the latter giving 1.4 per cent of its budget.51 Target 17.3 calls for the mobilisation of additional financial resources for developing countries from multiple sources but gives no indication of amounts or sources. Target 17.4 expresses a vague intention to do something about developing country debt by helping developing countries to attain ‘long-term debt sustainability through coordinated policies aimed at fostering debt financing, debt relief and debt restructuring’52 but does not address the causes of or responsibility for the debt. Target 17.6 covers access to science, technology The call for sustained and sustainable economic growth appears in paragraph 9 with no sense of irony. 48 Sustainable Development Goals and Targets (n 3). 49 UN General Assembly Resolution, Addis Ababa Action Agenda of the Third International Conference on Financing for Development (Addis Ababa Action Agenda), UN Doc A/RES/69/ 313 (27 July 2015). 50 Erik Solheim, ‘We’re Losing $240bn a Year to Tax Avoidance: Who Really Ends up Paying?’ The Guardian (10 May 2016), accessed at www.theguardian.com/global-developmentprofessionals-network/2016/may/10/were-losing-240bn-a-year-to-tax-avoidance-who-really-endsup-paying. 51 Ben Quinn, ‘UK among Six Countries to Hit 0.7% UN Aid Spending Target’ The Guardian (4 January 2017), accessed at www.theguardian.com/global-development/2017/jan/04/ uk-among-six-countries-hit-un-aid-spending-target-oecd. 52 Sustainability shoulders many burdens in Agenda 2030: debt, growth, the environment. 47

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Justice, development and sustainability in the Anthropocene 25 and innovation including through a global technology facilitation mechanism but says nothing about intellectual property rights. Target 17.10 promotes ‘a universal, rules-based, open, non-discriminatory and equitable multilateral trading system under the World Trade Organization, including through the conclusion of negotiations under its Doha Development’.53 The cognitive dissonance of this target is astonishing. Completely ignoring the imperative of fair and sustainable rather than unrestrained free trade, it is like advocating smoking as a cure for lung cancer. Target 17.12 calls for the timely (whatever this means) ‘implementation of duty-free and quota-free market access on a lasting basis for all least developed countries, consistent with World Trade Organization decisions, including by ensuring that preferential rules of origin applicable to imports from least developed countries are transparent and simple, and contribute to facilitating market access’. With the best will in the world, it stretches credulity to envisage the WTO becoming a force for ecological sustainability. Target 17.11 calls for a significant increase in the ‘exports of developing countries, in particular with a view to doubling the least developed countries’ share of global exports by 2020’, suggesting that the answer to the problem of sustainable production and consumption in Goal 12 is more non-sustainable trade; goals 12 and 17 read as if they were formulated by groups that never met.54 Target 17.15 flies in the face of the structural inequalities in the global political-economy and the conditionalities imposed by the international financial institutions on developing countries in calling for respect for ‘each country’s policy space and leadership to establish and implement policies for poverty eradication and sustainable development’. Target 17.19 calls for ‘existing initiatives to develop measurements of progress on sustainable development that complement gross domestic product’ without coming close to displacing the primacy of development as economic growth. The agenda does not display a developed sense of irony, but presumably those who formulated and adopted them rest assured that Agenda 2030 has launched the global partnership on the path to eradicating impoverishment and protecting the planet. More positively, target 17.7 calls for the ‘development, transfer, dissemination and diffusion of environmentally sound technologies to developing countries on favourable terms, including on concessional and preferential terms, as mutually agreed’. Time will tell whether this goal is achieved in conjunction with the Paris Agreement, an instrument that is legally binding but unenforceable. The fate of the Earth system is not well served by the two ‘landmark’ agreements negotiated in the last quarter of 2015. The Paris Agreement may be binding but unenforceable, whereas the SDGs may be universal but are not binding and provide no indication as to where the resources required to achieve them will originate because they do not deal with tax avoidance and evasion, inadequate levels of aid to developing countries, or the need for global carbon and development taxes. As Haydn Washington argues, to be sustainable, development cannot ignore the ecological limits of the Earth and therefore cannot prioritise endless economic growth. It cannot be about ‘more’ but must instead be about ‘enough’, which requires urgent and large-scale changes to current patterns of production and consumption. It is not Emphasis supplied. Campaigners have long called for fair trade to little avail. Goal 12. Ensure sustainable consumption and production patterns.

53 54

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26 Research handbook on law, environment and the global South possible to grow our way to sustainability because growth is the root cause of unsustainability. It follows that the commodification and monetisation of nature are intrinsically antithetical to sustainability. Weak sustainability ignores ecological reality.55 For transnational corporations, going ‘green’ is too often impelled less by ethical or environmental concerns than a competitive race to promote their brands, and enhance their profits. To be ecologically sustainable, sustainable development must jettison anthropocentric and Eurocentric modes of thinking that assume that human dominium and mastery over nature is either possible or desirable. Because a safe and healthy environment is a precondition for all economic activity and all forms of justice, this paradoxically implies that protecting the rights, needs and interests of human beings requires radical ecocentrism and biocentrism.56 Epistemologies of mastery and hubris are incompatible with environmentally sustainable development.57 Moreover, it is doubtful whether sustainable development is possible under contemporary or even reformed capitalism, but few alternatives are available. Capitalism is the main obstacle to ecological sustainability, but far from the only one. For many, the environment is a source of threat and risk rather than a source of life and livelihood and beauty. People who live in harmful and unsafe environments are relatively or absolutely disempowered, and the environmental discrimination they suffer tends to closely correlate with other forms of oppression such as caste, race, gender and ethnicity.

C. ENVIRONMENTAL RACISM, UNSUSTAINABILITY AND INJUSTICE The environmental justice movement emerged from civil rights and anti-toxic activism in the United States.58 Initially, its main focus was on the relationship between race and poverty and the spatial distribution of waste and polluting industrial sites. One of the movement’s central arguments was that environmental racism resulted from deliberately locating such sites in or adjacent to black communities. Definitions of environmental justice generally assert that all people, irrespective of their personal characteristics, are entitled to a clean, healthy and safe environment. Haydn Washington, Demystifying Sustainability: Towards Real Solutions (Earthscan 2015) 193–4. 56 Clive Hamilton argues for a new anthropocentrism on the basis that Anthropocene science indicates that we cannot overcome anthropocentrism even if we wish to do so. In his view, the ‘problem is not that humans are anthropocentric, but that we are not anthropocentric enough’. Hamilton (n 9) 42, 43. His argument is that only in this way can human beings be forced to assume proper responsibility for the anthropo-supremacism that has resulted in the Anthropocene. I take his point but have reservations as to whether any anthropocentric approach is an adequate response to the ecotastrophe of the Anthropocene/Capitalocene. 57 Adelman (n 15). 58 As Martinez-Alier points out, the concept arose independently in India and Latin America. Joan Martinez-Alier, ‘The Environmentalism of the Poor’ (2014) 54 Geoforum 239, 241. See also Rob Nixon, Slow Violence and the Environmentalism of the Poor (Harvard University Press 2011). 55

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Justice, development and sustainability in the Anthropocene 27 Walker describes the characteristics of the environmental justice movement in the United States including an emphasis on the politics of race, a focus on justice for people, an initially narrow framing of environmental boundaries that subsequently expanded to address a range of issues beyond distributive justice, and a focus on industrial activity, corporate responsibility and state racism.59 Today, there are substantial environmental justice movements in countries as diverse as Canada, India and South Africa. As Michel Foucault insisted, power provokes resistance. Joan Martinez-Alier argues that environmental racism gives rise to the environmentalism of the poor, which emerges from conflicts over resource extraction in which indigenous peoples struggle to preserve their livelihoods by confronting mining companies, the construction of hydroelectric dams, biomass extraction and land grabbing, and oil and gas exploitation.60 The environmentalism of the poor ‘relates to actions and concerns in situations where the environment is a source of livelihood, ‘reinforced by other values such as the defence of indigenous territorial rights … or the claim to the sacredness of particular elements of nature (a mountain, a forest, or even a tree)’. It ‘centres then on social justice, including claims to recognition and participation, and builds on the premise that the fights for human rights and environment are inseparable’.61 Martinez-Alier argues that: Environmental injustices are not only local, they are also global. Hence the notions of ecologically unequal trade and the ecological debt. First, the exports of raw materials and other products from relatively poor countries are sold at unsustainable rates and at prices which do not include compensation for local or global externalities. Second, rich countries make a disproportionate use of environmental space without payment, and even without recognition of other people’s entitlements to such services (particularly, the disproportionate free use of carbon dioxide sinks and reservoirs). The claim of ecological debt underpins the ‘ecological adjustment’ which the north must make. The environmentalism of the poor, popular environmentalism, livelihood ecology, liberation ecology and the movement for environmental justice (local and global), may help to move society and economy in the direction of social justice and ecological sustainability.62

Justice is not possible without a healthy planet. Schlosberg argues that ‘within the environmental justice movement, one simply cannot talk of one aspect of justice without it leading to another’.63 To overcome injustice, its causes must be identified, and these are primarily economic. For example, patriarchy and racism are not exclusively economic but are co-implicated with postcolonial capitalism generally and neoliberal globalisation in particular.64 Writing about Hurricane Katrina, Dyson Gordon Walker, Environmental Justice: Concepts, Evidence and Politics (Taylor & Francis 2011) 20ff. 60 Martinez-Alier (n 58). 61 ibid 240. 62 ibid 241. 63 David Schlosberg, Defining Environmental Justice: Theories, Movements and Nature (Oxford University Press 2007) 73. 64 Cedric Robinson, Black Marxism: The Making of the Black Radical Tradition (Chapel Hill 2000). Robinson argues that racism is as much a constitutive logic of capitalism as growth and 59

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28 Research handbook on law, environment and the global South describes ‘the colour of disaster’ as an integral aspect of ‘neoliberal neglect’.65 Environmental racism has parallels with the internal colonialism practised by apartheid South Africa.66 A similar spatiality of discrimination produces climate injustices, which are overdetermined by the injustices of colonialism that exacerbate its long-term consequences.67 The poorest and most vulnerable, having fewest resources and the lowest adaptive capacities, must deal with the climatic harms they experience for which they are least responsible. They are exhorted to be resilient but receive little support from the underdeveloped states in which they live or the ‘global partnership’. Small island developing states threatened with inundation and communities suffering from increasingly intense tropical storms and rapidly encroaching desertification are arguably victims of anthropogenically driven environmental racism.68 They are victims of colonial environmental degradation and the slow poisoning of the Earth system that results from unsustainable development-injustices against current and future generations. Exclusion and disempowerment perpetuate impoverishment, violate human rights and lead to environmental racism and climate injustice.69 Environmental and climate injustices are facilitated by sovereign immunity and impunity and the protection states afford transnational corporations.70 As Rob Nixon argues, ‘A neoliberal ideology that erodes national sovereignty and turns answerability into a bewildering transnational maze makes it easier for global corporations like Union Carbide, responsible but never adequately held liable for the 1984 Bhopal disaster, to sustain an evasive geopolitics of deferral in matters of environmental injury, remediation, and redress’.71 Nixon describes the myriad ways in which corporate bastions of white power deploy a battery of distancing strategies (temporal, legalistic, geographical, scientific, and euphemistic) in the longue durée between [an] initial catastrophe and the aftermath. Through this profit. Pulido argues that racism is relatively more autonomous than I view it. Laura Pulido, ‘Flint, Environmental Racism, and Racial Capitalism’ (2016) 27/3 Capitalism Nature Socialism 1. 65 Michael Eric Dyson, Come Hell or High Water: Hurricane Katrina and the Color of Disaster (Basic 2006) 23. 66 Harold Wolpe, ‘The Theory of Internal Colonialism: The South African Case’ in Ivar Oxaal and others (eds), Beyond the Sociology of Development: Economy and Society in Latin America and Africa (Routledge and Kegan Paul 1975) 229; Ramón A Gutiérrez, ‘Internal Colonialism: An American Theory of Race’ (2004) 1(2) Du Bois Review 281. 67 On the relationship between race and food security, see Amanda Slocum and Arun Saldanha (eds), Geographies of Race and Food: Fields, Bodies, Markets (Ashgate 2013). 68 Carola Betzold, ‘Adapting to Climate Change in Small Island Developing States’ (2015) 133(3) Climatic Change 481. 69 See, for example, Henry Shue, Climate Justice: Vulnerability and Protection (Oxford University Press 2014) and Michael Mascarenhas, Where the Waters Divide: Neoliberalism, White Privilege, and Environmental Racism in Canada (Lexington Books 2012). 70 Anna Grear, Redirecting Human Rights: Facing the Challenge of Corporate Legal Humanity (Palgrave Macmillan 2010). 71 Rob Nixon, Slow Violence and the Environmentalism of the Poor (Harvard University Press 2011) 46.

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Justice, development and sustainability in the Anthropocene 29 battery of attritional, dissociative mechanisms, the transnational corporation strives to wear down the environmental justice campaigns that seek compensation, remediation, and restored health and dignity. Under cover of a variety of temporal orders, the company can hope that public memory and demands for restitution will slowly seep out of sight, vanishing into the sands of time.72

Nixon draws attention to the violence of climate change, deforestation and environmental degradation that occurs gradually, imperceptibly and often invisibly. The temporality of slow onset climate change makes it difficult to increase public awareness and political action. Climate change is, of course, the paradigmatic example of slow violence. Slow onset catastrophes such as sea level rise that literally removes the ground from beneath the feet of the poor in one part of the world (too much water) is destroying the livelihoods of poor people elsewhere through desertification (too little water) and killing ecosystems such as coral reefs through ocean acifidication (the wrong kind of water). The underlying problem is endless growth in pursuit of profit, which trumps the interests of people, planet and other species. This impoverishes human beings and the meaning of what it is to be human. Ramachandra Guha emphasises the importance of linking environmental and climate injustice to global distributive injustice reflected in the gap between consumption patterns of the rich and poor.73 For the poor, it seems that enough suffices while for the rich more is never enough. Confronted by a planetary emergency, we need to go beyond Holocene modernity to develop modes of being and knowing commensurate with the crisis of the Anthropocene. If we are serious about sustainability, we need alternatives to development.

D. BEYOND DEVELOPMENT: TOWARDS SOCIAL JUSTICE The failures and limitations of the dominant models of development have been criticised since the global South became the object of extractive, growth-driven industrialisation.74 Far from addressing these problems, sustainable development perpetuates them by encouraging hubristic assumptions that technological change can provide solutions to ecological problems driven by technology. If no problem can be solved at the same level of consciousness that created it, we need to move beyond development conceived primarily as economic growth. The scale and urgency of ecological degradation in the Anthropocene has prompted explorations of alternatives such as degrowth, steady state economics and buen vivir.75 In this section, I focus on ibid 60. Ramachandra Guha, Environmentalism: A Global History (Penguin 2014); Ramachandra Guha and Joan Martínez Alier, Varieties of Environmentalism: Essays North and South (Routledge 2013). 74 Brian Z Tamanaha, ‘The Primacy of Society and the Failures of Law and Development’ (2011) 44(2) Cornell International Law Journal 209; Aram Ziai, Development Discourse and Global History: From Colonialism to the Sustainable Development Goals (Routledge 2016). 75 On degrowth, see J Martínez-Alier and others, ‘Sustainable De-Growth: Mapping the Context, Criticisms and Future Prospects of an Emergent Paradigm’ (2010) 69(9) Ecological 72 73

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30 Research handbook on law, environment and the global South buen vivir (roughly, living well), an onto-epistemology that is not without its contradictions but demonstrates the possibility of non-Western epistemologies in which ecological sustainability is central rather than an adjunct. The term development does not ‘exist in the cosmovisions, conceptual categories, and languages of indigenous communities’ in the Andes.76 Alternative forms of governance inspired by buen vivir protect the Rights of Mother Earth (Pachamama) inspired by Andean cosmovisions. Eduardo Gudynas writes that buen vivir includes the classical ideas of quality of life, but with the specific idea that well-being is only possible within a community. Furthermore, in most approaches the community concept is understood in an expanded sense, to include Nature. Buen Vivir therefore embraces the broad notion of well-being and cohabitation with others and Nature.77

In buen vivir, human well-being is contingent upon communal life in harmony with nature, and consistent with principles of reciprocity, complementarity and relationality. There is no single, definitive formulation of buen vivir, but all forms contain core elements such as rejection of the separation between nature and society that characterises Eurocentric thinking. In contrast, it advocates a biocentric epistemology in which nature is conceptualised as Pachamama, the source of all life, of which humans are just a single aspect. Nature is an essential and constitutive element of social life, and valued for itself rather than as natural capital. Buen vivir inspired the 2010 People’s Agreement on the Rights of Mother Earth, which describes climate change as an ecological and economic crisis caused by a patriarchal model of civilisation based on the submission of human beings and the destruction of nature. The Agreement calls for a new mode of thinking and being, based on the principles of harmony and balance amongst all and with all things; complementarity; solidarity; equality; collective well-being and the satisfaction of the basic necessities of all. It condemns capitalism for imposing ‘a logic of competition, progress and limitless growth’ in a regime of production and consumption that seeks profit without limits, separates human beings from nature, and imposes a logic of domination and the commodification of everything: ‘water, earth, the human genome, ancestral cultures, biodiversity, justice, ethics, the rights of peoples, and life itself’. Buen vivir has also been given legal recognition in Bolivia and Ecuador.78 It is a central component of the 2008 Ecuadorian constitution. Article 71 states ‘Nature or Economics 1741; Daniel W O’Neill, ‘Measuring Progress in the Degrowth Transition to a Steady State Economy’ (2012) 84 Ecological Economics 221; Tim Jackson, Prosperity without Growth: Economics for a Finite Planet (Earthscan 2009). 76 Catherine Walsh, ‘Development as Buen Vivir: Institutional Arrangements and (De)Colonial Entanglements (2010) 53(1) Development 17. 77 Eduardo Gudynas, ‘Buen Vivir: Today’s Tomorrow’ (2011) 54(4) Development 441. 78 The Ecuadorian Constitution guarantees the rights of buen vivir (articles 12–34) and grants rights to nature (articles 71–4). Constitución Política de la República del Ecuador, 20 October 2008. In Bolivia, buen vivir informs the 2009 Constitution, which does not grant rights to nature. However, Pachamama is protected under the Law of the Rights of Mother Earth (Law 071 of the Plurinational State) passed by the Plurinational Legislative Assembly on 21 December 2010. See Unai Villalba, ‘Buen Vivir vs Development: A Paradigm Shift in the Andes?’ (2013)

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Justice, development and sustainability in the Anthropocene 31 Pacha Mama, where life is reproduced and realized, has the right to the integral respect of its existence and the maintenance and regeneration of its life cycles, structure, functions, and evolutionary processes’. Pachamama has the right to reparation or restoration (Art.72). More than 75 articles cover issues crucial to environmentally sustainable development, including water, food, nature, ancestral knowledge, biodiversity, ecological systems, alternative energy, and individual and collective rights of historically unprotected groups. Walsh argues that what is particularly significant ‘is the social, economic, and epistemic significance given to buen vivir and the integral relation it constructs among beings, knowledge, and nature. Nature is broadly understood as the constitutive conditions and practices – sociocultural, territorial, spiritual, ancestral, ethical, epistemic, and aesthetic – of life itself’. She argues that [t]he vision put forth in this Charter with regard to development is that of a new society based in equality, fraternity, solidarity, complementarity, equal access, participation, social control and responsibility. Its projection is towards a new social, political, economic, and naturebased mode of development that takes distance from capitalism and requires a major re-orienting from within.79

CONCLUSION Escobar has long argued that Latin America needs to move beyond the ideologies of developmentalism and neoliberalism and adopt a relational, decolonising approach that delinks development from a Western extractivist growth model in pursuit of a ‘more radical possibility, still to be named, but which combines features of post-capitalist, post-liberal, and post-statist societies’.80 This is necessary everywhere if what is sustained is not growth and profit but the Earth system which make them possible. In theory, sustainable development combines economic growth, environmental protection and social justice; in reality, the environment and justice are systematically subordinated to growth. Sustainable development sounds like a good idea, but castles in the air are dangerous to live in. Climate change, biodiversity loss and the collapse of ecosystems produce impoverishment and immiseration. The Industrial Revolution and especially the Great Acceleration have produced sustained injustices that the SDGs are unlikely to ameliorate. They fail to address the profound ontological and epistemological questions thrown up by the Anthropocene. Einstein also said that insanity is doing the same thing over and over again and expecting a different result.

34(8) Third World Quarterly 1427; Sara Caria and Rafael Domínguez, ‘Ecuador’s Buen Vivir: A New Ideology for Development’ (2016) 43(1) Latin America Perspectives 18. 79 Walsh (n 76) 18, 19. 80 Arturo Escobar, ‘Latin America at the Crossroads: Alternative Modernizations, PostLiberalism, or Post-Development?’ (2010) 24(1) Cultural Studies 1, 45.

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3. Neoliberalism, law and nature Larry Lohmann

INTRODUCTION What are environment and law today? This chapter’s premise is that both have been profoundly transformed during the current neoliberal era, and that understanding these interlaced transformations is key to effective future research and other action on the issues.* The chapter unfolds in several sections. The first briefly outlines the growth of the neoliberal state amid the crises faced by capital since the 1970s. The second spells out a few of the specifically legal innovations that have been a part of this evolution, including new regimes of trade, property, investment, rent, environmental governance and legitimized violence. As pressures have grown to reduce state and market to the ‘identical flat ontology of the neoclassical model of the economy’,1 the section argues, the legal landscape has been flattened too. For example, fines, fees and prices have been conflated in theory and practice and juridical traditions rooted in commons norms increasingly marginalized along with the interests of those who rely on them. New patterns of criminalization and decriminalization have also emerged, together with new understandings and legal treatments of corruption and non-corruption. Growing privatization, meanwhile, has gone hand in hand with an explosion in the volume of written law. This expansion originates in part in imperatives to centralize economic authority on a global scale and to increase the sophistication and opacity of legal trickery in an increasingly rent-based, parasitic, extractive economy, but also in incentives for scammers and reformers alike to resort to the formulation of more written rules to try to further their opposing interests. A third section attempts to make explicit how the development of neoliberal legal regimes and of neoliberal natures are of a piece. As an example, it sketches some of the ways in which neoliberal property, trade, civil and criminal law, as well as the neoliberal flattening of the legal landscape, constitute and are constituted not just by contemporary trends in ‘human’ politics but also by a new global fire regime. A short conclusion then draws some of these threads together, suggesting that researchers and other activists need to make the alliances that will enable them to contend with the mutually inseparable contradictions of neoliberal law and neoliberal nature together. * The author is most grateful to Patricia Kameri-Mbote, Lovleen Bhullar, Julia Dehm, Ivonne Yanez, Nicholas Hildyard, Sujith Koonan and Philippe Cullet for comments, suggestions and discussion. 1 Philip Mirowski and Esther-Mirjam Sent, ‘The Commercialization of Science and the Response of STS’ in Edward J Hackett and others (eds), The Handbook of Science and Technology Studies (MIT 2008) 635, 670.

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Neoliberalism, law and nature 33

A. TRANSNATIONAL CAPITAL AND THE GROWTH OF THE NEOLIBERAL STATE It is widely recognized that the neoliberal era has been marked, in many countries, by a struggle to reduce the state’s role as an intermediary between classes while increasing its role as a body dedicated to promoting, coordinating, facilitating and planning the activities of transnational capital. Over the past few decades, a multitude of fresh instruments – public-private partnerships, sovereign wealth funds, austerity regimes, tax regimes friendlier to business, mechanisms for selling off state enterprises, treaties allowing transnational corporations to sue governments for hypothetical future profits lost due to regulation, and many more – have come online to provide leverage to global capital, facilitate the collection of new rents and disempower ordinary people. Facilitating the ten-fold explosion in exports of goods and services between 1977 and 2015 and the doubling of exports’ share in Gross Domestic Product globally,2 meanwhile, has been the work not only of venerable Bretton Woods institutions such as the World Bank and International Monetary Fund (IMF) but also of new inter-state or super-state structures ranging from North American Free Trade Agreement (NAFTA) to the World Trade Organization (WTO), the European Single Market and the prospective Transatlantic Trade and Investment Partnership (TTIP), as well as numerous bilateral agreements. The advent of the age of ‘made in the world’3 has meanwhile seen expansion of state investment in national and international infrastructure corridors and other projects and institutions for making societies more transparent to and navigable by transnational capital – including especially a surging financial sector – and less transparent to and navigable by commoners. Indeed, the nature of infrastructure itself has changed with the advent of public-private partnerships designed more to channel a predictable stream of subsidies to new investment vehicles, such as private equity infrastructure funds or venture capital funds, than to further the public good as conventionally conceived.4 As public and private investment decisions increasingly shift into the hands of fund managers, and austerity and structural adjustment increasingly subordinate social welfare to intensified worker exploitation and regressively redistributive financial policies, gaps between rich and poor widen, both within countries and between North and South. That necessitates the rollout of a more violent ‘penal state’5 at the domestic level (in order to handle the contradictions of and ‘consolidate the

2 World Bank, Exports of Goods and Services (2017), accessed at https://data.world bank.org/indicator/BX.GSR.GNFS.CD and https://data.worldbank.org/indicator/NE.EXP.GNFS. ZS?page=1. 3 Richard A McCormack, ‘Everything is “Made in the World”: WTO is One Step Closer to Eliminating Country-of-Origin Labels’ (2012) 19(8) Manufacturing and Technology News, accessed at http://www.manufacturingnews.com/news/madeintheworld514121.html. 4 Nicholas Hildyard, Licensed Larceny: Infrastructure, Financial Extraction and the Global South (Manchester University Press 2016). 5 Adam Tickell and Jamie Peck, ‘Making Global Rules: Globalization or Neoliberalization?’ in Jamie Peck and Henry Wai-Chung Yeung (eds), Remaking the Global Economy: Economic-Geographical Perspectives (Sage 2003) 163.

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34 Research handbook on law, environment and the global South policy gains’ made under the banner of ‘deregulation’6) while, at the international level, states such as the US have to channel more resources to war and armed intimidation. Neoliberalism, in short, turns out to be ‘very much a top-down project’7 of redistributive state-building principally in the service of a narrow, wealthy international elite, involving what is almost certainly a net increase in both the scope and the scale of the state, as well as inter-state and super-state activity. With declining rates of profit and reinvestment in older industrial sectors and the growing dominance of a finance and rent-based economy, the job of the neoliberal state has come down above all to facilitating rapid and continuous innovation in methods for seizing and cannibalizing already-created value – strategies that, as James McCarthy points out, are ‘ultimately redistributive towards firms rather than true strategies for capitalist accumulation’.8 This parasitism has taken many forms, of which two can be briefly mentioned here. First, in addition to creating unprecedented new supplies of low-cost labour by separating people from their land in the global South (and also keeping them ‘behind highly-militarized national borders within which social protections could be systematically withdrawn’9), states also increasingly began stealing from workers in the global North by separating them from the wage contracts, welfare provisions, unionization rights and other components of the Fordist and welfare-state capital-labour ‘deals’ of the 20th century. For several decades, Northern states have competed fiercely over who can promulgate the most restrictive anti-union laws and cut real wages most steeply in both public and private sectors. Between 2009 and 2012 alone, the number of people in employment in Britain who were working for less than the legal minimum wage increased from 3.4 million to 4.8 million, with the state stepping in to provide extra payroll budget for business through tax and housing credits. Jobs are also being made more precarious through outsourcing and ‘zero-hour’ contracts that deprive workers of benefits, pensions or recourse to the law when they are unfairly dismissed. ‘Workfare’ and ‘prisonfare’ programmes are also being used to supply cheap or zero-cost labour.10 Another way of cutting labour costs is to steal health and unemployment benefits, using the proceeds to supplement the increasing subsidies being offered to the richest 1 per cent of the UK’s population. Such subsidies have included a trillion-pound bailout of failed banks following the 2008 financial crisis, billions of pounds in handouts to oil, nuclear and telecoms companies and numerous policies transferring the risks of business to taxpayers. According to the Bank of England, so-called ‘quantitative easing’ was essentially a subsidy for the financial sector, costing the poorest 10 per cent 6 Yves Dezalay and Bryant G Garth, The Internationalization of Palace Wars: Lawyers, Economists, and the Contest to Transform Latin American Studies (University of Chicago Press 2002) 170. 7 Mirowski and Sent (n 1) 671. 8 James McCarthy, ‘Privatizing Conditions of Production: Trade Agreements as Neoliberal Environmental Governance’ in Nik Heynen and others (eds), Neoliberal Environments: False Promises and Unnatural Consequences (Routledge 2007) 48. 9 David Graeber, The Utopia of Rules: On Technology, Stupidity and the Secret Joys of Bureaucracy (Melville House 2015). 10 Loïc Wacquant, ‘Crafting the Neoliberal State: Workfare, Prisonfare and Social Insecurity’ (2010) 25(2) Sociological Forum 197.

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Neoliberalism, law and nature 35 of Britain’s people £779 each, while the richest 10 per cent enjoyed an average £322,000 leap in the value of their assets.11 At a time of falling profits, there is an especially direct, extractive relation between the impoverishment of the lower tiers of society and the enrichment of the top, visible in the jump in Gini coefficients and other measures of inequality.12 These thefts from Northern workers are in many cases coextensive with the mechanisms through which health services, elderly care, and police, prison, and postal services are broken up and the goods they provide reprocessed to allow much of their accumulated value to be extracted and transferred to the rich, while the state and its taxpayers have to pay out large sums to try to make up for the shortcomings of the husks that remain. For example, privatization of railways, while allowing the private sector to purloin much of the value put into the system over a century of development, makes rail travel more expensive, while the state and its taxpayers have to step in to lay out yet more money to repair the infrastructure that private railway companies find it unprofitable to maintain. Britain’s National Health Service is being debilitated in the same way as a new generation of private ‘health service providers’ extract sedimented value from a system that is then left full of holes.13 Meanwhile, in a ‘neo-Keynesian’ response to the problem of how the new working-class robbery victims are supposed to be able to continue buying consumer goods, the financial sector has helped engineer a vast expansion of private credit,14 in effect a colonization of future wages, setting in motion another process of wealth transfer from poor to rich. In some regions, this has been supplemented by the appropriation not only by banks but also by states of private savings for purposes of financial speculation. Another form of theft from workers proceeds through the neoliberal reform of tax systems. New legislation and legal trickery have helped make tax avoidance a way of life among large corporations at a time when ‘austerity’ is imposed on the less well-off.15 In 2013, one in five large British businesses paid zero

11 Fraser Nelson, ‘QE: The Ultimate Subsidy for the Rich’ The Spectator (23 August 2012), accessed at https://blogs.spectator.co.uk/2012/08/qe-the-ultimate-subsidy-for-the-rich. See also Bank of England, ‘The Distributional Effects of Asset Purchases’ (2012) 52(3) Bank of England Quarterly Bulletin 254 and Ros Altmann, ‘There is a Magic Money Tree: It’s Called QE’ Financial Times (6 June 2017), accessed at www.ft.com/content/3f9dd17e-47a2-11e7-8d2759b4dd6296b8. 12 Costas Lapavitsas, Profiting without Producing: How Finance Exploits Us All (Verso 2013). 13 Hildyard (n 4); Ursula Huws, ‘Crisis as Capitalist Opportunity: New Accumulation through Public Service Commodification’ (2011) 48 Socialist Register 64; Colin Leys and Stewart Player, The Plot against the NHS (Merlin 2011); Jacky Davis and Raymond Tallis (eds), NHS SOS (Oneworld 2013). 14 Farshad Araghi, ‘The End of “Cheap Ecology” and the Crisis of “Long Keynesianism”’ (2010) 45(4) Economic and Political Weekly 39. 15 Richard Murphy, Dirty Secrets: How Tax Havens Destroy the Economy (Verso 2017); Nicholas Shaxson, Treasure Islands: Tax Havens and the Men Who Stole the World (Bodley Head 2010); Juliette Garside, ‘Paradise Papers Leak Reveals Secrets of the World Elite’s Hidden Wealth’ The Guardian (5 November 2017), accessed at www.theguardian.com/news/2017/nov/ 05/paradise-papers-leak-reveals-secrets-of-world-elites-hidden-wealth.

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36 Research handbook on law, environment and the global South corporation tax. Today, Britain’s poorest 10 per cent pay 43 per cent of their income in taxes, while the richest 10 per cent pay only 35 per cent.16 In a second, more global process, new, largely state-funded roads, bridges, hospitals, ports, railways and other infrastructure are lawfully transformed into financial assets or private rental properties guaranteeing private investors income streams at the public’s expense, allowing wealth to be extracted from even the poorest regions of the world and siphoned to the global 1 per cent.17 The financial sector has thrown itself into the task of filling the profit gap in many other parasitic, unproductive ways as well, as testified by the post-1970s cascade of speculative bubbles, asset-strips, derivative fabrication, real estate speculation and other swindles. To ensure that the new armies of cheap (and cheapened) workers produce as much surplus value as possible, low-investment extraction of raw materials from commons and indigenous territories is crucial. Historically, of course, exploitation of industrial labour on a global scale has always been closely tied up with finding and appropriating ‘ecological surpluses’18 of cheap minerals, and in particular cheap fossil fuels, which have been essential to discipline and productivity in a globalized labour force.19 But in an age of declining profit rates, the state’s violent underwriting of the financial and political costs of cheap minerals and land has become even more important, as witnessed by, for example, the ‘offshoring’ of much fossil-fuelled manufacturing-labour exploitation to China,20 accompanied by increasingly militarized Latin American ‘neoextractivism’.21 Northern states’ efforts to transfer power from labour to the financial sector have meanwhile been successful partly because of the shift from labour-intensive coal extraction to more capital-intensive oil and gas exploitation,22 which neoliberal states continue to promote in the form of fracking initiatives that now extend even to the English Home Counties. As will be explored further below, part and parcel of such trends is the emergence, via the neoliberal state, of ecosystem-service Owen Jones, The Establishment: And How They Get Away with It (Penguin 2015). Hildyard (n 4). Donald Trump’s infrastructure plans fall into the same category: see Robert Reich, ‘Trump’s $1tn “Infrastructure Plan” is a Giveaway to the Rich’ The Guardian (10 June 2017), accessed at www.theguardian.com/commentisfree/2017/jun/10/scam-alert-trumps1tn-infrastructure-plan?CMP=twt_gu and Sharmini Peries and Michael Hudson, ‘Trump Privatizes America’ Counterpunch (14 February 2018), accessed at www.counterpunch.org/2018/02/ 14/trump-privatizes-america/. 18 Jason W Moore, Capitalism in the Web of Life: Ecology and the Accumulation of Capital (Verso 2015). 19 Matthew T Huber, ‘Energizing Historical Materialism: Fossil Fuels, Space and the Capitalist Mode of Production’ (2009) 40(1) Geoforum 105; Andreas Malm, Fossil Capital: The Rise of Steam-Power and the Roots of Global Warming (Verso 2015); Larry Lohmann and Nicholas Hildyard, Energy, Work and Finance (The Corner House 2014). 20 Malm (n 19). 21 Maristella Svampa, ‘Commodities Consensus: Neoextractivism and Enclosure of the Commons in Latin America’ (2015) 114(1) South Atlantic Quarterly 65; Alberto Acosta, ‘Extractivism and Neoextractivism: Two Sides of the Same Curse’ in Miram Lang and Dunia Modrani (eds), Beyond Development (Abya Yala 2011) 61; Eduardo Gudynas, ‘Estado Compensador y Nuevos Extractivismos: Las Ambivalencias del Progresismo Sudamericano’ (2012) 237 Nueva Sociedad 128. 22 Timothy Mitchell, Carbon Democracy: Political Power in the Age of Oil (Verso 2011). 16 17

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Neoliberalism, law and nature 37 transactions, which rely on additional, satellite forms of extraction capable of producing exchangeable units of cheap compliance with environmental regulations that might otherwise impose unacceptable costs on conventional extraction.23

B. THE NEOLIBERAL TRANSFORMATION OF LAW 1. Trade, Investment, Property Intimately tied up with the transformations of the state sketched above are shifts in the role and structure of law. These developments are not confined to ‘classical’ measures for enclosing new territories for transnational investment – such as the legal reforms entailed by World Bank projects promoting land titling, export manufacturing zones or contract farming in the global South – but also include radically innovative regimes of trade, investment, property and criminal law. One example consists of trade agreements and contracts that, while undercutting commoners’ rights, empower transnational corporations’ lawyers to reach more deeply into the governance systems of purportedly sovereign states in order to allow their employers to sidestep risks of market competition in unfamiliar environments, circumvent national legal systems and sue governments in parallel tribunals if laws and regulations undercut their ability to make money.24 Such agreements make it possible, for instance, for firms to counter or forestall inconvenient environmental, health, or human rights legislation on the grounds that it amounts to ‘expropriation’ of hypothetical future profits; what investors claim to be their ‘legitimate expectations’ of future profit can now be treated in law as a novel kind of private property. The legal right to a specified, predictable level of future accumulation can then be elaborated, institutionalized, and entrenched not only in the form of a right to a stable regulatory environment but also in the form of a right to pollute, or ‘transform and exploit general, social nature in ways that will directly harm others’ or ‘cause ecological harm and create environmental hazards for people in a given area’.25 In effect, investor-state settlement systems allow firms to demand cash from national treasuries in compensation for claimed counterfactual ‘regulatory takings’.26 Host Government Agreements (HGAs), for instance, are now often required by transnational investors in countries where their claims are not protected by bilateral investment treaties in order to minimize the financial and political risks resulting from possible changes in national legislation that 23 Larry Lohmann, ‘Value, Cheap Regulation and Ecosystem Services’ (2017) (unpublished, on file with author). 24 McCarthy (n 8). 25 ibid 47. See also Howard Mann and Konrad von Moltke, ‘Protecting Investor Rights and the Public Good: Assessing NAFTA’s Chapter 11’ (ILSD Tri-national policy workshops, Mexico City, March 2002), accessed at www.iisd.org/sites/default/files/publications/investment_ilsd_ background_en.pdf. 26 Such settlement systems are part of a broader neoliberal trend limiting the power of the state to moderate the power of capital. For example, in 1992, the US Supreme Court held that any law depriving property of all its economic value would always count as a taking and would have to be compensated (Lucas v. South Carolina Coastal Council [1992] 505 U.S. 1003).

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38 Research handbook on law, environment and the global South would affect project development, construction and operation. Thus, the HGA drawn up in 2002 between Turkey and the BTC Consortium building the Baku-Ceyhan pipeline – which became the prevailing domestic law of Turkey governing the project – effectively abrogated Turkey’s executive and legislative powers to protect Turkish citizens from the project’s potential environmental damage or health and safety hazards, or to improve the regulatory regime governing it, should changes in scientific understanding of risks require it. Under the HGA, the Turkish government granted BP exemption from the financial impacts of any new environmental, social or any other laws affecting the pipeline that Turkey might introduce over the 40-year lifetime of the agreement. Indeed, it undertook to compensate the BTC Consortium from tax revenues if new regulation adversely affected projected profits from the project. The investor-state dispute settlement system (ISDS) included in many other international agreements – as well as a somewhat modified Investment Court System proposed to replace it in the TTIP following widespread protests – also allows companies to sue governments if policy changes are deemed to undercut their ability to make money. These lawsuits bypass domestic courts in favour of an international tribunal of arbitrators – three private lawyers who are empowered to decide whether private profits or public interests are more important and who have a built-in incentive to encourage further investor claims that will bring them more business. Investor-state tribunals have already granted big business billions of dollars from taxpayers’ pockets worldwide, often in compensation for public interest measures. From a total of three known investor-state claims in 1995, the number of such lawsuits had surged by January 2016 to nearly 700, challenging anti-smoking legislation, bans on toxic chemicals, anti-discrimination policies, financial stability measures, restrictions on dirty mining projects, and so forth in countries on nearly every continent.27 In one case, Libya was ordered to pay US$900 million for ‘lost profits’ from ‘real and certain [sic] lost opportunities’ connected with a tourism project to a company which had only invested US$5 million and had never even started construction.28 Under TTIP proposals, moreover, the number of companies allowed to pursue such lawsuits would increase from around 4,500 today to more than 47,000, opening the door to hundreds of new US investor lawsuits against EU member states. Transnational corporations could even sue their own governments via foreign shareholders or foreign subsidiaries.29 Such arrangements have, in the words of James McCarthy, ‘relocate[d] much environmental governance to international scales and into the hands of non-state judiciaries, and replace[d] the openness in environmental governance created by the modern environmental movement with new forms of secrecy and closure’.30

27 Pia Eberhardt, The Zombie ISDS: Rebranded as ICS, Rights for Corporations to Sue States Refuse to Die (Corporate Europe Observatory 2016). 28 Diana Rosert, ‘Libya Ordered to Pay US$ 935 Million to Kuwaiti Company for Cancelled Investment Project’ Investment Treaty News (19 January 2014), accessed at www.iisd.org/itn/2014/01/19/awards-and-decisions-14. 29 Eberhardt (n 27). 30 McCarthy (n 8) 46.

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Neoliberalism, law and nature 39 In another example of the neoliberal struggle to intertwine trade arrangements with the construction of new property rights regimes, the WTO’s agreement on TradeRelated Aspects of Intellectual Property Rights (TRIPS) expands corporate monopoly intellectual property rights ‘far beyond the levels of protection that the nationally negotiated laws of many of the member states would take it’.31 One objective is, again, to enable large firms to avoid the rigours of competitive markets in diverse societies and to extend the scope of crude appropriation as a ‘fix’ for declining rates of profit.32 Just as HGAs and ISDS empower large transnationals to enclose or privatize certain conditions of production heretofore held in common, TRIPS is used to ‘capture rights to intellectual property that have been in the public domain for centuries and, in some cases, millennia’.33 Notorious cases include patents on basmati rice, an Indian staple for centuries, as well as other plants and animals developed through generations of human-nonhuman interactions.34 Here, rather than inveighing against the ‘regulatory taking’ of counterfactual future profits, corporations such as Pfizer adopt the tactic of denouncing the ‘piracy’ of the mental property of US firms by other countries, particularly in the global South.35 Insisting on intellectual rights over ‘products and processes without discrimination as to subject matter’, TRIPS helps extend to a global level monopoly over pharmaceutical products, animal varieties, methods of treatment, plant varieties, biological processes for producing animal or plant varieties, food products, computer programs and chemical products. By 2013, a mere seven firms had gained control of 71 per cent of the global seed market, as well as much of the market for agricultural inputs and technology, facilitating steep rises in the prices of seed and planting stock.36 This brand of lawful robbery is today increasingly central to the global economy. As Slavoj Žižek points out, Bill Gates, the proprietor of perhaps the world’s largest fortune, with an income greater than that of any of dozens of poorer nations, ‘effectively privatized part of the general intellect and became rich by appropriating the rent that followed’.37 Innovations in law are also constitutive of the new neoliberal trade-and-property regimes that make possible the ecosystem-service transactions mentioned above. These transactions, which are, as Romain Felli argues, ‘institutional responses to the threat to accumulation that environmental regulations pose’ rather than ‘accumulation strategies’ Tickell and Peck (n 5) 194. Colin Crouch, The Strange Non-Death of Neoliberalism (Polity 2011) 54. 33 Tickell and Peck (n 5) 194. 34 The ‘general shift of intellectual property law from a presumption of open access (…) towards a presumption in favour of private property’ has also recently come to encompass financial innovations. Donald MacKenzie, Material Markets: How Economic Agents Are Constructed (OUP 2009) 72. 35 Peter Drahos with John Braithwaite, Information Feudalism: Who Owns the Knowledge Economy? (Earthscan 2002). 36 ETC Group, Mega-Mergers in the Global Agricultural Inputs Sector: Threats to Food Security and Climate Resilience (2015), accessed at www.etcgroup.org/content/mega-mergersglobal-agricultural-inputs-sector. 37 Slavoj Žižek, ‘The Revolt of the Salaried Bourgeoisie’ (2012) 34(2) London Review of Books 9. See also Bob Hughes, The Bleeding Edge: Why Technology Turns Toxic in an Unequal World (New Internationalist 2016). 31 32

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40 Research handbook on law, environment and the global South proper,38 nevertheless depend absolutely on amended forms of those regulations. For environmental regulation to be ‘transformed into tradable instruments’39 or units of cheap regulatory relief (what one legal scholar calls ‘regprop’ or ‘regulatory property’40) that corporations can own, buy and sell, there has to be regulation in the first place. For example, in the carbon markets set up by the Kyoto Protocol, the European Union Emissions Trading Scheme (EU ETS) and so forth, state-regulated ‘caps’ and ‘carbon budgets’ define the scarce material out of which tradable pollution rights are constructed. Unless states had first learned, from the model of 1970s pollution-control legislation in the US, how to break down the problem of climate change action into a ‘nonpolitical’ question of reduced flows of molecular units, the Kyoto Protocol’s ‘market mechanisms’ – which claimed to herald a way of curbing global warming cheap enough to be compatible with continued capital accumulation41 – would never have become possible. Indeed, without this reductionist step, the question of how to make environmental regulation ‘flexible’ could never even have been stated in the vocabulary of ‘cost savings’ or ‘velocity through a regulatory system’.42 By the same token, unless EU ETS regulation had already come into force, transnational corporations such as Arcelor Mittal could never have become capable of seeking billions of dollars in new ‘climate rents’43 by demanding enormous free handouts of emissions allowances from the state.44 The fact that the Kyoto-era project to make molecule regulation truly global eventually failed has in no way diminished the necessity of grounding ecosystem service transactions in national and international law: the 2015 Paris climate agreement merely substitutes new units based on national regulation – Internationally Transferred Mitigation Outcomes (ITMOs) – for the more conventionally structured, international Kyoto molecular units. In all ‘compliance markets’ for carbon, moreover, it is state-driven and state-sanctioned quantification, monitoring, reporting, verifying and insuring techniques and rules that make possible not only the creation and corporate appropriation of measurable pollution allowances, but also the fabrication and corporate acquisition of the additional class of quantifiable pollution rights known as ‘offsets’. If, under HGAs and ISDS, corporations are guaranteed rights to pollute in order to safeguard projected future profits, under the EU ETS and other Romain Felli, ‘On Climate Rent’ (2014) 22(3/4) Historical Materialism 251. Pedro Moura-Costa (Bolsa Verde, Rio de Janeiro), quoted in Mark Nicholls, ‘EcoSecurities Co-Founder Launches Brazilian Environmental Exchange’ Environmental Finance (20 December 2011). 40 Richard B Stewart, ‘Privprop, Regprop, and Beyond’ (1990) 13(1) Harvard Journal of Law and Public Policy 91; James E Krier, ‘Marketable Pollution Allowances (Great Lakes Symposium)’ (1994) 25(2) University of Toledo Law Review 449; Larry Lohmann, Carbon Trading: A Critical Conversation on Climate Change, Privatisation and Power (Dag Hammarskjöld Foundation 2006); Jeanne M Dennis, ‘Smoke for Sale: Paradoxes and Problems of the Emissions Trading Program of the Clean Air Act Amendments of 1990’ (1993) 40(4) UCLA Law Review 1101. 41 MacKenzie (n 34). 42 Morgan Robertson, ‘Discovering Price in All the Wrong Places: The Work of Commodity Definition and Price under Neoliberal Environmental Policy’ (2007) 39(3) Antipode 500, 508. 43 Felli (n 38). 44 Damien Morris, Slaying the Dragon: Vanquish the Surplus and Rescue the ETS – The Environmental Outlook for the EU Emissions Trading Scheme (Sandbag 2014). 38 39

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Neoliberalism, law and nature 41 climate trading schemes, corporations are allowed to acquire free or low-cost rights to pollute in the form of property rights to measurable slices of whatever pollution sinks that legislation happens to stipulate are ‘available’ at the moment. In the one case, private corporations can be compensated for ‘regulatory takings’ of counterfactual future profits. In the other, they can be compensated to the degree that they have been awarded property rights in a global ecosystem or have instigated incremental environmental ‘improvements’ over a counterfactual baseline legally verified by the state. Neoliberalism’s project of promulgating novel, corporate-friendly property rights – whether to imaginary future profits or to units of regulatory relief – thus has powerfully destructive environmental effects. Nor does the role of neoliberal legal innovations end there. For example, police and military units – some of them invented for the purpose – have to take on the job of legal repression of communities whose presence interferes with the efficient manufacture of cheap ‘offset’ tokens out of land, forests and community futures.45 As will be discussed below, this involves innovations in criminal law as well. 2. The Flattening of the Legal Landscape Under neoliberalism, law has also been transformed from a more heterogeneous into a more uniform, ‘economized’ set of practices. In the words of Philip Mirowski and Esther-Mirjam Sent, a ‘transcendence of the classical liberal tension between the self-interested agent and the state’ has been achieved ‘by reducing both state and market to the identical flat ontology of the neoclassical model of the economy’.46 Neoliberal ‘good governance’ presumes, as Massimo De Angelis puts it, that ‘every problem raised by struggles can be addressed on condition that the mode of its addressing is through the market’.47

45 See, for example, Jutta Kill and Giulia Franchi, ‘Rio Tinto’s Biodiversity Offset in Madagascar: Double Landgrab in the Name of Biodiversity?’ (World Rainforest Movement and Re:Common, 2016), accessed at www.wrm.org.uy/wp-content/uploads/2016/04/RioTinto BiodivOffsetMadagascar_report_EN_web.pdf; Kalla Fakta, ‘The Forbidden Forest’ (TV4 Sweden, 2015), accessed at www.youtube.com/watch?v=COoPVXlNbqQ&feature=youtu.be; Mark Schapiro, ‘GM’s Money Trees’ Mother Jones (November/December 2009), accessed at www. motherjones.com/environment/2009/11/gms-money-trees/. 46 Mirowski and Sent (n 1). This flat ontology, of course, has a long and varied academic pedigree, ranging from pre-neoliberal cost-benefit analysis and welfare economics (Larry Lohmann, ‘Toward a Different Debate in Environmental Accounting: The Cases of Carbon and Cost-Benefit’ (2009) 34(3) Accounting, Organizations and Society 499) to the public choice economics of James Buchanan and Gordon Tullock to rational choice theory and the reductionist arguments of the Chicago economist Gary Becker and the Chicago jurist Richard Posner and his son, Eric (Gary Becker, Human Capital: A Theoretical and Empirical Analysis with Special Reference to Education (University of Chicago Press 1964); Gary Becker, A Treatise on the Family (Harvard 1981)). On the arguments by public choice economists to ‘homogenize the functioning of the state and the market, theoretically and practically’, see Pierre Dardot and Christian Laval, The New Way of the World: On Neoliberal Society (Verso 2013) 258. 47 Massimo De Angelis, The Beginning of History: Value Struggles and Global Capital (Pluto 2007) 89.

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42 Research handbook on law, environment and the global South This process of reductive flattening is visible in many details of legislation and jurisprudence. Reflecting its complex history, law has generally tended to layer, interleave or try to achieve some form of balance among elements of often quite distinct or even opposed traditions of practice, in a sort of conglomerate or palimpsest. Two of the most important traditions can be drastically abbreviated as those of capital accumulation and of what is often called the commons.48 For example, many traces remain visible in contemporary law of the working ‘commons’ assumption that, other things being equal, it is reasonable to do whatever it takes to ensure the survival or well-being of individual community members. One example is legislation governing universal pensions or health provision (which in Britain’s case was modelled on the Tredegar Medical Aid Society, a local mutual health provision organization set up by miners in South Wales with roots in the self-created commons institutions of 19thcentury European labour movements49). Such legislation embodies a vision of the human body as an instance of nature obdurately entangled with ‘unproductive’ and difficult-to-calculate cross-subsidies in support of a relatively unconditional right to subsist endowed upon the infirm, elderly or, or recalcitrant. Other simple examples come from criminal law, where there remains widespread resistance to, for example, performing ‘public interest’ cost-benefit analysis on, or setting fixed budgets in advance for, the practice of apprehending and prosecuting murderers, which thus remains partly unassimilated to economic calculation. Even the rapid proliferation of environmental regulation in the US from the mid-1960s through the 1970s can be viewed, James McCarthy suggests, as a modern-day effort to ‘establish common property in particular environmental goods at national scales’,50 implying, for example, the unconditional right to exist of various species including humans, as well as traces of an ecological holism, both of which tend to be obstacles to capitalist calculation. Not surprisingly, such conceptual elements of law have tended to become targets of neoliberal intellectual activists eager to establish the dominance of more or less capital-friendly over more or less commons-friendly legal concepts. The outcomes of this trend are visible not only in hostility to welfare and human rights legislation, but also in, for example, the tendency of HGAs and ISDS to insist that investors’ rights should trump subsistence rights. They appear, too, in the shifts in the legal concept of the person that gained momentum during the Ronald Reagan regime in the US. To quote legal scholar Lisa Heinzerling, ‘the use of cost-benefit analysis to evaluate life-saving regulatory programs’ required, in the US, ‘the creation of a new kind of entity … the statistical person’, as an abstract ‘collection of risks’ lacking the problematic, unconditional ‘right to be protected from physical harm caused by other 48 For some background on commons, see EP Thompson, Customs in Common (New Press 1993); Peter Linebaugh, The Magna Carta Manifesto: Liberties and Commons for All (University of California Press 2008); Silvia Federici, Caliban and the Witch: Women, the Body and Primitive Accumulation (Autonomedia 2004); George Caffentzis, In Letters of Blood and Fire: Work, Machines, and the Crisis of Capitalism (PM Press 2013). 49 John FM McDermott, ‘Producing Labor-Power’ (2007) 71(3) Science & Society 299; Graeber (n 9) 160–61. 50 McCarthy (n 8) 46.

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Neoliberalism, law and nature 43 people’ that had previously been assumed to be a possession of the person.51 Similarly, 1970s-era environmental legislation in the US was swiftly denounced by its critics as giving a new lease on life to atavistic legal concepts that would, it was said, destabilize capitalist calculation: hence claims that the Clean Air Act of 1970 amounted to a ‘growth ban’52 or that other forms of regulation promoted an irrational philosophy of sacrificing ‘jobs’ to a few exotic spotted owls. Many countries, meanwhile, have recently witnessed neoliberal legislative initiatives that attempt to flatten knowledge into ‘just another fungible commodity’53 rather than a common heritage – a trend that, in the case of Brazil in 2016, was met by protests including the takeover of more than 1,000 schools by the students themselves.54 One type of ecological struggle that has come to particular prominence recently stems from neoliberal pressures to flatten law’s conceptual landscape by transforming as many (juridical) fines for environmental harms as possible into (market) fees. From the point of view of legal neoliberalism, this is a useful simplifying measure that facilitates calculation, since fees, unlike fines, have no moral or commons residue. Once you pay a fee, your obligation is discharged and the exchange complete and closed-off, facilitating planning for efficient use of resources. Paying a fine, however, is not paying a price, but carries, for example, an open-ended injunction not to repeat the offence – which of course can have indefinite, difficult-to-calculate practical consequences – and can invite inconvenient political debates about entitlements and rights.55 Hence the US’s successful eleventh-hour campaign, during the 1997 Kyoto Protocol negotiations, to transform the fines for exceeding emissions limits which were to be paid into a Clean Development Fund, into prices paid for carbon emissions permits generated by carbon offset producers under a Clean Development Mechanism.56 Such moves, together with the rest of Kyoto’s carbon market apparatus, made the costs of responding to popular concern about global warming in principle more calculable for corporations, and also cheaper to handle, while giving more political planning power to private investors and providing business with new sources of rent.57 Significantly, the 51 Lisa Heinzerling, ‘The Rights of Statistical People’ (2000) 24 Harvard Environmental Law Review 189, 189–90; cf Cass R Sunstein, Laws of Fear: Beyond the Precautionary Principle (Cambridge University Press 2005); Cass R Sunstein, Risk and Reason: Safety, Law and the Environment (Cambridge University Press 2002). 52 Richard Lane, ‘Resources for the Future, Resources for Growth: The Making of the 1975 Growth Ban’ in Benjamin Stephan and Richard Lane (eds), The Politics of Carbon Markets (Routledge 2014), 27–50. 53 Mirowski and Sent (n 1). 54 Max Maciel, ‘Quando Ocupar se Torna um Ato Pedagógico’ Caros Amigos (24 October 2016) (on file with author). 55 Crouch (n 32) 64. 56 Herbert Docena, ‘Guilt, Blame, and Innocence in the International Climate Change Negotiations: The (Im)moral Origins of the Global Carbon Market’ (unpublished paper 2011, on file with author) 47; Larry Lohmann, ‘Beyond Patzers and Clients: Strategic Reflections on Climate Change and the “Green Economy”’ (Corner House, 2012), accessed at www.thecorner house.org.uk/resource/beyond-patzers-and-clients. 57 This perspective is also useful in grasping the new, colonial forms of privatized international environmental governance exemplified by green labels or certifications of ‘sustainability’ for which customers pay a premium. See Peter Vandergeest and Anusorn Unno, ‘A New

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44 Research handbook on law, environment and the global South subsequent EU ETS did mandate the imposition of fines on corporations that failed to buy the tradable pollution permits they needed to comply with the law – but these fines were deliberately set at levels comparable to anticipated permit prices, encouraging the conflation of the two. Here, as elsewhere, trends in environmental law reflect more general neoliberal legal shifts. In the US, for example, the fines that are very occasionally imposed on private financial institutions for fraudulent behaviour never exceed the sums the institution makes from the fraud itself. As anthropologist David Graeber notes, this is equivalent to the government’s saying, ‘you can commit all the fraud you like, but if we catch you, you’re going to have to give us our cut’.58 3. Landscapes of Criminalization and Decriminalization Integral to the trends outlined above are shifts in the landscape of what is considered criminal and noncriminal, and in the focus of enforcement authorities. As already noted, the early, simplistic insistence on the part of neoliberal ideologues on dismantling regulation paradoxically helped lead in the end to strident neoliberal demands for ‘big stick’ state strategies and ‘new forms of regulatory roll-out, governancemaking, and proactive statecraft’.59 These involved not only increased ‘penal management and punitive regulation, both of poverty and of poor subjects’,60 but many other innovations as well. First, intensified privatization and expansion of extraction to new frontiers has been accompanied by growing criminalization of commons and commoners. As new types of private property acquire legal protection, practices hitherto normal to various kinds of commons have become criminal offences, as when customary rights of way across newly privatized territories are legally blocked61 or farmers whose fields contain plants from patented seeds that they have not paid corporations a yearly fee to grow become subject to prosecution.62 In Latin America, seeds that are and have been used, exchanged and developed for thousands of years among small farmers have become illegal under new international-trade-related legal regimes, at the same time that those who plant them have become criminals subject to violent repression.63

Extraterritoriality? Aquaculture Certification, Sovereignty, and Empire’ (2012) 31(6) Political Geography 358. 58 Graeber (n 9). 59 Tickell and Peck (n 5) 178. 60 ibid. 61 Larry Lohmann, ‘Gas, Waqf and Barclays Capital: A Decade of Struggle in Southern Thailand’ (2008) 50(2) Race & Class 89. 62 Liza Smith, ‘Certified Seeds: Different Wars, Same Reasons’ (North American Congress on Latin America, 13 December 2013), accessed at http://nacla.org/blog/2013/12/13/certifiedseeds-different-wars-same-reasons. 63 For video testimonies of those affected by this new regime of criminalization, see Victoria Solano, ‘9.70’ (ÚneteAlPlaneta, 24 August 2013), accessed at www.youtube.com/ watch?v=bMpGDZ43N9k; El Colectivo de Semillas de América Latina, Semillas, ¿Bien Commun o Propiedad Corporativa? (June 2017), accessed at www.biodiversidadla.org/Principal/ Recursos_graficos_y_multimedia/Video/Video_-_Semillas_Bien_comun_o_propiedad_corporativa.

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Neoliberalism, law and nature 45 Commoners’ organized efforts to defend their territories have also been increasingly classified and suppressed as felonious actions across the Americas and Europe, with environmental activists subject to prosecution for offences such as terrorism, sabotage, criminal trespass, obstruction of public space, criminal contempt of court, extortion, conspiracy to incite criminal damage, and so on.64 The flip side of this wave of criminalization of environmental protection is a pattern of impunity granted to state authorities and others who murder, assault, coerce, defame or commit other crimes against commoners and environmental activists.65 On a less overtly violent level, environmentalists across the world, whether poor66 or middle-class,67 have become subject at least since the 1990s to lawsuits expressly aimed at consuming their time and

64 See, for example, Fábio de Castro and others (eds), Environmental Governance in Latin America (Palgrave Macmillan 2016); Observatorio de Conflictos Mineros de América Latina (OCMAL), Cuando Tiemblan los Derechos: Extractivismo y Criminalización en América Latina (OCMAL-Acción Ecológica, 2011), accessed at www.rebelion.org/docs/150198.pdf; OCMAL, Mapa de Conflictos Mineros, Proyectos y Empresas Mineras en América Latina (n.d.), accessed at http://basedatos.conflictosmineros.net/ocmal_db/. See also José Manuel AtilesOsoria, ‘The Criminalization of Socio-Environmental Struggles in Puerto Rico’ (2014) 4(1) Oñati Socio-Legal Series 85; M Manuel, ‘The Criminalisation of Environmental Activism in Europe’ LeftEast (24 September 2014), accessed at www.criticatac.ro/lefteast/criminalisation-ofenvironmental-activism-in-europe/; Philippa de Boissière and Thomas McDonagh, ‘Damming Dissent: How an Italian Multinational is Persecuting Environmental Defenders in Colombia’ (The Democracy Center, 23 January 2017), accessed at https://www.opendemocracy.net/en/ democraciaabierta/repression-and-persecuting-environmental-de/; Oscar Lopez, ‘Why Mexico’s Environmental Activists Fear for Their Lives’ Newsweek (15 March 2017), accessed at www.newsweek.com/2017/03/24/why-mexico-environmentalists-fear-murder-isidro-baldenegrolopez-567814.html. 65 Oxfam, The Risks of Defending Human Rights (Oxfam International, 2016), accessed at www.oxfam.org/en/research/risks-defending-human-rights; CONAIE, Con Violencia Desproporcionada, Militares Reprimen a Comuneros Shuar en Nankins y Detienen a Autoridades del Pueblo Shuar (22 November 2016), accessed at https://conaie.org/2016/11/22/con-violenciadesproporcionada-militares-reprimen-a-comuneros-shuar-en-nankins-y-detienen-a-autoridades-delpueblo-shuar/; Reid Wilson, ‘State Legislators Take Steps to Criminalize Protests’ (The Hill, 24 February 2017), accessed at http://thehill.com/homenews/state-watch/321018-state-legislators-takesteps-to-criminalize-protests; Spencer Woodman, ‘Lawmakers in Ten States Have Proposed Legislation Criminalizing Peaceful Protest’ (The Intercept, 23 January 2017), accessed at https:// theintercept.com/2017/01/23/lawmakers-in-eight-states-have-proposed-laws-criminalizing-peacefulprotest/; Daniel A Medina, ‘Pipeline Protesters Decry North Dakota Bills That “Criminalize” Protests’ (NBC News, 13 January 2017), accessed at www.nbcnews.com/storyline/dakota-pipelineprotests/pipeline-protesters-decry-north-dakota-bills-criminalize-protests-n706681. As the 17thcentury English popular rhyme had it, ‘The law locks up the man or woman/ Who steals the goose from off the common/ But leaves the greater villain loose/ Who steals the common from off the goose’. 66 Oranuch Phonpinyo, ‘Forest Conflicts in Thailand: State vs. People’ (World Rainforest Movement, 4 April 2017), accessed at http://wrm.org.uy/articles-from-the-wrm-bulletin/section1/ forest-conflicts-in-thailand-state-vs-people/. 67 George W Pring and Penelope Canan, SLAPPs: Getting Sued for Speaking Out (Temple University Press 1996).

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46 Research handbook on law, environment and the global South resources or intimidating them into refraining from exercising their rights to free speech.68 Criminalization of commons and commoners shares historical roots with criminalization as a general capitalist strategy for building and rebuilding racialized regimes of divide-and-rule. The post-1960s crisis, to which neoliberalism was a response, stemmed in part from a series of refusals. Not only did oil producers refuse to keep prices low. Women also increasingly refused to do the unpaid reproductive work that had sustained the Fordist deal; paid workers themselves increasingly refused the discipline of the workplace; oppressed minorities increasingly refused the structures that enforced a racist division of labour;69 and so on. As is generally the case, these refusals were closely bound up both with attempts to defend and reclaim commons and efforts to build cross-racial alliances against capitalist oppression. The neoliberal counterattack thus necessarily had to embrace, in addition to increasingly violent efforts to scour the earth for fresh cheap labour and resources together with increasingly energetic and innovative attempts at rent-seeking, a project to reconstruct along new lines racial divides that had come under challenge from antiracist and anticolonialist movements. It is no coincidence that the same post-1960s neoliberal era has seen both the increased criminalization of commons forms of nature and an innovative structural use of criminal categories to enforce a global racial division of labour and divide black and white popular movements from each other. Thus US political leaders such as Ronald Reagan have presided over both sweeping new privatization initiatives and the institution of a system of mass incarceration that has established a ‘new Jim Crow’ racial caste system through which millions of black men are denied economic and political rights for life.70 At the same time that the Donald Trump regime embarks on 68 Such lawsuits, widespread in the US, UK, Australia, Canada, Brazil, Japan and elsewhere, ultimately prompted resistance leading to counteracting legislation in many jurisdictions. 69 On the historical functions of racism, see Immanuel Wallerstein, Historical Capitalism (Verso 2011) 78–80, 83–5, 103–5, 122, 153–5. 70 Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colourblindness (The New Press 2012). Alexander identifies the current regime of mass incarceration of blacks as the third main system of structural racial division devised in the US. The first, slavery, became entrenched partly in response to a unified black-white movement of agricultural workers against the planter elite in the 1700s; the second, Jim Crow, in response to the abolition of slavery. Alexander’s work suggests the use of the term ‘criminalization’ may actually be misleading as a description of the motor of the current regime, in the sense in that the criminal justice system in the US is ‘no longer concerned primarily with the prevention and punishment of crime, but rather with the management and control of the dispossessed’. See also James Forman Jr., ‘Racial Critiques of Mass Incarceration: Beyond the New Jim Crow’ (2012) 87(1) New York University Law Review 21 and James Forman Jr., Locking Up Our Own: Crime and Punishment in Black America (Farrar, Straus and Giroux 2017); Rania Khalek, ‘21stCentury Slaves: How Corporations Exploit Prison Labor’ (Alternet, 21 July 2011), accessed at http://www.entelekheia.fr/2017/03/02/21st-century-slaves-how-corporations-exploit-prison-labor/; Dorothy Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty (Vintage 2000); Ta-Nehisi Coates, Between the World and Me (Text Publishing 2015); Douglas A Blackmon, Slavery by Another Name: The Re-Enslavement of Black Americans from the Civil War to World War II (Knopf Doubleday Publishing Group 2009) and Ruth Wilson Gilmore,

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Neoliberalism, law and nature 47 programmes for aggressively redistributing more wealth from poor to rich, it also associates immigrants from Mexico (a generally more law-abiding proportion of the US population than others) with ‘murder’, ‘rape’ and so forth.71 Meanwhile, the corporatefunded American Legislative Exchange Council, in addition to writing and promoting model bills that promote unrestrained fossil-fuel extraction, also helps draft laws criminalizing blacks and expanding the use of below-minimum-wage prison labour.72 Thus while the 2010 blowout of the Deepwater Horizon oil drilling rig in the Gulf of Mexico was a predictable result, both of the continuing move to riskier frontiers of petroleum extraction and a lack of investment in safety, both trends are of a piece with BP’s practice, following the spill, of bypassing local residents in procuring low- or zero-cost black prison labour to try to clean up the devastated Louisiana coast.73 No coincidence, then, that BP became the target at one and the same time of a lawsuit filed by local activists in an Ecuadorian court for violations of the rights of the Gulf of Mexico using the ‘rights of nature’ articles in Ecuador’s 2008 constitution and of sharp criticism from the US’s National Association for the Advancement of Coloured People (NAACP) for its racially biased practices.74 In a parallel case, the international outrage following the shooting by a white police officer of an unarmed black teenager in Ferguson, Missouri in 2014 cannot be understood as if it were isolated from a longer history of administrative and police abuses, land grabs and environmental racism in the region.75 For example, the Ferguson area is the site of one of the world’s first nuclear waste dumps, of World War II vintage, now under threat of breach from an underground fire spreading from a nearby landfill owned by a waste-management company of which Bill Gates owns a large share.76

Golden Gulag: Prisons, Surplus, Crisis and Opposition in Globalizing California (University of California Press 2007). 71 Bess Levin, ‘Mexican Rapists, Voter Fraud, People Being “Cut Up“: Trump’s “Tax Reform” Speech Goes Slightly off the Rails’ Vanity Fair (5 April 2018), accessed at https:// www.vanityfair.com/news/2018/04/trumps-tax-reform-speech-goes-off-the-rails/; Greg Grandin, ‘Trump Is Fetishizing Death to Justify His Cruelty at the Border’ The Nation (5 March 2019), accessed at https://www.thenation.com/article/trump-death-cruelty-border-patrol-immigration/. 72 The Center for Media and Democracy, Index of PRWatch Articles about ALEC (2017), accessed at www.prwatch.org/content/index-prwatch-articles-about-alec; Mike Elk and Bob Sloan, ‘The Hidden History of ALEC and Prison Labor’ The Nation (1 August 2011), accessed at www.thenation.com/article/hidden-history-alec-and-prison-labor/; John Nichols, ‘ALEC Exposed’ The Nation (12 July 2011), accessed at www.thenation.com/article/alec-exposed/. 73 Abe Louise Young, ‘BP Hires Prison Labor to Clean Up Spill While Coastal Residents Struggle’ The Nation (21 July 2010), accessed at www.thenation.com/article/bp-hires-prisonlabor-clean-spill-while-coastal-residents-struggle/. 74 Benjamin Todd Jealous, ‘NAACP: What We Want to See from BP’ The Grio (9 July 2010), accessed at http://thegrio.com/2010/07/09/naacp-what-we-want-to-see-with-bp/. 75 See, for example, United States Department of Justice, Civil Rights Division, Investigation of the Ferguson Police Department (4 March 2015). I am indebted for information about Ferguson’s history to Eliandra Williams of the Highlander Center. 76 Stephanie Cornish, ‘Near Ferguson, Nuclear Waste Fears Haunt Burning Landfill and Community’ Afro (13 April 2016), accessed at www.afro.com/near-ferguson-nuclear-waste-fearshaunt-burning-landfill-and-community/.

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48 Research handbook on law, environment and the global South As new categories of criminal have come into being, so, too, have new classes of noncriminal. The process of financialization that has been one of neoliberalism’s signature responses to the post-1960s crisis has meant that an ever-increasing proportion of corporate profits come in the form of rent extraction, which customarily works through various forms of legal extortion, trickery or enforcement of inherited privilege. Thus, for example, financial gambling practices that were once illegal have been quietly and gradually decriminalized. As Donald MacKenzie observes, while in 1970, many financial derivatives that are traded today, such as the Chicago Mercantile Exchange’s S&P 500 futures, would have been illegal, by 2005, ‘financial derivatives contracts totaling $329 trillion were outstanding worldwide, an astonishing figure that correspond[ed] to roughly $51,000 for every human being on earth’. Burton Rissman, the former counsel of the Chicago Board Options Exchange, has explained that ‘whereas we were faced in the late 1960s and early 1970s with the issue of gambling’, that issue ‘fell away’ in the wake of the advent of the Black-Scholes formula for option pricing. ‘It wasn’t speculation or gambling, it was efficient pricing’.77 Similarly, while the US’s Investment Company Act of 1940 made it illegal for investment companies to short sell or use leverage,78 restrictions have ‘generally eased in recent decades’ at the same time that many investors have simply retooled themselves so that they do not fall into the category of ‘investment company’ – for example, by becoming ‘hedge funds’.79 US bankers who employed legally questionable practices to bankrupt hundreds of thousands of ordinary people in the lead-up to the financial crisis were seldom charged, convicted or imprisoned, while in some states an assembly line of deliberately perfunctory eviction hearings has helped dispossess untold numbers of homeowners.80 Another notable neoliberal shift in the landscape of criminalization and decriminalization has been in what is and is not treated as corruption. As revolving doors between government and business multiply and the ‘flat ontology’ to which Mirowski and Sent refer takes firmer hold in legal practice, what were once considered to be ‘conflicts of interest’ are now typically regarded instead as ‘synergies’ that promote processes of accumulation that are in the interests of all.81 The concept of corruption is narrowed in ways that allow it to be used against individual public officials accepting bribes but not against private corporations that pay them; league tables of global corruption issued by 77 Donald MacKenzie, ‘Is Economics Performative? Option Theory and the Construction of Derivatives Markets’ in Donald MacKenzie and others (eds), Do Economists Make Markets? On the Performativity of Economics (Princeton University Press 2007) 64. 78 For investors to ‘short sell’ or ‘short’ securities is to sell securities that they do not own, for example by borrowing them in the expectation that when they have to be returned to their owners their prices will have fallen. Investors use ‘leverage’ when they buy securities using borrowed money. 79 MacKenzie (n 34) 39. 80 Matt Taibbi, ‘Invasion of the Home Snatchers’ Rolling Stone (10 November 2010), accessed at www.rollingstone.com/politics/news/matt-taibbi-courts-helping-banks-screw-overhomeowners-20101110. 81 See, for example, Michael Slezak, ‘Marrakech Climate Talks: Giving the Fossil Fuel Lobby a Seat at the Table’ The Guardian (6 November 2016), accessed at www.theguardian. com/environment/2016/nov/07/marrakech-climate-talks-giving-the-fossil-fuel-lobby-a-seat-at-thetable and Philip Mirowski, Never Let a Serious Crisis Go to Waste: How Neoliberalism Survived the Financial Meltdown (Verso 2013) 218–19.

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Neoliberalism, law and nature 49 organizations such as the Milken Institute and Transparency International are invariably lists of countries, not lists of corporations. The ‘private gain at public expense’ achieved by US Congressional representatives who use government office supplies for campaign purposes is legally defined as corruption, but not the ‘private gain at public expense’ integral to the operation of neoliberal initiatives such as private-public partnerships or the EU Emissions Trading Scheme, which engineer massive grants of public goods and nonhuman nature to the private sector.82 In the last 20 years or so, the concept of corruption has also been conspicuously redefined to stigmatize practices that appear procedurally or administratively ‘nontransparent’ to transnational corporate strategists, but not practices that appear politically ‘nontransparent’ to commoners – for example, opaque mechanisms of legal dispossession deployed by some of the same corporations represented (corruptly) within the policymaking process.83 The neoliberal age has also been increasingly marked by the deployment of experts in science and technology to craft environmental policy and regulation even in cases in which they themselves benefit materially from the commercial exploitation of the technologies in question, with biotechnology being a prime example.84 4. More Privatization, More Rules As the examples discussed in this section have suggested, transformations in law have played an important role in the kinds of appropriation and redistribution of common or public goods that are characteristic of the neoliberal economy. A final example of these changes is the recent explosion in the sheer volume of written law worldwide. Giving the lie to the false cliché that the advance of ‘free markets’ has lightened the burden of clunky, archaic, ever-ramifying legal rules on a suffering society, this growth in the body of written law is hard to quantify or even conceptualize, and no systematic studies appear to have been done at a global level. But the jump has been unmistakable since the 1970s and more particularly since the 1990s, as trade treaties multiply, privatization legislation ramifies, new forms of property emerge, tax laws complexify, financial

82 In the case of the EU ETS, European governments’ grants of the global good of the earth’s carbon-cycling capacity to European private corporations are arguably interpretable as ‘bribes’ paid to reward business for participating in the scheme at all. 83 Peter Bratsis, ‘The Construction of Corruption, or Rules of Separation and Illusions of Purity in Bourgeois Societies’ (2003) 21(4) Social Text 9; Peter Bratsis, ‘Political Corruption in the Age of Transnational Capitalism: From the Relative Autonomy of the State to the White Man’s Burden’ (2014) 22(1) Historical Materialism 105; Nicholas Hildyard, ‘Corrupt but Legal: Institutionalised Corruption and Development Finance’ (The Corner House, 2016), accessed at www.thecornerhouse.org.uk/resource/corrupt-legal; Larry Lohmann, ‘Regulation as Corruption in the Carbon Offset Markets’ in Steffen Böhm and Siddhartha Dabhi (eds), Upsetting the Offset: The Political Economy of Carbon Markets (Mayfly Books 2009) 175–91; Mark E Warren, ‘The Meaning of Corruption in Democracies’ in Paul M Heywood, Routledge Handbook of Political Corruption (Routledge 2015) 42–56. 84 See, for example, Aarti Gupta and Robert Falkner, ‘The Influence of the Cartagena Protocol on Biosafety: Comparing Mexico, China and South Africa’ (2006) 6(4) Global Environmental Politics 23.

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50 Research handbook on law, environment and the global South sector rulebooks swell and law codes governing market environmentalism grow.85 As Donald MacKenzie observes, ‘although we think of the current epoch as one of ‘deregulation’ of markets, rules are proliferating’.86 Associated with globalized neoliberal governance and the ‘rollout’ of the neoliberal state, the expansion in the mass of written law, this subsection will argue, is an integral part of private sector efforts to seize already-created value. The story behind this expansion is complex and its significance for struggles over human and nonhuman nature not easily summarizable. But several factors stand out. First is the need of various sectors of globalizing capital to be able to learn how to plan and organize their exercise of power across a diverse range of countries at the same time, using supportive national and international legal arrangements to ‘sequester key economic policy issues beyond the reach of explicit politicization’.87 In the words of David Graeber, so-called ‘free trade’ and ‘free market’ policies have ‘entailed the self-conscious completion of the world’s first effective planetary-scale administrative bureaucratic system’, which is ‘mainly aimed at ensuring the extraction of profits for investors’. This system encompasses, at the top, global policymaking ‘trade bureaucracies like the IMF, World Bank, WTO and the G8, along with treaty organizations like NAFTA or the EU’. Situated just below are ‘large global financial firms like Goldman Sachs, Lehman Brothers, American Insurance Group, or, for that matter, institutions like Standard & Poor’. Then come ‘transnational mega-corporations’, and finally NGOs that ‘provide many of the social services previously provided by government’.88 This centralization is also, unavoidably, complexification. Just as what rules of English a learner of English needs varies depending on what language those rules are expressed in, so too what laws and enforcement mechanisms capital needs in specific contexts will differ in complicated ways depending on the histories of the societies in question. As Stephen K Vogel observes in a study of telecommunications and financial services industries as well as the broadcasting, transportation and utility sectors during the 1980s and 1990s, the ‘advanced industrial countries moved toward liberalization or freer markets at the same time that they imposed reregulation or more rules’, with different states driving legal reforms in ways that ‘combined liberalization and reregulation in markedly different ways’:89

85 The phenomenon, of course, is not without precedent. As David Graeber suggests, there is nothing new about the tendency of state initiatives that claim to ‘promote market forces’ and ‘reduce red tape’ to ‘have the ultimate effect of increasing the total number of regulations, the total amount of paperwork’, and even the ‘total number of bureaucrats the government employs’ as well as the violence on which they ultimately rely. Indeed, Graeber goes so far as to call this tendency the ‘Iron Law of Liberalism’, noting that, historically speaking, markets themselves have generally been ‘either a side effect of government operations, especially military operations, or … directly created by government policy’. See Graeber (n 9). 86 MacKenzie (n 34) 27. 87 Tickell and Peck (n 5) 175. 88 Graeber (n 9). 89 Stephen K Vogel, Freer Markets, More Rules: Regulatory Reform in Advanced Industrial Countries (Cornell University Press 1996).

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Neoliberalism, law and nature 51 … a movement aimed at reducing regulation increased it; a movement propelled by global forces reinforced national differences; and a movement that purported to reduce state power was led by the state itself.90

By the same token, efforts to introduce markets for carbon across the world have produced so many different rules, and so many different climate commodities, that the original aim of using the schemes to simplify climate regulation globally is increasingly understood to be unachievable.91 In a sense, this is just how global capital works. As Karl Polanyi pointed out more than 70 years ago, the road to the ‘free market’ has to be ‘opened and kept open by an enormous increase in … interventionism’ and ‘deliberate state action’.92 ‘An increase in state power has always been the inner logic of neoliberalism’, writes John Gray, ‘because, in order to inject markets into every corner of social life, a government needs to be highly invasive’.93 Where circumstances vary, the nature of that invasion is bound to vary, too. Similarly, when heretofore diverse practices need to be integrated vertically or horizontally under corporate control (as they do, for example, when agribusiness companies try to amalgamate proprietary herbicides with proprietary genetically modified seeds, or mix contract farming with control of retail outlets to increase surplus extraction and offload risk), new kinds of rules and criminals are bound to proliferate. At a certain point, centralizing ambitions turn out not to lead to simple rules that work smoothly everywhere, but rather the opposite, as rules formulated in one context are revealed to be ineffective in others, or to be interpretable in unexpected, inconvenient ways, requiring further, improvised applications of violence, jurisprudence or legislation. The same will be true of any further sets of rules that are formulated in an attempt to correct the so-called ‘failures’ of the first. Hence the growing cascade of revised rules, repackagings, endlessly failing and ramifying technical fixes, ‘mission drifts’ and appeals to force that characterize the stories of international development, industrial agriculture, cost-benefit analysis, genetic engineering, contemporary tax law, ecosystem-service exchange and so forth.94 Geographer Nicholas Blomley’s finding that ‘simplification is complicated’95 appears paradoxical only under the idealistic assumption that global action must ultimately be the implementation of a single set of universal rules. ibid, synopsis. Jessica F Green, ‘Don’t Link Carbon Markets’ (2017) 543(7646) Nature 484. 92 Karl Polanyi, The Great Transformation (first published 1944, Beacon 2001). 93 John Gray, ‘The Neoliberal State’ New Statesman (11 January 2010), accessed at www.newstatesman.com/non-fiction/2010/01/neoliberal-state-market-social. 94 See, for example, Larry Lohmann, ‘Missing the Point of Development Talk: Reflections for Activists’ (The Corner House, 1998), accessed at www.thecornerhouse.org.uk/resource/ missing-point-development-talk; Viola Sampson and Larry Lohmann, ‘Genetic Dialectic: The Biological Politics of Genetically Modified Trees’ (The Corner House, 2000), accessed at www.thecornerhouse.org.uk/resource/genetic-dialectic; and Larry Lohmann, ‘Marketing and Making Carbon Dumps: Commodification, Calculation and Counterfactuals in Climate Change Mitigation’ (2005) 14(3) Science as Culture 203. 95 Nicholas Blomley, ‘Simplification is Complicated: Property, Nature, and the Rivers of Law’ (2008) 40(8) Environment and Planning A1825. 90 91

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52 Research handbook on law, environment and the global South But the hypertrophy of the body of written law is not just an accidental consequence of the globalization of the neoliberal project. It is also something that – and this is a second explanation of the phenomenon – is often actively cultivated by business in an era when an especially high premium is placed on rapid and continuous innovation of methods of appropriation by legal contract and legislation. When rent-seeking becomes an especially prominent source of profit, capturing value through ‘legalized extortion’96 and impenetrable forms of trickery can be as important to a business as creating it by exploiting new sources of cheap labour or investing in heavy machinery. For example, law is central in devising as many transactional ‘tollgates’ as possible to capture flows of already-created value in the process of privatization of public goods. The more such law there is, moreover, the more difficult it becomes for ordinary people to contest or even understand it, while large corporations with the resources both to pursue specific cases and to invest in the process of crafting legislation itself enjoy huge advantages.97 Across the world of finance, taxation and privatization, it has become increasingly common over recent decades for private lawyers, consultancies and accountancies to draft their own complex, opaque laws which are then ratified by legislators who are either members of, or paid by, the wealthiest classes. Here, too, the effect is to expand the body of law rather than streamline it. Different kinds of public-private partnership, for instance, tend to require different laws. Also feeding (and feeding off) legal complexity is the tireless drive to generate new financial products that has marked the neoliberal age. For example, the original 1988 Basel treaty regulating bank capital requirements, 30 pages long, was soon seen as unable to accommodate the fine distinctions among risks that quantitative analysts’ new mathematical models had supposedly begun to provide. By 1996, bank lobbyists had succeeded in getting an amendment inserted that permitted banks to use their own internal models to determine (and reduce) their capital requirements. The Basel II treaty of 2004 reinforced this shift and also laid down new rules for derivative positions, enabling yet more leverage while incentivizing the development of still more alleged risk management technologies. The result was 347 pages of new law that hid even greater complexity in the form of individual banking and trading books that encompassed millions of parameters that told observers that risk was falling when in reality it was increasing. As finance expert Kevin Dowd, himself an old-school neoliberal ideologue, notes, both the denominator and the numerator in regulated risk-weighted capital ratios were being gamed: The move to more complicated regulation based on the banks’ own models was strongly promoted by the big banks themselves as it gave them more scope to ‘play the system’— indeed, the regulatory system itself was captured by them.98

Graeber (n 9). Particularly prominent among the US firms that spent $4.2 billion on political activities during one recent 4-year electoral cycle, predictably, were firms in the high-risk end of the financial sector. 98 Kevin Dowd, ‘Math Gone Mad: Regulatory Risk Modeling by the Federal Reserve’ (2014) 754 Policy Analysis (CATO Institute) 1. 96

97

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Neoliberalism, law and nature 53 Nevertheless, the post-financial crisis Basel III treaty of 2010, weighing in at 616 pages, merely added further law to the system without changing its basic orientation. As Dowd notes, a similar trajectory can be traced in other forms of neoliberal financial regulation. While the US Federal Reserve Act of 1913 was 31 pages long, the Glass-Steagall Act of 1933, 37 pages, and even the Sarbanes-Oxley Act of 2002 only 66 pages, the Dodd-Frank Act of 2010 is 848 pages long and instructed bureaucrats to formulate a rulebook that was likely in the end to run to 30,000 pages. In many countries, tax law, revised again and again in order to ‘stimulate the economy’ and subsidize the rich, exhibits a similar pattern of growth in sheer mass. So does environmental regulation, especially where it has become subject to ‘flexibilityincreasing’ marketizing amendment. While environmental legislation in the style of the US in the 1970s was already very complex, the addition to it of market-based mechanisms has resulted in an indefinite proliferation of legal means of appropriation of unprecedented baroqueness and opacity. For example, the clause setting up the Clean Development Mechanism (CDM) in the 1997 Kyoto Protocol was approximately one page long, but by 2016 there were 240 – some separate approved methodologies in the CDM rulebook through each of which corporations could, in effect, make sui generis international property claims to a portion of the earth’s carbon-cycling capacity in order to save themselves regulatory costs. Each of these measures for asserting property rights was justified differently. Among these justifications were such outlandish yet impossible-to-disprove propositions as that firms were saving measurable carbon emissions over a counterfactual baseline by providing solar power for domestic airline gate operations or by rolling out biomass plantations for fuel for cement manufacture. Hundreds of pages of arcane English-language documentation – impenetrable to most affected communities and most climate change activists alike – were involved in establishing each of thousands of individual global property claims.99 A third important factor in the neoliberal explosion in the volume of written law is growing strategic exploitation of ‘grey areas’ of alegality on the part of corporations. The possibility of such grey areas, of course, is an integral part of all legal systems, simply because the interpretation of every rule depends on ‘forms of life’100 whose relevant characteristics can never be completely spelled out in advance, but which constitute law’s unstated, unspecifiable consensual basis. When those forms of life are altered in ways that arouse sufficiently widespread concern, laws must be amended or ‘debugged’ to resolve the unanticipated ambiguities newly forced into public consciousness. What is new about the neoliberal age is the power that private sector actors now exercise in deliberately rearranging these forms of life – via financial engineering, technological innovation, new techniques for squeezing labour, and so on – in ways that outpace the capacity of judiciaries and legislators to resolve the resulting alegalities 99 United Nations, CDM Methodology Booklet (8th edn, United Nations 2016), accessed at https://cdm.unfccc.int/methodologies/documentation/1611/CDM-Methodology-Booklet_full version_PART_1.pdf. 100 This term is due to Ludwig Wittgenstein, Philosophical Investigations (Cambridge University Press 1953). See also David M Finkelstein, ‘How to Do Things with Wittgenstein: The Relevance of Wittgenstein’s Later Philosophy to the Philosophy of Law’ (2010) 8 Journal of Jurisprudence 647.

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54 Research handbook on law, environment and the global South into legalities and illegalities. Corporations are benefiting, in other words, not only by seeing to it that laws are promulgated that explicitly serve their interests, and not only by discovering and exploiting ‘loopholes’ after laws are passed. Increasingly systematically, they are also benefiting by calculatedly creating and maintaining huge, temporary zones conducive to appropriation in which their actions can enjoy the status of being, if not clearly ‘legal’, at least not clearly ‘illegal’. This state of affairs is highly conducive to further growth of the mass of written law. The more law is formulated to reduce grey areas, the more possibilities for corporate fabrication of even more extensive grey areas open up, in turn incentivizing still more efforts to close them, and so on ad infinitum. This branch of business strategy is not new.101 But under neoliberalism, it has moved much closer to the centre of the economy. As law professor Frank Partnoy points out, Enron’s prodigious performance between 1985 and 2001 was due largely to practices that were not illegal but ‘alegal’. Similar successes have been achieved by Bankers Trust, Cendant, Long-Term Capital Management, CS First Boston, Merrill Lynch, Global Crossing, WorldCom, California’s Orange County102 and Goldman Sachs, which recently ‘helped’ Greece get around Maastricht Treaty rules by inventing new derivatives deals unanticipated by existing law, enabling the firm to lend money to the country without seeming to do so.103 The innovative online transportation company Uber Technologies was able to operate for several years in a grey area of alegality it opened up by its manipulation of the incompletely specified tacit basis for minimumwage laws, at least until an employment tribunal ruled that it did not have the right to classify its drivers as ‘self-employed’.104 In the US, private equity firms have reworked Chapter 11 of the Bankruptcy Code into a financial engineering tool enabling corporations to dump pension bills onto a government-backed agency, depriving workers and retirees of benefits to which they would otherwise be entitled.105 In the 101 See, for example, William Cronon, Nature’s Metropolis: Chicago and the Great West (Norton 1992) on how abstract classification of grades of railroad-transportable commercial maize opened up opportunities for market corners in the 19th-century US, or Frank Partnoy, The Match King: Ivar Kreuger, the Financial Genius behind a Century of Wall Street Scandal (Public Affairs 2010) on financial engineering scams of the 1920s that were only belatedly met with securities reform legislation. 102 Frank Partnoy, Infectious Greed: How Deceit and Risk Corrupted the Financial Markets (Henry Holt 2009) 296. See also Frank Partnoy, ‘Wall Street Beware: The Lawyers Are Coming’ Financial Times (19 April 2010), accessed at www.ft.com/content/d2af9178-4b1f-11df-a7ff00144feab49a. 103 Nicholas Dunbar, The Devil’s Derivatives: The Untold Story of the Slick Traders and Hapless Regulators Who Almost Blew Up Wall Street … and Are Ready to Do It Again (Harvard Business Review Press 2011) 21–3. 104 Hilary Osborne, ‘Uber Loses Right to Classify UK Drivers as Self-Employed’ The Guardian (28 October 2016), accessed at www.theguardian.com/technology/2016/oct/28/uberuk-tribunal-self-employed-status. See also Mark Graham, ‘Let’s Make Platform Capitalism More Accountable’ New Internationalist (13 December 2016), accessed at https://newint.org/blog/ 2016/12/13/making-platform-capitalism-more-accountable. 105 Elizabeth A Lewis, ‘A Bad Man’s Guide to Private Equity and Pensions’ (Edmond J Safra Center for Ethics, Working Papers Series 68, 2015), accessed at https://papers.ssrn.com/sol3/ papers.cfm?abstract_id=2620320.

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Neoliberalism, law and nature 55 UK, accountancy firms such as Ernst & Young, KPMG, Deloitte and PricewaterhouseCoopers go so far as to craft proprietary zones of alegality for sale as a central part of their business model. Taking advantage of revolving doors connecting them with government, they draft tax laws complete with carefully mapped-out potential grey areas, knowledge about which they then peddle to other companies for profit.106 Pace the natural impulse of many well-intentioned regulators and activists, this trend cannot be reversed through a strategy of legal reform alone. On the contrary, promulgating more and more explicit legal rules in the ‘above-the-surface’ mass of the iceberg of law, without contesting growing corporate dominance over and manipulation of the incompletely specifiable ‘below-the-surface’ mass of forms of life, is certain only to make things worse.107 Formulating the gigantic 600-page Volcker rulebook for financial actors, for example, has done little more than help generate large numbers of gameable ‘alegal’ exemptions that render it largely ineffective. In the environmental field, no sooner are ‘green safeguards’, ‘green certification rules’, ‘green standards’ and the like rolled out in order to reform prior law than capital finds creative ways to undermine the tacit background assumed by their advocates. The guidelines propounded by the Forest Stewardship Council and the Roundtable on Sustainable Palm Oil, for example, as well as the rules of Free Prior Informed Consent recently incorporated into international institutional practice, have all in the end provided sophisticated new weapons to corporations bent on cheap appropriation of raw materials.108 This is not to imply that written law is harmful or that the ongoing increase in its mass somehow ‘causes’ an erosion in democratic power, nor that the answer is less written law or no law. To make such a claim would be to revert to the fetishistic binaries that, in opposing ‘nature, a living actuality, to a nonpresent, regulating ideality’, seek a ‘universality’ for law in its ‘difference from the actuality of … history’ and the order of rule ‘in terms of its difference from the arbitrary violence of the past’.109 The point is, rather, to be aware that in the current situation, reformers seized by the regulatory impulse to reach for ‘more enlightened laws’, ‘more safeguards’, 106 Jones (n 16); Prem Sikka, ‘The Predatory Practices of Major Accountancy Firms’ The Guardian (8 December 2012), accessed at www.theguardian.com/commentisfree/2012/dec/08/ predatory-practices-accountancy-firms. 107 To see the importance of this point, it may be useful to conduct a thought-experiment contrasting two hypothetical communities. In one, there are no written rules whatsoever, yet a shared form of life that enables a judiciary to ‘know how to go on’ in unexpected circumstances in ways that always turn out to be broadly acceptable by the community. Here the law is literally no more than a ‘prediction about what a judge would do’, in Oliver Wendell Holmes’ words. Yet, in all the most important senses, what is often called ‘the rule of law’ prevails. In the other community, by contrast, there exists a gigantic and ever-growing Talmudic body of ‘enlightened’ legal statutes that cover more and more contingencies, yet few democratically shared ‘forms of life’ to underpin it. The result is a sense of widespread unfairness, arbitrariness and violence – the opposite of what is conveyed by the phrase ‘the rule of law’. 108 See, for example, World Rainforest Movement, Certifying the Uncertifiable: FSC Certification of Tree Plantations in Thailand and Brazil (World Rainforest Movement 2003) and Alexander Dunlap, ‘“A Bureaucratic Trap:” Free, Prior and Informed Consent (FPIC) and Wind Energy Development in Juchitán, Mexico’ (2017) Capitalism Nature Socialism 1. 109 Mitchell (n 22) 78–9.

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56 Research handbook on law, environment and the global South ‘better standards’, ‘increased accountability’ and so on, need to link their efforts to practical anticapitalist struggle in coherent ways. Otherwise their actions are likely to end up merely providing ‘air cover’ for the development of a less democratic and even more violent and arbitrary political landscape, and to silence conflict-laden histories in a process of denial, differentiation and exclusion.

C. NEOLIBERAL LAW, NEOLIBERAL NATURE 1. Nature as Historical This chapter has argued that one important aspect of neoliberalism has been the reorganization of law, including that of its tacit underpinnings. This reorganization cannot be separated from the reorganization of nature.110 Contending with the destructive tendencies of neoliberal law cannot be a matter of reforming it so that it better respects a ‘nature’ conceptualized as separate and ahistorical. For example, to say that the law should be reformed on an ‘ecocentrist’ as opposed to an ‘anthropocentrist’ model is to fail to take account of the fact that the ‘eco’ in ‘ecocentrism’ changes in time and space as a part of the same processes through which the law itself changes in time and space. These processes must be addressed as a whole.111 For example, the rights of way marked on UK Ordnance Survey maps denote characteristic ecologies inextricable from a regime of overlapping and mutually constraining commons and private property rights. Changing the ecology of a public right of way (for example, by putting a barbed-wire fence across it or planting maize over it) is the same as to skew the commons/private balance of legal rights in the countryside in favour of the latter. Similarly, the suburban US lawn is a kind of nature tied to laws defining exclusionary private property rights as well as laws enabling and constraining a hugely capital-intensive global oil industry.112 Many nonhuman elements visible on a contemporary mining site, meanwhile, are partly constituted by concession law and the rights of corporations to sue states or environmental protesters. By the same token, the muang faai wet-rice irrigation system of Northern Thailand is a type of nature inextricable from community rules governing certain commons of human work as well as rules of respect for the spirit of the rice.113 Conversely, the law contained in the Paris Climate Agreement, the EU Emissions Trading Scheme, REDD+, NAFTA, and so forth is built up partly out of natures or human-nonhuman ecologies created in 110 See, for example, Jason W Moore and Tom Keefer, ‘Wall Street is a Way of Organizing Nature: An Interview with Jason Moore’ (2012) 12 Upping the Anti: A Journal of Theory and Action 39. See also Jason W Moore, Capitalism in the Web of Life (Verso 2015). 111 See Bruno Latour, We Have Never Been Modern (Harvard University Press 1993). To borrow the words of Morgan Robertson (n 42), ‘neoliberalism isn’t something that happens to the environment, it is something that happens with and through the environment, and its story is far more complicated than the privatization and commodification of nature’. 112 Paul Robbins, Lawn People: How Grasses, Weeds, and Chemicals Make Us Who We Are (Temple University Press 2007). 113 Chatchawan Thongdeelert and Larry Lohmann, ‘The Muang Faai Irrigation System of Northern Thailand’ (1991) 21(2) The Ecologist 101.

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Neoliberalism, law and nature 57 the post-war period. Thus, to say (for example) that the laws governing ecosystem service markets should be promulgated and enforced in ways that better protect ecosystem services is to invite confusion. The recent evolution of nature as ecosystem services is itself part of the problem.114 The international climate and biodiversity treaties that have been developed since 1992 and the late-20th-century nature of ecosystem services are mutually constituting; their contradictions and injustices need to be addressed together. All such historical natures are by definition constructed on a base of prior natures with whose other descendants they tend to coexist uneasily. Thus, the new ‘averaged’ global natures of ecosystem service trading are built partly out of the 18th- and 19th-century nature of ‘natural resources’ and the early-to-mid-20th-century nature of ‘ecosystems’, as well as the 1970s US-style nature partly constituted by ‘molecularunit’ regulation. All of these natures share an inheritance in the society/nature binaries that have characterized capitalism for many centuries, and have been deeply entrenched in various state, legal, scientific, educational, engineering and international institutional practices, as well as in the changing physical makeup of the world. But each also has its own distinctive dynamics. Struggles over and against neoliberalism must also be struggles over and against the complex, historically inflected ways in which environment and environmental knowledge have become constituted in the neoliberal era. Like the commodities and rents of earlier eras of capitalism, the novel commodities and rents of neoliberalism are as much ‘transnatural’ as ‘transcultural’,115 dependent on newly fashioned, richly contradictory ecological ‘outsides’ that are a ‘source of both its energies and its failures’.116 To get a deeper feel for the need to unify contemporary struggles regarding neoliberal law and neoliberal nature, it may be helpful to look at a concrete case of battles that are being joined today. The remainder of this chapter will examine the contradictions and conflicts that grow out of the neoliberal incarnation of that ancient element that is today at the core of the politics and law of climate change: fire. 2. Neoliberal Law, Neoliberal Fire As with other aspects of nature, the nature of fire has changed markedly over history. Different kinds of society in different kinds of places have tended to be associated with different kinds of fire regime, and vice versa. In South Africa, for instance, as fire historian Stephen Pyne observes, fire is as fundamental to fynbos (a biotically rich shrubland or heathland unique to the region) as ‘spark plugs to an automobile’: Like other ecosystems, however, fynbos is adapted not to ‘fire’ in the abstract but to particular local regimens of fire – to fire in certain seasons, with certain intensities, with frequencies that vary by year and decade. Randomly firing the plugs won’t drive an engine; the sparks must be timed, and the timing will vary with the engine speed and flow of fuel into its 114 Larry Lohmann, ‘What is the “Green” in “Green Growth”?’ in Gareth Dale and others (eds), Green Growth: Ideology, Political Economy and the Alternatives (Zed Books 2016) ch 2. 115 Lohmann (n 23). 116 Timothy Mitchell, Rule of Experts: Egypt, Techno-Politics, Modernity (University of California Press 2002) 303.

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58 Research handbook on law, environment and the global South combustion chambers. In fynbos the flow of fuel is measured by biomass and regulated by organic pumps that follow the life cycle of the plants that make it up.117

Such fire regimes cannot be understood in abstraction from human communities and their history. In Australia, for instance: … aboriginal burning beginning at least 38,000 years ago ensured not only the pervasiveness of the fire which has shaped the continent’s tough and unique biota, but also its permanence. Even the fabled botanical biodiversity of southern Pará in Brazil … is perhaps 40 per cent attributable to anthropogenic disturbance, an impact not possible without fire … The study of a ‘pure’ fire regime without human participation, dear to some ecologists, is a fantasy. Fire ecology has to incorporate the pathways of human institutions and knowledge as fully as biogeochemical cycles of carbon and sulphur.118

Fire regimes may be conceptualized at different scales and resolutions, with the global scale becoming increasingly important for the fire analysis of the neoliberal era. Just as the ‘local’ fire regime prevailing at Yellowstone National Park – one influential paradigm case of modern ‘nature’ – can be said to have changed around 1880 when indigenous peoples were driven out, and then changed back again after 1970, when indigenous fire norms regained scientific approval, so too can the ‘world’ fire regime be said to have changed over the past few centuries roughly from one in which there was much more fire in agriculture and forests than there is today, and no fire in combustion chambers, to one in which there is less fire in the open and an enormous amount within combustion chambers. Cities like Los Angeles, Quito or Sydney display this shift in graphic microcosm. In the plantations or Mediterranean scrub on the slopes above such cities, there is, roughly speaking, too little moderating, fertilizing fire (resulting in occasional explosive, destructive outbreaks of catastrophic, property-threatening wildfire),119 while in the built-up areas there is too much fire in combustion chambers and boilers (resulting in other local and worldwide dangers too well known to need enumerating). This transformation in the structure of world fire is also visible in the history of labour and law. Changes in agricultural fire regimes in Europe associated with legal enclosure and early modern capitalism, for instance, contributed to ecological crises, eventually stimulating the development of various ‘fixes’ requiring, first, brutal labour exploitation in the Peruvian guano islands (accompanying the intensified worker exploitation in European factories facilitated by fossil-fuel use),120 then continued brutal exploitation in the Atacama desert saltpetre deposits at the turn of the 20th century (leading to, among other events, the 1907 Iquique massacre) and then the 1913 Haber-Bosch fertilizermanufacturing process with all its further, complex accompaniments of which a significant contribution to accelerating climate change is only one example. 117 Stephen J Pyne, ‘Fire Planet: The Politics and Culture of Combustion’ (Corner House Briefing (No 18), 2000), accessed at www.thecornerhouse.org.uk/resource/fire-planet. 118 ibid. 119 Rory Carroll and Haroon Siddique, ‘California Wildfires: 120,000 Forced to Flee as Blazes Tear through South of State’ The Guardian (8 December 2017), accessed at www. theguardian.com/us-news/2017/dec/08/wildfires-southern-california-forcing-120000-to-flee. 120 Lohmann and Hildyard (n 19).

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Neoliberalism, law and nature 59 Partly as a result of legal reforms, neoliberal nature has now added new elements to the global fire regime of fossil-enhanced industrial capitalism. The post-1970 ‘transformation of environmental regulation into tradable instruments’,121 together with the increasingly abstract, ‘averaged’, ‘liquid’ nature122 to which it gives rise, goes ‘all the way down’ into the daily lives of rural dwellers and their land and ‘all the way up’ into increased oil extraction, global energy prices and so forth. Two brief examples will serve to illustrate the point. First, neoliberal fire builds on and reinforces a certain pattern of criminalization and noncriminalization that is implicit in, for instance, the ‘normal’ interpretation of photographs of the burning outskirts of Los Angeles, Sydney or Quito. Behind the visible flames in these pictures there is usually a story not only about an inadequately controlled or menacing external ‘nature’ but also, typically, about criminal activity.123 The flames invisibly raging inside the thousands of factories and internal combustion-engined vehicles that also frequently appear in such pictures, on the other hand, are invisible in the photos. Implicitly, these fires tend to be understood not only as noncriminal, but also as examples of a kind of civilization and control over humans and nonhumans that is to be encouraged. This pattern applies across the internationalized fire regime of industrial capitalism (see, for example, the ways in which, in standard development discourse, the elaborate, pejorative mythology of ignorant Third-Worlders practising ‘slash and burn’ agriculture complements the profound silence that prevails regarding fossil-fuel combustion) and is embodied in legal codes everywhere. Much of this prejudicial framing of criminality/noncriminality stretches back at least to the long 16th century. But it has been strengthened significantly by the market environmentalism of the neoliberal age. A good example is the Dutch-Ecuadorian FACE/Profafor project.124 This was a carbon ‘offset’ scheme structured in a way that simultaneously ‘decriminalized’ a certain increment of fossil-fuel burning in Dutch electricity generating stations while ‘criminalizing’ long-established patterns of openland burning in one region of the strongly fire-dependent páramo ecosystems of the Ecuadorian high Andes. In the 1990s, the Otavalo Kichwa community of Mojandita de Avelino Ávila accepted a net US$11,700 from NV SEP, the Dutch Electricity Generating Board, to maintain new exotic pine plantations on 130 ha of their formerly treeless páramo lands as supposed carbon sinks for Dutch fossil emissions, contributing zero-cost collective minga work and community funds toward the process. As elsewhere, such plantations had a deleterious effect on local human-nonhuman relations,

Moura-Costa (n 39). Bram Büscher, ‘Nature on the Move I: The Value and Circulation of Liquid Nature and the Emergence of Fictitious Conservation’ in Bram Büscher and others (eds), NatureTM Inc.: Environmental Conservation in the Neoliberal Age (University of Arizona Press 2014) 183. 123 Mike Davis, Ecology of Fear: Los Angeles and the Imagination of Disaster (Vintage 1999). 124 Ivonne Yanez, ‘Josefina and the Water Springs against Pine Plantations in Ecuador’s Páramos’ (World Rainforest Movement, 11 March 2015), accessed at http://wrm.org.uy/articlesfrom-the-wrm-bulletin/section1/josefina-and-the-water-springs-against-pine-plantations-in-ecuadorsparamos/. 121 122

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60 Research handbook on law, environment and the global South particularly those involving water. Unsurprisingly, pachamama125 turned against the pine plantations and 70 hectares were consumed by fire; the rest caught fire some time afterwards, eventually resulting in the rejuvenation of local springs. However, these biotic fires constituted a breach of contract that exposed the community to penalties of $35,100 – more than three times the cash payment they had received to host the plantations in the first place. That added to stresses in the community that could well have resulted in, for example, longer-term erosion of its detailed knowledge of fire stewardship. A type of fire materially responsible for the murderous effects of global warming was thus shielded from being regarded as criminal (on the contrary, it actually became viewed as a source of funds for protection of the earth’s atmosphere), while another type of fire that had no such damaging effects was criminalized in new ways in the course of being legally integrated into novel international circuits of investment.126 A second example of the sweeping changes brought about by the complex combining of neoliberal regulation and neoliberal fire centres on the property rights that have recently been created to the cheap, financializable units of regulatory relief that are traded in ecosystem-service markets. Such units include tonnes of CO2-equivalent, species equivalents, wetland water quality units and so forth. Ensuring that these tokens can function in international trade entails complex systems of ownership, measurement and standardization, requiring continuous negotiations and more or less incoherent compromises among lawmakers, lawyers, economists, scientists and technicians of many kinds. In the process, what count as ‘fire’, ‘climate’, ‘air quality’ and ‘pollution’ all undergo fundamental changes. ‘Pollution’, for example, changes from locatable toxic discharges in particular jurisdictions into an averaged global abstraction, and is regarded under new environmental laws as having disappeared provided it is ‘offset’. It becomes an aspect of a new ‘degraded nature’ that – like ‘risk’ in an age of financial derivatives – is located in a space that has fewer footholds for ordinary people to assert their interests. Under neoliberal climate change treaties, in addition, CO2 pollution changes into ‘CO2-equivalent’ pollution: carbon dioxide becomes exchangeable with other greenhouse gases such as methane, nitrous oxides, chlorofluorocarbons and so forth. What are the effects of the advent of these neoliberal forms of nature on ordinary people, their surroundings and the global climate? In a carbon offset project located partly in Chiapas, Mexico, as Tracey Osborne documents, the ‘centralization of forest governance and decision-making into the hands of project implementers and brokers, the necessity for legible land rights and boundaries, and the technical requirements for measurement, calculation, and monitoring of carbon have reshaped forest governance’, altering what goes on among both nonhuman and human denizens of local forests and 125 Roughly, the earth/time mother deity revered by indigenous people in the Andes – one with few parallels with Cartesian notions of ‘nature’ or popular European notions of ‘Mother Earth’. 126 Neoliberalism’s nature modifies existing landscapes of corruption as well as of other kinds of criminality. For example, unverifiable criteria such as ‘additionality’ and sanitized concepts such as ‘grandfathering’ – both part of the machinery of ecosystem service markets – help open new horizons of corruption, yet are not themselves regarded as corrupt. See Lohmann, ‘Marketing and Making …’ (n 94) and Lohmann (n 83), as well as the extensive archive of reportage on scams involving forest carbon offsets in Chris Lang’s REDD-Monitor, accessed at www.redd-monitor.org.

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Neoliberalism, law and nature 61 fields.127 In rural Chhattisgarh, India, coal-fired sponge iron factories have been helped to survive through new income streams based on their ownership of notional efficiency improvements under the CDM, perpetuating ash contamination of rice fields, respiratory disease, and groundwater depletion.128 In the US, timber investment management organizations assert property claims over their land’s carbon-cycling capacity in order to bundle it profitably together with the timber, holiday home plots, conservation easements and other assets that make up their portfolios.129 Crucial to the evolution of the new legal property regimes is a process of flattening of the diversity of fire regimes that transcends even that already engendered by fossil capitalism. In order to make possible the comparison and circulation of ownable, cost-saving ecosystem-service tokens, the common so-called ‘carbon-saving’ aspects of activities as unrelated as the digestion of cattle and counterfactual efficiency ‘savings’ in fossil-fuelled cement factories, are emphasized at the same time that climatological differences between carbon dioxide emissions of fossil and of biotic origin are de-emphasized, together with the structural, physical, ecological and political distinctions between fire in, say, Mojandita de Avelino Ávila and fire in, say, the Holcim cement works in Dottenhausen. It is only through this process of abstraction that it becomes possible to construct, for example, the ‘global cost-curves’ that McKinsey & Company once produced hierarchizing carbon emissions mitigation methods. Such curves rate mitigation techniques exclusively according to how efficiently they might be able to fabricate units of climatic regulatory relief in industrialized countries. Thus clinker substitution by fly ash is said to cost little but unfortunately also to have low ‘abatement potential’, while annexation of pasturelands for tree plantations supposedly has more ‘abatement potential’ but also entails somewhat higher costs.130 In this way, just as neoliberalism tends to flatten what was previously a more complex and varied landscape of legal concepts, so too the radically simplified, molecular/global, measurement- and market-friendly conception of fire as oxidation on which neoliberal climate regulation is based further flattens the landscape of fire. To create units of ‘climate benefit’ that corporations will regard as worth owning, livelihood relations involved in different fire regimes must be disrespected, even destroyed. This flattening of fire regimes also engenders systematic stupidity, as the intertwined global histories 127 Tracy Osborne, ‘Tradeoffs in Carbon Commodification: A Political Ecology of Common Property Forest Governance’ (2015) 67 Geoforum 64. See also Sara Pena-Valderrama, ‘Entangling Molecules: An Ethnography of a Carbon Offset Project in Madagascar’s Eastern Rainforest’ (PhD thesis, Durham University 2016), accessed at http://etheses.dur.ac.uk/11475/. 128 Soumitra Ghosh and Subrat Kumar Sahu (eds), The Indian CDM: Subsidizing and Legitimizing Corporate Pollution (National Forum of Forest People and Forest Workers, NESPON and Society for Direct Initiative for Social and Health Action 2011). 129 Kelly Kay, ‘A Hostile Takeover of Nature? Placing Value in Conservation Finance’ (Financialization of Nature Conference, University of Sussex, 19–20 March 2015). 130 McKinsey & Company, Pathways to a Low-Carbon Economy: Version 2 of the Global Greenhouse Gas Abatement Cost Curve (2009), accessed at https://www.mckinsey.com/~/media/ McKinsey/Business%20Functions/Sustainability/Our%20Insights/Pathways%20to%20a%20low %20carbon%20economy/Pathways%20to%20a%20low%20carbon%20economy.ashx. See also Nathaniel Dyer and Simon Counsell, ‘McREDD: How McKinsey “Cost-curves” are Distorting REDD’ (Rainforest Foundation UK, Climate and Forests Policy Brief, November 2010).

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62 Research handbook on law, environment and the global South of labour, commons, thermodynamic energy, capital and global warming are obscured, along with the roots of climate change itself.131 One specific entailment of the property rights system required for markets in global warming mitigation is imperialism in a strict, formal sense. As Romain Felli has emphasized, emissions allowances under arrangements such as the EU ETS amount to rentable use-rights in the carbon-cycling capacity of the earth.132 Accordingly, for states to be able to grant or auction off this property to corporations, they must first annex capacities that have evolved as parts of specific fire regimes now located outside their own borders – for example, the pathways of gas exchange, with all of their nonhuman-human relations, that have been endowed into the Australian bush through thousands of years of indigenous stewardship, or into agricultural soils elsewhere through peasant or small-scale agriculture. The other type of token traded in carbon markets – offsets – meanwhile entails imperialism not only in virtue of being exchangeable for these allowances, but in additional senses as well. Owners of offsets in effect lay claim to benefits that flow from improvements they make in the atmospheric carbon budget that they assert would not have happened otherwise. That claim presupposes measurements of those improvements against single ‘business-asusual’ scenarios. Specifying such a scenario entails eliminating all other scenarios from the realm of reasonable possibility.133 That imposes the methodological requirement of dismissing the possibility of alternative fire-worlds – including innumerable climatefriendly ones – that might be different from the hypothetical ‘baseline’ world imagined by a particular offset producer in order to get his or her offset certified by state regulators. This reduction of the history of the ‘unproductive, uninformed native’ to a single, predetermined trajectory is, again, a classic attribute of racist imperialism. It pre-emptively excludes many indigenous, peasant and workers groups from a voice in the future of fire.134

131 See Andreas Malm, ‘Fossil Capital: The Rise of Steam-Power in the British Cotton Industry c. 1828–1840 and the Roots of Global Warming’ (PhD thesis, Lund University, 2014); George Caffentzis, No Blood for Oil: Essays on Energy, Class Struggle, and War 1998–2016 (Autonomedia 2017); Jason W Moore (ed), Anthropocene or Capitalocene? Nature, History, and the Crisis of Capitalism (PM Press 2016); Lohmann and Hildyard (n 19); Robert N Proctor and Londa Schiebinger, Agnotology: The Making and Unmaking of Ignorance (Stanford University Press 2008). 132 Felli (n 38). 133 In a less stringent form, this is also, of course, a methodological requirement for the neoliberal assertion of property rights to specifiable ‘future profits’ made by corporations. 134 Ironically, forest carbon offset project proponents often claim that their aims are to advocate indigenous agency and self-determination, defend indigenous land rights, and ‘revive indigenous culture’ through neoliberal means. See, for example, Jeremy Russell Smith, The West Arnhem Land Fire Abatement Project (WALFA) (Tropical Savannas CRC, 2010 – on file with the author). I am grateful to Julia Dehm for this reference.

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Neoliberalism, law and nature 63

CONCLUSION: LEGAL ACTIVISM IN A NEOLIBERAL AGE Effective research and activism in the field of environment and law requires an understanding of how profoundly both have changed under neoliberalism. The growth of the neoliberal state amid productivity crisis and the move to a more financialized, rent-based global economy has been accompanied by sweeping legal innovations relating to property, trade, investment, rent and criminality, as well as an expansion in the mass of written law and in the gaming of legislation. Part and parcel of these shifts have been newly marketized regimes of environmental regulation, which have necessitated and given rise to novel types of nature (ecosystem services), whose structural differences from natures with longer histories, such as commons and resources, must also be grasped. All of these changes – whether in the state, in the law, or in nature – are associated with systematic patterns of oppression with both familiar and unfamiliar elements. Legal scholars and other activists, whatever stance they take and whatever activities they engage in, will inevitably be locating themselves somewhere on this new terrain of oppression. Making intelligent choices about where they want to be in order to make a difference presupposes having information about what locations are available today, which in turn is likely to require contact with scholars and popular movements situated well outside the legal profession itself. For example, while lasting and deep, recent setbacks for popular efforts to achieve an effective, collective climate politics – setbacks exemplified by the divisive neoliberal innovations of the Kyoto Protocol of 1997, the EU ETS of 2005 and the Paris Agreement of 2015, together with REDD, REDD+, ‘climate-smart agriculture’ and so forth – are not irreversible. But for legal scholars and activists to be able to lend support to the popular struggles that are currently contesting such imperialist, racist governance structures requires more than just trying to add more written rules to them to make them fairer, using their appeal procedures in new ways, or studying international law to find out how environmental treaties might be negotiated a bit differently. It also demands a strategic vision that takes into account the political forces that are changing the very meaning of law and environment today, the historical dynamics through which these changes are taking place, and the movements capable of helping to move the politics of law in different directions. Concepts such as Stephen Pyne’s ‘fire regimen’, George Caffentzis’s ‘work/energy’ and Ecuadorian social movements’ ‘post-petroleum civilization’ will be crucial footholds from which efforts animated by such a vision can be launched.135

135 Pyne (n 117); Caffentzis (n 48); Ivonne Yanez, ‘Post-Petroleum Societies: For the Defence of Forests and Peoples’ Rights, for Harmony between Human Beings and Nature’ (World Rainforest Movement, 3 December 2013), accessed at http://wrm.org.uy/articles-fromthe-wrm-bulletin/section1/post-petroleum-societies-for-the-defence-of-forests-and-peoples-rightsfor-harmony-between-human-beings-and-nature/.

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4. Radical well-being alternatives to development Ashish Kothari

INTRODUCTION It is easy, and understandable, to be pessimistic in today’s world. Brexit in UK, Trump’s victory in USA and signs of other right-wing resurgence in many parts of the world, a setback to the peace process in Colombia, the continuing wars, conflicts and dispossession in central Africa and west Asia resulting in massive exodus of ‘refugees’, a massively disruptive demonetization in India, and, as if this was not enough to heat things up, many of the hottest years in recorded history: the mid-2010s have been a doomsday forecaster’s dream period. In such dark days, do we have hope for the future? I believe we do. For these years have also seen a massive build-up of people power, folks in millions spilling out into the streets to protest despotic rule and corruption and inequalities and the madness of ‘development’. While this is the more visible part of the expression of people wanting a more just, equitable and peaceful world, there are also quieter elements, equally important. These are the ‘everyday acts of reconstruction’ (with apologies to James Scott for modifying his phrase),1 complementary to those of resistance. They come in myriad forms, from assertions of democratic decision-making by local collectives to experiments in ecologically sensitive production systems, from re-commoning of urban spaces to democratization of knowledge and technology, from alternative learning centres to socially controlled media, from experiments in gender equity to explorations in multiple sexualities, from indigenous peoples’ assertion of territorial and epistemological identity to the takeover of production facilities by workers … and much more. Together, they constitute a ‘blessed unrest’2 that appears to be growing wider and stronger. By no means are these initiatives and movements capable, as yet, of transforming the situation at a macro-political and economic level, to adequately counter the forces that continue to drive humanity towards obscene inequalities and ecological suicide. But they provide bright pinpoints of inspiration and hope, the potential for transformative change, the seedlings of what could possibly be massive kalpavrikshes.3 Combined

1 James Scott, Weapons of the Weak: Everyday Forms of Peasant Resistance (Yale University Press 1987). 2 Paul Hawken, Blessed Unrest: How the Largest Movement in the World Came into Being and Why No One Saw it Coming (Viking 2007). 3 ‘Trees of imagination’ which grant everyone their wishes, referred to in ancient Indian mythology; but also several actual tree species in India such as the coconut, that are used for multiple purposes, are given this nomenclature.

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Radical well-being alternatives to development 65 with the increasing mobilization of people against centralized political and economic power, these alternative initiatives could well be the foundation of a saner, more just future. This chapter explores the architecture of such a future, based on real-life examples of practice and conceptualization that are found across the world. It has a heavy focus on India as I am more familiar with this region, but it also brings on board experiences from many other countries and peoples.

A. ALTERNATIVES TO WHAT? Before we get into the alternatives, it is important to ask: alternatives to what? Inequities and wars and climate crisis and biodiversity loss are only symptoms of deeper structural forces. Concentrations of power, whether political in the hands of the state, economic in the hands of corporations, socio-cultural in the hands of men or some ethnic/racial groups, or epistemological in the hands of modern science and technology and ‘experts’, and the alienation of humanity from the rest of nature, are at the root of the problems we are confronting. We therefore need fundamental or systemic alternatives to stateism, capitalism, patriarchy, anthropocentrism, and sociocultural hegemonies of any kind. This also means that we cannot be satisfied with solutions that deal only with symptoms; these include technofixes like geoengineering, market mechanisms like carbon trading, mere reformist measures such as green growth and economy, individualistic acts like recycling that are not embedded in structural changes to modes of production and consumption, and so on.4 In a deep sense, the search is not merely for alternative (or sustainable) development, but for alternatives to development, in so far as its concept and practice is based on the culturally hegemonic notion of a unidirectional, universal movement of ‘undeveloped’ to ‘developed’, and is inextricably linked to the ever-expanding use of materials and energy. As brought out brilliantly in The Development Dictionary5 and a number of other essays and studies in the last couple of decades, the project of development has been profoundly disruptive for the global South, and the planet as a whole. Tinkering around with it by attaching prefixes like ‘sustainable’ or ‘inclusive’ does little to challenge these inherent flaws.6

Gareth Dale, Manu M Mathai and JP de Oliveira, Green Growth: Ideology, Political Economy and the Alternatives (Zed Books 2016); Thomas Fatheuer, Lili Fuhr and Barbara Unmüßig, Inside the Green Economy: Promises and Pitfalls (Green Books 2016); Ashish Kothari, Federico Demaria and Alberto Acosta, ‘Buen Vivir, Degrowth and Ecological Swaraj: Alternatives to Sustainable Development and the Green Economy’ (2014) 57 Development 362. 5 Wolfgang Sachs, The Development Dictionary: A Guide to Knowledge as Power (Zed Books 1992). 6 Ashish Kothari, Ariel Salleh, Federico Demaria, Arturo Escobar and Alberto Acosta (eds), Pluriverse: A Post-Development Dictionary (Tulika Books and Authors Upfront 2019). 4

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66 Research handbook on law, environment and the global South

B. THE ARCHITECTURE OF RADICAL WELL-BEING ALTERNATIVES In the embattled transboundary region straddling Turkey, Syria and Iraq, the Kurds are attempting a bold experiment in feminist, ecologically sensitive democracy.7 Halfway across the world the Zapatista of Chiapas in Mexico have already been practising their own brand of autonomy since the early 1990s, based on principles of direct democracy, localized economic self-sufficiency, and open learning.8 In the southern Indian state of Andhra Pradesh, Dalit (so-called ‘outcaste’ or ‘untouchable’) women farmers have achieved food sovereignty by reviving biodiverse, millet-based farming using their own seeds, credit and knowledge, and fighting off state-led or capitalist agro-industries.9 In Barcelona, Spain, the Cooperativa Integral Catalan caters to food, housing and other needs of several thousand people through producer-consumer links, a local currency called ECO and the revival of relations of caring and sharing.10 In some parts of Latin America, indigenous and Afrodescendant peoples are making ‘Life Projects or Plans’ that put their knowledge, wisdom and visioning centre-stage, in some cases after having claimed full rights to their territories.11 Several communities in different African regions are demonstrating through agro-ecological experiments that they are not quite the ‘basket case’ that the West makes Africa out to be, and that their struggle is more against the continuing neo-colonial practices of western ‘aid’ than against their own lack of capacity.12 These are a tiny sample of thousands of initiatives across the world, showing how human well-being can be achieved in ways that are just and relatively equitable, ecologically sensitive, providing dignity, empowerment and social security. They demonstrate transformation in five broad spheres, interconnected and overlapping: ecological, political, economic, social, and cultural. In an ongoing process of confluences and visioning in India that bring together movements and groups working on alternatives, the Vikalp Sangam,13 these spheres are described thus:

Anja Flach, Ercan Aybogˇa and Michel Knapp, Revolution in Rojava (Pluto Press 2016). Levi Gahman, ‘Food Sovereignty in Rebellion: Decolonization, Autonomy, Gender Equity and the Zapatista Solution’ (2016) 7(4) Solutions 77. 9 Ashish Kothari, ‘Seeding an Agrarian Revolution in India’ Earth Island Journal (14 December 2015), accessed at www.earthisland.org/journal/index.php/elist/eListRead/seeding_ an_agrarian_revolution_in_rural_india/. 10 Cooperativa Integral Catalana, accessed at http://cooperativa.cat/en. 11 See the Life Projects Network, accessed at http://www.lifeprovida.net/lifeprovida/ index.php?lang=en; Central Ashaninka del Rio Ene, Kametsa Asaike: el vivir bien de los Asháninka del Rio Ene (Agenda Política de la CARE 2011). 12 Oakland Institute, Agroecology Case Studies (n.d.), accessed at www.oaklandinstitute.org/ agroecology-case-studies. 13 Vikalp Sangam, accessed at http://www.vikalpsangam.org/article/vikalp-sangam-outputs/ #.XR2g-y2B1E5. 7 8

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Radical well-being alternatives to development 67 a.

b.

c.

d.

e.

Ecological integrity and resilience, including the conservation of nature and natural diversity, maintenance of ecological functions, respect for ecological limits (local to global) and ecological ethics in all human actions. Direct and delegated democracy, with decision-making starting in spaces enabling every person to participate meaningfully, and building from this to larger levels of governance by downwardly accountable institutions; and all this respectful of the needs and rights of those currently marginalized. Economic democracy, in which local communities and individuals have control over the means of production, distribution, exchange and markets, based on the principle of localization for basic needs and trade built on this; central to this would be the replacement of private property by the commons, and increasing focus on the economy of caring and sharing. Social well-being and justice, including fulfilling lives (physically, socially, culturally and spiritually), equity between communities and individuals, communal and ethnic harmony; and erasure of hierarchies and divisions based on faith, gender, caste, class, ethnicity, ability and other attributes. Cultural diversity and knowledge democracy, with multiple co-existing knowledge systems in the commons, respect for a diversity of ways of living, ideas and ideologies, and encouragement to creativity and innovation.

Let us examine each of these below, and how myriad initiatives are already pointing to the possibility of achieving them. 1. Ecological Integrity and Resilience It is amazing how many people still need to be convinced that without a healthy environment, no amount of development or progress will mean much. Despite overwhelming evidence of how the neglect and violation of basic ecological principles and limits is rebounding on us, the latest being the very visible signs of climate crisis, humanity continues to behave as if it is somehow independent of nature, immune in its techno-bubble. Fortunately, a rapidly growing ecological movement, and increasing awareness of the above, is slowly changing this reality. A number of exciting trends are visible: the assertion of indigenous peoples’ ways of ‘living lightly’ from whom Homo industrius could learn a lot, the spreading phenomenon of ‘indigenous peoples’ and community conserved territories and areas’ (ICCAs), the restoration of ecosystems and species once thought to be doomed, dramatic clean-ups of pollution and waste (such as in some of Europe’s rivers), rediscovery of ancient technologies that have become even more relevant today (like mud architecture) and the invention of new ones that revolutionize energy and materials efficiency (e.g. cradle to cradle technologies), the growing body of scientific evidence showing humanity’s impact on the planet, and much else. Of the above, ICCAs are worth mentioning in more detail. Community conservation of forests, wetlands, grasslands and coastal/marine areas, as also wildlife populations

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68 Research handbook on law, environment and the global South and species, is spread over hundreds of thousands of sites across the world; they possibly cover as much if not more of the earth’s surface as do official ‘protected areas’.14 Underlying these trends is a connection with the earth, a realization of an ancient truth that we are part of nature, not separate from it. Many peoples never lost this truth but are making it explicit as part of the assertion of their self-identity and sovereignty; others who lost it due to notions of modernity, or for other reasons, are rediscovering it. A relatively new reflection of these is the attempt to give nature legal agency and rights, as in the case of the Ecuadorian Constitution (2008) which extends to nature the right to ‘full respect for its existence and the maintenance and regeneration of its vital cycles, structure, functions and evolutionary processes’, the Bolivian Law of the Rights of Mother Earth (2010),15 the recognition of the rights of a river as a legal entity in an agreement between the New Zealand government and the Whanganui River iwi indigenous people, and an Indian court’s recognition of the rivers Ganga and Yamuna as ‘persons’ with fundamental rights.16 These have strong ethical and spiritual foundations, and even mainstream religions are expressing alarm at the ecological degradation and the need to take drastic action, as in the Encyclical ‘Care for our Common Home’ issued by the Pope in 2015, and a statement on the climate crisis by Islamic clerics shortly thereafter.17 2. Direct Democracy: Power to Communities A crucial governing principle of the Zapatista in the Chiapas of Mexico, or of the Kurdish autonomous region in west Asia (both referred to above), is that of direct or radical democracy. This not only goes beyond but in some crucial ways transforms the paradigm of ‘representative’ democracy that most countries have adopted, which is based primarily on elections, majoritarianism, and the accumulation of power at levels of governance well above the general public. Decision-making starts from the smallest, most local unit in rural and urban areas (such as village and neighbourhood assemblies), and flows into expanding spatial units See a series of publications at www.iccaconsortium.org/index.php/category/publicationsen/key-resources-en/consortium-key-resources-en/. 15 United Nations Environment Programme (UNEP), ‘Development Strategies of Selected Latin American and Caribbean Countries and the Green Economy Approach: A Comparative Analysis’ (UNEP, Discussion Paper 2013). 16 Global Alliance for the Rights of Nature, Whanganui River Given Rights as a Legal Identity (8 September 2012), accessed at http://therightsofnature.org/rights-of-nature-laws/ whanganui-river-given-rights-as-a-legal-identity; Ashish Kothari and Shrishtee Bajpai, ‘Rivers and Human Rights: We Are the River, the River Is Us?’ 52/35 Economic and Political Weekly Engage (2 September 2017). 17 Holy Father Francis, ‘Encyclical Letter: On Care for Our Common Home’ (24 May 2015), accessed at http://w2.vatican.va/content/francesco/en/encyclicals/documents/papa-francesco_ 20150524_enciclica-laudato-si.html; Islamic Declaration on Global Climate Change, (2015), accessed at https://unfccc.int/news/islamic-declaration-on-climate-change. For a commentary on the Encyclical Letter, see Ashish Kothari, ‘Pope’s Encyclical: Is this the Push the World Needed?’ India Together (18 August 2015), accessed at http://indiatogether.org/articles/pope-s2015-encyclical-op-ed. 14

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Radical well-being alternatives to development 69 (such as governance institutions at landscape, district, state, provincial and national levels). Gandhi characterized this as a system of ‘oceanic circles’. Power emanates outwards or upwards from the basic units of governance, seeking to make larger-scale institutions of decision-making accountable to these basic units. A key principle is that of subsidiarity, denoting that all decisions that can be taken at the smallest or most local institutional level will be taken there, and larger level institutions handle only those functions that local ones cannot, such as landscape level management, coordination of some kinds, or handling of large-scale transportation operations. In India, the indigenous village of Mendha-Lekha has practised direct democracy for nearly three decades.18 Its slogan neatly encompasses the above principle: ‘In Mumbai and Delhi is the government we elect, but in our village, we are the government’. All decisions are taken by consensus in the full village assembly, based on information generated by abhyas gats (study circles). A struggle against a big dam that was to displace Mendha-Lekha and dozens of other villages, in the 1980s, brought home to the villagers the importance of self-mobilization. Since then the village has conserved 1,800 ha of surrounding forest, and recently gained full rights to use, manage and protect it under the Forest Rights Act 2006, reversing a couple of centuries of colonial and post-colonial top-down governance of forests.19 It has moved towards fulfilment of all basic requirements of food, water, energy and local livelihoods, including through the sustainable harvesting of bamboo from the forest. In Venezuela’s consejos comunales, neighbourhood assemblies arose in the 1980s with the slogan ‘we don’t want to be government, we want to govern’. In the last few years, several thousand of these assemblies have been formed to experiment with direct democracy processes, with support and sponsorship of the government.20 They consist of between 150 and 400 families, a size that makes face-to-face consultation, deliberation and decision-making very feasible. Their main function has been the improvement of living conditions through the self-management of social services and government-funded projects, but they were also supposed to be part of President Chavez’s call for ‘a radical restructuring of the spatial-political organization of the country under the rubric of “a new geometry of power”’.21 In many instances the connection with the state and the ruling political party appears to have compromised 18 Neema Pathak and Vivek Gour-Broome, Tribal Self-Rule and Natural Resource Management: Community Based Conservation at Mendha-Lekha, Maharashtra, India (Kalpavriksh and International Institute of Environment and Development 2001); Milind Bokil, Kahani Mendha Gaon Ki (National Book Trust 2015). 19 Neema Pathak and Erika Taraporewala, Towards Self-Rule and Forest Conservation in Mendha-Lekha Village, Gadchiroli (Report of a Consultation for an ICCA Consortium and IUCN TILCEPA-TGER project sponsored by GTZ, Kalpavriksh 2008); Vasundhara and Kalpavriksh, A National Report on Community Forest Rights under Forest Rights Act: Status and Issues (Vasundhara, Kalpavriksh and Oxfam India 2012). 20 Dario Azzellini, ‘The Communal State: Communal Councils, Communes and Workplace Democracy’ (2013) 46(2) NACLA Report on the Americas 25. 21 Arturo Escobar, ‘Latin America at a Crossroads: Alternative Modernizations, PostLiberalism, or Post-Development?’ (2010) 24 Cultural Studies 1; Edgardo Lander, ‘Venezuela: The Bolivarian Experience in the Struggle to Transcend Capitalism’ (Paper for Working Group ‘Beyond Development’ of Rosa Luxemburg Foundation presented at Quito, May 2017).

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70 Research handbook on law, environment and the global South their independence and their sustainability when the state has withdrawn financial or other support; in other instances where they were connected to local movements and had the ability to self-organize, they have led to more autonomous processes. Obviously, units of direct face-to-face democracy have larger level connections; they are not isolated entities. Many operations need to be coordinated and managed at much larger levels, such as the railways and communication services. Many problems (toxins and pollution, desertification, climate change) are at scales much larger than the individual settlement, affecting entire landscapes (and seascapes), countries, regions, and indeed the earth. The need for governance at these larger (up to global) levels is widely recognized and pursued on a range of issues. Such larger level governance structures can be envisioned as clusters or federations of villages and towns with common ecological and cultural features. Such ecoregional or biocultural landscapes are likely to cut across many existing political boundaries, including those of nation-states. A crucial part of the transformation therefore is to reconceptualize political decision-making according to what makes ecological and cultural sense. There are a number of exciting landscape, transboundary or ecoregional planning and governance approaches being tried out in several countries and regions. In India, for a decade starting in the 1990s, the Arvari Sansad (Parliament) in Rajasthan brought 72 villages in the state together, to manage a 400 km2 river basin through inter-village coordination, making integrated plans and programmes for land, agriculture, water, wildlife and development.22 Its functioning has weakened in recent times, but it provides an important example to learn from. In Peru, the Quechua indigenous people are combining the sustenance of several hundred varieties of potato and other crops with conservation of crucial Andean ecosystems in a community-declared Potato Park, using a ‘biocultural’ approach that looks at the landscape as simultaneously natural and cultural.23 In Australia, the Great Eastern Ranges Initiative is attempting an ambitious linkage of landscapes over 3,600 km.24 Learning from the successes and failures of these, ecoregional governance possibilities in South Asia could include the vast mangrove forests straddling India and Bangladesh (potentially based on direct democracy processes by fisher and other communities residing here), the high mountain ranges and trans-Himalayan cold desert areas straddling India, Pakistan and China (with nomadic pastoral and small farming communities at the centre of decisionmaking of a possible Peace Park that also commits all peoples to end armed conflicts) 22 SN Hasnat, ‘Arvari Sansad: The Farmers’ Parliament’ (2005) 21(4) LEISA: Magazine on Low External and Input and Sustainable Agriculture 14. For River Arvari Parliament, see http://tarunbharatsangh.in/river-arvari-parliament/. 23 The biocultural approach stresses that any landscapes and seascapes which have traditional resident or user communities are an integrated and symbiotic whole of both the biological and the cultural, the natural and (within it) the human. See, for instance, Alejandro Argumedo, ‘The Potato Park, Peru: Conserving Agrobiodiversity in an Andean Indigenous Biocultural Heritage Area’ in Thora Amend, Jessica Brown, Ashish Kothari, Adrian Phillips and Sue Stolton (eds), Protected Landscapes and Agrobiodiversity Values (IUCN & GTZ 2008) 45. 24 Ian Pulsford, G L Worboys and G Howling, ‘Australian Alps to Atherton Connectivity Conservation Corridor’ in GL Worboys, W L Francis and M Lockwood (eds), Connectivity Conservation Management: A Global Guide (Earthscan 2010) 96.

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Radical well-being alternatives to development 71 and the seas between Sri Lanka, India and Bangladesh (with fisher communities at the core of governance). Across all levels of decision-making above the smallest direct democracy unit, ways to ensure accountability of representatives have to be built in. Lessons could be learnt from ancient Greek and Indian democracies (noting prominent exclusions such as slaves and women in the former) and from experiments in Latin America.25 These include highly constrained ‘delegated’ responsibility where representatives do not attain power independent of the constituency that has elected or selected them, but are subject to clear mandates given by the constituency, the right to recall, having to report back, and so on. This will of course be more challenging at larger scales of decision-making where delegates or representatives are far away from the local units. A system of referendums for crucial decisions, as practised in some countries like Switzerland, can also bring direct democracy (albeit not face-to-face) to much larger numbers; though as noted later in this chapter, in both this country and elsewhere referendums too can be subject to regressive forces, indicating that no such measure is sufficient in itself to achieve positive transformation. In India, as part of the decentralization introduced through constitutional amendments in the 1980s, with elected bodies at village levels nested within district and state institutions, there has been an attempt to introduce greater accountability and participation. This has, however, been very partial, especially as financial and lawmaking powers remain largely concentrated within national and state governments. Will there be a role for the state in such a direct democracy? It seems that during the transition, while communities (rural and urban) will be the fulcrum of the alternative futures, the nation-state has a critical supporting and enabling role to play. This includes the formulation of policies that facilitate the transition towards systemic alternatives, strengthening its welfare role for those currently marginalized (human and non-human) and regulation of business elements or others who behave irresponsibly towards the environment or people. It will also have a role in larger global relations between peoples and nations. Over time, however, nation-state boundaries may become far less divisive and important if genuine globalization (free-flowing cultural exchange as its crucial component) is promoted; eventually they may become irrelevant. The increasing networking of peoples across the world, through both traditional means and new digital communications, could be a precursor to such a process. Cultural and ecological identities will become more important, but these too defined not so much as isolated categories but as enriching diversity within the essential unity of humankind, a diversity to be celebrated, and with the openness of learning from and supporting each other. Some form of state (in its basic meaning of a governance mechanism, not its currently dominant meaning of an all-powerful centralized institution), as a forum of larger-scale 25 Steve Muhlberger, ‘Democracy in Ancient India’ (8 February 1998), accessed at https:// faculty.nipissingu.ca/muhlberger/HISTDEM/INDIADEM.HTM; Brian Roper, The History of Democracy: A Marxist Interpretation (Pluto Press 2013); Miriam Lang and Dunia Mokrani (eds), Beyond Development: Alternative Visions from Latin America (Rosa Luxemburg Foundation and Transnational Institute 2013).

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72 Research handbook on law, environment and the global South facilitation and decision-making amongst units of direct democracy, may continue to have a legitimate space, subject to the mechanisms of accountability mentioned above. Four crucial aspects are needed to make such a system of direct, delegated and ecoregional democracy work: the right to participate, the capacity to participate, accessible forums of participation, and maturity or wisdom in the quality of political processes. Any one of these without the others would be ineffective or even counterproductive; for instance, in India 50 per cent of the panchayat (village council) heads have to be women, but often they are simply there in name, and actual power is held by their husbands or fathers. Or historically marginalized sections such as Dalits (‘outcastes’ of Hindu society) can simply be silenced by more powerful castes in many parts of India. Slowly, processes of capacitating and empowering women, Dalits and other marginalized sections in India are helping them to have an effective voice, as is the case with women, blacks, and landless workers in other parts of the world. Maturity is needed also to overcome other distortions, such as majoritarianism leading to the genuine needs of minorities being ignored, or public discourses based on misleading messaging and media coverage leading to regressive referendum results (the Colombian one on the peace process, or Brexit, or Trump’s election, being recent examples). It would, however, be a mistake to think that such distortions are inherent to direct democracy; rather, I would argue that they are symptoms of the sidelining of crucial direct democracy processes and principles. The ancient Indian notion of swaraj (inadequately translated as ‘self-rule’) is very relevant here. While it became most well known in India’s struggle for independence from colonial rule, its consequent definition as national freedom is very limited. Much deeper is its stress on individual and collective autonomy and freedom linked to responsibility for others’ autonomy and freedom, a focus on ethical behaviour that makes possible the fulfilment of this responsibility, a stress on limiting one’s wants and desires, and a sophisticated understanding of the balance between the individual and the collective, as evident for instance in the work of Gandhi.26 In many ways this is a precursor to the notion of direct or radical democracy; I will come back to this below in the notion of eco-swaraj. 3. Economic Democracy Radical democracy cannot work in isolation of the democratization of economic life. Transformation has to take place towards an economic system that acknowledges and respects ecological limits, places control over the means of production in the hands of communities, empowers producers and consumers to democratically manage the economy as it relates to them, and brings to centre stage the relations of caring and sharing that have been hidden, marginalized or displaced by commercialized, monetarily mediated exchanges, ironically so given the latter continue to remain dependent on the former albeit in often contradictory ways. Congruent with localized governance is economic localization, reversing the trend towards economic globalization. Here too, a crucial principle is that subsidiarity, in 26 See, for instance, MK Gandhi, Hind Swaraj and Other Writings (Anthony J Parel (ed), Cambridge University Press 1997).

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Radical well-being alternatives to development 73 which those living closest to those elements of nature and means of production and reproduction (the forest, the sea, the coast, the farm, the factory, the urban facility, and the like) should be empowered to govern and steward it. This is because it is assumed that they would have the greatest stake, and often the best knowledge, to do so. Of course, this is not always the case, for centuries of centralization have crippled community institutional structures, customary rules, and other capacities. There is also the issue of non-resident local communities having significant dependence on the local ecosystems and landscapes, for example in the case of mobile pastoral peoples, or people in larger regions which these ecosystems and landscapes benefit. But with such complexities built in, a move towards open localization of essential production, consumption (or, removing the binary, prosumption) and trade, and of health, education and other services, is eminently possible if civil society organizations and the government sensitively assist communities. The most crucial element in the success of economic localization is local control over the means of prosumption, trade and reproduction, and the re-commoning of privatized lands and other crucial elements of nature and ‘natural resources’. Reclaiming collective rights over landscapes and seascapes is one approach; examples include indigenous territorial claims across Latin America, Australia, New Zealand and Canada, peasant takeover of farmlands by the Movement of Landless Workers (MST) movement in Brazil, forest-dwellers reclaiming community and individual forest rights in India, the re-commoning of urban spaces in many parts of Europe and North America, and many others.27 According to a recent (2014) estimate, 513 million ha of forest (about 15 per cent of the world total) are under some form of government-recognized indigenous peoples’ or community control.28 Producer-consumer-prosumer (and adding to this at times, investor) collectives, running on democratic, fair remuneration and solidarity principles are found across the world. Several factories in Argentina, parts of Europe and northern Africa have been taken over by workers and are run on a diversity of democratic principles; VioMe in Thessaloniki, Greece, is an example.29 India has several dozen producer companies and cooperatives, of farmers, craftspersons, fishers, pastoralists, and others, many of them run on democratic lines of decision-making and revenue sharing. These include the Nowgong Agriculture Producer Company Ltd (NAPCL) in Madhya Pradesh, the Aharam Traditional Crop Producer Company (ATCPC) in Tamil Nadu and the Dharani 27 On land and territorial claims, see www.landcoalition.org/en; on Brazil’s MST movement, see http://mstbrazil.org; on India’s Forest Rights Act process, see www.cfrla.org.in; on the commons, see David Bollier, ‘The Commons as a Template for Transformation’ (Great Transition Initiative, 2014), accessed at http://greattransition.org/publication/the-commons-as-atemplate-for-transformation and David Bollier and Silke Helfrich (eds), The Wealth of the Commons: A World beyond Market and State (The Commons Strategy Group 2012). 28 Caleb Stevens, Robert Winterbottom, Katie Reytar and Jenny Springer, Securing Rights, Combating Climate Change: How Strengthening Community Forest Rights Mitigates Climate Change (World Resources Institute 2014). 29 See www.viome.org/search/label/English and www.workerscontrol.net; see also Alternative Models of Ownership (Report to the Shadow Chancellor of the Exchequer and Shadow Secretary of State for Business, Energy and Industrial Strategy), accessed at http://labour.org.uk/ wp-content/uploads/2017/10/Alternative-Models-of-Ownership.pdf.

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74 Research handbook on law, environment and the global South Farming and Marketing Cooperative Ltd in Andhra Pradesh, all examples of farmer-run companies encompassing several settlements, that enable producers to directly reach their markets; Qasab – Kutch Craftswomen’s Producer Co. Ltd in Kachchh does the same for women working on embroidery, appliqué and patchwork; Just Change is a producer-consumer-investor cooperative in southern India aimed at economically empowering indigenous producers.30 A host of social or community currencies, and non-monetized exchange systems, are springing up in the heart of highly commercialized, industrialized societies. The commune of Beckerich in Luxembourg, which I visited in mid-2016, is using the Beki, a local currency initiated a few years back. Equivalent to the Euro in value, Bekis can be used for a host of local products and services; for instance, buying bread at the local baker, paying for local green energy, buying food from farmers, and so on. Each time it is used, it is a tiny but significant act of freeing oneself from the Euro (though of course not completely, since the values are still linked). Each Beki makes about five rounds of exchange before being changed back to the Euro, in effect reducing the need for Euros by that many times.31 Most importantly, though, the Beki enhances local exchanges, stimulates local production and services, and provides the incentive for stronger local social relations as its use is based on knowing neighbours and local producers and consumers. Local, or social, currencies like the Beki are increasing in many parts of the world. One of the most famous is the Bristol Pound, used by residents of the UK town of Bristol. Several dozen kinds of products and services can be availed of using this currency at over 800 shops, restaurants and other providers; even many taxes can be paid. So popular is it that the previous mayor of Bristol, George Ferguson, took his entire salary in it! As the promoters of the Bristol Pound state: By incentivising spending in independent businesses, the Bristol Pound helps wealth created in Bristol to stay here. Known as the multiplier effect, Bristol Pounds will be spent repeatedly only within the local economy. With sterling, much of the wealth spent in the city is lost to big international business, related management structures, remote shareholders and the boom-bust of the financial banking system. The Bristol Pound can help deepen and diversify the connections between local business people and all the citizens of the region – an important part of building a sustainable regional economy and providing high quality employment.

In 2017, the city council of Barcelona introduced a pilot project for a social currency, starting with 5,000 people, and including in it the possibility of a green energy cooperative that could serve these people by accepting payment in this currency. If successful at this small scale, the council hopes to increase its use to other parts of Barcelona. A precursor to this has already existed for some years now, the ECO, used by members of the Cooperativa Integral Catalana (http://cooperativa.cat/en/), a collective working on organic food, housing for low income groups, democratic technology Email communication with Avani Mohan Singh, NAPCL Board (13 January 2010); http://timbaktu-organic.org/index.php/about-us-3/; www.facebook.com/pages/Qasab-Kutch-Crafts women-Producer-Co-Ltd/120970047978656; www.justchangeindia.com. 31 Hilbert, personal communication (2016). 30

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Radical well-being alternatives to development 75 development, and other aspects. Based partly on this experience, one of its founders, Enric Duran, initiated FairCoin, an ambitious attempt at a global exchange system based on fairness, linked to a global cooperative, FairCoop (https://fair.coop). The website http://community-currency.info provides examples from around the world. Simultaneously, a host of localized, community-based banking and financing systems have also cropped up over the last couple of decades; these could begin to challenge the mega-concentrations that the big banks and financial institutions represent. Going one step further, there are increasing initiatives promoting non-monetized exchange. In several countries, timesharing or timebanking brings together individuals into a collective where they agree to provide each other skill-based services for free. For instance, you could sign up to offer 4 hours of free yoga classes to anyone in the collective, and in turn you could avail yourself of someone else’s expertise at repairing gadgets, or teaching children, or looking after the elderly in a community setting … all for free. In Athens, Greece, I met members of Mesopotamia, a network of about 400 individuals who are part of such a timesharing arrangement. Several of them volunteer to teach at a special learning centre for children, where the values of inter-cultural respect and responsibilities towards the environment are part of the curriculum. In UK and Wales, the network Spice Time Credits has at last counted 25,000 members sharing over 400,000 hours, working with 1,200 organizations and services that accept such timesharing (www.justaddspice.org). A crucial aspect of such processes is the equal respect given to all kinds of skills and expertise; 1 hour of gardening services are worth the same as 1 hour of IT skills, and so on. This means that people discarded as ‘worthless’ by the mainstream economy can also be valued by society; dignity can be restored to people. And it builds social relationships, stimulates learning new skills, restores self-confidence in people. Plus, it is interest-free, avoiding the vicious credit-debt cycles that mainstream economies are plagued with. Economic democracy is also, crucially, about local self-reliance in basic needs, and through this the elimination of poverty defined as deprivation of basic needs.32 Across the world, movements for food, water and energy sovereignty are proving that this is eminently possible, and in ways that are ecologically sensitive. In India, sustainable agriculture using a diversity of crops has been demonstrated by thousands of farmers (including the most marginal, caste-disadvantaged women farmers) where the community groups Timbaktu Collective and Deccan Development Society work in Andhra Pradesh and Telangana, by communities working with Green Foundation in Karnataka, by farmers of the Beej Bachao Andolan and the Jaiv Panchayat network of Navdanya.33 Sustainable pastoralism has been defended or revived amongst nomadic or resident 32 In countries like India, poverty in its multifaceted forms, including being deprived of access to basic needs, continues to be widespread despite decades of ‘development’ and economic growth, with estimates ranging from 30 to 70 per cent of the population being ‘poor’; see Aseem Shrivastava and Ashish Kothari, Churning the Earth: The Making of Global India (Viking/Penguin Books 2012). 33 Deccan Development Society, accessed at www.ddsindia.com; Green Foundation, accessed at www.greenconserve.com/; Navdanya, accessed at www.navdanya.org/campaigns/ jaiv-panchayat.

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76 Research handbook on law, environment and the global South pastoral communities with whom the group Anthra works.34 Water self-sufficiency in arid, drought-prone areas has been demonstrated by hundreds of villages, through decentralized harvesting and strict self-regulation of use, such as in Alwar district of Rajasthan by Tarun Bharat Sangh and in Kachchh by Sahjeevan and other groups.35 In Bhuj town (Kachchh, Gujarat), groups like Hunnarshala, Sahjeevan, Kutch Mahila Vikas Sangathan and Arid Communities and Technologies (ACT) have teamed up to mobilize slum dwellers, women’s groups and other citizens into reviving watersheds and creating a decentralized water storage and management system, manage solid wastes, generate livelihood for poor women, create adequate sanitation and provide dignified housing for all.36 Here and in Bengaluru, Pune and other cities, increasingly vocal citizens are invoking the 74th Amendment to urge for decentralized, local development planning and resource allocation through programmes like participatory budgeting.37 ICCAs, mentioned above, already help achieve many of the goals of so-called ‘sustainable development’ contained in the SDG 2030 agenda that governments agreed to in September 2015, including secure livelihoods and health, safeguarding of water and other crucial elements, sustaining diverse cultures and knowledges. They could do this much better if given recognition and support at local to global levels.38 Again, just as localized power is not adequate to deal with political relations at larger scales, localized economies cannot survive in isolation, especially in a world so intricately connected through economic relations. Parallel to political institutions at landscape and larger scales, there is a need to conceive of economics at scales different from the currently dominant structure. This includes trade and exchange conducted on the principles of democracy and fairness. Groups of villages, or villages and towns, could form units to further such economic democracy. For instance, in Tamil Nadu state, the Dalit panchayat head of Kuthumbakkam village, Ramaswamy Elango, envisages organizing a cluster of between 7–8 and 15–16 villages to form a ‘free trade zone’ or ‘regional network economy’, in which they will trade goods and services with each other (on mutually beneficial terms) to reduce dependence on the outside market and government. This way, the money stays back in the area for reinvestment in local development, and relations amongst villages get stronger.39 Anthra, accessed at www.anthra.org. Tarun Bharat Sangh, accessed at www.tarunbharatsangh.in; Sahjeevan, accessed at www.sahjeevan.org/pages/water_unit.html. 36 See, for example, Sahjeevan, accessed at www.sahjeevan.org/pages/urban_cell.html. 37 Eg Janaagraha Centre for Citizenship and Democracy, accessed at www.janaagraha.org. 38 Ashish Kothari and others (eds), Recognising and Supporting Territories and Areas Conserved by Indigenous Peoples and Local Communities: Global Overview and National Case Studies (Technical Series No. 64, Secretariat of the Convention on Biological Diversity, ICCA Consortium, Kalpavriksh, and Natural Justice 2012). 39 Personal communication with R Elango, panchayat head (Kuthambakkam village, Kuthambakkam, Tamil Nadu, January 2013); Adam Cajka, ‘Kuthambakkam: Re-Embedding Economy in Society’ in Neera Singh, Seema Kulkarni and Neema Pathak Broome (eds), Ecologies of Hope and Transformation: Post-Development Alternatives from India (Kalpavriksh and SOPPECOM 2018). 34 35

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Radical well-being alternatives to development 77 Communities across larger landscapes could get together and prepare land/water use plans. Such plans, for each bioregion, could be combined into state and national plans, permanently putting the country’s ecologically and socially most fragile or important lands into some form of conservation status (fully participatory and mindful of local rights and tenure). Such plans would also enjoin upon towns and cities to provide as much of their resources from within their boundaries as possible, through water harvesting, rooftop and vacant plot farming, decentralized energy generation, and so on; and to build mutually beneficial rather than parasitic relations with rural areas from where they will still need to take resources. Such actions will spread where rural communities have a greater say in deciding what happens to their resources, and city dwellers become more aware of the impacts of their lifestyles. Such approaches provide massive opportunities for livelihood generation and the elimination of economic poverty. There needs to be a renewed emphasis on labourintensive industries and infrastructure, including handlooms and handicrafts, local energy projects, local access roads and communication lines, and others that people can be in control of, building on their own traditional knowledge or with easily acquired new skills. In India, Jharkhand’s state-created initiative, Jharcraft, has in less than a decade enhanced the livelihoods of over 300,000 families with relatively simple inputs to empower the producers of silk cloth, cotton handlooms, metalcraft, tribal art, leatherwork, bamboo and cane furniture, and so on.40 Another state government initiative, Kudumbashree in Kerala, has provided or enhanced livelihoods for over 4 million women in various local production or service units, though like many such successful large enterprises there are tensions created by political parties vying for control and unequal empowerment.41 Institutions like Khamir, Kutch Mahila Vikas Sangathan and Qasab have helped families engaged in weaving, embroidery and other crafts enhance their skills and outputs, reviving what were otherwise dying occupations.42 The social enterprise SELCO has enhanced livelihood and social conditions of over 150,000 families through decentralized solar power, provided by ensuring financial linkages that help the families ultimately pay for it themselves.43 Even in highly industrialized, automated societies of Europe and North America, there is a slow revival of physical labour as people want to make products with their hands, repair appliances rather than throw them away, build their own houses, grow their own food.44 And it is worth noting that the United Nations Environment Programme has advocated a 40 Personal communication with Dhirendra Kumar, MD, Jharcraft (Ranchi, Jharkhand, February 2013); Ashish Kothari, ‘Being the Change’ The Hindu (21 April 2013), accessed at www.thehindu.com/features/magazine/being-the-change/article4636561.ece; recent (mid-2017) news reports suggest that there has been a setback in the programme with change of leadership, which highlights the fragility of processes dependent on the state (or for that matter on civil society) where adequate community empowerment has not taken place. 41 J Devika and Binitha V Thampi, ‘Between “Empowerment” and “Liberation”: The Kudumbashree Initiative in Kerala’ (2007) 14(1) Indian Journal of Gender Studies 33. 42 Khamir, accessed at www.khamir.org/; Qasab, accessed at http://qasab.org; Kutch Mahila Vikas Sangathan, accessed at http://kmvs.org.in. 43 Praful Bidwai, An India that Can Say Yes (Heinrich Boll Foundation 2010); SELCO, Access to Sustainable Energy Services via Innovative Financing: 7 Case Studies (SELCO 2008). 44 See, for instance, Craft Revolution, accessed at www.dartington.org/?s=craft+revolution.

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78 Research handbook on law, environment and the global South transition to ‘green jobs’, for example, in public transportation, sustainable farming, and renewable energy, which would provide far greater decent employment than does today’s economic model.45 A transformation to economic democratization of the kind envisaged above could also lead to a huge shift in currently dominant demographic trends, according to which the world will be predominantly urban within a couple of decades. At several places in India where villages have been revitalized through locally appropriate development initiatives, such as the ones mentioned above in Jharkhand and Kerala or others like Ralegan Siddhi and Hivare Bazaar in Maharashtra, rural-urban migration has slowed down and even got reversed.46 Reviving public control of the monetary and financial system, and reorienting financial measures such as taxation, subsidies and other fiscal incentives/disincentives to support ecological sustainability and related human security and equity goals is also critical. Incentives and governmental support for renewable energy have mushroomed, with countries like Germany showing what is possible; schemes to support organic farming, tax breaks to urban neighbourhoods installing water harvesting and energy saving technologies, and other such measures are also getting more popular. Transition Towns (spawning the Transition Network) are a major locus of such actions and others aimed at cutting down urban carbon emissions and other environmentally damaging activities; at a recent (January 2018) visit to Totnes in UK, the first of such towns, I was witness to several ‘REconomy’ processes of localizing production and consumption, small retail, generation of energy, and urban commoning.47 State support enabled one of the most exciting urban agriculture processes in the world in Havana, Cuba.48 City administrations have enabled significant steps in sectors like mobility, for example Curitiba in Brazil showing how efficient public transport can make a huge difference. In and of themselves, such measures could be considered merely reformative (for instance organic urban agriculture or public transport could be in the control of capitalist corporations or a repressive state), but in conjunction with some other changes mentioned above which help challenge systemic factors, they are transformative. 4. Social Justice and Well-being Direct political and economic democracy are in turn linked to social justice, equity and well-being. Discrimination, inequalities and exploitation based on gender, race, ethnicity, caste, class, ability and age are found in all societies, albeit to widely varying 45 United National Environment Programme and International Labour Office, Green Jobs: Towards Decent Work in a Sustainable, Low Carbon World (UNEP 2008). 46 Concerning Ralegan Siddhi, there has been contestation on the strategies employed to transform the village, see eg Mukul Sharma, Green and Saffron: Indian Environmentalism and Hindu Nationalist Politics (Permanent Black 2011); however, here I am pointing to the economic transformation which is generally acknowledged. 47 Transition Network, accessed at http://transitionnetwork.org; REconomy Centre, accessed at https://reconomycentre.org. 48 Richard Levins, Talking about Trees: Science, Ecology and Agriculture in Cuba (LeftWord 2008).

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Radical well-being alternatives to development 79 degrees. Some of these stem from tradition, some emerge from the quest for modernization and development. The quest for a non-discriminatory, equitable society is a crucial sphere of transformation. Movements for social justice have created greater space across the world, in more recent times through struggles for basic collective and human rights. Anyone doubting the potential of peoples’ movements and the actions of civil and political society need only look at the enormous ground that feminism has been able to cover, including through its embracing of ecological perspectives in the form of ecofeminism.49 But social justice is also a part of movements for economic democracy, sometimes only implicitly. A prime example is the case of Dalit women gaining dignity and independence through the food sovereignty movement of the Deccan Development Society in southern India, mentioned above. The environmental justice (EJ) movement in USA has brought the issue of racial and ethnic discrimination relating to environmental rights to such prominence that EJ is now a common banner for many similar struggles across the world (highlighted in the incredibly useful mapping process at www.ejatlas.org). Initiatives like that of Maati Sangathan in Uttarakhand have mobilized and empowered women to resist domestic violence, gain independent livelihoods and challenge male-dominated political processes.50 Associations of wastepickers and hawkers such as the Kagad Kach Patra Kashtakari Panchayat (KKPKP) in Pune and Hasirudala in Bengaluru and the National Hawkers Federation have provided substantial dignity to people otherwise socially shunned by the rest of society, by enhancing incomes, building relations with middle-class households and showing that they are an essential part of the city.51 Being mindful of exploitative and iniquitous structures is important to avoid falling into other traps, such as that of xenophobia and hatred of ‘outsiders’, currently rearing their ugly head in Europe and USA, amongst others. In India, several groups have promoted revivalism, blindly promoting the ‘golden past’ as an ideal for the future, linked to an ultra-nationalist, Hindutva ideology;52 this has increased since 2014 when a right-wing party formed the government. Many of these forces also talk of localization, self-reliance and other terms that progressive movements also use, making it imperative for the latter to put tolerance, cross- and multi-culturism, and open societies prominently in their messaging. Peoples’ movements are also urging to put social well-being, including healthy social relations, happiness, satisfaction and the like, at the centre of what it means to be prosperous and wealthy (which in its Germanic origin meant ‘well-being’). Replacing GDP with such qualitative values (and not falling into the trap of comparative quantification of these attributes, like the Global Happiness Index) has been advocated as a far healthier approach to assessing whether a people or country is doing well or 49 Jai Sen (ed), The Movements of Movements, Part 1: What Makes Us Move? (PM Press and OpenWord 2017); Jai Sen (ed), The Movements of Movements, Part 2: Rethinking Our Dance (PM Press and OpenWord 2018); Ariel Salleh, Ecofeminism as Politics: Nature, Marx, and the Postmodern (1st edn 1997, Zed Books 2017). 50 Shiba Desor, ‘Maati’ in Singh and others (n 39). 51 KKPKP, accessed at www.kkpkp-pune.org; Swach, accessed at www.swachcoop.com; Hasirudala, accessed at www.hasirudala.in. 52 See Sharma (n 46).

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80 Research handbook on law, environment and the global South not. Bhutan’s bold experiment with Gross National Happiness has several flaws and inconsistencies (not least of which is the mistreatment of Nepali ‘migrants’), but, as the only one of its kind at a national level, has much to commend and learn from. Indigenous peoples’ notions of well-being, increasingly being voiced and integrated into movements of resistance against extractivist development in Latin America or other struggles against displacement, dispossession and erasure in various parts of the world, also have much to teach the rest of humanity. 5. Culture and Knowledge Diversity As biodiversity is to natural ecosystems and ecological processes, so too cultural diversity is to human society: a source of resilience, strength, and continuous adaptation and evolution. A just society needs to nurture and promote diversity and pluralism: of cultures and languages, ideas, lifestyles, and so on. India for instance is home to enormous socio-cultural diversity,53 with close links to its ecological diversity. Development and modernity have wiped out substantial parts of this diversity, but a number of initiatives at alternative living are successfully resisting this. The women of the Deccan Development Society, for instance, regularly celebrate festivals and occasions related to all religions (including highlighting the links between cultural and biological diversity). Cultures are also repositories and nurturing grounds for knowledge, whose diversity in turn is crucial for human existence. Several indigenous and community movements around the world are about asserting or reclaiming their languages, epistemologies and knowledge systems. Many also stress that the dualisms created by western rationality need to be dissolved, such as between the ‘natural’, and ‘social’ sciences, between these sciences and the ‘arts’, between ‘traditional’ and ‘modern’ knowledge, between the ‘wild’ and the ‘domesticated’, between the ‘natural’ and the ‘human’. Many eastern/ southern worldviews do not have such rigid compartments, with the ‘biocultural’ approach of the Quechua of Peru mentioned above as an example. In general the decolonization of knowledge and epistemologies or the struggle against ‘epistemicide’ is a crucial part of transformation towards radical well-being, as increasingly advocated by both peoples’ movements and by intellectuals and scholars notably (but not only) from the global South.54 The generation, transmission and use of knowledge and of ethical perspectives are crucial pillars of any society. The more we can learn and teach and transmit knowledge 53 This includes nearly 800 distinct languages, according to the Peoples’ Linguistic Survey led by Ganesh Devy, (n.d.), accessed at http://peopleslinguisticsurvey.org/. 54 Arturo Escobar, Encountering Development (2nd edn, Princeton University Press 2011); Linda Tuhiwai Smith, Decolonising Methodologies: Research and Indigenous Peoples (Zed Books 1999); Boaventura de Sousa Santos, Epistemologies of the South: Justice against Epistemicide (Taylor and Francis 2014); Boaventura de Sousa Santos and Teresa Cunha (eds), International Colloquium Epistemologies of the South: South-South, South-North and NorthSouth Global Learnings (Centro de Estudos Sociais 2015); Tirso Gonzales and Matt Husain, ‘Indigenous Autonomy, Community-Based Research and Development Aid: Sumaq Kawsay in Three Epistemic Scenarios’ (2016) 12(3) AlterNative: An International Journal of Indigenous Peoples 266.

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Radical well-being alternatives to development 81 and conduct research in holistic ways, giving respect not only to specialists but also to generalists, the more we can understand nature and our own place in it. A number of alternative education, learning and research initiatives in India attempt to do this: the jeevan shalas (‘life schools’) of the Narmada Bachao Andolan, struggling to save the Narmada valley and its inhabitants from a series of mega-dams, Marudam in Tamil Nadu, Krishnamurti Foundation schools which mix mainstream with alternative, and Adharshila Learning Centre in Madhya Pradesh; colleges like the Adivasi Academy at Tejgadh, Gujarat; open learning institutions like the Bija Vidyapeeth in Dehradun in Uttarakhand, Bhoomi College in Bengaluru and Swaraj University in Udaipur.55 In other parts of the world, the idea of (and attempts at creating) pluriversities has similar aims; as do the autonomous schools of the Zapatista in Mexico.56 Many of the initiatives on alternative living also attempt to integrate or combine various knowledge systems, emanating from local communities, formal scientific institutions, and others. Sustainable food production, water harvesting, appropriate shelter, and so on, are successfully achieved with such knowledge mixes. Several groups are working on public health systems that empower communities to deal with most of their health issues, through combining traditional and modern systems, and through strengthening the links between safe food and water, nutrition, preventive health measures, and curative care. Venezuela’s Mission Barrio Adentro is an example of community or collective health care that has benefited poor sections of society in several cities. The national-level Jan Swasthya Abhiyan (People’s Health Movement) in India campaigns for greater public accountability of the official health system, against its privatization and for greater access to the poor, the right to health and healthcare, and community-level management.57 Movements for the knowledge commons are also gaining ground, countering the last few decades of privatization especially in the form of intellectual property rights. These include copyleft, creative commons, open source software, Wikipedia-like approaches, and many other examples. Cuba’s experiment with public R&D has been an example of what democratic knowledge generation can do, to help solve problems of a people beleaguered by imperialist politics.58

55 Pachasaale, accessed at http://www.ddsindia.com/www/psaale.htm; Narmada Jeevan Shala, accessed at www.narmada.org/ALTERNATIVES/jeevanshalas.html; Marudam Farm School, accessed at www.marudamfarmschool.org; Krishnamurti Foundation India, accessed at www.kfionline.org/education-centres/; Adharshila Learning Centre, accessed at http:// adharshilask.tripod.com/aboutadh.html; Adivasi Academy, accessed at www.Adivasiacademy.org; Bija Vidyapeeth, accessed at www.navdanya.org/earth-university; Bhoomi College, accessed at http://bhoomicollege.org/; Swaraj University, accessed at www.swarajuniversity.org. 56 Javier Echeverria, ‘Pluralidad de la filosofía: pluriversidad versus universidad’ (2012) 12 Ontology Studies 373; Angélica Rico, ‘Educate in Resistance: The Autonomous Zapatista Schools’ ROAR (2 January 2014), accessed at https://roarmag.org/essays/zapatista-autonomouseducation-chiapas/. 57 For details on Jan Swasthya Abhiyan, see http://phmindia.org. 58 Levins (n 48).

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82 Research handbook on law, environment and the global South

C. THE ETHICAL FOUNDATIONS OF WELL-BEING ALTERNATIVES The five spheres of transformation laid out above encompass or display a set of diverse principles and values. The Vikalp Sangam process mentioned above has listed the following as an initial set; these are implicit (or explicitly stated) in the myriad alternative initiatives across India, but have more universal relevance:59 Ecological integrity and the rights of nature: The functional integrity of the ecological and ecoregenerative processes (especially the global freshwater cycle), ecosystems, and biological diversity that is the basis of all life on earth. The right of nature and all species (wild and domesticated) to survive and thrive in the conditions in which they have evolved, and respect for and celebration of the ‘community of life’ as a whole (while keeping in mind natural evolutionary processes of extinction and replacement, and that human use of the rest of nature is not necessarily antithetical to its respect). Equity, justice, and inclusion: Equitable access and inclusion of all human beings, in current and future generations, to the conditions needed for human well-being (socio-cultural, economic, political, ecological, and psychological), without endangering any other person’s access; and social, economic, and environmental justice for all regardless of gender, class, caste, ethnicity, race, and other attributes (including a special focus on including those currently left out for reasons of physical/mental/social ‘disability’). Right to and responsibility of meaningful participation: The right of each citizen and community to meaningfully participate in crucial decisions affecting her/his/its life, and to the conditions that provide the ability for such participation, as part of a radical, participatory democracy. Corresponding to such rights, the responsibility of each citizen and community to ensure meaningful decision-making that is based on the twin principles of ecological sustainability and socio-economic equity. Diversity and pluralism: The integrity of the diversity of environments and ecologies, species and genes (wild and domesticated), cultures, ways of living, knowledge systems, values, livelihoods, and polities (including those of indigenous peoples and local communities), in so far as they are in consonance with the principles of sustainability and equity. Collective commons and solidarity with individual freedoms: Collective and co-operative thinking and working founded on the socio-cultural, economic, and ecological commons, respecting both common custodianship and individual freedoms and choices (including the right to be ‘different’ such as in sexual orientation) and innovations within such collectivities, with inter-personal and inter-community solidarity, relationships of caring and sharing, and common responsibilities, as fulcrums. Resilience and adaptability: The ability of communities and humanity as a whole, to respond, adapt and sustain the resilience needed to maintain ecological sustainability and equity in the face of external and internal forces of change, including through respecting the conditions enabling the resilience of nature. Subsidiarity, self-reliance and ecoregionalism: Local rural and urban communities (small enough for all members to take part in decision-making) as the fundamental unit of 59 Vikalp Sangam, ‘The Search for Alternatives: Key Aspects and Principles’ (2017), accessed at www.vikalpsangam.org/about/the-search-for-alternatives-key-aspects-and-principles/.

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Radical well-being alternatives to development 83 governance, self-reliant for basic needs such as food, water, health and learning/education, linked with each other at bioregional and ecoregional levels into landscape, regional, national and international institutions that are answerable to these basic units. (The term ‘self-reliant’ here means self-sufficiency for basic needs as far as possible, and the right to access what is not possible to meet locally, from more centralised systems guaranteed by the state). Simplicity and sufficiency: The ethic of living on and being satisfied with what is adequate for life and livelihood, in tune with what is ecologically sustainable and equitable. Dignity and creativity of labour and work: Respect for all kinds of labour, physical and intellectual, with no occupation or work being inherently superior to another; giving manual labour and family/women’s ‘unpaid’ work and processes of sharing/caring their rightful place, but with no inherent attachment of any occupation with particular castes or genders; the need for all work to be dignified, safe, and free from exploitation (requiring toxic/hazardous processes to be stopped); reducing work hours; and moving towards removing the artificial dichotomy between ‘work’ and ‘leisure’ by enabling more creative engagement. Non-violence, harmony, peace: Attitudes and behaviour towards others that respect their physical, psychological, and spiritual well-being; the motivation not to harm others; conditions that engender harmony and peace among and between peoples.

Each society has its own worldview (or multiple worldviews), often implicit or unstated, which influences beliefs and actions relating to other humans and to the rest of nature. The great transformation towards justice and ecological wisdom entails the generation (or revival) of worldviews that encompass the above (evolving) set of values. It is doubtful that, in an increasingly interconnected world, any but those communities who seek to avoid contact (and there are some who have chosen to do so, which needs to be respected) will retain its own worldview uninfluenced by others’ worldviews. Unfortunately much of the cross-cultural exchange of the last few centuries has so far resulted in western, colonial, industrial worldviews dominating and often displacing others. Movements of resistance and alternatives are asserting the continuing relevance of ancient indigenous cosmologies, but also that aspects of more recent societies are worth considering, such as progressive notions of democracy and rights. Hybrid worldviews based on both are emerging. An example of this is eco-swaraj or radical ecological democracy (RED), being articulated in India. This is closely connected to the Alternatives Framework developed in the Vikalp Sangam process in India, mentioned above. RED is ‘a socio-cultural, political and economic arrangement in which all people and communities have the right and full opportunity to participate in decision-making, based on the twin fulcrums of ecological sustainability and human equity’.60 Such frameworks and worldviews are emerging, or re-emerging in new forms, across the world, examples include buen vivir or vivir bien, ubuntu, ecofeminism, degrowth and many of them present a radical 60 An early treatment of this concept is in Ashish Kothari, ‘Radical Ecological Democracy: Escaping India’s Globalization Trap’ (2009) 52(3) Development 401; subsequent development is in Shrivastava and Kothari (n 32); Ashish Kothari, ‘India 2100: Towards Radical Ecological Democracy’ (2014) 56 Futures 62; Ashish Kothari, ‘Radical Ecological Democracy: A Path Forward for India and Beyond’ (2014) 57(1) Development 36 and Ashish Kothari, ‘Beyond “Development” and “Growth”: The Search for Alternatives in India towards a Sustainable and Equitable World’ in Dale and others (n 4) ch 10.

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84 Research handbook on law, environment and the global South challenge to patriarchy, capitalism, state-led politics and other structures of inequity and unsustainability.61 Worldviews that reposition humanity within nature, promote respect for ecological limits and prioritize the caring, sharing, generous, collective aspects of human nature are likely to lead us to a saner world; those that continue human-nature separation and celebrate individual selfishness, greed and competitiveness can only spell further disaster.

CONCLUSION: ROLE OF LAW AND POLICY IN A TRANSFORMED WORLD To end, I offer some brief comments on the role of law and policy in a radically transformed world, necessarily brief because this is not my field of experience or expertise. In so far as law and policy are an outcome of the desire of society to have some rules governing its members, these will need to reflect the five spheres of transformation and the values and principles described above. The increasing inclusion of rights-based approaches, notably including the extension of rights to nature in various parts of the world, are signs of this. But it is likely that the transformation towards eco-swaraj or a RED will render the role of formal, statutory law and policy much less important; the social contract amongst people will be based much more on evolving norms and customs, sustained through collective mechanisms of dispute resolution and dealing with violations, and able to accept considerable diversity, adaptability and flexibility.62 Every unit of direct democracy would be a unit for formulating such norms (or where necessary laws, and in this sense considerably deepening the decentralization of powers currently envisaged in India’s panchayat system, adding crucial financial and lawmaking powers). Larger ecoregional or other units of decision-making will build on these, facilitating the resolution of conflicting norms, and so on. From a legalistic ‘rights of nature’ discourse (itself just emerging in the early 21st century), there would be a transformation towards respecting nature as an integral part of living. There may remain an uneasy balance or tension between the norms at the local level, and norms that all of humanity agrees to through global decision-making processes, such as basic collective and human rights, or the rights of nature. Mechanisms of resolving such possible tensions through dialogue and other approaches will be needed. In general, as one moves towards eco-swaraj, there will be a tendency for ethics and law/policy to converge more, in other words to see law/policy as not only that which regulates, but which has the ethical justification of regulating.

Eg Lang and Mokrani (eds) (n 25); Kothari and others (n 4) 362; Kothari and others (n 6). See also www.radicalecologicaldemocracy.org, and www.globaltapestryofalternatives.org. 62 See Arpitha Kodiveri, ‘Legal Futures for India’ in Ashish Kothari and KJ Joy (eds), Alternative Futures: India Unshackled (Authors Upfront 2017) 138. 61

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5. Environmental rights in the Global South Louis J. Kotzé and Evadne Grant

INTRODUCTION We live in unprecedented times.1 Politically, there is a noticeable counter-reaction to long-established elitism, as populist and anti-establishment movements gather pace in many countries. Suggestive examples are Brexit in the United Kingdom and Donald Trump’s election victory in the United States. In the Global South, populist leaders, such as Venezuela’s Nicolás Maduro, remain in power despite clear evidence of corruption and systemic bad governance that fuels poverty, social decay and inequality. Economically, the world has not yet fully recovered from the 2008 Global Financial Crisis and it does not seem on course to do so soon, with countries in the Global South continuing to be the most severely affected.2 Socially, despite bold claims that some of the Millennium Development Goals have been achieved,3 billions of people, especially those in the Global South, live in abject poverty, and, for many, a more equal and just global society remains a pipe dream.4 Ecologically, the challenges we face are symbolized by the likely recognition of the Anthropocene as a new geological epoch in which the Earth is rapidly moving into a critically unstable state, with the Earth system gradually becoming less predictable and less harmonious as a result of the growing global human imprint on the biosphere.5 This imprint is pertinently exemplified by climate change: a recently published World Meteorological Organization report indicates that the period between 2011–15 has been the hottest on record, highlighting the increasingly visible human impact on extreme weather and climatic events with dangerous and costly consequences.6 Importantly, ecological impacts such as these reach into the political, economic and social spheres, where they work to diminish Earth system integrity and resilience, threatening all life on Earth on unprecedented scales. See World Economic Forum, ‘Global Risks Report 2016’, accessed at http://reports. weforum.org/global-risks-2016. 2 See for a balanced and authoritative overview, Yale Global Online, ‘Global Economic Crisis’, accessed at https://yaleglobal.yale.edu/global-economic-crisis. 3 See UN, ‘Millennium Development Goals Report, 2015’, accessed at un.org/ millenniumgoals/2015_MDG_Report/pdf/MDG%202015%20Summary%20web_english.pdf. 4 Carmen Gonzalez, ‘Global Justice in the Anthropocene’ in Louis Kotzé (ed), Environmental Law and Governance for the Anthropocene (Hart 2017) ch 10. 5 Paul Crutzen and Eugene Stoermer, ‘The “Anthropocene”’ 2000 (41) IGBP Newsletter 17–18. For a discussion, see Louis Kotzé, Global Environmental Constitutionalism in the Anthropocene (Hart 2016). 6 World Meteorological Organization, ‘The Global Climate in 2011–2015’ (2016), accessed at http://ane4bf-datap1.s3-eu-west-1.amazonaws.com/wmocms/s3fs-public/1179_EN. pdf?WevaJ8QIS5ntCjcWd7OYyZfhIDKuews9. 1

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Environmental rights in the Global South 87 Our point of departure in this chapter is that these myriad impacts disproportionally affect the livelihoods of those least resilient to withstand or adapt to the impacts, in particular people living in the Global South. Exposing the deep inequalities and injustices that prevail between the Global North and the Global South, Gonzalez argues that many of the causes of the Anthropocene are the results of neoliberal development, industrialization, and economic growth, mostly for the benefit of a small section of the world’s population living in the developed world: [T]he environmental crises of the Anthropocene are deeply connected to economic policies that have enabled the world’s most affluent populations to consume a disproportionate share of the planet’s resources while relegating vast swathes of humanity to abject poverty.7

It is within this context of deepening global injustice that human rights emerge, as they have in the past, as a central component of the juridical framework necessary to address the myriad socio-economic and ecological injustices that arise in the Anthropocene. To this end, it is our central thesis that human rights will continue to play an important role as part of the constitutional and broader legal interventions that are needed to determine and ultimately ensure socio-ecological security and justice in the Anthropocene. More particularly, while human rights have their roots predominantly in Western (European) liberal constitutionalism, they are widely recognized as crucially important juridical constructs to ensure justice, equity and human security in non-Western countries such as those in Africa, South America and South Asia.8 The Global South has been a site for considerable innovation as far as environmental human rights are concerned and it is especially in these parts of the world that human rights have significant potential to play an important role in environmental governance.9 In this chapter we reflect on the role of human rights as part of the juridical toolbox to mediate the human-environment interface in the Global South. We do so by investigating, in Part A, the enduring appeal of human rights in the broader context of constitutionalism in which they are embedded. In Part B the inquiry is narrowed down to focus on environmental human rights in the Global South. Part C concludes the chapter with a reflection on key themes around which challenges and opportunities arise in relation to realizing environmental rights in the Global South.

A. CONSTITUTIONALISM AND THE APPEAL OF A RIGHTS-BASED APPROACH Deriving from historically early natural law and rights theories, the claims of rights relate to benefits essential for freedom, liberty, well-being, dignity and fulfilment, thus Gonzalez (n 4) 219. See, among others, Gavin Anderson, ‘Human Rights and the Global South’ in Tom Campbell, KD Ewing and Adam Tomkins, The Legal Protection of Human Rights: Sceptical Essays (Oxford University Press 2011) ch 17. 9 Carmen Gonzalez, ‘Human Rights, Environmental Justice, and the North-South Divide’ in Anna Grear and Louis Kotzé (eds), Research Handbook on Human Rights and the Environment (Edward Elgar Publishing 2015) ch 21. 7 8

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88 Research handbook on law, environment and the global South epitomizing a core impetus of constitutionalism itself, that is, the full realization of being human and the protection of the individual from abuse of power. These claims ‘as of right’, and indeed the idea of rights, imply: entitlements on the part of the holder in some order under some applicable norm; the idea of human rights implies entitlement in a moral order under a moral law, to be translated into and confirmed as legal entitlement in the legal order of a political society. When a society recognizes that a person has a right, it affirms, legitimizes, and justifies that entitlement, and incorporates and establishes it in the society’s system of values, giving it important weight in competition with other societal values.10

Borne by the ideals of equality, humanism and liberalism and deriving their special status from the dignity that is inherent in every human being (dignitas humana), human rights are widely considered to be the foundation of every society, the source of regime legitimization and the point of departure of social ordering.11 As further testimony to their prominence, human rights have become the central existential justification of a new world order embodied in the United Nations and the Universal Declaration of Human Rights of 1948 (UDHR), with the overwhelming majority of contemporary domestic constitutions providing for basic rights, and with the bulk of constitutional theory and critique dedicated to the issue of rights.12 The foregoing mostly reflects the positive attributes of, and virtuous perceptions associated with, human rights, but considerable criticism has also been levelled against human rights. Human rights are often criticized because of their predominantly Western characteristics and many critics argue that they exclude indigenous non-Western cultures and concerns.13 Human rights are also often negatively perceived to have a masculinist ontology because they are based on the male as the basis for their normativity.14 Human rights could, therefore, easily fall victim to criticism that they protect only a certain type of human being, namely the symbolic privileged, propertyowning, Western, ‘male’ subject.15 However, perhaps even more problematic from an environmental perspective, the promotion and protection of human dignity through material well-being, mostly achieved through increased economic security and hence increased consumption activities, is often seen as the core of human rights.16 Human rights could, therefore, provide the justificatory basis for human mastery over the world, as creating entitlements instead of duties and responsibilities and as being individualistic, thus countering efforts that seek to foster harmonious interdependence Louis Henkin, The Age of Rights (Columbia University Press 1990) 3. Udo di Fabio, ‘Verfassungsstaat und Weltrecht’ (2008) 39 Rechtstheorie 399, 408. 12 Henkin (n 10) vii–x. 13 Upendra Baxi, The Future of Human Rights (Oxford University Press 2002) 24. 14 For example, article 29(2) of the Universal Declaration of Human Rights, New York, 10 December 1948, UN Doc A/RES/217A includes the following phrase: ‘In the exercise of his rights and freedoms’. Emphasis added. 15 Anna Grear, ‘Deconstructing Anthropos: A Critical Legal Reflection on “Anthropocentric” Law and Anthropocene “Humanity”’ (2015) 26 Law and Critique 225. 16 Spike Petersen, ‘Whose Rights? A Critique of the “Givens” in Human Rights Discourse’ (1990) Alternatives 303, 310. 10 11

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Environmental rights in the Global South 89 not only between humans, but also between humans and non-human entities.17 Because the socio-economic, political and legal change that human rights seek to achieve in constitutional orders is not always immediately apparent, they have also understandably been described as ‘all rhetoric and exhortation’,18 often leading to insignificant concrete improvements in the lives and living conditions of the vulnerable communities they were intended to address. It is also true that some countries, many of them in the Global South, enshrine human rights in their constitutions, but do so merely to window dress and to conceal rights abuses from the outside world.19 Their commitment to human rights is decidedly ‘less than authentic and whole hearted’.20 Yet, as Henkin points out: the fact of the commitment, that it is enshrined in a constitution (…) are not to be dismissed lightly. Even hypocrisy may sometimes deserve one cheer for it confirms the value of the idea, and limits the scope and blatancy of violations (…). A constitution is at least a promise to the people at home and an assertion to the world at large, it responds to and generates forces that induce compliance, and it cannot long be maintained in the face of blatant noncompliance.21

In spite of a range of critical accounts of human rights, the broad appeal of human rights as ethical demands that extend beyond law, while simultaneously being based on law and operating at an elevated juridical level, remains.22 More generally, the appeal of human rights is evident in the significant move in constitutional democracies towards a ‘rights consciousness’.23 As ‘a language of the human good’, human rights remain enduringly valuable juridical constructs in a normative sense: Rights talk does have notorious limitations as a language of the human good. Who does not suppose, for example, that love is an essential human good, but who believes we all have a ‘right to love’? These problems with rights as a language of the good are well known, but no better language is likely to be found (…). Rights talk will remain an essential component of any global ethic, precisely because the protections it affords can be demanded by actual individuals.24

Connor Gearty, ‘Do Human Rights Help or Hinder Environmental Protection?’ (2010) 1 Journal of Human Rights and the Environment 7, 8; Jack Donnelly, Universal Human Rights in Theory and Practice (2nd edn, Cornell University Press 2003) 58–9. 18 Henkin (n 10) 27. 19 Peter Häberle, ‘The Constitutional State and its Reform Requirements’ (2000) 13(1) Ratio Juris 77, 86. 20 Henkin (n 10) 28. 21 ibid at 28–9. 22 Amartya Sen, ‘Elements of a Theory of Human Rights’ (2004) 32(4) Philosophy and Public Affairs 315, 319. 23 Donald Lutz, ‘Thinking about Constitutionalism at the Start of the Twenty-First Century’ (2000) 30(4) Publius 115, 125. 24 Michael Ignatieff, ‘Reimagining a Global Ethic’ (2012) 26(1) Ethics and International Affairs 7, 7. 17

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90 Research handbook on law, environment and the global South Considering the foregoing, it is our contention that human rights will continue to form a crucial element of domestic constitutional systems and more generally of the idea of constitutionalism itself.

B. ENVIRONMENTAL HUMAN RIGHTS IN THE GLOBAL SOUTH Because an ecologically intact environment sustains all life on Earth, environmental protection has increasingly become an ethical concern. This ethical concern manifests on two levels: humans need to protect the environment for their survival (most vividly expressed as a human right to a healthy environment), and for the sake of safeguarding ecological integrity (often expressed as rights of nature). Realizing that human rights as apex norms derive from natural law, religious traditions, universal morality and ethical values, opens up the possibility of including environmental care in the protective realm of constitutionalism through the entrenchment of such care in human rights. This is because human rights speak to, and seek to protect, those fundamental aspects of being human that significantly depend on an environment that allows people to flourish. While environmental protection must also be realized through statutory and other non-constitutional legal regimes, as it is in the majority of jurisdictions across the world, it is arguably mostly through human rights that environmental care can gain an elevated juridical (constitutional) status and enjoy the benefits of constitutionalism as outlined above: human rights are uniquely elevated within the juridical order as meta-values and thus able to perform a singular mediating role in the humanenvironment interface.25 ‘Environmental human rights’ is an all-encompassing term that embraces almost all categories of human rights, because most of the interests that human rights seek to protect have an environmental dimension.26 They could manifest as: the right to a healthy environment; rights of nature; procedural rights such as rights of access to information and to the courts; substantive political rights such as rights to life and human dignity; and socio-economic rights such as rights to access water, sanitation and housing. As such, environmental human rights could be characterized as being normative, subjective and enforceable, procedural, community oriented, ecological and/or socio-economic. The ensuing discussion will for the most part focus on the right to a healthy environment. The absence of a specific right to a healthy or sustainable environment in most international and some domestic human rights documents (when compared to the prevalence of, for example, political rights) stems from the fact that environmental destruction was not yet a major concern during the first significant global constitutional moment that saw the almost universal adoption of human rights following the UDHR in Louis Kotzé, ‘Human Rights and the Environment through an Environmental Constitutionalism Lens’ in Grear and Kotzé (eds) (n 9) 145–69. 26 Dinah Shelton, ‘Developing Substantive Environmental Rights’ (2010) 1 Journal of Human Rights and the Environment 89, 97. 25

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Environmental rights in the Global South 91 1948. The right to a healthy environment only began to feature in domestic constitutional orders following the United Nations Conference on the Human Environment in 1972, which provided the impetus for couching environmental concerns in human rights terms through its Principle 1.27 The worldwide adoption of environmental human rights followed within a relatively short period of time. Today, approximately threequarters of the world’s constitutions contain references to environmental rights and/or responsibilities,28 and numerous scholars have made important contributions to the analytical development of the environmental human rights paradigm.29 While the jury is still out on the actual impact of environmental human rights in practice, there is a general view that constitutionalization of environmental protection as a fundamental right remains attractive. People generally assume that rights, especially those enshrined in the constitution, embody values that cannot easily be compromised. The environmental cause might benefit were people to regard environmental protection as the substance of a constitutional right.30

More particularly, the constitutional regimes of countries in the Global South have been, and continue to be, important sites of environmental human rights innovations and many of these show similarities with one another. Of the almost 100 constitutions that currently provide for a human right to a healthy environment, Boyd estimates that the following regions in the Global South incorporate such a right in their constitutions: Africa (36), Asia (15), Latin America (16) and Caribbean (2).31 Surprisingly, this normative development has occurred in the absence of a universally binding (treaty-based) global environmental right, which remains absent to this day and which is unlikely to be created in the short term. Having said that, several regional human rights treaties, notably those in the Global South, provide for environmental human rights, and these provisions have shaped domestic constitutional provisions related to the environment.32 One important example is article 24 of the African Charter on Human and Peoples’ Rights (AfricanCHPR), which succinctly provides that ‘[a]ll peoples shall have the right to a general satisfactory environment 27 Principle 1 states, among others: ‘Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being’. 28 David Boyd, The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights, and the Environment (University of British Columbia Press 2012) 47. 29 ibid; James May and Erin Daly, Global Environmental Constitutionalism (Cambridge University Press 2015); Dinah Shelton (ed), Human Rights and the Environment (Edward Elgar Publishing 2011). 30 Hong Sik Cho and Ole Pedersen, ‘Environmental Rights and Future Generations’ in Mark Tushnet, Thomas Fleiner and Cheryl Saunders (eds), Routledge Handbook of Constitutional Law (Routledge 2013) 404. 31 David Boyd, ‘Constitutions, Human Rights, and the Environment: National Approaches’ in Grear and Kotzé (ed) (n 9) 177–8. 32 See, Evadne Grant, ‘International Human Rights Courts and Environmental Human Rights: Re-Imagining Adjudicative Paradigms’ (2015) 6 Journal of Human Rights and the Environment 156.

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92 Research handbook on law, environment and the global South favourable to their development’.33 In addition to providing an important regional standard with respect to the right to a healthy environment to guide regional governance efforts and individual African countries in their domestic environmental constitutionalism endeavours, article 24 has also had a much more direct normative impact. The constitutions of countries such as Burundi, Madagascar and Mauritania do not explicitly mention the right to a healthy environment, but incorporate, by reference, all the rights in the AfricanCHPR, including the right to a healthy environment.34 The other key regional human rights instrument that plays an important role in the Global South, the American Convention on Human Rights (AmericanCHR),35 does not explicitly include a substantive right to a healthy environment, but such a right is recognized in the 1988 Protocol of San Salvador.36 The right to a healthy environment is, however, among the Protocol rights excluded from the individual petitions process under the AmericanCHR which exclusion has, until recently, precluded direct protection of the right in the Inter-American system.37 In the absence of provision for direct protection of the right to a healthy environment, the Inter-American judicial institutions have, through imaginative interpretation, extended the reach of other rights such as the right to property and the right to life, to incorporate significant aspects of the right to a healthy environment.38 However, in an advisory opinion delivered in November 2017, the Inter-American Court of Human Rights (Inter-American Court) held that the right to a healthy environment is included in article 26 of the AmericanCHR;39 a provision that imposes obligations on states parties to adopt measures for the realization of social, economic and cultural rights.40 Moreover, the Court ruled that states parties are obliged, African Charter on Human and Peoples’ Rights, Banjul, 19 January 1982, OAU Doc CAB/LEG/67/3 rev 5. Other relevant regional instruments include the American Convention on Human Rights (discussed below), the Asian Human Rights Charter, Kwangju, 17 May 1998 which provides for the right to a ‘clean and healthy environment’ (art 3.2); and the Arab Charter on Human Rights, Tunis, 22 May 2004, art 38 which includes a right to a healthy environment as part of the right to an adequate standard of living that ensures well-being and a decent life (art 38). 34 Boyd (n 28) 177. 35 American Convention on Human Rights, San José, 22 November 1969, 1144 UNTS 123. 36 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, San Salvador, 17 November 1988, OAS Treaty Series No 69, art 11. 37 See Oswaldo R Ruiz-Chiriboga, ‘The American Convention and the Protocol of San Salvador: Two Intertwined Treaties – Non-Enforceability of Economic, Social and Cultural Rights in the Inter-American System’ (2013) 31 Netherlands Quarterly of Human Rights 159. 38 See Anna Meijknecht, ‘The Contribution of the Inter-American Human Rights System to Sustainable Development’ in Werner Scholtz and Jonathan Verschuuren (eds), Regional Environmental Law: Transregional Comparative Lessons in Pursuit of Sustainable Development (Edward Elgar Publishing 2015) 177, 187. 39 The Environment and Human Rights (State obligations in relation to the environment in the context of the protection and guarantee of the rights to life and to personal integrity – interpretation and scope of Articles 4(1) and 5(1) of the American Convention on Human Rights) Advisory Opinion OC-23/17, IACtHR Ser A No 23 (15 November 2017) para 57. 40 Article 26 specifies that the social and economic rights included are those ‘set forth in the Charter of the Organization of American States’. This has been interpreted as recognizing the 33

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Environmental rights in the Global South 93 under the AmericanCHR, to prevent environmental harm not only within their territory but also outside their borders by regulating activities originating within their jurisdiction or control that have the potential to cause significant environmental damage.41 Perhaps even more significantly, the Inter-American Court expressed the view that the right to a healthy environment protects nature even in the absence of evidence of risk to humans; that is, nature is to be protected for its own sake not merely because of its utility to humans.42 The full implications of this ruling will take time to become clear, but direct protection of a substantive right to a healthy environment is clearly envisaged, with the potential to transform the way in which environmental concerns are dealt with under the AmericanCHR. At a jurisprudential level, the African Commission on Human and Peoples Rights (ACommHPR) was among the first supra-national human rights adjudicatory organs to explicitly pronounce on the substantive meaning and status of a right to a healthy environment in its well-known Social and Economic Rights Action Center and Center for Economic and Social Rights v Nigeria (SERAC) Communication of 2001.43 This case set an important precedent when it explored the normative parameters and concrete meaning of the right, finding that the Nigerian government materially neglected its duties towards the Ogoni people under article 24 to respect, promote, protect and fulfil the right to a ‘general satisfactory environment’.44 In specific relation to the right to a healthy environment under the AfricanCHPR, the obligation to respect entails that the state should refrain from interfering in the enjoyment of the right; it should respect right-holders, their freedoms, autonomy, resources, and liberty of their action.45 The obligation to protect requires the state to take measures to protect beneficiaries of the right to a healthy environment against political, economic and social interferences.46 Relatedly, the state must promote the enjoyment of this right by ensuring that individuals are able to exercise this right and its related freedoms by, among others, promoting tolerance, raising awareness and building infrastructure.47 The obligation to fulfil is related to the duty to promote, and requires the state to act to ensure that everyone is able to enjoy their right to a healthy environment; there is a clear positive expectation that the state will move its machinery towards the actual realization of this protected right.48 rights protected under the American Declaration of the Rights and Duties of Man. See, Interpretation of the American Declaration of the Rights and Duties of Man within the Framework of Article 64 of the American Convention on Human Rights, Advisory Opinion OC-10/89, IACtHR Series A No 10 (14 July 1989) para 45. 41 Advisory Opinion on the Environment and Human Rights (15 November 2017) (n 39) para 101–2. 42 ibid para 62. 43 Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria 155/96 of 27 October 2001 [SERAC Communication]. 44 ibid para 44. 45 ibid para 45. 46 ibid para 46. 47 ibid. 48 ibid para 47.

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94 Research handbook on law, environment and the global South In addition to the influence of regional human rights norms and the work of regional adjudicatory bodies, the adoption of domestic environmental human rights in the Global South also seems to be driven by processes resorting under the banner of ‘transnational comparative constitutionalism’,49 which focuses on cross-jurisdictional learning, comparison and legal transplantation, including processes of transnational migration, interdependence, crosspollination and sharing of constitutional ideas between many countries.50 It is, for example, no mere coincidence that section 73 of the Constitution of Zimbabwe of 2013 almost exactly mirrors the environmental right provision of neighbouring South Africa. Section 24 of the Constitution of the Republic of South Africa, 1996, provides: Everyone has the right(a) to an environment that is not harmful to their health or wellbeing; and (b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that(i) prevent pollution and ecological degradation; (ii) promote conservation; and (iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.51

This right is representative of typical formulations of the right to a healthy environment in the Global South, with an emphasis on the human element (human health and well-being); intergenerational protection in the spirit of sustainability; and maintenance of a balance between resource use to the benefit of human development and resource protection to ensure sustainable development. These myriad considerations that the right to a healthy environment typically covers are often evident in judgments of courts that deal with such rights. For example, while no South African court has yet ventured to provide any meaningful substantive content to the environmental right (similar to the SERAC interpretation by the ACommHPR discussed above, for example), the judiciary has illuminated the relevance, importance and potential impact of the environmental right in at least two landmark cases. Arguably the most revealing of these, especially in relation to environmental governance, is the 1999 decision by the Supreme Court of Appeal in Director: Mineral Development, Gauteng Region, and Another v Save the Vaal Environment and Others52 where the Court stated in no uncertain terms: What has to be ensured when application is made for the issuing of a mining licence is that development which meets present needs will take place without compromising the ability of Kotzé (n 5) ch 4. Louis Kotzé and Caiphas Soyapi, ‘Transnational Environmental Law: The Birth of a Contemporary Analytical Perspective’ in Douglas Fisher (ed), Research Handbook on Fundamental Concepts in Environmental Law (Edward Elgar Publishing 2016) ch 4. 51 The only difference is that the Zimbabwean provision affords this right to ‘every person’ while the South African version speaks to ‘everyone’. 52 Director: Mineral Development, Gauteng Region, and Another v Save the Vaal Environment and Others 1999 2 SA 709 (SCA). 49 50

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Environmental rights in the Global South 95 future generations to meet their own needs (…). Our Constitution, by including environmental rights as fundamental, justiciable human rights, by necessary implication requires that environmental considerations be accorded appropriate recognition and respect in the administrative processes in our country. Together with the change in the ideological climate must also come a change in our legal and administrative approach to environmental concerns.53

A few years later, in BP Southern Africa (PTY) Ltd v MEC for Agriculture, Conservation, Environment & Land Affairs,54 the High Court declared, with specific reference to the constitutional environmental right, that the provisions of the Bill of Rights bind the state as well as natural and juristic persons (in this case BP Southern Africa) and that ‘[b]y virtue of Section 24, environmental considerations, often ignored in the past, have now been given rightful prominence by their inclusion in the Constitution’.55 More importantly, the Court confirmed that: the environmental rights requirements should be part and parcel of the factors to be considered without any a priori grading of the rights. It will require a balancing of rights where competing interests and norms are concerned. This is in line with the injunction in section 24(b)(iii) that ecologically sustainable development and the use of natural resources are to be promoted jointly with justifiable economic and social development. The balancing of environmental interests with justifiable economic and social development is to be conceptualised well beyond the interests of the present living generation. (…) By elevating the environment to a fundamental justiciable human right, South Africa has irreversibly embarked on a road, which will lead to the goal of attaining a protected environment by an integrated approach, which takes into consideration inter alia socioeconomic concerns and principles.56

Clearly the South African judiciary has been willing and able to elevate the environmental right as the core minimum constitutional standard of environmental governance in South Africa, simultaneously revealing as it did, the various interests this right seeks to protect and the objectives it seeks to achieve in a developing country context; notably the promotion of sustainable development.

C. KEY ISSUES Taking a broad view, the remainder of the chapter reflects on some pertinent issues that arise from the function, adoption and enforcement of environmental human rights in the context of the Global South.

ibid para 20. BP Southern Africa (PTY) Ltd v MEC for Agriculture, Conservation, Environment & Land Affairs 2004 (5) SA 124 (W). 55 ibid 22. 56 ibid 23–5. 53 54

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96 Research handbook on law, environment and the global South 1. Socio-economic Development versus Environmental Protection Because environmental concerns lie at the heart of development in its broadest sense, environmental human rights have gained particular prominence in the countries of the Global South. As Grear rightly points out, it is in the Global South where: [m]illions of human beings live in crushing impoverishment, ill- health, political disempowerment and under conditions of profound social exclusion and growing risk [where] environmental degradation presently has a direct and disproportionate impact on the rights of the most vulnerable human beings and communities.57

Herein lies a critical tension inherent in the right to a healthy environment, namely between the need to ensure the socio-economic development of billions of impoverished people in the Global South, while protecting the resource base that drives such development in a sustainable way. Addressing this dichotomy is not straightforward. Unfortunately, governments all too often make short-sighted and self-interested choices that err on the side of actively promoting industrial, mining and other developmental activities to boost socio-economic growth to the detriment of human well-being and long-term ecological sustainability. In doing so, the impact on the environmental health and well-being of people is often particularly acute, with those most vulnerable and with the least resilience to withstand such impacts, women, children and indigenous communities, in particular, being the worst affected.58 As the Inter-American Commission on Human Rights (IACommHR) notes in a report investigating the impact of resource extraction on indigenous communities: The [IACommHR] recognises that extraction and development activities can contribute in various ways to the enjoyment of human rights, especially those linked to overcoming poverty and inequality, and promote economic development processes and the generation of jobs and productive investment in the countries where they operate. However, the Commission has consistently received alarming information concerning the negative environmental, social, cultural, and human impacts generated by these activities.59

On the one hand, the responsibility to strike a proper balance between these competing claims lies with governments, which renders this challenge an issue of good governance. On the other hand, much will depend on the specific formulation of environmental human rights, the interests that are at stake, and the limitations imposed on such rights. For example, the South African environmental right, quoted above, sees the environment as a source of life-sustaining goods and entitlements to be added to all other material conditions of human welfare, such as housing, food and health care. It is 57 Anna Grear, ‘Editorial: Where Discourses Meet’ (2010) 1 Journal of Human Rights and the Environment 1, 1. 58 See for example, Susan Cutter, Bryan Boruff and Lynn Shirley, ‘Social Vulnerability to Environmental Hazards’ (2003) 84 Social Science Quarterly 242. 59 Inter-American Commission on Human Rights, Indigenous Peoples, Afro-Descendent Communities and Natural Resources: Human Rights Protection in the Context of Extraction, Exploitation and Development Activities OEA/Ser L/V/II, Doc 47/15 (31 December 2015) para 15.

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Environmental rights in the Global South 97 predominantly utilitarian and seeks to ground, improve access to, and expand human claims to resources with a view to ensuring socio-economic development in its widest sense.60 The right’s final provision, to ‘secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development’, does attempt to limit these unbridled human claims somewhat. This objective directs the state to not only secure some weak form of anthropocentric sustainable development – where human interests are paramount – but also a stronger form of ecologically centred sustainable development in terms of which development will only be sustainable if ecological considerations are accorded proper attention. In this view, the environment is a condition of life, placing limitations on individual freedoms and entitlements to resources and recognizing the intrinsic and not only the functional value of the environment, while simultaneously seeking to preserve ecological integrity. But any long-term/sustainable ecological significance that the duty to protect the environment could have is diluted by the condition that ecological sustainable development must be balanced by justifiable economic and social development. In other words, the South African environmental right recognizes the need for development that is ecologically sustainable, but only insofar as ecological concerns do not inhibit justifiable socio-economic development. As long as socio-economic development could therefore be justified, as it almost always will be in a neoliberal developing country economy where poverty is rife and job creation and economic growth a foremost priority, the environmental right could even be used to justify socio-economic developmental interests while ecological interests remain at the periphery of concerns. Moreover, given the injustices of the past and the great disparities between rich and poor in South Africa, socio-economic development will more easily be justified from an ethical and moral point of view, possibly at the expense of ecological integrity. A case in point is the ongoing government-driven initiative to expand South Africa’s mining and energy sector and to diversify its energy mix, particularly the recent decision by government to allow hydraulic fracturing (fracking) in the highly ecologically sensitive Karoo Basin.61 The Department of Mineral Resources estimates that approximately 50 trillion cubic feet of shale gas is recoverable in the Karoo Basin, and that all South Africans must benefit socially and economically from this mineral wealth.62 While fracking could be beneficial for the country’s energy security, economic growth, job creation and improvement of the social conditions of many people, very little attention seems to be directed to the devastating long-term ecological impacts that this process will inevitably entail.63 The Government’s decision to proceed 60 Louis Kotzé and Anél Du Plessis, ‘Some Brief Observations on Fifteen Years of Environmental Rights Jurisprudence in South Africa’ (2010) 3 Journal of Court Innovation 157–76. 61 See Hennie Coetzee and Louis Kotzé, ‘Shale Gas Development and Water in South Africa: Regulatory Aspects’ in Erkki Hollo (ed), Water Resource Management and the Law (Edward Elgar Publishing 2017) ch 15. 62 See Jenna Etheridge, ‘Government Gives Green Light for Shale Gas Fracking in Karoo’ (News24 2017), accessed at www.news24.com/SouthAfrica/News/govt-gives-green-light-forshale-gas-fracking-in-karoo-20170330. 63 See for a scientific assessment, Academy of Science of South Africa, ‘Report: South Africa’s Technical Readiness to Support the Shale Gas Industry’ (2016), accessed at

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98 Research handbook on law, environment and the global South with fracking has not been challenged in the courts (yet), but if this were to happen it is highly likely that the environmental right provision will be invoked by the applicants in support of ecological sustainable development; while the respondents could counter with the same right’s provision in support of justifiable social and economic development of South Africans. The regulatory reality and the potential of environmental rights to mediate conflicts arising from this reality remain immensely complex. Clearly, striking a proper balance between socio-economic development and longterm ecological sustainability in South Africa is, as is the case in many other countries of the Global South, probably the most profound dilemma of modern day environmental governance and of any constitutional rights-based effort with environmental aspirations. It remains unclear how a proper balance can be found, and the role of environmental human rights in preventing and perpetuating socio-economic development at the expense of ecological integrity, and sustainable, long-term health and well-being of people, remains highly problematic and contested. The existence of such tensions that are inherent to environmental rights illustrates a conundrum that environmental law must frequently grapple with. This conundrum is perhaps most clearly evident in the concept of sustainable development that often forms an integral component of environmental rights formulations, mostly as an aspirational goal to achieve as we have seen from the South African example. In this light the question arises whether environmental rights should promote a strong ecocentric, or a weak anthropocentric, form of sustainable development.64 While countries in the Global South often support a human-focused and socio-economic justice oriented approach to weak sustainable development,65 there is increasingly evidence of the emergence of stronger ecocentric forms of sustainability that are exemplified by the growing body of rights of nature provisions in constitutions and environmental laws. While we return to the rights of nature issue below, suffice to conclude here that such an ecocentric approach provides a potentially powerful counterbalance to unbridled socio-economic growth that is supported by anthropocentric environmental rights. 2. The Rule of Constitutional Law and Respect for Environmental Human Rights As already discussed, despite public commitments on the part of governments with respect to the incorporation of human rights into their constitutions, many countries in the Global South have an uneasy relationship with human rights, especially insofar as their implementation and observance are concerned. For example, several African countries are threatening to withdraw from the International Criminal Court, decrying http://research.assaf.org.za/bitstream/handle/20.500.11911/14/final_report.pdf?sequence=14&is Allowed=y. 64 See Klaus Bosselmann, The Principle of Sustainability: Transforming Law and Governance (Ashgate 2008) 27; John Dernbach and Federico Cheever, ‘Sustainable Development and Its Discontents’ (2015) 4 Transnational Environmental Law 247, 274–9. 65 See Dire Tladi, Sustainable Development in International Law: An Analysis of Key Enviro-Economic Instruments (Pretoria University Law Press 2007).

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Environmental rights in the Global South 99 its efforts to protect against human rights abuses.66 As argued above, any rights-based environmental governance effort can only be successful if the government, as the main enforcement agent for and addressee of human rights, intends to be bound by constitutional law. The intention to be bound is nestled in the rule of law paradigm which imparts one key idea, namely that the lack of insight, fallibility and gullibility that often characterize people, and thus the governments that they form, require and allow a substantial containment of their freedom of choice and decision through fixed general rules that they have devised and adopted themselves and that they remain subject to under all circumstances.67 A contemporary vision of the rule of law proposes that it provides certainty in a legal order, prevents the entrenchment and eventual abuse of power, and plays a more-than-symbolic role in the constitutional state in that it offers a normative justification and foundation for the entrenchment of procedural and substantive mechanisms to prescribe and proscribe power.68 The entrenchment of these restricting mechanisms is usually done in and through human rights. Unfortunately, there is a worrying trend in some countries in the Global South to disregard the rule of law and to deliberately infringe (environmental) human rights.69 Often the protection that these rights offer is not sufficient to withstand the onslaughts of arbitrary power abuse. This reality is vividly illustrated by country reports and decisions in relation to individual communications issued by the IACommHR,70 and the jurisprudence of the Inter-American Court. As noted above, the IACommHR and Court have, through innovative interpretation, extended the reach of rights such as the right to property, recognized under the AmericanCHR, to incorporate environmental protection. Many of the cases in which environmental damage has been raised before the Inter-American institutions have concerned resource extraction and other development activities on land traditionally occupied by indigenous communities. In the ground-breaking case of Saramaka People v Suriname, for example, the Inter-American Court found that companies that had been granted logging concessions by the State of Suriname on land claimed by the Saramaka people had caused widespread environmental destruction, and that the state had neither carried out prior environmental impact assessments nor taken any steps to put in place safeguards to prevent environmental damage or to supervise the activities of the logging companies.71 In the judgment of the Court, the failure on the part of the state to take positive action to protect the environment, and thus to ensure the survival of the Saramaka people and their way of 66 See ‘African Leaders Plan Mass Withdrawal from International Criminal Court’ The Guardian (31 January 2017), accessed at www.theguardian.com/law/2017/jan/31/african-leadersplan-mass-withdrawal-from-international-criminal-court. 67 Birgit Enzmann, Der Demokratische Verfassungsstaat: Entstehung, Elemente, Herausforderungen (Springer 2014) 1. 68 Lon Fuller, The Morality of Law (Yale University Press 1964) 33–94. 69 See, for example, the actions of the Nigerian government against the Ogoni people in the SERAC Communication discussed above. 70 See, for example, IACommHR, Report on the Situation of Human Rights in Ecuador OEA/Ser L/V/II.96, Doc 10 rev 1 (24 April 1997). 71 Saramaka People v Suriname (Preliminary Objections, Merits, Reparations and Costs) IACtHR Ser C No 172 (28 November 2007) para 154.

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100 Research handbook on law, environment and the global South life, constitutes a breach of the right to property protected under article 21 of the AmericanCHR.72 The case of the Ogoni people, discussed above, indicates an even more active role on the part of the state to undermine environmental and other human rights. Evidence was presented to the ACommHPR that the Nigerian government had actively assisted ‘Big Oil’ (in this case the Shell Petroleum Development Corporation) to access and exploit valuable petroleum resources on Ogoni land. In the process, myriad laws, including environmental human rights entitlements and provisions, were flaunted at the expense of the Ogonis.73 As the SERAC Communication contends, the Nigerian government condoned and facilitated human rights violations in a variety of ways: The government has participated in irresponsible oil development that has poisoned much of the soil and water upon which Ogoni farming and fishing depended. In their raids on villages, Nigerian security forces have destroyed crops and killed farm animals. The security forces have created a state of terror and insecurity that has made it impossible for many Ogoni villagers to return to their fields and animals. The destruction of farmlands, rivers, crops and animals has created malnutrition and starvation among certain Ogoni communities.74

These examples demonstrate clearly that even where environmental human rights enjoy protection in constitutional, regional and international instruments, there is a danger that they remain symbolic, and often poetic, markers of good intentions with limited real effect. It is therefore of the utmost importance that domestic constitutional protection of environmental human rights be reinforced at the regional and international level on the one hand and that grassroots support for environmental human rights be built up and leveraged, on the other. As discussed below, civil society activism has a crucial role in fostering support among populations as well as in organizing resistance to state interference with, or failure to protect, environmental human rights. 3. Compliance and Enforcement The extent and success of government compliance with and enforcement of environmental human rights obligations depends on a broad range of considerations, including: the rule of law considerations discussed above; institutional capacity; the strength of civil society governance and the extent to which civil society activism is allowed to flourish (see discussion below); the availability of financial resources to take on well-resourced government agencies and large corporations; and the availability of adequate statutory and other legal mechanisms to operationalize, often abstract and vague, environmental human rights obligations. Plagued by corruption, systemic bad governance, weak institutional and human capacity and deficient statutory law frameworks, many countries in the Global South face challenges with respect to the enforcement of environmental human rights obligations. At the same time, these challenges could embolden environmental human rights violators, notably corporate 72 73 74

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ibid. SERAC Communication (n 43) paras 1–8. ibid at para 9.

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Environmental rights in the Global South 101 actors, to circumvent obligations they may have in terms of environmental human rights; a growing concern vividly exemplified by the expansion of so-called ‘pollution havens’ in countries of the Global South where regulation is often weak. As highlighted above, regional human rights institutions in Africa and the Americas play an important part in developing and clarifying state obligations in relation to environmental human rights and holding states to account for violations of such rights. The decision of the Inter-American Court in Saramaka, outlined above, provides a compelling example.75 In interpreting the right to property in Saramaka, the InterAmerican Court acknowledged the distinctive relationship that indigenous communities have with their ancestral land and the dependence of indigenous communities on their land for their physical and cultural survival. In the view of the Court, protection of the right to property of indigenous communities therefore requires a broad interpretation of the right to include obligations on the part of the state to recognize and protect communal property rights of indigenous communities and their right to control and use the natural resources on their land in order to maintain their culture and way of life.76 The particular state obligations that arise as a result are outlined in a report focusing on the impact of extractive industries on the rights of indigenous peoples, published by the IACommHR in December 2015.77 The report outlines both general state obligations under the AmericanCHR that apply in the context of extractive and development activities and specific obligations that apply where such activities affect the land and natural resources of indigenous communities. General state obligations include: the duty to put in place and enforce an appropriate legal framework to protect human rights that may be affected by extractive and development activities; the duty to prevent and, if necessary, to address any adverse effects on human rights; the duty to monitor and supervise extractive and development activities; the duty to ensure effective participation and access to information for those affected by development and extractive activities; the duty to prevent unlawful and violent actions against affected communities; and the duty to guarantee access to justice and effective remedies for human rights violations.78 The second part of the report outlines specific obligations that apply to activities that affect indigenous communities,79 obligations described by the Inter-American Court as ‘international standards’ that states parties to the AmericanCHR must incorporate into their practices.80 These include the obligation to ensure the effective participation of 75 See Sophie Thériault, ‘Environmental Justice and the Inter-American Court of Human Rights’ in Grear and Kotzé (eds) (n 9) 309. 76 Saramaka People v Suriname (n 71) para 95, 122. See Inter-American Commission on Human Rights, Indigenous and Tribal Peoples’ Rights over their Ancestral Lands and Natural Resources: Norms and Jurisprudence of the Inter-American Human Rights System, OEA/Ser L/V/II, Doc 56/09 (30 December 2009). 77 Inter-American Commission on Human Rights, Indigenous Peoples, Afro-Descendent Communities and Natural Resources: Human Rights Protection in the Context of Extraction, Exploitation and Development Activities OEA/Ser L/V/II, Doc 47/15 (31 December 2015). 78 ibid ch 2. 79 ibid ch 3. 80 Kichwa Indigenous People of Sarayaku v Ecuador (Merits and Reparations) IACtHR Ser C No 245 (27 June 2012) para 166.

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102 Research handbook on law, environment and the global South indigenous communities, in accordance with their own traditional decision-making practices, in decisions regarding development and resource exploitation on their ancestral territory, and the obligation to ensure that no developments take place on indigenous land without prior, independent, environmental and social impact assessments.81 Although these obligations relate specifically to the right to property of indigenous communities, their implementation is fundamental to preventing unchecked resource exploitation and the consequent environmental devastation. The significance of the Saramaka case therefore lies not only in the fact that the state was held to account within the regional human rights system for actions and inaction that led to environmental harm, but also in the identification and elucidation by the InterAmerican Court of specific state obligations that have the potential to protect the environment. In the recent case of African Commission on Human and Peoples’ Rights v Kenya, the African Court on Human and Peoples’ Rights (African Court) took a similar approach to the right to property. Recognizing the ‘strong attachment with nature, particularly, land and the natural environment’ of indigenous communities,82 the African Court held that the right to property provided for under article 14 of the AfricanCHPR embraces the right of the Ogiek community to occupy, use and enjoy their traditional lands.83 The Kenyan government had sought to evict the Ogiek community from the Mau Forest, their ancestral lands, on the grounds that their presence in the forest contributed to environmental degradation. The Court held that the Kenyan government had not substantiated the claim that the Ogiek had damaged the environment, and that denial of access to the forest was in breach of the Ogiek’s rights to property, religion, culture, free disposal of their wealth and natural resources and development, among other rights.84 The fundamental basis for the decision is the recognition of a distinctive relationship between indigenous communities and the natural environment and the dependence of such communities on the land and natural resources for their physical and cultural survival. Protection of the rights of the Ogiek thus entails protecting the environment. While better enforcement of decisions of the regional human rights institutions is still lacking and remains important,85 the effect of ‘naming and shaming’ governments as human rights violators and the elaboration of positive state obligations to protect the environment, as we see in cases such as Saramaka and SERAC, should not be

Saramaka People v Suriname (n 71) para 129. African Commission on Human and Peoples’ Rights v Republic of Kenya, Application No 006/2012, 26 May 2017, para 109. 83 ibid para 128. 84 ibid para 227. 85 See Rachel Murray and Elizabeth Mottershaw, ‘Mechanisms for the Implementation of Decisions of the African Commission on Human and Peoples’ Rights’ (2014) 36 Human Rights Quarterly 349; Amos Enabulele, ‘Incompatibility of National Law with the African Charter on Human and Peoples’ Rights: Does the African Court of Human and Peoples’ Rights Have the Final Say?’ (2016) 16 African Human Rights Law Journal 1. 81 82

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Environmental rights in the Global South 103 underestimated. Likewise, recognition of the rights of indigenous peoples to property, culture and religion is an important avenue to securing environmental protection.86 However, legal enforcement of environmental rights is not the only or even the most effective way to secure protection of those rights, particularly in countries in the Global South that, as has been argued above, often lack not only the resources and institutional capacity to implement human rights and environmental protection but also the political will to do so, often favouring economic development over environmental protection. Brunnée argues that current developments in international environmental law demonstrate that using formal enforcement processes as a last resort and focusing instead on processes encouraging voluntary compliance has the potential greatly to enhance support and protection of environmental rights.87 One of the most important prerequisites for voluntary compliance is establishing the legitimacy of international law norms through norm creation processes.88 Lawmaking under many multilateral environmental agreements (MEAs) such as the United Nations Framework Convention on Climate Change (UNFCCC)89 and the Paris Agreement90 does not end with the adoption and ratification of formal texts but continues under the aegis of Conferences of the Parties (COPs) in a process of ongoing dialogue between the parties. COPs provide a forum for developing shared understandings of the problem to be addressed and the normative parameters established by the formal text as well as providing a framework for further development and assessment of substantive requirements. As Brunnée notes: ‘[F]ostering the legitimacy of lawmaking processes and outcomes deserves close attention in building the foundations of a “culture of compliance”’.91 Provision is also often made in MEAs for civil society organizations, business networks and experts to contribute to ongoing norm creation and norm adaptation processes, facilitating the development of ‘dynamic interpretative communities’.92 Civil society activism, as we argue in more detail below, plays an important role in generating understanding and support for environmental rights as well as challenging government failure to protect environmental rights in many countries in the Global South. The creation of opportunities for greater engagement of civil society in formal processes to enhance environmental protection is significant. MEAs often also include a range of measures that encourage transparency and self-reporting, directly addressing one of the failures of many governments in the Global South.93 Finally, a significant See Aled Dilwyn Fisher and Maria Lundberg, ‘Human Rights Legitimacy in the Face of the Global Ecological Crisis: Ecological Rights Claims and the Inter-American Human Rights System’ (2015) 6 Journal of Human Rights and the Environment 177. 87 Jutta Brunnée, ‘Enforcement Mechanisms in International Law and International Environmental Law’ (2005) 1 Environmental Law Network International Review 1, 9. 88 ibid 8. 89 UN Framework Convention on Climate Change, New York, 9 May 1992, 1771 UNTS 107. 90 Paris Agreement, Paris, 12 December 2015, in Report of the Conference of the Parties on its Twenty-First Session, UN Doc FCCC/CP/2015/10/Add.1. 91 Brunnée (n 87) 1, 8. 92 ibid 9. 93 The UNFCCC website provides access to all documents, accessed at http://newsroom. unfccc.int/. 86

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104 Research handbook on law, environment and the global South feature of many MEAs is the recognition that lack of capacity often plays a substantial role in non-compliance and that ongoing dialogue, financial assistance and technical and other capacity building measures, tailored to address the particular needs of individual states, are more likely to succeed in fostering state compliance than penalties and sanctions.94 This has particular relevance to many poverty stricken countries in the Global South. It is arguable that the absence of formal international judicial forums to enforce international environmental law has led to more energetic pursuit of alternative mechanisms to encourage voluntary compliance in contrast to international human rights law where, due to the existence of well-established regional human rights courts, legal enforcement is often emphasized and other measures designed to encourage compliance are overlooked. While human rights courts play an important role, international human rights institutions and practitioners have much to learn from the alternative compliance strategies pioneered in MEAs in order to foster a culture of compliance. 4. Civil Society Activism The state and its agencies are not the exclusive actors in environmental governance. It is especially in the human rights domain where we see the deliberate emergence of non-state or civil society governance actors. Reflecting on their evolution, Salamon and Anheier believe the fact that: these organizations have attracted so much attention in recent years is due in large part to the widespread ‘crisis of the state’ that has been underway for two decades or more in virtually every part of the world, a crisis that has manifested itself in a serious questioning of traditional social welfare policies in much of the developed North, in disappointments over the progress of state-led development in significant parts of the developing South, in the collapse of the experiment in state socialism in Central and Eastern Europe, and in concerns about the environmental degradation that continues to threaten human health and safety everywhere.95

The environment clearly has now become a proper concern of civil society actors and it is gradually appealing to social movement energies and energetic global solidarities. While the role of non-governmental organizations (NGOs) has been subject to criticism that they often promote the policy agendas of the (Western) governments that fund them and that they displace governments as service providers,96 particularly in the Global South, at the same time, a cogent case can be made that, acting outside of the formal government setting, environmental NGOs ‘affirm values that are universally Brunnée (n 87) 1, 10. Lester Salamon and Helmut Anheier, ‘Civil Society in Comparative Perspective’ in Lester Salamon and others (eds), Global Civil Society Dimensions of the Nonprofit Sector (The Johns Hopkins Center for Civil Society Studies Baltimore 1999) 4. 96 Glen Wright, ‘NGOs and Western Hegemony: Causes for Concern and Ideas for Change’ (2012) 22 Development in Practice 123. 94 95

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Environmental rights in the Global South 105 recognized but politically manipulated in their own interest by political agencies’.97 Environmental NGOs enjoy broad-based public support; their activities focus on practical and current matters, specific cases and concrete expressions of human solidarity.98 Non-state actors play a variety of roles that contribute to the development of environmental constitutional and rights-based norms and structures. Making use of public participation processes, civil society actors are able to provide inputs during the drafting of environmental and human rights policies and laws. Utilizing liberal locus standi provisions, they are able to litigate on behalf of claimants, and monitor the implementation of environmental regulation and adherence to court judgments. And, as outlined above, legal action taken by NGOs in regional human rights courts is increasingly significant in drawing attention to state disregard of international and domestic obligations to protect environmental human rights, in highlighting and clarifying state obligations under international and national law, and in upholding the rule of law more generally. The involvement of civil society actors also has the potential to strengthen democratic participation and representation in environmental governance systems to the extent that not only states, but also a broader range of other interested and affected parties, are represented in norm building and in decisions that affect them and the environment. An added benefit is that the legitimacy of environmental governance could be enhanced as a consequence. In many parts of the Global South environmental NGOs play an important part in exposing environmental human rights abuses occasioned by state and non-state (especially corporate) entities. The Social and Economic Rights Action Center and the Center for Economic and Social Rights who spearheaded the SERAC claim on behalf of the Ogoni people in the ACommHPR, and the involvement of the Forest Peoples Programme in the Saramaka case in the Inter-American Court, are among many examples in this respect. It is especially in such instances where procedural environmental human rights, such as the rights of access to information, administrative justice and access to justice, become critically important to enable claimants to act not only in their own interest and in the interests of other affected individuals and groups, but also in the interest of the environment itself. 5. Indigenous Formulations of Novel Environmental Rights Finally, it is in the Global South where we see the emergence of novel and potentially paradigm-shifting conceptions of environmental rights. The rights of nature paradigm is one such conception, and one that does not neatly fall into any of the broader categories of human rights discussed above. For example, the Ecuadorian Constitution of 2008 signals the transition from a juridical anthropocentric orientation to an ecocentric one 97 Manuel Castells, ‘The New Public Sphere: Global Civil Society, Communication Networks, and Global Governance’ (2008) 616 ANNALS of the American Academy of Political and Social Science 78, 84. 98 The number of environmental NGOs at global UN conferences has steadily increased, notably since the Stockholm Conference on the Human Environment in 1972.

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106 Research handbook on law, environment and the global South and it was the first constitution in the world to recognize enforceable rights of nature (Pachamama or the Incan mother-goddess). Among other provisions, article 71 provides: Nature, or Pacha Mama, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes. All persons, communities, peoples and nations can call upon public authorities to enforce the rights of nature.99

Rühs and Jones emphasize that ‘[f]inding nature’s rights acknowledged legally is quite different from claiming such rights on the basis of ethical considerations’.100 To this end, the Constitution of Ecuador provides an example of how an ethical acknowledgement of nature’s rights could manifest concretely in the juridical sphere. It is also an example of an instance where the theoretical notions of rights of nature and indigenous ‘cosmovisions’101 that recognize the inextricable links between human beings and nature converge in a constitutional text. Linked to the foregoing point on the importance of civil society in relation to environmental human rights, while the proposal for the inclusion of the rights of nature in the Ecuadorian Constitution was mostly carried in more mainstream political, academic and civil society circles and from a Western liberal constitutionalism paradigm, indigenous peoples managed to successfully introduce into the debate the notion of Buen Vivir (or Sumak Kawsay in the indigenous Andean Kichwa language), which means ‘living well’.102 Deeply embedded in Andean thought and the decolonization paradigm that seeks to dissolve the Western neoliberal human-nature binary, Buen Vivir suggests that people should live well and always in harmony with nature: ‘[t]he good way of living shall require persons, communities, peoples and nationalities to effectively exercise their rights and fulfill their responsibilities within the framework of interculturalism, respect for their diversity, and harmonious coexistence with nature’.103 On paper at least, such a ground-breaking constitutional construction is a historical and potentially transcendent step towards recognizing the inherent ecological integrity and value of nature as a subject of law and a bearer of rights, instead of nature’s simply being relegated to being an object of protection for the instrumentalist benefit of ‘man’, who is (still) the only legitimate subject of law, bearer of rights and recipient of law’s objectifying regulatory protection and benefits.104 Constitution of the Republic of Ecuador, Official Registry No. 449, 20 October 2008. Nathalie Rhüs and Aled Jones, ‘The Implementation of Earth Jurisprudence through Substantive Constitutional Rights of Nature’ (2016) 8(174) Sustainability 1, 2. 101 See generally, Erin Fitz-Henry, ‘Decolonizing Personhood’ in Michelle Maloney and Peter Burdon (eds), Wild Law: In Practice (Routledge 2014) 133–48. 102 For example, the Pachamama Alliance has been in dialogue with the government of Ecuador since 2007 and submitted to the Constituent Assembly a draft concerning the rights of nature that was subsequently recognized and relied on by the Assembly. Fundación Pachamama, ‘Recognizing Rights for Nature in the Ecuadorian Constitution’ (n.d.), accessed at www.the rightsofnature.org/wp-content/uploads/pdfs/Recogniting-Rights-for-Nature-in-the-EcuadorianConstitution-Fundacion-Pachamama.pdf. 103 Constitution of the Republic of Ecuador (n 99) art 275. 104 Ecuador’s constitutional innovation has even been recognized by the UN General Assembly in Resolution 73/235, ‘Harmony with Nature’, UN Doc A/RES/73/235 (2015). 99

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Environmental rights in the Global South 107 The Inter-American institutions have also taken tentative steps to incorporate a more holistic conception of the relationship between nature and human communities in interpreting the right to life, protected under article 4 of the AmericanCHR. The right to life, in the jurisprudence of the Court, encompasses more than physical existence: it includes a positive duty on the state to ensure that all people have access to a Vida Digna, usually translated as a life with dignity or a dignified life.105 The state is accordingly obliged to take positive action to provide for ‘minimum living conditions’106 to enable individuals and communities to live lives compatible with human dignity.107 This conception of the right to life is described in Sawhoyamaxa Indigenous Community v Paraguay as: a single right with a double dimension (…) like the two-faced god Janus: one side, with a first-generation legal concept of the right to life; the other side, with the concept of a requirement to provide conditions for a feasible and full existence, that is to say a concept among the ones considered ‘second-generation rights’.108

The right to life, in this extended conception, incorporates not only the ‘second generation’ social, economic and cultural rights necessary to live a dignified life, such as the rights to health and education, but also satisfaction of the ‘life aspirations’109 and ‘right to self-development’ of individuals and communities.110 Creating appropriate conditions in the context of the culture and way of life of indigenous communities, intimately bound up with nature and their traditional lands as this should be, necessarily requires protection of the environment on which those communities and their cultures depend. In this light, the right to life imposes on states a positive duty to ensure that the environmental conditions necessary for ‘self-development’ of indigenous communities are maintained and protected. The Vida Digna jurisprudence of the Inter-American Court has, however, been criticized for focusing almost exclusively on improving the quality of life of indigenous communities through the recognition of economic, social and cultural rights, resulting in the imposition of Western notions of a dignified life on indigenous communities, rather than engaging with different worldviews and challenging Western ‘hegemonic

Villagrán-Morales v Guatemala (Merits) IACtHR Ser C No 63 (19 November 1999) para 144; Yakye Axa Indigenous Community v Paraguay (Merits, Reparations and Costs) IACtHR Series C No 125 (17 June 2005) para 162. 106 Yakye Axa v Paraguay ibid. 107 Jo Pasqualucci, ‘The Right to a Dignified Life (Vida Digna): The Integration of Economic and Social Rights with Civil and Political Rights in the Inter-American Human Rights System’ (2008) 31 Hastings International and Comparative Law Review 1, 2; Thomas Antkowiak, ‘Rights, Resources, and Rhetoric: Indigenous Peoples and the Inter-American Court’ (2013) 35 University of Pennsylvania Journal of International Law 113, 174. 108 Sawhoyamaxa Indigenous Community v Paraguay (Merits, Reparations and Costs) IACtHR Ser C No 146 (29 March 2006), separate concurring opinion of Judge Sergio García-Ramírez, para 18. 109 Yakye Axa v Paraguay (n 105) para 163. 110 Sawhoyamaxa Indigenous Community v Paraguay (n 108) para 18. 105

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108 Research handbook on law, environment and the global South civilizatory and developmental models’.111 Schettini argues that recognition of a broad concept of the right to life that incorporates an obligation on the part of the state to create conditions conducive to the full development of individuals and communities is merely the first step in ‘challenging the dualism that imposes the separation of society and nature’.112 Schettini suggests that the Inter-American institutions need to engage much more fully with debates in the region around the notion of Buen Vivir or living well as discussed above, in order to move beyond a conception of Vida Digna limited to satisfaction of social, economic and cultural rights: ‘[L]iving well, in contrast, changes the very ideas, radically questioning the concepts of development and progress, introducing alternative ways of conceiving the world, by restoring the relationship between quality of life and nature’.113

CONCLUSION We agree with Bosselmann when he says: ‘[T]he question of whether the world is at a tipping point might be rhetorical, but should alert us to an entirely new dimension of the human experience’.114 The continuously deteriorating socio-ecological state of the planet that we are experiencing, and that is apparent in the Anthropocene, must urgently be addressed by, among others, the strongest, most effective juridical means at our disposal. Clearly human rights, as apex juridical norms, offer viable and potentially powerful means to prevent and adapt to changing Earth system conditions. While the achievements of human rights in mediating the human-environment interface in the Anthropocene have been mixed, human rights clearly have the potential to improve socio-ecological justice, especially for the most vulnerable of people living in the Global South. What would be crucial in applying, improving on and further extending the environmental human rights paradigm in this endeavour is to identify their shortcomings, to address these and, ultimately, to use the broad range of environmental human rights to their fullest effect. As we have shown in this chapter, environmental human rights precedent and best practice abound, especially in many Global South countries and regional governance regimes. The stage is set for a reinvigorated application of these rights to improve, among others: strong ecological sustainability, environmental compliance and enforcement, stronger forms of ecological rule of law and more radical non-state modes of civil society activism and governance.

111 Andrea Schettini, ‘Towards a New Paradigm of Human Rights Protection for Indigenous Peoples: A Critical Analysis of the Parameters Established by the Inter-American Court of Human Rights’ (2012) 17 SUR International Journal on Human Rights 59, 61. 112 ibid 65. 113 ibid 66. 114 Klaus Bosselmann, Earth Governance: Trusteeship of the Global Commons (Edward Elgar Publishing 2015) 3.

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6. North-South transboundary movement of hazardous wastes – the Basel Ban and environmental justice Julia Dehm and Adil Hasan Khan

INTRODUCTION The social and environmental injustice arising from the transboundary movement of hazardous waste has remained a persistent feature of the global economy. The issue gained political traction in the mid- to late-1980s and remains salient today. In 2015 the United Nations Environment Programme (UNEP) again highlighted how ‘[d]ue to high costs of treating and disposing hazardous and other wastes, weak environmental regulations, poor enforcement and low environmental awareness, illegal transboundary movements of hazardous wastes and other waste from developed countries to developing countries have become an increasing global concern’.1 In response to these concerns, in 1989 the Basel Convention on the Control of the Transboundary Movement of Hazardous Wastes and their Disposal was adopted.2 Subsequently, in 1995, the controversial Ban Amendment, to prohibit the movement of hazardous waste from Northern (Annex VII) to Southern (non-Annex VII) countries was adopted, however it has still not entered into force. The inequitable concentration of hazardous waste in impoverished communities is a matter of environmental injustice that both reflects existing inequalities in power and wealth between the global North and the global South, and also reproduces them. This chapter highlights the broader conceptual or paradigm shift that has underpinned developments in the Basel Convention regime, which has the effect of undermining the principles of North-South environmental justice central to the Ban’s inception and advocacy. Our discussion of the changing international legal regulatory frameworks that govern the transboundary movement of hazardous waste from the mid- to late-1980s to the present illuminates how over the past three decades there has been a transformation in the underlying way in which North-South difference is understood and conceptualized within the hazardous waste regime. At stake in this paradigm shift is a transformation of how North-South difference is conceptualized and a move away from the explicit environmental justice framework adopted by a coalition of countries from

Ieva Rucevska and others, Waste Crime: Waste Risks – Gaps in Meeting the Global Waste Challenge: A Rapid Response Assessment (UNEP 2015) 6. 2 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, 22 March 1989, 1673 UNTS 57 (‘Basel Convention’). 1

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110 Research handbook on law, environment and the global South the global South, environmental social movements and environmental nongovernmental organizations (NGOs) during the drafting of both the Basel Convention and the subsequent Ban Amendment. Initially in debates around the Ban, discourses and debates on the transboundary movement of hazardous waste were underpinned by, what we call, a ‘justice paradigm’ in which North-South difference was understood as produced through the modes of appropriation and expropriation that have been central to historical colonialism as well as ongoing forms of neo-colonialism and persistent unequal terms of trade.3 In this paradigm poverty was understood as a product of processes of impoverishment4 or ‘planned misery’,5 and thus, questions of responsibility, restitution and compensation were seen as central to addressing and responding to North-South difference. However, over time, this underlying framework has been replaced by what we call a ‘capacity paradigm’ that conceptualizes North-South difference in terms of a ‘lack’, located in the global South, that the global South needs to redress by ‘catching up’ to the North through accelerated development and the ‘win-win’ opportunities presented by international trade. In this ‘capacity paradigm’, the focus is not on questions of historical and ongoing responsibility, but on the need for the South to build its capacity in order to overcome a naturalized North-South gap. Although we are critical of shifts in how North-South difference has been conceptualized in the regime over the past three decades, we do not necessarily endorse a simplistic return to the Ban as the centrepiece for the global governance of toxics. The increasingly globalized nature of production, the shifting dynamics of trade as well as the changing profile of waste have required and continue to require changes in how the transboundary movement of waste is regulated. As such, it is clear that the modes of regulation that were adopted in the mid- to late 1980s are no longer adequate to respond to contemporary conditions and challenges. Increasingly, the domestic generation of wastes in the global South, linked to the greater globalization of production, is responsible for a significant proportion of e- and other waste. Similarly, the fact that the Ban does not address the movement of hazardous waste between developing (nonAnnex VII) countries is a critical gap, as is the fact that the current regime fails to account for the ‘vast international differences’ and relative wealth and vulnerability between developing countries that are instead treated as a ‘monolithic bloc’.6 It is clear that the governance of the transboundary movement of waste needs to constantly evolve 3 In this regard we are drawing upon and applying the work of legal scholars such as Upendra Baxi, Margot Solomon and Susan Marks who have illuminatingly addressed the constitutive relationship between poverty and wealth and what Baxi has termed as ‘processes of impoverishment’. Upendra Baxi, ‘Introduction’ in Upendra Baxi (ed), Law and Poverty: Critical Essays (NM Tripathi 1988) vi; Susan Marks, ‘Human Rights and Root Causes’ (2011) 74(1) The Modern Law Review 57; Margot E Salomon, ‘Why Should it Matter that Others Have More? Poverty, Inequality and the Potential of International Human Rights Law’ (2011) 37 Review of International Studies 2137. 4 Baxi (n 3) vi. 5 Susan Marks, ‘Human Rights and the Bottom Billion’ (2007) 1 European Human Rights Law Review 37. 6 Josh Lepawsky and Chris McNabb, ‘Mapping International Flows of Electronic Waste’ (2010) 54(2) The Canadian Geographer 177, 179.

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North-South transboundary movement of hazardous wastes 111 and adapt to address these ongoing and emerging challenges. Further, this chapter does not address in much detail the ‘weaknesses that undermine [the] effectiveness’ of the Basel Convention, such as the fact that the Ban Amendment remains without legal effect, the lack of definitional clarity and the lack of enforcement capacity in the regime.7 Important recommendations have been made to standardize the definition of hazardous waste, to remove loopholes such as those allowing for the exclusion of ships from the definition, to push for greater distinctions between electronic and electrical waste (‘e-waste’) and reusable electronics, and as well as to strengthen the prior, informed consent process and its enforcement.8 The focus in this chapter is on how the shift from an underlying ‘justice paradigm’ to a ‘capacity paradigm’ for understanding North-South difference in the regime has deeper implications for the regime’s effectiveness and equity. We argue this shift sidelines broader questions of how benefits from the transboundary movement of waste are distributed, and how inequalities of power and income structure the political economy of the transnational waste regime. This chapter unfolds in several sections. The first section provides a background to the problem of transboundary movement of hazardous waste. Part B describes the background to the Ban Amendment, which was adopted at the second Conference of the Parties to the Basel Convention (COP2) in 1995. While it was widely celebrated as a key victory of environmental justice, as this chapter shows, it has been undermined in the succeeding 20 years. This section also describes decisions reached at COP10 in Cartagena, Colombia from 17–21 October 2011 that will facilitate the Ban Amendment coming into place. COP10 was described by UNEP Executive Director Achim Steiner as ‘the most successful meeting of the Basel COP ever’9 because the agreements reached at that meeting paved the way for the eventual adoption of the Ban Amendment. However, as the remaining sections of this chapter show, these decisions and other earlier and subsequent transformations in the regime have also undermined the Ban Amendment’s ability to bring about the North-South environmental justice outcomes its promoters had originally envisioned. The following sections describe how initially the categorical nature of the Ban had been sought to be weakened by allowing more countries to voluntarily be a part of Annex VII and contesting the classification of certain wastes as hazardous. Part C examines debates over what is considered ‘hazardous’ according to the Ban. Part D documents attempts to make the bifurcated North-South distinction and Annex VII more flexible. More recently the Framework for the Environmentally Sound Management (ESM) of Hazardous Wastes and Other Wastes, adopted by COP11, reorients the goals of the Basel Convention from minimizing the generation of hazardous waste, promoting national sufficiency in waste management and minimizing the transboundary movement of waste, to one that places environmental criteria on the transboundary movement of hazardous waste, and is concerned less with the injustice of transboundary hazardous waste movement than 7 Zada Lipman, ‘Trade in Hazardous Waste’ in Shawkat Alam and others (eds), International Environmental Law and the Global South (Cambridge University Press 2015) 265. 8 ibid. 9 International Institute for Sustainable Development, ‘Summary of the Tenth Meeting of the Conference of the Parties to the Basel Convention: 17–21 October 2011’ (Earth Negotiations Bulletin 2011), accessed at http://enb.iisd.org/vol20/enb2037e.html.

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112 Research handbook on law, environment and the global South with the capacity of South states for ESM. Connectedly, key players in Basel Convention debates are seeking a paradigm shift in which ‘hazardous wastes’ are rebranded as a ‘resource’, whose inclusion in sustainable development strategies presents ‘opportunities’ for South countries. Part E describes this move to rebrand ‘wastes’ as ‘resources’ and Part F discusses the focus on ESM. The concluding section analyses how the shifts in the regime reflect different understanding and conceptions of North-South difference and reflects on what the development of the Basel regime says about challenges for achieving global environmental justice in our times.

A. THE PROBLEM OF THE TRANSBOUNDARY MOVEMENT OF HAZARDOUS WASTE The problem of the transboundary movement of hazardous waste has historically been understood within an environmental justice frame. The environmental justice movement has highlighted the way in which environmental harms and burdens disproportionately affected communities who – often due to economic inequalities or racism – have been marginalized. Drawing on Robert Kuehn,10 Carmen Gonzalez lists how scholars have identified four dimensions to environmental injustice including: (1) distributive injustice arising from disproportionate exposure to environmental hazards and limited access to environmental amenities, (2) procedural unfairness caused by exclusion from environmental decision-making (3) corrective injustice due to inadequate enforcement of environmental legislation, and (4) social injustice because environmental degradation is inextricably intertwined with deeper structural ills, such as poverty and racism.11

Increasingly, a human rights paradigm has also been deployed to understand the harms from hazardous waste. In 1995 the UN Commission on Human Rights passed a resolution acknowledging that dumping of toxic and dangerous wastes and products has an adverse effect on the enjoyment of several human rights.12 A Special Rapporteur was appointed to examine the human rights implications of the dumping of hazardous waste, and in 2011 this mandate was expanded to examine more broadly the human rights implications of the ESM of hazardous waste, a mandate that continues today.13 Recently, the UN Special Rapporteur on the implications for human rights of the ESM 10 Robert Kuehn, ‘A Taxonomy of Environmental Justice’ (2000) 30 Environmental Law Reporter 10681. 11 Carmen G Gonzales, ‘Environmental Justice, Human Rights, and the Global South’ (2015) 13 Santa Clara Journal of International Law 151, 155. 12 UN Commission on Human Rights Resolution 1995/81, Adverse Effects of the Illicit Movement and Dumping of Toxic and Dangerous Products and Wastes on the Enjoyment of Human Rights, 8 March 1995, UN Doc E/CN.4/RES/1995/81. 13 ibid; see also Human Rights Council Resolution 18/11, Mandate of the Special Rapporteur on the Implications for Human Rights of the Environmentally Sound Management and Disposal of Hazardous Substances, 13 October 2011, UN Doc A/HRC/RES/18/11; Human Rights Council Resolution 21/17, Mandate of the Special Rapporteur on the Implications for Human Rights of the Environmentally Sound Management and Disposal of Hazardous Substances, 22 October 2012, UN Doc A/HRC/RES/21/17.

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North-South transboundary movement of hazardous wastes 113 and disposal of hazardous substances and waste drew attention to how children, some as young as five, work on dismantling and burning e-waste in sites in Africa, Latin America and Asia, in ‘among the most polluted places on earth’.14 While there are many synergies between perspectives focused on North-South environmental justice and environmental and human rights, as Carmen Gonzales has highlighted, these paradigms can also sometimes be in tension,15 and a human rights paradigm is potentially less equipped to address the distributional dimensions of this issue. The question of hazardous waste remains an acute international concern. Although there is a dangerous lack of information about the extent of the impacts of hazardous substances, some estimates suggest that up to 62 per cent of the production of industrial substances are toxic, with serious implication for human and environmental health.16 In 2000, 400 million tonnes of toxic waste were produced, 75 per cent of which originated in developed countries, and the lack of more recent data is a key concern.17 The movement of transboundary wastes remains ‘profit driven’ where ‘[r]ecyclers and waste brokers are taking advantage of lower recycling costs in developing countries and at the same time avoiding disposal responsibilities at home’.18 E-waste is the fastest growing waste stream.19 The UNEP estimates that 41 million tonnes of e-waste are generated annually, projected to grow to 50 million tonnes by 2017, 90 per cent of which is illegally traded or dumped.20 It is estimated that 80 per cent of all e-waste sent from developed countries for ‘recycling’ is shipped illegally to countries in the global South, especially China, India, Ghana and Nigeria.21 Complicating the narrative, the majority of e-waste is now produced by China, Latin American and other countries in the global South, rather than in Europe and the United States.22 Although three decades ago it was the movement of hazardous waste from the global North to the global South that was of key concern, the contemporary geography of e-waste ‘suggests a complex story of trade in e-waste where significant proportions of that trade occur within and between developing countries, not just from developed to developing countries’.23 Nonetheless, it remains empirically the case that ‘as GDP per 14 Human Rights Council, Report of the Special Rapporteur on the Implications for Human Rights of the Environmentally Sound Management and Disposal of Hazardous Substances and Waste, UN Doc A/HRC/33/41 (2016) 19. 15 Gonzalez (n 11). 16 Human Rights Council, Report of the Special Rapporteur on the Implications for Human Rights of the Environmentally Sound Management and Disposal of Hazardous Substances and Waste, UN Doc. A/HRC/30/40 (2015). 17 Lipman (n 7) 276. 18 Karin Lundgren, The Global Impact of E-Waste: Addressing the Challenge (ILO Report 2012) 11. 19 Rucevska and others (n 1) 7. 20 UNEP, ‘Illegally Traded and Dumped E-Waste Worth up to $19 Billion Annually Poses Risks to Health, Deprives Countries of Resources’ (UNEP Press Release 12 May 2015), accessed at www.unenvironment.org/news-and-stories/press-release/illegally-traded-and-dumpede-waste-worth-19-billion-annually-poses. 21 Lundgren (n 18) 9. 22 David Lee and others, ‘Monitour: Tracking Global Routes of Electronic Waste’ (2017) 72 Waste Management 362. 23 Lepawsky and McNabb (n 6) 184.

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114 Research handbook on law, environment and the global South capita declines, the likelihood that a given country is a net importer of e-waste increases’.24 Moreover, there is an acute lack of monitoring infrastructure, and their informal and undocumented nature makes the global flow of waste difficult to track.25 There is an increasing focus in the literature on how the global waste trade can ‘create jobs and generate income’.26 The global waste sector is estimated to be worth US$410 billion annually, encompassing collection and recycling, but excluding a large informal sector.27 The processing and recycling of waste has become a major source of employment in some developing countries and Lee et al argue ‘this work provides much-needed jobs and income to impoverished communities, along with cheap access to technology on the second-hand market’.28 However, other scholars have highlighted the need to pay attention to the ‘occupation risks’ inherent in such work as well as the broader dynamics ‘targeting poverty as the root cause of hazardous work’.29 Others have stressed that this trend needs to be understood as part of an ‘international division of labour in the processing of e-waste that puts people and places at high risk of economic insecurity and toxic contamination’, and that this international division ‘plays a determining role in the transformation of what is waste in one place into what is value elsewhere’ and is itself ‘constitutive of broader social geographies of belonging and marginalization’.30 While our focus in this chapter is on the Basel Convention which remains the ‘main global umbrella institution’31 to regulate the transboundary movement of hazardous waste, it is by no means the only regulatory framework governing this movement. Some members of the Organization of African Unity in 1991 endorsed the Bamako Convention on the Ban on the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Waste in Africa which came into force in 1998.32 The European Commission adopted Regulation (EC) No 1013/2006 of 14 June 2006 to implement the Basel Convention in EU law. In 2009 the separate Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships was finalized, to address the controversial issue of shipbreaking. There has also been the development of several public-private partnerships to address the transboundary movements of hazardous waste. In 2002 at COP6 parties adopted the (now defunct) Mobile Phones Partnership Initiative (MPPI) to ‘develop and promote Lepawsky and McNabb (n 6) 181. However, the authors also argue ‘that the pollution haven hypothesis may be both empirically and conceptually limiting in terms of understanding the realities of the trade and traffic of electronic waste and their broader theoretical implications for how we understand the geographies of waste and value’. 25 Lee and others (n 22). 26 Achim Steiner, ‘Preface’ in Rucevska and others (n 1) 4. 27 ibid. 28 Lee and others (n 22). 29 eg Lundgren (n 18) 9. 30 Lepawsky and McNabb (n 6) 189. 31 Rucevska and others (n 1) 7. 32 Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa, 30 January 1991, 2101 UNTS 177. 24

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North-South transboundary movement of hazardous wastes 115 the environmentally sound management of end-of-life mobile phones’.33 In 2006 at COP8, the Nairobi Declaration on the Environmentally Sound Management of Electrical and Electronic Waste was adopted, which called for more structured, enhanced efforts to address e-waste, including new partnerships. In 2008 the Partnership for Action on Computing Equipment (PACE) was launched as a multi-stakeholder, public-private partnership, by COP9. Similar multi-stakeholder, public-private partnerships have been developed including the UNEP Global Mercury Partnership, the PCB Elimination Network (to complete the work of the Stockholm Convention on Persistent Organic Pollutants) and the UNEP Global Partnership on Waste Management amount others.34 The development of public-private partnerships to address the critical challenges of transboundary movement of hazardous waste can be seen as part of global promotion of voluntarist ‘stakeholder’ engagement and ‘soft’ standard making that arguably undermined forms of (increasingly demonized) ‘command-and-control’ regulation. However, the language and framework of ‘stakeholders’ as seeking mutually beneficial or ‘win-win’ solutions risks masking the inequalities of power that exist between transnational corporations, the exporters and the importers of hazardous waste.35

B. BACKGROUND TO THE BAN AMENDMENT The Basel Convention on the Control of the Transboundary Movement of Hazardous Wastes and their Disposal (1989)36 and subsequently the adoption of the (yet to come into force) Ban Amendment in 199537 were a key response to the environmental injustice caused by an economic logic that promoted the export of hazardous waste from countries of the global North to the global South. The transnational dumping of toxic waste promoted outrage and solidarity between Southern states, social movements and several Northern NGOs that led to the adoption of the Ban Amendment prohibiting the export of some hazardous wastes from Organisation for Economic Co-operation and Development (OECD) countries (Annex VII) to non-OECD countries. In response to a number of high-profile scandals, where barrels of mixed industrial poisons had been dumped on tropical beaches or vessels loaded with ‘toxic trash’ were searching for a global South port-of-call, the UN started negotiating a treaty on the transboundary movement of hazardous waste in 1987. The coalition of countries from 33 Basel Convention, The Basel Convention MPPI, accessed at http://archive.basel.int/ industry/mppi.html. 34 Basel Convention, Other Partnerships, accessed at www.basel.int/Implementation/ TechnicalAssistance/Partnerships/OtherPartnerships/tabid/3240/Default.aspx. 35 For a discussion on how an ‘emphasis on problem solving achieved by stakeholders’ alongside apathy to centralized state power are key features of neoliberal governance, see Wendy Brown, Undoing the Demos: Neoliberalism’s Stealth Revolution (Zone Books 2015) 131–4. 36 Basel Convention (n 2). 37 Report of the Second Meeting of the Conference of the Parties to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, Decision II/12, UN Doc UNEP/CHW.2/30 (1994); see also Jennifer Clapp, ‘Seeping through the Regulatory Cracks’ (2002) 22(1) SAIS Review 141, 142.

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116 Research handbook on law, environment and the global South the global South and environmental NGOs pushing for such a treaty immediately called for a ban on such movements of hazardous wastes, however industrialized countries of the global North supported a treaty that would regulate – and not ban – such transboundary movement of waste. This latter position was reflected in the Basel Convention, which was adopted in March 1989 and came into effect on 5 March 1992 to address the management, disposal and transboundary movement of hazardous waste. The Convention provided that waste defined as hazardous could not be imported into a country without their prior, informed consent (PIC).38 The Convention also imposes obligations on parties to minimize both the generation of hazardous waste and its transboundary movement and to ensure there are appropriate facilities in their territory for the ESM of such waste and that any transboundary movement complies with the principles of ESM. The definition of ESM is however very vague, defined simply as ‘taking all practicable steps to ensure that hazardous wastes and other wastes are managed in a manner which will protect human health and the environment against the adverse effect which may result from such waste’.39 Subsequently countries from the global South and environmental NGOs expressed their strong dissatisfaction with the Basel Convention and how it institutionalized PIC and continued pushing for a ban.40 The leak of the then World Bank Chief Economist Larry Summers’ infamous 1991 memo, in which he commended the economic logic of dumping toxic waste in ‘the lowest wage country’ as ‘impeccable’ and described ‘underpopulated’ countries in Africa as ‘vastly under-polluted’, galvanized this movement. As Jose Lutzenberger, the Environmental Minister of Brazil, said in a sharp response to the World Bank: ‘[y]our reasoning is perfectly logical but totally insane … your thoughts [provide] a concrete example of the unbelievable alienation, reductionist thinking, social ruthlessness and the arrogant ignorance of many conventional “economists” concerning the nature of the world we live in’.41 The environmental NGO Basel Action Network (BAN) reflected that: Mr. Summers’ words were shocking for one simple, awful reason – they were true. And as such, the words spoke volumes about the imperatives of free market economics and its failure as an absolute model for governance over our lives. The economic logic of the export of hazardous wastes from the rich industrialized countries of the North to the poorer lessindustrialized countries of the South had already become horribly clear to the global community even before Mr. Summers wrote his infamous memo.42

Concerns also grew about the so-called ‘recycling loophole’ whereby waste exporters would label their shipments as destined for recycling (instead of disposal), in order to 38 See Basel Convention (n 2), Article 4 on General Obligations, Article 6 on TransBoundary Movement between Parties, and Article 9 on Illegal Traffic. 39 Basel Convention (n 2) art 2.8; Lipman (n 7) 262. 40 Mostafa K Tolba and Iwona Rummel-Bulska, Global Environmental Diplomacy: Negotiating Environmental Agreements for the World, 1973–1992 (MIT Press 1998). 41 BAN, ‘The Basel Ban: A Triumph for Global Environmental Justice’ (Basel Action Network, Briefing Paper No 1 2007), accessed at http://archive.ban.org/library/BP1_09_07.pdf. 42 ibid.

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North-South transboundary movement of hazardous wastes 117 by-pass even the minimal PIC requirements.43 In addition to concerns about ‘sham recycling’ there were further concerns about ‘dirty recycling’ where wastes were actually destined for recycling in the global South but where such recycling would take place under conditions that were dangerous for human and environmental health.44 Due to all these concerns, countries of the global South and environmental NGOs continued pushing for a ban on the movement of hazardous waste. In 1994 at COP2 a decision was passed to ban the export of all hazardous wastes from OECD to non-OECD countries including for recycling as of 1 January 1998.45 However questions persisted whether this decision was legally binding as it was not incorporated into the text of the Convention.46 In 1995 at COP3 there was a consensus decision to adopt the Ban Amendment to the Convention.47 This represented a defeat of powerful interests including the United States, the United Kingdom, Germany, Australia, Canada, Japan and France who all aggregately sought to prevent the adoption of the Ban Amendment or to water it down in the negotiations, before having to consent to its adoption.48 The Amendment would ban the export of hazardous wastes for final disposal and recycling from Annex VII countries (the European Union, the OECD and Lichtenstein) to non-Annex VII countries. The Ban Amendment has been widely celebrated as a major achievement in terms of environmental justice aspirations, and as one of the ‘few fulfilled promises’ of the 1992 United Nations Summit on Environment and Development.49 The Ban has been described as a ‘vital restraint against the unbridled free trade in a global liability’ and a key protection against the transformation of countries of the global South ‘via the “impeccable logic” of the free market into “toxic colonies” of the rich and most wasteful nations’.50 The Ban was also significant in that it reflected solidarity between global South countries, led by the African group, and instigated a legally binding trade barrier at a time when the promotion of free trade was in the ascendancy, and closed the recycling loophole.

43 See discussion in UN Commission on Human Rights, Progress Report: Adverse Effects of the Illicit Movement and Dumping of Toxic and Dangerous Products and Waste on the Enjoyment of Human Rights, UN Doc E/CN.4/1997/19 (1997). 44 David Naguib Pellow, Resisting Global Toxics: Transnational Movements for Environmental Justice (MIT Press 2007). 45 Report of the Second Meeting of the Conference of the Parties to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, Decision II/12, UN Doc UNEP/CHW.2/30 (1994). 46 Alan Andrews, ‘Beyond the Ban: Can the Basel Convention Adequately Safeguard the Interests of the World’s Poor in the International Trade of Hazardous Waste?’ (2009) 5(2) Law, Development and Environment Journal 167, 171. 47 Decisions Adopted by the Third Meeting of the Conference of the Parties to the Basel Convention, Decision III/1 (Amendment to the Basel Convention), UN Doc. UNEP/CHW.3/35 (1995). 48 Jim Puckett and Cathy Fogel, ‘A Victory for Environment and Justice: The Basel Ban and How it Happened’ (Greenpeace International 1994), accessed at http://wiki.ban.org/A_Victory_ for_Environment_and_Justice:_The_Basel_Ban_and_How_it_Happened. 49 BAN (n 41) 2. 50 ibid.

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118 Research handbook on law, environment and the global South The Ban Amendment, which to date has 88 ratifications, is however yet to come into effect.51 For a significant period confusion about the threshold number of ratifications needed for the Amendment to enter into force persisted. The Convention (Article 17(5)) provides that amendments come into effect (for the countries which accepted them) 90 days after ratification by three-quarters of the countries who agreed to the Amendment. However, there was significant uncertainty about whether this referred to three-quarters of the Parties to the Convention at the time the Amendment was adopted or three-quarters of the current Parties to the Convention. During COP10 in 2011, the clarification of Article 17(5) through the Indonesian-Swiss Country-Led Initiative (discussed further below) paved the way for the Ban Amendment to enter into effect after the ratification of the Amendment by an additional 17 countries.52 The decision agreed that Article 17(5) should be interpreted to mean that the Ban enters into force upon ratification by three-quarters of the parties that were Parties to the Convention at the time of the Amendment’s adoption.53 The Country-Led Initiative included seven elements, of which the entry into force of the Ban Amendment was one, but also included guidelines for the ESM of hazardous waste, as well as legal clarity around key Convention provisions. These decisions, alongside the Strategic Framework on the Implementation of the Basel Convention 2012–202154 had the effect of significantly reframing the way in which North-South differentiation and justice was now understood in the regime. The next parts explain in more detail some of the key aspects of this important paradigm shift that has the effect of making the categorical nature of the Ban more flexible.

Amendment to the Basel Convention (n 47). 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 Tenth Meeting, Decision X/3 (Indonesia-Swiss Country-Led Initiative to Improve the Effectiveness of the Basel Convention), UN Doc UNEP/CHW.10/28 (2011). 53 This was based upon the ‘fixed time’ approach and stated that ratification of an amendment needed to take place by three-quarters of Parties at the time of the adoption of the Amendment. This approach was favoured over the ‘current time’ approach that would require three-quarters of current Parties, and thus a greater number of ratifications. Japan, Australia and New Zealand spoke against the ‘fixed time’ approach favouring the ‘current time’ approach. See Cristina A Lucier and Brian J Gareau, ‘Obstacles to Preserving Precaution and Equity in Global Hazardous Waste Regulation: An Analysis of Contested Knowledge in the Basel Convention’ (2014) International Environmental Agreements: Politics, Law and Economics 1, 14. 54 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 tenth meeting, Decision X/2 (Strategic Framework for the Implementation of the Basel Convention 2012–2021) UN Doc. UNEP/CHW.10/28 (2011); see also 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 ninth meeting, Decision IX/3 (Strategic Plan and New Strategic Framework), UN Doc. UNEP/CHW.9/39 (2008). 51 52

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North-South transboundary movement of hazardous wastes 119

C. CONTESTATIONS OVER WHAT IS CONSIDERED ‘HAZARDOUS’ Debate over the definition of ‘hazardous’ in the regime has been a key site of contestation and one means by which some actors sought to make the categorical nature of the ban on the transboundary movement on hazardous waste more flexible. At COP3 when the Ban Amendment was passed by consensus, representatives from countries from the global North highlighted the need for further work to be done on ‘the hazard characteristics of waste’.55 Countries from the global North raised questions of definition of hazardous as soon as the Ban Amendment was passed, for example the representative from Canada stated ‘we will be unable to consider ratification of the amendment prior to an outcome on definitional terms from the technical working group, from which Canada can draw an assurance that trade in non-hazardous recyclables will not be jeopardized’.56 Australia too criticized that the amendment process was ‘in advance of the clarification of the definitions which are essential if Parties are to have a common understanding of what is prohibited’ and that Australia ‘will only consider ratifying the amendment when the work on the definition of hazardous characteristics is completed to our satisfaction’.57 After the Ban Amendment was passed clarifying the definition of ‘hazardous’ became an imperative for industry and recycling lobbies, as well as several industrialized countries. These deliberations took place in the Technical Working Group (TWG) to the Basel Convention, which had been established in 1992 to prepare technical guidelines for the ESM of waste.58 In this period, between 1995 and 2002, industry groups typically outnumbered environmental groups by six to one within the TWG.59 In 1995 (the same year the Ban Amendment was adopted) at an ‘Informal Advisory Meeting’ the TWG decided that the hazardousness of various items would be determined by lists, with materials deemed to be ‘hazardous’ placed on List A (which would become Annex VIII of the Convention) while those materials deemed nonhazardous were placed on List B (eventually Annex IX of the Convention) and not Report of the Third Meeting of the Conference of the Parties to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, UN Doc. UNEP/CHW.3/34 (1995), para 29. 56 Statement made by Canada following the adoption of the amendment decision by consensus, delivered by Mr John Fraser, Ambassador for the Environment, in Report of the Third Meeting of the Conference of the Parties to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (n 55) Annex II. 57 Statement made by Australia following the adoption of the amendment decision by consensus, in Report of the Third Meeting of the Conference of the Parties to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (n 55) Annex III. 58 Jonathan Krueger, ‘What’s to Become of the Trade in Hazardous Waste: The Basel Convention One Decade Later’ (1999) 41(9) Environment 11. 59 Cristina A Lucier and Brian J Gareau, ‘Obstacles to Preserving Precaution and Equity in Global Hazardous Waste Regulation: An Analysis of Contested Knowledge in the Basel Convention’ (2016) 16(4) International Environmental Agreements: Politics, Law and Economics 9. 55

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120 Research handbook on law, environment and the global South subject to the Convention. Lucier and Gareau have described key differences in the positions adopted by delegates from the global South and environmental NGOs and the views promoted by industry associations and wealthy waste-exporting countries. The former argued for the adoption of a ‘risk management’ framework to determine ‘hazardousness’ that recognizes the different and unequal socio-economic contexts in the global North and global South, and thus the need to consider the conditions under which hazardous wastes are actually handled in the South.60 In contrast, the latter promoted an ‘intrinsic hazard criterion’61 that considers the risks posed by materials when they are managed in accordance with the ‘proper’ technologies, technical faculties and expertise. As such, the latter model is an evaluation of the risks of particular materials under ideal conditions, which however do not exist as a matter of fact in many countries of the global South. Unsurprisingly, these differing approaches lead to different assessments of the hazardousness of particular materials. Lucier and Gareau highlight the example of scrap lead, which was listed as hazardous in 1995, but the following year was listed as ‘non-hazardous’ based on the application of the ‘intrinsic hazard’ criteria, to show the real implications of this definitional shift. Similarly, industry lobbyists have successfully influenced many materials which might potentially have been banned, being placed on the ‘acceptable’ list.62 In this way, these seemingly ‘technical’ decisions about the definition of ‘hazardous’, and thus what is and is not considered ‘hazardous’, in important ways modified the scope, reach and parameters of the Ban Amendment.

D. HARDENING OR SOFTENING NORTH-SOUTH DIFFERENTIATION? DEBATE OVER THE ANNEXES Another key site of struggle over the scope of the Ban Amendment involved how the membership of the Convention’s Annex VII was to be determined. The Ban Amendment sought to prevent the transboundary movement of hazardous waste from Annex VII (OECD, European Community and Lichtenstein)63 to non-Annex VII countries. However, there have been persistent efforts to make the differentiation in the regime less bifurcated along North-South lines and instead based on upon a country’s capacity for ESM of waste. At COP4 in 1998, Monaco, Slovenia and Israel all applied to join Annex VII. There was strong support by the European Union, the United Kingdom, New Zealand, Australia, the United States and the Netherlands to the opening up of Annex VII membership, and strong opposition to this, especially from the Arab States, with Sri Lanka, Turkey and Cuba agreeing. For environmental groups this application ‘raised the spectre of an Annex VII “domino effect” expansion, which would rapidly render the Basel Ban meaningless’.64 BAN wrote in their Briefing Paper: ibid. ibid. 62 ibid. 63 Basel Convention (n 2), Annex VII, Decision III/1 (1995). 64 Basel Action Network, ‘Basel Ban Victory at COP4’ (Basel Action Network 1998), accessed at http://wiki.ban.org/Basel_Ban_Victory_at_COP4. 60 61

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North-South transboundary movement of hazardous wastes 121 If the wishes of Monaco, Israel and Slovenia were granted, the only enforceable global dividing line (OECD group) between the richest, most industrialized countries and the rest of the world would be erased, and the Basel Ban would be transformed into an open ended agreement based perhaps on some form of unenforceable criteria for ‘environmentally sound management’. In short, if non-OECD countries were allowed to join Annex VII, the ban would no longer be a ban, but an open ended, largely voluntary agreement.65

A contact group suggested a ‘proposed way forward’ that outlined four options.66 In the end COP4 (1998) adopted Decision IV/8 that Annex VII should remain unchanged until the Ban Amendment enters into effect,67 a decision which was celebrated as a victory by BAN and other environmental groups. Decision IV/8 further requested that the TWG and the Sub-group of Legal and Technical Experts provide parties with a detailed analysis of issues relating to Annex VII at COP5. While this decision thereby maintained differentiation in the regime based on a sharp bifurcation between global North (Annex VII) and global South (non-Annex VII) countries, in subsequent years several other proposals similarly sought to transform the regime and promote a more flexible, capacity-based approach to differentiation.

E. FROM ‘WASTE’ TO ‘RESOURCES’ A further transformation of the regime and the way in which differentiation operates in the Ban Amendment has been driven by attempts to reclassify ‘wastes’ as ‘resources’.68 The initial analysis by the TWG and the Sub-group of Legal and Technical Expertise on issues relating to Annex VII was welcomed at COP5 (1999). It was also agreed that a second phrase of this analysis was necessary,69 and the Open-Ended Working Group, a subsidiary body of the Convention, was mandated to investigate eight different elements.70 Their preliminary analysis, released in 2003, identified that some parties ibid. Namely, that (1) no additions be made to Annex VII (supported by Arab League, most African countries, China, Cuba, Sri Lanka, BAN and Greenpeace); (2) that any country that wished to join Annex VII can do so (supported by Canada, Monaco, Israel and Slovakia); (3) that only Monaco could join Annex VII, but no other country could (supported by the EU); or (4) the development of further criteria to determine who could be on Annex VII (supported by United States, New Zealand, Australia, Brazil, Argentina, Chile, South Africa and the Philippines); Basel Convention (n 2). 67 Report of the Fourth Meeting of the Conference of the Parties to the Basel Convention, Decision IV/8 (Decision regarding Annex VII), UN Doc. UNEP/CHW.4/35 (1998). For a detailed account of the struggles entailed in adopting this position, see Basel Action Network (n 64). 68 Cristina A Lucier and Brian J Gareau, ‘From Waste to Resources? Interrogating “Race to the Bottom” in Global Environmental Governance of Hazardous Waste Trade’ (2015) 21(2) Journal of World-Systems Research 496. 69 Report of the Fifth Meeting of the Conference of the Parties to the Basel Convention, Decision V/4, (Report on the Implementation of Decision IV/8 (Decision regarding Annex VII)), UN Doc UNEP/CHW.5/29 (1999). 70 These were ‘(a) Examine the implications of Annex VII with regard to environmental, economical and other aspects; (b) Evaluate the institutional and legal framework for the 65 66

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122 Research handbook on law, environment and the global South closely connected questions relating to Annex VII membership with questions relating to the definition of ESM of waste.71 The analysis argued that ‘[m]arked differences are noted in among non-Annex VII countries in terms of their capacity to manage hazardous wastes’, where some have capacity for ESM of waste, while others do not.72 Significantly, as part of its evaluation of the cost-benefit and effectiveness of hazardous waste recycling versus health risks and environmental damage, the report also identified that International trade in metal scrap and residues represents an important source of supply for industries in both Annex VII and non-Annex VII countries. Some of the operations are more polluting than others and can result in contamination of the environment. On the one hand, the recovery or recycling of metal-bearing wastes by the informal sector is considered to be a significant source of pollution. Sham recycling has been identified by Parties and others as a serious problem, affecting, in particular, developing countries and countries with economies in transition. On the other hand, many studies have shown that sound recovery or recycling leads to resource savings and reduction in emissions and wastes. Operators with access to the international market can work with newer and cleaner technologies than those excluded from this market.73

In summarizing, the report identified a broader policy shift ‘away from a strong focus on regulations towards market-driven opportunities where waste becomes a potential resource’.74 It highlighted how ‘[p]rogress in waste management and the creation of new markets for certain waste streams have led to new emphasis on the need to promote recovery or recycling as an efficient use of natural resources and energysaving’.75 Additionally, it stressed the ‘critical need to build capacity for the recovery or recycling of certain hazardous and other wastes’ given that ‘[r]apidly industrializing countries have a growing demand for secondary raw materials to sustain the pace of implementation of Decision III/1; (c) Evaluate the implications of Annex VII on the obligations of countries to reduce hazardous waste generation and transboundary movements; the current efforts and results of waste minimization programs; and waste management infrastructure; (d) Evaluate the means to implement paragraph 21 of the preamble to the Basel Convention to promote assistance to non-Annex VII countries (capacity-building) for the sound management of hazardous wastes and other waste generated in their countries, including the provision of financial and technical assistance; (e) Analyse the risk to human health and the environment associated with the disposal, recycling or recovery of hazardous waste and the indicators that assess those risks; (f) Evaluate the steps to be taken to implement Decision III/1, including its relationship with international agreements relevant to the transboundary movements of hazardous wastes in order to assist Parties to ratify the Amendment; (g) Evaluate the cost-benefit/ effectiveness for hazardous waste recycling versus health risks and environmental damages; and (h) Examine the implications of Annex VII in terms of furthering the objectives of the Convention, including minimization of the generation and transboundary movement of hazardous waste’: OEWG, Analysis of Issues related to Annex VII – Note by the Secretariat, UN Doc. UNEP/CHW/OEWG/2/7 (2003). 71 ibid para 12. 72 ibid para 17. 73 ibid para 32. 74 ibid para 36. 75 ibid.

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North-South transboundary movement of hazardous wastes 123 their social and economic development’.76 It concluded by identifying that further attention needed to be given to how ESM of waste is applied in practice.77 In doing so, it reiterated the focus on ESM in the 1999 Basel Declaration on Environmentally Sound Management78 and the Strategic Plan for the Implementation of the Basel Convention (2002–2010).79 The Final Report of the Open-Ended Working Group on analysis of issues related to Annex VII was released in August 2004, prior to COP7 (October 2004).80 In their response to the report, BAN was highly critical of many aspects, but especially the designation of ‘wastes’ as ‘secondary raw materials’ in the above quoted paragraph. BAN stressed that ‘these are “wastes” [that] are in fact hazardous or (…) known to cause environmental harm when disposed or recycled’.81 They further noted that ‘[n]othing in the paragraph suggests why scrap and wastes migrate from Annex VII to non-Annex VII countries’ and scathingly described this omission as ‘quite amazing as it is a well-known phenomenon which spawned the Basel Convention itself’ – that ‘[h]azardous waste migrates to take advantage of cheaper recycling labour, lack of environmental and occupational protections (…) found in developing countries or weaker economies’.82 BAN also critiqued the assumption that the transboundary movement of hazardous waste would lead to enhanced technology flowing to developing countries, arguing that [w]hat remains unanswered by technological ‘solutions’ are the incentives to prevent waste in the first place, the fact that technology alone cannot guarantee levels of environmental and human health protection, and finally, the justice issue of allowing weaker economies to receive a disproportionate burden of the world’s waste simply because they are relatively poor.83

Finally BAN contested the assessment that trends towards deregulation and policy shifts ‘away from a strong focus on regulations towards market-driven opportunities’ were still ongoing. Instead, they stressed that the failures of deregulation have become apparent and therefore the regulatory focus in the new millennium was instead on the

ibid para 37. ibid, para 38. 78 Basel Declaration on Environmentally Sound Management, 1999, accessed at www. basel.int/Portals/4/Basel%20Convention/docs/meetings/cop/cop5/ministerfinal.pdf. 79 Report of the Conference of the Parties to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, Sixth meeting, Decision VI/1 (Strategic Plan for the Implementation of the Basel Convention (to 2010)) and Decision VI/2 (Project Proposals under the Strategic Plan for the Implementation of the Basel Convention) UN Doc UNEP/CHW.6/40 (2003). 80 Analysis of Issues related to Annex VII – Note by the Secretariat, UN Doc. UNEP/ CHW.7/12 (2004); for the first draft see, OEWG (n 70). 81 Compilation of Written Comments on the Issue Submitted to the Secretariat in Advance of the Third Session of the Open-Ended Working Group, in Analysis of Issues Related to Annex VII – Note by the Secretariat, UN Doc. UNEP/CHW.7/12 (2004) 17. 82 ibid. 83 ibid. 76 77

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124 Research handbook on law, environment and the global South polluter pays principle and calls for ‘manufacturer responsibility in the full life cycle management of their products or extended producer responsibility’.84 The move to rebrand ‘wastes’ as ‘resources’ intensified in the lead up to COP10 in October 2011. In February 2011 a non-paper prepared for the Executive Secretary of the Basel Convention on the ‘waste-resource interface’ argued that ‘[t]here is significant unexploited potential for creating economic opportunities and safe jobs world-wide while protecting human health and the environment through the recycling and reuse of certain waste streams in an environmentally sound manner’.85 The overarching question posed by the Executive Secretary concerned how the Basel Convention could contribute to realizing the economic, social, environmental and health protection potential of the ‘waste-resource interface’, in full conformity with its objective and provisions? Specific questions included: +

Which wastes/waste streams can be recycled or re-used and yield valuable secondary resources?

+

What technologies/methods/facilities exist for each of the waste streams?

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What certification schemes or standards exist or could be developed for each of the waste streams, feasible for/applicable to different parts of the world?

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What are the costs and benefits of the relevant approaches in different policy contexts (both short term and long term)? What data is available to quantify this?

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What could be a useful and feasible approach for the Basel Convention to consider in this context?86

The non-paper spoke about a ‘paradigm shift’ in how waste is viewed, from being perceived as ‘useless and costly’ to a greater focus on its ‘economic potential’ and the business opportunities that arise from promoting ‘waste as a valuable resource’.87 It stressed that the Basel Convention needed to ‘modernize’ in order to ‘keep pace with this paradigm shift’.88 Several policy suggestions arising from the non-paper included launching a ‘sustainable secondary resource initiative’ to outline the circular ‘cradle-to-grave approach’ and promote the sound and safe use of waste as a secondary resource; new tools for the prevention and minimization of waste generation through the promotion of intelligent product design and a lifecycle approach to materials; revising the permissibility of transboundary hazardous waste movements to promote ‘resource efficiency through environmentally sound recycling or recovery operations’; formalizing the informal waste-resource management sector and encouraging public-private partnerships to ‘enhance this sector’s efficiency in resource recovery’; and greater accounting for inputs from waste flows at the national level. In order to facilitate these overarching ibid 29. Katharina Summer, ‘Shifting Paradigms: From Waste to Resources’, Non-paper (Executive Secretary of the Basel Convention 2011); Melanie Ashton, Basel Executive Secretary Releases Non-Paper on Wastes to Resources (IISD Knowledge Hub 2011). 86 ibid. 87 ibid. 88 ibid. 84 85

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North-South transboundary movement of hazardous wastes 125 policy recommendations the non-paper prescribed the following practical steps: rework definitions to incorporate additional waste classifications; develop ‘fast track’ stream for the transboundary movement of hazardous waste for recycling in an environmentally sound manner; develop new ‘resource recovery’ or ‘waste utilization’ criterion to differentiate end-of-life goods from (processed) secondary raw materials; develop tools such as standards for ESM and adequate certification schemes; create new incentive systems; promote product quality standards or labels for ‘clean’ secondary resources made from recycled waste streams; increased transparency, data sharing and technology dissemination; advise and support in applying ESM criteria/principles; raise awareness of benefits and challenges of the ‘transformation of waste to resources’; expand the scope of national reporting; and transform the Conventions database into a ‘global observatory of waste’. Unsurprisingly, BAN was highly critical of the non-paper’s promotion of recycling, arguing that it created a ‘justification for throwing out the landmark and increasingly vital Basel Convention rules and obligations’.89 BAN argued the non-paper was another ‘attempt by a few to cloak cost externalization with the green mantle of “recycling”’, a position they describe as ‘worn-out and long rejected’.90 BAN continues: it is well known that toxic waste is not traded to developing countries for recycling to take advantage of better facilities and the availability of stronger national infrastructure to govern such facilities. Tragically, toxic waste moves across borders to do just the opposite: exploit cheaper labor and weaker government safety nets. Cheap labor comes in a context of relatively weaker economies whose governments therefore do not have the resources necessary to ensure that toxic waste recycling facilities are operated at optimal conditions; where adequate laws, monitoring and enforcement can truly protect worker safety and health and the local environment; where there are adequate toxic residual disposal technologies in place (because nothing is 100 percent recyclable); where there are independent trade unions, tort law, right to know laws, to protect the rights of workers and communities, etc.91

Although BAN acknowledged that recycling has a critical role to play in waste management, they argued that ‘recycling, particularly of hazardous waste, is no panacea for our waste crisis and should never be used as a justification for dumping costs and risks on those less able to deal with them’ and stressed instead the need to focus on waste minimization and prevention.92 In evaluating this paradigm shift from ‘waste’ to ‘resources’, Lucier and Gareau argue that ‘the reimagining of wastes as a potential “resource” for promoting technological and economic development is enabling a shift in global environmental policy that will increase the North to South trade in these hazardous materials’.93 Further they argue that discourses of ‘waste as resource’ favours market logics and also ‘undermines environmentalist claims by suggesting that the new regulations encourage 89 BAN, ‘COP10 Alert 1: When a Non-Paper is the Wrong Paper: Resource Recovery – Yes, Exploiting Weaker Economies – No’ (Basel Action Network 2011), accessed at http://archive. ban.org/wp-content/uploads/2011/09/cop_10_alert_1.pdf. 90 ibid. 91 ibid. 92 ibid. 93 Lucier and Gareau (n 68) 497.

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126 Research handbook on law, environment and the global South material re-use/recycling and the creation of “green” jobs in LDCs’.94 Alongside the recharacterization of ‘waste’ as a ‘resource’ there has been a related emphasis on the crucial economic role that waste recycling plays in some developing economies as part of economic activity and as a job provider. The UNEP describes the ‘global waste market’ as generating both jobs and incomes.95 Similarly, Lipman emphasizes that ‘for cash-strapped economies, hazardous waste imports offer an important source of revenue and provide employment for thousands of workers’.96 The danger in this approach is that it fails to analyse the broader global political economy of waste recycling and transfer, and who benefits from such transfers. Moreover, it dangerously ‘re-frames the toxic wastes trade as essential for sustainable economic development rather than as a manifestation of global environmental injustice’.97 The problem of e-waste – the fastest growing hazard waste stream of the 21st century – is emblematic of these shifts, and its regulation has therefore been described at lying in a ‘liminal space between products and waste’.98 The problem of e-waste is discussed in more detail in Part F.

F. ENVIRONMENTALLY SOUND MANAGEMENT OF WASTE Alongside, and ‘interactively unfolding’99 with the discursive shift to transform ‘waste’ into ‘resources’, is a parallel focus on the capacity of states for the ESM of waste and the need to build this capacity. This focus on capacity of states for ESM is part of a broader move to change the nature of differentiation in the Basel Convention from a bifurcated model that (through Annex VII) draws a clear distinction between countries of the global North and the global South, to a more flexible model of differentiation based on different countries’ capacity to manage waste in a ‘environmentally sound’ manner. In 2004, almost a decade after initial moves to expand Annex VII were defeated, some countries began to argue that membership of Annex VII should be based on capacity for ESM of waste instead of OECD membership.100 Australia stressed the need to ‘develop a process to ensure that listing in Annex VII is based on considerations that are demonstratively linked to environmental competency’.101 Australia argued it would be problematic if a non-Annex VII country that has the capacity for the ESM of hazardous and other wastes was not allowed to import such waste simply because it was not listed in Annex VII.102 At COP7 in 2004 Australia again criticized ibid. UNEP (n 20). 96 Lipman (n 7) 274. 97 Lucier and Gareau (n 68) 495. 98 Sabaa Ahmad Khan, ‘E-Products, E-Wastes and the Basel Convention: Regulatory Challenges and the Impossibilities of International Environmental Law’ (2016) 25(2) Review of European, Comparative and International Environmental Law 248. 99 Lucier and Gareau (n 68) 516. 100 Lucier and Gareau (n 59) 23. 101 Analysis of issues related to Annex VII (n 80), Part II, 18. 102 ibid 17. 94 95

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North-South transboundary movement of hazardous wastes 127 what it saw as the ‘arbitrary nature’ of Annex VII membership and argued that membership had to be based on ‘ability to manage hazardous wastes in an eminently sound matter’ because ‘only criteria that related directly to such objectives make any sense’.103 Canada similarly argued that the circumstances of many countries had changed since the Ban Amendment was adopted and that ‘a number of developing countries have demonstrated a high standard of environmental performance through the adoption of environmentally sound management (ESM) practices’. Canada further argued: In this regard, regardless of the country, we think that the Ban Amendment should also take into account the availability of state-of-the-art facilities, facilities that can manage wastes in an environmentally sound manner. A developing country investing in a capital project to build a state-of-the-art facility, consistent with the principles of environmentally sound management, should be entitled to have access to global feedstocks in order to remain competitive within the lucrative recycling market.104

Perversely, in this formulation, hazardous wastes become ‘global feedstocks’ and vulnerability to dumping is reframed as holding a competitive position within a ‘lucrative recycling market’! At COP8, the dumping of approximately 10,000 tonnes of toxic waste in Abidjan, Cote d’Ivoire in August 2006 that led to at least 10 deaths, 69 people hospitalized and over 100,000 medical consultations overshadowed the discussions.105 For many representatives, especially from the global South, this event highlighted the urgent need to ensure the entry into force of the Ban Amendment. The interpretation of Article 17(5) of the Convention, concerning the number of ratifications necessary before amendments to the Convention come into effect, ‘prompted considerable debate’.106 The controversial legal issue was whether the required number of ratifications was three-quarters of the number of Parties at the time the Amendment was adopted or three-quarters of the number of Parties at the time of the deposit of each instrument of ratification.107 Decision VIII/30 urged all Parties to ‘make every effort to facilitate the early resolution’ of the interpretative debate, and requested the Open-Ended Working Group to further action to resolve this ambiguity and invited comments from all parties.108 103 Report of the Conference of the Parties to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal at its Seventh Meeting, UN Doc UNEP/CHW.7/33 (2005), Annex II. 104 ibid. 105 Report of the Conference of the Parties to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal at its Eight Meeting, UN Doc UNEP/CHW.8/16 (2007) para 25. 106 ibid para 58. 107 ibid para 59. 108 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, Decision VIII/30 (Interpretation of Paragraph 5 of Article 17 of the Basel Convention), UN Doc UNEP/CHW.8/16 (2007).

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128 Research handbook on law, environment and the global South In 2008, at COP9 consensus could not be reached on a draft text in relation to Article 17(5)109 and thus Decision IX/25 simply recalled the earlier decision and requested the ‘Open-ended Working Group to continue (…) the development of a draft decision to reach an agreed interpretation of paragraph 5 of Article 17’.110 However, the Annex to the decision included a heavily bracketed and footnoted ‘non-exhaustive list of possible elements for a draft decision’. The President of the COP expressed his intention ‘to try to break the deadlock that for many years had prevented progress’ and introduced a proposal, in the form of a statement, about a possible way forward on the Ban Amendment.111 This statement was adopted as an Annex to Decision XI/26 and asserted in part that: Given the length of time that has elapsed since the adoption of the Ban Amendment and that some time may still be needed to address the interpretation of the amendments procedure, the President seeks to launch a process, on the august occasion of the ninth meeting of the Conference of the Parties, which will reaffirm the objectives of the Ban Amendment and explore means by which these objectives might be achieved. The President stresses that this initiative should serve to complement, and most certainly should be without prejudice to, the continuing efforts by Parties to ensure the entry into force of the Ban Amendment.112

In 2009 the Indonesia-Swiss Country-Led Initiative was established to resolve the Amendment ratification controversy in an ‘informal, dynamic and non-dogmatic manner’.113 Lucier and Gareau argue that this process was part of a broader plan to transform the nature of the Ban from one based on economic distinctions between countries of the global North and those of the global South, to one based on distinctions based on whether a country is capable of managing waste in an ‘environmentally sound manner’.114 They write that in confidential interviews delegates from the EU and countries opposed to the Ban ‘explained there was more to the Country Led Initiative than finding a way for the Ban to enter into force. Simply put, once the ban amendment is in force it is possible to amend it, and this was their new objective’.115 109 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 Ninth Meeting, UN Doc UNEP/CHW.9/39 (2008) para 69. 110 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 Ninth Meeting, Decision IX/25 (Addressing the Interpretation of Paragraph 5 of Article 17 of the Basel Convention), UN Doc UNEP/CHW.9/39 (2008). 111 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 Ninth Meeting (n 109) para 70. 112 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 Ninth Meeting, Decision IX/26 (President’s Statement on the Possible Way Forward on the Ban Amendment), UN Doc. UNEP/CHW.9/39 (2008) Annex para 5. 113 Basel Convention, The Country-Led Initiative, accessed at www.basel.int/ Implementation/CountryLedInitiative/tabid/1339/Default.aspx. 114 Lucier and Gareau (n 68). 115 ibid 504–5.

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North-South transboundary movement of hazardous wastes 129 At COP10 in 2011 the Country Led Initiative formed the basis of an ‘omnibus decision’. Decision X/3 included elements on the entry into force of the Ban Amendment; developing guidelines for ESM; providing further legal clarity; further strengthening the Basel Convention regional and coordinating centres; combatting illegal traffic more effectively; assisting developing countries that are facing specific challenges with regard to prohibiting the import of hazardous waste; and building capacity.116 Significantly, the decision clarified the operation of Article 17(5) paving the way for the Ban Amendment’s entry into force.117 It also included a decision to ‘complete the development of a framework for the environmentally sound management of hazardous wastes and other wastes’ and mandated a technical expert group to complete this work.118 The ‘omnibus decision’ also called for a completion of a study on the interpretation of terminology central to the implementation of the Convention including ‘waste/non-waste; hazardous waste/non-hazardous waste; re-use; direct re-use; refurbishment; second-hand goods; used goods’.119 Alongside this, the Cartagena Declaration on the Prevention, Minimization and Recovery of Hazardous Wastes and Other Wastes was adopted.120 The preamble to Decision X/3 signals both a focus on building capacity for ESM and a centring of the ban in the regime. It notes that there are parties to the Basel Convention (…) especially developing countries that are facing specific challenges with regard to controlling imports as they are unable to manage hazardous wastes and other wastes in an environmentally sound manner but contribute to receive such wastes, which results in serious harms and needs to be addressed as a matter of urgency.121

Moreover, the decision further notes that, while the Ban Amendment is ‘one way of meeting that challenge, there are other ways of meeting it responsibly, especially through stringently applying the prior informed consent procedure, strengthening environmentally sound management and putting in place national legislation’.122 After the decision was adopted there was a standing ovation and celebratory remarks, and the President of the COP described it as a ‘proud achievement for the Convention’ as well as a ‘paradigm shift in its history’. There was general agreement that the ‘adoption marked a historic turning-point that boded well for the effectiveness of 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 Tenth Meeting, Decision X/3 (Indonesian-Swiss Country-Led Initiative to Improve the Effectiveness of the Basel Convention), UN Doc UNEP/CHW.10/28 (2011). 117 ibid Part A, para 2. 118 ibid Part B, para 2. 119 ibid Part C, para 1(a). 120 Cartagena Declaration on the Prevention, Minimization and Recovery of Hazardous Wastes and Other Wastes, in 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 Tenth Meeting, UN Doc UNEP/CHW.10/28 (2011) Annex IV. 121 Decision X/3 (Indonesian-Swiss Country-Led Initiative to Improve the Effectiveness of the Basel Convention) (n 116), Part A, preamble. 122 ibid. 116

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130 Research handbook on law, environment and the global South Convention in the future’,123 however some more cautionary voices were also heard. The African representative welcomed the decision but noted the limitations of the Ban Amendment and stressed the need to strengthen it. She highlighted that the ‘Ban Amendment cover[s] only wastes in traditional form and not, for example, near-endof-life second-hand goods such as computing equipment, including charitably donated goods, or goods ostensibly being shipped for repair’ and that there is a need to broaden the scope of the ban, given that ‘[s]uch goods rapidly became waste, contributing to a mounting problem for the countries of Africa’ to address this issue, ‘including through take-back schemes for computer equipment and clear definitions pertaining to secondhand goods’.124 In contrast to this call to expand the Ban Amendment and make it more comprehensive, Japan called for the adoption of an alternative approach, focused on the promotion of the environmentally sound management of waste. The Japanese representative argued that ‘circumstances had changed significantly since the adoption of the Amendment in that recycling techniques had improved, wastes were increasingly being seen and used as valuable resources and economic growth in developing countries was increasing the demand for recycled products’.125 There were also explicit calls to rethink how differentiation operated in the regime. In the ‘COP10 Bulletin’ UNEP Executive Director Achim Steiner argued for a more ‘nuanced’ or flexible approach to differentiation. He said: if the Convention is to retain its relevance in the 21st century it is necessary to identify a practical approach that provides protection to countries that need it, while at the same time supporting the realization of economic incentives and benefits of environmentally sound recycling and resource recovery operations in those countries that are in a position to do so (…). Twenty years ago, there was a clear differentiation between North and South in terms of hazardous waste generation and capacity to manage recovery efforts in a sustainable manner. The reality today is different. Technologies are evolving rapidly in terms of products, waste streams, and recovery processes (…). The entry into force of the Ban Amendment will allow Parties to address changes to the existing legal regime to accommodate such new developments and realities126

Countering this view, BAN argued that: If the economic Annex VII distinctions are erased, a Pandora’s Box will be opened, and the demons of waste colonialism the Basel Convention Parties fought so hard to contain will again be unleashed (…). By trying to focus our attention on the capabilities of non-Annex VII importing countries instead of their own, the Ban opponents would like us to believe that the waste crisis is the fault of non-Annex VII countries for their failure to possess ‘end-of-pipe’ treatment and recycling technologies to deal with wastes not of their making.127 123 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 Tenth Meeting (n 120) para 64. 124 ibid para 67. 125 ibid para 68–9. 126 ‘COP10 Bulletin’ cited in Lucier and Gareau (n 59) 504–5. 127 ‘Briefing Paper 3’ (Basel Action Network 2011) cited in Lucier and Gareau (n 59) 505.

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North-South transboundary movement of hazardous wastes 131 At stake in these developments is the nature and rationale for North-South differentiation in the toxic waste regime. As Karin Mickelson has highlighted, the principle of common but differentiated responsibilities, can, ‘depending on the perspective brought to bear on it, (…) reflect totally different ways of thinking about the respective roles of South and North in addressing environmental degradation’.128 It can, she explains: [s]imply reflect a pragmatic acceptance of, and response to, the fact of differing levels of financial and technological resources available to countries in different economic situations. On the other hand, it can be said to reflect an acknowledgement of the historic, moral, and legal responsibility of the North to shoulder the burdens of environmental protection, just as it has enjoyed the benefits of the economic and industrial development largely unconstrained by environmental concerns. Implicit in the latter view is a sense that the North has received a disproportionate share of the benefits of centuries of environmentally unsustainable development, and the underprivileged in the South have borne many of its costs.129

The impetus for the Ban was driven by the latter view and reflected a model of North-South differentiation based on what we have called the ‘justice paradigm’. However, the way the regime has developed to focus on the different capacity of countries to implement ESM of wastes (what we have called the ‘capacity paradigm’) reflects the former view of differentiation. The basis of differentiation matters because it reflects the broader frame in which the problem of the transboundary movement of hazardous waste is understood, which in turn influences the way the causes of the problem are conceptualized and how solutions and responses are imagined. Lucier and Gareau have highlighted some of the broader implications and stakes of this debate about the nature and basis of differentiation in the regime. They highlight that an approach centred on ESM problematically assumes that ‘harm to human health and the environment continues to be caused throughout the world by inadequate waste management procedures’ in contrast to more structural analyses of the problem of transboundary movement of hazardous waste.130 Moreover, they point to some of the representational consequences of this framing, through which ‘populations in poor countries usually portrayed in EJ [environmental justice] discourses as “vulnerable” or “exploited” are being reconceived as incapable of “proper management” of environmental problems’.131 Their analysis also draws attention to how arguments that suggest that ‘externalities’ of globalization fall on the South on account of the purported ‘fact’ that countries of the global South lack the technical capacities of countries in the global North actually operate as a common neoliberal responsibility-shifting tactic. Further, they are extremely critical of how this perspective implies that ‘[t]he problem lies not within the world capitalist economy and the power dynamics of the world system, but in those elements of the South that are unable to adapt to and accommodate the infusions of capital, technology and know-how offered 128 Karin Mickelson, ‘South, North, International Environmental Law, and International Environmental Lawyers’ (2000) 11 Yearbook of International Environmental Law 52, 70. 129 ibid. 130 Lucier and Gareau (n 59) 506 (emphasis in their article). 131 ibid.

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132 Research handbook on law, environment and the global South to them by the West’.132 Additionally, in this frame, the benefits countries of the global North accrue from the cheaper and less domestically contentious transboundary movement of waste to countries of the global South are evaded and invisibilized. This paradigm shift also has associated implications for how ESM is understood, defined and implemented. BAN has pointed out that in this ‘capacity paradigm’ the principle of ESM is narrowed and understood as ‘only a matter of “end-of-pipe,” downstream responsibility for the importing country (…) and not a question of the upstream responsibility of the exporter’.133 They argue for a broader understanding of ESM, stressing that it must include upstream obligations, including reducing waste to a minimum at the source, ensuring the availability of disposal facilities in the exporting state and ensuring that the exporting state reduces transboundary movement of waste to a minimum.134 BAN writes: By trying to focus our attention on the capabilities of non-Annex VII importing countries instead of their own, the Ban opponents would like us to believe that the waste crisis is the fault of non-Annex VII countries for their failure to possess ‘end-of-pipe’ treatment and recycling technologies to deal with wastes not of their making. Rather, we know that the real failure lies with those generating hazardous wastes – a failure to reduce such wastes at source through the use of clean production methods as the Convention envisages rather than by exporting these burdens to others. It is the economically motivated, cost-externalizing trade in hazardous wastes from Annex VII to non-Annex VII countries that works as a disincentive to responsible, preventative waste management among Annex VII countries. Such waste trade itself cannot be considered ‘environmentally sound management’.135

In 2013 at COP11, the Framework for the Environmentally Sound Management (ESM) of Hazardous Wastes and Other Wastes was adopted. It established a common understanding of what ESM encompasses; tools and support to promote its implementation; and strategies for its implantation.136 At COP11 an expert working group was also mandated to undertake activities to support the ESM of wastes, including to collect information of national and other ESM standards and practices; to identify key elements of ESM and develop practical guidance on how to establish ESM; assess materials and trainings on best practice ESM and consider possible incentives for the Michael Goldman, Imperial Nature: The World Bank and Struggles for Social Justice in the Age of Globalization (Yale University Press 2005) 14. 133 BAN, ‘Annex VII Expansion? – Say “No” to Attempts to Undo the Basel Ban’ (Basel Action Network, Briefing Paper 3, 2012) 2, accessed at http://archive.ban.org/wp-content/ uploads/2012/09/BP3_Sep2012Final_A4.pdf. 134 ibid. 135 ibid (emphasis in original). 136 Report of the Conference of the Parties to the Basel Convention on the Control of Transboundary Movement of Hazardous Wastes and their Disposal on the Work of its Eleventh Meeting, Decision XI/1 (Follow-Up to the Indonesia-Swiss Country-Led Initiative to Improve the Effectiveness of the Basel Convention), UN Doc UNEP/CHW.11/24 (2013) para 5; see also Basel Convention, Framework for the Environmentally Sound Management of Wastes and Other Wastes (2011), accessed at www.basel.int/Implementation/CountryLedInitiative/Environmentally SoundManagement/ESMFramework/tabid/3616/Default.aspx. 132

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North-South transboundary movement of hazardous wastes 133 private sector to invest in ESM.137 Building on this, at COP12 steps were taken towards preparing ‘Guidance for prevention and minimization of hazardous and other waste and their disposal’ which by the time of COP13 had been limited to working on ‘good practices’. Additionally, at COP11 a further decision agreed to develop technical guidelines on transboundary movements of electronic and electrical waste and used electrical and electronic equipment, addressing particularly the ‘distinction between waste and non waste under the Basel Convention’.138 In 2015, COP12 coincided with the seventh meeting of the Conference of the Parties to the Rotterdam Convention (RC COP7) and the seventh meeting of the Conference of the Parties to the Stockholm Convention (SC COP7) and included some joint sessions. Particular attention was given to electronic and electrical waste (‘e-waste’), given its status as the ‘fastest growing waste stream on the planet’.139 The most contentious issue was how to draw a distinction between ‘waste’ and ‘non-waste’ electrical and electronic equipment. Some delegates argued that ‘repair, reuse, recycling and refurbishment were to be encouraged in order to extend the useful lives of products and that items destined for those purposes should not be defined as waste’, while others argued that ‘any non-functioning electrical or electronic equipment should be defined as waste, and that failure to do so would make it very difficult for countries to monitor and regulate the movement of such items, leaving the door open to widespread illegal traffic in the guise of trade’.140 The COP adopted non-legally binding, technical guidelines on the transboundary movement of electrical and electronic waste and used electrical and electronic equipment on an interim basis, but acknowledged that further work on this distinction between waste and non-waste was necessary.141 This controversial ‘interim adoption’ of the Draft Technical Guidelines on transboundary movement of electrical 137 ibid para 7; see also Basel Convention, Expert Working Group on ESM, accessed at www.basel.int/Implementation/CountryLedInitiative/EnvironmentallySoundManagement/Expert WorkingGrouponESM/tabid/3617/Default.aspx. At COP12 this working group formulated the aims of its working programme in terms of developing an ‘ESM toolkit’, which included pilot project, guidance on self-assessment of national capacity, an internet portal and the aforementioned guidance on prevention and minimization of the generation of waste. 138 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 Eleventh Meeting, UN Doc UNEP/CHW.11/24 (2013). 139 Report of the Conference of the Parties to the Basel Convention on the Control of Transboundary Movement of Hazardous Wastes and their Disposal on the Work of its Twelfth Meeting, Decision XII/5 (Technical Guidelines on Transboundary Movements of Electronic and Electrical Waste and Used Electrical and Electronic Equipment, in Particular regarding the Distinction between Waste and Non-Waste under the Basel Convention), UN Doc UNEP/ CHW.12/27 (2015) para 6. 140 Report of the Conference of the Parties to the Basel Convention on the Control of Transboundary Movement of Hazardous Wastes and their Disposal on the Work of its Twelfth Meeting, UN Doc UNEP/CHW.12/27 (2015), para 91. 141 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 Thirteenth Meeting, Decision XIII/5 (Technical Guidelines on Transboundary Movements of Electronic and Electrical Waste and Used Electrical and Electronic Equipment, in Particular regarding the Distinction between Waste and Non-Waste under the Basel Convention), UN Doc UNEP/ CHW.13/28 (2017).

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134 Research handbook on law, environment and the global South and electronic waste thereby created a significant loophole with regard to the conditions under which non-functional electronic equipment should be considered as either waste or non-waste.142 In the same way that disagreements over the definition of ‘hazardous’ had been a key fault line in debates whose stakes were the scope of the Ban, decades later, in relation to e-waste, debates over the distinction between ‘waste’ and ‘non-waste’ in the context of electronic and electronic materials carry similar consequences for the nature and scope of the Ban. Most recently, at COP13 (2017) the argument that the ‘Ban Amendment was inconsistent with a circular economy and created barriers to recycling in a time of increasing globalization’ was again deployed in order to try and circumvent a categorical ban.143 At this meeting a set of practical manuals for the promotion of ESM were adopted, as well as fact sheets on specific waste streams that had been prepared by experts.144 The controversial question of the distinction between ‘waste’ and ‘non-waste’ in the context of electronic and electronic materials was not resolved, but an expert group was established and mandated to further development guidelines on this issue.

CONCLUSION This chapter has provided an account of the development of the Basel Convention and the regime governing the transboundary movement of hazardous waste. At a moment when a legally binding Ban Amendment looks within sight, it provided a more sober reflection upon this ‘victory’ and illuminated its potentially ‘pyrrhic’ nature, as this development has been accompanied by the hollowing out of the North-South justice principles that initially underpinned the ban. This chapter has traced a number of debates that have led to broader shifts in the regime over the last two decades: contestations over what materials are categorized as hazardous; the troubling of the strict North-South distinction enshrined in Annex VII of the Convention; questioning whether ‘capacity’ of countries to implement the EMS of waste should be the key basis of differentiation in the regime; and the reconfiguration of ‘wastes’ as ‘resources’. These transformations in the regime have increasingly moved attention away from Technical Guidelines on the Transboundary Movement of Electrical and Electronic Waste and Used Electrical and Electronic Equipment, in Particular regarding the Distinction between Waste and Non-Waste under the Basel Convention: Note by the Secretariat, UN Doc UNEP/ CHW.12/5/Add.1/Rev.1 (2015) para 31(b); see also Report of the Conference of the Parties to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal on the Work of its Thirteenth Meeting, UN Doc UNEP/CHW.13/28 (2017), para 89. 143 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 Thirteenth Meeting, UN Doc UNEP/CHW.13/28 (2017) para 55. 144 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 Eleventh Meeting, Decision XIII/2 (Follow-Up to the Indonesia-Swiss Country-Led Initiative to Improve the Effectiveness of the Basel Convention), UN Doc. UNEP/CHW.13/28 (2017) para 6. 142

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North-South transboundary movement of hazardous wastes 135 broader structural questions about power and inequality and the political economy of the production and transboundary movement of hazardous waste, to technical considerations about building capacity to realize the opportunities that global trade in ‘waste’ – rebranded as ‘resources’ – could present. Alongside the increased focus on the need for countries of the global South to develop technical capacities, there has been a concurrent de-emphasis of questions of responsibility, as well as persistent failures of the international framework to impose liability on waste-exporting countries or to provide compensation for breaches. At COP5 in 1999, after ten years of negotiations, Parties to the Convention adopted the Protocol on Liability and Compensation for damage resulting from transboundary movement of hazardous wastes and their disposal. This Protocol is not yet in force, with only 11 of the required 20 ratifications. It has been denounced by BAN and Greenpeace as redundant, loophole ridden and, in many cases, counterproductive to the aims of the Basel Convention. The Parties also failed to establish a mandatory fund for compensating victims harmed by the transboundary movement of hazardous wastes and their disposal.145 The Protocol fails to make the generator liable, thereby going against the polluter pays principle; it does not extend to damage subsequent to disposal and therefore fails to address long-term damage of leaky landfill or polluting incinerators; it provides for opt-out if parties are part of other bilateral, multilateral or regional agreements that have the same ‘objectives’; it has no mandatory compensation fund; and no adequate minimal financial floor.146 Reflections on the tenth anniversary of the illegal dumping of toxic waste in Abidjan, in August 2006, make clear the stakes of failures to impose liability. A decade later, and despite a confidential UK court settlement, many victims remain without proper remedy nor has there been a proper clean-up of the site as the company still has not disclosed the content of the toxic waste dumped.147 In concluding, we will foreground some of the broader questions of North-South environmental justice that the transformation of the Basel regime and the shift from a responsibility or ‘justice paradigm’ to a ‘capacity paradigm’ raises. The normative basis of North-South differentiation in international environmental regimes matters because it reflects the broader frame in which environmental challenges are understood, how their underlying causes are analysed and how responses are imagined. How North-South environmental issues are framed also has implications for how poverty, global inequality and global justice are understood. In what we have called the ‘capacity paradigm’ poverty is primarily seen as a ‘lack’, which in the case of hazardous wastes manifests as a lack of the technical capacity, technology and expertise to safely manage 145 BAN, ‘BAN Report and Analysis of the Fifth Conference of the Parties to the Basel Convention’ (Basel Action Network 1999), accessed at http://ban.org/COP5/cop5rep.html. 146 ibid. 147 UN Office of the High Commissioner of Human Rights, ‘Ten Years on, the Survivors of Illegal Toxic Waste Dumping in Cote d’Ivoire Remain in the Dark’ (UN Office of the High Commissioner of Human Rights Media Release 19 December 2016), accessed at www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=20384&LangID=E; see also Amnesty International, ‘Côte d’Ivoire: Trafigura Unrepentant 10 Years after Toxic Waste Dump’ (19 August 2016), accessed at www.amnesty.org/en/latest/news/2016/08/trafigura-unrepentant10-years-after-toxic-waste-dump/.

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136 Research handbook on law, environment and the global South such waste in the global South, which needs to be redressed through the transfer of technology and skills from the global North. Increasingly, building such capacity in the global South is presented not just as a means to address the risks arising from the environmentally unsound management of hazardous waste, but also as a way to promote the opportunities arising from new e-waste recycling industries. This understanding of North-South difference and poverty radically departs from how NorthSouth difference and the production of poverty is understood in what we call the ‘justice paradigm’. In contrast to the ‘capacity paradigm’ the ‘justice paradigm’ understands North-South difference as an expression of ‘manifest and seemingly enduring inequalities between states’, that is due ‘at least in part a product of the colonial encounter’ which continues to have ‘a profound impact on the present’.148 Significantly the ‘justice paradigm’ thus provides a relational understanding of NorthSouth difference, while the ‘capacity paradigm’ conceptualizes difference within a non-relational frame.149 Additionally, the current – partly emergent and partly institutionalized – ESM and waste as ‘resources’ paradigm accepts as inevitable the production of a certain baseline of hazardous waste and focuses primarily on the environmental regulation of this waste and its movement. While the need to think about prevention, minimization and recovery of hazardous waste is consistently flagged, the key focus in this paradigm is not on transforming the political economy underlying the production and transboundary movement of waste but on building capacity of countries of the global South to manage such waste in an ‘environmentally sound’ manner, as part of their ‘ecological modernization’.150 This is the ‘practical’ compromise proffered by liberal environmentalism and, to adapt a phrase from Upendra Baxi, its ‘trade friendly environmental regulation’.151 Within this paradigm, the responsibility for any eventual environmental harm is displaced upon developing countries and their inability to adequately comply with the standards for ESM, while the majority of the benefits, from what continues to be a fundamentally ‘unequal ecological exchange’,152 continue to accrue to the global North. Additionally, the focus on how waste – reconfigured as ‘resources’ – can provide economic opportunities to countries of the global South, operates to obscure how the transboundary moment of hazardous waste continues to be economically and politically advantageous for the exporting states. The environmental justice framework that underpinned the push for the Ban Amendment was based on a critique of global relation of ‘unequal ecological exchange’ and ‘the ways in which economic prosperity and environmental quality in wealthy, core countries is predicated upon the “undervaluing” of natural resources in the peripheral, poorer countries’.153 In this scholarship poverty is understood as a Lavanya Rajamani, Differential Treatment in International Environmental Law (OUP

148

2006). Salomon (n 3). Pellow (n 44) 18–20. 151 On liberal environmentalism, see Steven Bernstein, The Compromise of Liberal Environmentalism (Columbia University Press 2001), see also Upendra Baxi, The Future of Human Rights (2nd edn, OUP 2002) 234. 152 Lucier and Gareau (n 68) 498. 153 ibid. 149 150

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North-South transboundary movement of hazardous wastes 137 relative phenomenon, and must be understood as linked to – or indeed might be considered to be caused by – extreme wealth elsewhere.154 Within this framework the dumping of hazardous wastes from the global North in the global South can therefore be seen as both reflective of and enabled by global inequalities, but also productive of them, given the serious consequences and effects of dumping hazardous waste, especially on human and environmental health. While a more nuanced approach to differentiation in the regime might be merited to respond to the changing configurations of global production, this chapter has illuminated numerous serious problems with the broader paradigm shifts in the Basel regime. In particular, it has highlighted how transformations of the Basel regime since the Ban Amendment was passed have operated to obscure critical questions of structural responsibility for causing environmental harms as well as to make invisible who benefits from persistent environmental injustices.

Marks (n 5).

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7. The Bhopal case: retrospect and prospect Usha Ramanathan

ACKNOWLEDGING RISK The Bhopal Gas Disaster was not just another ‘industrial accident’.1 It was a catastrophe which produced a whole language of toxicity, hazard and risk.2 Every so often, you will find the Supreme Court of India returning to the images that the disaster evokes, and struggling with what they should be doing to reduce risk. In February 1985, taking an opportunity that another gas leak threw up – this was the Oleum gas leak from the Shriram Foods plant in Delhi – the court invoked the Bhopal Gas Disaster and set to thinking about how such disasters could be prevented, the damages be minimized, and what they referred to as ‘economic centres of power’ be deterred from callous or criminal conduct that could be dangerous.3 Between February and December 1986 the court deliberated on relocation of industries which carry enhanced risk. The judges experimented with recognizing responsibility in workers and managers proximate to potential safety lapses. When the company was asked to reopen the plant saying it had been restored to safety, judges demanded an undertaking from the Chairman and the Managing Director of the company that they would be ‘personally responsible’ in case there was any further leak of gas and death or injury were to result. If the Chairman was hesitant to extend an 1 For materials and documents on the Bhopal disaster, see the website of the International Campaign for Justice in Bhopal, accessed at www.bhopal.net; for a series of articles 20 years after the Bhopal disaster, see Issue 544 of Seminar titled ‘Elusive Justice: A Symposium on the Bhopal Gas Disaster after Twenty Years’, accessed at www.india-seminar.com/2004/544.htm; for a series of articles 30 years after the Bhopal disaster curated by Usha Ramanathan and published in The Statesman in December 2014, accessed at http://www.ielrc.org/content/n1403.pdf; for books focusing on the disaster, see Upendra Baxi and Thomas Paul, Mass Disasters and Multinational Liability: The Bhopal Case (NM Tripathi 1986); Upendra Baxi, Inconvenient Forum and Convenient Catastrophe: The Bhopal Case (NM Tripathi 1986); Upendra Baxi and Amita Dhanda, Valiant Victims and Lethal Litigation (NM Tripathi 1990). 2 Usha Ramanathan, ‘Communities at Risk: Industrial Risk in Indian Law’ (2004) 39/41 Economic and Political Weekly 4521. 3 MC Mehta v Union of India (1986) 2 SCC 176, 178 [Oleum Gas Leak Case] stated: ‘[F]ollowing upon the leakage of MIC gas from the Union Carbide Plant in Bhopal, lawyers, judges and jurists are considerably exercised as to what controls, whether by way of relocation or by way of installation of adequate safety devices, need to be imposed on Corporations employing hazardous technology and producing toxic or dangerous substances and if any liquid or gas escapes which is injurious to the workmen and the people living in the surrounding areas, on account of negligence or otherwise, what is the extent of liability of such Corporations and what remedies can be devised for enforcing such liability with a view to securing payment of damages to the persons affected by such leakage of liquid or gas’.

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The Bhopal case: retrospect and prospect 139 assurance that no further leaks would occur, the court reasoned that it could not put people around the plant at risk.4 In little over a decade later, this judicial imagination had waned. The Oleum Gas Leak Case had metamorphized into the Industries Relocation Case.5 The orders from the 1986 Oleum Gas Leak Case focused on containing and diminishing risk and hazard. By 1996, that had become about relocating hazardous industries out of Delhi. The unsureness about how toxicity, hazard and risk was to be handled was written into another 1996 judgment.6 This was about chemical and pharmaceutical companies in Thane, a suburb of Mumbai. The contest before the court was the need for housing for the growing population of Thane, and the potential risk and hazard that prompted a rule that there should be no construction activity within a radius of one kilometre from factories that deal with hazardous substances. The judgment starts with saying: ‘Industrial growth, yes; but by exposing a large segment of society to the risk of losing lives, no. This apprehension is not imaginary. Bhopal disaster brought to the knowledge of all what a tragedy can be caused by chemical industries’.7 Even as relocation of industries was being ordered in Delhi, the Bayer court was listening to arguments from industries that relocation entailed huge costs that they could not bear. The court decided to step back, because ‘we have neither the expertise nor are we in possession of various information, which shall be required to decide one way or the other so far as the question of relocation is concerned’.8 The court acknowledged that it was confronted with a problem which has more serious consequences and which touches the core of Article 21 [right to life] of the Constitution inasmuch as the very lives of the inhabitants living around the factories in question are in great jeopardy so much so that any probable accident in the factories may see annihilation of large number of inhabitants.9

The task of coming to a decision at whether or not construction should be permitted proximate to toxicity was left to an ‘Authority’ constituted under the Environment (Protection) Act, 1986. MC Mehta (II) v Union of India (1986) 2 SCC 325. The court’s thinking on managing risk was then introduced into legislation by amending the Factories Act, 1948 in 1987. 5 MC Mehta v Union of India (1996) 4 SCC 750. In an order dated 10 July 1996, the Supreme Court of India directed that 168 industries it identified in the order ‘cannot be permitted to operate and function in Delhi’. It directed that the said industries ‘shall stop functioning and operating in the city of Delhi with effect from November 30, 1996’. The closure order was made unconditional and ‘even if the relocation is not complete’ by then. 6 FB Taraporawala v Bayer India Ltd (1996) 6 SCC 58. 7 ibid 59. The Court added (ibid): ‘In the wake of what happened there more than a decade ago, industrialists engaged in production of chemicals started thinking of taking precautionary and protective measures to see that if worst were to befall, how could their financial liability be taken care of’. 8 ibid 60–61. 9 ibid 61. The Court added (ibid): ‘Maybe the accident does not take place, as has been submitted by Shri Jaitley appearing for the respondents. There is, however, no ruling out of the same altogether as Bhopal has shown. No risk can, therefore, be taken. But then relocation does need a deeper probe because of the various factors which would be required to be gone into’. 4

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140 Research handbook on law, environment and the global South Yet, as Bhopal becomes memory, and the viability of industry becomes tied up with the idea of development, and economic growth as belonging to a globalized economy, legal imagination has dried up, the anxiety remains and the urgency has evaporated.

A. UNANTICIPATED QUESTIONS AND CONSEQUENCES There was much about the Bhopal Gas Disaster which had not been anticipated. First, there were the large numbers of victims. The count of those who died within 24 hours of the gas leak is somewhere between 2,800, which number has been officially acknowledged, and the estimated 8,000. Over the years, more than 20,000 people have succumbed to the damage wrought by the gas. Second, the law relating to factories rested on an understanding that what happened in a factory, including injury and death, would occur on the premises. The Bhopal Gas Disaster took industrial hazard well beyond the perimeter of factories into the ‘vicinity’.10 Hazardous substances are not contained by boundaries and there is no saying how far into the community they can reach. Third, the importance of local agencies, such as hospitals, the police and the fire services, to be informed of potential harm and injury emanating from a factory had not been thought of, and they were unprepared with a response. Fourth, toxicity is complex. Methyl isocyanate (MIC) escaped into the air when water entered the tank holding this hazardous substance, and four levels of safety mechanisms failed. What happened when MIC met the water? And the air? What did it become? How was anyone to know how to prevent, mitigate or treat the harm that toxins of unknown combinations and quality could do to people and to other living beings and systems? Fifth, industries have been privileged in keeping their trade secrets away even from regulators and inspectors. How are these to be extracted when an emergency demands that it be known so that the harm can be prevented, reduced or treated? Sixth, who is the offender when an industrial disaster wreaks death and destruction? Who is to be investigated? What is to be investigated? The way the criminal cases meandered through the decades speaks to a reluctance to see corporations as having the potential to be offenders in the law, whose activity may result in punishable death and grievous injury.11

In 1989, the enormity of the disaster moved Justice S. Ranganathan of the Supreme Court in Charan Lal Sahu v Union of India (1990) 1 SCC 613, 714 to exclaim that ‘5 years ago this country was shaken to its core by a national catastrophe, second in magnitude and disastrous effects only to the havoc wrought by the atomic explosions in Hiroshima and Nagasaki. Multitudes of illiterate and poverty-stricken people in and around Bhopal suffered damage to life and limb due to the escape of poisonous Methyl Isocyanate (MIC) gas from one of the storage tanks at the factory of the Union Carbide (India) Limited (UCIL) in Bhopal’. 11 Usha Ramanathan, ‘Business and Human Rights: The India Paper’ (2001), accessed at www.ielrc.org/content/w0102.pdf. 10

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The Bhopal case: retrospect and prospect 141

B. AN UNJUST ‘SETTLEMENT’ Between December 1984, when the disaster occurred, and February 1989, when the settlement order was passed, nothing happened in the area of criminal law and investigation. The 1989 settlement order which directed an amount of US $470 million in settlement also directed that ‘all criminal proceedings related to and arising out of the disaster shall stand quashed wherever these may be pending’.12 The compensation amount, the process for arriving at the settlement which ignored entirely the victims and survivors, and the quashing of all criminal cases raised controversy, and the court had to agree to review it. The judgment of the court in 1991 by a bench of five judges did not dislodge the settlement order in any, except one, measure.13 The court revived the criminal case against the offending accused which included, among others, Keshub Mahindra, who was the chairman of the Union Carbide India Limited (UCIL), Warren Anderson, who was the chairman of the Union Carbide Corporation (UCC), and the two companies, namely UCIL and UCC. Where did the court say it found the power to quash criminal proceedings? Enacted law did not provide for such a power; so the court explained that it was the Constitution, in Article 142, which vested this extraordinary power with the court to do what it considered ‘necessary for doing complete justice’.14 No statute constrains this power that the court held. This, it may be said, was among the earliest cases in which the court recognized in itself this expansive power in Article 142. Yet, the court decided to review the quashing of the prosecution, not because it did not have the power so to do, but because of the shifting stand of the Union of India. In a position of extreme awkwardness for the court, when the matter was being agitated in court, the government disclaimed any role or interest in bringing the criminal cases to a close as part of the settlement. It was argued that the government had nothing to do with that part of the 1989 settlement order which quashed the criminal proceedings; that the government was representing the victims only in regard to the civil liability of the corporation; and that the court has used its ‘plenary power’ in Article 142 to bring to an end the criminal proceedings, and the government had nothing to do with it! The court set aside that part of the settlement order. Why do we call it the settlement order and not just a settlement? If it were a settlement, then the excision of one clause in the settlement would make the whole settlement fall. The court explained it away by making a distinction between ‘consideration’ for the settlement, and ‘motive’. This was not, according to the court, ‘stifling persecution’ because that would involve a private person taking the administration of law into their hands. Here, it was the government that had invited the court to use its plenary power and which consented to the quashing of proceedings. In saying this, the court entered the array of entities who were in the negotiation for settling the case, and which it then presented as an order which it could then revoke on review. 12 13 14

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Union Carbide Corporation v Union of India (1989) 1 SCALE 380. Union Carbide Corporation v Union of India (1991) 4 SCC 584. Constitution of India, art 142.

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142 Research handbook on law, environment and the global South

C. THE MIRAGE OF CRIMINAL JUSTICE The upshot was that criminal cases were registered and prosecution launched against the ten accused.15 The accused were charged with the offence of culpable homicide not amounting to murder, punishable with imprisonment up to 10 years ‘if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death’.16 The Indian accused went to court to have these charges quashed. There was no question of their having done anything with the knowledge that it would kill or cause injury, they said. There was, they contended, ‘no proximate act of negligence’ either, which could have been a lesser offence, with which they may have been charged if culpable homicide was taken off the table. If anything, it was ‘an unfortunate accident’ which had ‘taken heavy toll of human lives and cattle wealth’, but none of them could be held criminally liable for that accident.17 The prosecution had set out a string of reasons to explain how decisions made, and actions taken, resulted in the disaster, and death and injuries. The court, however, held that the charges did nothing to connect the accused with any act done with the knowledge that ‘by that act itself’ deaths of human beings would be caused.18 They had not ‘voluntarily caused grievous hurt’ either. What they may be charged with, and tried for, could only be ‘causing death by negligence’ in section 304-A of the Indian Penal Code, and punishable with a maximum sentence of 2 years, and fine.19 This interpretation of ‘knowledge’ of what toxic chemicals can do, after it had been demonstrated that thousands would die, possibly caused by known design defects, lowered maintenance standards, and enhanced hazard by storing more than safe quantities of hazardous chemicals, presumed an innocence which recognized reduced responsibility of industry and those in charge. The trial wended its way in the trial court in Bhopal. On 10 June 2010, the Indian accused – UCC and Warren Anderson were ‘proclaimed absconders’ – were convicted and sentenced to 2 years’ imprisonment, the maximum provided by law.20 There was an outpouring of a sense of injustice when this judgment was pronounced. The government was impelled to react, and, at the insistence of survivors and activists, a ‘curative petition’ was filed in the Supreme Court, asking that the dilution of charges against the Indian accused be reopened, and the charge of culpable homicide be reinstated. Curative petitions are a species of engagement with the Supreme Court which the court moulded in acknowledgement that, as the saying goes, ‘the Supreme Court is not final because it is infallible; it is infallible because it is final’, and that that finality S. Muralidhar, ‘Unsettling Truths, Untold Tales: The Bhopal Gas Disaster Victims “Twenty Years” of Courtroom Struggles for Justice’, accessed at www.indiaenvironment portal.org.in/files/w0405.pdf. 16 Indian Penal Code, 1860, s 304 (part 2). 17 Keshub Mahindra v State of Madhya Pradesh (1996) 6 SCC 129, 140. 18 ibid 158. 19 Indian Penal Code, 1860, s 304A – Causing death by negligence. 20 State of Madhya Pradesh v Warren Anderson and Others, Case No. 8460/1996, Chief Judicial Magistrate Bhopal, 7 June 2010. 15

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The Bhopal case: retrospect and prospect 143 could result in injustice. ‘Curative’ was a way that the court created to be able to undo its own erroneous judgment. In this case the court was reluctant to revise its judgment after the lapse of over a decade and half.21 Yet, closing all avenues to victims and survivors who carried the weight of having been wronged was not a real option, either. A third way suggested itself to the court: if it was being contended that the 1996 judgment of the Supreme Court could not have constrained the court that had to frame the charge because fresh facts had emerged from the time of the 1996 judgment, that had already been raised in appeal proceedings connected with the 2010 conviction; that ‘legal position (was) correctly stated’, but it should be decided in the appeal court and not in a curative petition. That is where it presently rests.

D. WANING TRUST IN THE STATE There has been a lack of trust in the state; that it has acted unfairly and failed to secure justice for the Bhopal victims. This was not only in the context of the quantum of compensation or the unexplained stopping of medical research by the Indian Council of Medical Research and the silence about what the research had thus far found. Or about the exclusion of victims and survivors from decisions made about the settlement. What happened about Warren Anderson is part of that decline of trust. Soon after the disaster in 1984, Warren Anderson turned up in Bhopal in what was understood to be a public relations exercise to stem the damage to the reputation of the UCC. He was mobbed and black-flagged and was held under ‘house arrest’ to save him from the protestors. The Chief Minister of the state of Madhya Pradesh had him flown out of the city to safety. He returned to the US never to return to the city of Bhopal, or the country. The 1996 judgment by which the charges against the Indian accused were lessened did not apply to Warren Anderson – he had no part in the proceedings. So, till his death in 2014, and the consequent abatement of proceedings, he remained an absconder, a fugitive from justice. There is no polite way of saying this. There was no extradition request for Warren Anderson, despite the severity of the disaster and the charge of culpable homicide. The disinclination to ask for his extradition stood revealed in an opinion of the attorney general to the government of the day. Dated 6 August 2001, Soli Sorabji, the then Attorney General, advised against making an extradition request. He based his entire opinion on what he thought the US State Department would think and say. They will cite ‘humanitarian concerns’, he said, such as Warren Anderson was said to be 81 years old, and of poor health, and the length of time that had lapsed since the disaster. The State Department would ask for ‘missing evidentiary links’, he conjectured, such as (1) The actual cause of the gas leak, (2) Mr Anderson’s knowledge of the gas leak prior to its occurrence, (3) The extent to 21

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CBI v Keshub Mahindra (2011) 6 SCC 216.

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144 Research handbook on law, environment and the global South which Mr Anderson had decision making control over UCIL’s safety and design issues, and (4) Whether Mr Anderson refused to correct the hazard.22 ‘Although it is not impossible to furnish the “missing evidentiary links”’, he wrote, ‘I am not sanguine that at the end of the day the requisite evidentiary materials will be forthcoming’. His advice was that ‘all things considered, in my opinion, proceedings in the USA for extradition for Mr Warren Anderson are not likely to success [sic] and, therefore, the same may not be pursued’.23 There was nothing in the opinion telling the government what the investigation had revealed so far, what would further it and what action may be necessary to gather evidence. Nothing.

E. THE LAW AS IT WAXES, AND QUESTIONS AS THEY RE-EMERGE In March 1985, the government decided to take over the litigation and conduct it till judgment, or settlement. The Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 was enacted to give legal standing to the government to take over the civil case against the corporation. The parens patriae doctrine was invoked, and the disability induced by poverty was conjured up to explain this takeover. This was the governmental perspective about the state of the affected people. But victims and survivors challenged this perspective, and the 1985 Act, protesting the further inability to pursue justice that the law imposed on them. This challenge was not decided till after the government had used the authority given by the 1985 Act to settle claims with UCC and UCIL, and the Supreme Court had endorsed it, in February 1989. How could the court recognize the authority of the government to negotiate and make decisions on behalf of the victims when the constitutionality of the law which gave that authority to the government was pending in court? the victims and those representing their interests asked. Feeling constrained by the fait accompli presented by the settlement, the court forgave the government, and itself, for the lapse: ‘“To do a great right” after all, it is permissible sometimes “to do a little wrong”’, the judgment read.24 Years later, in 2010, the validity of the settlement amount was brought back into question – again, in a curative petition that the court agreed it had to hear. In this, the government is being heard to contend that the 1989 settlement grossly underestimated the death, injury and loss that the Bhopal Gas Disaster had caused, and that it did not account, at all, for the environmental degradation which resulted from the disaster. The 1989 settlement had assumed a death count of 3,000 and 70,000 injured. The curative petition now places the figure at 5,295 deaths and 527,894 injured/affected – far fewer deaths than the count on the ground, but yet speaking to the perils of underestimation in a mass disaster.25 Document on file with the author. ibid. 24 Charan Lal Sahu v Union of India 1990 SCC (1) 613, 705. 25 Anonymous, ‘SC to Hear Plea on Bhopal Gas Victims in April’ Hindustan Times (28 January 2019), accessed at www.hindustantimes.com/india-news/sc-to-hear-plea-on-bhopal-gasvictims-in-april/story-lYsEBUfEKBfUokp6uTTkFL.html. 22 23

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The Bhopal case: retrospect and prospect 145 This is now a reopened question. What happens to victims of an industrial disaster in its aftermath? The 1989 settlement order was endorsed by the Supreme Court in a case that had travelled up from the District Court through the Madhya Pradesh High Court to the Supreme Court. The UCC had fought its way through the courts resisting the order to pay interim compensation. This was to be used to give immediate relief to the victims but began to be paid only after the judgment in the case challenging the settlement. That was in 1991. The victims had initiated and propelled the case for interim compensation – as can truly be said about all challenges to toxicity and industrial disaster over the decades. This drove the government, in particular the Environment Ministry, to draft the Public Liability (Insurance) Act (PLIA) which was enacted in 1991. This law introduced the concept of strict liability in industrial hazards for payment of immediate, interim, compensation drawn from insurance they were legally obliged to take out. This law had to be amended in 1992, as insurance companies resisted entering this arena without a ceiling on how much they may be called upon to pay when disaster strikes. Another mass industrial disaster, and they would be wiped out, and this was a possibility they were unable to rule out. The PLIA has since become moribund but how that happened has to have its own telling. The weight of the problem of delay in deciding, and in compensating the affected, was not confined to the ‘interim’, but extended to the making of the final decision of the court. So, in 1995, the National Environment Tribunal Act (NETA) was enacted to enable the setting up of a tribunal that could adjudicate claims for compensation with expedition. Except, the Act was not notified, and never came into effect. In 1997, the National Environment Appellate Authority Act (NEAAA) established tribunals which would deal with challenges to projects on environmental grounds. The talk then began to veer around to merging the NETA with the NEAAA. These two laws got reinvented as the National Green Tribunal Act (NGT Act) in 2010. The NETA disappeared into the folds of the NGT Act, unsung, virtually unnoticed. The jurisprudence developing in the National Green Tribunal reflects little to nothing about toxicity or industrial disaster. And, as the law entered the field of industrial disasters, from PLIA to NETA to the NGT Act, the language of the law has moved away from the acknowledgement of disaster and repositioned it as ‘accident’. Accident, these laws say by way of definition, ‘means an accident involving a fortuitous, sudden or unintentional occurrence while handling any hazardous substance resulting in continuous, intermittent or repeated exposure to death of, or injury to, any person or damage to any property’.26 And there that rests.

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8. Land rights, poverty, and livelihoods: the case of Ethiopia Brightman Gebremichael

INTRODUCTION In developing and least developed countries wherein a majority of the population depend on land and natural resources for their means of livelihood, the intersection between land rights, livelihoods, and poverty requires in-depth critical analysis.1 This is because of the fact that they might reinforce each other. Theoretically, when the various economic sectors are not well-advanced, and people lack necessary capital and requisite skills to make a living from other sources, the securing and protecting of livelihoods and the eradication of poverty depends on access to and security of the land tenure of the society.2 Otherwise, denial of access to land could amount to deprivation of the means of living and exposes them to severe poverty. Above all, it is also believed that secured tenure is a motivating factor to invest in land and to increase productivity, which in turn, improves livelihoods and reduces poverty.3 On the other side, a turn-around relation can be established between land rights, livelihoods, and poverty. Typically, poverty has consequences on the security of land rights. That is, when poverty is prevalent, the society may lack the capability to enforce the land rights in an independent organ in the case of arbitrary interference with the land rights.4 Therefore, the interwoven relationship between land rights, livelihoods, and poverty, demands the legal protection of land rights and shaping of the behaviour of the state and society. Because of the role land rights play in the eradication of poverty and as a fundamental tool of livelihood – the capabilities, assets, and activities 1 For instance, in the case of Ethiopia, recent study shows that 83 per cent of the total population of the country is still one way or another dependent on rural land rights for their livelihood. See World Bank, Federal Democratic Republic of Ethiopia: Options for Strengthening Land Administration (World Bank, Report No 61631-ET 2012) 17; Population Census Commission of Ethiopia, Report of Ethiopia’s 2007 Population and Housing Censes (Population Census Commission of Ethiopia 2008) 7. 2 Ruth Meinzen-Dick, ‘Property Rights for Poverty Reduction?’ (DESA Working Paper No 91, Doc ST/ESA/2009/DWP/91, 2009); Karol Boudreaux, ‘The Role of Property Rights as an Institution: Implications for Development Policy’ (Mercatus Policy Series Policy Primer No 2, May 2005) 14. 3 Klaus Deininger, Land Policies for Growth and Poverty Reduction: A World Bank Policy Research Report (World Bank 2003) xix. 4 Frank Place and others, ‘Land Tenure Security and Agricultural Performance in Africa: Overview of Research Methodology’ in John W Bruce and Shem E Migot-Adholla (eds), Searching for Land Tenure Security in Africa (World Bank 1994) 15, 19; Deininger (n 3) 36.

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148 Research handbook on law, environment and the global South needed for a means of living5 presuppose the presence of adequate legal protection for access to and security of land tenure, among others. The fact that land resources are limited means that the foundation to define ways of physical access to and acquiring of land for the ever-increasing demand creates a puzzle. Predominately, two lines of foundations are propounded to define access to land for the people. The economic efficiency and marketization approach stipulates the determination of access to land to effective and efficient utilization which is determined by the market force.6 In contrast, the social security and equity paradigm look to define access to land based on the level of dependency.7 The puzzle here is the public policy choice made between the two options and what should guide the selection. On security of land rights, the existing literature provides a general conceptual framework in a piecemeal way. It is required that the land tenure system must provide the landholder with adequate breadth and quality, longer duration, protection against arbitrary eviction, and enforceability of land rights.8 However, regarding the purpose for which the land rights are acquired and the extent of dependency on it has not been given adequate attention in defining and affording protection to secure the land rights. Often a better and increased protection is afforded for those who acquired the land rights for investment and profit than for those who acquired it for livelihood.9 Such contradictory variation is due to failure to give regard for the purpose the land rights are acquired and the extent of dependency thereof in providing legal protection to secure the land rights. The source of the aforementioned problems related to access to and security of land rights might be attributed to the legislative failure of not taking the functions of a constitutional property clause seriously. In most written constitutions of nations, the insertion of a property clause in general, and land rights in particular, has some Robert Chambers and Gordon Conway, ‘Sustainable Rural Livelihoods: Practical Concepts for the 21st Century’ (Institute of Development Studies Discussion Paper 296, 1992) 7. 6 Wibke Crewett and Bendikt Korf, ‘Ethiopia: Reforming Land Tenure’ (2008) 35(116) Review of African Political Economy 203, 204–5. 7 ibid 206. 8 UN-HABITAT, Secure Land Rights for All (UN-HABITAT 2008) 7; Deininger (n 3) 36; Place and others (n 4) 20. 9 In Ethiopia, a better protection for investment land rights is given than for livelihood land rights. Especially, in terms of quality and quantity of property rights in land, the country’s legislation gives a better bundle of land rights for investment land rights. For instance, with the exception of Amhara state law, while investors are entitled to use their land rights as collateral to access credit, those who use their land rights for living are not entitled to do so. In relation to protection against deprivation of land rights too, the investors are better protected. The only ground they can be deprived of their land rights is for the development programmes that are carried out by the government organ upon payment of compensation. While, in case of land rights for livelihood, the ground for deprivation is not only limited to expropriation. Other grounds for deprivation like failure to conserve land, failure to use land for a certain period, engagement in off-farming activities, and leaving the locality for a certain period also results in uncompensated deprivation of land rights. Plus, in the case of expropriation the societal interest to deprive of land rights is defined broadly and not limited to government programmes unlike investors land rights, except for Oromia state law. Moreover, the extent of compensation awarded is also much less. 5

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Land rights, poverty, and livelihoods: the case of Ethiopia 149 implication in guiding how access to and security of land can be regulated in the subordinate legislation. Otherwise, its absence may pave ways for legislative encroachment on the tenure security and denial of access to land, which in turn affects the livelihood of the society and eradication of poverty.10 Moreover, denial of access to land and tenure insecurity of those who use land as a livelihood forces them to live in poverty. Against these backdrops, this chapter attempts to show how the land rights should be accessed and secured to protect the livelihoods of land rights dependent society and eradicate poverty thereof by taking Ethiopia as a case study. It begins with first establishing the interplay between the three notions – land rights, livelihoods, and poverty. It is followed by a section that shows the public policy choice debates which guide how access to land is defined. A section that deals with how land rights can be secured to ensure livelihood and eradicate poverty follows. The roles and functions the constitutional property clause play in defining and guiding access to and securing of the land rights is discussed Finally, the chapter ends with concluding remarks.

A. THE INTERLINK BETWEEN LAND RIGHTS, POVERTY, AND LIVELIHOODS In the developing and least developed world, where poverty, hunger, and famine are prevalent, the societal dependency on natural resources (typically land) for livelihood is tremendous.11 This is because other economic sectors, services and manufacturing, which require literate or vocationally trained labourers, are not sufficiently developed to accommodate the influx of labour.12 This is even without mentioning the underdeveloped and limited nature of the educational and vocational sector to train and educate the society. It in effect led most of the population to depend on land and other natural resources for their livelihoods. However, the sustainability of the land rights as a means of livelihood and improvement of the quality of life of the people who depend on land rights in turn relies on the legal protection afforded to their access and security to land rights. That is, when their access to land is defined in terms of their capability as seen in section A.1 and their land right is secured; guaranteeing them with legal protection in terms of the objective elements of land tenure security is discussed in section A.2 below. Ethiopia, being a developing country, is an excellent example for discussing the issue of land rights, livelihoods, and poverty. Similar to most least developed and developing countries, the livelihood of approximately 83 per cent of the population is dependent on 10 Edwin Baker, ‘Property and its Relation to Constitutionally Protected Liberty’ (1986) 134(4) Pal L Rev 741. 11 Department for International Development (DFID), ‘Better Livelihoods for Poor People: The Role of Land Policy’ (DFID, Consultation Document, November 2002). 12 This was mentioned in the constitutional deliberations for the 1995 Constitution of Ethiopia. See Belachew Mekuria Fikre, ‘Human Rights Approach to Land Rights in Ethiopia’ (2009) 3 Ethiopian Business Law Series 45, 58–60.

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150 Research handbook on law, environment and the global South land.13 Notwithstanding the current efforts of development, this is attributed to the underdeveloped nature of other economic sectors to accommodate the influx of labour to reduce the dependency of the majority of the population on land. In addition, the country is infamous for chronic poverty, recurrent famine, and drought, mainly affecting the part of society that depends on land for a living. Also, in the political history of the country, the combined effect of the issue of land rights, livelihoods, and poverty has played a central role. The quest for land rights as a livelihood and for eradication of poverty had served as one of the main causes to overthrow the past two political regimes of the country.14 These facts, among others, led to a strong and hot deliberation and debate in the formulation of the prevailing land policy.15 Land rights as fundamental to livelihood are expected to assure ‘[p]eople’s capacity to generate and maintain their means of living [– land rights], enhance their well-being and that of [their] future generations without degrading the land’.16 These capacities are contingent upon the availability and accessibility of land, and are predicated on equity, security of land tenure, and participatory decision-making.17 Inter alia, these capabilities can be realized when the legal frameworks have paved the way to access land rights and have guaranteed security thereof. On the other side, the secured access to and protection of the land rights enables the landholders to invest in the land in an environmentally friendly manner to improve its productivity, enhance their living standards, and accumulate wealth for the future generations. Because it is conceptually and empirically established that security of land tenure has the tendency to enhance poverty eradication and incentivize based environmental protection (IEP).18 World Bank (n 1) 17. Gebru Tareke, Ethiopia: Power and Protest – Peasant Revolts in the Twentieth Century (Cambridge University Press 1991); Dessalegn Rahmato, ‘Agrarian Change and Agrarian Crisis: State and Peasantry in Post-Revolution Ethiopia’ (1993) 63 Journal of the International African Institute 36. 15 Ethiopian Constitutional Assembly, Constitutional Minutes Vol. 4 (Addis Ababa Nov. 14-20/1994); Stephen Devereux and others, ‘Too Much Inequality or Too Little? Inequality and Stagnation in Ethiopian’ (2005) 36(2) IDS Bulletin 122; Crewett and Korf (n 6) 206–7. 16 Vangile Titi and Naresh Singh, ‘Adaptive Strategies of the Poor in Arid and Semi-Arid Lands: In Search of Sustainable Livelihoods’ (Working Paper, International Institute for Sustainable Development 1994). 17 ibid. 18 See Timothy Besley, ‘Property Rights and Investment Incentives: Theory and Evidence from Ghana’ (1995) 103 (5) Journal of Political Economy 903; Stein Holden and Hailu Yohannes, ‘Land Redistribution, Tenure Insecurity, and Intensity of Production: A Study of Farm Households in Southern Ethiopia’ (2002) 78(4) Land Economics 573; Daniel Ayalew and others, ‘Property Rights in a Very Poor Country: Tenure Insecurity and Investment in Ethiopia’ (Global Poverty Research Group, GPRG-WPS-021 2005); Daniel Kwabena Twerefou and others, ‘Land Tenure Security, Investments and the Environment in Ghana’ (2011) 3(6) Journal of Development and Agricultural Economics 261. The idea of incentivized environmental protection here refers to, in contrast to the command-and-control approach, an approach that reinforces individuals’ or communities’ commitment to environmental protection by benefiting them. For instance, in the case of land utilization, rather than imposing environmental standards and the violation of which results in liability, it is possible to let the landholders conserve their land rights by awarding protection and security to their land rights. 13 14

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Land rights, poverty, and livelihoods: the case of Ethiopia 151 However, the prevalence of poverty, on the other hand, has the tendency to impair the security of the land tenure and the improvement of the livelihood. Poverty plays an important role in deterring the landholders from realising their land rights. One needs to have the legal knowledge and the financial capability to enforce land rights in an independent tribunal at the time of arbitrary encroachment. As it will be seen in a subsequent section one of the objective elements of the security of land tenure is the affordability of the cost of enforcement.19 Alternatively, it requires the government to adopt free access to justice for the masses, or it should create an enabling environment for civil society organizations engaged in legal empowerment and advocacy programmes. Moreover, the improvement of the livelihoods of the landholders also needs the financial ability to access the necessary inputs and labour. For the poor dependent on land, necessary finance can be obtained when they are authorized to use their land rights as collateral to access credit and/or are entitled to use their land rights as a contribution for joint investment with an investor. Addressing the problems in these three intertwined concepts predominately depends on the issue of the security of and access to land rights. The way access to land and objective elements of land tenure security are regulated (to be discussed in subsequent section) has the capability to address some of the problems associated with poverty and improving livelihood. As a result, poverty eradication, and improvement and protection of livelihoods of the masses can be directly associated with land rights and land tenure systems as defined customarily or statutorily to incorporate and afford landholders with the rights and protection as dealt out in the subsequent two sections.

B. ACCESS TO LAND FOR LIVELIHOOD In an agrarian society, secured access to land rights is basic to providing communities with means of living and is a way of eradicating poverty. It has far-reaching implications on their economic, social, cultural, and political well-being and life. It secures their means of livelihood and enables them to be uplifted out of poverty.20 Moreover, secure access to land is a means to define the social status of a person in society. The historical experience of Ethiopia shows that it is a source of pride and self-esteem and social acceptance.21 Furthermore, it enables rural communities to manifest and express their cultural values as it defines their way of life.22 Above all, by ensuring their economic freedom it tends to capacitate them to make a meaningful political participation and their voice to be heard loudly in the local decision-making process.23 Place and others (n 4) 21; Deininger (n 3) xix. Deininger (n 3) xx; Lorenzo Cotula and others, Better Land Access for the Rural Poor, Lessons from Experience and Challenges Ahead (FAO and IIED 2006). 21 Hussien Jemma, ‘The Politics of Land Tenure in Ethiopian History’ (XI World Congress on Rural Sociology Trondheim, Norway, July 2004) 3, accessed at www.irsa-world.org/prior/XI/ papers/4-6.pdf. 22 UN Committee on Economic, Social and Cultural Rights, General Comment 21: Right of Everyone to Take Part in Cultural Life (art. 15, para. 1 (a), of the International Covenant on Economic, Social and Cultural Rights), UN Doc E/C.12/GC/21 (2009). 23 Deininger (n 3) xxi. 19 20

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152 Research handbook on law, environment and the global South The realization of the previously mentioned benefits basically depends on a policymaker’s adoption of the appropriate land policy that considers the capability of the society to access land rights. The policy choices to define access to land mostly rely on two competing paradigms. The first is the economic efficiency paradigm; it dictates that access to land should be granted to people who effectively and efficiently utilize the land and the access to be determined by the market force.24 In contrast is the social equity and security paradigm; the egalitarian principle stipulates access to land to be used as a safety net. Accordingly, in the latter paradigm access to land is granted to the needy who would make a living from the land rights.25 Then, it requires the mechanism to access land to be affordable to the needy. The public policy choice between the two perspectives of treating the issue of access to land should not be a random option for the policymakers. Rather, the level of economic development of a state and the dependency of the people on land for a living, among other things, must be considered. On this basis, in developed countries, where dependency on land for a living is insignificant and the quest for livelihood is not a problem, defining access to land in the economic efficiency paradigm is sound. The access to land should be regulated in a way to get the best from the utilization and transfer of the land rights. While, in the least developed and developing countries like Ethiopia, wherein poverty is prevalent and dependency on land for a living is high, access to land should be defined on the social equity and security paradigm. It should be so at least until the economic transformation is achieved and livelihood dependency on land becomes minimal. Unlike the economic efficiency paradigm, in which the market forces determine the transfer and acquisition of land, in the social equity and security paradigm defining the means of access to land is also a point of debate. In the economic efficiency paradigm since land rights are commercialized and marketable, land can be accessed mostly through land transactions (sale, lease, or crop sharing). But, in the social equity and security paradigm, access to land is supposed to be defined in a manner that does not inhibit the needy from acquiring it and prioritization in the transfer is required to provide for livelihood. Thus, it opens a space for the state to play an active role to ensure fair distribution of land. Therefore, unless a constitutional normative framework (as will be discussed in section B below) is provided to guide the regulation of land allocation, the state’s land policy may favour allocation to the bourgeoisie, contradicting the basic principle of the paradigm adopted. The case of Ethiopia provides a good illustration of how access to land in the social equity and security paradigm is defined. It is by constitutionally establishing free access to land for all the needy and prioritizing transfer of land for livelihood.26 Citizens whose livelihood is based on or who are willing to base their livelihood on Crewett and Korf (n 6) 206. ibid 205. The two paradigms also determine the nature of land ownership to be adopted. The economic efficiency and productivity paradigm entails the adoption of private ownership. See Harold Demsetz, ‘Toward a Theory of Property Rights’ (1967) 57(2) The American Economic Review 347; Garrett Hardin, ‘The Tragedy of the Commons’ (1968) 162 Science 1243. 26 Federal Democratic Republic of Ethiopia (FDRE) Constitution (Proclamation No.1/1995, 1995), art 40(4–5). 24 25

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Land rights, poverty, and livelihoods: the case of Ethiopia 153 rural land rights are entitled to get rural land without any payment. Moreover, prioritization in accessing land rights is given to the needy and for the livelihood purpose.27 The claim for access to land rights for livelihood is prioritized over other purposes. Nevertheless, contrary to the above constitutional stipulation, the subordinate legislation of the country has authorized the state to expropriate livelihood land rights to transfer to private investors,28 and to convert communal landholdings, on which the pastoral communities’ livelihood depends, to private landholdings without any compensation.29 Moreover, the establishment of a land bank to collect and make ready land for investors,30 in the prevalence of landlessness for livelihood, implies the legislative disregard of the constitutional rule on access to land. One may question how the claim for land for livelihood is satisfied in the ever-increasing demand due to population growth and the limited nature of land resources. The possible policy option to address the problem is land redistribution. Redistribution of land is one of the threats to tenure security, which is the second important aspect of the land issue to ensure sustainable livelihoods and eradicate poverty as will be seen in the subsequent section.31 Such a situation puts developing countries at a crossroads in postulating their land policy. On one hand, the effort to minimize or outlaw redistribution causes landlessness and deprives part of the society of their living. For instance, in Ethiopia, about 43 per cent of the needy are landless.32 On the other hand, legalizing and conducting forced redistribution of land causes insecurity of land tenure; consequently, the landholders will not have an incentive to invest in land and transform their living conditions. Then, it becomes the distribution of poverty rather than land. Hence, in order to secure the land tenure, apart from outlawing forced redistribution of land, other legal protections as discussed in the next section are required to guarantee security of tenure to the landholders.

C. SECURING THE LAND RIGHTS TO ENSURE SUSTAINABLE LIVELIHOODS AND ERADICATION OF POVERTY Guaranteeing access to land as discussed above is not enough to ensure sustainability of land rights as a livelihood and improvement of the living standards of the majority of the people in the developing world. In addition, legal protection must be afforded to

27 FDRE, Rural Land Use and Administration Proclamation No. 456/2005 (15 July 2005) art 5(4). 28 FDRE, Land Expropriation and Payment of Compensation Proclamation No. 455/2005 (15 July 2005) art 3(1). 29 FDRE Rural Land Use (n 27) art 5(3). 30 FDRE, Council of Ministers Regulation to Establish Ethiopian Agricultural Investment Land Administration Agency, Regulation No. 283/ 2013 (4 March 2013). 31 Dessalegn Rahmato, ‘Searching for Tenure Security? The Land System and New Policy Initiatives in Ethiopia’ (Forum for Social Studies, Discussion Paper No. 12 2004). 32 Peter J Bodurtha and others, Land Reform in Ethiopia: Recommendations for Reform (Solidarity Movement for a New Ethiopia 2011) 1.

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154 Research handbook on law, environment and the global South establish land tenure security.33 The legal protections to secure the land tenure, needless to mention, are found to be the outcome of four basic legal constructions. These are the legal provision of clear and adequate breadth, duration, assurance, and enforceability of land rights. Consequently, the essence of these legal constructions is discussed in detail in separate sub-sections below. 1. The Breadth of Land Rights The clear and adequate breadth of land rights, that is, based on the bundle of rights metaphor of property, implies legally guaranteeing the landholder with clearly defined and adequate (quality and quantity) breadth of the sticks of the rights.34 The breadth of the property rights may be partial or complete property rights. Nevertheless, the extent of the adequacy is not well defined. What is provided is that it is not basic and necessary to grant the landholder the right to sell the land to secure the land tenure.35 Moreover, what is an adequate bundle of rights must be determined considering the purpose for which the land rights are acquired and the nature of the landholders. Accordingly, the nature of the property right to be granted to an investor should not be the same as to those whose livelihood is dependent on it. Rather, the sticks of the rights have to be demarcated in a way that achieves the purpose for which land rights are acquired. Similarly, the delineation of the bundle of rights also requires seeing the nature of the landholders – individual or communal. To be precise, the granting of individualistic sticks of rights on communal landholdings may create conflicts between landholders rather than securing the land tenure. Thus, the sticks of the rights that can best serve the purpose the land is acquired for and which are practically realizable in the given land utilization and holding system must be considered. In contrast to the above claim, a delineation of the breadth of land rights is made without considering the nature of the landholding system, and the purpose for which the land rights are acquired. The Ethiopian case provides a good illustration in this regard. The Ethiopian rural land tenure system has awarded investors with a better bundle of land rights than those who acquired land rights for livelihood. For instance, it enables them to use land rights as collateral while denying those whose livelihood depends on land rights from using the land right as collateral to secure loan services.36 It is the manifestation of legislature’s failure to think of the possible ways by which their livelihoods are improved or they are uplifted out of poverty. This is because a ‘collateral based view’ allows people to use their land rights as collateral to access 33 Food and Agriculture Organization (FAO), ‘Land Tenure and Rural Development’ (FAO Land Tenure Studies 3 2002) 18; Gudeta Seifu, ‘Rural Land Tenure Security in the Oromia National Regional State’ (2009) 3 Ethiopian Business Law Series 113; Anne Larson and others, ‘Tenure Change in the Global South’ in Anne Larson and others (eds), Forests for People Community Rights and Forest Tenure Reform (Earthscan 2010) 13. 34 Place and others (n 4) 20; Deininger (n 3) 36. 35 Deininger (n 3) 76. 36 FDRE Rural Land Use (n 27) art 8(4) and art 2(4). Nevertheless, deviating from the federal law, Amhara Regional State, one of the federating states, has in its recent land law guaranteed that those who utilize land rights for living can use the land rights as collateral.

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Land rights, poverty, and livelihoods: the case of Ethiopia 155 loans to invest in their land holding and to increase their productivity.37 Moreover, the country’s land tenure system has also defined the sticks of land rights without considering the manner of the landholding system. Accordingly, the sticks of land rights granted to individualistic and communal land holdings and utilization are the same.38 Especially, granting of individualistic land rights like the right to rent, and to lease land use to the communal landholding systems – mostly in pastoralist society – led to competing interests.39 In such cases, some members may opt to rent and lease out the land, whereas the others may prefer to personally use it. 2. Duration of Land Rights On the other hand, the duration of land rights refers to the valid period for which the land rights last and are used. It may take either a time-bounded or time-unbounded form. In the case of time-bounded land rights, the valid duration of land rights is legislatively fixed and predefined. Upon the expiry of the duration, the holder loses the land right unless it is renewed. While, in time-unbounded land rights, the right is valid for the lifespan of the landholder. It may even be transferred to their heirs in case of death of the initial holder. The general assumption regarding the nexus of the duration of land rights and tenure security is that the longer the duration, the better the security of the land tenure.40 This works true for the general duration of land rights. However, the issue of duration can also be viewed in relation to specific sticks of the land rights – for instance, leasing/renting.41 The issue that comes at this juncture is how long a valid duration is enough to secure the land tenure. The determination of the duration of general land rights should be based on the purpose for which it is acquired, among others. Two examples follow for investment and livelihood. In the case of investment, the adequacy of the duration of the land rights depends upon whether it is sufficient to reap the fruits of the intended investment. However, the scenario of land rights as a livelihood requires the duration of the land rights to be unlimited and should continue as far as the dependency on the land rights for a living continues. In specific land rights, defining the duration has to be left to the parties’ free will to set. The illustration from Ethiopia implies that the general land rights duration of land for livelihood is unlimited.42 It entitles those who acquire land for living to utilize it for an indefinite period of time. Although some have regarded it as a failure to define the duration and a threat to the security of land rights,43 the legislation has tacitly defined Besley (n 18) 908. FDRE Rural Land Use (n 27) art 2(4). 39 FAO (n 33) 8. 40 Place and others (n 4) 21; Deininger (n 3) 8. 41 Solomon Bekure, ‘Benefits and Costs of Rural Land Titling: The International Experience’ in Solomon Bekure and others (eds), Standardization of Rural Land and Cadastral Surveying Methodologies; Experiences in Ethiopia (Proceedings of a National Conference ELTAB 2006) 46. 42 FDRE Rural Land Use (n 27) art 7(1). 43 eg Wibke Crewett and others, ‘Land Tenure in Ethiopia Continuity and Change, Shifting Rulers, and the Quest for State Control’ (CAPRi Working Paper No. 91, 2008). 37 38

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156 Research handbook on law, environment and the global South the duration by providing for the landholder to use the land rights throughout his/her lifetime. Upon the death of the holder, the land goes to the heirs restrictively and uniquely defined. Unlike the general law of succession of the country, its land law has delineated the legal heirs in terms of requirements of residency and dependency.44 Out of the family members determined on these criteria, the landholder has no right to bequeath his/her land rights to others. This restriction, on the other hand, goes against the Ethiopian rural communities’ deep-rooted tradition of reserving the land rights within the family generational line.45 With respect to the duration of specific land rights, for instance, rent and lease, the Ethiopian experience reveals that period is predefined in legislation.46 It is not left to the parties in the transaction. The judicial practice also assumes that it is eviction of the landholder if the duration of land rent and lease exceeds the legislatively stipulated maximum duration. The legislative restriction of the duration of the specific sticks of land rights can be regarded as an interference to the freedom and autonomy of the landholder to define the duration. It, in effect, has the implication of perpetuating the land tenure security of the landholders. 3. The Assurance of Land Rights The assurance of land rights, as the third legal protection to land tenure security, deals with the protection of the land rights from arbitrary deprivation.47 This protection mainly revolves around striking a balance between the public need for the land and the protection of individual or community property rights in land. It can be realized through curtailment of arbitrary deprivation of land rights. This entails the assurance of the land rights can be met when the deprivation of the land rights is carried out exceptionally for greater societal interest, upon due process of law, and payment of adequate compensation.48 The greater societal interest is identified in different formulations, such as ‘public purpose’, ‘public interest’, and ‘public benefit’, each of whose scope differs.49 Demarcation of their contents may be done either legislatively by 44 In the land law the legal heirs are those who permanently live with the landholder sharing his/her livelihood, see FDRE Rural Land Use (n 27) art 5(2) and art 2(5). However, in the general law of succession of Ethiopia legal heirs are defined in the bloodline and also the deceased has the right to bequeath his/her estate to anyone by will. Civil Code of the Empire of Ethiopia 1960, Proclamation No 165/1960, arts 842–56. 45 Fasil Nahum, ‘Ethiopia: Constitution for a Nation of Nations’ (1998) 60 ICJ Rev 91, 95. 46 FDRE Rural Land Use (n 27) art 8(1). Determination of the specific duration of land lease and rent is to be done through regional state land laws, and each regional state has come up with their respective rent and lease duration. 47 Stephen R Munzer, A Theory of Property (Cambridge University Press 1990) 22. 48 Food and Agriculture Organization, ‘Compulsory Acquisition of Land and Compensation’ (FAO Land Tenure Studies 10, 2008); Daniel W Ambaye, Land Rights and Expropriation in Ethiopia (Springer 2015); Muradu Abdo, ‘Reforming Ethiopia’s Expropriation Law’ (2015) 9 Mizan Law Review 301. 49 The use public purpose/good/benefit restricts somewhat authorized grounds to direct societal utilization of the expropriated land in the form of public infrastructure, environmental protection and defence. The notion of ‘public interest’, on the other hand, is wider and includes indirect benefits to society, and creates more space for unaccountable decision-making. For

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Land rights, poverty, and livelihoods: the case of Ethiopia 157 exhaustive listing, or administratively by expropriating organs, or by legislature and judiciary jointly giving an illustrative listing in the legislation. From the perspective of striking a balance and to ensure the security of land tenure, the latter approach is preferred. Because it limits the administrative definition of the contents and at the same time allows the incorporation of new grounds through presumably an independent body of court. Nevertheless, legalization and adoption of factors other than compulsory acquisition to deprive of land rights and the empowering of administrative authority to establish what constitutes greater societal interest perpetuates insecurity of land tenure. States, as the Ethiopian case reveals, may adopt failure to observe vaguely defined environmental standards, such as idling of the land for a certain period, engagement in nonagricultural activities, and leaving the locality for a certain period, as an additional ground to acquire land rights without compensation.50 These grounds may not be applicable to all landholders. Rather, they may be stipulated against the poor whose livelihood is based on land rights. That is, by abusively using the state’s legitimate power of regulation of property use, it then threatens land tenure security. In addition, these grounds undermine the improvement of livelihoods by denying landholders the opportunity of movement to the urban centres, and driving away an additional source of income from non-farming activities. The discrimination against those who use land rights as a means of living is also observed while the legislature fails to impose such grounds, except for conservation of land, to deprive investors of their land rights.51 Moreover, the greater societal interest defined for the expropriation of livelihood land is broader than for investment land. While for investment land it refers to the need of land for the projects to be carried out by the government,52 in the case of livelihood land it consists of anything the administrative entity considers as for societal interest and includes the need to transfer the land to private investors.53 It has defined the public use clause in the weak rationality model of political justification for expropriation of livelihood land rights.54 That is, if the project for which the land is expropriated has any direct or indirect benefit to the public, then it is considered that the requirement of instance, expropriation of land to lease to private investors may well be in the public interest, when it generates an important source of income for the state, technology transfer, and employment opportunities. See FAO (n 48); Paul De Wit and others, Land Policy Development in an African Context (FAO 2009) 72. 50 FDRE Rural Land Use (n 27) art 9(1) and art 10(1). Idling of the land for a certain period and engagement in off-agricultural activities as grounds for deprivation of land rights are mentioned in most state laws. 51 ibid. 52 FDRE Land Expropriation (n 28) art 3(2) in conjunction with FDRE Rural Land Use (n 27) art 8(4). 53 FDRE Land Expropriation (n 28) art 2(5). The only restriction the administrative authority is supposed to observe while determining public purpose is to make sure that purpose is in line with the urban structure plan and development plan. For more detail on this, see Brightman Gebremichael, ‘Public Purpose as a Justification for Expropriation of Rural Land Rights in Ethiopia’ (2016) 40(2) Journal of African Law 190. 54 Micah Elazar, ‘Public Use and the Justification of Takings’ (2004) 7 University of Pennsylvania Journal of Constitutional Law 249, 251.

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158 Research handbook on law, environment and the global South public use is satisfied.55 This broad and vague definition of public purpose may cause perpetuation of land tenure insecurity as it exposes landholders to the risks of losing land rights to discretionary bureaucratic behaviour.56 In paradox to the one deserving a better protection, the Ethiopian legal framework has provided a better protection to the land rights that are utilized for profit than those for livelihood. Because, with respect to investment land, the law of the country has adopted a relatively narrower understanding of public use, equating it with state projects only.57 In this regard, in terms of securing land tenure, investment land rights have a better legal protection than livelihood land rights. This underscores the legislative failure to give due regard to the purpose the land rights are acquired for in defining the protections. This Ethiopian illustration leads to a claim that, while defining the constituting elements of greater societal interest, the purpose for which the land rights are being utilized before expropriation must be taken into account if the concept is supposed to be defined differently for different landholders. To be specific the extent of dependency on land rights must be considered in accordance with the marginal utility concept in establishing the constituting elements of greater societal interest. The fundamental difference in this regard relates to those who utilize land for their livelihood and for other purposes. In the case of land rights as a livelihood, the right holders have not only an economic interest in the land but also their entire social and cultural life and political well-being is strongly attached to their access and security of land holdings.58 In such situations, the concept must be defined in a narrower sense. Nonetheless, in the other circumstances, where the land expropriation affects solely the economic interest of the landholder, broader understanding of the concept will not cause any basic threat to the security of tenure provided that all the economic losses are compensated. This takes us to see how another legal protection establishes the assurance of land rights – compensation. The compulsory taking of the land rights must be done upon the payment of compensation to secure the land rights.59 Compensation is a redress for any damage sustained by the landholder as result of expropriation of land rights. The expropriation of land rights as a livelihood means the loss incurred is limited not only to the loss of the land rights and economic benefits but also the loss of the social and cultural capitals.60 Thus, the compensation paid should be that which reinstates the economic, social, and cultural position of the affected party before the expropriation. To make the ibid. Deininger (n 3) 8. 57 See FDRE Land Expropriation (n 28) art 3(2) in conjunction with FDRE Rural Land Use (n 27) art 8(4) and FDRE Constitution (n 26) art 40(6). 58 Deininger (n 3) xxi; Jeremie Gilbert, ‘Nomadic Territories: A Human Rights Approach to Nomadic Peoples’ Land Rights’ (2007) 7(4) Human Rights Law Review 681; Denise Gonzalez Nunez, ‘Peasants’ Right to Land: Addressing the Existing Implementation and Normative Gaps in International Human Rights Law’ (2014) 14 Human Rights Law Review 589; UN Human Rights Council, Report of the United Nations Special Rapporteur on the Right to Food, Olivier De Schutter, UN Doc A/HRC/25/57 (2014) 3. 59 FAO (n 48) 6–14. 60 Jack L Knetsch and Thomas E Borcherding, ‘Expropriation of Private Property and the Basis for Compensation’ (1979) 29(3) University of Toronto Law Journal 237. 55 56

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Land rights, poverty, and livelihoods: the case of Ethiopia 159 compensation equivalent to the loss sustained, different adjectives like just, adequate, commensurate, and the like have been used. However, one may wonder about the theoretical and practical significance of such terms in the determination of the compensation. From the perspective of security of land rights, compensation plays two fundamental roles. In the economic angle, it curtails the state from making an arbitrary decision of expropriation. In the sense that if the expropriator is going to pay compensation, it will be forced to make an economic cost and benefit analysis; and it decides to expropriate the land if the benefit to be obtained from the expropriated land is more than the cost incurred in the form of compensation to acquire it.61 Nonetheless, if the compensation requirement is not there, they can engage in the random expropriation of land rights as they derive only benefits from it. It in turn exposes the landholders to arbitrary deprivation of their land rights and perpetuates insecurity of land tenure. From the social justice angle, it protects the landholder from suffering and incurring costs while the land right is taken to benefit the society at large either directly or indirectly.62 However, the benefits of compensation, recapped above, depend fundamentally on the amount to be awarded. At least economically, the amount of compensation should not make the landholder worse off than his/her situation at the time of expropriation. It rather should make the affected parties better off. Since the land is taken for a better development purpose that benefits the society at large, being part of the society, the affected parties must also benefit. Thus, the compensation process should not worsen off their financial, social, and cultural position of the concerned party. There are different legal factors that can affect the extent of compensation. Typically, the mode, basis, method of valuation, the nature of valuator, and the amount are fundamental. The mode of compensation – monetary or land to land compensation – has an implication on what the affected parties feel about the compensation scheme. In the presence of the two optional modes of compensation, the right to choose has to be given to the affected landholders, and their nature has to be considered in determining it.63 When the land right is a means of livelihood for the affected landholders, as much as possible the compensation must be made in kind. Because, they may not be acquainted with other skills to make an alternative form of living or to invest the money in, in which case it can easily be wasted and they are exposed to poverty.64 This is mainly true in countries like Ethiopia where such landholders are deprived of their land rights when they begin to derive income from off-farming activities that would have enabled them to acquire another skill for living.65 61 Daniel Weldegebriel, ‘Compensation during Expropriation’ (2009) 3 Ethiopian Business Law Series 200. 62 ibid. 63 Linlin Li, ‘Adoption of the International Model of a Well-Governed Land Expropriation System in China: Problems and the Way Forward’ (Presentation at the World Bank Conference on Land and Poverty, Washington DC, 23–7 March 2015) 9. 64 FAO (n 48) 40. 65 Solomon Bekure and others, ‘Removing Limitations of Current Ethiopian Rural Land Policy and Land Administration’ (Workshop on Land Policies and Legal Empowerment of the Poor, Washington DC, November 2006) 9. In the Amhara, Benishangul Gumuz, and Tigray

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160 Research handbook on law, environment and the global South Particularly when the compensation takes a monetary form, the basis of compensation adopted in a legal regime affects the extent of compensation. The basis of compensation is how a legal regime approaches the expropriated land right. Accordingly, it can be approached either from the perspective of the affected parties as ‘landholder’s loss’ or from the expropriator’s side as ‘taker’s gain’.66 The ‘landholder’s loss’ perspective establishes that the compensation is to be determined on the basis of whatever losses the landholder incurred in the course of the expropriation. Whereas, the ‘taker’s gain’ perspective considers not what is incurred by the affected parties but in terms of what is gained by the expropriator. Thus, from the security of land tenure, the ‘landholder’s loss’ approach better compensates the affected parties as it takes into consideration all costs, including sentimental costs, incurred. The adoption of either of the compensation bases is done in the law-making of a nation. However, legislation may adopt an approach which may undercompensate the affected parties as the case of Ethiopia illustrates. In Ethiopia, with respect to the loss of the livelihood land rights, the basis of compensation falls on neither of the approaches. Even though the loss of income is a foundation to calculate the compensation, it takes the past income to compensate for the future loss of income.67 This makes the extent of compensation inadequate as it does not consider the future inflation and value of the land rights. Moreover, the method of valuation of compensation employed has a bearing on the extent of compensation. Mostly, the method of valuation comes into the scene with respect to measurable losses, and allows the market to determine the value. Depending on the marketability of land rights, we can have two categories of valuation methods. One group works where land rights are marketable and transferable through sale, and the other one operates in situations where the land rights market is not well-advanced and sale of land right is not allowed. In the first category, we can have ‘willing seller and willing buyer’,68 ‘comparable sale’,69 or ‘purchase substitute’ regional state laws, engagement in off-farming activities is recognized as one of the grounds for deprivation of land rights of peasants and pastoralists. 66 Robert Kratovil and Frank J Harrison Jr, ‘Eminent Domain: Policy and Concept’ (1954) 42(4) California Law Review 594, 615. 67 FDRE Land Expropriation (n 28) art 8(1). 68 FAO (n 48) 27. It means that the right price of the land that a well-informed willing buyer and seller agree on if the land right is taken to the land market for sale at the time of expropriation. It is determined without the consideration of the probability of the expropriation. Because, the threat of expropriation affects the price of the land right. But, the price here also is affected by the market forces – supply and demand. Accordingly, if the expropriation is done at the time when the demand for the land right is high and supply is less, the affected parties are going to be better compensated. Conversely, when the supply of the land right is higher than the demand for it, the affected parties are likely to be compensated less. 69 Daniel (n 48) 198. In this case consideration is taken of the price for which a similar land right was sold in the same locality within a reasonable time prior to the expropriation. This approach subjects the compensation to be assessed in light of the previous price of the same land right in the same vicinity and it does not clearly establish the reasonable time condition. Moreover, it does not help to determine the compensation if there is no sale of the land right in the locality before. Thus, the compensation here may not reflect the actual value of the land right.

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Land rights, poverty, and livelihoods: the case of Ethiopia 161 approach.70 Among these, the purchase substitute approach best compensates the affected parties since it accommodates all rounded costs and future increments to buy the same type of land rights within a reasonable time. In the latter category, we have the ‘income capitalization’,71 ‘independent body assessment’, and ‘self-assessment approach’.72 The income capitalization approach can be applied to the expropriation of land rights in the case where the duration is fixed and land is utilized for tradable items. Nonetheless, in a situation where the duration of the land rights is not limited like the holders of the rural land rights for living and the substantive and instrumental use of land is untradeable like pastoralists’ land rights in Ethiopia, the adoption of the independent body assessment and self-assessment approaches is inevitable. One big challenge of such approaches is that they are exposed to subjectivity. The Ethiopian legal system, in contrast, adopted an income capitalization approach to calculate compensation for the loss of land rights which in fact is incompatible with what was theoretically discussed above.73 Particularly, in the situation of land rights for livelihood as mentioned before, the duration is time-unbound. Moreover, in the case of pastoralists, their use of the land rights is extra commercium and untradeable. Thus, the adoption of the incompatible valuation approach may leave the affected parties undercompensated. Furthermore, the nature of the valuator and the legislative restriction on the amount affects the extent of compensation to be awarded to the affected parties. Particularly, in the case when the power to assess compensation is assigned to a person or an institution that is not independent, it is most likely that the affected parties would be undercompensated or inadequately so. Besides the legislative limit on the amount of compensation to be awarded also makes the affected parties undercompensated. For instance, in the Ethiopian case regarding the land rights of peasants and pastoralists, the extent of compensation can be affected by the nature of the valuator and the legislative restriction imposed on the maximum amount of compensation. Accordingly, the Ethiopian legislation empowers a state body to assess the compensation.74 Moreover, the maximum amount of compensation to be awarded is ten times the past five years’ average income derived from the land right.75 While the duration of the land rights is a lifetime, there is no logical reason to limit it to the multiplication of the average income of five yesteryears. Moreover, when the compensation takes a monetary form in the case of expropriation of land rights as livelihood and in a situation where the affected parties lack skills 70 Weldegebriel (n 61) 209. The purchase substitute approach values the compensation based on the costs to be incurred and the price paid to purchase the same land right in the same locality in future reasonable time. Here, unlike the ‘willing seller and willing buyer’ approach, the future increment of the price of land rights is considered. This approach can be used for loss of partial land rights – lease rights for instance, instead of the replacement cost model. 71 Daniel (n 48) 199. 72 Deininger (n 3) 166. 73 FDRE Land Expropriation (n 28) art 8. 74 ibid art 10(1). The Valuation Committee is mandated to determine the value of property situated on the land to determine the compensation and empowered with the task of valuing the loss of land rights. 75 ibid art 8(1) and (2).

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162 Research handbook on law, environment and the global South to make a living from other economic activities, the state has to bear the duty to take rehabilitation measures. Because, in such scenario, the affected parties may not have monetary management skills and may be unwise in spending it or fooled to invest in fraudulent schemes.76 In the end, they may end up with no land to make a living, nor income to support themselves or job skills to compete in other economic sectors. Consequently, in order to address the impoverishment of the affected parties that results from lack of skills to manage the money and make a living from other sectors, the state should take rehabilitation measures before or after conducting expropriation of land. It must be imposed as a duty on state organs as part of the compensation scheme. Stipulating it as an optional measure that depends on the will of the state, like in Ethiopia, makes the state reluctant to act accordingly.77 On the other side, the affected parties will not have a legal base to claim it and the means to force the state to conduct it. This legislative failure is in fact the result of disregarding the constitutional obligation of the state to assist the relocation of the affected parties.78 The due process aspect of assurance of land rights requires guaranteeing of procedural protection to the affected parties.79 Inter alia, it requires effecting the expropriation order at a time convenient to the affected parties with sufficient notice period that provides enough time to the affected parties to begin the everyday life.80 The procedural safeguards also require the affected parties to be informed participants in the process of expropriation.81 The affected parties’ participation is required to make the land taking through negotiation before resorting to expropriation; to determine the mode of compensation and how it is going to be apportioned among the landholder and the lessee/rentee when the expropriation is done while the land use right is transferred to the latter; to make the payment thereof before it is handed over to the expropriator and to enable the affected parties to vacate the land or recoup their investments; and to enable them to monitor the implementation of the initial project and claim restitution if it fails.82 In the legislative measures the state may disregard these procedural safeguards of land rights. The illustration from Ethiopia reveals that the land law of the country does not grant the livelihood-landholders with the opportunity for negotiation on voluntary submission before the decision of expropriation. Moreover, it does not require the expropriation to be carried out at a convenient time; and the duration to vacate the land is supposed to be determined by the expropriating organ though the minimum three-month period fixed legislatively.83 Furthermore, apart from demanding advance payment of compensation before handing over the land,84 the Ethiopian legal framework does not entitle the affected parties to have a say on the mode of compensation FAO (n 48) 40. FDRE Land Expropriation (n 28) art 13(1); Muradu Abdo (n 48) 320–23. 78 FDRE Constitution (n 26) art 44(2). 79 Muradu Abdo Srur, ‘State Policy and Law in Relation to Land Alienation in Ethiopia’ (PhD Thesis, University of Warwick 2015) 160; FAO (n 48) 2. 80 Li (n 63) 9. 81 FAO (n 48) 27 and 44. 82 Li (n 63). 83 FDRE Land Expropriation (n 28) art 4. 84 ibid. 76 77

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Land rights, poverty, and livelihoods: the case of Ethiopia 163 and to claim restitution when the land is no longer needed for the initial project it was intended for. Moreover, there is no legal framework that governs what would happen when the expropriation is done while the land right is temporarily transferred to others. These legislative failures impede the protection supposed to be granted to secure land tenure, so that livelihoods are maintained and improved and poverty in effect eradicated. 4. Enforceability of Land Rights The last but not the least element of objective land tenure security is the establishment in an independent body of a mechanism to obtain a remedy for illegal interference to land rights. It is required that the cost of enforcement should not be inhibiting.85 It must be affordable, and alternative ways to overcome the cost of enforcement such as exemption of judicial service fees and provision of free legal aid should be provided. In addition, free court representation should be legally guaranteed to landholders.86 Otherwise, it would only be available to those who can afford the financial resources necessary to demand judicial remedies.87 However, the enforceability of land rights is not only affected by the cost of enforcement, it can also be undermined by the legislative restriction of the cause of action against which affected parties can take legal action. Often this happens in cases related to the state’s encroachment on the land rights. Therefore, to challenge unjust deprivation, or restrictions, or interference of land rights in the application of the rules, landholders should be entitled and empowered to take a legal action to an independent organ to enforce their land rights.88 In the case of Ethiopia, both aspects of enforceability of land rights are not available to those whose livelihood depends on land rights. In relation to cost of enforcement, it was revealed that judicial organs are usually situated far away from the locality of average peasants and pastoralists, hence they are restricted in taking legal action to enforce their land rights which makes it inconvenient and costly.89 Moreover, the Place and others (n 4) 21; Deininger (n 3) 36. FAO, ‘Agrarian Law and Judicial Systems’ (FAO, Legislative Study No 5, 1975) 19. 87 Francesco Francioni, ‘The Right of Access to Justice under Customary International Law’ in Francesco Francioni (ed), Access to Justice as a Human Right (Oxford University Press 2007) 64. 88 Baker (n 10) 766. 89 Dessalegn Rahmato, ‘Peasants and Agrarian Reforms: The Unfinished Quest for Secure Land Rights in Ethiopia’ in Janine M Ubink and others (eds), Legalising Land Rights Local Practices, State Responses and Tenure Security in Africa, Asia and Latin America (The Leiden University Press 2009) 46. In fact, there are possibilities to exempt the court fees in the form of suits by paupers, see the Civil Procedure Code of Ethiopia Decree No. 52 of 1965, s 467–79. However, the absence of legal knowledge and inability to hire a lawyer coupled with the absence of an enabling environment for civil society organizations to be involved in advocacy services makes the enforceability of land rights very difficult if not impossible. About the absence of an enabling legal environment for civil society organizations, see Brightman Gebremichael, ‘The Legal Framework for Civil Society Organizations (CSOs) in Ethiopia and its Implications for their Roles in Promoting Good Governance, Human Rights and Environmental Protection’ in Getnet Mitiku (ed), Promoting Democracy, Good Governance and Human Rights (Eclipse Printing Press 2015) 155. 85 86

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164 Research handbook on law, environment and the global South legislation has limited the grounds by which landholders are entitled to claim judicial review. The restriction here is related to the state’s intervention in land rights. Typically, in an expropriation decision, the affected parties can demand judicial review only when they are aggrieved with the amount of compensation.90 In other grounds of grievance, like challenging the purpose the land is expropriated for, the commission of procedural irregularities, and demands for restitution,91 the a contrario reading of the law reveals that they are not allowed to claim judicial review. In general, the legislative failure to provide the protection of objective land tenure security (breadth, duration, assurance, and enforceability of land rights) as per the above discussions tends to discourage landholders from engaging in environmentally friendly investments to improve their livelihoods. Nevertheless, unless a guide in higher normative frameworks such as constitutional law is provided, states will resort to the legislative abrogation of them, as the illustration from the Ethiopian case otherwise reveals. Then, this leads us to see how constitutional rules direct the lawmaking that regulates access to and security of land tenure, in order to deter legislative infringement of objective land tenure security and access to land.

D. CONSTITUTIONAL PROTECTION TO LAND RIGHTS FOR LIVELIHOOD: ACCESS AND SECURITY The discussions in sections A.1 and A.2 reveal that the issue of access to land and objective security of land tenure involves the regulation of the relation between state and landholder among others. The discussions also indicate that, through law-making, a legislature may deny access to and security of land rights of the needy. This fact necessitates the need for a normative constitutional framework that regulates the conduct of the state including law-making that imposes obligations on the state to ensure access to and security for land rights of the needy. This is with the view of limiting the opportunity to affect the access to land and legal land tenure security through the making or application of laws. To establish and maintain a system for the distribution of power over wealth among individuals, groups, and state, most constitutions of various nations have devoted rules governing the notion of property rights in general.92 Although constitutions may vary in terms of incorporating the constitutional protections to property rights in general, and land rights in particular, Edwin Baker’s analysis identified six different but related functions that constitutional property protection serves without indicating what matters

FDRE Land Expropriation (n 28) art 11. FAO, Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (FAO 2012) Guideline 21.1; FAO (n 48) 45–7. 92 John Henry Merryman, ‘Ownership and Estate (Variations on a Theme by Lawson)’ (1973–74) 48 Tulane Law Review 916, 917. 90 91

Land rights, poverty, and livelihoods: the case of Ethiopia 165 influence the adoption of a given function in the constitution of a nation.93 The functions can be grouped into two broader categories as protectionist and promotive functions. The protectionist functions by imposing negative obligations; it has the nature of restraining arbitrary interference to the property rights of individuals or communities. It includes Baker’s protective function that protects individuals and communities against certain forms of unjust exploitation by other individuals or by governments; and a personhood function that ensures people control the unique objects and the specific spaces that are intertwined with their present and developing individual personality or group identity.94 The promotive functions, on the other hand, impose positive obligations on the state. They require the state to take positive measures that enhance the freedom and liberty of the property rights holders. In Baker’s terms they include: (i) a use function which guarantees people to rely on, consume, and transform resources in many of their self-expressive, developmental, productive, and survival activities; (ii) a welfare function that secures individuals’ claims on those resources that a community considers essential for meaningful life; (iii) a sovereign function which authorizes people with a means to exercise power over others; and (iv) an allocative function that prescribes certain means and blocks other means by which individuals or groups secure the resources.95 One may question why constitutions of nations vary in the scope and method of incorporating these functions of constitutional property especially in relation to land rights. From the nature of the functions, it is possible to infer that the scope of affording constitutional protection to land rights basically depends on the extent of the society’s dependency on the land resources and the constitution maker’s policy choice of adopting a paradigm defining access to land as discussed in section A.2. When we see the nature of personhood, welfare, and allocative functions of constitutional protections of land rights, they are mainly aimed at providing protection to land rights as livelihood whereby access to land is defined in a social equity and security paradigm. For instance, the personhood function is required to provide special protection (extended protective function) to land rights to which people develop some degree of psychological attachment in which they have invested their identity. This happens when the livelihood of the community is based on land rights. The protection limits state encroachment more broadly than the protective function and demands a special compensation regime. Thus, the constitutional rule prevents the state from encroaching on the land rights of an individual or community ‘based merely on the community’s general welfare-advancing policies’.96 It means that the public purpose requirement to encroach on those land rights is to be defined narrowly, at least compared with the other land rights which do not have the personhood function. Even 93 Baker (n 10). There are three possibilities in adopting them in a nation’s constitution. Some may totally disregard them; whereas some others may adopt some of them and the rest may incorporate all of them. 94 Baker (n 10) 747. 95 ibid 744–51. 96 ibid 762.

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166 Research handbook on law, environment and the global South in the case of permissible encroachment on land rights as livelihood too, a special compensation scheme requires ‘full and perfect equivalent’ compensation.97 The illustration from Ethiopia indicates that adoption of the personhood function with respect to peasants and pastoralists, who hold land rights as means of livelihood, entitles them with the right to immunity against eviction and displacement.98 This protection is not afforded to other landholders since their livelihood is not based on the land. Besides, the constitution of Ethiopia has also limited the permissible encroachment on livelihood land rights only for state programmes with special compensation regimes that demand the restoration of livelihood through compensation and relocation.99 Nevertheless, as was discussed in section B.3 in the making of subordinate legislation, this constitutional protection is not taken seriously. The welfare function coupled with the allocative function add protection to individuals’ and communities’ access to land on which their livelihoods depend. The welfare function requires the insurance of equal protection theory – a government guarantees all society members with the minimum quantity of land necessary for their livelihood.100 This clause, in effect, limits the government’s authority to a statutory classification of land that affects the land availability serving the welfare function. This is meant to allow a due process hearing to the members of society to effect their access to the land; and not to allow the government to ‘forego the due process hearing relying on irrefutable [] resolution that presume[] claimants do[] not merit, need or have legitimate claims on the land’.101 In the allocative function, though it is more of a value judgement than doctrinal stipulation, the constitutional rule should guide such judgements towards ensuring every needy person with equitable access to land. Particularly, in a community where poverty is prevalent, and land is a means of living. The allocative function forces the state to work towards making land available to the needy and the mechanisms to access it should not be inhibiting. Such constitutional rule demands that the state takes enabling legislative measures that ensure affordable access to land for such a vulnerable section of society. The Ethiopian constitution provides the best experience in adopting the welfare and allocative functions of constitutional land rights for all needy nationals. It is through guaranteeing free access to land rights to the needy who made or want to make a living from land rights.102 The actual and substantive right to free access to land obliges the state to secure all needy nationals with the necessary amount of land for livelihood. Besides, it gives priority to satisfying the demand of land for livelihood.103 Furthermore, by blocking the market forces from determining access to land for a living, it curtails the accumulation of land in the hands of the haves.104 It, in effect, forces the policymakers to take measures which ensure equitable access to land for the needy. Apart from that, this can be deduced by an a contrario reading of the provision 97 98 99 100 101 102 103 104

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ibid 763. FDRE Constitution (n 26) art 40(4) and (5). ibid art 44(2). Baker (n 10) 760–61. ibid. FDRE Constitution (n 26) art 40(4) and (5). FDRE Rural Land Use (n 27) art 5(4). FDRE Constitution (n 26) art 40(3).

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Land rights, poverty, and livelihoods: the case of Ethiopia 167 prohibiting sale and exchange of land by other means,105 and by referring to the constitutional right of women that guarantees them an equal right in the transfer of land106 the constitutional framework of Ethiopia is intended to guarantee the use-value and sovereign functions to landholders.

CONCLUSION In developing countries, the notions of land rights, livelihoods, and poverty are intertwined. On one hand, in societies where poverty is prevalent, the dependency on natural resources, typically land for livelihoods, is immense. On the other hand, the sustainability and improvement of livelihoods and eradication of poverty basically depend on the extent of legal protection afforded to the access and security of land rights. Thus, the presence of sufficient legal protection for land rights has the tendency to enhance environment-friendly investments to increase productivity and reduce poverty. This is not to mention its contribution towards enhancing the political participation of the society and democratization of the state by ensuring economic freedom. The sufficiency of the legal protection afforded to livelihoods – land rights in our case – can be appraised in terms of the way access to land is regulated and the substantive and procedural safeguards afforded to secure the land rights. Access to land rights for a livelihood is supposed to be defined in a manner that ensures access by the needy. This would only happen when the legal framework is advised by the social equity and security paradigm in regulating access to land. The Ethiopian case establishes the best practice in this regard, in particular, it guarantees the constitutional right and prioritizes free access to land for livelihood to all needy nationals. This is with a view to employing land rights as means of living for every needy national instead of commercializing and defining it from an economic efficiency and productivity perspective. Nevertheless, the subsequent legislative measures taken to provide detailed rules have violated the constitutional norm. The legal security of land rights on the other hand can be set up in terms of their clear and adequate breadth, longer duration, assurance, and enforceability. Accordingly, legislative measures are required to grant the clear and adequate breadth of sticks of property rights that are compatible with the nature of the landholding and utilization system in a way necessary to achieve the purpose of the land acquisition. Moreover, the general duration of land rights must be defined and delineated considering the purpose for which the land right is acquired, and the specific duration should be left to be determined by the landholders and the other contracting parties. While the assurance element is realized when the legal regime confines the deprivation of land rights for greater public purpose to payment of compensation, that is better for the affected parties and in the due process of law. Finally, the enforceability of land rights is effected when legislative measures are taken to avert the cost of enforcement that inhibits enforcing the right, and that avoids limits on the grounds to demand judicial ibid. ibid art 35(7).

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168 Research handbook on law, environment and the global South review. Contrary to these frames, a state’s legislative measures may tend to perpetuate insecurity of land rights as the experience from Ethiopia reveals. The Ethiopian case study shows that the legislative infringement of access to land for livelihood, and the security thereof, emanated from failure to observe the constitutional protections afforded to land rights as livelihood. The constitution of the country has adopted and ensured the personhood, use-value, welfare, allocative, and sovereign functions of a property clause to the livelihood land rights in order to enable the needy to have a means of living, and to ensure the sustainability of their livelihood and eradication of poverty. That is by defining access to land in the egalitarian and social equity paradigm, guaranteeing the right to immunity against eviction, and limiting expropriation only for state programmes upon payment of compensation and relocation of the affected parties. Disregarding the constitutional rights and principles, the case in Ethiopia reveals that the state may be involved in the enactment of subordinate legislation that undermines the access to land and security of land tenure for livelihood. Which, in effect, affects the role of land rights in ensuring a means of living for the needy and the eradication of poverty in an agrarian society.

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9. Wildlife conservation and land rights in Kenya: competing or complementary agendas? Patricia Kameri-Mbote

INTRODUCTION Species loss around the world, and in the developing world specifically, has become a key concern of law and policymakers. The greatest threat to species and their habitats remains human interventions in ecosystems as well as overuse of resources.1 The quest to optimize the uses to which land is put places wildlife in a disadvantaged position as urbanization and agriculture take centre stage. The contest between deontological2 (moral/equity) approaches to land and efficiency/utilitarian3 approaches is at the core of the promotion of property rights’ systems in spaces that host wildlife. Where conservation of wildlife is concerned, the situation is complicated by anthropocentric approaches that place human needs ahead of nature conservation. The emphasis on economic returns leads to the neglect of social and ecological concerns. The development of mega projects without taking into account habitat needs of wildlife is justified on grounds of the economic benefits of such projects in improving the lives of people. Where landscapes that host wildlife are occupied by poor people who hold land collectively, tenure reform geared towards individual ownership of land leads to the parcellation of habitats and fencing of wild lands which affect the movement of animals. The drive towards private property rights follows from the exposition on the tragedy of the commons by Garret Hardin4 which has been used to promote private/individual property rights as a panacea to the problem of unsustainable resource use in commonly held lands. The parcellation of community land into individual holdings does not guarantee resource management and can fuel unsustainable harvesting of resources.5 More recently, tenure reform has been informed by the perceived need to unlock the

1 Robert Steidll and Brian Powell, ‘Assessing the Effects of Human Activities on Wildlife’ (2006) 23(2) Visitor Impact Monitoring 50. 2 See generally, ‘Legal Theory Lexicon 010: Deontology’ Legal Theory Lexicon (2017), accessed at http://lsolum.typepad.com/legal_theory_lexicon/2003/11/legal_theory_le_2.html. 3 A utilitarian/efficiency approach to wildlife conservation is one that evaluates conservation on the basis of costs and benefits deriving therefrom. See Andrew Solow and Stephen Polasky, ‘The Endangered Species Act as a Tool to Conserve Biological Diversity’ (1999) Choices Third Quarter 17. 4 Garret Hardin, ‘The Tragedy of the Commons’ (1968) 162 Science 1243. 5 Patricia Kameri-Mbote, Property Rights and Biodiversity Management in Kenya (ACTS Press 2002) 30.

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170 Research handbook on law, environment and the global South potential of dead capital that land is perceived to have held for a long time.6 In computing the value of land, nature conservation has, unfortunately, not been factored in. The competition for resources between humans in those landscapes and the wildlife pits conservation against people’s welfare and conservation is perceived as compounding poverty by taking land that would otherwise be available for use. Land rights are vested in various entities – individuals, communities or states granting such entities with varying levels of exclusivity as regards the usage and occupation of such lands. Being a finite and scarce resource, land has multiple values and uses that are sometimes competing or incompatible.7 For instance, wildlife conservation as a land use is invariably at odds with cultivation or infrastructural development.8 These latter uses are more economically lucrative in the short term and have greater support in national development policies than conservation.9 It is important to note that wildlife conservation is predicated on the manner in which land is held and used. The existence of wildlife on land in many instances requires the owners of the land to desist from some uses of the land, which are incompatible with wildlife conservation. For poor people sharing landscapes with wildlife, the lure of alternative land uses is real in the quest for survival.10 This is fanned by policies that overemphasize private land rights and fail to take into account the needs of fugitive resources such as wildlife for vast lands. The situation is exacerbated by population growth leading to competition for land and resources between humans and wildlife. This chapter looks at wildlife conservation and land rights. The author argues that there is no natural co-relation between secure land rights and sustainable wildlife management. The scale and level at which the rights are allocated determines the capacity of land rights to promote wildlife management as does the elimination of contradictory rules being applied which could fan unsustainable harvesting or decimation of wildlife resources. Besides there is need to ensure that those whose land hosts 6 Hernando de Soto, The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else (Basic Books 2000). For a contrarian view on the same particularly within the African and Kenyan contexts, see, Celestine Nyamu-Musembi, ‘De Soto and Land Relations in Rural Africa: Breathing Life into Dead Theories about Property Rights’ 28(8) Third World Quarterly 1457. See also, Okoth-Ogendo Hastings, ‘Formalising “Informal” Property Systems: The Problem of Land Rights Reform in Africa’ (University of Nairobi, 2008), accessed at https://learning.uonbi.ac.ke/courses/GPR203_001/document/Property_ Law_GPR216-September,_2014/Articles/formalising_the_informal.pdf. 7 Republic of Kenya, ‘The National Land Policy: Sessional Paper No 3 of 2009’ (Government Printer 2009) para 29. 8 Physical Planning Department, Ministry of Lands and Physical Planning, ‘Draft National Land Use Policy’ (Ministry of Lands and Physical Planning 2017). 9 For example, the recently completed Standard Gauge Railway Line passes through the Nairobi National Park. See Allan Olingo, ‘Lobby Group Wants More Consultations over New SGR Route’ The East African (18 September 2016), accessed at www.theeastafrican.co.ke/news/ Lobby-group-wants-more-consultations-over-new-SGR-route/2558-3384998-oyyp9x/index.htm. The southern bypass road is also set to pass through the park. 10 It is therefore little surprising that a number of landowners in areas such as Kajiado County have opted to dispose of their land in a bid to secure a bigger return on their capital. See, Billy Muiruri, ‘New Policy to Curb Sale of Maasai Community Land’ Daily Nation (13 March 2015) 4.

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Wildlife conservation and land rights in Kenya 171 wildlife are compensated for the opportunity cost associated with such hosting. This includes communities who graze their livestock alongside wildlife.11 Since wildlife conservation may not yield as high economic returns as agriculture or urbanization, there is need to provide incentives to secure buy-in of the landowners. This chapter is divided into five parts. The introduction explores the correlation between land rights, wildlife conservation and poverty. Part A investigates the question of land rights and wildlife conservation by examining the various rationales for both and demonstrating the inherent conflict. Part B critically engages with the three concepts of land rights, wildlife conservation and poverty in detail, seeking to answer the critical question as to whether wildlife conservation promotes or reduces poverty. Part C considers Kenya as a case study by assessing its land rights and wildlife conservation regimes. It also investigates the interface between land rights and wildlife conservation and addresses the poverty issue in the matrix. The last part concludes.

A. LAND RIGHTS AND WILDLIFE CONSERVATION 1. Rationale for Grant of Land Rights Land rights are granted to persons for a variety of reasons and based on various theoretical premises. Among the key justifications for grant of property rights are their role in securing contractual relations in society and the need for security of rights for particular transactions.12 Garrett Hardin justified property rights as a means for pre-empting the ‘tragedy of the commons’ which would leave resources open to all to take advantage of without any incentive to take care of them thereby leading to wastage detrimental to all resource users.13 Hardin’s view has been contested, however,14 and examples of other forms of property holding that do not lead to the ‘tragedy’ but are not individual/private have been presented.15 Indeed while Hardin emphasized the importance of individual property rights’ holding, public and community rights’ holding are

For instance, the Northern Rangelands Trust (NRT) in Laikipia County which is an umbrella organization of community conservancies enables pastoral communities to graze their animals in parks which host wildlife. 12 For instance, see Guido Calabresi and A Douglas Melamed, ‘Property Rules, Liability Rules, and Inalienability: One View of the Cathedral’ (1972) 85(6) Harvard Law Review 1089; Abraham Bell and Gideon Parchomovsky, ‘A Theory of Property’ (2005) 90 Cornell Law Review 531; Harold Demsetz, ‘Toward a Theory of Property Rights’ (1967) 67 The American Economic Review 347. 13 Hardin (n 4). 14 See, Brayn Burke, ‘Hardin Revisited: A Critical Look at Perception and the Logic of Commons’ (2001) 29(4) Human Ecology 449; Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action (New Cambridge University Press 1990). 15 These other forms of property holding include the communal land holding, see Ostrom (n 14). 11

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172 Research handbook on law, environment and the global South also important and more compatible with wildlife conservation than private holding16 or private rights.17 Michael Heller, writing three decades after Hardin, argued that there could also be what he termed as ‘tragedy of the anti-commons’ whereby all property was privately held thereby serving to exclude other persons from accessing a particular resource.18 Heller argued that this could prevent maximum utilization and exploitation of a critical resource, besides stifling innovation and development of the resource.19 Other justifications for the grant of property rights in general and land rights in particular have also emphasized individual rights. Philosophers like Aristotle justified private property on the basis of its benefits for individuals20 and the fact that it promoted freedom of human beings.21 John Locke’s labour theory is also pegged on the individual.22 His justification for private property did not factor in natural resources, which had not been worked on by humans and could not be practically removed from nature, as is the case with wildlife. He stated: Though the Earth … be common to all Men, yet every Man has a Property in his own Person. This no Body has any Right to but himself. The Labour of his Body, and the Work of his Hands, we may say, are properly his. Whatsoever then he removes out of the State that Nature hath provided, and left it in, he hath mixed his Labour with, and joined to it something that is his own, and thereby makes it his Property. It being by him removed from the common state Nature placed it in, it hath by this labour something annexed to it, that excludes the common right of other Men.23 (sic)

This proposition is problematic when applied to the rights of indigenous persons over their land in the absence of working such lands.24 Further, those who live with wildlife, which they have not expended labour on, may have difficulty laying any claims to such wildlife, as would states in whose territory wildlife is found.

Kameri-Mbote (n 5). See for example, Republic of Kenya (n 7); Constitution of Kenya 2010, art 63; Community Land Act, 2016. 18 Michael Heller, ‘The Tragedy of the Anti-Commons: Property in the Transition from Marx to Markets’ (1998) 111(3) Harvard Law Review 621. 19 ibid. 20 Aristoteles, The Politics (Stephen Everson (ed), Reprint, Cambridge University Press 1988). 21 On the other hand, Greek philosopher Plato appeared to favour common ownership of property on the basis that it promoted the pursuit of common interest. See Plato, Republic (Robin Waterfield trans, Oxford University Press 1993) 6462 b-c. 22 John Locke, Two Treatise of Government (first published 1689, Peter Laslett ed, Cambridge University Press 1988) para 42. 23 ibid para 27. 24 See for instance, Land Rights Now, ‘With Rights under Attack, Indigenous People in Brazil Renew Struggle to Protect the Amazon’ Land (2017), accessed at www.landrightsnow. org/en/news/2017/04/21/rights-under-attack-indigenous-peoples-brazil-renewed-struggle-protectamazon/. 16 17

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Wildlife conservation and land rights in Kenya 173 An interesting theory in the realm of natural resources is the first occupancy theory,25 which entitles the first human user of a particular resource in the commons or in nature to ownership of the resource.26 It was particularly instrumental in the earlier stages when man existed in the Hobbesian27 state of nature, the population was scarce and natural resources like land were abundant. Its attraction lay in the fact that acquisition of ownership under the theory did not usually necessitate some displacement of particular persons from a place or the disinheriting of another to acquire title.28 One of the drawbacks of the first occupancy theory, however, was that it would legitimize appropriation of common or natural resources by those who first made usage of them as happened during colonization. Indeed, it is this problem of the first occupancy theory that prompted Locke to advance the labour theory, adding expense of labour as a critical component in acquisition of title.29 Locke was concerned that the continued application of the first occupancy theory would be defeatist, in that there would be less than enough and good resources that would be left for the larger majority of the population that had no ownership rights.30 Grant of property rights has also been justified on the basis of the personality theory, which is premised on the ground that it enables the personal development of the individual.31 According to the personality theory as propounded by Radin,32 property forms part of human beings’ persona and enables them to construct their personalities by helping them to achieve personal development. It is worth pointing out that even in the hallowed institution of private property, private owners of land have varying rights. For instance, holders of freehold33 and leasehold34 titles have different rights. The rights that accrue to landowners are referred to as a ‘bundle of sticks’35 or entitlements and include the rights to use, dispose, exclude, possess, manage, right to security, right 25 The first occupancy theory largely reflects the first in time principle, which basically stipulates that the first to possess becomes the owner. See, Graham Oppy, ‘Property’ in Edward Craig (ed), The Shorter Routledge Encyclopaedia of Philosophy (Routledge 2005) 858. 26 Samuel Pufendorf, On the Duty of Man and Citizen According to Natural Law (first published 1673, Jame Tully ed, Cambridge University Press 1991) 84. 27 Philosopher Thomas Hobbes described the ‘Hobbesian state of nature’ as the natural state of mankind that existed before the formation of government or laws, characterized by disorder and anarchy and survival of the fittest. See generally, Thomas Hobbes, The Leviathan (first published 1651, Edwin Curley ed, Hackett Publishing 1994). 28 This is due to the fact that there were no occupants of such land to be displaced. 29 Locke (n 22) 27. 30 ibid. 31 See generally, Margaret Radin, ‘Property and Personhood’ (1982) 34 Stanford Law Review 957. 32 ibid. 33 Freehold title refers to an interest in land which, upon the death of the holder, can descend to heirs or continue in perpetuity. 34 Leasehold title is an interest in land for a defined period/duration of time, upon expiry of which the land reverts to the lessor/grantor of the lease. 35 Bundle of sticks is a metaphor used within the context of property law to denote the complexities of ownership and more specifically to connote the full extent/entitlements of private property ownership. The metaphor is credited to Justice Benjamin Cardozo, see Robert Ellickson, ‘Two Cheers for the Bundle-of-Sticks Metaphor, Three Cheers for Merrill and Smith’ (2011) 8 (3) Econ Journal Watch 215.

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174 Research handbook on law, environment and the global South to capital and to transmit among others.36 Entitlements flow from the grant of land rights, which are delineated according to the bundle encapsulated in the grant. The entitlements one has depends on the nature of the holding of the land which has evolved over time with concerns about aviation, planning and environmental conservation being allowed to fetter the rights of landowners.37 William Blackstone, for instance, appeared to consider a private owner as having full liberal ownership entailing total exclusionary rights over property over every other person.38 Blackstone described property as: that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.39

However, the full liberal ownership is less applicable in the modern day due to ecological concerns and issues of social justice.40 It is clear that property rights have developed with the individual as the focus. This limits their capacity to address problems of commonly held resources and those that require a broader array of actors thank the individual. Kenya’s land law developed within the classical mould. It privileged individuals and placed resources not capable of individual appropriation in the state as public resources. The land and resource rights of communities who shared their land with wildlife were largely ignored until the 2010 Constitution41 was promulgated and the Community Land Act 201642 passed. 2. Rationale for Wildlife Conservation Wildlife conservation has value to humans but this value is often neither recognized nor acknowledged until it is too late. Economists and ecologists43 agree on that value to 36 These have been titled as incidents of entitlements in property under the full liberal ownership concept by Honore. See, Antony Honore, ‘Ownership’ in Anthony Guest (ed), Oxford Essays in Jurisprudence (OUP 1961) 107–47. 37 See for instance, Baron Bernstein of Leigh v Skyviews and General Ltd (1978) QB 479 where Justice Griffiths referred to the cujus maxim as a ‘colourful phrase upon the lips of lawyers’ that is not as applicable in modern day. 38 We use the phrase ‘appeared to consider’ since there are serious doubts as to whether he was unaware of the qualifications to the concept of exclusivity of property. See in particular, William Blackstone, Commentary on the Laws of England (first published 1769, University of Chicago Press 1979) 44–119. 39 ibid 2. 40 For a view that the exclusivity concept with regard to property as stated by Blackstone was more mythical than real and that Blackstone was misunderstood, see Carol Rose, ‘Canons of Property Talk, or Blackstone’s Anxiety’ (1998) 108 Yale Law Journal 601, 602. 41 See generally Part II of Chapter V of the Constitution of Kenya 2010. 42 See generally Part II and Part VII of the Community Land Act, No 27 of 2016. 43 See for instance, Timothy Swanson, ‘Wildlife and Wildlands: Diversity and Development’ in Timothy Swanson and Edward Barbie (eds), Economics for the Wilds: Wildlife, Wildlands, Diversity and Development (Earthscan Publications Limited 1992); Lawrence Goulder and Donald Kennedy, ‘Valuing Nature’ in Gary Ernst (ed), Earth Sytems, Processes and Issues (Stanford University Press 2000).

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Wildlife conservation and land rights in Kenya 175 humankind. The rationales for valuing biodiversity are intertwined and include aesthetic, economic, ethical and ecological or scientific.44 The aesthetic values include the beauty of species and habitats, which provides the opportunity for a host of activities such as birdwatching, game-watching and scenery for film-making all of which have some economic benefit.45 Different biodiversity value judgements are discernible in wildlife conservation policies including the provision of food, clothing, promotion of culture, preservation of wildlife to avoid extinction and sustaining sport hunting expeditions and wildlife-based tourism.46 Wildlife-based tourism contributes to the gross domestic product of many African countries.47 A limited number of countries allow sport hunting.48 This source of income is threatened by the taking of wildlife for meat and trophies.49 While this may be necessitated by the limited sources of food particularly protein,50 a lot of the killing of wildlife in Africa is by poachers.51 For successful wildlife conservation, there is need for congruence between the rationales for granting property rights to land and the value of wildlife conservation. The focus on private/individual rights, realized primarily through wildlife-based tourism and sport hunting, remains the primary justification for wildlife conservation in many countries to date.52 The fact that wildlife interfaces with people’s land rights makes this issue pertinent to conservation and management. Owners of land hosting wildlife bear the costs with no legal basis for claiming part of the benefits accruing from wildlife or appropriating any value of wildlife.53 Thus the rights of the landowner are circumscribed to the extent that s/he has to forego some use and value of their land. This issue is critical for communities who share pastures for their livestock with wildlife54 and whose land rights were not recognized for a long time. Jeffrey Mcneely and others, Conserving The World’s Biological Diversity (IUCN 1990). cf Stephen Brush, ‘Whose Knowledge, Whose Genes, Whose Rights’ in Stephen Brush and Doreen Stabinsky (eds), Valuing Local Knowledge: Indigenous People and Intellectual Property Rights (Island Press 1996) 1, 3 (arguing that cultural and language diversity contribute to overall conservation of biodiversity and should be preserved for the aesthetic value that they add to that diversity). 46 Patrcia Kameri-Mbote, ‘Land Tenure, Land Use and Sustainability in Kenya: Towards Innovative Use of Property Rights in Wildlife Management’ (IELRC Working Paper No 2005–4, 2005) 2. 47 Moses Okello, ‘Economic Contribution, Challenges and Way Forward for Wildlife-Based Tourism in Eastern African Countries’ (2014) 3 Journal of Tourism and Hospitality 122. 48 These include Tanzania, South Africa and Zimbabwe. See Jeremy Hance, ‘Three Developing Nations Move to Ban Hunting to Protect Vanishing Wildlife’ (Mongabay, 2013), accessed at https://news.mongabay.com/2013/01/three-developing-nations-move-to-ban-huntingto-protect-vanishing-wildlife/. 49 ibid. 50 ibid. 51 For statistics on poaching in Africa, see Mitch Merry, ‘The War against Poaching in 2016’ (Endangered Species Coalition, 2016), accessed at www.endangered.org/the-war-againstpoaching-in-2016/. 52 See William-Georges Crosmary, ‘The Assessment of the Role of Trophy Hunting in Wildlife Conservation’ (2015) 18 Animal Conservation 136, 137. 53 ibid. 54 Most of the pastoralist communities in Laikipia County of Kenya such as the Maasai and the Samburu co-share grazing fields with wildlife through the community conservation model. 44 45

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176 Research handbook on law, environment and the global South The rights accruing to owners of land with wildlife have no rights to the animals because wildlife is a fugitive resource requiring expansive land owned by the public, private and community entities.55 It is therefore not amenable to private ownership and remains the property of the state, which holds it in trust for the citizenry.56 3. Congruences and Incongruences It is clear from the foregoing that the relationship between wildlife conservation and land rights’ holding is not tidy and there are areas where they are bound to conflict. This is particularly so where individuals or communities who desire to put their land to uses that generate the highest economic benefits to them hold land rights.57 While wildlife conservation can be an economically beneficial activity, two factors militate against its ability to compete as a high value land use. One is the fact that wildlife vests in the state and the second is that conservation is a public good58 whose benefits are enjoyed across the board. Consequently, there will always be costs that a landowner will bear for hosting wildlife that will not be directly paid for.59 And therein lies the incongruence between the grant of land rights and wildlife conservation. The areas that host most wildlife also host pastoralists and farmers.60 In many of the pastoralist areas, communities whose rights are customary and were protected through laborious and expensive processes of registering group ranches61 hold the land. In areas such as Amboseli and Narok, tenure to land has been rapidly changing from the group to individual holdings.62 Conversion of tenure has been fuelled by economic factors such as the higher returns from agriculture compared to livestock keeping and wildlife. The possibility of selling land or leasing it at a value higher than the returns is very appealing to landowners. In some instances, landowners converted their land to an individual holding as a defensive measure against the insecurity of community tenure. The magnitude of the conversions has raised concerns about the application of the community land law under the 2010 Constitution.63 This goes contrary to the maxim Cujus est solum ejus usque ad coelum at ad inferos. See Patricia Kameri-Mbote and others, Ours by Right: Law, Politics and Realities of Community Property in Kenya (Strathmore University Press 2013). 56 Kameri-Mbote (n 46) 2. 57 ibid 14. 58 ibid. Wildlife conservation has traditionally been viewed as an exclusive state function owing to the colonial laws and policies that Kenya inherited. 59 ibid. 60 For instance, Samburu, Narok, Laikipia, Amboseli, Mount Kenya and Aberdare. 61 Through the repealed Land (Group Representatives) Act Cap 287 of the Laws of Kenya. See, Collins Odote, ‘The Dawn of Uhuru: Implications of Constitutional Recognition of Communal Land Rights in Pastoral Areas of Kenya’ (2013) 17 (1) Nomadic Peoples 87. 62 See, Simon Seno and Salaton Tome, ‘Socioeconomic and Ecological Viability of Pastoralism in Loitoktok District, Southern Kenya’ (2013) 17 Nomadic Peoples 66, 75. 63 Celestine Nyamu-Musembi and Patricia Kameri-Mbote, ‘Mobility, Marginality and Tenure Transformation in Kenya: Explorations of Community Property Rights in Law and Practice’ (2013) 17 Nomadic Peoples 5. 55

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Wildlife conservation and land rights in Kenya 177 The Constitution of Kenya 2010 radically altered the land law terrain by redefining land categories and classifying them into: private, public and community land. Article 61 of the Constitution provides that all land in Kenya belongs to the people of Kenya collectively as a nation, communities and as individuals. Article 61(2) classifies all land in Kenya as public, community and private. Wildlife is found in all these classifications. Article 66 of the Constitution mandates the state ‘to regulate the use of any land or any interest in or right over any land’ including land use planning. Protected areas that constitute national parks, national reserves and gazetted forests are public land but as pointed out above, public land alone cannot sustain wildlife64 and most of the wildlife in Kenya inhabits outside these national protected areas.65 This calls for innovative ways of managing land taking wildlife habitat needs and the needs of individual and community landowners into account. It is noteworthy that most community lands that host wildlife are also among the poorest areas.66 The respective land law regimes present unique problems as far as wildlife conservation is concerned; and these need to be addressed if land rights are to be supportive of conservation. With market forces driving up land values, the choice between wildlife conservation and other land uses can be a hard choice. There have, however, been innovations that have been developed and applied to promote wildlife conservation on private and community land such as the use of environmental easements.67 In this context, wildlife easements are used to restrict the rights of a landowner to put land to uses that are inimical to wildlife management.68 While easements were developed under common law,69 they have been included in Kenya’s land rights70 and environmental71 regimes. Environmental easements are particularly relevant within the context of private land regimes and can serve as a useful tool for conserving wildlife particularly outside protected areas.72 This has been very useful in the establishment of wildlife conservancies on private lands.73 Significantly, the Constitution requires the state to ensure sustainable exploitation, utilization, management and conservation of the environment and natural resources and 64 Rupert Watson and others, ‘Expanding Options for Habitat Conservation Outside Protected Areas in Kenya: The Use of Environmental Easements’ (2010) (African Wildlife Foundation, Techinal Papers No 2, 2010) 8, accessed at www.awf.org/sites/default/files/media/ Resources/Books and Papers/AWF_Env_Easement_Technical_Paper_2_March_2010.pdf. 65 See Kenya Wildlife Service, ‘Overview’ (2016), accessed at www.kws.go.ke/content/ overview-0. 66 It is a little surprising that pastoralist communities such as Maasais in Kajiados have been selling off land. See, Muiruri (n 10). 67 Watson and others (n 64). 68 ibid. 69 ibid. 70 See Land Registration Act 2012, Part X. 71 See Environment Management and Coordination Act, 1999, s 6; Wildlife Management and Conservation Act, 2013, s 68. 72 Watson and others (n 64) 9. 73 For instance, the Northern Rangelands Trust (NRT) is a community-based organization that enables communities to run conservancies allowing pastoralist communities to graze on the land while allowing for wildlife conservation on the same land.

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178 Research handbook on law, environment and the global South the equitable sharing of the accruing benefits.74 Further, it resources the state to protect the indigenous knowledge, biodiversity and genetic resources of communities.75 These are enabling provisions for harnessing community knowledge of ecosystems and habitat that are shared with wildlife. There have been efforts to address the incongruence and conflict between private and communal land rights by ensuring that the owners benefit from wildlife. The aim is to provide incentives to private and communal landowners to conserve wildlife thus complementing the activities of the state.76 One of these ways is through community involvement and sharing benefits such as the proceeds accruing from wildlife-based tourism.77 Another way is through allowing private landowners who have land to keep wildlife within their lands through licensing and thereby obtain an economic benefit from the same, which is shared with the state.78 It is important to point out that wildlife needs land as habitat and public land is insufficient to host all the wildlife.79

B. RELATIONSHIP BETWEEN LAND RIGHTS, WILDLIFE CONSERVATION AND POVERTY IN KENYA There are linkages between land rights, wildlife conservation and poverty the world over, and particularly in Kenya. This link derives from the fact that most poor people living in rural areas depend on nature for their livelihoods.80 Despite the migration of people from rural to urban areas in search of better economic opportunities, many people in Kenya, for instance, still live in the rural areas81 with limited economic opportunities. They rely on biodiversity and related ecosystems to enable them to access basic goods and services.82 For instance, forests, which form part of the wildlife (flora), facilitate various activities that predominantly feature for the rural poor such as gathering of firewood, hunting, charcoal preparation and the access of medicinal products and fruits.83 Many forests also host wildlife and people’s livelihood in forests consequently compete with the needs of wildlife. Similarly, the coastal systems and Constitution of Kenya 2010, Article 69(1)(a). ibid, Article 69(1)(c). 76 Watson and others (n 64). 77 Incentives and benefit sharing as a wildlife conservation model was introduced at sections 70, 80 and 81 of the Wildlife Management and Conservation Act, 2013. 78 See Wildlife Management and Conservation Act, 2013, s 79 (which provides for licensing). 79 Nearly 70 per cent of wildlife in Kenya is hosted in non-public lands. See, Kameri-Mbote (n 46) 12. 80 Raphal Bille and others, ‘Biodiversity Conservation and Poverty Alleviation: A Way out of the Deadlock?’ (2012) 5(1) S.A.P.I.E.N.S 4. 81 Around 75 per cent of the population in Kenya lives in the rural areas, Physical Planning Department (n 8) 13. See also, Kenya National Bureau of Statistics, Economic Survey 2016 (Kenya National Bureau of Statistics 2016). 82 See, William Cavendish, ‘Empirical Regularities in the Poverty-Environment Relationship of Rural Households: Evidence from Zimbabwe’ (2000) 28(11) World Development 1979. 83 ibid. 74 75

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Wildlife conservation and land rights in Kenya 179 offshore areas promote activities such as fishing, gathering of firewood particularly from the mangrove trees, utilization of fresh water resources and collection of building materials, among others.84 While landowners in some rural areas derive benefits from agricultural activities including livestock keeping, there are areas that are not suitable for agriculture and where livestock coexists with wildlife making their survival interdependent with wildlife.85 Land rights for their part are interrelated with wildlife conservation and poverty to the extent that wildlife exists on land that also hosts people. The theme emerging from the foregoing is that biodiversity generally, and wildlife specifically, is a critical resource for poor people whose livelihoods are intertwined with their ecosystems. They are affected by the degradation of natural resources and wildlife.86 The loss of wildlife and their natural habitats exposes the rural poor to external shocks and fuels poverty by taking away the resources they mostly depend on. It also increases their vulnerability, weakens their resilience and makes it difficult for them to adapt to change.87 From an economic perspective, there are also costs and benefits associated with wildlife management that are usually ignored when decisions on conservation of wildlife vis à vis putting land to alternative uses are made.88 In most instances, value and primacy is placed on the tangible benefits of wildlife in the short term such as increased revenue through tourism or the opportunity cost of wildlife conservation that would be gained by putting such land into alternative use such as farming.89 Rarely is resource sustainability that demands taking into account the needs of both current and future generations taken into consideration.90 The interaction between the wildlife and the people sharing habitats with it and the overall costs of harvesting wildlife on the sustainability of the land and natural resources in the long term are ignored, particularly in cases where there are insecure property rights. This is because those who harvest wildlife resources have little or no stake in the wildlife beyond the instant exploitation, as they are rarely the ones who share landscapes with the wildlife. This lack of connection with the resources leads to devaluation of wildlife fanning its overexploitation.91 The question that then needs to be answered at this juncture is whether wildlife conservation contributes to the alleviation of poverty or fuelling of poverty. The ibid. ibid. 86 Getachew Mamo and others, ‘Economic Dependence on Forest Resources: A Case from Dendi District, Ethiopia’ (2007) 9(8) Forest Policy and Economics 916. 87 ibid. 88 Erwin Bulte and Timothy Swanson, ‘Economic Incentives and Wildlife Conservation’ (ResearchGate, 2003), accessed at www.researchgate.net/publication/40126664_Economic_ Incentives_and_Wildlife_Conservation_online. 89 ibid. 90 Sustainability refers to the use of the available resources in a manner that ensures intergenerational and intragenerational equity by avoiding depletion or overexploitation. For more insights of the concept, see Edith Brown Weiss, In Fairness to Future Generations: International Law, Common Patrimony, and Intergenerational Equity (United Nations University 1989). 91 ibid. 84 85

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180 Research handbook on law, environment and the global South foregoing analysis has demonstrated that wildlife constitutes the natural heritage and wealth for the society both in terms of earning revenue through tourism, providing a direct resource in the form of food and other basic needs particularly to the rural poor in developing countries and as an integral part of a functioning ecosystem. We have noted above that the degradation of natural resources takes away critical livelihood resources from the poor and makes them susceptible to various external shocks which fan poverty. Wildlife conservation can therefore contribute to the alleviation of poverty where revenues accruing from alternative land uses such as cultivation and livestock keeping have been on a decline in recent years and wildlife conservation is integrated into rural people’s lives.92 However, where wildlife conservation excludes the values that the poor associate with conservation and remains the preserve of the state with the poor expected to bear the costs of conservation without reaping any benefits, it can make them poorer. The poor lose the most and pay the most for both wildlife conservation and decimation.

C. WILDLIFE, LAND AND RESOURCE GOVERNANCE Kenya boasts a varied diversity of flora and fauna.93 Kenya has over 7,800 animal and plant species and various other species that constitute wildlife, counting as a key revenue earner for government.94 Of the total land acreage in Kenya, community land is the largest constituting nearly 66 per cent of the total land mass while public land is 12 per cent with the remaining 22 per cent being private land.95 Given that community land forms the bulk of the total land mass in Kenya, it then follows that it is a crucial resource in terms of providing a habitat and migratory routes for wildlife. In another sense, community land alongside private land, which constitutes more than 85 per cent of the total land mass in Kenya, must be used if proper wildlife management is to be achieved. Most community lands in Kenya are in the arid and semi-arid parts of the country and lag behind in terms of economic growth. Many of these lands have in recent times been earmarked for large infrastructural projects, which are likely to affect both communities and wildlife.96 Moreover, while Article 62 of the Constitution envisages a total forest cover of 10 per cent of the total land mass in Kenya, only 6.3 per cent of the land mass at present is ibid. Kihika Kiambi and Monica Opole, ‘Promoting Traditional Trees and Food Plants in Kenya’ in David Cooper and others (eds), Growing Diversity: Genetic Resources and Local Food Security (Practical 1992) 53. 94 See, World Conservation Monitoring Centre, Kenya: Conservation of Biological Diversity and Forest Ecosystems (United Nations Environment Programme-World Conservation Monitoring Centre 1998) 5. 95 Samuel Kimeu and Francis Kairu, ‘Securing Tenure for Land Belonging to Public Schools: Experiences, Lessons and Insights from Transparency International Kenya’s Land and Corruption in Africa Project’ (World Bank Land Conference on Land and Poverty, Washington DC, 14–18 March 2016), accessed at https://tikenya.org/wp-content/uploads/2017/06/2016world-bank-conference-on-land-and-poverty-the-world-bank-kimeu-samuel.pdf. 96 For instance, the Isiolo resort city and the Standard Gauge Railway project. 92 93

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Wildlife conservation and land rights in Kenya 181 under forest.97 This means that Kenya still lags behind in terms of meeting the constitutionally and internationally recognized standard on forest cover, which also forms a key habitat for wildlife. Key challenges in Kenya’s conservation arena are: poaching; land use competition that pits communities against wildlife conservation authorities; and human-wildlife conflicts occasioned by the encroachment of wildlife and humans on each other’s terrain. Increasing urbanization is also a major factor in these threats in Kenya as people move from the rural areas to urban areas in search of employment. For instance, between 2010 and 2015, there was an urban population growth rate of 4.4 per cent in Kenya.98 In 2013, the total urban population comprised a quarter (25 per cent) of the total population in the country.99 Increased urbanization has necessitated destruction of ecological zones to construct houses for settlement and exacerbated human-wildlife conflicts. Increased urbanization has contributed to fragmentation of land and conversion of what was formerly agricultural land into residential and commercial uses, thus creating conflict with other land uses such as agriculture and wildlife conservation.100 Important also is the new governance architecture that was ushered in by the Constitution of Kenya 2010, which features devolution and some sharing of functions between the national and the county governments. This is a fundamental shift from the centralized approach that informed wildlife management in Kenya for a long time, under the 1976 Wildlife (Conservation and Management) Act.101 While protection of the environment and natural resources and specifically the protection of animals and wildlife is a function of the national government,102 there are interfaces with the county governments. The latter are expected to implement specific national government policies on natural resources and the environment.103 Counties are also required to develop County Integrated Development Plans, which can facilitate sustainable management of wildlife.104 The interface is further buttressed by the values in Articles 10 and 60 of the Constitution, which include public participation and community involvement. Participation and involvement are best realized at the local levels, which are within counties and have implications for devolution of wildlife management that has been the concern for African countries since the 1980s.105 Devolution has fundamental implications not only on land ownership and use, but also on wildlife conservation and management in general. It radically departs from the previous situation where wildlife management was centralized, alienating wildlife See Physical Planning Department (n 8) 21. ibid 13. 99 ibid. This figure is projected to have increased since 2013. 100 ibid 21. 101 Patricia Kameri-Mbote, ‘Aligning Sectoral Wildlife Law to the Framework Environmental Law’ in Charles Okidi and others (eds), Environmental Governance in Kenya: Implementing the Framework Law (East African Educational Publishers 2008) 291. 102 Constitution of Kenya 2010, Fourth Schedule Part I, Paragraph 22. 103 ibid Fourth Schedule Part II, Paragraph 10. 104 ibid Article 220(2). 105 Dilys Roe and others, ‘Evaluating Eden: Exploring the Myths and Realities of Community-Based Wildlife Management’ (IIED, Evaluating Eden Series No 8, 2000) 3. 97 98

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182 Research handbook on law, environment and the global South resources from local communities.106 Indeed devolution has the potential to enlist community support for conservation107 as it enhances community participation and promotes wildlife conservation particularly outside protected areas.108 The engagement of communities is critical to framing incentives in conservation, to facilitate communities’ availing land for conservation and to provide a framework for involving them in dealing with poaching. This is in line with the chief objects of devolution, namely the enhancement of good governance and public participation at the community level.109 Communities are then empowered to monitor and check abuses of wildlife and to participate in land use planning and zoning of land in a manner that is compatible with proper wildlife management.110 The Wildlife Management and Conservation Act, No. 47 of 2013 and the recently enacted Community Land Act 2016 are steps forward in terms of enhancing devolution of wildlife management and giving effect to the constitutional principles. Conservation in Kenya has to be seen within the context of the country’s Vision 2030 – the economic blueprint that seeks to transform Kenya to a middle-income economy by 2030. Infrastructure development is a key component of this Vision. Infrastructure development depends on the availability of land. Many infrastructure projects have pitted communities and wildlife conservation organizations against the government as the former resist compulsory acquisition of their lands.111 Infrastructure projects such as the Standard Gauge Railway, which runs through Nairobi National Park,112 and the Isiolo resort city with an international airport to enhance tourism within the region113 have impacts on wildlife conservation. The developments are also likely to lead to the destruction of the very resource they are seeking to enhance access to as habitat is destroyed and opened up for settlement. It is important to note that poaching continues to be one of the greatest threats to wildlife in Kenya114 and will likely be further fuelled Kameri-Mbote (n 5) 171. For a characterization of the benefits of decentralizing wildlife management, see Maria Cirelli, Legal Trends in Wildlife Management (FAO 2002) 58. 108 For further insights on the consequences of devolution of wildlife management, see Joyce Poole and Richard Leakey, ‘Kenya’ in Ernts Lutz and Julian Caldecott (eds), Decentralisation and Biodiversity Conservation (World Bank 1996) 55, 58. 109 Dele Olowu and James Wunsch (eds), Local Governance in Africa: The Challenges of Democratic Decentralization (Lynne Reinner Publishers 2004) 2; See also Constitution of Kenya 2010, art 174. 110 Patricia Kameri-Mbote, ‘Innovative Approaches in Using Property Rights for Wildlife Management in Kenya’ (2010) 13 Waseda Proceedings of Comparative Law 158, 184. 111 For instance, a conservation lobby group named Kenya Coalition for Wildlife Conservation and Management sued the government against the intended construction of the Standard Gauge Railway through Nairobi National Park, see Abiud Ochieng, ‘Tribunal Halts NairobiNaivasha SGR Construction’ Daily Nation (19 September 2016) 8. 112 ibid. 113 Kenya News Agency, ‘Six Thousand Acres for Isiolo Resort City’ Daily Nation (5 January 2012), accessed at www.nation.co.ke/news/Six-thousand-acres-for-Isiolo-resort-city/ 1056-1300682-12oqhcrz/index.html. 114 Adam Vaughan, ‘Kenya’s New Front in Poaching Battle: “The Future is in the Hands of Our Communities”’ The Guardian (30 May 2016), accessed at www.theguardian.com/ environment/2016/may/30/kenya-poaching-elephant-ivory-rhino-horn-future-communities. 106 107

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Wildlife conservation and land rights in Kenya 183 by the opening up of conservation areas to influxes of human population. It is within this context115 that the Wildlife Management and Conservation Act 2013 enhanced the penalties for poaching.116 1. Land Rights Regime There are different categorizations of land in Kenya, which include common/state, collective and individual categories of land. Land that falls under the common or state category is that which belongs to the state, also known as public land.117 The collective land category refers to all that land owned by a particular community as a whole and there may be rules as to usage of such collective good. This is what is classified as community land under the law.118 The individual land category on the other hand is what essentially translates to private land under the law since it is private individuals upon whom the rights to land vest.119 The Constitution of Kenya 2010 radically altered the land law terrain by redefining land categories and classifying them into: private, public and community land. Article 61 of the Constitution provides that all land in Kenya belongs to the people of Kenya collectively as a nation, communities and individuals. Article 61(2) classifies all land in Kenya as public, community and private. Wildlife is found in all these classifications. Protected areas that constitute national parks, national reserves and gazetted forests are public land but, as pointed out above, public land alone cannot sustain wildlife120 and most of the wildlife in Kenya inhabits land outside these national protected areas.121 This calls for innovative ways of managing land taking wildlife habitat needs and the needs of individual and community landowners into account. It is noteworthy that most community lands that host wildlife are also among the poorest areas. The Community Land Act provides for the recognition, protection and registration of community land. It allows communities to hold land rights as freehold, leasehold or under customary tenure.122 The Act is categorical that such rights are indefeasible other than through law. It remains to be seen how the provisions of this Act will impact on wildlife conservation. Communities are required to consider any conservation, environmental or heritage issues relevant to the development, management or use of the land.123 The Act also See generally, Christian Nelleman and others (eds), The Environmental Crime Crisis: Threats to Sustainable Development from Illegal Exploitation and Trade in Wildlife and Forest Resources (United Nations Environment Programme 2014) 45; Sam Weru, Wildlife Protection and Trafficking Assessment in Kenya: Drivers and Trends of Transnational Wildlife Crime in Kenya and Its Role as a Transit Point for Trafficked Species in East Africa (TRAFFIC 2016) 30. 116 Some of the penalties under the statute include life imprisonment for poachers and fines of up to Ksh. 20 million, section 92 of the Act. 117 Constitution of Kenya 2010, art 62. 118 ibid art 63 and Community Land Act 2016. 119 Constitution of Kenya 2010, art 64. 120 Watson and others (n 64). 121 Kenya Wildlife Service (n 65). 122 Community Land Act, 2016, s 4. 123 ibid s 19(2)(a). 115

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184 Research handbook on law, environment and the global South provides for the conservation of natural resources on community land.124 In doing so, they are required to abide by relevant national laws, policies and standards. If effectively implemented, these measures will bridge the divide between land rights holding and conservation. They can also stem the impoverishment of communities by conservation that excludes them. 2. Regime of Wildlife Conservation Wildlife conservation in Kenya is governed by various laws which include the Constitution of Kenya 2010 and the principal statute, the Wildlife Management and Conservation Act, No. 47 of 2013. Other laws that constitute the wildlife conservation legal regime are mainly sectoral laws that govern specific sectors that have an impact on wildlife. Such laws include the Forest Conservation and Management Act 2016, the framework environmental law – the Environment Management and Coordination Act 1999 – and the various land use planning laws. Article 69 of the 2010 Constitution provides for the protection of biodiversity and natural resources, which includes wildlife, by the state. This constitutional provision gives legal and constitutional mandate to the state to put in place laws, measures and policies to ensure the sustainable exploitation, utilization, management and conservation of the environment and natural resources. It is in this light that the Wildlife Management and Conservation Act 2013 should be viewed. In addition, Article 69(1)b of the Constitution places an obligation on the state to ensure that there is at least a 10 per cent forest tree cover of the land area in Kenya. This provision is essential for wildlife conservation since forests form a large part of wildlife habitat. Article 69(1)h is also relevant in as far as it enjoins the state to ensure that it utilizes the environment and natural resources for the benefit of the people of Kenya. Further, the devolved form of governance detailed in Chapter 11 of the Constitution has serious implications for wildlife conservation and management. This is because national parks and game reserves that provide a home to wildlife as well as forests are located in various counties across the country and the county governments will, of necessity, be important partners. Cooperation between national and county governments and the Kenya Wildlife Service (KWS) – the body mandated in law with wildlife management – is crucial to ensure proper management of wildlife. In particular, the Fourth Schedule of the Constitution, which distributes functions between the national government and the county governments, vests the function of tourism policy and development in the national government.125 Paragraph 22 of the Fourth Schedule (Part 1) lists the protection of the environment and natural resources including fishing, hunting, gathering and protection of animals and wildlife as a key function of the national government. On the other hand, paragraph 4(i) of part 2 of the Fourth Schedule vests the county governments with the function of taking care of public entertainment and amenities including county parks while paragraph 7(d) charges the counties with the function of trade development and regulation including local tourism. Paragraph 10 of the same part 2 of the Fourth Schedule vests the county governments 124 125

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ibid s 20. See for example, Constitution of Kenya 2010, First Schedule Part 1, para 35.

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Wildlife conservation and land rights in Kenya 185 with the mandate of implementing specific national government policies on environment conservation and natural resources including forestry. The import of this provision is that the county governments may be required to implement specific policies and projects by the national government that are relevant for wildlife management and this underscores the importance of cooperation and collaboration between the two levels of government. The Environment Management and Coordination Act (EMCA) 1999 is the framework law for environmental management. Being overarching and cross-sectoral in nature, it has provisions that impact on wildlife conservation in general. For instance, under EMCA, there is a requirement for the conduct of an Environmental Impact Assessment (EIA) before any activity with potential negative consequences on the environment may be carried out.126 For instance, before the establishment of a protected area such as a national park or a game reserve, an environmental audit and a licence issued by the relevant authority (National Environmental Management Authority) is required.127 The law further designates KWS as the lead agency for matters relating to wildlife.128 Land use planning laws also have an impact on wildlife conservation as they direct the usage and utilization of land in different parts of the country. Their potency lies in their ability to guide natural resource management and can lead to sustainable or unsustainable practices depending on how they are framed. Kenya’s land use policy was only concluded in 2016.129 This implies that land use has been haphazardly planned with no proper zoning according to ecological regions. The Forests Act, Cap 385, provides for the protection of forests, which also happen to be the single most important habitat for wildlife. The Minister (now Cabinet Secretary) responsible is empowered under the Act to declare any forest area a natural reserve in a bid to help conserve wildlife (flora and fauna). The law proscribes the killing of wildlife animals within such natural reserves.130 It also proscribes logging,131 which destroys the natural habitat for wildlife and encourages negative human activities that disrupt wildlife habitat. The relationship between human destruction of and encroachment on forests and other wildlife habitats has sometimes pitted poor people against natural resource managers. It is, however, important to point out that while poverty diminishes the choices of the poor trying to eke out a living on degraded lands, most illegal loggers and poachers are not the poor.132

Environmental Management and Coordination Act, 1999, s 58. ibid. 128 Wildlife Management and Conservation Act, 2013, s 6. 129 See, Physical Planning Department (n 8). 130 ibid. 131 Logging refers to the illegal felling of trees in protected areas such as forests. 132 Some of the persons that have been arrested or prosecuted in Kenya in connection with poaching are wealthy individuals, frequently foreigners. See for instance, Raphael Mwadime, ‘KWS Accuses the Rich of Poaching’ The Star (6 September 2013) 14. 126 127

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186 Research handbook on law, environment and the global South 3. Interface between Land Rights and Wildlife As noted already, there is a correlation between land rights and wildlife. Land law regimes have implications for wildlife conservation. The land rights’ regimes in Kenya reflect the categorizations of land under the Constitution – private, community and public. Under private ownership, land rights vest in private individuals and host wildlife on their lands. The challenge is for private lands to host wildlife; they need to be expansive and, in most cases, there is a need to cooperate with neighbouring landowners to provide enough range for the wildlife.133 Wildlife on community land usually shares land with the communities and their livestock while wildlife on public land resides in protected areas like national parks and game reserves. Particular problems arise with respect to these land rights’ regimes and are partly owing to the special nature of wildlife. To begin with, wildlife is a ‘fugitive resource’, which is not easily associated with a particular user as owner in its in situ condition.134 Some wildlife species traverse large areas of land even across country borders.135 It is not easy to align such species with a specific landowner. Indeed, wildlife (fauna and flora) cannot be easily contained within certain boundaries or geographical territories such as national parks and game reserves. Instances of wild animals escaping from their natural habitat and being found on people’s properties or on the streets are common.136 There are therefore incongruences between ecosystems and property rights’ systems in terms of delineation of boundaries. These present difficulties for wildlife management, as wildlife is not easily contained within the confines of property. It is indeed also not uncommon to find particular wildlife species at the interface of their natural habitat or property parcels and some species of wildlife move seasonally in search of water and pasture.137 Drawing from classical land rights theories, wildlife should belong to whoever owns the land on which it resides. This is, however, not the position. Wildlife, wherever found, is owned by the state and the national government is tasked with overseeing its management. This implies that individuals and even communities have no ownership rights over wildlife, even when it is located on their land.138 The fact that wildlife is found on private and communal lands yet the owners have no direct benefit over the See (n 11). Kameri-Mbote (n 5) 29. 135 Good examples are the wildebeests and elephants in Mara Serengeti. 136 Kevin Sieff, ‘The Lions of Nairobi National Park Are Escaping to the Suburbs’ The Washington Post (3 September 2016), accessed at www.washingtonpost.com/world/the-lions-ofnairobi-national-park-are-escaping-to-the-suburbs/2016/09/03/a87563fa-686f-11e6-91cb-ecb541 8830e9_story.html. 137 Some species of wildlife such as the wildebeests keep on migrating to other areas. Each year, around 1.5 million wildebeest, zebra and some antelope species make a circular tour between Maasai Mara in Kenya and Serengeti National Park in Tanzania. See, Kenya Information Guide, ‘Kenya Wildebeest Migration’ (undated), accessed at www.kenya-information-guide.com/wilde beest-migration.html. 138 For arguments that individuals and communities ought to be given proprietary rights over wildlife so as to promote better wildlife conservation, see Siri Eriksen, ‘Land Tenure and Wildlife Management’ in Jackton Ojwang and Calestous Juma (eds), In Land We Trust: Environment, Private Property and Constitutional Change (ACTS press 1996) 199. 133 134

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Wildlife conservation and land rights in Kenya 187 same is akin to an appropriation of their land rights.139 Herein lies the tension between land rights and wildlife conservation. Such a system loses sight of the fundamental fact that various uses to which land may be put normally interact with the ecosystem. For instance, national parks are located in areas hosting both pastoralists and farmers.140 Wildlife conservation in protected areas therefore affects and hampers other land uses. The potential for conflict among the various land uses and the interests of the landowner as against those of the state is a reality. The other problem with the concept of exclusive state ownership of wildlife is that it ignores the reality that wildlife is a fugitive resource that traverses land owned by different entities and that most wildlife is situated outside of the national parks and game reserves that are owned by the state.141 There are various instances where wildlife is located in private lands and community lands.142 Consequently, ownership is inadequate by itself, because the owner has no possession of all wildlife at any given point. In addition, the exclusive state ownership of wildlife in protected areas presents the danger that such areas will suffer degradation due to overpopulation to the detriment of the wildlife, besides creating equity problems and possibly exacerbating poverty.143 This has, however, been mitigated by granting landowners some wildlife use rights.144 Given that wildlife knows no geographical boundaries and is found inside and outside protected areas, it is amenable to capture by individuals and groups, thus compounding efforts at wildlife conservation. This buttresses the need for incentives for landowners to let wildlife use their land.145 In addition to providing incentives to landowners, there is further the need to take into account the ecosystems surrounding national parks and game reserves (protected areas) since there are interdependences between them. While protected areas provide habitats to enable conservation, their limited size fails to consider the needs of wildlife such as dispersal and migration. The fact that migratory corridors are outside protected areas is evidence that public protected areas offer an incomplete ecosystem for the survival of wildlife. Ecosystems comprise land owned by different persons and communities and may traverse borders as pointed out above. For instance, the Mara Serengeti ecosystem traverses Kenya and Tanzania. The Maasai Mara Game Reserve in Kenya and Serengeti National Park in For views on how the subsisting private and communal property rights system may be reworked and rethought as to enhance wildlife conservation, see Kameri-Mbote (n 5) 18–19. 140 A good example is the Maasai community which lives in the Mara area and borders both the Amboseli and the Nairobi National Parks. See, Nathalie Chalifour, Land Use Law for Sustainable Development (Cambridge University Press 2007) 149. 141 For instance, over 70 per cent of wildlife in Kenya is located outside protected areas like national parks and game reserves, see David Western, ‘Conservation without Parks: Wildlife in Rural Landscapes’ in David Western and Mary Pearl (eds), Conservation for the Twenty-First Century (Oxford University Press 1989) 158. 142 Peter Raven, ‘Wildlife Conservation in Kenya’ (1998) 210 Science 1510. 143 Todd Olson, ‘Biodiversity and Private Property: Conflict or Opportunity’ in William Snape (ed), Biodiversity and the Law (Island Press 1996) 69. 144 See Wildlife Management and Conservation Act, 2013, ss 80 and 81. 145 Section 70 of the Wildlife Management and Conservation Act, 2013 provides for various incentives including the right to practise wildlife conservation as a gainful form of land use. Section 76(5) mandates investors to provide benefits to local communities through various options including infrastructure, education and other social amenities. 139

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188 Research handbook on law, environment and the global South Northern Tanzania have wildebeests migrating between them annually.146 In the Mara region, land use has changed to plantation farming while Serengeti National Park is a fully protected area by virtue of it being a World Heritage site.147 The management of migratory routes by different jurisdictions and using varying land rights regimes has affected wildlife and illustrates the problem encountered in managing wildlife in incomplete ecosystems.148 Relatedly, some of the protected areas, owing to their limited size, are incapable of hosting some wildlife especially the large herbivores and mammals.149 The Amboseli national park is a good illustration of changes in land use around the park.150 4. The Poverty Issue in the Equation Poverty remains an intractable problem in most developing countries and manifests itself in the land rights and environment matrix. As argued earlier in this chapter, there is a correlation between land rights, environment and poverty since land rights define the boundaries of what owners may do with their land thereby affecting efforts at environmental conservation. Land and natural resources form critical resources especially for the rural poor who depend on them for their livelihood. This means that the land rights’ regime and the measures of environmental conservation taken by a particular nation determine the extent of poverty levels.151 In order to reduce poverty and improve the living standards of people, a nation must recognize the link between land rights and wildlife conservation, and seek to balance the two in a manner that reduces incidences and effects of poverty. A legal regime that seeks to take care of owners of land only, particularly private and communal land owners, without considering the need to conserve wildlife will make it difficult for wildlife to survive, yet wildlife constitutes a critical resource for the poor. Further, the decimation of wildlife populations leads to decreased revenues to government through wildlife tourism thereby reducing the funds available to government to invest in poverty reduction programmes. The question as to whether poverty alleviation and biodiversity or wildlife conservation may be achieved jointly is beyond contest. Wildlife conservation that does not alienate landowners, particularly communities, can alleviate rather than fuel poverty.152 ARE Sinclair and Peter Arcese (eds), Serengeti II: Dynamics, Management and Conservation of an Ecosystem (University of Chicago Press 1995) 46. 147 Serengeti National Park is listed by the United Nations Educational, Scientific and Cultural Organization (UNESCO) as a World Heritage site. See, UNESCO, ‘Serengeti National Park’, accessed at http://whc.unesco.org/en/list/156/documents. 148 Kameri-Mbote (n 5) 13. 149 Ian Parker, ‘The Tsavo Story: An Ecological Case History’ in Norman Owen-Smith (ed), Management of Large Mammals in African Conservation Areas: Proceedings of a Symposium Held in Pretoria South Africa, 29–30 April 1982 (HAUM 1983) 37–49. 150 Kameri-Mbote (n 5) 13. 151 This derives from the fact that a vast majority of the population in rural areas depend on natural resources in the environment for survival or for income. 152 For an excellent account of an empirical study of the linkage between biodiversity conservation and poverty reduction in Africa, see Chris Sandbrook and Dilys Roe, Linking 146

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Wildlife conservation and land rights in Kenya 189

CONCLUSION The debate as to whether poverty alleviation and wildlife conservation are mutually exclusive has never abated.153 We do not anticipate that it will, in the near future. This notwithstanding, this chapter has sketched the link between land rights, environment and poverty. We have shown that these factors influence each other in the wider matrix. We have also illustrated that, in developing countries such as Kenya, wildlife conservation alleviates rather than fuels poverty, since most of the wildlife constitutes critical resources for the majority of the rural poor. In addition, wildlife conservation leads to increased revenue for government through tourism, thus increasing the monies available to government for implementing poverty reduction programmes. This chapter has also assessed the mechanisms that have been employed in some of the land rights regimes to promote wildlife conservation, such as environmental easements and land use planning and management. It has explored the regime of wildlife conservation in Kenya and the interface between land rights and wildlife conservation. The chapter has further explored the problems presented by infrastructural development and other competing land uses and their impact on wildlife conservation. In the final analysis, this chapter has demonstrated that there exists no linkage between secure land rights in any property law regime on the one hand, and wildlife conservation on the other. The challenge is to ensure that whatever land rights regime is adopted, regard is had to facilitating wildlife conservation through providing incentives for landowners to avail habitat for wildlife.

Conservation and Poverty Alleviation: The Case of Great Apes – An Overview of Current Policy and Practice in Africa (Arcus Foundation 2010). 153 William Adams and others, ‘Biodiversity Conservation and the Eradication of Poverty’ (2004) 306 Science 1146; Dilys Roe, ‘Whither Biodiversity in Development? The Integration of Biodiversity in International and National Poverty Reduction Policy’ (2010) 11(1) Biodiversity 13.

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10. Land-grabs and dispossession in India: laws of value Preeti Sampat

INTRODUCTION Land is a central arena of contention in India with struggles over land intensifying in the post-liberalization period, especially since the mid-2000s. Land rights are at the centre of conflicts among state actors, private investors, and peasants and citizens’ groups.1 The meanings that various actors attribute to land, infrastructure, growth and dispossession vary widely. Whether land is forcibly acquired by the state invoking the doctrine of eminent domain, or more recently through market and other so-called voluntary mechanisms like land pooling, the laws facilitating land-grabs2 are deeply contested. At the same time, the legal frameworks for state-led land acquisition and land pooling have deeper legal histories and jurisprudence dating from the colonial period. The value-regime of capital is central to land dispossession in India and apposite responses (legal or otherwise) require a deeper appreciation of the historical logics of accumulation driving dispossession. This chapter examines the legal frameworks for land-grabs and dispossession in India historically, and draws insights from contemporary struggles over infrastructure land-grabs. The first part emphasizes the centrality of private property in classic liberal ideology. It traces the establishment of private property entitlements in land through the permanent settlement of Bengal in the colonial period, in order to facilitate revenue and capitalist reform. The doctrine of eminent domain was invoked for land acquisition by the colonial government and justified dispossession for greater ‘public good,’ offering compensation to dispossessed landowners for the loss of their property. Private property entitlements were retained after independence, and the contradictory doctrine was applied to facilitate land-grabs in favour of capitalist development. 1 Peasants here include small and marginal landowners, landless agrarian workers, pastoralists, fisherfolk, forest dwellers and others. Where necessary to distinguish, I use the term ‘big farmers’ to refer to the rich peasantry. Citizens’ groups refer to coalitions of individuals, often concerned professionals and representatives of non-governmental organizations (NGOs) that coalesce around contentious issues. They are not NGOs in themselves, but people working voluntarily for campaigns and raising resources through individual donations. 2 I use the term land-grabs to refer to state-led forcible land acquisition and market-induced or other ‘voluntary’ transfers of land and ‘resources’ to capital for economic growth, say through land pooling. Adnan contextualizes land-grabs within forces of ‘capitalism-facilitating accumulation.’ Shapan Adnan, ‘Land Grabs and Primitive Accumulation in Deltaic Bangladesh: Interactions between Neoliberal Globalization, State Interventions, Power Relations and Peasant Resistance’ (2013) 40(1) The Journal of Peasant Studies 87; Preeti Sampat, ‘The Goan Impasse: Land Rights and Resistance to SEZs in Goa’ (2015) 42(3) Journal of Peasant Studies 765.

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Land-grabs and dispossession in India: laws of value 191 The first part of the chapter analyses the doctrine through the differences in power influencing its application. The second part of the chapter examines post-liberalization land-grabs, including the so-called voluntary land-pooling mechanism. While landgrabs in this period have continued apace for extractive industries, here I focus on infrastructure land-grabs to index their relations with what I term the growing rentier economy3 of land. I conclude with a discussion of the capitalist value-regime over land with its emphasis on private property and land markets (historically inaugurated by the colonial regime and intensifying after liberalization), and the possibilities emerging from contemporary resistance to land-grabs.

A. ACQUISITION, DISPOSSESSION AND THE RIGHT TO LAND The Permanent Settlement of Bengal in 1793 brought in major reform in land rights under colonial rule, securing property rights and revenue in land for the Zamindars4 in perpetuity. The colonial government under the East India Company anticipated that the Zamindars, assured of their rights in land and of fixed revenue levies, would make ‘improvements’ in the land. This would in turn harbour overall agrarian and economic development and create ‘rational’ land markets.5 The actual cultivators of land were to be rendered an ‘efficient’ agrarian labour force, negotiating better wages as revenues improved, and fuelling overall development. The security of private property in land was thus key to infusing capitalist relations in agriculture under colonial law, and to facilitate land markets in the colony.

3 As I have argued elsewhere, a growing ‘rentier economy’ is driving urbanization infrastructure projects over the past decade in India, that brings within its purview, in varying combinations of policy, speculative land markets, real estate and other urban infrastructure investments by global and domestic investors, private consultants and developers, interests within the state at various levels, and (usually large) landowners willing and able to benefit from rentiering (at least temporarily). The rentier economy hinges crucially on ownership of land, or access to it and is thus exclusionary in its very constitution. The transition to industrialization and jobs that urbanization infrastructure projects promise to unleash remains elusive – a cover story for rentier-driven dispossession. See Preeti Sampat, ‘Dholera: The Emperor’s New City’ (2016) 51(17) Economic and Political Weekly 59. 4 Zamindars are large landowners given permanent rights to land by the British East India Company through the Permanent Settlement of Bengal in 1793 that sought to fix revenues from land in perpetuity. Zamindars are largely ‘upper caste’ landowners and in the post-independence period zamindari abolishment laws have been instituted with limited success given the political power of the zamindars. See Regulation I of 1793, reprinted in SC Ray, The Permanent Settlement in Bengal (Rai MC Sarkar Bahadur and Sons 1915) 71; Zamindari Abolition Act, 1950. See also Faisal Chaudhry, ‘A Rule of Proprietary Right for British India: From Revenue Settlement to Tenant Right in the Age of Classical Legal Thought’ (2016) 50(1) Modern Asian Studies 345. 5 Private property in land derives from liberal notions of the right to property as a natural right. It is the lynchpin around which capitalist relations (r)evolve as self-interested individuals maximize their property and profit and the bourgeois state protects their rights to property and maximize profits.

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192 Research handbook on law, environment and the global South As Gidwani notes, in this liberal projection of the ‘gentlemen farmers’ from the English countryside to Bengal’s Zamindars in the 18th century, (capitalist) ‘development’ was the integument bridging the ‘backward’ colony with the ‘progress’ of the metropole.6 The introduction of permanent property entitlements proved profoundly illiberal; not only because it was secured with colonial rule, but also because it shackled agrarian land ownership to unequal feudal caste relations of ownership and patronage, and to colonial capitalist relations as suppliers of raw materials and eventual markets for British industries.7 While the later ryotwari8 settlements were made with the cultivators more directly rather than the big landlords, the capitalist value-regime of improvements in land secured to private ownership in land was central to their logic, and informed the land reform agenda of the post-independence period as well. Redistribution among smaller landholding titles was to lead to improvements in land and overall agrarian and economic development through greater production for the market directly by the producers. Along with private property entitlements, the colonial government also instituted various legal instruments for land acquisition,9 particularly to facilitate infrastructure development for deepening capitalist market relations. These eventually culminated in the Land Acquisition Act (LAA) of 1894. The doctrine of eminent domain underlying the LAA and preceding legal instruments for acquisition justified the forcible acquisition of land (and resources attached to land) by the state for the ‘greater common good of development.’ Provisions for compensation for the land acquired to those dispossessed of it, were premised on the notion of private property ownership in land. In the post-independence period land revenue was abolished, but private property in land was retained as the question of nationalization of land was subsumed under a nationalist politics of conciliation with the right practised by the Congress Party.10 Land was deemed a state subject under the Indian Constitution, and land reform laws were enacted from the 1950s to break the concentration of land with Zamindars and big landlords, and to strengthen the rights of landless tillers and tenants.11 A series of laws related to ceilings on large landholdings; and redistribution of the land thus acquired as well as excess land of the state among tenants and other landless agrarian workers, 6 Vinay Gidwani, Capital, Interrupted: Agrarian Development and the Politics of Work in India (University of Minnesota Press 2008). 7 Ranajit Guha, The Rule of Property in Bengal: An Essay on the Idea of Permanent Settlement (Orient Longman 1981). 8 The ryotwari settlement in 1920 in Madras and adjoining areas fixed land revenues directly with the ryots or tillers, instead of the zamindar. See Chaudhry (n 4) 354. 9 These include the Bengal Regulation I of 1824; Bengal Canals Act, 1864; Bengal Irrigation Act, 1876; Bombay Building Act, 1839; Bombay Irrigation Act, 1879 and other similar laws and regulations. See also D Bhattacharyya, ‘History of Eminent Domain in Colonial Thought and Legal Practice’ (2015) 50(50) Economic and Political Weekly 45. 10 The Congress Party emerged as an umbrella formation comprising members from left and right political ideologies. Corbridge and Harriss argue that this politics of conciliation defeated socialist principles and legislation such as the laws related to redistributive land reforms. See Stuart Corbridge and John Harriss, Reinventing India: Liberalization, Hindu Nationalism and Popular Democracy (Polity Press 2007). 11 See Zamindari Abolition Act, 1950.

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Land-grabs and dispossession in India: laws of value 193 were enacted in every state.12 The assumption again was that the security of ownership would create a more dynamic and egalitarian environment of agrarian development and land markets. Eminent domain was invoked for land acquisition for redistributive land reforms. However, the right to property was also retained as a fundamental right under Article 19(1)(f) of the Constitution of India. The Supreme Court of India in some early decisions struck down land reform legislation on the grounds that it violated the right to property and right to equality before law.13 This triggered a strong reaction by the Indian Parliament – land reform laws pertaining to the takeover of property by the state were moved to the Ninth Schedule of the Constitution from the First (Constitutional Amendment) Act 1951 onwards, which insulated them from judicial challenge and invalidation. The insertion of Articles 31A–C through the First Amendment and the 25th Amendment saved certain laws related to acquisition from challenge under Articles 14 (equality before law) and 19 (fundamental rights) of the Constitution of India. The right to property was removed from the list of fundamental rights through the 44th Constitutional Amendment Act in 1978 by the Janata Dal government, strengthening the state’s power of eminent domain. Even the right to compensation underwent various amendments so that the legislature has since been under no constitutional obligation to pay compensation to those deprived of property under Article 300A, except to tillers of cultivated land for land, buildings and structures standing thereon, and to minority educational institutions, excluding all other classes of landowners and landless peasants, wage labourers and others who faced dispossession from livelihoods and homesteads after acquisition.14 Redistributive land reforms lost political expedience as they encountered resistance from the landed elite with direct electoral implications. The attempts at land reform were largely unsuccessful, except in West Bengal, Kerala and a few other pockets across the country where government-owned lands were distributed among landless populations. The Urban Land Ceiling and Regulation Repeal Act 1999 paved the way for repealing urban ceiling laws in many states (Haryana, Punjab, Maharashtra, Uttar Pradesh, Gujarat, Karnataka, Madhya Pradesh, Rajasthan, Orissa and all the Union Territories). Land ceiling laws have also been relaxed in rural areas to facilitate large-scale private holdings of land (for instance in Haryana, Punjab, West Bengal and

12 For instance, some of the laws enacted in Andhra Pradesh under land reforms included the Hyderabad (Abolition of Jagirs) Regulation, 1358F; the Hyderabad Tenancy and Agricultural Land Act, 1950 that later became the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1958 and the Andhra Pradesh (Andhra Area) Tenancy Act, 1958; Andhra Pradesh (TA) Prevention of Fragmentation and Consolidation of Holdings Act, 1956; the Andhra Pradesh Ceiling on Agricultural Holdings Act, 1961, among others. 13 See eg State of Bihar v Kameshwar Singh AIR 1952 SC 252 (Supreme Court of India); State of Rajasthan v Rao Manohar Singhji (1954) SCR 996 (Supreme Court of India). See also HCL Merillat, ‘Chief Justice SR Das: A Decade of Decisions on Right to Property’ (1960) 2(2/3) Journal of the Indian Law Institute 183. 14 DD Basu, Introduction to the Constitution of India (LexisNexis 2008).

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194 Research handbook on law, environment and the global South Rajasthan).15 Private property entitlements to land thus engendered a capitalist agrarian economy through both land acquisition and land reforms, and played a key role in the development of land policy and jurisprudence in India. The doctrine of eminent domain was also invoked for land acquisition for state-led capitalism-facilitating infrastructure projects including dams, power plants, mines and other industries. While over 60 million people were displaced due to land acquisition for such projects under the LAA in the decades following independence until the turn of the 21st century, the ‘stake-losers’ in these projects were barely accounted for, let alone compensated justly.16 From the late 1970s however, large development projects were increasingly challenged by those threatened with dispossession.17 Antidisplacement movements raised critical questions regarding social and environmental costs, prior informed consent of project affected including landless people, their legal entitlements and livelihood security, and the democratic process and accountability of the state in sanctioning development projects. With the liberalization of the economy in the late 20th century, rights to land have emerged as a central arena of contention in the context of infrastructure, urbanization and industrialization projects. Conflicts over acquisition have intensified, creating the conditions for repealing the LAA, and the enactment of the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act (RTFCTLARRA) 2013. As forcible acquisition is increasingly challenged, ‘voluntary’ land-pooling mechanisms under town planning laws are seen as an alternative for land consolidation by state governments. The Gujarat Town Planning and Urban Development Act (GTPUDA) 1976 is emerging as a blueprint for greenfield urbanization projects18 such as the Dholera smart city in Gujarat, or the new capital of Andhra Pradesh, Amaravati. I turn below to infrastructure land-grabs; the 2013 land acquisition law; land pooling; and contemporary resistance to land-grabs.

B. LIBERALIZATION, LAND-GRABS AND RENT Since the mid-2000s land acquisition for infrastructure, industry (including extractive) and urbanization projects led by the private sector have become increasingly commonplace, and deeply controversial. Special Economic Zones (SEZs), introduced through 15 AM Jigeesh, ‘Draft Policy Wants States to Limit Land Holdings to 15 Acres’ BusinessLine (14 March 2013), accessed at www.thehindubusinessline.com/economy/Draft-policy-wantsStates-to-limit-land-holdings-to-15-acres/article20590449.ece. 16 Walter Fernandes, ‘Displacement and the Land Acquisition Act 1894’ (2002) 1(1) Combat Law. 17 For such resistance movements against commercial forestry in the Himalayas and against large dams on river Narmada respectively, see Ramachandra Guha, The Unquiet Woods: Ecological Change and Peasant Resistance in the Himalaya (University of California Press 2000); Amita Baviskar, In the Belly of the River: Tribal Conflicts over Development in the Narmada Valley (OUP 2005). 18 Greenfield projects are new projects; in this case, new urbanization projects converting rural areas into cities.

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Land-grabs and dispossession in India: laws of value 195 new legislation in 2005, attracted particularly virulent opposition against land acquisition from peasants’ and citizens’ groups across the country. Similarly land acquisition for the Delhi Mumbai Industrial Corridor is facing stiff resistance along with various projects envisaged within the corridor, such as the Dholera smart city, or the bullet train project between Mumbai and Ahmedabad. This section analyses the politics around the 2013 land acquisition law, land pooling, infrastructure policies and the emerging importance of rent (as income from land and property) in India’s ‘emerging’ economy. The RTFCTLARRA was enacted by the Congress Party-led United Progressive Alliance government. It was a culmination of years of anti-dispossession agitations around development projects that came to a head with the controversial land-grabs for SEZs from the middle to late 2000s.19 The 2013 land acquisition law was in some ways a significant departure informed by years of anti-dispossession struggles in the country. It replaced the colonial LAA 1894 after 119 years, and for the first time brought rehabilitation and resettlement of the dispossessed within the legal framework of land acquisition. Rehabilitation and resettlement (R&R) of the dispossessed was not covered under the LAA and left largely to the state governments. The magnitude of dispossession caused by development projects became a wider policy concern only as movements resisting dispossession began challenging the interpretation of ‘public good’ under eminent domain. The first national policy on R&R in the country was only drafted as late as 2004, with the National Rehabilitation and Resettlement Policy (NRRP) 2007 replacing it by the end of 2007. The RTFCTLARRA included other progressive measures such as mandatory social impact assessments (SIAs) of all projects and included mandatory establishment of consent from the landowners for infrastructure projects led by the private sector (consent from 80 per cent landowners of the affected area in the case of entirely private projects and 70 per cent landowners in the case of public private partnership projects).20 However, the consent of landless workers or others dependent on the larger political economy around land in a project area did not figure in the law (although they did qualify for compensation). It left state-led acquisition out of the purview of ‘prior informed consent’ and reinforced top-down visions of development,21 much like its predecessor. It also increased the scope of forcible acquisition for projects by, (a) widening the definition of infrastructure to include all manner of projects including those related to health, education, housing, industrialization, mining and urbanization projects; and (b) more controversially, including private sector-led infrastructure projects under its purview. 19 While there were 11 pre-existing Export Processing Zones in the country, the new Special Economic Zones (SEZs) Act 2005 converted them to SEZs and sought to unleash a normative model of numerous privately developed gated enclaves. Land acquisition for SEZs was intensely resisted in several states. State governments variously responded to resistance with violence, revisions and reversals of policy. See Sampat (n 2). 20 The consent and social impact provisions were widely resented by private investors and the business press, who viewed these measures as cumbersome, and accused the Congress Party-led government of the day of ‘policy paralysis’, eventually paving the way for the election of the BJP in the 2014 general elections. 21 Preeti Sampat, ‘Limits to Absolute Power: Eminent Domain and the Right to Land in India’ (2013) 48(19) Economic and Political Weekly 40.

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196 Research handbook on law, environment and the global South In the years since enactment, SIAs have been negligible, or controversial. Numerous attempts have been made to whittle down provisions for securing the consent of landowners at the central and state levels. Through 2014–16, the Bhartiya Janata Party (BJP)-led National Democratic Alliance (NDA) government attempted to introduce amendments to the law to ease acquisition for private projects. An Ordinance was promulgated to exempt projects related to national security; industrial corridors; rural infrastructure; ‘affordable’ housing; housing for the poor; and infrastructure and social infrastructure projects, including public private partnerships, from SIA and consent provisions thrice between December 2014 to June 2015; and an amendment bill was tabled in the parliament simultaneously.22 The Ordinance and proposed amendments were stiffly opposed, and defeated as a result of nationwide agitations that brought together peasants, big farmers, social activists, environmentalists, journalists, lawyers, academics, other concerned citizens, political parties and trade unions on common platforms (despite differences in broader organizational objectives). This success, at least temporarily, challenged land-grabs at the national level, and preserved the RTFCTLARRA law. Several states such as Gujarat, Rajasthan and Maharashtra, however, have subsequently whittled down their land acquisition framework to accommodate the interests of big business and investors by exempting projects from SIAs and consent provisions under new state land acquisition laws, or through exemptions in rules made under the central law.23 In the midst of raging controversies over forcible land acquisition, state governments keen on attracting capital have attempted to refurbish and use the alternative framework of land pooling for developing ‘greenfield’ urbanization projects.

C. LAND POOLING AND THE GUJARAT TOWN PLANNING AND URBAN DEVELOPMENT ACT 1976 The GTPUDA is emerging as an exemplar for land pooling for urbanization projects across other states, notably in Andhra Pradesh and Delhi. Originally conceived for the expansion of existing cities, the pooling mechanism is now applied to ‘greenfield’ cities, or for the conversion of existing rural areas to new urban centres. Amaravati Capital City in Andhra Pradesh and Dholera Special Investment Region (SIR; alternatively Dholera smart city) in Gujarat are two greenfield urbanization projects that are attempting to consolidate land through pooling, with varying results. Land pooling for 22 The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Ordinance 2015; The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Bill 2015. 23 Kanchi Kohli and Debayan Gupta, ‘Mapping Dilutions in a Central Law: A Comparative Analysis of Rules Made under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (RFCTLARR) Act, 2013’ (2017), accessed at www.indiaenvironmentportal.org.in/files/file/Mapping%20Dilutions%20in%20a%20Central%20 Law%20New.pdf; Manju Menon, Kanchi Kohli and Debayan Gupta, ‘In State-Level Changes to Land Laws, a Return to Land Grabbing in Development’s Name’ The Wire (28 September 2017), accessed at https://thewire.in/law/state-level-changes-land-laws-return-land-grabbingdevelopments-name.

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Land-grabs and dispossession in India: laws of value 197 Amaravati is implemented under the Andhra Pradesh Capital Region Development Authority Act 2014, modelled on the GTPUDA. Following in the footsteps of Gujarat and Andhra Pradesh, the Delhi Development Authority also notified a Land Pooling Policy (LPP) for the National Capital Region in September 2013 by adding Chapter 19 in the Master Plan for Delhi 2021,24 albeit this policy retains the original intent of the expansion of an existing city. The policy aims to facilitate the proposed construction of 2,500,000 housing units by 2021, for which 10,000 hectares of land are required under the Master Plan Delhi-2021. Interestingly, the LPP allows private developers to pool land as the development authority conceives its role as a facilitator in the process of urban expansion. The land-pooling mechanism is ostensibly premised on the principle that the development authority in charge of undertaking urban development temporarily brings together a voluntary group of landowners. This mechanism is increasingly preferred for urbanization projects in lieu of the RTFCTLARRA, to avoid the latter’s contentious SIA and consent provisions.25 The origins of town planning schemes like the GTPUDA can be traced to the colonial Bombay Town Planning Act (BTPA) 1915, the first town planning scheme that was applied to the Bombay province (which at the time included Maharashtra and Gujarat). The legislation was a response to rapid urbanization as a result of industrialization, especially given the growing textile mills in the region. The objective was largely to control the use of land and development through the instruments of zoning and building regulations, acquire land for public purposes, and recover betterment contributions in respect to land parcels benefiting from improvements.26 However, the dispersed nature of schemes formulated under the BTPA and the arbitrary application of the law by local authorities resulted in inadequate planning and chaotic growth under the law, incommensurate with the needs of growing urban populations. This gave rise to a more comprehensive town planning scheme and, post-independence, the Bombay Town Planning Act 1954 (modelled on Britain’s Town and Country Planning Act 1947), replaced the 1915 Act. There is remarkable underlying continuity in the key provisions of the colonial and post-independence versions of the laws (the BTPA 1915, the BTPA 1954 and the GTPUDA 1976).27 The premise for pooling is rooted in the colonial doctrine of ‘public purpose,’28 albeit pooling is considered voluntary. Interestingly, however, there is no provision for ‘voluntary’ pooling in any of the Indian town planning laws, and none of the laws uses the term ‘pooling’ except in the context of ‘commonly pooled’ land depicted on the layout map for the purposes of creating a town planning development plan. There is Delhi Development Authority, Master Plan for Delhi-2021 (2007) 19. Preeti Sampat and Simi Sunny, ‘Dholera and the Myth of Voluntary Land Pooling’ (2016) 12(2) Socio-Legal Review 1. 26 Shirley Ballaney, The Town Planning Mechanism in Gujarat, India (World Bank 2008); ISA Baud and J De Wit (eds), New Forms of Urban Governance in India: Shifts, Models, Networks and Contestations (Sage 2009). 27 The GTPUDA 1976 was enacted post the division and reorganization of the two states in 1956, to address problems with the 1954 law and to provide for town planning schemes in accordance with a development plan. 28 Sampat and Sunny (n 25). 24 25

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198 Research handbook on law, environment and the global South thus ambiguity in the voluntary scope of pooling when ‘public purpose’ is invoked under the GTPUDA. Under the GTPUDA as well, the notion of private property is deeply embedded in compensation measures; and R&R packages for those affected are avoided altogether by giving back partial land in the form of ‘developed’ plots to landowners. There are no provisions of plots for the landless affected by the project, even if they are from Scheduled Caste or Scheduled Tribe categories29 (explained in footnote below). Effectively only landowners are compensated in this manner for land lost. The GTPUDA offers an ‘easier’ mechanism for land consolidation for investors and allied state actors than the RTFCTLARRA. The consent of landowners is presumed a priori in the land-pooling framework, although there is no procedure laid down to establish consent. The Dholera SIR in Gujarat, along with the Delhi Mumbai Industrial Corridor, is illustrative of the land-pooling conundrum and worth exploring in detail. In Dholera’s 22 affected villages, no land has been ‘pooled’ to date on account of widespread local resistance. While land already in possession of the state has been handed to the Dholera Special Investment Region Development Authority, local resistance to the project has propelled the residents of the 22 villages to form the Bhal Bachao Samiti (Save Bhal Committee). The residents have filed a petition in the Gujarat High Court contesting the project. The High Court issued an order in 2015 staying all further proceedings for the project until the case is resolved.30 As there is no ‘forcible acquisition’ or ‘transfer of ownership’ of land under the GTPUDA, the case for compensation for loss of land, it is claimed, does not arise, except for the proportion of the land deducted for the basic infrastructure provisions for town planning. For Dholera, 50 per cent of the original plot of land is deducted for infrastructure provision in the city, and the rest of the land remains with the original landowner. The benefit of ‘development’ in terms of the increment in land value after development accrues to the owner, rather than the development agency. The original owner continues to enjoy access to the land without being ‘displaced.’31 Under the 2013 land acquisition law, in public private partnership projects, 70 per cent consent of original landowners is required before a project can be undertaken. The pooling mechanism circumvents explicit procedures for consent-based infrastructure development by disingenuously invoking the language of consultation and voluntary pooling. Rentier gains from land are now expressly factored into the policy, marking an upward movement in land markets in the post-liberalization period. The final development plan for Dholera reveals the active role of rent in the compensation envisaged in the project for landowners and states: 29 Scheduled castes are the formerly so-called untouchable castes that were considered outside the Hindu varna system while scheduled tribes are indigenous communities. Historically oppressed by dominant Hindu upper-caste and other communities, these communities are specially noted in the Indian Constitution for protection and affirmative action. 30 Gujarat Khedut Samaj and others v Gujarat State and others, Writ Petitions 227 of 2014 and 57 of 2015, Order of 10 December 2015 (High Court of Gujarat). 31 Ballaney (n 26).

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Land-grabs and dispossession in India: laws of value 199 The land owners provided with readjusted land would need to be trained to negotiate with the industry/developers for giving land for industrial use on lease rental basis rather than outright sale basis; or industrial houses setting-up industries could be encouraged to provide certain share-holding to the land owner. It would help the land owner to ensure regular income from the land allotted to them.32

The plan adds: ‘The owners could also be encouraged to invest in housing and commercial uses to have an opportunity for rental incomes, for which people would need to be supported through appropriate capacity building measures.’ Pooling, like acquisition, revolves around infrastructure needs of capital, processes under both are aided by the state, but the benefits accrue increasingly to large capital. Rent from land (and real estate construction) is now actively on the radar of big capital. The development plan for the Dholera SIR was developed by the UK-based global consultancy firm Halcrow for the Government of Gujarat in 2010,33 subsequently sanctioned and made operational by 2012. The global infrastructure giant AECOM was then awarded a $30 million five-year extendable contract by the DMIC Development Corporation in mid-2013, for full programme management services in Dholera.

D. THE GROWING RENTIER ECONOMY There has been a decisive shift in land acquisition from the pre-liberalization period where acquisition was driven by state-led capitalism-facilitating infrastructures, to the post-liberalization period that has seen a dramatic rise in the involvement of big capital more directly in infrastructure projects.34 Rentier gains from land and property are often a critical factor driving land acquisition, especially in the name of urbanization infrastructures. In his analysis of India’s land markets, Chakravorty argues that land prices in India have risen phenomenally in recent years and growing real estate prices reflect the rise in the price of land, as construction costs have risen stably along the consumer price index.35 He points out that the price of urban land has increased five-fold in 2001–11,36 and agricultural land prices in some rural areas have increased by a factor of five to ten over the past decade. Agricultural land prices are higher in the urban periphery than in interior districts (arguably because of potential real estate markets). He adds that the rising price of land is related to the expansion of money supply in the economy in the post-liberalization period in the following ways: expansion of 32 Dholera Special Investment Region Development Authority, Final Development Plan: DSIRDA – Report One (DSIRDA 2013) 150. 33 Ayona Datta, ‘New Urban Utopias of Postcolonial India: “Entrepreneurial Urbanization” in Dholera Smart City, Gujarat’ (2015) 5(1) Dialogues in Human Geography 3, 15. 34 Alf Gunvald Nilsen, Dispossession and Resistance in India: The River and the Rage (Routledge 2010); Michael Levien, ‘The Land Question: Special Economic Zones and the Political Economy of Dispossession in India’ (2012) 39(3–4) The Journal of Peasant Studies 933. 35 Sanjoy Chakravorty, The Price of Land: Acquisition Conflict Consequence (OUP 2013). 36 ibid. He points out that the then current urban land prices ranged from $833 to $33 million per acre (at then dollar-rupee rate Rs. 60 = $1).

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200 Research handbook on law, environment and the global South credit markets, income growth for some sections who in turn invest in land and property as status markers, rise in illegal money supplies (so-called black money), foreign investment from non-resident Indians, and the scarcity of land with respect to location and intense fragmentation. The appreciation of land prices, in other words, is based on income inequality and precariously elite and illicit circuits of money that fuel rentier investments around growth infrastructures, without regard to redistributive economic linkages. Private- and public-owned land banks proliferate for immediate rentier gains without infrastructure investments, or as sites of ‘safe’ long-term investments. There is enough evidence to suggest that the enclosure of ‘unproductive’ land banks is not unintentional, even when it is not explicitly acknowledged. India’s tryst with SEZs is illustrative in this regard. According to the Comptroller and Accountant General of India, 52 per cent of the land approved for allotment to SEZs remains idle and SEZs have not had any significant impact on India’s economic growth, trade, infrastructure, investment or employment.37 Most operational SEZs comprise IT and related services that cannot incorporate peasants given their skill requirements. SEZs have often been criticized as real estate related land-grabs, as many controversial SEZs have sought land in the urban peripheries of large metropolitan centres.38 Rent from land accrues as appreciation of land prices when infrastructure projects are announced, and as appreciation of real estate prices as projects develop. Agrarian relations and returns are consequently ‘devalued,’ and rentier activity incorporates landowners differentially depending on the size of their landholdings. Large landowners able and willing to profit from rentiering, or smaller landowners making distress sales for personal needs, ‘give up’ land without resistance for immediate returns. A large majority of peasants, however, are unable to profit from rentier gains as their landholdings are too small or they are landless. Most depend on agriculture for crucial livelihood strategies, a fact underlined by the intense struggles of peasants unwilling to give up land for or negotiate on the terms of inclusion in a project. Given their skills specialization in agrarian work, as land use is changed from agriculture, a crucial source of their livelihoods is threatened or rendered precarious. With appreciation in the value of land and built space in infrastructure project areas, a growing rentier economy thus incorporates landowning actors differentially within its anticipated futures.39 State and private actors mop up rent from land transfers and complement market-led incentives for rentier gains, while state- and market-driven dispossessions combine to impoverish (or threaten) access to land, resources, livelihoods and environments for others. The emerging importance of the rentier economy can be seen in relation to manufacturing, which has stagnated at 15 per cent of India’s gross domestic product 37 Government of India, Report of the Comptroller and Auditor General of India for the Year 2012–13: Performance of Special Economic Zones (SEZs) (Department of Revenue 2014). 38 Preeti Sampat, ‘India’s Land Impasse: Infrastructure, Resistance and Rent’ in Victoria Lawson and Sarah Elwood (eds), Relational Poverty Politics (University of Georgia Press 2018) 95. 39 Sampat (n 3).

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Land-grabs and dispossession in India: laws of value 201 over decades, despite policy incentives.40 On the other hand, in 2009–10, construction emerged as the second largest employer of workers in India with 11 per cent of the workforce, after agriculture with 36 per cent.41 In 2011–12 the shares of real estate and construction together accounted for 19 per cent of the Indian economy, growing from 14.7 per cent in 2000–01.42 The growth in construction and real estate has complementary effects in activating land markets. Where there is no infrastructure and further productive investment, land price appreciation occurs regardless. Value accrues from the absorption of excess value in land and real estate through infrastructure investments; is realized as differential rent through land and real estate price appreciations according to the nature and extent of infrastructure investments; and consequently indexes precarious, anticipated futures of dispossession and growth. As noted above, in project areas such as Dholera smart city along the Delhi Mumbai Industrial Corridor, returns from rent are actively factored in policy and promoted as mitigating agrarian and other livelihood loss for landowners. Rent here accrues with price appreciation of land even without actual infrastructure investment, in other words, in speculative anticipation of gains once infrastructure projects are announced. Without productive linkages with manufacturing, in effect, it is the rentier economy of anticipated gains from land and real estate appreciation that fuels growth infrastructures, and the consequent dispossession of existing and largely agrarian relations with land. Policy emphases on growth infrastructures thus complement the rent-driven logics of land commodification, accelerating downward pressures on agrarian and other relations around land and resources. The contemporary ‘rentier economy’ is also historically rooted in colonial imperatives of creating secure private property entitlements and developing an ‘efficient’ land market for the expansion of capitalist market relations.

E. LAND, VALUE AND WORK Remembering nature [read here as land] – recognizing theoretically its historical significance – allows us to recast dominant histories of Western historical development and to question the notion that modernity is the offspring of a self-propelled West. A resignified nature allows us to include in our historical accounts not just a more diversified set of historical actors but a more complex historical dynamic. It enables us to replace what Lefebvre refers to as the ‘ossified’ dialectic of capital and labour by a dialectic of capital, labor and land (…).43 40 Government of India, ‘Press Note No 2’ (2011 Series), accessed at http://pib.nic.in/ newsite/PrintRelease.aspx?relid=76843; PTI, ‘Govt Modifying “2011 Vintage” National Manufacturing Policy’ BusinessLine (18 May 2017), accessed at https://www.thehindubusinessline. com/news/national/govt-modifying-2011-vintage-national-manufacturing-policy/article9707050.ece. 41 Vidhya Soundararajan, ‘Construction Workers: Amending the Law for More Safety’ (2013) 48(23) Economic and Political Weekly 21. 42 Government of India, ‘Economic Survey 2012–13’ (2013), 213, accessed at https://www. indiabudget.gov.in/budget2013-2014/survey.asp. 43 Fernando Coronil, The Magical State: Nature, Money, and Modernity in Venezuela (University of Chicago Press 1997) 7, 8.

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202 Research handbook on law, environment and the global South The capitalist production of space is revealed through a focus on the constitutive trinity of capitalist society – the land-labour-capital relations.44 The relation of land to capital is not just as its site of production, labour, or for the extraction of resources. Infrastructure investments in land for transport and communication or water canals for irrigation further aid accumulation by expanding production for markets. The primary function of what I term growth infrastructures45 is thus to increase ‘value’ by expanding capitalist relations. Growth infrastructures facilitate the circuits of capital by improving connectivity with markets, critical for the movement of capital and the absorption and expansion of excess surplus value.46 Investments in growth infrastructures also mitigate crises of excess accumulation for capital.47 Such investments include urbanization and real estate projects that activate land markets and entail the enclosure of large swathes of land and resources, whether state- or private-owned, or commons. Growth infrastructures can be contrasted with decentralized infrastructures oriented to local needs, say local rainwater harvesting, and micro-hydel or solar power generating structures geared to household consumption. SEZs and industrial corridors, or greenfield ‘smart cities,’ are exemplary growth infrastructures. Ostensibly instituted to generate productive investments and employment in manufacturing, they often aim to create ‘world class’ or ‘smart’ cities with greater market access for global and local capital. The current state of Indian agriculture is often used to justify the need to wean labour away from agriculture and to industry, and to put land and resources to better use in industry.48 Like the 18th century Zamindars, big investors and developers are to bring about economic development and growth, and hence must be allowed access to them without encumbrances. Differential rent from infrastructure investments and 44 See Lefebvre on the constitutive trinity of land, labour and capital; Smith for the production of nature in capital’s image as uneven development; and Coronil for the ‘extraction of natural resources’ from the non-West as a necessary historical condition of capitalist development. See Henri Lefebvre, ‘The Theory of Ground Rent and Rural Sociology’ (first published 1956) 2016 48(1) Antipode 67; Stuart Elden and Adam David Morton, ‘Thinking Past Henri Lefebvre: Introducing “The Theory of Ground Rent and Rural Sociology”’ (2016) 48(1) Antipode 57; Karl Marx, Capital Vol III (first published in 1894, Penguin 1992); Neil Smith, Uneven Development: Nature, Capital and the Production of Space (University of Georgia Press 1984); Coronil (n 43). 45 As I have argued elsewhere, India’s growth infrastructures are distinct from preliberalization development infrastructures that also promoted capitalist development but were under the formal control and regulation of state bodies and hence considered public infrastructures. Post-liberalization growth infrastructures involve greater control and direct benefit for capitalists, particularly over the past decade. Their legal frameworks emphasize the developmental role of capital, in partnership with or (at least formally) independent of state actors. While pre- and post-liberalization infrastructures have both contributed to dispossession and experienced resistance, the intensification of post-liberalization growth infrastructures with direct stakes for capital in recent years is generating recurrent conflicts over land. Sampat (n 38). 46 Connectivity facilitates the ‘annihilation of space by time,’ and enables faster movements of goods, services, information and money flows. See Marx (n 44). 47 David Harvey, The Limits to Capital (Verso 1982). 48 George Thomas and Ram Kaundinya, ‘Five Ways to Double Farmers’ Income’ BusinessLine (9 May 2018), accessed at www.thehindubusinessline.com/opinion/five-ways-todouble-farmers-income/article23827672.ece.

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Land-grabs and dispossession in India: laws of value 203 location determine the level of activity of land markets or the desirability of investments in land. Agriculture is no longer as lucrative as real estate in terms of rent from land, and irrespective of the percentage of the population dependent on agrarian livelihoods, higher returns is what must drive land use under capitalism, and state policy must oblige. Capitalist development remains the sine qua non of development and modernity, and currently deems rentiering the ‘higher order’ land use in comparison with agriculture, or for that matter manufacturing. The law of supply and demand cares little for sustainability, climate change, food security or those it renders ‘unfit’ for survival, content to create a fictitious commodity49 fetish of land for speculative gains. Struggles over land and resources are shaped significantly by historically and culturally particular local contexts, but their frequent recurrence in recent years across diverse regions in India is noteworthy. Several mobilizations by peasants and citizens’ groups resisting land-grabs have secured success across the country, despite tremendous odds and at great personal cost over years. Agitations against the infamous Indonesian SALEM SEZ in Nandigram and the TATA automobile plant in Singur in West Bengal, the Mangalore SEZ in Karnataka, the Mumbai SEZ in Maharashtra, and the South Korean Pohang Steel Corporation SEZ in Odisha are some of the better known cases.50 Close to Dholera and also along the Delhi Mumbai Industrial Corridor, 36 out of 44 villages were exempted from the Mandal-Becharaji SIR in early 2014 on account of local resistance. The Mumbai Ahmedabad bullet train project is seeing similar resistance in Maharashtra and Gujarat. In all of these areas, those resisting have refused to negotiate the terms of inclusion in a project (terms, for example, like better compensation or rehabilitation51). In rejecting the project altogether, they have created a ‘non-negotiating counterpolitics’52 of impasse. Long-term stagnant conditions in domestic manufacturing persist in India, and given the global economic sluggishness, are unlikely to change in the immediate future. Recent measures by the ruling BJP-led NDA government such as demonetization and the introduction of the Goods and Services Tax have further impacted the unorganized

Polanyi describes this as the creation of land as a ‘fictitious commodity’ (along with labour and money) that is not produced by human beings but is a gift of nature and a condition for life itself. See Karl Polanyi, The Great Transformation: The Political and Economic Origins of Our Time (first published 1957, Beacon Press 2001). 50 Rob Jenkins, Loraine Kennedy and Partha Mukhopadhyay (eds), Power, Policy, and Protest: The Politics of India’s SEZs (OUP 2014); Swapna Banerjee-Guha, ‘Space Relations of Capital’ (2008) 43(47) Economic and Political Weekly 51; Sampat Kale, Anti SEZ Struggle: A Victory for Farmers and Workers (NCAS 2008); Pranab Kanti Basu, ‘Political Economy of Land-Grab’ (2007) 42(14) Economic and Political Weekly 1281; Sampat (n 2). 51 Ben White, Jun Borras, Ruth Hall, Ian Scoones and Wendy Wolford, ‘The New Enclosures: Critical Perspectives on Corporate Land Deals’ (2012) 39(3–4) The Journal of Peasant Studies 619. 52 Smith argues that the growing impoverishment of people confronted with capitalist growth is creating an absolute surplus population that can no longer engage in a ‘politics of negotiation’ to the terms of a project, but instead creates a ‘non-negotiable counterpolitics’ of resistance. See Gavin A Smith, ‘Selective Hegemony and Beyond: Populations with “No Productive Function” – A Framework for Enquiry’ (2011) 18(1) Identities: Global Studies in Culture and Power 2. 49

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204 Research handbook on law, environment and the global South rural economy egregiously.53 A boom in real estate and construction sectors over the past decade, on the other hand, has matched appreciating land and real estate values. Rent from investments in growth infrastructures forms an increasingly significant accumulation strategy for domestic and transnational capital, and allied state interests. The growing rentier economy indexes investors, developers, state actors, farmers able and willing to rentier, and a host of other backward and forward linkages related to construction and real estate sectors that extract surplus value from labour and the environment (or ‘more-than-human nature’) with impunity. Anticipated rent keeps the stakes high for continuing attempts at land-grab and real estate construction. Circuits of rent hinge on the already unequal capacity to realize it – either through large land holdings, or through investments in built space. A metabolic relation between nature54 (read here as land) and labour is essential for the daily reproduction and survival of all species. In other words, work is a necessary condition of existence. Under capitalism, however, nature and labour are conscripted to value creation and reduced to their instrumentality in the accumulation and expansion of surplus value, or ‘economic growth.’ With the introduction of private property entitlements in India, the British colonial state inaugurated capitalist relations around land, transforming and exploiting the political economy of the region. A significant closure of alternative possibilities occurred when the post-independence Indian state retained private property in land, engendering the capitalist model of development and its attendant inequalities of dispossession. Liberalization has further paved the way for contemporary capitalism-facilitating land-grabs and dispossession for a speculative rentier economy based on land and property ownership and augmented by investments in growth infrastructures. As legal mechanisms facilitating these evolve and face resistance, ongoing conflicts over land-grabs offer openings to reconfigure the metabolic relations between land and labour, or nature and work through a rearticulation of the relations of work, nature and politics, away from capital’s conscription. With ascendant questions around economic crises, climate change, food security and conservative right-wing populisms across the globe in what some have termed the Renu Kohli, ‘Cash Signals: Trend Reversion Questions Formalisation of the Economy after DeMo and GST’ Financial Express (6 March 2018), accessed at www.financialexpress. com/opinion/cash-signals-trend-reversion-questions-formalisation-of-the-economy-after-demoand-gst/1088567/; Puja Mehra, ‘Passing off Politics as Economics’ (Hindu Centre for Politics and Public Policy, 2018), accessed at www.thehinducentre.com/the-arena/current-issues/ article24012281.ece; Siddhartha Mitra, ‘India’s Demonetisation Drive: Politics Trumps Economics’ (Ideas for India, 2016), accessed at http://www.ideasforindia.in/topics/money-finance/ india-s-demonetisation-drive-politics-trumps-economics.html; Aditi Nigam and R Balaji, ‘Big Trouble for the Small and Informal Sector’ BusinessLine (7 November 2017), accessed at www.thehindubusinessline.com/economy/big-trouble-for-the-small-and-informal-sector/article 9947576.ece; PTI, ‘Demonetisation Impacts India’s Informal Sector: UN Report’ TimesNow News (15 September 2017), accessed at www.timesnownews.com/business-economy/economy/ article/demonetisation-impacts-india%E2%80%99s-informal-sector-un-report/91269; The Wire, ‘Explained: The Short, Medium and Long-Term Fallout of India’s GST’ The Wire (30 June 2017), accessed at https://thewire.in/business/explained-short-medium-long-term-fallout-indias-gst. 54 Nature here includes human and more-than-human nature, and in the context of this chapter expressly refers to land. 53

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Land-grabs and dispossession in India: laws of value 205 capitalocene,55 such rearticulation requires political mobilization and legal mechanisms premised on non-capitalist forms of development that are ecologically appropriate, sustainable and socially egalitarian.

55 Critiquing anthropocene as a limited concept that does not help explain how humans have profoundly transformed the planetary ecosystem, Moore argues that we are living in the capitalocene. He points out that ‘the capitalocene signifies capitalism as a way of organizing nature—as a multispecies, situated, capitalist world-ecology’ or ‘the era of capitalism as a world-ecology of power, capital, and nature.’ See Jason W Moore (ed), Anthropocene or Capitalocene? Nature, History and the Crisis of Capitalism (PM Press 2016).

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11. Environmental impact assessment in the context of mangrove forest ecosystem management in Bangladesh: a case study of Rampal coal power plant project Jona Razzaque

INTRODUCTION The Rampal power plant project is one of 11 coal-fired power stations proposed under Bangladesh’s Power Development Board (BPDB) plans for commissioning by 2021.1 The proposed imported-coal-fired power plant in Rampal is to be a joint venture of BPDB and India’s largest power producer, National Thermal Power Corporation (NTPC) Limited, under the name of Bangladesh-India Friendship Power Company Limited (BIFPCL).2 BPDB and NTPC signed a joint venture agreement in January 2012, under which NTPC is responsible for planning, building and operating the plant.3 The proposed project would have a capacity of 1,320 MW, with two 660 MW units, and with a provision for a Phase II expansion that could involve installing two more units, each with 660 MW of capacity, taking the project to a potential 2.6 GW capacity.4 Although in 2013, the Department of Environment (Bangladesh) approved the project, it has imposed 59 conditions and, at the time of writing this chapter, the no-objection certificate has not been granted.5 In 2015, foreign funding bodies such as three French banks refused to invest money in this Rampal project along with two Norwegian pension funds citing environmental and social concerns.6

1 Ministry of Power, Energy and Mineral Resources, The Study for Master Plan on Coal Power Development in the People’s Republic of Bangladesh: Power System Master Plan 2010 (2011), accessed at https://policy.asiapacificenergy.org/sites/default/files/PSMP2010_reduced.pdf [hereafter PSMP 2010]. 2 NTPC has formed a joint venture, BIFPLC, with BPDB on a 50:50 share basis to develop the plant. 3 NTPC Ltd is listed on the Bombay Stock Exchange (India) and is 70 per cent owned by the Government of India. 4 PSMP 2010 (n 1). 5 Anonymous, ‘Rampal Power Plant Project yet to Get Environmental Clearance: Minister’ The Daily Star Online Report (9 June 2016), accessed at www.thedailystar.net/city/rampalpower-plant-project-yet-get-environmental-clearance-minister-1236952. 6 Janaki Lenin, ‘French Banks Says No to Bangladesh Coal Plant’ The Guardian (25 June 2015), accessed at www.theguardian.com/environment/blog/2015/jun/25/french-banks-say-no-tobangladesh-coal-plant.

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208 Research handbook on law, environment and the global South Based on the location, nature and potential effect of the project, several NGOs as well as media reports urge the government to cancel the project.7 The government is adamant that the project is necessary as it will allow millions to access energy.8 But, at what environmental and social cost? The plant site is proposed at the edge of the Sundarbans, the world’s largest mangrove forest, and lies between India and Bangladesh. Ecosystem services from the Sundarbans mangrove forest are crucially important to human populations. Parts of the Sundarbans are a national conservation area in Bangladesh, a designated Ramsar Conventions wetlands and part of the UNESCO World Network of Biosphere Reserves.9 The Sundarbans includes a UNESCO World Heritage Site composed of three separate wildlife sanctuaries on the Bangladeshi side and one on the Indian side. In March 2016, UNESCO sent a monitoring mission to the Sundarbans to assess ‘issues that could seriously threaten its Outstanding Universal Value, and especially the planned development of a coal-fired thermal power plant in the immediate vicinity of the property’.10 In July 2016, the UNESCO report expressed its concern about the location and the likely adverse impacts of the Rampal power plant.11 Although the government of Bangladesh has decided not to go ahead with Phase II of the Rampal power plant, the World Heritage Committee in 2017 urged the government not to proceed with the Rampal power plant project (i.e., Phase I) ‘in its South Asians for Human Rights, Report of the Fact Finding Mission to Rampal, Bangladesh (2015), accessed at www.southasianrights.org/wp-content/uploads/2015/09/Reportof-the-FFM-Rampa-Bangladesh.pdf; Council on Ethics of the Norwegian Government Pension Fund Global, Recommendation to Exclude NTPC Limited from the Investment Universe of the Government Pension Fund Global (2014), accessed at https://nettsteder.regjeringen.no/ etikkradet3/files/2017/02/ENGELSK-NTPC-tilr%C3%A5dning-endelig23012015.pdf; Jai Sharda and Tim Buckley, Risky and Over Subsidised: A Financial Analysis of the Rampal Power Plant (Institute for Energy Economics and Financial Analysis 2016), accessed at http://ieefa.org/wpcontent/uploads/2016/06/Risky-and-Over-Subsidised-A-Financial-Analysis-of-the-Rampal-PowerPlant-_June-2016.pdf; SF Islam, ‘Why Are We against the Rampal Project’ (in Bengali) Daily Naya Diganta, (23 August 2016), accessed at www.dailynayadiganta.com/detail/news/147479; UNESCO, The Sundarbans, Decision: 39 COM 7B.8 in UNESCO, Decisions Adopted by the World Heritage Committee at its 39th Session, Bonn, Doc No WHC-15/39.COM/19 (8 July 2015), accessed at https://whc.unesco.org/archive/2015/whc15-39com-19-en.pdf; Transparency International Bangladesh, Rampal and Matarbari Power Projects: Governance Challenges in Environmental Impact Assessment and Land Acquisition (2015), accessed at www.ti-bangladesh. org/beta3/images/2015/es_ffs_coal_15_en.pdf; BankTrack, Equator Principles Analysis of the Rampal Coal-Fired Power Plant Project, Bangladesh (2015), accessed at www.banktrack. org/manage/ems_files/download/rampal_equator_principles_full_analysis_pdf/rampal_equator_ principles_full_analysis.pdf. 8 Staff Correspondent, ‘PM Tells Press; Rebuts Critics of Rampal Power Plant Project’ The Daily Star (28 August 2016), accessed at www.thedailystar.net/backpage/sundarbans-stay-safe1276510. 9 The list of designated sites in Bangladesh under the Ramsar Convention is available at www.ramsar.org/wetland/bangladesh. 10 UNESCO, Reactive Monitoring Mission to the Sundarbans World Heritage Property (Bangladesh) (2016), accessed at http://whc.unesco.org/en/news/1470/. 11 Naomi Doak and others, ‘Report on the Mission to the Sundarbans World Heritage Site, Bangladesh’ (2016), accessed at www.ramsar.org/news/iucn-and-world-heritage-mission-to-thesundarbans-in-bangladesh. 7

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EIA in mangrove forest ecosystem management: Rampal power plant 209 current location and to relocate it to a more suitable location where it would not negatively impact the OUV [Outstanding Universal Value] of the property’.12 With the potential to cause significant environmental harm along with continued governmentsubsidised funding of coal-fired power plants, it is no surprise that the Rampal project contradicts the global climate agreement reached at the COP21 in Paris in 2015.13 The project, if allowed to go ahead, will also be in breach of Akwé: Kon Guidelines of the Convention on Biological Diversity (CBD)14 as well as the Wetlands Convention.15 The focus of this chapter will be the legal deficiencies of the environmental impact assessment (EIA) conducted to approve the coal power plant in Bangladesh and the need for integration of a precautionary principle as well as the people’s voice in the EIA process. It first assesses the legal basis to conduct the EIA and argues that the EIA did not account for the project’s impacts on ecosystem service benefits. The EIA overlooked the vulnerable communities and the harmful social and environmental consequences of the project. It has ignored the precautionary approach and failed to provide a comprehensive and realistic assessment of the project’s immediate and long-term impacts. Second, the chapter explores environmental stewardship and participatory democracy and argues that beneficiaries of mangrove forest services should be integrally involved in mangrove management and restoration planning. In conclusion, this research underscores the need for the EIA to reflect the interdependence between the project, ecosystem services and people which will improve the multiple mangrove ecosystem services of the Sundarbans in Bangladesh.

A. MANGROVE FOREST ECOSYSTEM SERVICES AND EIA The relevance of ecosystem services16 in forest management is acknowledged in the Rio+20 Declaration.17 It emphasises the social, economic and environmental benefits of 12 World Heritage Committee, State of Conservation of Properties Inscribed on the World Heritage List, 41st Session, Paris, WHC/17/41.COM/7 B (19 May 2017) 57, accessed at https://whc.unesco.org/archive/2017/whc17-41com-7B-en.pdf. 13 Paris Agreement, Paris, 12 December 2015, in Report of the Conference of the Parties on its Twenty-First Session, UN Doc FCCC/CP/2015/10/Add.1. 14 Akwé: Kon Voluntary Guidelines for the Conduct of Cultural, Environmental and Social Impact Assessment regarding Developments Proposed to Take Place on, or which are Likely to Impact on, Sacred Sites and on Lands and Waters Traditionally Occupied or Used by Indigenous and Local Communities, CBD Decision VII/16C, Article 8(j) and related provisions – Annex, Doc UNEP/CBD/COP/DEC/VII/16 (2004). 15 Convention on Wetlands of International Importance, Ramsar, 2 February 1971, 996 UNTS 245 [hereafter Ramsar Convention]. 16 Ecosystem services are the benefits people obtain from ecosystems. These include provisioning services such as food, water, timber and fibre; regulating services that affect climate, floods, disease, wastes and water quality; cultural services that provide recreational, aesthetic and spiritual benefits; and supporting services such as soil formation, photosynthesis and nutrient cycling: Millennium Ecosystem Assessment, Ecosystems and Human Well-Being: Synthesis (Millennium Ecosystem Assessment 2005) v. 17 UN General Assembly Resolution 66/288, The Future we Want, UN Doc A/RES/66/288 (2012).

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210 Research handbook on law, environment and the global South forests to people and affirms ‘that the wide range of products and services that forests provide creates opportunities to address many of the most pressing sustainable development challenges’.18 Forests are an example of an ecosystem that attracts internal claims as well as external actors with respect to its management, and highlights the competing parties that need forests for survival. They are an important source of provisional ecosystem services such as wood for fuel and food and shelter for local communities, regulating ecosystem services (e.g., carbon sequestration and storage) and cultural ecosystem services to coastal populations living close to mangrove forests (e.g., tourism, recreation, cultural heritage). A reduction or loss of any of these services and the benefits they provide can have social and economic ramifications. Globally, mangrove forests are one of the world’s most threatened ecosystems and shrinking by 0.7 per cent every year.19 Along with providing fishing for the livelihoods of people, mangroves provide essential ecosystem services such as protecting coastline from erosion, buffering communities and habitats against storms, producing timber, and working as a carbon sink to combat climate change.20 The Sundarbans is the largest single tract mangrove forest in the world with a total area of about 10,000 km,2 of which about 6,000 km2 are located in Bangladesh and about 4,000 km2 in India. The Bangladeshi and Indian parts of the Sundarbans, while in fact adjacent parts of the uninterrupted landscape, have been listed separately in the UNESCO World Heritage List: as Sundarbans (Bangladesh) and Sundarbans National Park (India).21 Both parts are recognised as Ramsar sites. The Sundarbans is a transboundary forest; however, the focus of this chapter is Bangladesh where the Rampal power project is proposed. In Bangladesh, the Sundarbans is 61 per cent covered by land and 39 per cent by water.22 A large amount of forest resources including fuel wood, palm leaves for roofing of local houses, reed for making local mats, wood for paper, matchboxes and hardboard is collected annually from the Sundarbans. It is the largest source of honey in Bangladesh. More than 300,000 people including the indigenous community directly and more than 1 million people indirectly depend on the Sundarbans for their life and livelihoods. For these people, the forest is a source of their life and a safeguard from natural disasters.23 The state of the Sundarbans mangrove forest in Bangladesh is difficult to assess as there are multiple direct and indirect drivers of changes in ecosystem services ranging ibid paras 193 and 196. Ecosystem Services for Poverty Alleviation, Tackling the Gaps in ‘Market Environmentalism’ for Mangroves, accessed at www.espa.ac.uk/news-blogs/news/2015-06/64245. 20 Jyotirmoy Chaudhuri (ed), Living with Changing Climate: Impact, Vulnerability and Adaptation Challenges in Indian Sundarbans (Centre for Science and Environment 2012). 21 United Nations Environment Programme/World Conservation Monitoring Centre, World Heritage Site, Protected Areas and World Heritage, Sundarbans National Park, India; The Sundarbans, Bangladesh. 22 It is a rich area of biodiversity with 334 plant species and 639 species of wildlife including 49 species of mammals, 59 reptiles, 8 amphibians, 210 white fishes, 24 shrimps, 14 crabs and 43 mollusc species. UNESCO World Heritage List, The Sundarbans, accessed at https://whc.unesco.org/en/list/798. 23 IUCN World Heritage Outlook, Natural Hazard Regulation: Sundarbans National Park (India) and the Sundarbans (Bangladesh) (2014), accessed at www.worldheritageoutlook. iucn.org/benefits/benefits-case-studies/2014/natural-hazard-regulation-sundarbans-national-parkindia-and. 18 19

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EIA in mangrove forest ecosystem management: Rampal power plant 211 from climate change and new agricultural methods to specific infrastructural developments (e.g. the Farakka barrage on the river Ganges), and local policy-driven actions (e.g. commercial shrimp farming). According to a 2015 study,24 the management of ecosystems of the coastal zones of Bangladesh is yet to capture the complex dynamics of social-ecological systems (e.g. sea level rise, new land uses, modified river flows, urbanisation, new conservation measures). Forest ecosystem services therefore create a link between human well-being and the indirect and direct drivers of ecosystem change. Integrating ecosystem services in the EIA helps to foster such link and leads to a better understanding of the direct and indirect impacts of a development project on ecosystem services.25 The concept of ecosystem services has the potential to promote a comprehensive EIA with a focus on overall functions and associated values of forest resources and can lead to the identification of a wider range of stakeholders affected by potential changes to ecosystem services.26 While there are some concerns in relation to ecosystem services valuation and trade-offs,27 there are examples of integration of ecosystem services in EIA practice.28 Indeed, the ecosystem services are closely linked to the conservation and sustainable use of biodiversity and biodiversity plays an essential role in the functioning and resilience of ecosystems.29 The concept of ecosystem services ‘provides a means to translate biodiversity into aspects of human well-being, which can be taken into account in decision-making on proposed projects,

24 MD Sarwar Hossain and others, ‘Recent Changes in Ecosystem Services and Human Well-Being in the Bangladesh Coastal Zone’ (2016) 16(2) Regional Environmental Change 429. 25 Florence Landsberg and others, ‘Weaving Ecosystem Services into Impact Assessment’ (WRI 2013), accessed at https://www.wri.org/publication/weaving-ecosystem-services-intoimpact-assessment. 26 OECD, Strategic Environmental Assessment in Ecosystem Service (2008), accessed at http://www.oecd.org/environment/environment-development/41882953.pdf; Florence Landsberg and others, ‘Ecosystem Services Review for Impact Assessment: Introduction and Guide to Scoping’ (WRI Working Paper 2011), accessed at http://pdf.wri.org/working_papers/ecosystem_ services_review_for_impact_assessment_introduction_and_guide_to_scoping.pdf. 27 TP Karjalainen and others, ‘Integrating Ecosystem Services into Environmental Impact Assessment: An Analytic–Deliberative Approach’ (2013) 40 Environmental Impact Assessment Review 54; J Baker and others, ‘Ecosystem Services in Environmental Assessment: Help or Hindrance?’ (2013) 40 Environmental Impact Assessment Review 3. 28 European Commission, Guidance on Integrating Climate Change and Biodiversity into Environmental Impact Assessment (European Union 2013), accessed at ec.europa.eu/ environment/eia/pdf/EIA%20Guidance.pdf. International Finance Corporation, Performance Standards on Environmental and Social Sustainability (IFC 2012). 29 Millennium Ecosystem Assessment (n 16).

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212 Research handbook on law, environment and the global South programmes, plans and policies’30 and at the international level, the Ramsar Convention31 and the Biodiversity Convention32 acknowledge the link between biodiversity inclusive EIA and ecosystem services.

B. EIA AND THE RAMPAL POWER PLANT PROJECT: FROM GLOBAL NARRATIVE TO LOCAL APPLICATION EIA is an important international and domestic legal technique for integrating environmental considerations into socio-economic development and decision-making processes. The purpose of an EIA is to assess how the project might cause harm to the environment and to the people, their livelihoods and to other nearby developments. If appropriately conducted, it identifies measures to minimise the problems and outlines ways to improve the project’s suitability for contributing to sustainable local as well as national development. Principle 17 of the Rio Declaration states EIA as ‘a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority’.33 EIA is a process that helps to determine ‘how a project can proceed with minimal or no environmental consequences while accommodating economic needs’.34 First, it provides the decision-makers with information on the environmental consequences of proposed activities, and, in some cases, programmes and policies, and their alternatives. Second, it requires decisions to be influenced by that information. Third, it provides a mechanism for ensuring the participation of potentially affected persons in the decision-making process.35 The International Court of Justice (ICJ) has also recognised the importance of EIA in the Nuclear Tests case,36

30 CBD, Biodiversity-Inclusive Impact Assessment: Information Document in Support of the CBD Guidelines on Biodiversity in EIA and SEA (2005) 9, accessed at https://www.cbd.int/doc/ reviews/impact/information-guidelines.pdf. 31 Ramsar Convention Secretariat, Impact Assessment: Guidelines on Biodiversity-Inclusive Environmental Impact Assessment and Strategic Environmental Assessment (Ramsar Convention Secretariat, Ramsar Handbooks for the Wise Use of Wetlands, vol 16, 4th edn, 2010). 32 CBD, Impact Assessment: Voluntary Guidelines on Biodiversity-inclusive Impact Assessment, COP Decision VIII/28, UN Doc UNEP/CBD/COP/DEC/VIII/28 (2006). 33 Before Rio, the first indirect recognition of EIA can be found in the World Charter for Nature, UN General Assembly Resolution 37/7, 28 October 1982, UN Doc A/RES/37/7. Agenda 21 calls for the assessment of impacts upon the environment and the monitoring of those effects and changes. See Agenda 21, Report of the UN Conference on Environment and Development, Rio de Janeiro, 3–14 June 1992, UN Doc A/CONF.151/26, chapters 35, 40. 34 Kevin R Gray, ‘International Environmental Impact Assessment: Potential for a Multilateral Environmental Agreement’ (2000) 11(1) Colorado Journal of International Environmental Law and Policy 83, 87. 35 Philippe Sands, Principles of International Environmental Law: Frameworks, Standards and Implementation (vol I, Manchester University Press 1995) 579. 36 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, 226. Dissenting Opinions of Judge Weeramantry and Judge Palmer.

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EIA in mangrove forest ecosystem management: Rampal power plant 213 Gabcikovo-Nagymaros Project (Hungary/Slovakia) case37 and in the Pulp Mill case.38 The World Bank requires EIA as a tool to assess projects financed through the Bank since 1989,39 and developed a ‘Biodiversity and Environmental Assessment Toolkit’.40 Several multilateral environmental agreements have incorporated provisions on EIA.41 The most relevant in the context of the Rampal power plant project is Article 14 of the CBD, of which Bangladesh is a party, states that each member state ‘as far as possible and as appropriate, shall’: Introduce appropriate procedures requiring environmental impact assessment of its proposed projects that are likely to have significant adverse effects on biological diversity with a view to avoiding or minimizing such effects and, where appropriate, allow for public participation in such procedures.42

This provision underscores that EIA procedures need to ensure that they fully account for the values of biodiversity. First, the commitment is to introduce ‘appropriate procedures’ into domestic EIA requirements, leaving it to Bangladesh to determine the particular modalities of how to implement the requirements (discussed in 1). Article 14 does not impose a direct obligation that is enforceable by other states (e.g. in the Rampal project scenario, neighbouring country India) to conduct EIAs before undertaking activities that pose risks to biological diversity.43 Second, the requirement restricts assessment to projects having ‘significant adverse impacts’ and requires the assessment of activities that are likely to have ‘significant’ impacts (discussed in 2). Third, there is an obligation under article 14 of the CBD to conduct an EIA where planned activities are likely to have significant impacts on the environment in another state (discussed in 3). The obligation to conduct a transboundary EIA was identified by the International Law Commission in its Draft Articles on Prevention of Transboundary Harm,44 and recognised by the ICJ in the Pulp Mills case.45

37 Gabcikovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, 7. Justice Weeramantry acknowledged the significance of ongoing assessment and continuing monitoring of a project while in operation. Judge Schwebel, speaking for the majority, took judicial notice of the vulnerability of the environment and the importance of having risks assessed on a continuous basis. 38 Pulp Mills on the River Uruguay (Argentina v Uruguay), Judgment, ICJ Reports 2010, 14, para 204. 39 World Bank, Operational Policies: Environmental Assessment, Doc OP 4.01. 40 World Bank, Biodiversity and Environmental Assessment Toolkit (World Bank 2000). 41 For e.g. Convention on Environmental Impact Assessment in a Transboundary Context, Espoo, 25 February 1991 [Article 2-7] [hereafter Espoo Convention], Protocol on Environmental Protection to the Antarctic Treaty, Madrid, 4 October 1991, 2941 UNTS 3. 42 Convention on Biological Diversity, Rio de Janeiro, 5 June 1992, 1760 UNTS 79, art 14(1)a [hereafter CBD]. 43 Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, ICJ Reports 2015, 665, para 164. 44 International Law Commission Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, UN Doc A/56/10 (2001), art 7. 45 Pulp Mills on the River Uruguay (Argentina/Uruguay) (n 38) para 204.

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214 Research handbook on law, environment and the global South Fourth, the obligation to assess expressly includes, ‘where appropriate’, procedures for public participation which is an essential element of EIA (discussed in C).46 As Craik states: ‘[i]n the context of biodiversity, the obligation to provide for public input recognizes the rights that individuals have in relation to the preservation and equitable use of biological resources, particularly where those resources are integral to the culture and livelihoods of local communities’.47 The CBD parties are assisted by a number of guideline documents to integrate biodiversity considerations into EIA practices, such as the Voluntary Guidelines on Biodiversity-inclusive Impact Assessment (2006),48 and the Akwé: Kon Voluntary Guidelines (2004) on environmental and socio-cultural assessment. The normative value of these guidelines cannot be ignored as they are negotiated under the auspices of the CBD and adopted by the Conference of the Parties. They identify key criteria for considering biodiversity-related impacts and elaborate ‘the manner by which the procedural requirements of EIA relate to the physical and social goals outlined in the CBD and other biodiversity related treaties’ such as the Wetlands Convention.49 Although there are concerns regarding the effectiveness50 of EIA, the application of EIA is a common practice to assess the potential impacts of a project on the local environment and community, and there several approaches and tools available to address the challenges associated to biodiversity inclusive EIA.51 1. Size and Location of the Project: Appropriate Procedures Followed? The government of Bangladesh has acquired a total of 1,834 acres of land for the construction of the power plant. The site is 14 kilometres north of the Sundarbans mangrove forest, on the Poshur River in the Ganges tidal floodplain in the southwest of Bangladesh. According to the government sponsored official EIA report on the Rampal project,52 the site averages 2 metres above sea level. This increases the risk factor as ‘the historical maximum surge factor reported is 5 metres’.53 While the official EIA 46 Neil Craik, ‘Biodiversity Inclusive Impact Assessment’ in Elisa Morgera and Jona Razzaque (eds), Biodiversity and Nature Protection Law (Edward Elgar Publishing 2017) 431. 47 ibid. See also CBD (n 42) Preamble. 48 Impact Assessment: Voluntary Guidelines on Biodiversity-Inclusive Impact Assessment, Decision VIII/28, Doc UNEP/CBD/COP/DEC/8/28 (2006). 49 Craik (n 46). Ramsar Convention (n 15). Also, the Convention on Migratory Species of Wild Animals, Bonn, 23 June 1979, 1651 UNTS 333. 50 M Cashmore and others, ‘The Interminable Issue of Effectiveness: Substantive Purposes, Outcomes and Research Challenges in the Advancement of Environmental Impact Assessment Theory’ (2012) 22(4) Impact Assessment and Project Appraisal 295. 51 Baker and others (n 27). A González and others, ‘Current Practice in Biodiversity Impact Assessment and Prospects for Developing an Integrated Process’ (2014) 32(1) Impact Assessment and Project Appraisal 3. 52 Bangladesh Power Development Board, Final Report on Environmental Impact Assessment of 2x (500–660) MW Coal Based Thermal Power Plant to be Constructed at the Location of Khulna (January 2013), page xxxi, accessed at www.indiaenvironmentportal.org.in/files/file/ EIA%20of%202x%20(500-660)%20MW%20Coal%20Based%20Thermal%20Power%20Plant% 20at%20Rampal%20in%20Bagerhat%20District,%20Khulna1.pdf. 53 Sharda and Buckley (n 7).

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EIA in mangrove forest ecosystem management: Rampal power plant 215 report expressed concern over the remoteness of the location, the government of Bangladesh, in 2014 and in 2016, approved construction of roads to improve road links. It is estimated that, once operational, the plant will require 3.8 million tons of coal per annum and the coal is planned to be imported from Indonesia, Australia and/or South Africa.54 The plant would release an estimated 7.9 million tons of carbon dioxide into the atmosphere each year. Imported coal will be brought into the plant site using vessels with ‘a total of 400–500 trips per year directly through the Sundarbans’55 creating additional risk of marine accidents and oil spills. In addition, to keep the river and canals navigable, regular dredging and widening of the Poshur river would be necessary. In addition, the power plant would rely on the Poshur river for water. What is the legal obligation to conduct an EIA for an infrastructure project such as this in Bangladesh? The EIA in Bangladesh is divided into several categories based on the nature of the development or manufacturing project. The rules and procedures of EIA are guided by the Environment Conservation Act 1995 and the Rules of 199756 with the aim to mitigate environmental impacts while allowing economic development. The Department of Environment under the Ministry of Environment and Forest of Bangladesh is in charge of issuing an environmental clearance, and has the power to penalise anyone in breach.57 The Bangladesh Environment Conservation Act 1995 gives the government the power, inter alia, to evaluate and review the EIA of various projects, activities and procedures for approval.58 According to the Environmental Conservation Rules 1997, the EIA procedure will pass through three tiers in order to optimise the resources required for conducting EIA studies. These three tiers are screening, Initial Environmental Examination (IEE), and detailed EIA. Application for site and environmental clearance should be made in a prescribed form along with payment of requisite fees.59 Based on the location, the size and the severity of potential pollution, the Conservation Rules create green, amber A, amber B and red categories of BankTrack report (n 7) 2. ibid 3. 56 In addition, the Bangladesh government has passed the Ecologically Critical Areas Management Rules, 2016, accessed at http://doe.portal.gov.bd/sites/default/files/files/doe.portal. gov.bd/policies/1c5d835d_eb38_4268_a93f_7c4ced2758c3/ECA%20Rules_25-09-16.pdf. 57 In its website, the Department of Environment underscores that it plays the role of a steward of the environment of Bangladesh and affirms the commitment to implement precautionary principle, accessed at www.doe.gov.bd/. 58 Along with a general rule-making power, section 20(2) adds that the rule may provide for the quality, standards for air, water, noise and soil for different areas for different purposes; regulate the establishment of industry and other development activity to protect the environment; formulate safe procedures for the use, storage and transportation of dangerous substances that shall be handled, shared and transported; lay down safety measures and remedial procedures to prevent accidents which may cause pollution of the environment; determine the standard limit for discharge and emission waste; lay down procedures to protect the environment and ecosystem; determination of fees for clearance and other services. 59 The Bangladesh Environment Conservation Act, 1995 states at section 12 that ‘no industrial unit or project shall be established without obtaining environmental clearance, in the manner prescribed by the rules, from the Director General’. The proviso adds a limitation stating that the government has the power to exclude any class of industries or projects from having the 54 55

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216 Research handbook on law, environment and the global South projects with respectively no, minor, medium and severe environmental impacts. A red category project requires a feasibility study report, IEE report and EIA report, environmental management plan, no-objection certificate, relocation plan, site clearance and environmental clearance.60 It should be noted that conducting both IEE and EIA leads to delay and additional cost. In addition, once the project proponents have received the site clearance, they may start land and infrastructure development at the project site while they await environmental clearance.61 The proposed power plant in Rampal does not fall under the green category,62 amber A category63 or amber B category.64 It is a red category65 project likely to cause severe environmental impacts and requires a detailed EIA report. While it is possible that the EIA may lead to the rejection of a project, neither the Conservation Act nor the Rules include any provision to evaluate ‘no-project’ as an option. The official EIA report for the Rampal power plant follows the law and includes the layout plan (indicating the site for the power plant, design of and time schedule for the power plant), a ‘no-objection certificate’ from the local authorities, environmental and social baseline conditions, pollution minimisation plan including emergency plan for mitigation of adverse environmental impacts, environmental monitoring plan and a cost-benefit assessment. No alternatives in terms of design, technology or location were suggested in the EIA study. The EIA study did not consider the cumulative impacts of the project which according to Craik requires ‘the project proponent to consider not only the impacts from their project by itself, but also how the effects of the project, when combined with the effects from other projects, will impact the environment’.66 a) Concerns regarding ‘who’ conducted the EIA Project proponents are responsible to prepare the EIA and obtain approval from the relevant authorities. Many national laws allow the use of government licensed or registered consultants or agencies.67 Within the context of Rampal project, the BPDB asked the Centre for Environmental and Geographic Information Services (CEGIS), an agency under the Bangladeshi Ministry of Water Resources, to conduct an EIA study environmental clearance. Rules 7 and 8 of the Environment Conservation Rules, 1997 deal with the environmental impact assessment, the clearance certificate and the time limit for such certificate. 60 Rafique Ahammed and Nick Harvey, ‘Evaluation of Environmental Impact Assessment Procedures and Practice in Bangladesh’ (2004) 22(1) Impact Assessment and Project Appraisal 63. 61 ibid 74. 62 The Environment Conservation Rules, 1997, r 7. 63 ibid. 64 ibid. 65 ibid, sub-rule 6 (gha). The red categories include industries such as tanneries, formaldehyde, chemical fertilisers companies, electricity generating companies, all types of mines, oil refineries, artificial rubber, paper and sugar mills, distilleries, refrigerator/air conditioner/air cooler producing companies, and so on. 66 Neil Craik, The International Law of Environmental Impact Assessment: Process, Substance and Integration (CUP 2008) 141. 67 UNEP, Assessing Environmental Impacts: A Global Review of Legislation (UNEP 2018) 43.

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EIA in mangrove forest ecosystem management: Rampal power plant 217 for the plant.68 The fact that the EIA was commissioned by an agency under the Bangladesh Ministry of Energy, conducted by an agency (i.e. CEGIS) under the Bangladesh Ministry of Water Resources, approved by the Ministry of Environment and Forest69 and for a project promoted by the government of Bangladesh, ‘undermines confidence that the EIA provides an objective, comprehensive analysis’.70 b) Concerns regarding the content of the EIA The Sundarbans area is rich in biodiversity and is home to Bengal tigers and river dolphins.71 The EIA study by CEGIS notes that the Rampal plant would be in the ‘wind risk zone’ of Bangladesh, a zone that has seen 16 cyclones in the past 25 years.72 According to the South Asians for Human Rights report, the project will have a huge damaging effect on the mangrove forest as equipment for construction will be transported through the river route. The resultant emission of oil, disposal of waste and pollution of sound and air will perilously affect the wildlife and overall ecosystem of the forest.73

Indeed, external experts have raised several concerns regarding the EIA process of the Rampal power plant project. A report74 highlights that the high level of CO2 emitted from the power plant, and the contamination of groundwater by the huge volume of waste (e.g. arsenic, mercury, cadmium, chromium) produced due to the burning of the coal are likely to destroy the mangrove forest and its ecosystem services.75 According to the Council on Ethics report, the EIA ‘contains no, or few, descriptions of what is required to avoid damaging the environment, and does not assess whether the proposed measures will be adequate’.76 This report is highly critical of the official EIA which inadequately handled the serious risk of environmental damage that will be caused by dredging, transportation and handling of ash from the power plant.77 The study was completed and submitted to the BPDB in January 2013. Department of Environment, Approval of Environmental Impact Assessment (EIA) Report for Proposed Khulna 1320 MW Coal Based Thermal Power Plant Construction Project at Rampal Upazila under Bagerhat district, Memo No: DoE/Clearance/50622011/206 (5 August 2013), accessed at https://www.bifpcl.com/download.aspx?file=BIFPCL270818213117.pdf. 70 Council on Ethics, Recommendation to Exclude NTPC Limited from the Investment Universe of the Government Pension Fund Global (3 December 2014) 13, accessed at http://nettsteder.regjeringen.no/etikkradet3/files/2017/02/ENGELSK-NTPC-tilr%C3%A5dningendelig23012015.pdf. 71 Bangladesh Power Development Board (n 52) 218. 72 ibid 184. 73 South Asians for Human Rights (n 7) 18. 74 ‘The proposed power plant will burn around 4.75 million tonnes of coal annually when more or less 0.71 million tonnes ashes and around 0.5 million tonnes sludge and liquid waste may be produced’. Abdullah Harun Chowdhury, ‘Environmental Impact of Coal Based Power Plant of Rampal on the Sundarbans (World Largest Mangrove Forest) and Surrounding Areas’ (2017) 2(3) MOJ Ecology and Environmental Science 86, accessed at http://medcraveonline. com/MOJES/MOJES-02-00022.pdf. 75 ibid. 76 Council on Ethics (n 70) 15. 77 ibid 6. 68 69

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218 Research handbook on law, environment and the global South In addition, the EIA report does not follow the ecosystem approach, nor does it explicitly or implicitly consider ecosystem services such as the provisioning, regulating, cultural, and supporting services, and associated impacts.78 Information that can be used to assess the impacts of the project on any type of ecosystem services can easily be included in the official EIA report. For example, provision services such as water, supporting services such as habitat, cultural services such as ecotourism, and regulating services such as regulation of water flows, erosion control and air pollution. 2. Likely Significant Adverse Impact: Precautionary Principle? The precautionary principle79 is the recognition that lack of certainty regarding the threat of environmental harm should not be used as an excuse for not taking action to avert that threat. Use of the principle promotes action to avert risks of serious or irreversible harm to the environment in such cases.80 Thus, the precautionary principle should be applied where there is a risk to human health and the environment ‘although the reality and extent thereof have not been “fully” demonstrated by conclusive scientific evidence, appears nevertheless to be adequately backed up by scientific data available at the time when the measure was taken’.81 The precautionary principle has been addressed extensively by scholars82 and international tribunals. The ICJ applied it as a general principle of international law,83 while the International Tribunal on the Law of the Sea pointed to a ‘trend towards making [precaution] part of customary international law’.84 The preamble of the CBD85 expressly incorporates this principle and it has played a significant role in the development of the Convention (e.g. Biosafety Protocol) and key decisions.86 Instead of a reactive and fragmented approach

Millennium Ecosystem Assessment (n 16). Rio Declaration on Environment and Development, 14 June 1992, UN Doc A/CONF.151/ 26/Rev. 1 (Vol. I), Annex II (1992) Principle 15. 80 Elizabeth Fisher and others, Environmental Law: Text, Cases and Materials (OUP 2013) 402, 419–31. 81 Pfizer Animal Health SA v Council, Case T-13/99, ECR-II-3305 (2002), para 144. 82 David Freestone and Ellen Hey (eds), The Precautionary Principle and International Law: The Challenge of Implementation (Kluwer 1996); Elizabeth Fisher and others (eds), Implementing the Precautionary Principle (Edward Elgar Publishing 2006); Arie Trouwborst, Precautionary Rights and Duties of States (Martinus Njihoff 2006); Joakim Zander, The Application of the Precautionary Principle in Practice (CUP 2010). 83 Pulp Mills on the River Uruguay (n 38) para 164. 84 International Tribunal for the Law of the Sea, Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Request for Advisory Opinion submitted to the Seabed Disputes Chamber) Advisory Opinion (1 February 2011) ITLOS Reports 2011, 10, para 135. 85 The CBD (n 42) preamble reads: ‘Aware of the general lack of information and knowledge regarding biological diversity and of the urgent need to develop scientific, technical and institutional capacities to provide the basic understanding upon which to plan and implement appropriate measures’. 86 CBD Decision V/5 (2000) para 23. CBD Decision IX/5 (2008) para 1(s). CBD Decision IX/16 C (2008) para 4. CBD Decision X/33 (2010) para 8(w). 78 79

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EIA in mangrove forest ecosystem management: Rampal power plant 219 to biodiversity protection, an ecosystem approach supported by the precautionary principle is often preferred.87 The precautionary principle is well established in the substantive law of Bangladesh.88 For instance, the Forest Act (1927, amended in 1989 and 2000) of Bangladesh integrates the precautionary principle with the creation of forest reserves, protected forests and exclusion of use.89 According to the Bangladesh Environmental Conservation Act 1995, any person affected or likely to be affected from the pollution or degradation of the environment may apply to the Director General (DG) for remedying the damage or apprehended damage. In cases of discharge of excessive pollutants, the expenses incurred to remedial measures to control and mitigate environmental pollution can be recovered from such persons as ‘public demand’.90 Moreover, the DG has the power to adopt remedial and safety measures to prevent probable accidents.91 The DG can advise the government to reject any manufacturing process, materials and substances likely to cause environmental pollution.92 Section 12 of the Environmental Conservation Act 1995 incorporates the precautionary principle by requiring industrial units or projects to be established after obtaining environmental clearance from the Department of Environment (DoE). Any violating unit may be shut down by the DG of the DoE. A note of caution while applying the precautionary principle as part of an ecosystem approach is that cost-effectiveness could serve as a ‘normative backdoor for business as usual’.93 The presence of economic considerations makes obvious differences in economic ability and this affects the preparedness of Bangladesh to take precautionary action. a) Potential adverse impact of the project on the environment and human health One likely significant impact of the Rampal project will be on the terrestrial as well as on marine biodiversity. Critics of the project stated that there are serious deficiencies include failure to carry out a separate EIA on the impacts of transporting coal through the Sundarbans; insufficient assessment of factors and risks relating to water consumption, transport and disposal of coal ash, and waste management; and weak 87 Arie Trouwborst, ‘The Precautionary Principle and the Ecosystem Approach in International Law: Differences, Similarities and Linkages’ (2009) 18 Review of European Community and International Environmental Law 33. 88 Jona Razzaque, Public Interest Environmental Litigation in India Pakistan and Bangladesh (Kluwer 2004) ch 3. 89 The Forest Act 1927, Act of XVI of 1927, accessed at http://bdlaws.minlaw.gov.bd/print_ sections_all.php?id=144. 90 Person, according to section 2(h), means any person or persons and also includes any company, association or corporation whether registered or not. Therefore, any charitable or non-governmental organisation can be termed as a person. Provision in India and Pakistan provides the same power to the agency or Board and incorporates the polluter pays principle. 91 Bangladesh Environment Conservation Act 1995, section 2(b). 92 ibid section 2(g). 93 Jutta Brunnée and Stephen Toope, ‘Environmental Security and Freshwater Resources: A Case for International Ecosystem Law’ (1994) 5 Yearbook of International Environmental Law 41, 69.

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220 Research handbook on law, environment and the global South assessment of impacts on existing livelihoods, in particular impacts on people who depend on the Pashur river and the fisheries and other resources within the Sundarbans.94

First, the EIA did not use the proper methodology for primary data collection of air, water, soil and biodiversity.95 The plant’s turbine, compressor, generator, cooling tower, and so on will generate huge noise, which may exceed the DoE limit. Discharged water from coal-based power plants will contain pollutants. The official EIA report proposes developing a ‘green belt’ around the plant to mitigate this problem.96 However, the pollution occurring in the intervening period of time until the growth of the ‘green belt’ is not mentioned. While the official EIA report mentions the noise pollution generated outside the plant by dredging activities and transportation of coal and heavy equipment through the rivers,97 the solution to these concerns are not offered. The project will use deep tube wells and water of the Poshur river for washing coal, which will push groundwater level down and is likely to cause significant harm to the ecosystem of the river. A report on the Rampal project shows that the project will draw around 25,000 cubic metres of water every day, which is really a threat for the environment.98 Second, both coal and other materials needed during construction and operation will be shipped to the power plant through the Sundarbans.99 Waste from the power plant will be carried along the same route. As the sailing route to the anchorage and transhipping area is very close to the border of a World Heritage Site,100 these activities raise the risk of accidents involving emissions very close to a vulnerable ecosystem.101 The third risk relates to the extensive dredging of riverbed and seabed areas.102 There is a high risk that this activity may place further strain on the already endangered mangrove forest and life in the river and appurtenant marine areas, which are also important to the local population.103 According to the project proponents, the company is taking the most stringent environmental protection measures, which are in line with the International Finance

Md Fazlur Rahman, ‘Questions over Rampal Coal-Fired Power Plant in Bangladesh’ The Daily Star (7 July 2015), accessed at www.thedailystar.net/frontpage/questions-over-rampal108712. 95 South Asians for Human Rights report (n 7) 28. 96 Bangladesh Power Development Board (n 52) 284. 97 ibid 434. 98 Chowdhury (n 74). 99 Bangladesh Power Development Board (n 52) 336. 100 ibid 109. 101 Bangladesh Poribesh Andolon, National Committee for Saving the Sundarbans, Nijera Kori, Waterkeepers Bangladesh, Protecting the Sundarbans World Heritage Site: Petition to UNESCO’s World Heritage Committee Concerning Imminent Threats Posed by the Proposed Rampal and Orion Coal-Fired Power Plants, 1 February 2016, 16, accessed at http:// earthjustice.org/sites/default/files/SUNDARBANS%20WHC%20PETITION%201%20FEB%202 016.pdf. 102 ibid 19. 103 ibid. 94

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EIA in mangrove forest ecosystem management: Rampal power plant 221 Corporation standards.104 The plant would not harm cultural heritage and biodiversity and living natural resources. The EIA has been done in line with the laws of the country.105 However, the BankTrack report found that the Rampal project fails to comply with six of the ten principles of the Equator Principles.106 The Equator Principles launched in 2003, revised in 2013,107 are a voluntary set of standards for determining, assessing and managing social and environmental risk in project financing. They were developed by private sector banks and based upon the environmental and social standards of the International Finance Corporation. Although EXIM Bank of India, the key investor of the project, has not signed the Equator Principles, this finding shows that, while determining and assessing the environmental and social risk in the Rampal project, the EXIM Bank did not follow ‘minimum standard for due diligence’.108 b) Potential harm, public interest and the role of the judiciary In deciding public interest cases, the judiciary in Bangladesh has applied the precautionary principle – although the application is limited.109 In September 2013, four Supreme Court lawyers filed a writ petition seeking a direction to stop the construction of the Rampal power plant near the Sundarbans mangrove forest.110 The petition urged the court to direct the government to form a committee that includes national and international experts for giving a report assessing the impacts of the power plants on the environment and the lives of the common people of the surrounding area, and sought a stay order on the activities of the project until the committee issues a final report. In October 2013, the High Court rejected the petition on the ground that it lacks substantial merit and the petitioners had no jurisdiction to move such petition.111 It is interesting to note that, in India, the Kolkata bench of the National Green Tribunal rejected a proposed coal-fired power plant project as it was proposed in an ecologically fragile zone.112 There are other similar examples from India where the coal power 104 IFC, Performance Standards on Environment and Social Sustainability (2012), accessed at https://www.ifc.org/wps/wcm/connect/topics_ext_content/ifc_external_corporate_site/sustainabilityat-ifc/publications/publications_handbook_pps. 105 Anonymous, ‘BIFPCL Protests Propaganda against Rampal Power Plant’ (20 October 2015), accessed at http://en.ntvbd.com/business/11289/BIFPCL-protests-propaganda-againstRampal-power-plant. 106 BankTrack report (n 7). Equator Principles are based on IFC performance standards. 107 The Equator Principles (June 2013), accessed at http://equator-principles.com./wpcontent/uploads/2017/03/equator_principles_III.pdf. 108 ibid. 109 Dr Mohiuddin Farooque v Bangladesh and Others, WP No. 92 of 1996. See generally, Razzaque (n 88) ch 7. 110 Advocate Asaduzzaman Siddiqui and others v Bangladesh, WP No.10937 of 2013, accessed at www.hrpb.org.bd/images/frontImages/Writ_Petition_No._10937_of_2013_-_ Rampal_Power_plant.pdf. 111 Staff Correspondent, ‘HC Clears Way for Rampal’ The Daily Star (7 October 2013), accessed at www.thedailystar.net/news/hc-clears-way-for-rampal. 112 Debashis Konar, ‘NGT Turns down Proposal for Nayachar Thermal Power Project’ Times of India (16 September 2015), accessed at http://timesofindia.indiatimes.com/home/environment/ pollution/ngt-turns-down-proposal-for-nayachar-thermal-power-project/articleshow/48989824.cms.

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222 Research handbook on law, environment and the global South plants are being shut down113 due to high levels of air pollution caused by these power plants. It is unfortunate that the judiciary of Bangladesh, once known for its proactive role in dealing with public-interest-related concerns114 decided not to hear the case which is of national importance with potential significant impact on the environment and human health. The judiciary has not yet taken any suo motu initiative as, in the past, it did for many environmental concerns.115 Examples from regional human rights courts show that they can protect the individuals when the state, to regulate or control environmental pollution within its own territory, may interfere with human rights.116 In the absence of any regional human rights court in Asia, a Bangladeshi national can only challenge the matter in the national court. c) Contingency measures The Environmental Management Plan of the official EIA neither mentions nor addresses unexpected accidents like shipwrecks. The only place the official EIA report mentions the concern regarding shipwreck and collision is in the hazard assessment and consequence analysis.117 Interestingly enough, the EIA report states that ‘The Passur river is comparatively safe navigation route’.118 The EIA does not state either BIFPCL’s responsibility in case of an accident, or if anyone has a responsibility for coordination during such a situation. The EIA does not address the consequences of failing to comply with the regulations. The risk associated with the coal power plant on the biodiversity is emphasised by the UNESCO.119 The Council on Ethics underscores various factors relating to transportation and waste management which have not been addressed satisfactorily in the EIA suggesting a significantly increased risk of unwanted incidents in a unique, highly vulnerable area.120 This report is concerned about how accidents like shipwrecks will be handled and the extent of contingency measures. The Council on Ethics report concluded that NTPC will contribute to severe environmental damage through the building and operation of the power plant at Rampal, including related transportation services and that the risk is unacceptable. The Council on Ethics report also expressed its concern as the EIA study does not offer ‘measures to prevent sludge loss, comparable contingency systems or the risk of shipwreck’.121 Despite the increase in the volume of shipping traffic that the project will require, the EIA’s Environmental Management Plan does not address or include Express News Service, ‘Badarpur, Rajghat Power Station to be Shut Down’ Indian Express (5 December 2015), accessed at http://indianexpress.com/article/cities/delhi/badarpurrajghat-thermal-power-stations-to-be-shut-down/. 114 Razzaque (n 88) ch 7. 115 ibid. Suo motu initiatives allow the court to bring their own motion to protect public interest. 116 Dinah Shelton, ‘Legitimate and Necessary: Adjudicating Human Rights Violations related to Activities Causing Environmental Harm or Risk’ (2015) 6(2) Journal of Human Rights and the Environment 139. 117 Bangladesh Power Development Board (n 52) 344. 118 ibid. 119 Doak and others (n 11). 120 Council on Ethics (n 70). 121 ibid 17. 113

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EIA in mangrove forest ecosystem management: Rampal power plant 223 emergency plans and measures in the event of a shipping accident during coal transport, nor does it describe any existing or planned resources for containing or preventing the spread of toxic pollutants in such cases.122 The EIA report lacks any thorough risk analysis and contingency measure. The ineffective nature of contingency measures is evident when, in December 2014, an oil tanker accident in the Sundarbans of Bangladesh led to the release of approximately 358,000 litres of heavy fuel oil into the river and mangrove ecosystem.123 The response to the incident by the government ministry was excruciatingly slow. At the request of the Ministry of Environment and Forests of Bangladesh, a Joint UN/Government of Bangladesh Sundarbans Oil Spill Response mission was formed under the coordination of the United Nations Development Programme (UNDP).124 The objective of the mission was to strengthen the government’s efforts in containing and cleaning up the oil spill, as well as to provide support for assessing the situation and developing an action plan for a phased response and recovery. The UNDP recommendations125 on contingency responses and the emergency response facility have yet to be fully implemented. Without such measures and necessary resources to respond to any emergency, increased shipping and the associated risks are of serious concern.126 The lack of a formal oil spill contingency plan, weak response management and response infrastructure along with a lack of effective monitoring made the response and recovery efforts challenging. Until 2015, only 68,200 litres of oil were recovered127 – the rest is still polluting the forest ecosystems (e.g. water, fisheries, wildlife) and affecting human health and livelihood. While some people economically benefitted from the oil recovery scheme, the long-term impact on their health is devastating. The shipping of oil through the forest poses a serious threat to the forest and the forest-dependent communities and there is a lack of appropriate safeguards and mitigation measures in various channels. Within two months of imposing a ban on the shipping route, the government lifted the ban on cargo boats, although oil tankers remain banned.128 There have been further accidents involving container vessels carrying coal through the mangrove forest.129 It appears that there is no resource allocation to deal with oil spills and accidents during transportation in the mangrove reserved forest. The EIA ibid 10. UNDP and others, Sundarbans Oil Spill Assessment: Joint United Nations/Government of Bangladesh Mission (Joint UNEP/OCHA Environment Unit, December 2014), accessed at www.eecentre.org/Modules/EECResources/UploadFile/Attachment/Sundarbans_Report_18Feb2015 _FINAL_01.pdf. 124 ibid 5. 125 ibid 36. 126 This concern was highlighted in the UNESCO Mission Monitoring Report (n 119). 127 NTV Online, ‘Oil Stained Wastes Finally Being Removed from Sundarbans’ NTV Online (25 March 2015), accessed at http://en.ntvbd.com/bangladesh/2479/Oil-stained-wastes-finallybeing-removed-from-Sundarban/print. 128 NDTV, ‘Bangladesh Lifts Ban on Cargo Boats after Sundarbans Oil Spill’ NDTV (7 January 2015), accessed at www.ndtv.com/world-news/bangladesh-lifts-ban-on-cargo-boatsafter-sundarbans-oil-spill-723933. 129 UNB, ‘Vessels Sinking: Sundarbans Ecology Braces for Disaster’ The Daily Star (17 April 2018), accessed at www.thedailystar.net/country/vessels-sinking-sundarbans-ecologybraces-disaster-world-largest-mangrove-forest-1563724; Pinaki Roy, ‘Capsized Ships Endanger 122 123

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224 Research handbook on law, environment and the global South report includes no existing or future plans for preventing the spread of pollution in the event of an accident. 3. Likely Transboundary Impact of the Power Plant Project The proposed project will have a significant impact on the Indian part of Sundarbans as the mangrove forest is shared and interdependent.130 The burning of the coal at the Rampal plant is estimated to generate a high level of pollutants each year. It should be noted that the Indian government is promoting this coal-fired plant, while at the national level, India is moving away from coal-based power.131 As stated above, NTPC is an Indian state-owned company, and the loan component of the plant is to be provided by the Indian EXIM Bank.132 India’s state-run Bharat Heavy Electricals Limited (BHEL) has won the construction contract for the Rampal project.133 This is happening when India has made significant progress on its renewable energy capacity addition programme which targets 175 GW of renewable energy capacity by 2022.134 Disposal of coal ash at thermal power plants in India had contaminated soil, vegetation and groundwater with mercury, posing risks to soil and aquatic ecosystems, fish, wildlife and humans.135 If such an incident were to occur in the Sundarbans, it would pose significant health risks to wildlife, especially to the aquatic and semiaquatic organisms in the forest ecosystem. Mercury and heavy metal contamination of the aquatic food chain downstream from the power plant (both the Poshur River and the Bay of Bengal) may affect migratory birds and fish that travel widely through the Sundarbans Ecology’ Thethirdpole.net (14 May 2015), accessed at www.thethirdpole.net/2015/ 05/14/capsized-ships-endanger-sundarbans-ecology/. 130 Concerns about transboundary impacts are also expressed by Indian environmentalists. Ranjan Basu, ‘A Power Plant like Rampal Would Never be Allowed in India’ Dhaka Tribune (23 August 2016), accessed at www.dhakatribune.com/bangladesh/2016/08/23/power-plant-likerampal-never-allowed-india/. 131 Tim Buckley, ‘India Cancels Four Major New Coal Plants in Move to End Imports’ Renew Economy (10 June 2016), accessed at http://reneweconomy.com.au/india-cancels-fourmajor-new-coal-plants-in-move-to-end-imports-27494/. 132 Bangladesh-India Friendship Power Company Ltd (BIFPCL), a joint venture company, is composed of India’s National Thermal Power Company (NTPC) and state-owned Bangladesh Power Development Board (BPDB). The Export-Import Bank of India (EXIM Bank) plans to loan USD 1.6 Billion to BIFPCL, in essence financing the entire project debt. 133 Star Business Report, ‘Indian Firm Wins Contract to Build Rampal Power Plant’ The Daily Star (23 February 2016), accessed at www.thedailystar.net/business/indian-firm-winscontract-build-rampal-power-plant-576454. 134 PTI, ‘G20 Summit: India Pledges to Hike Renewable Energy Output to 175GW by 2022’ Indian Express (15 November 2015), accessed at http://indianexpress.com/article/india/indianews-india/g20-summit-india-pledges-to-hike-renewable-energy-output-to-175gw-by-2022/. 135 Krishna Gopal Ghosh and others, ‘Fly Ash of Thermal Power Plants: Review of the Problems and Management Options with Special Reference to the Bakreshwar Thermal Power Plant, Eastern India’ (2015) 5(2) International Journal of Geology, Earth & Environmental Sciences 74. See contrasting report, Central Electricity Authority, Report on Fly Ash Generation at Coal/Lignite Based Thermal Power Stations and its Utilization in the Country for the Year 2014–15 (New Delhi, 2015), accessed at http://cea.nic.in/reports/others/thermal/tcd/flyash_final_ 1415.pdf.

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EIA in mangrove forest ecosystem management: Rampal power plant 225 Sundarbans, having a ripple effect on all species along the food chain. Bengal tigers, for example, are known to migrate between the Sundarbans in Bangladesh and India, and could be harmed by the bioaccumulation of heavy metals in the aquatic food chain, which makes up part of their diet. The IUCN Red List of Threatened species includes the Bengal tiger.136 Air pollutants produced from burning coal and liquid discharges from the Rampal plants would threaten the entire Sundarbans ecosystem. Oil spills are a potential threat which cause immense damage, especially to aquatic fauna and seabirds and probably also to the forest itself into which oil could be carried by high tides. Unfortunately, no transboundary EIA has been conducted to assess the impacts of the Rampal project on the ecosystem and related services. The CBD affirms that conservation of biodiversity is a common concern and it indicates a ‘collective responsibility and an obligation to cooperate with other states to address the issue of common concern’.137 With that aim, the CBD provides that state parties must [p]romote, on the basis of reciprocity, notification, exchange of information and consultation on activities under their jurisdiction or control which are likely to significantly affect adversely the biological diversity of other States or areas beyond the limits of national jurisdiction, by encouraging the conclusion of bilateral, regional or multilateral arrangements, as appropriate.138

In a number of decisions,139 the ICJ affirmed that states have an international obligation to assess the transboundary environmental impact of activity that has the potential to harm a resource shared with another state. International laws allow participatory rights to individuals affected or potentially affected by harmful activities involving shared resources.140 These rights include the right of potentially affected states to notice and consultation, as well as extending public participation rights to members of the public in an affected state.141 The Aarhus Convention applies in general terms to the ‘the public’ or ‘the public concerned’, without distinguishing between those inside the state and others beyond its borders.142 However, the application of these laws is limited and does not apply to Bangladesh or India. 136 International Union for Conservation of Nature (IUCN), The IUCN Red List of Threatened Species, accessed at www.iucnredlist.org/details/136899/0. 137 Craik (n 46). 138 CBD (n 42) art 14(1)c. 139 See e.g. Gabcikovo-Nagymaros Project (Hungary/Slovakia) (n 37) where the ICJ confirmed that environmental risks must be assessed by states operating projects that have the potential to damage the environment; Case Concerning Pulp Mills on the River Uruguay (n 38) para 204. 140 See e.g. Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, Aarhus, 28 June 1998, 2161 UNTS 447, Article 3(9) [hereafter Aarhus Convention]; International Law Commission Draft Articles on Prevention of Transboundary Harm, UN Doc A/56/10 (2001), art 13. 141 See e.g. Aarhus Convention (n 140) Article 2(6); Espoo Convention (n 41). 142 Aarhus Convention (n 140) Articles 2(4) and 2(5). Jonas Ebbesson and others (eds), ‘The Aarhus Convention: An Implementation Guide’ (UNECE 2014) 55, accessed at www.unece.org/ fileadmin/DAM/env/pp/Publications/Aarhus_Implementation_Guide_interactive_eng.pdf.

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226 Research handbook on law, environment and the global South Does Bangladesh have an obligation to respect the human rights of Indian nationals? In the Aerial Spraying case, Ecuador in 2007 brought an action following cross-border spraying of herbicides by Colombian aircraft during anti-narcotic operations. Ecuador argued, inter alia, that the resulting pollution violated the human rights of indigenous people in Ecuador whose health, crops and livestock had suffered.143 According to Boyle, a state which fails to control harmful activities within its own territory which cause or risk causing foreseeable environmental harm extraterritorially does owe certain human rights obligations to those affected, because they are within its jurisdiction and control, even if they are not within its territory. It is most likely to violate the human rights of those affected extra-territorially if it does not permit them equal access to environmental information and participation in EIA permitting procedures, or if it denies access to adequate and effective remedies within its own legal system.144

It is also relevant to mention the Pulp Mill case where the ICJ held that: it may now be considered a requirement under general international law to undertake an environmental impact assessment where there is a risk that the proposed industrial activity may have a significant adverse impact in a transboundary context, in particular, on a shared resource.145

Thus, the ICJ has confirmed that in appropriate circumstances an EIA must be carried out prior to the implementation of a project that is likely to cause significant transboundary harm.146 In addition, environmentally harmful activities in one state that directly impact on humans in other states (i.e. India) may be protected at the national level if national law of the polluting state (i.e. Bangladesh) offers such protection. The potential adverse impacts of the Rampal power plant on the mangrove reserved forest will not stop at the border. At present, the relevant national laws of Bangladesh do not include any provision on transboundary EIA. Moreover, noting that Bangladesh and India have never resorted to international courts to settle transboundary disputes, this is unlikely to happen now in the context of the Rampal power plant project.

C. PUBLIC PARTICIPATION TOOLS TO MANAGE THE MANGROVE FOREST There are no recognised local rights within the Sundarbans Reserve Forest, and the population surrounding the Sundarbans has not yet been able to be a part of the strategies and activities aimed at conserving the forest and using its resources sustainably. The first National Forest Policy in 1979 failed to address issues such as 143 The proceedings are still pending before the court, accessed at www.haguejustice portal.net/index.php?id=9285. 144 Alan Boyle, ‘Human Rights and the Environment: Where Next?’ (2012) 23(3) European Journal of International Law 633, 640. 145 Pulp Mills on the River Uruguay (Argentina v Uruguay) (n 38). 146 ibid, para 205.

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EIA in mangrove forest ecosystem management: Rampal power plant 227 sustainability and community participation. The government claims the sole ownership of the Reserve Forest and has the ultimate authority to manage the forest resource.147 Community engagement is encouraged in the Forest Act 1927 (amended in 1989 and 2000) that promotes social forestry148 and the Social Forestry Rules 2004 (amended in 2011) are formulated to ensure participation of local communities in planning and management of social forestry programmes.149 In addition, the National Biodiversity Strategy Action Plan (2004) described co-management as ‘the sharing of authority, responsibility and benefits between government and local communities in the management of natural resources’.150 However, the forest-related laws of Bangladesh predominantly adopt a ‘command and control’ approach, demonstrate a lack of coherent policies and institutions, and encourage socially and ecologically conflicting centralised management regimes. A study on the EIA process of the Rampal project151 found that the process lacked adequate engagement and consultation with stakeholders. According to the report, most consultees did not have any clear idea about the extent of the project, project location or project risks. A report by Transparency International Bangladesh152 in early 2015 highlights that powerful political party leaders and administration officials had threatened to file cases and take legal actions against those who opposed the power plant. According to the report, CEGIS did not take any expert opinion. It adds: During a public hearing, various parties, including the environmentalists, highlighted the negative effects of the project that were ignored in the final EIA report. The local level stakeholder meetings were not participatory because the local community was threatened by influential local political leaders that their ‘tongues would be torn down if the project was opposed’. Because of this threat, the local community merely participated in the stakeholder meetings without voicing any complaints. The stakeholder meetings were organized in controlled environments of the implementing organization.153

The Rampal project has faced significant resistance from communities in the area and residents have conducted public demonstrations against the plant.154 In addition, there was lack of transparency around issues of compensation, resettlement and rehabilitation. The EIA does not propose or provide detailed measures for the 147 Forest Department, ‘Project Concept Note: Collaborative REDD+IFM Sundarbans Project (CRISP)’ (Forest Department, 2011). 148 The Forest Act 1927 (n 89) Section 28A. 149 Bangladesh, The Social Forestry Rules 2004. 150 Ministry of Environment and Forests, National Biodiversity Strategy and Action Plan for Bangladesh (2004) 89, accessed at www.indiaenvironmentportal.org.in/files/file/NBSAP% 20bangladesh.pdf. 151 BankTrack report (n 7). 152 Transparency International Bangladesh (n 7) recorded evidence of financial irregularities, unethical transactions and widespread corruption. 153 ibid 5. 154 Anonymous, ‘Dhaka Activists Protest against India-Bangladesh Power Plant’ Business Standard (16 August 2016), accessed at www.business-standard.com/article/news-ians/dhakaactivists-protest-against-india-bangladesh-power-plant-116081601033_1.html. Anonymous, ‘March to Stop Rampal Plant Begins’ Dhaka Tribune (10 March 2016), accessed at https://www. dhakatribune.com/uncategorized/2016/03/10/march-to-stop-rampal-plant-begins.

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228 Research handbook on law, environment and the global South mitigation and management of adverse social impacts.155 Moreover, no grievance mechanism was established to address and resolve the concerns of people who have been harmed by the acquisition of land. The EIA report for the Rampal plant states that the project would require displacement of 150 households. However, the South Asian for Human Rights report states that the number of people displaced would be much higher, and that 400 households have already been displaced.156 In addition, the displaced people have been compensated inadequately.157

D. THE RAMPAL PROJECT: THE WINNERS AND THE LOSERS The extent to which a sovereign country provides an opportunity to protect forest resources depends upon the values the country attributes to these resources despite external economic pressure, and the effectiveness of law and remedies that enable positive practical consequences. It is clear that, for a country like Bangladesh to preserve short-term economic gains, biodiversity conservation and human well-being are being disregarded. Even though the Bangladesh Environment Conservation Act 1995 underscores the relevance and importance of the ecosystem,158 the EIA process did not apply an ecosystem approach. While the ecosystem approach is closely linked to the precautionary principle as it calls for a cautious approach in respecting the limits of ecosystem functioning,159 the official EIA for the Rampal project failed to explore this link between ecosystem approach and the precautionary principle. In addition, there is very little understanding as to why certain ecosystem services need to be prioritised over others and ecosystem-related concerns are not integrated within the decision-making processes. This chapter highlighted that decision-making in relation to forest management is driven by financial concerns and commercial interests, and rights to access fundamental public goods from nature are jeopardised by short-term economic interests. There are ‘serious deficiencies in project design, planning, and implementation and due diligence obligations render the project noncompliant with the minimum social and environmental standards’.160 Another challenge here is the inability of the EIA to capture the multiple values (e.g. ecotourism, water quality, soil erosion) of the mangrove forest. It is clear that explicit assessments of ecosystem services in the EIA are absent, even when appraising social and environmental factors. Indeed, assessments of the key supporting, regulating, provisioning and cultural services in the EIA would allow more complete assessments of positive as well BankTrack report (n 7). South Asians for Human Rights report (n 7) 10. 157 ibid 11–12. 158 According to Section 2(g) of this Act, ‘ecosystem’ means the interdependent and balanced complex association of all components of the environment which can support and influence the conservation and growth of all living organisms. 159 CBD Decision V/6: Ecosystem Approach, in Decisions Adopted by the Conference of the Parties to the Convention on Biological Diversity at its Fifth Meeting, Nairobi, 15–26 May 2000, UN Doc UNEP/CBD/COP/5/23. 160 BankTrack report (n 7) 1. 155 156

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EIA in mangrove forest ecosystem management: Rampal power plant 229 as negative impacts, and influence priorities for impact mitigation and monitoring of such impacts. The conventional format of the EIA fails to integrate forest ecosystem services (e.g. regulating, provisioning services), nor does it adequately assess the risks on ecosystem services. The EIA for the Rampal project did not assess the impacts of the project on mangrove ecosystem services, biodiversity conservation and human well-being. It has not integrated the health, safety and security risks to communities resulting from direct project impact on provisioning and regulating ecosystem services. The risk management options offered in the EIA report are inadequate. It did not include any measure to compensate for the loss of provisioning ecosystem services resulting from land acquisition and involuntary resettlement. With the weaknesses of the conventional EIA process in relation to forest and biodiversity projects, biodiversity inclusive impact assessment is an option where the EIA process is adapted in such a way to adequately account for biodiversity. Biodiversity inclusive EIA requires consideration of sustainable use and equitable sharing of benefits as well as effective participatory processes. However, while EIA processes at the international and national level use a definition of environmental impact that is inclusive of biodiversity impacts, there are concerns in relation to the difficulty in using EIA to prevent harm to biodiversity resources due to the complex and dynamic nature of biological resources.161 Another option is to promote strategic environmental assessment (SEA)162 before individual projects are decided upon – although SEA has a limited application in the Global South.163 In Bangladesh, SEA is not available in formal legislation to assess strategic decisions related to the plans, programmes and policies and evaluate various available alternatives.164 In the context of the proposed Rampal power plant, the World Heritage Committee notes the importance of such assessment and requests the government of Bangladesh not to proceed with the Rampal power plant before conducting a SEA to assess the ‘indirect and cumulative impacts’ on the outstanding universal value of the Sundarbans.165 The government of Bangladesh is yet to follow this up. Public participation remains a central part of the EIA process. Biodiversity resource is a common concern with an intrinsic value and any project involving this resource should include a broad range of stakeholders. Adequate participation will require respect for the local environment and traditional practices as well as careful attention to ensuring that indigenous and local communities have sufficient resources and capacity Craik (n 46). SEA has ‘the advantage of assessing impacts at a landscape and regional scale before individual projects are decided upon. SEAs can also help to identify economically viable alternatives, for example different routes for roads, so as to avoid impacts on a World Heritage Site’. IUCN, World Heritage Advice Note: Environmental Assessment & World Heritage (18 November 2013), accessed at www.iucn.org/sites/dev/files/import/downloads/iucn_advice_note_ environmental_assessment_18_11_13_iucn_template.pdf. 163 UNEP (n 67). 164 For examples of World Bank promoted SEA in Bangladesh, see: Fernando Loayza, Strategic Environmental Assessment in the World Bank: Learning from Recent Experience and Challenges (World Bank 2012). 165 World Heritage Committee (n 12) 55–6. 161 162

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230 Research handbook on law, environment and the global South to effectively participate. The Rampal project has failed to demonstrate effective and timely engagement of stakeholders and to provide evidence of an accessible, legitimate and functioning grievance mechanism to address and resolve the concerns of people. Local communities are not being efficiently involved in the decision-making process across the full range of mangrove forest ecosystem services. Any partnership, be it within the framework of social forestry, will need to involve a broad range of local organisations, businesses and local community with the credibility to influence local strategic decision-makers. The sovereign rights over natural resources dictate that the state should act as a custodian of the natural resource for the well-being of the present and future generations.166 When the government fails to protect these rights, the loser is the people and nature. The ultimate loser is the government if it fails to sustainably manage the forest in accordance with its international commitments. In this lose-lose scenario, there is no winner.

CONCLUSION The EIA of a development project aims to provide decision-makers with a clear understanding of the potential environmental and related social and cultural impacts of the proposed activity and alternatives to it. The chapter argued for effective stakeholders’ involvement to assess the benefits arising from the ecosystem services. Leaving aside the weak regulations and institutional structure, this case study from Bangladesh highlighted the rhetoric and reality of legal provisions which are common in many countries of the Global South. Even with strong participatory rules, poor people may not have the financial means, technical knowledge or awareness to effectively participate in the EIA process. This chapter also argued that a more comprehensive ecosystem services approach to EIA will help to avoid the loss of irreplaceable biodiversity, compensate the loss of biodiversity, apply a precautionary approach and adopt contingency and post-decision monitoring measures. There are strong arguments to support that EIA should not simply be an ‘add on’ process and should be fully integrated at the national level and, where appropriate and relevant, the EIA process needs to capture the multiple values of ecosystem services. Indeed, various ways to integrate ecosystem services in the EIA are being developed and there are concerns in relation to valuation and trade-offs. While undertaking EIAs, the intrinsic value of biodiversity should not be sidelined to make space for economic development that is overtly human centric.

166 UN General Assembly Resolution 1803 (XVII), Permanent Sovereignty over Natural Resources, 14 December 1962, UN Doc A/RES/1803 (XVII), states that ‘the right of people and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the well-being of the people of the State concerned’. Also, International Law Association, Declaration of Principles of International Law Relating to Sustainable Development, New Delhi, 6 April 2002, UN Doc A/CONF.199/8.

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12. Forests, people and poverty: failing to reform the global development paradigm Feja Lesniewska

INTRODUCTION Tensions in many regions in the Global South over forest lands, resources, peoples’ user rights, access and protection, have their origins in a development paradigm adopted in the mid-1940s. This has reinforced, and often added to, inequitable and/or unsustainable forest related laws from the colonial period. Recent initiatives to place a financial value on forests’ ecosystem functions have frequently resulted in perverse outcomes for dependent communities. For example, the development of new property rights included in carbon sequestration contracts often further limit indigenous peoples’ access rights over ecosystem functions essential to their livelihoods and cultures. As such, forestry in the Global South today continues to be a sector beset by high levels of poverty amongst communities, unsustainable management practices and ecosystem degradation. The central argument in this chapter is that international and transnational initiatives to revise the dominant development paradigm established after World War Two continue to reinforce poverty, unsustainable forest management and ecosystem degradation. In 2015, 20 per cent of the world’s population consumed 80 per cent of the world’s resources, and a mere 62 individuals possessed the same wealth as the entire 3.6 billion of the world’s poorest people.1 The numerous transnational agreements, declarations and pledges to deliver increased value based development that is sustainable for forests, as well as contributing to alleviating poverty amongst forest dependent peoples, are ultimately undermined by a legal order whose raison d’être is unlimited economic growth, be that sustainable or otherwise. It would appear that international, regional and national law, policy and governance’s very DNA perpetuates inequity and ecosystem loss despite protestations otherwise.2 A key question as we attempt to address the transnational global multilevel public goods challenges to the planetary 1 Deborah Hardoon, Wealth: Having it All and Wanting More (Oxfam International 2016) 2. 2 Michael Hardt and Antonio Negri, Empire (Harvard University Press 2001); Antony Anghie, Imperialism, Sovereignty and the Making of International Law (CUP 2007); John Bellamy Foster and others, The Ecological Rift: Capitalism’s War on Earth (Monthly Review Press 2010) 53; Burns H Weston and David Bollier, Green Governance: Ecological Survival, Human Rights, and the Law of the Commons (CUP 2013) 3; Karin Michelson, ‘International Law as a War against Nature? Reflections on the Ambivalence of International Environmental Law’ in Barbara Stark (ed), International Law and its Discontents: Confronting Crisis (CUP 2015) 83.

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232 Research handbook on law, environment and the global South ecosystem in the new era of the Anthropocene is whether this international development paradigm can be transformed for the better.3 The chapter begins (Section A) by outlining the conflicting values and policy related processes concerning forests. Section B follows to review the tensions between sovereign and human and indigenous peoples’ rights that exist within many forested countries in the Global South. Section C focuses on how interventions to change the development paradigm have manifested in the forestry sector, and what the implications are for forest dependent peoples and ecosystems. Before the conclusion, Section D examines how new forest markets like carbon sequestration continue the development model paradigm perpetuating long-standing problems for forest dependent communities and indigenous peoples. The chapter concludes by reflecting on the future directions for forest law and policy within the Anthropocene.

A. BACKGROUND: CONFLICTING VALUES AND POLICY PROCESSES Forested territories have, and continue to, host multiple ecosystems containing millions of species of flora and fauna that help sustain planetary life on Earth. Humans have always depended on forests for food, water, medicines and raw materials.4 They have also formed fundamental cultural foundations for worldviews developed by multiple indigenous peoples throughout time. Forests’ ecological and cultural wealth is under threat largely due to conflicts between the values different users place on these resources. Modern industrialization has exponentially driven deforestation, reconfiguring many peoples’ relationships with forests as they become city dwellers. The majority of people, especially in the Global North but also increasingly in the Global South, now solely experience forests materially via mass produced commodities and/or on ecotourism holidays to managed conservation areas. Tropical forest regions in the Global South have suffered most from deforestation globally during the last century.5 Primary deforestation currently principally affects middle- to low-income countries with tropical forests. In 2015, 49 million hectares of forest were lost due to deforestation, fires and other causes including diseases. This was the second largest loss since the start of the twenty-first century.6 Currently large-scale commercial agriculture accounts for 40 per cent of deforestation in tropical forest regions, while local subsistence agriculture including collection of firewood accounts for 33 per cent with infrastructure (10 per cent), urban expansion (10 per cent) and 3 From the mid-twentieth century fundamental shifts began in the state and functioning of the Earth System driven by exponential increases in natural resource intensive human development – Will Steffen and others, ‘The Trajectory of the Anthropocene: The Great Acceleration’ (2015) 2(1) The Anthropocene Review 81. 4 Michael Williams, Deforesting the Earth: From Prehistory to Global Crisis (University of Chicago Press 2006) 3–87. 5 FAO, State of the World’s Forests: Forests and Agriculture – Land-use Challenges and Opportunities (FAO 2016) 7. 6 Mikaela Weisse and others, Global Tree Cover Loss Remains High (World Resources Institute 2017).

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Forests, people and poverty: failing to reform the global development paradigm 233 mining (7 per cent) being the other main drivers of forest loss.7 There are important regional variations to these statistics, for example, large-scale agriculture drives 70 per cent of deforestation in Latin America.8 In Africa, large-scale agricultural conversion is responsible for one-third of deforestation where small-scale agriculture and fuelwood collection are the more significant drivers.9 Trends point towards not just a continuation of high rates of forest loss but also to further ecosystem degradation.10 Forest law and governance reforms have primarily sought to reverse such trends. For decades international law and policies, conservation and development initiatives plus, more recently, multinational enterprises’ (MNE) business strategies, have increasingly acknowledged that forest ecosystems and resources can contribute to improving socio-economic conditions for forest dependent communities and indigenous peoples.11 Since the start of the twenty-first century a new dynamism has taken hold with forests’ carbon sequestration capacity, especially tropical forests, being identified as a development opportunity and put forward to improve forest dependent peoples’ livelihoods. Forest carbon mitigation measures became a core component in the negotiations for a post-2012 agreement to the United Nations Framework Convention on Climate Change (UNFCCC).12 Many parties to the UNFCCC’s 2015 Paris Agreement have included commitments to increase the size and resilience of their national forest stock in their Intended Nationally Determined Contributions (INDCs).13 The 1992 Convention on Biological Diversity promoted a more holistic approach to development and forests pioneering an ecosystem approach that also recognized the value of indigenous peoples’ traditional knowledge to maintaining and protecting forests, albeit subject to parties’ national legislation on their rights.14 During this time non-state actors have become leading actors in transnational forest governance pioneering standards, targets and certification schemes. The UN’s 2014 New York Declaration on Forests is an example where MNEs set ambitious targets to end natural forest loss by 2030 and restore at least 350 million hectares of forests and degraded landscapes.15 Although many MNEs are introducing new initiatives and partnerships to achieve this goal, in reality the concept of zero (net) deforestation which the Declaration posits is poorly defined making it difficult to trust claims that newly planted forests can compensate for converted forests to make sustainable supply chains FAO (n 7) 12. ibid 14. 9 ibid 15. 10 ibid 16. 11 Constance L McDermott and others, ‘Mapping the Core Actors and Issues Defining International Forest Governance’ in Jeremy Rayner and others (eds), Embracing Complexity: Meeting the Challenges of International Forest Governance – A Global Assessment Report Prepared by the Global Forest Expert Panel on the International Forest Regime (International Union of Forest Research Organizations 2010) 19. 12 UNFCCC Decision1/CP.13 – Bali Action Plan, UN Doc FCCC/CP/2007/6/Add.1 (2007). 13 Nicklas Forsell and others, ‘Assessing the INDCs’ Land Use, Land Use Change, and Forest Emission Projections’ (2016) 11(26) Carbon Balance and Management 1. 14 Convention on Biological Diversity, Rio de Janeiro, 5 June 1992, 1760 UNTS 79, art 8(j). 15 New York Declaration on Forests and Action Agenda (23 September 2014), accessed at https://www.undp.org/content/dam/undp/library/Environment%20and%20Energy/Forests/New% 20York%20Declaration%20on%20Forests_DAA.pdf. 7 8

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234 Research handbook on law, environment and the global South of the forest-risk commodities: palm oil, soya, beef, but also timber, pulp and paper.16 Finally, the 2015 United Nations Sustainable Development Goals (SDGs) are now seen by the international community as offering a new opportunity through which to devise law and policy that will realize inclusive pro-poor forest management by aiding the development of integrated sustainable land-use planning, like ecosystem restoration.17 All these initiatives have resulted in an ever-evolving transnational multilevel, if fragmented, forest regime;18 a regime that now goes far beyond the classical international state based legal structures as more non-state actors become involved in governance reform processes.19 The international forest regime contains multiple references to the interrelationship between development, rights and poverty eradication. Yet despite states and non-state actors’ multiple revisions, additions and reinterpretations of development narratives regarding forests indicators point to ongoing pressures driving deforestation and degradation. Continued investments in large-scale extraction of primary resources located in, on and beneath forests increase the risks to improving forest peoples’ livelihoods.20 Rising consumption in markets, primarily from the middle and upper classes in developing and emerging economies, shows little sign of halting.21 Climate change impacts, like forest fires and drought, as well as the consequences of response measures adopted to mitigate climate change, continue to add further pressures to the global forest stock, such as bioenergy carbon capture and storage.22 Optimistic scenarios for forests and forest dependent peoples’ futures are frequently based upon assumptions that transformations, perceptible in a limited number of cases, can be upscaled and reproduced in multiple contexts in a relatively short space of time. They are also based on the idea that implementing these policies will achieve long-standing objectives including fair, equitable and just development for the poorest forest dependent peoples.23 Yet limited analysis by such advocates of embedded power imbalances regarding law and policy development and its execution in reality, especially between forest dependent peoples and governments (both in the Global South and the Global North) and MNEs, leaves these foresight scenarios open to question.24 Thais Linhares-Juvenal and Till Neeff, ‘Definitions Matter: The Varying Zero Deforestation Concepts and Performance Indicators’ (2017) 58 ETFRN News 3. 17 FAO (n 7). 18 Lukas Giessen, ‘Reviewing the Main Characteristics of the International Forest Regime Complex and Partial Explanations for its Fragmentation’ (2013) 15(1) International Forestry Review 60. 19 Jessica Green and Graeme Auld, ‘Unbundling the Regime Complex: The Effects of Private Authority’ (2017) 6(2) Transnational Environmental Law 259. 20 see FAO Forestry Production and Trade database – accessed at www.fao.org/forestry/ trade/en/. 21 ibid. 22 Intergovernmental Panel on Climate Change, Climate Change 2014: Impacts, Adaptation and Vulnerability – Regional Aspects (CUP 2014). 23 Frances Seymour and Jonah Busch, Why Forests? Why Now? The Science, Economics, and Politics of Tropical Forests and Climate Change (Center for Global Development 2016). 24 Tim Forsyth, Critical Political Ecology: The Politics of Environmental Science (Routledge 2003) 77. 16

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Forests, people and poverty: failing to reform the global development paradigm 235

B. A CONTESTED LEGAL TERRITORY: FORESTS, SOVEREIGNTY AND RIGHTS In the aftermath of World War Two, newly independent states sought to assert sovereignty over natural resources. Meanwhile, countries in the Global North established an economic agenda and institutional structures to advance trade, establish an international monetary system and fund reconstruction in Europe and development in the Global South.25 The apparent control over resources, which the newly independent states secured in 1962 with the adoption of UN General Assembly Resolution 1803 (XVII), is fundamentally compromised by a universalist Modernist development ideology that is founded on Western philosophical values. Yet many developing countries are aligned with the political and economic objectives of Western modernity that perpetuate the exploitation of natural resources.26 Time and again state authorities in the Global South have facilitated exploitation, often by allocating concessions to national and MNEs of forest resources. Frequently this has undermined communities and indigenous peoples’ livelihoods under a pretext of development. At the domestic level states in the Global South more so than the Global North have exercised centralized control over natural resources, a situation that has resulted in inequitable access to and use of natural resources throughout their populations. Newly independent states frequently perpetuated the ‘colonisers’ mentalities.27 Many primary laws in newly independent states, such as constitutions, established virtually absolute state ownership and control over natural resources.28 Several countries drew on former colonial regulation as a template for their subsequent statutory laws relating to forests.29 The power over resources held by the state in many former colonies has often not benefitted forest dependent communities and indigenous peoples. Communities who depend on access and use of forest resources became virtual ‘squatters’ who lived at the mercy of the statutory authorities.30 This has, and continues, to be a significant obstacle to forest communities and indigenous peoples securing legal rights over forest land and resources to which they have historical customary claims. Opposition from communities and indigenous peoples to forest resource appropriation by states and MNEs is increasingly portrayed by governments in the Global South as being anti-development and, by implication, against the national interest.31 This tension between sovereign rights and forest peoples’ rights, both those individual 25 Ruth Gordan, ‘Unsustainable Development’ in Shakwat Alam and others (eds), International Environmental Law and the Global South (CUP 2015) 50, 54. 26 Boaventura de Sousa Santos (ed), Cognitive Justice in a Global World: Prudent Knowledges for a Decent Life (Lexington Books 2007) 44. 27 ibid 2. 28 Andy White and Alejandra Martin, Who Owns the World’s Forests: Forest Tenure and Public Forests in Transition (Forest Trends 2002). 29 For a comprehensive overview of forest laws globally, see Constance McDermott and others, Global Environmental Forest Policies: An International Comparison (Earthscan 2010). 30 Liz Alden Wiley, ‘The Law is to Blame’: The Vulnerable Status of Common Property Rights in Sub{Saharan Africa’ (2011) 42(3) Development and Change 733. 31 John Knox, Environmental Human Rights Defenders: A Global Crisis (Universal Rights Groups 2017).

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236 Research handbook on law, environment and the global South human rights and collective rights for indigenous peoples, is one that is continually distorted and manipulated via the development paradigm in the Global South. The appeal to protect human and environmental rights of communities and indigenous peoples to governments is itself often couched within development rhetoric emphasizing the link between poverty eradication and a healthy environment.32 The shallow environmentalism of transnational law, epitomized by the sustainable development principle and centred upon the principle of common concern, offers no obstacle when the global development model continues to be based on a materialist growth paradigm. As the following section will illustrate despite various efforts to revise this development paradigm the frictions between dominant elite actors, both in the Global North and the Global South, remain limiting the effectiveness of initiatives to reduce poverty amongst forest communities and maintain ecosystems sustainably.

C. THE DEVELOPMENT PARADIGM: PHASES AND FOREST POLICIES Trade was placed front and centre in the post-World War Two development strategy devised by the United States and Europe. This economic model has serious implications for the construction of law as a consequence fostering inequitable international investment deals that promote export-orientated production at low cost and the resulting environmental impacts of resource exploitation, as well as opening developing countries markets up for imported goods from the Global North.33 Newly independent states, many of whom were already disadvantaged economically after colonialism and the war, found from the outset that such free trade within the development paradigm rarely delivered fair and just benefits. So, although the centrality of the state has itself not been called into question because international legal authority is understood as derived from state authority, what actually has emerged in regard to control over natural resources has been a calculated appropriation by the Global North, and other global elites, of the Global South’s wealth under unfair economic terms.34 In 2016 the formal legal timber sector only contributed 1 per cent to the global economy, around 600 billion USD providing formal employment to 50 million people.35 This figure does not include the informal forest economy sector. The informal forest economy contributes to the overall food and energy security, as well as health, of approximately 2.4 billion people.36 These figures make it clear that even in 2016 when 32 John Knox, Special Rapporteur on the Human Rights and the Environment, claimed that ‘[u]nless the international community strengthens its support for, and improves its protection of, environmental human rights defenders, the full enjoyment of human rights and the realisation of the 2030 Sustainable Development Goals will be impossible’ (ibid). 33 Joan Martinez-Alier, The Environmentalism of the Poor: A Study of Ecological Conflicts and Valuation (Edward Elgar Publishing 2003) 214. 34 Joseph HH Weiler, ‘The Geology of International Law: Governance, Democracy and Legitimacy’ (2003) 63 Zeitschrift für Ausländisches Offentliches Recht und Völkerrecht 547, 553. 35 World Bank (n 2). 36 ibid.

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Forests, people and poverty: failing to reform the global development paradigm 237 fewer people are directly dependent on forests for their livelihoods and sustenance than after World War Two that the informal economy is more valuable than the formal international trade one. Despite this the priority amongst international development advocates, especially states and international financial organizations like the World Bank, has been, and continues to be, establishing effective, efficient, market trading mechanisms to increase the exchange value of forest products and services. As this section illustrates international trade, using market-based mechanisms, has perpetuated poverty, inequality for forest dependent peoples and forest ecosystem degradation throughout the last seven decades despite several policy reconfigurations within the dominant development paradigm.37 1. Phase 1: Planned Extraction Forest loss increased rapidly, especially in developing countries, in the post-World War Two era. Much of the post-war deforestation in developing countries resulted from development related investments via the new Bretton Woods institutions, especially the World Bank Group, in hydropower, roads and other infrastructure projects.38 By the early 1980s evidence of tropical deforestation resulted in the UN Food and Agriculture Organization (FAO), along with the UN Environment Programme (UNEP) and the UN Economic, Social and Cultural Organization (UNESCO) holding an Expert Meeting on Tropical Forestry to consider a more directive interventionist strategy by the FAO’s Committee on Forest Development in Tropics (CFDT).39 In collaboration with others a Tropical Forest Action Plan (TFAP) was devised and adopted at the World Forestry Congress in Mexico in June 1985.40 The TFAP was composed of five elements: integrating forest and land use; promoting the harvesting and developing markets for forest products; national fuelwood and energy programmes; conservation of tropical forest ecosystems and genetic resources and strengthening institutions.41 These elements were the basis for all subsequent National Forest Action Plans (NFAP). Supported by international finance, especially from the World Bank, forest management planning became a requirement for developing countries seeking funding to invest in the sector. By 1990, 79 tropical forest countries were undertaking a NFAP or had expressed an interest in so doing.42 This set Lorenzo Cotula, Foreign Investment, Law and Sustainable Development: A Handbook on Agriculture and Extractive Industries (IIED 2014). 38 Michael Williams, Deforesting the Earth: From Prehistory to Global Crisis (University of Chicago Press 2003). 39 FAO Committee on Forest Development in the Tropics, Report of the Sixth Session, Rome, 18–21 October 1983, Doc FO/FD/83/Rep. The FAO Committee on Forest Development in the Tropics first met in October 1967 and met subsequently every two years. 40 CFDT, Tropical Forestry Action Plan (Food and Agriculture Organization, 1985). The CFDT was given the authority to review international cooperation on forest conservation and development. 41 FAO, World Bank, World Resources Institute and United Nations Development Programme (UNDP), The Tropical Forestry Action Plan (FAO 1987) 8. 42 cited in David Humphreys, Forest Politics: The Evolution of International Cooperation (Earthscan 1996) 42. 37

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238 Research handbook on law, environment and the global South a precedent that has become fundamental to national forest management subsequently. International organizations, using expert consultants, usually from the Global North, became increasingly involved in forest resource management regulation and policy in tropical forest countries.43 This added to the forest communities and indigenous peoples’ marginalization in forest law and policymaking processes despite emerging commitments to procedural rights. The optimism was short lived for the TFAP as evidence mounted that deforestation rates were increasing. From 1980–89 deforestation in most tropical forest countries increased, exceptionally large rises occurred in: Brazil (133 per cent), Cambodia, (952 per cent), Congo (198 per cent), Myanmar (392 per cent) and Venezuela (563 per cent).44 TFAP was increasingly viewed as a cause of, not a solution to, deforestation given the emphasis on increasing economic material value for an international market.45 By the end of the decade non-governmental organizations (NGOs) but also the G7 governments pushed for the World Bank and the FAO to reform the TFAP.46 TFAP was a testimony to the failure of interventionist natural resource management by experts who had limited understanding of the complex political ecological context of forests, forest communities and peoples within a plural legal cultural environment. Prior to the TFAP a tropical timber trade agreement was initiated under the auspices of the UN Conference on Trade and Development (UNCTAD).47 The Agreement encouraged increased processing of timber; industrial timber reforestation; and marketing and distribution of tropical timber exports.48 It was primarily an agreement to ‘promote the expansion and diversification of international trade in tropical timber’.49 The International Tropical Timber Agreement (ITTA) was counter to the apparently more nuanced TFAP. The voting structure for members of the International Tropical Timber Organisation (ITTO), the administrative body for the ITTA, was a key reason behind the problem. The ITTA, which allocated the largest share of votes to the biggest importers and exporters, incentivized producer countries to maximize the harvest of their tropical forests. In 1985 Brazil, Indonesia and Malaysia were the exporter countries with the largest share of votes. Japan and Europe held the majority of importer country votes.50 Today Brazil, Indonesia and Malaysia continue to have the highest rates of deforestation by volume in the world. With the ITTA there was no engagement by non-state actors formerly. However, MNEs and state-owned forestry enterprises could lobby member states (both from the North and South). This was more difficult for forest communities and indigenous peoples who had little direct access to the ITTA negotiations and subsequent procedural The FAO, UNDP and the World Bank were the main donors to the TFAP. FAO, Tropical Forest Resources (FAO 1981). 45 Humphreys (n 44) 48. 46 For a full account of the key events and TFAP process see Humphreys (n 44) 31. 47 Proceedings of the United Nations Conference on Trade and Development, Fourth Session, Nairobi, 5–31 May 1976, Volume I, Report and Annexes (United Nations 1977). 48 International Tropical Timber Agreement, Geneva, 1 February 2006, UN Doc TD/TIMBER.3/12, art 1. 49 ibid Article 1(b). 50 International Tropical Timber Agreement, Geneva, 18 November 1983, 1393 UNTS 67, Annex A and B. 43 44

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Forests, people and poverty: failing to reform the global development paradigm 239 processes. The ITTA had no explicit benefit-sharing obligation to forest dependent communities and indigenous peoples. However, new approaches to forest trade began to be mooted that emphasized the potential to increase the development value of forests within a sustainable and socially fairer environment. The first was sustainable forest management (SFM) and the second forest law enforcement, governance to ensure the legal trade in international forest products, especially from the Global South, through improved governance. 2. Phase 2: Making Forestry Sustainable Concerns over the potential limits to material economic growth in the 1970s motivated a rethink of the development paradigm, primarily by the Global North. Rather than change the paradigm, however, a new concept was devised: ‘sustainable development’. The initial concept, which was first included as part of the 1987 Brundtland Report, Our Common Future,51 is now embedded in international, regional and national law. With the 2015 UN SDGs it became a core organizing principle for development as it brought together a systems approach to integrating poverty eradication and environmental concerns together at a universal level.52 Yet sustainable development has faced ongoing criticism for being an unsatisfactory compromise between conserving the global environmental commons and national economic development.53 It is a principle loaded with contradictions and has clearly failed to deliver the paradigm shift needed to achieve the goals associated with it.54 Porras notes that ‘at a time when sustainable development has fed the fear of scarcity, international law is unable to put into question its own history and deep structures. Instead it draws (…) on its providentialist roots and insists (…) that what is needed is more trade and more consumption’.55 Rather than reflect on the paradigm and the fundamental flaws environmental damage limitation became a new commodity market where the financialization of nature seemed the rational economic response to ongoing unsustainable resource use. Sustainable development, alongside the principle of sovereignty over natural resources, is embedded within the multiple agreements, conventions and declarations internationally, regionally and nationally associated with forests.56 For example, the World Commission on Environment and Development, Our Common Future (OUP

51

1987). 52 Sustainable Development Goals and Targets, in UN General Assembly Resolution 70/1, Transforming our World: The 2030 Agenda for Sustainable Development, UN Doc. A/RES/70/1 (2015). 53 Gordan (n 27) 50, 55; Duncan French, International Law and Policy of Sustainable Development (Manchester University Press 2005). 54 Maria Ivanova and Natalia Escobar-Pemberthy, ‘Global Environmental Governance in the Anthropocene: Setting and Achieving Global Goals’ in Louis Kotze (ed), Environmental Law and Governance for the Anthropocene (Hart 2017) 165. 55 Illeana Porras, ‘Binge Development in the Age of Fear: Scarcity, Consumption, Inequality, and the Environmental Crisis’ in Barbara Stark (ed) (n 4) 25, 83. 56 These include Non-Legally Binding Instrument on All Types of Forests (2007); Convention on Wetlands of International Importance (1971); the Declaration of the United Nations Conference on the Human Environment (1972); the Convention Concerning the Protection of the

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240 Research handbook on law, environment and the global South ITTA encouraged members to develop ‘national policies aimed at sustainable utilization and the conservation of tropical forests and their genetic resources, and at maintaining the ecological balance in the regions concerned’.57 This in reality was a minor concession in the text to the emerging concept of sustainability. The ITTA itself was renegotiated in 1994 further incorporating the concept of SFM, by then an internationally recognized principle. However, arguably the ITTA’s main objectives to establish, build and expand trade in tropical timber were more firmly embedded in key tropical forest countries who received investments to upscale the forestry sector than any ambitions to realize long-term sustainability. In the early 1990s NGOs in the Global North grew frustrated with the slow pace of progress by governments to effectively promote SFM via intergovernmental forest forums like the ITTO and the UN Intergovernmental Panel on Forests.58 Having fronted campaigns raising the threats from large-scale deforestation, especially in the Global South, several NGOs decided to try to influence the marketplace directly. In 1993 NGOs, most prominently the World Wide Fund for Nature (WWF), established the Forest Stewardship Council (FSC) and a non-state, market-based ‘forest certification’ scheme was launched.59 Forest producers that met the required criteria could attach the FSC label on their product. It was claimed that this would gain them access to emerging green markets at a premium value greater than the usual market wholesale rate.60 The FSC established a multi-stakeholder decision-making structure to set international standards for environmentally and socially responsible forestry which needed to be met before a certificate could be awarded. The FSC adopted third party auditing to verify that products carrying a green label were produced in accordance with FSC standards. No sooner was the FSC launched then industry and producer

World Cultural and Natural Heritage (1972); CITES (1974); the Amazon Cooperation Treaty (1978); the United Nations Framework Convention on Climate Change (1992) and its Kyoto Protocol; Convention on Biological Diversity (1992), and its Cartagena Protocol on Biosafety (2000); the Rio Declaration on Environment and Development (1992), Rio Forest Principles (1992); Agenda 21, Report of the United Nations Conference on Environment and Development (1992); the Central American Forest Convention (1993); the United Nations Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (1994); the International Treaty on Plant Genetic Resources for Food and Agriculture (2001); the South African Development Community Forestry Protocol (2002); the International Tropical Timber Agreement (2006). 57 International Tropical Timber Agreement (n 50) Article 1(h). 58 The UN Intergovernmental Panel on Forests was established after the failure to agree on an international forest convention in Rio de Janeiro, Brazil at the 1992 UN Conference on Environment and Development to implement the UN Forest Principles and Chapter 11 of Agenda 21. See Marcus Colchester, ‘Do Commodity Certification Systems Uphold Indigenous Peoples’ Rights? Lessons from the Roundtable on Sustainable Palm Oil and Forest Stewardship Council’ (2016) 21 Policy Matters 150. 59 Humphreys (n 44) 42. 60 See also Philipp Pattberg, ‘What Role for Private Rule-Making in Global Environmental Governance? Analysing the Forest Stewardship Council (FSC)’ (2005) 5 International Environmental Agreements 175.

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Forests, people and poverty: failing to reform the global development paradigm 241 associations responded by forming competing national schemes.61 They aimed to further their own approach to standards, often less stringent than FSC on social and environmental standards. These industry schemes have since joined under the umbrella of the Programme for the Endorsement of Forest Certification (PEFC).62 The tension between sustainable development of forest resources and sovereignty has been highlighted as an obstacle to protecting forests. Some have argued that the ‘polarization and sensitivity over sovereignty issues still inhibits the conclusion of a comprehensive global convention [on forests] despite the accelerating destruction of tropical forests’.63 This flawed view fails to acknowledge the complexity of power inequities between states in the North and South, and increasingly the emerging economies, and their relationship to least developed countries, in international commodity trade markets. In 2014, two decades since the first certificates were awarded, there were about 183 million hectares certified under the FSC and 265 million hectares certified under PEFC.64 This represents about 1 per cent of the world’s forests and around 28.3 per cent of global wood production. While such growth is globally significant, it is distributed very unevenly; most of the certified area is in the Global North and dominated by large-scale industry.65 The reasons for the uneven growth illustrate core limitations of non-state, market-based forest governance. SFM’s certifications legacy for forests and development is the increased influence of private international non-state actors, usually from the Global North, as standard setters. For private environmental standard setters, for example, the size of their field of application depends entirely on the successful uptake of the standards.66 Certification is expensive to do properly; it requires expert knowledge to manage to ensure credibility. As a market tool, it is geared towards expanding market share so is more suited to MNEs.67 The business case for small and medium size enterprises, let alone community-based foresters and indigenous peoples, is limited. Also, forest certification standards generally require companies to demonstrate compliance with statutory and international laws. But such legality requirements can only be met where there is effective rule of law.68 The absence of these preconditions in many tropical forest areas, and particularly areas dominated by

61 Benjamin Cashore and others, Governing through Markets: Forest Certification and the Emergence of Non-State Authority (Yale University Press 2004) 28. 62 In 2017 there were 35 national PEFC schemes worldwide that have certified 18,800 companies – see www.pefc.org. 63 Patricia Birnie and others, International Law and the Environment (3rd edn, OUP 2009) 195. 64 UN Economic Commission for Europe (UNECE) and FAO, Forest Products Annual Market Review 2012–2013 (UNECE and FAO 2013). 65 ibid. 66 Veerle Heyvaert, ‘Transnationalisation of Law: Rethinking Law through Transnational Environmental Regulation’ (2017) 6(2) Transnational Environmental Law 205. 67 Feja Lesniewska and Constance L McDermott, ‘FLEGT VPAs: Laying a Pathway to Sustainability via Legality – Lessons from Ghana and Indonesia’ (2014) 48 Forest Policy and Economics 12. 68 Cashore and others (n 65).

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242 Research handbook on law, environment and the global South small and medium forest enterprises, excludes large swathes of the world’s tropical forests from certification. Transnational private governance also challenges the bond between law, geography and traditional natural resource knowledge privileging the delocalized standard setters in the Global North. Certification is symptomatic of the rise of transnational regulation that can shape policy agendas within a country, regardless of whether the standard has a large uptake or not. Certification is an international market trade mechanism, by concentrating on it to achieve SFM the diversity in governance systems in tropical forest countries was highlighted. Not only were many governance systems deemed to be corrupt, but they also did not have the appropriate infrastructure to support a neo-liberal economic legal system.69 This provided the justification for intervention based on a new aspect to the international development agenda: good governance. 3. Phase 3: Good Governance and Legality A functioning, democratic, state governed by an accountable rule of law system came to be seen as fundamental to being part of the universal international legal model. ‘Good governance’ became the buzz phrase to describe such a system.70 In the eyes of both states, and many non-state actors, there were severe governance shortcomings in many developing countries. The World Bank led the way in commissioning reports and developing tools to evaluate the situation on the ground in developing countries. In 1996 World Bank Worldwide Governance Indicators were launched to determine a country’s governance strengths and weaknesses. The indicators were designed to capture six governance dimensions considered to be fundamental to a states’ development, these included accountability, stability and lack of violence, regulatory quality, rule of law and control of corruption.71 ‘Poor’, ‘weak’, ‘failed’ became the descriptors of states with low outcomes, and were used to justify increasingly interventionist measures to adjust governance, economic and social structures within countries upon the premise that they would lead to improvements in the overall country’s development.72 Issues that caught the attention of the international financial institutions were transnational crime, illegal trade and corruption. The transnational dimension to the problem legitimized an approach for timber importing countries, as well as non-state actors including civil society and MNEs, to devise regulatory trade mechanisms to improve governance over forest resources. By re-focusing attention on legality, it was possible to find new common ground amongst a range of formerly conflicting interests: from international NGOs focused on environmental conservation and social welfare, to ibid. Luis Eslava, Local Space, Global Life: The Everyday Operation of International Law and Development (CUP 2015) 92. 71 Daniel Kaufmann and Aart Kraay, ‘Growth without Governance’ (Policy Research Working Paper No 2928, World Bank 2002). 72 Celine Tan, Governance through Development: Poverty Reduction Strategies, International Law and Disciplining Third World States (Routledge 2011) 12. 69 70

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Forests, people and poverty: failing to reform the global development paradigm 243 forest industry players concerned that illegal logging was undercutting timber prices, to governments unable to capture tax revenues or exert control over forest areas.73 As certification schemes multiplied, concerns turned to the internal governance matters in the Global South which were linked with illegal trade: forestry was one of the natural resource sectors singled out for attention by international organizations. In 2001 an OECD report estimated that 150 billion USD, a tenth of the total global timber trade, was lost due to the illegal timber trade.74 The majority of the illegal trade was taking place in the Global South, especially in tropical forest countries with poor state governance structures.75 In conclusion the report’s authors wrote ‘Widespread illegal extraction makes it pointless to invest in improved logging practices. This is a classic case of concurrent government and market failure’.76 The focus on illegality resulted in high level meetings, declarations and finally transnational trading reforms in regard to the timber sector from 1998 onwards.77 The initial focus by international organizations and governments was on improving domestic forest law enforcement and governance.78 Given the colonial foundations and centralized control of forest law in most developing countries improved law enforcement would fail to address the legacies of injustice that forest dependent communities and indigenous peoples experienced. The focus on illegal forest activities could easily justify the criminalization of customary traditional forest-based cultures to ease exploitation for ‘legal’ activities such as clear cutting by MNEs who paid for concessions. Legalization went hand in glove with model governance ideals. An initiative by the European Union, the 2004 Forest Law, Enforcement, Governance and Trade Action Plan (FLEGT) led the way, especially with the adoption of a multi-stakeholder approach.79 European NGOs sought to use the policy forum to lobby for fairer forest governance for communities and indigenous peoples in countries the EU imported from. Participation, however, in stakeholder processes which included forest dependent communities and indigenous peoples’ representatives were often superficial and short lived. A significant amount of faith was placed in using transnational trade law, albeit innovative, without questioning its underlying values, as well as its hegemonic effect in closing down space for alternative customary legal Lesniewska and McDermott (n 71) 16. Lars Fogh Mortensen and others, OECD Environmental Outlook (OECD 2001) 122. 75 Duncan Brack, ‘Excluding Illegal Timber and Improving Forest Governance: The European Union’s Forest Law Enforcement, Governance and Trade Initiative’ in Pavi Lujkala and Siri Aas Rustad (eds), High Value Natural Resources and Peacebuilding (Earthscan 2012) 212. 76 Fogh Mortensen and others (n 78) 123. 77 Feja Lesniewska, ‘Forests: Learning Lessons from our Interventions’ in Elisa Morgera and Kati Kulovesi (eds) Research Handbook on International Law and Natural Resources (Edward Elgar Publishing 2017) 155, 167. 78 EU Commission, Communication from the Commission to the Council and the European Parliament, Forest Law Enforcement, Governance and Trade (FLEGT): Proposal for an EU Action Plan, COM (2003) 251. 79 Metodi Sotirov and others, ‘The Emergence of the European Union Timber Regulation: How Baptists, Bootleggers, Devil Shifting and Moral Legitimacy Drive Change in the Environmental Governance of Global Timber Trade’ (2017) 81 Forest Policy and Economics 81, 69. 73 74

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244 Research handbook on law, environment and the global South perspectives amongst the forest communities.80 Where FLEGT has succeeded this is to the benefit of MNEs and large-scale domestic companies rather than forest dependent communities and indigenous peoples.81 The push to ensure all transnational timber trade was legal was part of a larger agenda to improve state governance so countries could be efficient economic actors within the global economy. Development was a pathway to achieve a functioning global trading order in which inequity itself was never actually addressed. The importance of governance according to the legal standards determined by the Global North was fundamental when new transnational forest carbon markets began to be designed to mitigate climate change under the UNFCCC as the following section illustrates. This ushered in a new chapter in the forest, development and poverty story.

D. FOREST CARBON: NEW PRODUCT, NEW MARKET, OLD PARADIGM For centuries communities and indigenous peoples have valued natural resources like forests and water, engaging in informal market exchange within and between households. Such non-timber forest use often has greater economic value in the longer term than short-term use.82 In 2012, non-timber forest products constituted on average approximately 21 per cent of total household income for forest dependents’ peoples. Only income from crops (29 per cent) exceeded this amount.83 These values are usually hidden from official figures on forest exchange values because they do not enter the formal marketplace. This distortion of forest values is embedded in formal development and economic policymaking that depends on figures from the formal exchange market. Internalizing these values would improve forest law and policy, recognizing the indigenous sustainable development value for the long-term for not only forest dependent communities, but also the sovereign state as well. Yet the opportunity to internalize non-timber forest values took a different path. The outcomes for forest dependent communities and indigenous peoples of this latest adaptation to the international development model appears to be heading in a less secure and beneficial direction, repeating and reinforcing old problems. With advances in ecosystem sciences the international scientific community (mainly located in the Global North) has an increasing understanding of the role ecosystems play in maintaining a stable planetary environment upon which all humans depend. Economists and policymakers have incorporated ecosystem functions into valuation models and placed an exchange unit value upon individual services, such as carbon 80 Feja Lesniewska and Janet Meissner Pritchard, Navigating through Complex Legal Landscapes: A Legal Compass for VPAs (European Forest Institute and ClientEarth 2011). 81 Lesniewska and McDermott (n 71) 16. 82 Paul Vedeld, ‘Counting on the Environment: Forest Incomes and the Rural Poor’ (Environmental Economic Series Paper 98, World Bank 2004) 98. 83 Arild Angelsen and others, ‘Environmental Income and Rural Livelihoods: A Global Comparative Analysis’ (2014) 64(1) World Development S12.

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Forests, people and poverty: failing to reform the global development paradigm 245 sequestration.84 It is argued that approaches such as payments for ecosystem services can complement regulation and other market incentives, and sustainable investment in ecosystem services can help developing countries gain a competitive edge and contribute to enhance the livelihoods and wider well-being of poor people.85 This ‘accumulation by conservation’ is seen to be a potentially new ‘phase of capitalism’ rather than an appropriate approach to achieve social and environmental justice.86 According to Büscher and others it is ‘imbued with a productive form of power that shapes new joint environmental and accumulation possibilities’.87 Yet to do so the countries, and most importantly, the forest-based communities and indigenous peoples, need to accept the embedding of legal systems and values into their own customary legal systems.88 It is a phase that will continue to perpetuate inequities of power and promote further the hegemonic transnational dynamics in both public and private regulation. Forest ecosystems have been at the forefront of the experimental piloting of these new ‘natural capital’ mechanisms. Forests are viewed as assets of ecosystem services that have been incorrectly valued. They need therefore to be priced to reflect the ecosystem services they provide, such as forest carbon sequestration, to enable compensation to be paid to the owners who forego the right to cut them down. This new opportunity to realize capital value from forest carbon is being promoted as an incentive to attract finance to the forestry sector.89 It is questionable whether this will benefit forest communities and indigenous peoples in the Global South given that the state will receive any international funds either directly or indirectly as the owner of the resource. The global climate change regime, most significantly the UNFCCC, has provided an international forum for a natural capital approach to forest carbon to be developed.90 Reducing emissions from deforestation and degradation (REDD+) first emerged under the UNFCCC as an economic incentive mechanism to compensate developing countries for the lost revenue from not exploiting their forest and land resources. The rationale was that tropical deforestation and degradation accounted for an estimated 17 per cent of global greenhouse gas emissions and that paying states to reduce forest loss offered

Larry Lohmann, ‘Toward a Different Debate in Environmental Accounting: The Cases of Carbon and Cost Benefits’ (2009) 34(3–4) Accounting, Organisations and Society 499. 85 Joshua Farley and Robert Costanza, ‘Payments for Ecosystem Services from Local to Global’ (2010) 69(11) Ecological Economics 2060. 86 Bram Büscher and others (eds), Nature Inc.: Environmental Conservation in the Neoliberal Age (University of Arizona Press 2014). 87 ibid. 88 World Rainforest Movement, REDD: A Collection of Conflicts, Contradictions and Lies (World Rainforest Movement 2015). 89 David Takacs, ‘Carbon into Gold: Forest Carbon Offsets, Climate Change Adaptation, and International Law’ (2009) 15 Hastings West-Northwest Journal of Environmental Law and Policy 39. 90 Feja Lesniewska, ‘REDD: The Copenhagen Effect’ (2010) 6(1) Law Environment and Development Journal 102. 84

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246 Research handbook on law, environment and the global South a relatively fast and cheap way to reduce global emissions.91 Under the UNFCCC the REDD+ mechanism was designed to turn forests into fungible, tradable carbon storage services through an elaborate system of incentives for developing countries to reduce emissions by protecting and managing their forest resources more appropriately through property rights over carbon and laws to clarify tenure. The international market approach was designed with almost no consideration given to the time and cost that it may take to resolving outstanding land tenure claims that indigenous peoples, and some forest-based communities, may wish to address. REDD+ is now the centrepiece in a complex array of institutions with the aim of bringing forests under a regime of marketized carbon governmentality treating deforestation because of the misallocation of capital and the absence of adequate financial incentives elsewhere that can value standing forests. A specific mechanism for REDD+ was incorporated into the 2015 Paris Agreement.92 Several countries in their ‘intended nationally determined contribution’ under the 2015 Paris Agreement included REDD+ policies.93 A separate window was created for REDD+ under the UNFCCC Green Climate Fund to help finance necessary regulatory reforms and capacity building for REDD+ markets to be established in tropical forest countries.94 Transnational governance arrangements have complemented intergovernmental efforts under the UNFCCC to help put REDD+ in practice. At the global level, these range from multilateral global and regional finance agencies such as the World Bank’s Forest Carbon Partnership Facility (FCPF) to UN consortiums such as the UN-REDD Programme, to private forest carbon certification schemes and hybrid public/private partnerships such as the REDD+ Environmental and Social Standards (REDD+ SES) initiative. REDD+’s emergence needs to be viewed in the context of several decades of developments in international forest law and governance. REDD+ is of undeniable relevance to various international legal regimes, including those for forests, climate change, biological diversity, human rights and trade, reflecting the diverse drivers and impacts of deforestation.95 For some REDD+ was from early on seen as an opportunity to advance a broader forest agenda to draw attention to the rights of indigenous and local communities living in, or dependent on, forests, necessitating a consideration of the relevance of human rights institutions.96 Also it could be a possible vehicle to Nicholas Stern, The Economics of Climate Change: Executive Summary (UK Department of Energy and Climate Change 2007). 92 Paris Agreement, Paris, 12 December 2015, in Report of the Conference of the Parties on its Twenty-First Session, UN Doc FCCC/CP/2015/10/Add.1. 93 Charlotte Streck and others, ‘The Paris Agreement: A New Beginning’ (2016) 13(1) Journal of European Environmental and Planning Law 3. 94 Harro van Asselt and Constance McDermott, ‘The Institutional Complex of REDD+: A Benevolent Jigsaw’ in Christina Voigt (ed), Research Handbook on REDD+ and International Law (Edward Elgar Publishing 2016). 95 Feja Lesniewska ‘UNFCCC Conference of the Parties: The Key International Forest Law-Makers for Better or for Worse’ in Malgosia Fitzmaurice and Duncan French (eds), International Environmental Law and Governance (Brill 2015) 116. 96 Tom Griffiths, ‘Seeing “REDD”’ Avoided Deforestation and the Rights of Indigenous Peoples and Local Communities’ (Forest Peoples Programme 2007) 26. 91

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Forests, people and poverty: failing to reform the global development paradigm 247 resolve the long-standing challenge to tackle the drivers of deforestation, placing greater emphasis on MNEs and consumers in the Global North. REDD+’s multiple layered ‘jigsaw’ obscures fundamental problems that a marketbased system establishes within existing institutional structures that will only perpetuate power biases and asymmetries that already exist. To counter such concerns REDD+ safeguards were designed under the UNFCCC, as well as by international organizations and non-state actors, to address environmental, social and economic risks at the local level, and to ensure sustainable outcomes for REDD+ projects. These REDD+ related safeguard policies and standards vary in their content and emphases, each though is voluntary. Under the UNFCCC the ultimate authority over REDD+ implementation lies with the sovereign state. This could give forest-based communities and indigenous peoples an opportunity to influence the decision-making on designing safeguard criteria, especially in countries where the procedural principle of free prior informed consent is adopted.97 Many are sceptical that voluntary safeguards can deliver at all. Wiersema concluded that the complexity associated with REDD+ safeguards to operate transnationally will undermine it ever achieving its goals at any level.98 Ultimately, despite perceived opportunities, a wide range of stakeholders remain concerned that REDD+, by assigning a new monetary value to forest carbon, will set off a cascade of inequitable impacts, including land grabs and the dispossession of local and indigenous peoples, the loss of local livelihoods and loss of biodiversity.99 Savaresi argues that REDD+ is itself a new form of natural resource grabbing: that of carbon sequestration capacity.100 Dehm places this in a wider context of forest carbon capitalism as the latest development in the climate change appropriation of, and development of, new natural resource markets.101 REDD+ has demonstrated that new natural capital markets designed to incorporate the value of ecosystem functions into a commoditized economic market free trade legal system upon the premise of delivering development outcomes comes with multiple challenges. For some the challenges are the difficulties that lie in creating the effective legal frameworks, such as property rights, contracts and liabilities over a new commodity like carbon sequestration services. For others, the issues are much more to do with greater problems, problems that have plagued forest development related law and policy for decades; that being achieving fair and equitable rights over forest 97 Daniela Rey and others, ‘A Country-Led Approach to REDD+ Safeguards and Multiple Benefits’ (SNV-The Netherlands Development Organisation 2013). 98 Annecoos Wiersema, ‘Climate Change, Forests, and International Law: REDD’s Descent into Irrelevance’ (2014) 47 Vanderbilt Journal of Transnational Law 1. 99 Thomas Sikor and others, ‘REDD-plus, Forest People’s Rights and Nested Climate Governance’ (2010) 20 Global Environmental Change 423. 100 Annalisa Savaresi, ‘Natural Resource Grabbing: The Case of Tropical Forests and REDD+’ in Francesca Romanin Jacur and others (eds), Natural Resources Grabbing: An International Law Perspective (Brill 2015) 159. 101 Julia Dehm, ‘Tricks of Perception and Perspective: The Disappearance of Law and Politics in Carbon Markets – Reading Alexandre Kossoy and Phillippe Ambrosi, State and Trends of the Carbon Market 2010’ (2011) 7(2) Macquarie Journal of International and Comparative Environmental Law 1.

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248 Research handbook on law, environment and the global South resources wholesale for forest dependent communities and indigenous peoples which maintain resilient ecosystem functions.

CONCLUSION In the decades following World War Two development as a concept has been used to justify how forest resources are exploited, especially in the Global South, often in ways that have undermined the livelihoods and cultures of forest dependent communities and indigenous peoples. This has occurred in an international legal order established in the formal post-colonial era when the sovereign rights over natural resources were recognized for states and their citizens. Sovereign rights have proven to be a façade behind which the Global North, including non-state actors, and elites in the Global South have engaged in development power politics to extract forest resources at unsustainable rates. By doing so forest communities and indigenous peoples are left impoverished, robbed of resources they have customary rights over, as well as their cultures. Added to this the same peoples are often criminalized through legal reforms for practising the forest activities they have undertaken for generations. Law and policy efforts to avert catastrophic climate change and ecological disaster at a global scale appear to be informed by the same economic modernist values behind the post World War Two development model. For example, efforts to incorporate the external environmental costs from forestry into new ecosystem market mechanisms to mitigate climate change have exposed forest communities and indigenous peoples to new threats perpetuating old problems such as resource appropriation. Responsibility for the long-term forest destruction will not be considered as communities are invited to participate in MNEs’ sustainable commodity supply chain programmes as they try to meet zero (net) deforestation goals. The move to an ecosystem approach to the sustainable development principle in the UN SDGs moves to promote global integrated land-based planning will again alienate forest dependent peoples and threaten their cultures. Infact integrated land-based planning could potentially be the driver behind the final forest land clearances resulting in the extinction of traditional communities and indigenous peoples’ knowledge after generations of colonialism and development.

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13. Access to and control over forest resources – the case of the Forest Rights Act, 2006 in India Shankar Gopalakrishnan

INTRODUCTION In 2006, following an intense controversy and struggle, India’s Parliament unanimously passed the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (Forest Rights Act). Approximately 22 to 23 per cent of the country’s land area is classified, under various laws and regulations, as forest land. Hundreds of millions of people depend on these lands for their survival and livelihood, but colonial forest regulations had largely deprived them of any rights over these natural resources. The new law hence said it was aimed at addressing the ‘historical injustice’ done to India’s ‘tribal’ communities (or adivasis) and forest dwellers by these laws. The new Act was to become one of the then United Progressive Alliance (UPA) government’s ‘flagship schemes’, along with the employment guarantee legislation and the right to information legislation and would repeatedly be cited by the then government as evidence of its commitment to the poor and the marginalised. The current ruling party in India – the Bharatiya Janata Party (BJP) – had also voted in favour of the Act, and – albeit in a more muted fashion – its ministers and leaders continue to declare that they are committed to it. Yet violations of the law continue to be rampant, and implementation is stagnating, stuck in official interference. To many, this may seem to be the same old story that has plagued every progressive legislation, and particularly every environmental regulation, around the world (and particularly in India): good intentions, bad implementation. While more nuanced explanations are also often made, in the context of developing countries like India, many commentators attribute this lack of implementation to corruption and the absence of an efficient administration. But this picture arguably misses certain basic features of the regulatory regime in countries like India, and, more fundamentally, of the political functions played by law itself. Can laws of this kind be treated as just a set of instructions, made by one well-meaning set of people and ignored by others? Or are such laws just a sham, intended either to look good or to win votes? And if they are, why is it so difficult to get them passed? This chapter attempts to explore these questions. It uses the forests, the Forest Rights Act and the struggle around it as a lens to examine how policies are framed around natural resources. I argue that the formation of state policies and laws is a key site of struggle between social forces, but not in the manner that such sites are usually portrayed. To analyse laws and legal processes effectively, it is important to understand both the constraints and the possibilities that exist in these sites. 249

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250 Research handbook on law, environment and the global South

A. FORESTS AND FOREST LANDS: THE CONSTRUCTION OF A RESOURCE The legal regime governing India’s government forests and protected areas has its genesis in the Indian Forest Acts (the last of which was passed in 1927). These Acts were based on the rapidly growing need of Britain’s growing industrial economy for timber, particularly for the railways and for ship-building. Seizing India’s vast timber resources required removing forests from the complex patchwork of control regimes that pre-dated British rule and converting them into government property for ‘scientific management’ (i.e. plantations and harvesting that would guarantee a sustained yield) and timber extraction.1 After initially experimenting with multiple methods of extracting timber from these forests, the need for a single law became apparent to the colonial authorities. The continuation of the use of ad hoc methods would produce more and more resistance, as well as encouraging chaotic and unsustainable timber extraction and competition among the colonial rulers. Following an extended debate within the colonial government, the authorities settled on a model that provided for near-complete expropriation of ‘valuable’ forests – valuable, that is, from the point of view of timber – and their management by a ‘forest service’ that would follow principles of ‘scientific management’.2 The new Forest Act of 1865 provided such a framework. It was subsequently replaced by a new Act in 1878, which in turn was replaced by another in 1927. This 1927 law provided a procedure for ‘settlement of rights’ but conferred complete control over ‘reserved forests’ (reserved, that is, for government use) on the forest authorities. It also provided them with sweeping powers of regulation over ‘protected forests’, the other major category that the Act covered. The legal details of these regulations are summarised in the next section. It is important to understand what these changes implied. Until the passage of the Forest Acts, forests in India were effectively territories, areas used and managed for multiple uses under varying regimes of control. These regimes varied from centralised to decentralised, from democratic to autocratic, and from relatively egalitarian to highly casteist or exclusionary. But they shared one basic feature – they did not reduce forest territories to a single commodity or value. The Forest Acts, however, were a political-legal conversion of what was in fact a complex, multi-faceted system (involving water, minor forest produce, wildlife, hunting, domestic animals, and so on, with vital links to rivers and agriculture elsewhere) into a resource – timber. To this day working plans of the Forest Departments of Indian states are almost solely concerned with managing trees, while the Forest (Conservation) Act of 1980 envisions tree plantations as somehow a sufficient replacement for natural forests. By reducing forests to trees, the British converted them from a territory into a commodity. 1 Pradip Prabhu, ‘The Right to Live with Dignity’ (2005) 552 Seminar, accessed at www.india- seminar.com/2005/552/552%20pradip%20prabhu.htm. 2 Ramachandra Guha, ‘Dietrich Brandis and Indian Forestry: A Vision Revisited and Reaffirmed’ in Mark Poffenberger and Betsy McGean (eds), Village Voices, Forest Choices: Joint Forest Management in India (OUP 1996) 86.

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Access to and control of forest resources: Forest Rights Act, 2006, India 251 The impact of this can be seen at multiple levels. Very large areas of forest were declared to be state property. In 1893, in what is now Uttarakhand, all common lands – including pastures and other village common lands – were declared to be state ‘forests’ by the British.3 As late as 1997, the Uttar Pradesh Forest Department still claimed this entire area as government forest land. Shortly afterwards, in Himachal, all ‘wastelands’ were declared to be ‘forests’.4 Over half this land is incapable of supporting forest, since it is alpine pastures, snowbound peaks, and the like. About 66.4 per cent of the state’s area, including grazing lands and seasonal pastures of nomadic pastoralists, is currently declared to be forest land.5 More than 75 per cent of Mizoram’s area has been declared ‘forest’, though 33 per cent of this is communally owned shifting cultivation land that, under the Sixth Schedule, is to be controlled by local communities. The area brought under such control only expanded after independence. In most states, lands considered ‘forest’ in the Princely States were also brought under the Forest Acts, though they had often not even been surveyed (40 per cent of Odisha’s reserved forests are such ‘deemed’ reserved forests).6 Moreover, areas that had been notified as ‘partially excluded’ under the Government of India Act of 1935 were converted (with some exceptions) into Fifth Schedule areas under the Constitution of independent India. Under the Government of India Act, forest laws (among other laws) had not applied to these areas unless they were specifically extended to them. The Fifth Schedule reversed this arrangement, providing that all laws would apply except where such laws were specifically modified or withdrawn by the State Governor. The result was to include even more areas of land under Forest Department control. But, as a mode of enclosure and conversion to private property, it also needs to be emphasised that the Forest Acts failed. In many areas where expropriation was attempted, mass adivasi uprisings forced a halt. The forest laws were among the triggers for the famous uprisings of central and western India at the end of the 19th century, including the Bhil uprising in the present-day state of Gujarat and the famous movement led by Birsa Munda in the present-day state of Jharkhand.7 Even where open revolts did not take place, a combination of resistance and the lack of bureaucratic accountability meant that the process of notification was never completed in most forest areas. In 2005, 60 per cent of national parks and 62 per cent of wildlife sanctuaries had not completed the rights settlement process, according to affidavits filed by State governments in ongoing proceedings in the Supreme Court of India.8 In 2003, the 3 Madhu Sarin, ‘Scheduled Tribes Bill: A Comment’ (2005) 40(21) Economic and Political Weekly 2131. 4 ibid. 5 Forest Survey of India, State of Forests Report 2015 (Ministry of Environment and Forests, Government of India 2015). 6 Kundan Kumar, ‘Dispossessed and Displaced: A Brief Paper on Tribal Issues in Odisha’ (Vasundhara 2004), accessed at www.academia.edu/1318495/Dispossessed_and_displaced_A_ brief_paper_on_tribal_issues_in_Odisha. 7 David Hardiman, ‘Farming in the Forests: The Dangs 1830–1992’ in Mark Poffenberger and Betsy McGean (eds), Village Voices, Forest Choices: Joint Forest Management in India (OUP 1996) 101. 8 Affidavits filed in Centre for Environmental Law, WWF-India v Union of India and Ors, Writ Petition No 337 of 1995 (Supreme Court of India).

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252 Research handbook on law, environment and the global South Madhya Pradesh government similarly informed the Supreme Court that 82 per cent of its reserved forest blocks had been neither surveyed nor settled.9 As a result, what actually exists in forest areas is a kind of legal twilight zone. The official record portrays forests where enclosure has succeeded and government control is total. But on the ground, millions of people live in and depend on these areas for their livelihoods. Forest policy becomes a combination of paper fantasies with brutality in implementation. 1. Understanding the Role of Forests in Indian Capitalism The result has been that, since the beginning of the century, Indian forests have played a distinct role in the functioning of Indian capitalism. Three key features characterise the system of property relations in forest areas: + Unclear and insecure property tenures: The ownership of any property in most forest lands, by any actor other than the state, is insecure and can be questioned at any time. + Continuing ‘illegal’ and non-formal systems of resource use and tenure: The continuance of exercise of rights by forest dwellers and adivasis means that resource use in the forests is neither mapped nor controlled by law alone. + Centralised control backed up by force: In legal terms (though not in practice), property tenures and resource ownership are controlled by the State and Central governments, with no involvement of local governments or elected bodies. This, in turn, is enforced by the use of police, paramilitary forces and the State Forest Departments. This has become a useful combination for Indian capital: a huge group of people without rights, and a vast area of land, water, forests and timber, open to exploitation. Capital has gained from the easy access to water, wood and minerals in forests, even as people have been placed in such extreme oppression that they are forced to work for starvation wages and migrate for survival. Hence, adivasi leaders’ frequent references to India’s ‘colonial’ treatment of its forest areas have a strong basis in reality. 2. The Shaping of the Struggle in the Forest Areas Today, with forest areas integrated into Indian capitalism, both the forms and the content of forest dwellers’ resistance movements have changed a great deal. However, certain features of the struggle remain similar, which in turn shape the kind of political action that occurs in these areas: + Centrality of law as an oppressive instrument: The overwhelming presence of the State Forest Departments in these areas makes the state an obvious, glaring and 9 Campaign for Survival and Dignity (CSD), Endangered Symbiosis: Evictions and India’s Forest Communities – Report of the Public Hearing 19–20 July 2003 (Campaign for Survival and Dignity 2004).

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Access to and control of forest resources: Forest Rights Act, 2006, India 253 direct exploiter of the people, using the forest laws as its instrument. Where other exploiters also operate, such as landlords or contractors, state connivance is both obvious and clearly unjust. The sense of alienation from the law and from the state is therefore very strong. + Resistance centred on the ‘community’ and on communal forms of production: While there are wide variations in the situation in different parts of the country, in most regions, the forest laws were imposed at a time when private property and fully commoditised relations of production had not yet penetrated into forest areas. The forest laws then made it difficult for such relations to become established, even as communal systems of production – where they existed – became the basis of resistance to state expropriation. Hence, in many forest areas today, resistance against exploitation thus revolves around defending the ‘community’ (which has, to a widely varying degree, a more material existence than in most other parts of India). This is particularly the case in the hill areas of the north eastern states, where collective production has survived to a much larger extent than in other parts of the country, and where it has been central to both armed resistance and to resistance against private property and the forest laws. + State versus ‘people’: Both the above in turn make the discourse of the ‘state’ versus the ‘people’ more real and more accurate in such struggles than it may be in the case of other areas and other struggles. Each of these tendencies shapes the various types of struggle in forest areas, which range from the armed independence movements of the north eastern Indian states, through the Communist Party of India (Maoist) activities in central India, to the popular organisations and democratic social movements in the rest of India. The Forest Rights Act has to be seen against this background for the struggle around the Act – and the potential of the law itself – to be understood.

B. THE POLICY CONTEXT OF THE FOREST RIGHTS ACT: TENSION BETWEEN CENTRALISATION/EXPROPRIATION AND RESISTANCE This contested situation in forest areas has – among other shifts and contestations – continually renewed one central fault line: the conflict between state agencies attempting to intensify their control over forest resources and expropriate them, and forest dwellers attempting to, in various ways, resist such expropriation. As a result, we can broadly divide the discussion of these trends into those that led towards increased expropriation, and those that marked waves of resistance. 1. Instruments of Centralisation and Expropriation As we saw in the previous section, the Indian Forest Acts marked the creation and fine-tuning of the system of government expropriation of forest areas and their takeover as state property (see previous chapter). As a result, the 1927 Act’s central mandate is a set of provisions that empower the government (the State government, in independent

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254 Research handbook on law, environment and the global South India) to declare any area to be a ‘reserved forest’ or a ‘protected forest’. The law says that, at the time a ‘reserved forest’ is to be declared, a single official (the Forest Settlement Officer) is mandated to enquire into and ‘settle’ the land and forest rights people had in that area. These rights include: + land rights – to land that is owned or cultivated; + to watercourses, pastures and rights of way; and + to forest produce and shifting cultivation. The decision on whether or not to record (and thereby recognise) these rights lies entirely with the Forest Settlement Officer. Once a right had been recorded, it could either be allowed to continue (subject to whatever conditions the officer might choose to impose), acquired under the land acquisition Act, or (in the case of land) excluded from the reserved forest. Under section 9 of the Act, once the settlement process was complete, all rights that had not been recorded would stand ‘extinguished’. As one would expect in such an arrangement, in general, in many areas the process was never completed (see above); and where it was undertaken, only those rights that had documentary proof or belonged to socially powerful communities were recorded.10 ‘Protected forests’, a vaguer category, were areas where the government felt the need to impose some kind of regulation on forest use; and such areas could be notified on the basis of either a prior settlement under revenue laws (the ordinary land laws of the country) or, indeed, without any settlement at all, provided a general declaration was made that ‘existing rights will not be abridged’. Within such forests, the Forest Department could impose any regulation it deemed necessary to protect trees. This general structure of arbitrary, bureaucrat-driven control over resources and property in forests was then extended and amplified by a string of legal instruments over the following 80 years. In the first place, after independence, as discussed above, the forest laws were extended to the Scheduled Areas and to forests that had once fallen within the power of the Princely States. Many of these were incorporated into the forest management system by being ‘deemed’ to be protected or reserved forests (the governments of Odisha, Andhra Pradesh and Madhya Pradesh amended their laws to provide for such ‘deeming’11). The Princely States had often had their own regulations recognising various rights; but once these forests were ‘deemed’ to come under the Indian Forest Act, those rights were silently extinguished. The Wild Life (Protection) Act of 1972, again, replicated the same principles in the process of creating the system of national parks and wildlife sanctuaries that are known as ‘protected areas’ today. The Act used the same system of ‘settlement’ of rights that the Indian Forest Act had created but imposed much more strict restrictions on people’s use and livelihoods in these areas. In national parks, for instance, no recorded rights were permitted at all. The Act also said that reserved forests could be converted into sanctuaries without any process of recognition or settlement of rights at all. As discussed above, this limited process of settlement was not carried out in most protected areas either. 10 11

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Sarin (n 3). Kumar (n 6) provides a detailed analysis of the results in Odisha.

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Access to and control of forest resources: Forest Rights Act, 2006, India 255 The Forest (Conservation) Act of 1980 took this trend even further, with the Central government now taking on a direct role in forest management (a subject that had until 1976 been reserved for State governments under India’s federal system).12 This law barred any de-reservation of forests or use of forest land for ‘non-forest purposes’, except with the permission of the Central government. The term ‘non-forest purposes’ was defined to mean any activity other than afforestation and forest management. Within the Centre, permission for ‘diversion’ – that is, permission for use of forests for non-forest purposes – is given by the Environment Ministry through its Forest Advisory Committee. Such permission is conditional on the user of the land paying enough money for ‘compensatory afforestation’, that is, tree plantations on an equivalent area of land (if the planted area is revenue land) or on double the area of land (if it is degraded forest). In other words, the Act enshrined the Forest Department’s basic understanding in law: forests are, under the law, a commodity that can be destroyed as long as they are ‘replaced’ elsewhere. Notwithstanding the growing salience of resistance and resulting policy measures, these centralised instruments continued to expand and deepen. The biggest shift in this direction occurred in 1995, when the Supreme Court of India began hearing the TN Godavarman Thirumalpad case. This case was to become the largest writ petition in the history of the Supreme Court, and to redefine the history of forest management in the country. The Court’s positions have strongly favoured ever-increasing powers to the forest authorities, following a centralised, ‘top-down’ response to increasing conflicts and issues in the forest. For instance, in 1996, the Court directed13 that the term ‘forest’ in the Forest (Conservation) Act would apply to all forests ‘in the dictionary definition of the term’ as well as to any land recorded on any government record as forest. This seemingly very technical order had very serious consequences across the country, as it greatly expanded the Forest Department’s powers. Areas ‘recorded as forest’ in government records include huge areas of land outside notified government forests, while the question of what constitutes the ‘dictionary definition’ of forests is highly contested. Now, under this order, any ‘non-forest’ activity in these huge areas – to which the Forest (Conservation) Act had never been previously applied – became illegal. This massive expansion in the forest bureaucracy’s powers was then followed by a 2001 order barring the ‘regularisation of encroachment’ (i.e. the recording of the land rights of forest dwellers and others in the forest);14 a string of orders regulating sawmills and timber felling; stay orders blocking the Central government’s moves to recognise forest dwellers’ rights in 2004 (see next section); and, for a period of some years between 2005 and 2007, orders requiring that all projects needing forest land under the Forest (Conservation) Act, 1980 would have to be cleared by the Supreme Court. 12 Under the 42nd Amendment to the Constitution of India, the subject ‘forests’ was moved from the ‘State List’ (subjects over which only State Assemblies can legislate) to the ‘Concurrent List’ (subjects over which both State and Central governments can legislate). 13 TN Godavarman Thirumalpad and Ors v Union of India and Ors, Writ Petition No 202 of 1995, Interim Order of 12 December 1996 (Supreme Court of India). 14 ibid Interim Order of 3 November 2001.

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256 Research handbook on law, environment and the global South As a result, by 2002, on paper, control over India’s forests and forest lands was extremely centralised in the hands of the Central government, the Supreme Court, and in the Supreme Court-appointed Central Empowered Committee that consisted of four forest officials and two ‘wildlife experts’ that had worked closely with the forest bureaucracy. In all of these institutions, forest officers dominated the discourse – including in the case of the Supreme Court, through their domination of courtappointed bodies. All of this led to a kind of ‘perfect storm’ in 2002, in the form of a nationwide eviction drive against adivasis and forest dwellers – which aimed to remove them from the lands and forests they had occupied across the country.15 This eviction drive drove hundreds of thousands of families from their homes and became the proximate cause for the passage of the Forest Rights Act. 2. Trends of Resistance to Expropriation As we saw above, the forest law regime has been marked by mass resistance from its very inception. This resistance has taken various forms both in different regions and across different time scales. For instance, in the north eastern states and particularly in the Naga regions, armed organisations have been active for more than seven decades. The nearly five-decade-old Maoist movement in central India (whose base has changed over the years, however), represents a different example. Then there are mass movements across almost all Indian states, sometimes drawing on older traditions of resistance among adivasi communities and sometimes drawn from newer models of organising and non-party Left movements. We have seen above that this resistance meant that the moves to ‘enclose’ and fully expropriate forests failed. But the resistance also had an impact on law and policy. This impact took various forms. The first, and perhaps most significant, was the carving out of what might be called ‘states of exception’ in forest law. In the colonial period, for instance, the 1935 Government of India Act recognised ‘excluded areas’ – essentially the tribal areas of the Northeast – where effectively normal law would not operate, and ‘partially excluded areas’ – meaning the tribal areas of central India – where laws would only be extended on a case-by-case basis. In specific regions of the country, additional exclusions were made. In what is now Jharkhand, British legal instruments recognised collective ownership of land in tribal belts and exempted these areas from land revenue codes, and in what is now the Kumaon region of Uttarakhand, central orders under the Scheduled Districts Act, 1874 recognised collective management and community control of forests under the ‘Van Panchayat’ system.16 Almost all of these ‘states of exception’ continued into the post-independence era, albeit with significant weakening (as discussed above in the section on the construction of forests as a resource). In the Northeast, armed rebellions resulted in new states of exception in the form of the states of Nagaland and Mizoram, which enjoy special CSD (n 9). Carol Upadhya, ‘Community Rights in Land in Jharkhand’ (2005) 40(41) Economic and Political Weekly 4435; see also Sarin (n 3). 15 16

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Access to and control of forest resources: Forest Rights Act, 2006, India 257 constitutional protection (under Articles 371A and 371G respectively) excluding them from federal legal provisions on certain subjects (of which land and land rights is one). However, the independent Indian state was – unsurprisingly – much more reluctant than the imperial government to concede such ‘states of exception’ and preferred to instead try to accommodate resistance through orders and modifications within the mainstream legal framework. At both the State and Central levels, one form this took was the issuance of government orders – executive instructions – under the Forest Acts or, in the case of the Centre, under the Forest (Conservation) Act. These oftenrecognised limited rights, such as land rights of forest dwellers residing in the forest prior to certain dates (a particularly comprehensive set of such orders was issued in 1990 by the Central government17). Non-land rights received, in some states, a more complex treatment, with laws or policies being enacted for cooperative extraction of non-timber forest produce and for ‘nationalisation’ of such collection (in the name of protecting the rights of non-timber forest produce collectors).18 In 1988 the new National Forest Policy inaugurated an era where such orders reached new levels of sophistication, particularly with the institutionalisation of ‘Joint Forest Management’ (JFM). Announced with the ostensible intention of ‘decentralising forest management’, executive orders issued under this scheme nominally made it possible for adivasis and forest dwellers to participate in forest management through village level committees.19 In a sense such ‘victories’ for struggles in expropriation culminated, before the Forest Rights Act, in the passage of the Panchayats (Extension to Scheduled Areas) Act, 1996, a radical law that modified the structure of local government in Fifth Schedule areas (the formerly ‘partially excluded’ areas in the colonial period). This law made the village assembly, or gram sabha, the central decision-making body for land and forest r