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

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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

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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

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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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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?

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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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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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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 regulation in these areas and required State governments to frame their local government laws accordingly.20 But the central dynamic of expropriation versus resistance affected all of these measures after they were passed, as well. None of these measures were ever incorporated into normal administrative procedures. Institutions of forest governance repeatedly attempted to ignore all of them, and no sooner were they created that efforts began to undermine them. Thus the orders for recognition of rights were not

17 Ministry of Environment and Forests, Government of India, Orders 13-1/90/-FP(1 to 6) (18 September 1990). 18 CSD (n 9) and CR Bijoy and others, India and the Rights of Indigenous Peoples (Aakar Books 2010). 19 Madhu Sarin and others, ‘Devolution as a Threat to Democratic Decision-Making in Forestry? Findings from Three States in India’ (Working Paper 197, Overseas Development Institute 2003). 20 See discussion in Shankar Gopalakrishnan, ‘Undemocratic and Arbitrary: Regulation, Control and Expropriation of India’s Forest and Common Lands’ (Society for Promotion of Wasteland Development 2012) accessed at https://rightsandresources.org/wp-content/uploads/ 2014/01/doc_5642.pdf.

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258 Research handbook on law, environment and the global South implemented,21 protections for the Fifth Schedule areas were greatly weakened over time,22 and JFM became a classic example of what one might call ‘participatory co-optation’, where nominally ‘participatory’ committees were controlled by forest officials at every level.23 Finally, the Supreme Court ignored the protections given to the Northeast under the Constitution and the Sixth Schedule in its orders in the above-mentioned Godavarman case.24 Thus, the legal terrain prior to the passage of the Forest Rights Act continued to be marked by ambiguous, contradictory and intensely contested regulatory instruments, both reflecting and channelling the ongoing struggle between forces of expropriation and those who resisted them.

C. THE POLITICAL CONTEXT OF THE PASSAGE OF THE FOREST RIGHTS ACT Alongside this policy context, however, was a shifting political context. This context shaped the Forest Rights Act almost as much as prior struggles over forest areas did. The key event in this context is the 2004 elections, which were a watershed moment in the recent history of the Indian polity and in the ongoing development of the Indian variant of neoliberalism. Indeed, if those elections had gone differently, it is likely that the Forest Rights Act either would not have been passed or would have been passed in a very different form. In 2004, the incumbent BJP-led National Democratic Alliance (NDA) government went to the elections on a platform combining strong themes of Hindu supremacism and right wing neoliberal economics. It was widely expected that the BJP would secure an easy win in the general elections in that year. In reality, it lost, and lost by a considerably greater margin than almost any pollster or public intellectual had predicted.25 This ‘shock’ defeat of the NDA was both less and more significant than it was believed to be at the time. It was less significant than it was made out to be by those who saw these elections as a decisive rejection of the NDA. The 2004 election results were by no means a ‘wave’ against the NDA. Though widespread and deep-rooted discontent existed, there was no political formation in the elections that focused such discontent beyond the regional and the issue-specific. The confusing result is best summarised by Yogendra Yadav: ‘The case that this was a mandate against policies of economic reforms is an overstatement … having said this, it is equally necessary to realise that … if this election could [have been] a referendum on economic reforms, the policies of liberalisation would have been rejected’.26 Nor CSD (n 9). Gopalakrishnan (n 20). 23 Sarin and others (n 19). 24 CSD (n 9). 25 Yogendra Yadav, ‘The Elusive Mandate of 2004’ (2004) 39(51) Economic and Political Weekly 5383. 26 ibid. 21 22

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Access to and control of forest resources: Forest Rights Act, 2006, India 259 was there any sense of an overwhelming defeat for the social bloc that had supported the NDA, a combination of upper castes and upper classes. But a decisive defeat was indeed suffered in that year – not by the ruling coalition, but by the intelligentsia that supported the NDA. This intelligentsia had seen neoliberal economics and pro-big business policies, married with Hindu supremacism, as a successful model of both winning elections and developing the country. As a result, the incoming government was confronted with a situation where big business and finance continued to dominate policy discourse – including within the leading party of the incoming alliance, the Congress party – but without the ability to explain why their policies had failed to win popular support.27 Indeed, since liberalisation in 1991, far more than any political formation, the projection of the policy priorities of neoliberalism in India has taken place through the English media. This continued as this project began to coalesce around a deepening, albeit temporary, alliance with the Hindutva right. This gave the incoming government a mild case of institutional schizophrenia. The economic right wing retained and even strengthened their hold on traditional posts. Yet, simultaneously, the government initiated the process of preparing a ‘Common Minimum Programme’ (CMP) within its coalition and with the Left parties (who were extending outside support to the government). This in turn became the basis for two new institutions: a ‘National Advisory Council’, chaired by the President of the ruling Congress party, and a ‘coordination committee’ with the Left parties. The importance of these institutions was not rooted in accommodating powerful interests; it was much more amorphous, and essentially intellectual. They were born out of the contradictory need to generate a new political project while simultaneously not affecting the interests of the ruling bloc and its dominant fraction, which after all remained in power (a project summed up by incoming Prime Minister Manmohan Singh as ‘reforms with a human face’).28 It was in this context that the demand for forest rights asserted itself through mass protests at the national level, after the 2002 eviction drive had displaced hundreds of thousands of people across the country. It was natural that this demand would be routed into the new spaces in the UPA. The formal recommendation for a new statute was hence first made by the National Advisory Council (NAC) as a result of interventions by the Campaign for Survival and Dignity (see next section). As a ‘new’ institution charged with evolving a new ideological focus, the NAC was able to bypass the institutional interest of the Forest Department – which had otherwise monopolised and blocked all such measures in the past – as well as the neoliberal ideological stranglehold. What followed, however, showed how severely constrained this new space would be (as did the similar struggle over the National Rural Employment Guarantee Act, 2005, which is out of our scope here).

27 This is discussed further in Shankar Gopalakrishnan, Hindutva and Neoliberalism: Fascism, Free Markets and the Restructuring of Indian Capitalism (Aakar Books 2008). 28 ibid.

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260 Research handbook on law, environment and the global South 1. The Making and Implementation of Law as an Exercise in Institutional Contestation29 The subsequent contest over the Forest Rights Act – its formulation, its passage, and its implementation – has been constituted mainly by three groups of actors. The first, and the most vocal, is the forest bureaucracy and its handful of very visible allies among hard-line wildlife conservationists (a group whose importance diminished greatly after the Act was passed). This section, defending the centralisation, autocracy and enclosure system of the forest bureaucracy as the essence of ‘wise husbandry’ of natural resources and wildlife conservation, attacked the Forest Rights Act head on and aimed to do nothing less than prevent it from being passed. This group initially found a strong ally in the same neoliberal intelligentsia mentioned earlier. In 2005, most of the country’s major English newspapers ran repeated news and opinion pieces denouncing the plans for a new law.30 In this view, any reference to collective or democratic control over resources – natural or financial – is dangerous, as it threatens the easy expropriation of such resources when required by capital (as had become the pattern in India’s forest areas). But in this period, as we discussed above, this section had been weakened by the election results. This meant that it was not able to secure victory as easily as it might have been able to prior to the 2004 result. Both the other sections in the struggle claimed to support the Bill. But there were strong distinctions; not all ‘supporters’ of the law necessarily supported the same law. Thus, one group of ‘supporters’, comprising much of the non-forest state bureaucracy, some non-governmental organisations (NGOs) and progressive elements in the forest bureaucracy, saw the forest rights struggle as legitimate but limited. To this group, the key purpose of any move on forest rights was to mitigate conflict, recognise people’s lands and homes, and basically address the immediate burning problems of the adivasis in particular so that forest areas could cease to be a cauldron of violence and impoverishment. This could be done through a clear, well designed and ‘focused’ legislative effort to correct the mistakes of the past. Examples of this approach included press statements by NGOs advocating a national commission to examine the issue and ascertain the extent of forest dwellers’ rights; statements by ministers in the government, including the Minister of Tribal Affairs ostensibly spearheading the law; and, most revealingly, a secret note from the Prime Ministers’ Office in early 2006,31 which argued that the law was intended to address ‘law and order problems’ and ‘the Maoist threat’, not to advocate ‘communitarian wishful thinking’. Disclosure: the author is the national secretary of the Campaign for Survival and Dignity and was in that position at the time of the developments described in this section. The narrative here draws on the author’s personal records and experiences for this purpose. 30 See for instance Malavika Singh, ‘May I Dwell in the Forest?’ Indian Express (7 May 2005); Tavleen Singh, ‘Simple Living, or Zero Thinking?’ Indian Express (2 July 2005); Shekhar Dattatri, ‘The Myth of Harmonious Co-existence’ The Hindu (8 August 2005), accessed at www.thehindu.com/2005/08/13/stories/2005081302911000.htm. 31 Personal communication to the author from sources in the Prime Minister’s office, February 2006. 29

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Access to and control of forest resources: Forest Rights Act, 2006, India 261 The other group of ‘supporters’, including most of the forest dwellers’ and tribals’ movements, and certain elements in the Left parties, the Congress party and other political parties, argued that this approach would not address any of the real problems in forest areas. They instead sought to push for democratic and collective control – in other words, for disempowering forest bureaucrats – as an integral part of any new law, if it was to be effective. It is important to note that this broad sketch concerns not merely different points of view but different social forces. Each of these actors occupied a sociopolitical position determined by their respective social bases – the forest bureaucracy operated as a face of the expropriatory tendency backed by big business; the state bureaucracy, NGOs, and so on, attempted to protect and promote stability in the face of one of the country’s most severe internal conflicts; and the movements, and sections of political parties, attempted to bring about a more fundamental change to empower their mass bases. These three forces have, broadly, shaped the struggle over forest rights both during the framing of the law and in the subsequent decade that has followed since it was brought into force. The struggle over the law and its meaning has been shaped at each stage by the question of which force dominated the political space in question. In 2005, as we saw above, the effects of the elections had thrown open the institutional space in an unprecedented manner. As a result, pressure from mass protests led to the National Advisory Council’s recommendation receiving immediate action at the governmental level, and a series of steps to disempower the forest bureaucracy – of which the most significant was that the nascent Ministry of Tribal Affairs was given the role of being the ‘nodal’ agency for both framing the law and implementing it (taking this power away from the much more powerful Ministry of Environment and Forests). The subsequent contestation between the three main forces occurred within the bureaucracy, the media (particularly the English media) and the legislature. Broadly, this contestation occurred over two grounds. First, the forest bureaucracy and its English media allies attempted to prevent any statutory recognition of forest rights at all. This battle is still on in the present day – at the time of writing, the Supreme Court is hearing 12 separate writ petitions seeking to have the Court declare that any statutory recognition of forest rights is unconstitutional. But in 2005 and 2006 this force was too weak to achieve this goal, and the other two forces allied against it. The second ground was over the role of bureaucratic processes in the actual structure of forest governance that the new law would set in place. In this issue, the centrist bureaucratic and ‘civil society’ bloc largely allied with the first and tried to stop too ‘radical’ a law from being passed. But the institutional schizophrenia of the period meant that there were too many institutions – the National Advisory Council, the Left parties’ role in government, and eventually a Joint Parliamentary Committee32 – that 32 Joint Parliamentary Committees (JPCs) are committees that include members from both the houses of the Indian Parliament (hence the ‘joint’ nature of these committees). When convened to examine a legislative measure, they are empowered to rewrite bills and to place an amended version before both houses of Parliament for passage. According to convention, the bill as recommended by the JPC becomes the bill before Parliament, and the version that was originally moved lapses.

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262 Research handbook on law, environment and the global South were not in the control of any section of the bureaucracy. These became spaces where the third, ‘radical’ bloc was able to make its politics known. This second power struggle, between the political forces and the bureaucracy, delayed the passage of the Act from March 2005 (when it was first tabled) to December 2006, even as an escalating series of mass agitations took place across tribal and forest areas. Finally, on 18 December, the law was passed in the lower house of Parliament – but only after several last-minute amendments, introduced at the instance of government officials literally half an hour before Parliament sat. Lawmakers were unable to discuss or analyse these amendments, which diluted and undermined some of the key recommendations of the Joint Parliamentary Committee that had examined the Bill. Moreover, after the passage of the Act, once again due to intense resistance from the forest bureaucracy, the government delayed the notification of the law into force for another year. The framing of procedural regulations for implementing the Act – known as the Rules, which were now framed by a process firmly within bureaucratic control – allowed for further dilution.

D. THE BASIC STRUCTURE OF THE FOREST RIGHTS ACT It is against this background that the nature of the law has to be understood. The eventual result of the clash of these various forces was to produce an extremely complex law whose key clauses each reflect intense political contestation. 1. Major Provisions of the Law The Act first defines which categories of people will be eligible for forest rights. All persons claiming rights have to first establish that they ‘primarily reside in forests’ and that they ‘depend on forests and forest land for bona fide livelihood needs’. Second, they must prove that these conditions have either been true for 75 years, in which case the claimant is an ‘Other Traditional Forest Dweller’ (section 2(o)), or that they are a member of what is known as a ‘Scheduled Tribe’ (communities ‘scheduled’ – listed – as ‘tribal’ by the Central government). The law then recognises three main types of rights. Land rights The Act grants people title to forest land that they have been cultivating prior to 13 December 2005 (section 4(3)). Those who are cultivating land but do not have documentary proof can claim up to 4 hectares, as long as they are cultivating the land themselves for a livelihood (sections 3(1)(a) and 4(6)). Those who have a prior title or a government lease, but whose land has been illegally taken by the Forest Department, or whose land is the subject of a dispute between Forest and Revenue Departments, can claim title to those lands (see section 3(1)(f) and (g)). The land cannot be sold or transferred to anyone except by inheritance (see section 4(4)). Use rights The law secondly provides for rights to use and/or collect the following:

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Access to and control of forest resources: Forest Rights Act, 2006, India 263 + ‘Minor’ (non-timber) forest produce – such as leaves, herbs, medicinal plants, and the like – that have been traditionally collected (section 3(1)(c)). + Grazing areas and water bodies. + Traditional areas used by nomadic or pastoralist communities. Right to protect and conserve For the first time, the law also grants communities the right to protect and manage the forest. Section 3(1)(i) provide a right and a power to communities to conserve community forest resources, while section 5 gives the assembly of all residents of a village, or the gram sabha, a general power to protect wildlife, forests, and so on. These sections represent what is perhaps the most radical innovation in this law. Right against arbitrary relocation In national parks, wildlife sanctuaries and tiger reserves, adivasis and forest dwellers have often faced the problem of being forced to relocate in order to create ‘inviolate’ human-free spaces for wildlife.33 Hence, section 4(2) provides some safeguards against forced relocation. Under the section, no one can be relocated unless three steps are satisfied. First, relocation must be shown to be scientifically necessary with no other alternative; this has to be done through a process of public consultation. Second, the affected community must consent to the resettlement. Finally, the resettlement must provide not only compensation but a secure livelihood. The same procedure was also incorporated in the separate Wild Life (Protection) Act in the specific case of tiger reserves. Procedure for rights recognition Section 6 of the Act provides a three-step procedure for determining which rights are recognised. First, the gram sabha elects a Forest Rights Committee, which receives claims for rights and verifies them. The report of this committee is placed before the gram sabha once again, which can modify it, approve it or reject it. The gram sabha’s decision goes through two committees at the taluka (sub-district) and district levels. The district level committee makes the final decision on recognition of rights (see section 6(6)). These higher committees have six members – three government officers and three representatives of elected bodies. At both the sub-district and the district levels, any person who believes a claim is false can appeal to the committees, and if they prove their case the right is denied (section 6(2) and (4)). Finally, land rights recognised under this Act cannot be sold or transferred. 2. The Nature and Meaning of the Rights Recognised in the Act It was noted in the first half of this chapter that forest areas are characterised by a situation of unclear legal tenure and insecure property rights. The list of rights provided in the Forest Rights Act, at first glance, appears to remedy that. In particular, one can divide the rights in the following fashion: Sarin (n 3); CSD (n 9).

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264 Research handbook on law, environment and the global South 1.

Individual property rights: Chief among these is the right to land, as protected by various sections of the Act. But it should be noted that the ban on transfer essentially makes this more of a secure usufruct right than a property right as such. Collective property rights: Rights to minor forest produce, grazing, water bodies, and so on fall within this category. They are collective in nature but still conceived of (in legal terms) as ‘property’ tenures. This category and the next constituted genuine innovations in Indian law, which has hitherto had either weak or non-existent recognition of collective and common property rights. The only parts of India with strong collective property regimes are those within the ‘states of exception’ mentioned above.34 Collective powers: The ‘rights’ to protect, conserve and manage forests are not in fact ‘rights’ at all, but regulatory powers that move beyond the question of property rights as such. ‘Rights’ over biodiversity and the ‘right’ to habitat for Particularly Vulnerable Tribal Groups (PTGs, communities that are mostly either landless or hunter gatherers) fall into the same category.

2.

3.

The individual property rights noted above essentially seek to institutionalise a property regime in forests. This appears to defeat the century-old attempt of extractive forces and the Forest Department to expropriate resources by denying property rights, and to replace this attempt with a ‘standard’ set of property relations. This is the part of the law that appealed most strongly to those seeking to ‘limit’ the damage developing from conflicts in forest areas. But the third category of ‘rights’ (powers, in fact) went well beyond this vision alone, and grew out of the demand to disempower the bureaucracy and build the possibility of new institutions of democratic control. These institutions centred around the gram sabha, which the law placed at the centre of three main processes: 1. 2. 3.

The determination of rights Community forest management and control Relocation from protected areas

Critics of the law often point out that the gram sabha is by no means necessarily egalitarian or democratic. However, the potential for change that this institutional space embodies is not dependent on the egalitarianism of the gram sabha. Rather, by giving it such a central role, the law creates a space for collective action and collective production. The fact that collective relations remain strong in forests was discussed earlier. Building on these collectivities, or creating new ones, challenges the structural foundations of the existing system. These provisions were intensely resisted by both the forest and the non-forest bureaucracies, and hence were diluted in the final law. As discussed below, this key contradiction – and not the question of ‘rights’ alone – continues to shape the implementation of the Act.

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Access to and control of forest resources: Forest Rights Act, 2006, India 265 Finally, the Act does not exist in a vacuum. It operates in the context of existing laws and institutions. Since the Act emerged in the face of the teeth of the opposition of the forest bureaucracy, legal provisions and institutional spaces that came under the control of that bureaucracy were never altered to match it – and continue to contradict it to this day. Some key instances of such contradictions include: + Forest management: The rights and powers under this Act are in direct conflict with the provisions of the Indian Forest Act, which remains unamended. + Forest diversion: Granting permission to use forest land for ‘non-forest purposes’ is currently entirely controlled by the Central government under the Forest (Conservation) Act, 1980 – while the Forest Rights Act empowers communities to protect forests, wildlife and their natural and cultural heritage, implying that they must consent to any diversion if these powers are to have any meaning. As discussed below, this contradiction has become one of the biggest flashpoints around the Act. + Protected areas: The practice of setting aside large areas of land and forest for wildlife protection has been one of the key methods by which the forest bureaucracy has maintained its ideological justification for autocratic control over resources – as well as a key source of funds. The Act’s new provisions on wildlife habitats and relocation directly challenge this control. Thus, it is important to see that the Forest Rights Act can be understood in two ways. The first is as one law among other laws, to be ‘harmoniously constructed’ with other laws to ensure overall consistency. Such an exercise would, however, rob the Act of most of its new features and effectively reduce it to a title distribution scheme. The other way is to understand that the Forest Rights Act provides a space for a new form of political action within the legal framework. It is in this latter sense that the Act has actually come to play a role within India’s resource management framework.

E. A BONE OF CONTENTION AND A TOOL OF STRUGGLE After the Act was passed, many of the political trends identified in the preceding sections have continued to operate. It has now been a decade since the Act was notified into force and implementation ostensibly began. In this period, the conflict between expropriatory tendencies, on the one hand, and tendencies rooted in resistance and decentralisation, on the other, has continued. We can broadly divide the progress of this conflict over this decade into three phases. 1. First Phase: Individual and Land Rights Once the Act was passed, the first force that was discussed in the previous section – which sought to prevent the Act from coming into existence – had effectively been defeated. It continued to attempt to destroy the law even after it was passed; court cases were filed in multiple High Courts across the country, asking for the Act to be declared

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266 Research handbook on law, environment and the global South unconstitutional.35 Excepting an interim order in the Madras High Court, those making these arguments were unable to get much relief from the courts. As a result, the second faction – that which desired a limited, one-off implementation of the Act – became more powerful, both at the Central and the State levels. The result was that many State governments treated the Act as primarily an exercise in recording individual land rights and ignored all the other provisions of the law. For instance, as of 2010, certificates for the right to protect and manage community forest resources (see previous section) had been provided to only three villages in the entire country.36 In a 2010 review report, the Council for Social Development (2010) found that ‘all of the key features of this legislation have been undermined by a combination of apathy and sabotage during the process of implementation’. It went on to outline how decision-making bodies and committees were subverted by Forest Department participation (and, in one case, threats to file criminal cases against committee members who disagreed with them), how evictions continued in some areas, and how ‘all non-land rights – especially community rights – have been ignored in implementation’.37 2. Second Phase: Community and Collective Control Comes back into Focus The failure to implement the Forest Rights Act in its full scope was not surprising, in light of the factors mentioned above – the mere passage of the law was unlikely to result in rights recognition or a change in the balance of power relations. However, as expected, it soon became a new theatre for political action. The first major area of such contestation emerged around the diversion of forest land for industrial projects under the Forest (Conservation) Act. In a series of protests after the notification of the Act into force, forest dwellers’ organisations demanded that the government respect the Act’s implicit requirement (see the discussion above regarding section 5) that no forest be destroyed without the consent of the affected gram sabhas. In October 2008, the Parliamentary Standing Committee on Environment and Forests and Science and Technology, when commenting on the then draft Compensatory Afforestation Management and Planning Authority Bill, also endorsed this position. On 30 July 2009 – a year and a half after the Act came into force – the Environment Ministry finally responded to this demand by issuing a circular38 that stated that any proposal for diversion of forest land had to be accompanied by, among other evidence, copies of resolutions from affected gram sabhas stating that the rights recognition process is complete and that they gave their informed consent to the diversion of forest land. The passage of the circular concretised this massive issue, which rapidly developed into the highest-profile national policy issue around the Forest Rights Act (a fact which remains true today; see below). The Environment Ministry almost entirely failed to Details of these cases can be found at www.forestrightsact.com/court-cases. Council for Social Development, Summary Report on the Implementation of the Forest Rights Act (Council for Social Development 2010). 37 ibid 2. 38 Ministry of Environment and Forests, Circular F. No. 11-9/1998-FC(pt) (30 July 2009). 35 36

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Access to and control of forest resources: Forest Rights Act, 2006, India 267 comply with its own circular, continuing to divert large areas of forest land without either ensuring recognition of rights or securing the consent of the affected gram sabhas. This emerged as a major public issue around two projects in particular, both in the State of Odisha: the proposed POSCO steel plant in Jagatsinghpur district, and the proposed Vedanta bauxite mine at Niyamgiri (on the border of Kalahandi and Rayagada districts). In both cases agitations by local people against these projects sought to use the Forest Rights Act as their prime weapon of defeating the takeover of their lands and resources by these companies. In the former case, three separate official enquiries39 concluded that the Act had been violated when clearing the project; nevertheless, the clearance was allowed to stand by then Environment Minister Jairam Ramesh.40 Despite this, the struggle over the Forest Rights Act in this area contributed greatly to the eventual decision of the POSCO corporation, announced in early 2015, to ‘indefinitely suspend’ the project. In the latter case, the Central government finally rejected the proposal for forest clearance in August 2010 on grounds of violations of the Act. The Odisha Mining Corporation (which was in a partnership with Vedanta) challenged this decision in the Supreme Court. On 18 April 2013, the Supreme Court ruled that the Forest Rights Act required that the decisions of the gram sabhas around the affected mountain must be sought before any clearance could be decided.41 In September 2013, 12 gram sabhas were consulted, and all unanimously rejected the project.42 This marked the first time in India’s legislative history that a project was rejected due to lack of consent from communities. While these battles attracted the most press coverage and political attention, in several parts of the country agitations began to take up the Forest Rights Act as a tool in various struggles for control over non-timber forest produce, common lands and water bodies. Protests in West Bengal, Goa, Madhya Pradesh, Odisha, Jharkhand, Chhattisgarh, Tamil Nadu, Andhra Pradesh and the north eastern states began to demand that their management powers be respected in control over forests.43 The most visible outcome of these agitations emerged in Gadchiroli district of Maharashtra, where, for the first time in the country, a number of villages managed to secure titles over non-timber forest produce and community forest resources (under sections 3(1)(c) and 3(1)(i) of the Act respectively). After a prolonged battle with the 39 One by the Saxena Committee, one by the POSCO Enquiry Committee, and one by the Forest Advisory Committee. Details can be found at https://forestrightsact.com/corporateprojects/the-posco-project/timeline-of-events-relating-to-forest-rights-in-posco-area/. 40 Times News Network, ‘Jairam Ramesh Clears Posco Project’ Times of India (3 May 2011), accessed at https://timesofindia.indiatimes.com/india/Jairam-Ramesh-clears-Poscoproject/articleshow/8148693.cms. 41 Orissa Mining Corporation v Union of India and Ors, Writ Petition No 180 of 2011, Judgment of 18 April 2013 (Supreme Court of India). 42 Santosh Patnaik, ‘12th Gram Sabha Too Votes against Vedanta Mining’ The Hindu (19 August 2013), accessed at www.thehindu.com/news/national/12th-gram-sabha-too-votes-againstvedanta-mining/article5039304.ece. 43 See discussion in Shankar Gopalakrishnan, ‘The Forest Rights Act: Political Economy of Environmental Questions’ (2017) 52(31) Economic and Political Weekly 71.

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268 Research handbook on law, environment and the global South state forest authorities, in April 2011 one of these villages – Mendha Lekha – became the first village in the country to sell bamboo at a rate that it fixed itself (which was several times higher than the earlier official rate) and to do so without requiring a Forest Department permit.44 Villages across the district began to harvest and sell bamboo. This model spread across the country, leading to agitations in several areas, most notably in several villages in Odisha. In 2012 the Ministry of Tribal Affairs – the heart, in some senses, of the second faction described above – conceded that the existing rules for implementation of the Act were inadequate and failed to respect or recognise community rights. Two policy initiatives followed. On 12 July 2012, the Ministry issued binding guidelines to all State governments requiring steps to prevent bypassing gram sabhas, recognition of community rights and compliance with the requirement of gram sabha consent prior to diversion of forest land.45 On 6 September 2012, it amended the Rules to the Act themselves to incorporate these changes, including a mandatory requirement that every village with forest dwellers should have rights over its community forest resources recorded (Rule 12B(3) of the amended Rules). In the years that followed these changes, for the first time, community rights began to be recognised in multiple states of the country, with Odisha being at the forefront. Once again, however, a policy change does not translate into immediate impact. In July 2015, a study found that ‘barely 1.2 percent of the area [for which people are eligible] has actually been recorded and recognized’.46 Nevertheless, the political climate had shifted. 3. Third Phase: The Election of the National Democratic Alliance Government and the Present Situation In May 2014, the BJP, under the leadership of Narendra Modi, returned to power in a landslide election victory over the UPA. The new BJP-led NDA had campaigned on a platform promising ‘development’, and, in response to corporate frustration with the earlier government’s perceived ‘paralysis’, had included easy takeover of land and natural resources among its campaign promises to the corporate sector. It was widely expected that the new government would attempt to dilute or amend the Forest Rights Act, and supporters of the government’s policy agenda called for the law to be scrapped.47 But, to date, no explicit attempt to amend the law has been made, 44 Press Trust of India (PTI), ‘Jairam Ramesh Launches Bamboo Initiative for Tribals in Maharashtra Village’ Daily News and Analysis (28 April 2011), accessed at www.dnaindia. com/mumbai/report-jairam-ramesh-launches-bamboo-initiative-for-tribals-in-maharashtra-village1536964. 45 Ministry of Tribal Affairs, Guideline No. 23011/32/2010-FRA [Vol. II (Pt)] (12 July 2012). 46 Rights and Resources International, Potential for Recognition of Community Forest Rights under India’s Forest Rights Act (Rights and Resources International 2015), accessed at www.rightsandresources.org/wp-content/uploads/CommunityForest_RR_A4Final_web1.pdf. 47 R Jagannathan, ‘The Forest Rights Act Needs to Go: Tribals Aren’t Part of a Tiger Reserve’ Firstpost.com (12 September 2014), accessed at www.firstpost.com/india/the-forestrights-act-needs-to-go-tribals-arent-part-of-a-tiger-reserve-1707317.html.

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Access to and control of forest resources: Forest Rights Act, 2006, India 269 with the government clearly fearing widespread protest and a political backlash. In this sense, the forces that seek to eliminate forest rights – the first faction in the broad schema discussed in the previous section – have not recovered from their loss in 2008. With the widespread use of the Forest Rights Act against both corporate projects and the Forest Department’s control over non-timber forest produce and other common resources, the area of contestation has shifted once again. On the one hand, there are ongoing efforts to dilute the orders and circulars that operationalise the requirement for gram sabha consent prior to diversion of forest land.48 This effort in fact began in late 2012 – during the UPA government – in response to corporate pressure. However, such efforts have so far not resulted in any explicit policy change. In 2014 and 2015, however, a new strategy in this ongoing contest emerged. Unable to completely deny community rights any longer and unable to stop the invocation of the Forest Rights Act, the forest bureaucracy instead began to ignore it in policymaking. In the first move of this kind, State Forest Departments of some major states – notably Maharashtra and Madhya Pradesh – began invoking the ‘village forests’ provisions of the Indian Forest Act. This provision, which had hardly ever been used prior to this period, empowers the Forest Department to delegate some of its powers to a village for a ‘village forest’. In 2014 the Maharashtra government notified a new set of Village Forest Rules, which empowered villages to collect some non-timber forest produce, but with all such powers subject to approval of the Forest Department and with the possibility of withdrawal at any time. In July 2015, the Madhya Pradesh Forest Department issued a similar set of rules.49 The Central Ministry of Tribal Affairs objected to the Maharashtra rules, stating that this was an illegal attempt to bypass the implementation of the Forest Rights Act and to limit the rights that that statute recognised.50 But the Maharashtra government has largely ignored the Central Ministry, and received the support of senior leaders in the ruling party at the Centre in doing so.51 At the time of writing, these village forest rules are being implemented in both states. Finally, in July 2016, the Central government succeeded – in the face of dissent from the Congress party and the Left parties – in passing a new ‘Compensatory Afforestation Fund Act’ that provides for large sums of money to be spent on afforestation plantations, which often are used as a method to take over forest dwellers’ lands and 48 Nitin Sethi, ‘Forest Land: Govt Finalising Dilution of Tribal Rights’ Business Standard (1 January 2015), accessed at www.business-standard.com/article/economy-policy/forest-land-govtfinalising-dilution-of-tribal-rights-115010100027_1.html. 49 Kumar Sambhav Shrivastava, ‘Rules to Bypass Forest Law for Tribals in BJP-Ruled States?’ Hindustan Times (10 August 2015), accessed at www.hindustantimes.com/india/rules-tobypass-forest-law-for-tribals-in-bjp-ruled-states/story-8byFGk3YXugppKY8LksaJM.html. 50 Meena Menon, ‘Gadkari, Tribal Ministry at Loggerheads over “Dilution” of Forest Act’ The Hindu (11 September 2014), accessed at www.thehindu.com/news/national/gadkari-tribalministry-at-loggerheads-over-dilution-of-forest-act/article6398309.ece. 51 Urmi Goswami, ‘Jual Oram’s Stand Puts Him at Odds with Nitin Gadkari, Prakash Javadekar’ Economic Times (13 September 2014), accessed at economictimes.indiatimes.com/ news/politics-and-nation/jual-orams-stand-puts-him-at-odds-with-nitin-gadkari-prakash-javadekar/ articleshow/42376339.cms.

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270 Research handbook on law, environment and the global South expropriate common lands. The new law ignored the Forest Rights Act entirely – indeed, it did not mention the words ‘forest rights’ at all. As yet, it has not come into operation, in part due to controversies over attempts to frame procedures under it that would allow forest officials to undertake afforestation and plantation projects on lands over which forest dwellers have rights.52

CONCLUSION The Forest Rights Act marked a major shift in resource management policies on India’s forest lands, which constitute almost a quarter of the country’s land area. However, as with many laws, this law cannot be fully understood without placing its provisions within the wider political and socioeconomic context within which they operate. In the Indian case, this context consists of a history of struggle between expropriatory and centralising tendencies – with strong links to colonial and postcolonial capitalism – on the one hand, and resistance, forest dwelling communities and collective production systems on the other. In turn, this struggle intersected with a particular moment in India’s political history, namely the 2004 elections, in order to produce a political conjuncture that both made the Forest Rights Act possible and shaped its provisions. As a result, the very words used in the new law – leave alone its implementation – reflect this history of struggle and conflict. In turn, its role as a future law will also both be affected by, and in turn will affect, these larger political contestations. Observers of legal regimes – especially those engaged in media or legal commentary – tend to limit their analyses to the text of these laws and to viewing law in isolation, with the only relevant question being whether a particular statute has been implemented or not, and hence whether it has achieved its stated goals or not. But laws play a far more complex role than this. If nothing else, the example of India’s Forest Rights Act shows how such approaches are not merely narrow but may actually be misleading. For instance, to simply ask whether the Forest Rights Act has been implemented or not would lead one to conclude that it has largely not been implemented, even a decade after being passed, and hence it is not of much significance. But then one would have no way of understanding why this seemingly insignificant law is being invoked in conflicts across the country, as discussed in the previous section. One would have no way to understand why its provisions and procedures have met such intense opposition from the forest bureaucracy – or such enthusiasm from varied social groups and communities In reality, India’s Forest Rights Act is a particularly stark example of how law can be fundamentally a political enterprise, which, in the ultimate analysis, acquires both its legal and its political meaning from the sociopolitical context within which it is embedded. Far from being insignificant, it has simultaneously become a talisman, an arena and a weapon for some of the deepest and oldest conflicts in the country. 52 Manasi Karthik and Arpitha Kodiveri, ‘The Great Indian Land Grab Being Carried out in the Name of Compensatory Afforestation’ The Wire (30 January 2018), accessed at thewire.in/ environment/great-indian-land-grab-carried-name-compensatory-afforestation.

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14. Forest rights and tribals in mineral rich areas of India: the Vedanta case and beyond Geetanjoy Sahu

INTRODUCTION On 18 April 2013 the Supreme Court of India gave a landmark order directing the State Government of Odisha to seek free and prior consent of the gram sabhas1 before giving clearance to the Vedanta company for mining of bauxite in the Niyamgiri Hills of Odisha.2 For millions of forest dwellers in India, especially tribals living and dependent on forest resources,3 this order became a reference point to assert their rights over forest land and resources under the Forest Rights Act. After several decades of persistent struggle and campaigns, India enacted the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA). The FRA was a landmark legislation that sought to restore the rights of forest dwellers over land (for cultivation and habitation), community forest resources and habitats, and the governance and management of forests. More importantly, devolution of power to gram sabhas to manage its customary forest boundary, especially in mineral rich areas of India, has provided a legal platform to challenge the indiscriminate eviction of people without settling their rights. Tribals across India have invoked FRA provisions to assert their rights over forest land and resources. Prior to FRA, displacement of tribals in the name of development and mining without settling their rights and consent was a norm both during the colonial and post-colonial phases in India. Even though Scheduled Tribes (STs) constitute 8.6 per cent of the total population today in India and legal and constitutional protection mechanisms have been in place to protect the rights of tribals, it is estimated that they constitute 55 per cent of the people who have been displaced between 1951 and 1990 due to the construction of dams, mines, industrial development and infrastructure projects.4 Poverty and landlessness are rampant among STs. Of all STs, 9.4 per cent are landless as compared to 7.8 per cent for the national average, and

The gram sabha is a body consisting of all persons whose names are included in the electoral rolls for the panchayat (lower unit of local governance) at the village level. The term is defined in the Constitution of India under Article 243(b). 2 Orissa Mining Corporation v Union of India and Others (2013) 6 SCC 476 (Supreme Court of India, 18 April 2013). 3 Tribal people in India are called Adivasis. Adivasi is an umbrella term for a heterogeneous set of ethnic and tribal groups considered the aboriginal population of India. 4 Madhu Sarin, ‘Indigenous Community Rights in India: A Critical Moment in History’ (10 September 2013 – on file with the author). 1

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Forest rights and tribals in India: the Vedanta case and beyond 273 47.1 per cent of all STs are below the poverty line in rural areas as compared to 33.8 per cent for the national average.5 Keeping in mind the above context, this chapter seeks primarily to examine two important aspects related to mining activities in tribal areas: (1) how mining activities, through an aggressive and exploitative mineral policy, has impacted tribal rights in India, (2) how effective has been the constitutional provisions and statutory acts in safeguarding the interest of tribal rights over the use and management of forest resources vis-à-vis mining activities in forest areas. These questions are addressed through an analysis of mining for bauxite ore by the Vedanta company in the Niyamgiri Hills of Odisha. In doing so, I begin with an overview of mining rules and regulations in India, followed by a discussion on the constitutional and legal framework that aim to protect tribals’ rights over forest resources. The next part has a fuller discussion on Vedanta company’s mining attempt in the Niyamgiri Hills of Odisha and the aftermath struggle both in and outside the courtroom. The final section discusses the impact of the Supreme Court judgment and tribals’ struggle for the protection of Niyamgiri Hills and lessons for tribals and state administration beyond Niyamgiri Hills.

A. MINING REGULATIONS IN INDIA: AN OVERVIEW Minerals constitute an important element of economic growth of India as it has been generously endowed with minerals.6 India is a mineral rich country with large deposits of iron ore, barytes, rare earths and mineral salt. India produced 90 minerals, 11 metallic, 52 non-metallic and 23 minor minerals in 2012–13. India was ranked second in the production of barytes, third in chromite, and coal and lignite, fifth in iron ore and steel (crude), sixth in bauxite ore, seventh in manganese ore and eighth in aluminium (crude) in the world in 2012. The number of mines in India which reported mineral production (excluding minor minerals, petroleum (crude), natural gas and atomic minerals) was 3,318 in 2014–15 as against 3,722 in 2013–14. The total value of mineral production (excluding atomic minerals) during 2014–15 was estimated at Rs 267,637 crores as against Rs 278,150 crores during 2013–14. The country’s mineral output from the mining and quarrying sector increased over the years and total value of production stood at Rs 26,350 crores in 2016–17. The mining and quarrying sector accounts for 2.5 per cent of India’s GDP, as estimated by the Central Statistical Organization.7 Management of mineral resources is the responsibility of both the Central Government and the State Governments in terms of Entry 54 of the Union List (List I) and Entry 23 of the State List (List II) of the Seventh Schedule of the Constitution of India. 5 Namita Wahi and Ankit Bhatia, ‘The Legal Regime and Political Economy of Land Rights of Scheduled Tribes in the Scheduled Areas of India’ (Centre for Policy Research 2018), accessed at www.cprindia.org/research/reports/legal-regime-and-political-economy-land-rightsscheduled-tribes-scheduled-areas. 6 Auro Kumar Sahoo and others, ‘Bibhuti Bhusan Pradhan Mineral Export and Economic Growth in India: Evidence from VAR Model Analysis’ (2014) 27(1) Mineral Economics 51. 7 Mines and Minerals (Development and Regulation) Amendment Act 2015.

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274 Research handbook on law, environment and the global South Mining activities are controlled and regulated under the Mines and Minerals (Regulation and Development) Act (MMRDA), 1957 which gives exclusive power to the Government of India and State Governments in deciding the allocation and management of all minerals except mineral oil. In India, ownership of minerals lies with the state.8 However, the Central Government has control over all major minerals like iron ore, bauxite, copper and coal whereas State Governments have control over minor minerals like sand, stone and granite. The core functions of the state under the MMRDA, 1957 has been facilitation and regulation of exploration and mining activities of investors and entrepreneurs, provision of infrastructure and tax collection. In the post-1990s era of deregulation, decontrolling and delicensing economic policy, the exploitation and plunder of natural resources, including minerals, by domestic corporates and multinational mining companies has intensified.9 The Mines and Mineral (Regulation and Development) Act was amended in 1993 in line with the new economic policy of the Government of India. This was again amended in 1994 and 1999 to accommodate private parties mostly of foreign origin with a hope of inflow of foreign funding. Subsequently, states like Odisha, Chhattisgarh, Jharkhand, Madhya Pradesh, Andhra Pradesh and so on are under tremendous pressure and demand today than ever before in terms of extraction of mineral deposits.10 However, the achievements and growth in the mining sector have come at a huge cost. There has been blatant violation of tribal rights and environmental rules and regulations. A recent study finds that mining is the biggest cause of displacement of tribals.11 The mines are located largely in the traditional habitats of the tribes and have been looked upon as the resources of the entire country. Tribal areas produce most of the country’s coal, mica, bauxite and other minerals. This creates conflict between mining companies, financial firms and the government on one side, and tribal communities on the other. The report further points out that the total number of major mineral reporting mines for 2015–16, was 2,100. Out of this, 1,463 mines, that is roughly 70 per cent, were in Fifth Schedule area states dominated by tribal populations. The STs constituted about 8.6 per cent of the total population in the country according to the 2011 Census.12 According to the Ministry of Tribal Affairs of Government of India (MoTA) nearly 85 lakh tribals were displaced until 1990 on account of mega-developmental projects like dams, mining, industries and conservation of forests, and the like. In the absence of recognised rights, only 2.1 million of the displaced indigenous people were rehabilitated, and as many as 6.4 million were not.13 8 Kuntala Lahiri-Dutt, ‘Introduction to Coal in India: Energising the Nation’ in Kuntala Lahiri-Dutt (ed), ‘The Coal Nation: Histories, Ecologies and Politics of Coal in India (Ashgate 2014) 20. 9 Aseem Shrivastava and Ashish Kothari, Churning the Earth: The Making of Global India (Penguin 2014) 195. 10 Deepak Patel, ‘Odisha, Chhattisgarh, MP Line up Mines for Auction’ Business Standard (3 June 2015), accessed at www.business-standard.com/article/economy-policy/odishachhattisgarh-mp-line-up-mines-for-auction-115060300031_1.html. 11 ibid 4. 12 Ministry of Tribal Affairs, Forest Rights Act 2006: Act, Rules and Guidelines (Ministry of Tribal Affairs and UNDP 2014), accessed at https://tribal.nic.in/FRA/data/FRARulesBook.pdf. 13 ibid 3.

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Forest rights and tribals in India: the Vedanta case and beyond 275 However, efforts to restore the majority of the tribals displaced since independence come from the mineral rich states of India such as Odisha, Jharkhand, Chhattisgarh and Madhya Pradesh.14 In the absence of safeguards for tribals and effective rehabilitation and resettlement policy or legal framework until the enactment of the FRA of 2006 and the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (LARR), the displaced tribals had to struggle to protect their livelihood sources. For example: Jharkhand is an important state from the viewpoint of both Adivasi population and minerals. Tribals constitute 26.3 per cent as per the 2011 Census of the Government of India and the state contains 40 per cent of India’s precious minerals like uranium, mica, bauxite, granite, gold, silver, graphite, magnetite, dolomite, fireclay, quartz, feldspar, coal, iron and copper. But the resource rich state has witnessed massive displacement over the last seven decades. A study done by Dungdung points out that since independence, 1,710,787 people were displaced while acquiring 2,415,698 acres of their lands for setting up the power plants, irrigation projects, mining companies, steel industries and other development projects in Jharkhand.15 The same despicable conditions are also there for tribals in other mineral rich states like Odisha, Chhattisgarh and Madhya Pradesh. Tribal lands have been invariably taken away in the name of national interest. The data available from the Ministry of Rural Development reveals that 66,464 cases regarding 85,777.22 acres of illegal transfer of tribal land were registered until 2001–02.16 Out of these, 34,608 cases concerning 46,797.36 acres of land were considered for hearing and the remaining 25,856 cases related to 38,979.86 acres of land were dismissed. The data also reveals that, after the hearing, only 21,445 cases concerning 29,829.7 acres of land were given possession to the original holders and the rest remain with the non-Adivasis.17 However, efforts to restore the rights of tribal communities have been pathetic and abysmal. The claim under the National Mineral Policy, 2008 to improve tribal communities and societies has been a myth and reality has been that millions of tribal people have been displaced and alienated from their livelihood. Similarly, the recently passed Mines and Minerals Development and Regulation Amendment Act of 2015 by the Government of India seeks a complete and holistic reform in the mining sector with provisions to address issues relating to sustainable mining and local area development, especially families impacted by mining operations. One of the amendment provisions relates to the introduction of section 9B which provides for the establishment of a District Mineral Foundation (DMF) in any district affected by mining-related operations. The DMF is a non-profit statutory ‘trust’ for every Indian district affected by mining-related operations, which should work for the interest and benefit of persons, and areas affected by mining-related operations. For the first time, a mining Act promised to address the rights of tribal communities Sreya Maitra, ‘Development Induced Displacement: Issues of Compensation and Resettlement – Experiences from the Narmada Valley and Sardar Sarovar Project’ (2009) 10(2) Japanese Journal of Political Science 191. 15 Gladson Dungdung, ‘Adivasis’ Struggle against Displacement in Jharkhand’ Countercurrents.org (4 August 2009), accessed at http://www.fra.org.in/Adivasis%20atruggle%20 against%20displacement%20in%20Jharkhand.pdf. 16 Ministry of Rural Development, Annual Report 2002–2003 (Government of India, n.d.). 17 Gladson Dungdung, ‘A Vision for Adivasis’ in Ashish Kothari and KJ Joy (eds), Alternative Futures: India Unshackled (AuthorsUpFront 2017) 594. 14

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276 Research handbook on law, environment and the global South through sharing 10 per cent of royalties in respect of mining leases granted on or after 12 January 2015; and 30 per cent of royalties in respect of mining leases granted before 12 January 2015. However, such kind of promise may not be effective in its current governance structure to distribute the benefits.18 This is no doubt a progressive element in the Act as it makes payment by companies mandatory but the problem in the MMRDA is that these funds are to be under the control of a DMF dominated by mine owners and the bureaucracy with a nominal representation of local communities.19 The past experience from other sectors suggests that this is going to be misused and there are possibilities that the community development funds will be diverted to other sectors or misused. The provision to use royalties from mining activities for tribal communities’ welfare and development with control from district administration has already resulted in misutilisation and diversion of district mineral funds for various other purposes than for the benefit of mining affected people.20 The next section discusses the constitutional and legal mechanisms to protect the rights of tribals over forest resources in India.

B. FOREST RESOURCES AND TRIBAL RIGHTS IN INDIA: LEGAL AND INSTITUTIONAL FRAMEWORK Historically, both during the colonial and post-colonial periods forest resource governance and management had largely been driven by the principles of centralisation, exclusion and exploitation. Forest resource management, with its origin in the colonial era Indian Forest Act of 1927, took over the resource rights from forest dwellers and categorised forest into three types: Reserved Forest, Protected Forest and Village Forest and thereby put restrictions and regulation over the use and access rights of millions of forest dwellers across India. The endorsement of the power of the forest department in the early constitutional years of independent India was assisted by the centralisation decision-making that had developed around the Indian Forest Act of 1927. That colonial law, and the case law that grew around it, made the power of the forest department, and the nature of public purpose for the diversion of forest at the discretion of the forest administration, a matter solely for executive determination and statement, and, therefore, non-justiciable. Though post-independent India in its early phase witnessed incorporation of a series of provisions to protect and improve the rights of tribals, the implementation of the same has not been effective. A cursory look at the constitutional provisions and legal instruments suggest that there is no dearth of rules and regulations to protect the rights of tribals over forest resources. For example: Articles 244(1) and (2) of the Constitution carve out tribalmajority areas from the geographical land mass of India, designated as scheduled areas 18 Brinda Karat, ‘Of Mines, Minerals and Tribal Rights’ The Hindu (15 May 2012), accessed at www.thehindu.com/opinion/lead/of-mines-minerals-and-tribal-rights/article3419034.ece. 19 Mines and Minerals (Development and Regulation) Amendment Act 2015, s 9B. 20 Special Correspondent, ‘District Mineral Foundation Funds Being Used for Infrastructure’ The Hindu (18 July 2017), accessed at www.thehindu.com/news/national/karnataka/districtmineral-foundation-funds-being-used-for-infrastructure/article19303481.ece.

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Forest rights and tribals in India: the Vedanta case and beyond 277 in the fifth and sixth schedules of the Constitution, respectively. The STs living in scheduled areas are unique because unlike the rest of the population and even the Scheduled Castes (SCs), who have group-based representation and affirmative action provisions, the STs are the only minority group that have specially recognised rights to land. The Fifth Schedule provides for the administration of tribal-majority areas in ten states within peninsular India that have tribal minority populations, that is the population of STs is in a minority compared to the population of the remainder of the state. Evidently, the object of the Fifth Schedule and the regulations made thereunder is to preserve tribal autonomy, their cultures and economic empowerment to ensure social, economic and political justice for the preservation of peace and good governance in the scheduled area. Over the last seven decades, a series of policies, plans and legal mechanisms have been introduced both by the Central Government and State Governments across India to improve the socio-economic conditions of STs and protect their rights over forest resources. It is not possible to delve into each scheme and statute here but two important legal instruments, namely the Panchayat (Extension to the Scheduled Areas) Act, 1996 (PESA) and the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA) require specific attention to understand tribals’ rights over forest resources vis-à-vis mining policies of both State and Central Government in India. PESA recognises the importance of customary and traditional norms and rights of tribals over resources and attempts to bring together both customary norms and the formal system governed by law under one single framework. It recognises that tribal communities depend on village commons to survive, and ownership of this commons is collective and regulated by customary law. The Act transfers power and control over resources, land, water, minor forest produce and minerals to the people. Under PESA, the gram sabha needs to be consulted ‘before making the acquisition of land in the Scheduled Areas for development projects and before re-settling or rehabilitating persons affected by such projects in the Scheduled Areas’.21 But State Governments are reluctant to enact the law, and draft rules that enable gram sabha, or village committees, control over resources.22 A series of Supreme Court and High Court judgments on how mining activities have been allowed indiscriminately across India bypassing provisions of PESA and tribal rights bear testimony to this. Like PESA, another most important and progressive law protecting tribal and other traditional forest dwellers’ rights to access and control was enacted in 2006. The FRA was enacted after a number of demands and struggles by the forest dwellers and tribal communities across the country to assert their rights over the forestland over which they were traditionally dependent. This Act is crucial to the rights of millions of tribals and other forest dwellers in different parts of India as it provides for the restitution of deprived forest rights, including both individual rights to cultivated land in forestland and community rights over common property resources. The enactment of the FRA was Panchayat (Extension to the Scheduled Areas) Act 1996, s 4(i). CR Bijoy, ‘Policy Brief on Panchayat Raj (Extension to Scheduled Areas) Act of 1996’ (UNDP 2012), accessed at www.undp.org/content/dam/india/docs/UNDP-Policy-Brief-onPESA.pdf. 21 22

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278 Research handbook on law, environment and the global South an appraising effort by the Government of India that brought down a paradigm shift in the history of forest governance. This Act was an important turning point in the history of tribal empowerment in India in particular regarding their livelihood and tenure security on forests. This Act has been propagated with a view to correct the ‘historical injustice’ that was prevailing in the country from the colonial period which excluded the forest dwellers and tribes that lived in and around forests, thereby creating a stressful environment by separating tribal and other forest dwellers from their habitat. This Act also for the first time gives and recognises community rights of forest dwellers and tribal communities over common property resources in addition to their individual rights. These include rights in and over disputed land; rights of settlement and conversion of all forest villages, old habitation, un-surveyed villages and other villages in forests into revenue villages; rights to protect, regenerate or conserve or manage any community forest resource which the communities have been traditionally protecting and conserving for sustainable use; right to intellectual property and traditional knowledge related to biodiversity and cultural diversity; rights of displaced communities, and rights over developmental activities. The most important and powerful aspect of the FRA has been its mandatory clause that makes gram sabha consent a pre-condition before displacement of people from forest areas or any change in the forest land use pattern and diversion of forest for non-forest purposes in forest areas.23 Despite the existence of a number of statutes, the constitutional mandate of recognising the culture and autonomy of tribal society, a flurry of legislations and administrative infrastructure for implementation, the problem of tribal alienation from resources continues to remain a great concern in India and in fact has intensified over the years with the liberalisation of mining policy in the post-economic reforms phase. The study by Wahi and Bhatia has found that STs have disproportionately borne the burden of economic development because of displacement, caused by their special relation to land which other groups do not have. There are many reasons that contribute to this abysmal situation. The lack of political will to enforce the Act rightfully, insensitiveness of society towards SCs and STs, continuing adherence to the caste system, and lack of human rights awareness are some examples.24 Generally, the eminent domain status of the government has been used to override local objections. Development decisions are top-down, and communities or citizens have no significant financial and legal powers.25 This has prompted tribal leaders and activists, as well as non-governmental organisations (NGOs), to approach the courts, particularly the higher judiciary, to seek suitable remedies. Interestingly, the judiciary has responded in a pro-active manner to deal with tribal rights and culture. 23 Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006, s 4. 24 Community Forest Rights-Learning Advocacy, Promise and Performance: Ten Years of the Forest Rights Act in India, Citizens’ Report of the Promise and Performance of The Scheduled Tribe and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006 (CFR-LA 2016), accessed at http://fra.org.in/document/Promise%20and%20Performance%20Report.pdf. 25 Usha Ramanathan, ‘A Word on Eminent Domain’ in Lyla Mehta (ed), Displaced by Development: Confronting Marginalisation and Gender Injustice (Sage 2009) 133.

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Forest rights and tribals in India: the Vedanta case and beyond 279

C. TRIBAL RIGHTS AND THE INDIAN SUPREME COURT: THE VEDANTA MINING CASE On several occasions the attention of the Supreme Court of India has been drawn to consider the scope of PESA and FRA to protect the rights of tribals over forest resources.26 But, perhaps no other litigation related to PESA and FRA has been discussed and debated as much as the litigation against Vedanta company to protect the socio-cultural and religious rights of tribals living and dependent on the Niyamgiri Hills in Odisha. The following section delves into the details of the litigation and the judgment that became the first environmental referendum in India. The history of the controversial mining lease granted to Vedanta company in the Niyamgiri Hills of Odisha dates back to June 2003 when a Memorandum of Understanding between Vedanta’s subsidiary Sterlite Industries and the Government of Odisha for setting up a refinery, captive power plant and bauxite mining operation in Niyamgiri was signed.27 In a desperate bid to attract private investment in the steel and alumina sectors, the Government of Odisha have extended all kinds of support such as identification of land and facilitating land acquisition to Sterlite Industries ever since the agreement was signed. At the centre of the controversy was an agreement between the Orissa Mining Corporation (OMC) and Vedanta Alumina Ltd. for bauxite mining in Kalahandi district. A Sterlite Group company, Vedanta Alumina signed the joint venture agreement with the OMC on 5 October 2004 for developing bauxite mines at the Niyamgiri Hills near Lanjigarh in Kalahandi district and the Khambasi Hills in adjoining Rayagada district, for use in its one-million-tonne alumina refinery being set up at a cost of Rs 4,000 crores. According to the agreement, Vedanta Alumina held a 74 per cent stake in the joint venture company, with the remaining 26 per cent being held by the OMC. But Vedanta Alumina, through its majority holding, had to control and oversee the day-to-day operations of bauxite mining. According to the government, the company had applied for 723.343 hectares for the alumina refinery project, out of which 58.94 hectares was forest land and the rest private or revenue land. The proposal to acquire forest land was pending with the Centre and no activity had been undertaken by the company on this land. For bauxite mining, the company needs 721.323 hectares, which includes 580.861 hectares of forest land. However, between November 2004 and February 2005, the Odisha State Forest Department issued three showcase notices to Vedanta for clearing woodlands in the refinery site in violation of the Forest Conservation Act 1980. But the Sterlite company applied to the Ministry of Environment, Forests & Climate Change (MoEF&CC) for environmental clearance of the refinery in March 2004, arguing that the plant is independent of the proposed mine. It also stated that the construction of the refinery will not involve diversion of forestland. 26 Shomona Khanna (ed), ‘Compendium of Judgments on the Forest Rights Act 2007–2015’ (Ministry of Tribal Affairs and UNDP 2015), accessed at www.in.undp.org/content/india/en/ home/library/poverty/compendium-of-judgements-on-the-forest-rights-act–2007-2015.html. 27 Special Correspondent, ‘Vedanta Signs Fresh MoU with State’ The Hindu (5 April 2007), accessed at www.thehindu.com/todays-paper/tp-national/tp-otherstates/Vedanta-signs-fresh-MoUwith-State/article14744835.ece.

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280 Research handbook on law, environment and the global South Without anybody’s surprise, the MoEF&CC gave clearance for the refinery and reiterated in September 2004 that there will be no diversion of forestland. The refinery became fully operational in 2007 with the land acquired from 12 villages from the Lanjigarh block of Kalahandi district. Following the clearance order from MoEF&CC, the villages of Borbhata and Kinari were displaced to make way for the construction of the refinery in March 2005. Media reports and the international NGO ActionAid’s report revealed that only large landowners were offered compensation and that most villagers were evicted overnight by force.28 Many of the tribals were beaten up and threatened by Vedanta’s armed guards.29 The company, however, claimed that it had not violated any law so far. The company officials claimed that the construction of the refinery started only after obtaining necessary clearance from the Odisha State Pollution Control Board and the Union Ministry of Environment and Forests.30 However, the big challenge for the company was to acquire the lands for its proposed bauxite mining project in the nearby Niyamgiri Hills.31 The dense forests of the Niyamgiri Hills are one of the most important biodiversity hotspots in eastern India.32 It is also home to the Dongria Kondh tribe, one of the most isolated tribes in Odisha.33 In September 2004, petitions were filed simultaneously in both the Odisha High Court and in the Indian Supreme Court by Mr. Sreedhar Ramamurty, Director of the Academy for Mountain Environics, Biswajit Mohanty of the Wildlife Society of Orissa and the human rights campaigner Prafulla Samantara. The petitioners challenged the proposed mining lease on the ground that it violated India’s constitutional provisions under the Fifth Schedule, the Supreme Court’s earlier order in the Samatha case in 1997,34 and also violation of Indian environmental and forest conservation laws. This prompted the Indian Supreme Court to seek a report through a Central Empowered Committee (CEC). After extensive hearings and a site visit, the CEC of the Indian Supreme Court issued a damning report on Vedanta’s operations in Niyamgiri Hills.35 The CEC notes that there were no in-depth studies about the effect of the proposed 28 ActionAid, Annual Report 2010 (2010) 12, accessed at www.actionaid.org/sites/files/ actionaid/actionaid-ar-2010-new-small-size.pdf. 29 Keren Wang, ‘Framing Human Rights and the Production of Translation Legal Consciousness’ (2016) 5(2) Journal of Civil & Legal Sciences 4. 30 Prafulla Das, ‘A Mining Controversy’ 21(24) Frontline (2004), accessed at www.frontline.in/static/html/fl2124/stories/20041203002004400.htm. 31 Satyapriya Rout, ‘Land, Law and Resistance: Legal Pluralism and Tribal Conflicts over Land Alienation in Odisha’ in Maarten Bavinck and Amalendu Jyotishi (ed), Conflict, Negotiations and Natural Resource Management: A Legal Pluralism Perspective from India (Routledge 2015) 75. 32 Meenal Tatpati and others, ‘The Niyamgiri Story: Challenging the Idea of Growth without Limits?’ Kalpavriksh (2016), accessed at https://kalpavriksh.org/wp-content/uploads/ 2018/06/NiyamgiricasestudyJuly2016.pdf. 33 Devershi Mishra, ‘Henry Shue and the Basic Rights of Dongria Tribe of Niyamgiri Hills’ The Citizen (10 October 2016), accessed at www.thecitizen.in/index.php/en/newsdetail/index/8/ 8930/henry-shue-and-the-basic-rights-of-dongria-tribe-of-niyamgiri-Hills. 34 Samatha v State of Andhra Pradesh, 1997 8 SCC 191. 35 Centre for Science & Environment, Vedanta Alumina Project in Lanjigarh, Orissa: A Scandal of Epic Proportions Involving MoEF, State of Orissa, Vedanta Group and Orissa Mining

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Forest rights and tribals in India: the Vedanta case and beyond 281 mining on the water regime, flora, fauna and on the Dongria Kondh tribe living at Niyamgiri Hills. The report accused Vedanta of providing wrongful information and thereby circumventing the law. The CEC recommended that the environmental clearance for the refinery project be revoked and the mining operation at Niyamgiri banned. The CEC of the Indian Supreme Court found that Vedanta deliberately concealed the use of forestlands for the refinery. It also criticised the MoEF&CC for delinking the alumina refinery clearance from the mining clearance in the first place, as both project components and their impacts should have been considered jointly. The Supreme Court’s interim order in November 2007 stayed the mining project at Niyamgiri Hills. The Supreme Court, however, referred the case to the MoEF&CC, which in turn engaged the Wildlife Institute of India to examine the project’s expected impacts. The report from the Wildlife Institute of India found that the project will lead to irreversible changes in this important ecosystem and asked why there was no consideration of alternative sites for the bauxite mine.36 However, Sterlite Industries Ltd. came out with a revised proposal to which the Supreme Court of India in its August 2008 order granted clearance with certain conditions related to the sustainable development of local communities, protection of the environment and conservation of the wildlife. Following the Supreme Court order in August 2008, the Government of India and State Government of Odisha gave clearance to the diversification of 660.749 hectares of forest land for the mining project in December 2008 and September 2009 respectively. The decision of the Government of India and State Government of Odisha to give clearance for the mining project in Niyamgiri Hills witnessed large-scale protest across India. This forced the Forest Advisory Committee of the MoEF&CC to make a site visit of mining clearance site in January–February 2010 and the committee found large-scale violation of environmental laws, of which the most serious was violation of the FRA.37 This led to the formation of another committee chaired by NC Saxena to examine the proposal of the State Government of Odisha for the diversification of 660.749 hectares of forest land for the bauxite mining project in the Kalahandi and Rayagada districts of Odisha. The committee found violations of the FRA, PESA, Environmental (Protection) Act, 1986 and Forest (Conservation) Act, 1980 and recommended that allowing mining activity in the area by depriving the Dongria Kondh tribe of their rights over the proposed mining site in order to benefit a private company would shake the faith of tribal people in the laws of the land, which may have serious consequences for the security and well-being of the country. While hearing the petition challenging various environmental provisions of the Constitution, the Supreme Court of India ruled out the mining proposal of the company and stated that Vedanta has to get clearance from a village assembly, or gram sabha, in Corporation (Centre for Science & Environment 2017), accessed at www.cseindia.org/report-ofthe-central-empowered-committee-cec–7653. 36 Actionaid, Busting the Myths about Vedanta’s Operation in Lanjigarh, India (2007), accessed at www.banktrack.org/download/vedanta_cares_/vedanta_report01072007.pdf. 37 NC Saxena and others, ‘Report of the Four Member Committee for Investigation into the Proposal Submitted by the Odisha Mining Company for Bauxite Mining in Niyamgiri’ (Ministry of Environment and Forests, Government of India 2010), accessed at http://www.rlarrdc.org.in/ images/Saxena%20Vedanta%20Report.pdf.

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282 Research handbook on law, environment and the global South each affected village, which will consider the cultural and religious rights of the affected people and tribes living in the Rayagada and Kalahandi districts of Odisha.38 Referring to the FRA, the Court held that: [t]he blatant disregard displayed by the project proponents with regard to rights of the tribals and primitive tribal groups dependant on the area for their livelihood, as they have proceeded to seek clearance is shocking. Particularly Vulnerable Tribal Groups have specifically been provided protection in the Forest Rights Act, 2006 and this case should leave no one in doubt that they will enjoy full protection of their rights under the law.39

The FRA has been enacted conferring powers on the gram sabha constituted under the Act to protect community resources, individual rights, cultural and religious rights.40 With reference to the constitutional provisions that protect cultural and religious rights of tribals, the Court ruled that: Religious freedom guaranteed to STs and the TFDs [Traditional Forest Dwellers] under Articles 25 and 26 of the Constitution is intended to be a guide to a community of life and social demands. The above mentioned Articles guarantee them the right to practice and propagate not only matters of faith or belief, but all those rituals and observations which are regarded as integral part of their religion. Their right to worship the deity Niyam-Raja has, therefore, to be protected and preserved.41

The Court further directed the State Government of Odisha to prepare a list of villages likely to be affected in both the districts of Kalahandi and Rayagada and to hold gram sabha meetings between 18 July and 19 August 2013. All the villages (12 gram sabhas) unanimously rejected the proposed mining activity in Niyamgiri Hills, which they have been worshipping for centuries as Niyama Raja. This forced the Government of India to cancel the forest clearance given to Vedanta company on 9 January 2014. Reluctant to give up a lucrative deal, the State Government launched a fresh bid to overturn this by approaching the Supreme Court again in early 2016 through its Odisha Mining Corporation for reconvening the gram sabhas to seek afresh the mandate of the affected Dongaria tribals. But the Supreme Court dismissed the application in May 2016.42

38 Orissa Mining Corporation v Union of India and Others (2013) 6 SCC 476 (Supreme Court of India, 18 April 2013). 39 ibid 21–2. 40 Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006, 3.1. 41 Orissa Mining Corporation v Union of India and Others (2013) 6 SCC 476 (Supreme Court of India, 18 April 2013) para 76–7. 42 Jayajit Dash, ‘Supreme Court Quashes Odisha’s Plea on Niyamgiri’ Business Standard (6 May 2016), accessed at www.business-standard.com/article/current-affairs/supreme-courtquashes-odisha-s-plea-on-niyamgiri-116050601256_1.html.

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Forest rights and tribals in India: the Vedanta case and beyond 283

D. ASSERTIVE COMMUNITIES The achievement to get hold of their rights, however, has come not without hurdles and state oppression and victimisation policies. There were instances of Adivasi people from the Niyamgiri Hills being accused under various cases and arrested. Several pressure tactics were used by company employees and state machinery to silence them and their struggle to preserve their forests. Haribandhu Kadraka, a tribal leader, was arrested in October 2014. Drika Kadraka, who had represented the struggle and resilience of the people of the Niyamgiri Hills in many public meetings, was intimidated by the police and picked up without any charges being filed. Media reports suggest that there have allegedly been many more cases of false encounters and intimidation, which have hardly been reported or acted upon. Despite the atmosphere of intimidation and fear, the people of Niyamgiri stand tall, with their resilience and love for nature, which cannot be quelled. Their resolve to safeguard their homes, not just for themselves but for generations to come, is as strong as ever. Their belief in constitutional and legal forms of struggle is evident in their persistent efforts. The controversy around the Vedanta mining case touches upon issues that are now well known, thanks in large measure to the indefatigable work of the Dongria Kondh tribe against the giant company and state machinery. The campaign against the Vedanta mining proposal in Niyamgiri Hills was an extraordinarily successful example of how important are constitutional safeguards and statutory acts that empower communities to assert their rights. It is also an example of organised mobilisation. Besides the affected people, the movement against the Vedanta company brought together national and international media, academicians, international NGOs like Survival International, ActionAid, Amnesty International, and ordinary environmentalists attracted by, among other factors, the potent iconography of the movement. The support of media and urban based environmental groups helped the community to narrate their demands outside Niyamgiri Hills. Exploitation and suppression of tribal voices by the state machinery unleashed a barrage of reportage in the national and international media, the attention of several monitoring bodies, and a spate of protest letters to the Indian and Odisha Governments. The well-oiled response that the anti-Vedanta movement of the tribal community was able to elicit compelled the Government of India to rethink its decision of clearance to the project. The participation of women and children in the movement created the political space where the rights of tribal groups received special attention; its prioritisation of the hill as a cultural and religious symbol and, more importantly, as the major source of livelihood, brought to the centre-stage issues of control over the ownership of land, forests and water. In the process, it also defined forbidden zones of violation – acts and attitudes that were no longer acceptable – for instance, alienating tribals against their will in the name of national interest and not consulting people about their interest to have the project or not. These all were possible because the constitutional safeguards and legal instruments like PESA and FRA came to their rescue. Both the legal instruments provided scope and space for the deprived tribal community to assert their rights. Another important factor that worked in favour of the community is the progressive approach of the Indian

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284 Research handbook on law, environment and the global South judiciary. Unlike its earlier defensive decision against huge investment and infrastructure cases, the Court came down heavily against the Vedanta company and the state machinery for violating constitutional provisions and statutory acts. Following the anti-Vedanta mining project and the kind of success the movement has achieved, the hope of tribal communities to access, use and manage resources through employment of their constitutional rights has increased. Over the last few years, the resistance by tribal communities due to various development projects across India has grown and is reflected, in varying degrees, in the rights of indigenous and tribal communities to ownership, control and management of land and resources traditionally held by them either individually or as a community; the right to a decisive role in decision-making for development needs in their areas; and the right to free and prior informed consent (FPIC) to any projects in their areas. Some of them include: protest by tribal villages in Raigarh, Chhattisgarh, against the plans of South Eastern Coalfields Limited (SECL) to mine in their forests, is eligible to be recognised under FRA; rejection by the tribals of Koida Tehsil of Sundargarh district in Odisha of the proposed Rungta Mines in their forest areas by the Industrial Infrastructure Development Corporation of Odisha Limited; protest by the villagers of Lipa in Kinnaur district of Himachal Pradesh against the Kashang hydroelectric project to be built by the state-owned body Himachal Pradesh Power Corporation Limited, and so on.

CONCLUSION The above discussion suggests that tribals in India, rather than reaping the benefits of natural resources in their surrounding areas, have been victims of displacement disproportionately more often than others. The struggle of tribals in Niyamgiri Hills and their achievement is an exceptional one. While the story of tribals’ struggle in Niyamgiri is encouraging, what is important to understand is how long will the tribals struggle to protect their rights? Notwithstanding the changes in the governance structure of resource management in tribal areas through FRA and PESA, the Government of India wields extraordinary power through numerous laws to establish monopoly over resources. For example: despite the enactment of the FRA, the State Governments like Chhattisgarh have diverted forests for mining activities without settling the rights of forest dwellers.43 Such attempts should be challenged so that the tribal communities can exercise control effectively on subjects legally under their control. The Indian State needs to understand that any amount of alienation and deprivation of tribal rights from their land and other resources to serve the interest of market forces without a democratic process and resettlement of their claims will create more tensions and impact development policies. The state machinery needs to respect the law of the land that recognises the rights of tribal people to own, use, access and dispose of forest resources. In order to reflect that responsibility diversion of forest for non-forest purposes in tribal areas for any development projects including mining 43 Nitin Sethi, ‘Chhattisgarh Govt. Cancels Tribal Rights over Forests to Facilitate Coal Mining’ The Wire (7 February 2016), accessed at https://thewire.in/agriculture/chhattisgarh-govtcancels-tribal-rights-over-forests-to-facilitiate-coal-mining.

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Forest rights and tribals in India: the Vedanta case and beyond 285 activity must first seek FPIC from local people so that the development project will be more effective and acceptable to the community. Tribal communities across India are demanding a decentralised governance structure. The government must learn from the experiences of the past and devolve power, so that the fruits of development are distributed in an equitable manner. The struggle of tribals to protect the Niyamgiri Hills against a giant company like Vedanta also tells us that movements about resources need to have multi-pronged strategies. Collective action, consistency and systematic efforts to produce empirical evidence on violation of rights, and invoking the appropriate legal instruments can go a long way in asserting and holding community rights over forest resources. Thanks to the FRA of India, the gram sabhas at Niyamgiri have set a benchmark that no forest can be diverted without their consent. Efforts at the international level, such as the International Labour Organization’s (ILO) Indigenous and Tribal Peoples Convention and the UN Declaration on the Rights of Indigenous Peoples have been considered historic milestones in the promotion and protection of rights of tribals and indigenous communities.44 However, there has been significant resistance from many countries, including India, to ratify the ILO Convention. Civil society and forest rights groups working on similar issues across the globe have to demand stronger legal and constitutional safeguards to protect the rights of tribals and indigenous people over forest land and resources.

International Labour Organization, Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries, Geneva, 27 June 1989, 1650 UNTS 383; Declaration on the Rights of Indigenous Peoples, UN General Assembly Resolution 61/295, 13 September 2007, UN Doc. A/RES/61/295. 44

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15. Conservation and livelihoods: conflicts or convergence? CR Bijoy

INTRODUCTION Conservation, the ethic of natural resource allocation, their use and protection, has always been the key determinant in the way society has organized production all through history to sustain itself.1 How conservation ethics expressed themselves in the way natural resources were used in the organization of production, and the extent to which conservation ethics actually played a role in production, varied with corresponding results.2 The centrality of conservation ethics has now come to the fore starkly and vividly with the earth facing unprecedented species extinction,3 the sixth in the past half a billion years, and the myriad cataclysmic devastations from climate change impacts.4 Ironically this is happening when technological change has transcended from a steady linear progression to an exponential rate of growth that virtually fuels itself. Despite growing technological prowess, enormous financial and human resource potential, conservation ethics are not at the core of conservation strategies: as to how the forest ecosystem is understood and managed. This is elaborated below.

1 Conservation broadly involves the regulated use, preservation, protection, or restoration of biodiversity, environment and natural resources, with materials and energy being added in recent times. However, in practice, conservation could mean the conservation of wildlife, wetland, water, soil, marine biodiversity, habitat, and endangered species, fragmented from each other or together. 2 Conservation ethics manifest for a variety of reasons. Conservation ethics are cultural: valued for spiritual, religious or quasi-religious reasons, where natural areas and species have intrinsic value; and this is a morally superior way to use natural resources. Conservation ethics are natural: everything in nature has intrinsic value in its own right and is part of complex processes and interactions within ecosystems which are critical for ecosystem functions. Conservation ethics are utilitarian: they have immense utility for economic worth; species and habitats provide goods, services and information that are valuable to people, and therefore require maximizing their sustainable harvest even into the future. They are required to serve the greatest good of the greatest number for the longest time, sustainably and equitably for the present and for future generations. See Paul Ehrlich, ‘Human Natures, Nature Conservation and Environmental Ethics’ (2002) 52(1) Bioscience 31. 3 Centre for Biological Diversity, The Extinction Crisis (n.d.), accessed at www.biological diversity.org/programs/biodiversity/elements_of_biodiversity/extinction_crisis/. 4 Soumya Dutta and others, Climate Change and India: Analysis of Political Economy and Impact (Rosa Luxemburg Stiftung-South Asia and Daanish Books 2013).

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Conservation and livelihoods: conflicts or convergence? 287

A. CONSERVATION: EXPROPRIATION FOR PROFITS The value of an ecosystem has been determined by the market value of what can be removed from the ecosystem.5 Forest ecosystems were initially valued for their timber, game and wild meat. As the market for timber expanded, more land was declared to be ‘forest’ and consequently cleared and felled. Over 1.5 billion people – of whom 60 million are indigenous peoples – a fifth of the world’s population, and 90 per cent of the world’s poor, primarily depend on forests of which at least three-quarters are government owned.6 Policing of the forests by the forest bureaucracy became the norm, with maximization of revenue from forests as the stated intent. ‘Production forestry’ took pride of place in forestry operations to increase the production of timber and other forest products. Development activities to feed the urban-industrial complex, such as dams for irrigation for increased agricultural production and water supply, hydel power to meet the escalating energy needs, and mining to name a few, competed for diversion of forest land to non-forest uses. As a result, destruction of forests and the disappearance of wildlife invariably continued due to the higher economic value attributed to them. Such diversion of forests for these projects required clearing of the forests, which led to huge revenue gains for the governments and to the dealers of these forest products. The State resorted to ‘afforestation’, to replenish the rapidly depleting woodlot, initially monoculture, and later with mixed species, including indigenous species, when the adverse effects on biodiversity, wildlife, groundwater and soil fertility were observed. The widespread destruction of forests pushed the ‘conservation’ agenda forward in the form of clamping down on forest destruction and bringing parts of forests under the ‘Protected Area’ regime where protection of forests and wildlife was to take precedence. Conservation in Protected Areas is enforced through the use of criminal law in statutorily demarcated areas with varying degrees of exclusion of communities who are dependent on the area for livelihood, whether living inside or outside this demarcated area. Propagated as the perfect way to a guaranteed ideal conservation of biodiversity, Protected Areas draw their origin from the Yosemite National Park of California’s Sierra Nevada Mountains, which was carved out of a ‘war of extermination’ against the Miwok Indians,7 and the first Protected Area, the Yellowstone National Park established in 1872, which was ‘set apart as a public park or pleasuring ground for the benefit and enjoyment of the people’ after securing it from the Native Indians by deploying the army and building a fort to prevent the Native Indians from entering the Park.8 After exterminating and driving out the Native Indians and enclosing the area, an outright Daniel Cressey, ‘Conservation Meets Capitalism in Florida’ Nature (23 February 2012), accessed at www.nature.com/news/conservation-meets-capitalism-in-florida-1.10101. 6 World Bank, Forests and Poverty Reduction (28 August 2013), accessed at https:// www.worldbank.org/en/topic/forests/brief/forests-poverty-reduction. 7 For an overview on how conservation evolved and what it did to communities especially indigenous peoples, see Mark Dowie, Conservation Refugees: The Hundred-Year Conflict between Global Conservation and Native Peoples (MIT 2009). 8 See Yellowstone National Park Act 1872, accessed at www.nps.gov/parkhistory/online_ books/anps/anps_1c.htm. 5

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288 Research handbook on law, environment and the global South brazen lie was manufactured in order to erase their past history of land grab and murders, that these are ‘pristine’ areas of ‘wilderness’ to be protected and conserved for posterity. This myth was eloquently developed and extended to falsely propagate the idea that these were indeed pristine large wilderness areas – a natural heritage of humankind as yet untouched by them, to be preserved for future generations, and that local communities were encroachers who decimated these pristine areas of its precious flora and fauna. Such encroachments are criminal and hence have to be removed by fear or force. A conservation aristocracy led by US-based and a few European conservation and environmental non-government institutions gave these falsehoods a cloak of science deploying billions of dollars to coax governments to provide a legal cover to drive out communities from their homelands, secure and enclose these areas as Protected Areas for the viewing pleasure of the affluent and for other profitable activities.9 The conservation aristocracy, well financed often by extractive industries, spawned and spread a conservation strategy with this perception, language, plans and projects. The number of Protected Areas was estimated to be 209,429 in 2014 (increasing from 9,214 in 1962) covering an area of 32,868,673 km2 (2,400,000 km2 in 1962). The Protected Area regimen covers 3.41 per cent of the world’s marine area and 14 per cent of the world’s terrestrial areas, including Antarctica.10 This exponential increase in the number and area under this enclosure conservation regime has created at least five to tens of millions of ‘conservation refugees’.11 The developing world is more susceptible to having more conservation refugees than the developed world because international conservation agencies do not have the powers to increase their conservation initiatives in the developed world as they do in the developing world’.12 Progressively, Protected Areas became tools for territorial control over people and resources for the advancement of elite interests. Their habitations were ransacked; they were thrown out, killed, displaced and starved. Most often they were the indigenous peoples who, otherwise, are also called ecosystem people with a strong tradition and history of a symbiotic relationship with nature.13 Critics of this tragic phenomenon argue that this is ‘due mostly to conflicting views of nature, radically different 9 Usually referring to big transnational organizations commanding large assets such as the Nature Conservancy, Conservation International, the World Wide Fund for Nature, Flora and Fauna International, the Fund for Wild Nature, the Wildlife Conservation Society and the African Wildlife Foundation. 10 Marine Deguignet and others, Protected Planet Report (UNEP-WCMC 2014) 12, 14. 11 Dowie (n 7) xxi. 12 Daniel Brockington and Jim Igoe, ‘Eviction for Conservation: A Global Overview’ (2006) 4(3) Conservation and Society 424; Harrison Esam Awuh, ‘A Critique of the Global Literature on the Conservation Refugee Problem’ (MSc thesis, Victoria University of Wellington 2011), accessed at http://researcharchive.vuw.ac.nz/xmlui/bitstream/handle/10063/1855/thesis.pdf? sequence=2. 13 For the experiences of people due to conservation initiatives, see Dawn Chatty and Marcus Colchester (eds), Conservation and Mobile Indigenous Peoples Displacement, Forced Settlement and Sustainable Development (Berghahn Books 2002); Lai Ming Lama and Saumik Paulb, ‘Disputed Land Rights and Conservation-Led Displacement: A Double Whammy on the Poor’ (2014) 12(1) Conservation and Society 65.

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Conservation and livelihoods: conflicts or convergence? 289 definitions of nature and profound misunderstandings’,14 and that transnational conservationists are ‘gradually changing the practice of conservation biology and hastening the demise of exclusionary conservation’.15 More and more conservationists16 ‘realise that most of the areas they have sought to protect are rich in biodiversity precisely because the people who were living there had come to understand the value and mechanisms of biological diversity’.17 However, the reality of conservation is predominantly fashioned and sculpted by economic considerations as determined by the market rather than the science of conservation. Appropriate packaging, labelling and advertising, it is believed, would effectively camouflage the reality of land grab by subterfuge, and the expropriation of livelihood and cultural resources of communities.18 The conservation aristocracy, a distinct breed within conservationists, maintain a resounding silence on the violence wrought on the forest dwellers’ lives and the plunder of forest resources by the extractive industries. when conservation serves primarily the market and investors, the conservationists involved in them too serve the same interests. The challenge was in making ‘conservation’ pay and pay well. Eco-tourism, as a means for payment for ecosystem services – an idea that took root after completion of the Millennium Ecosystem Assessment in 2005,19 and other means such as bioprospecting to feed the biotechnology industry, carbon sequestration (including REDD and REDD+)20 to contain global warming, biofuel crops,21 and endangered species that are packaged as spectacles for viewing and leisure for the rich, marketed through awe-inspiring images and symbols that are assiduously developed as prospective business ideas that could give year on year growth for a long time to come and entailing windfall gains. The State, as a driver of forest destruction, shifted track to ‘conservation’ emerging as the regulator of forest use, whether for conservation or for diversion of forests for non-forest use, facilitating the expansion of the market Dowie (n 7) ix. Since the Durban Accord of the 2003 World Parks Congress, recognizing that forest peoples bear a disproportionate share of the costs of nature conservation, a ‘new paradigm’ in conservation has emerged, wherein indigenous rights scholars and a number of international conservation groups such as the International Union for Conservation of Nature (IUCN), Center for International Forestry Research (CIFOR) and the World Wide Fund for Nature (WWF) have issued policy statements embracing rights-based approaches for effective and equitable conservation with justice. See Dowie (n 7) 236. 16 There are groups of conservationists, conservation biologists and scientists who do not subscribe to the collusive behaviour between capital and conservation. 17 Mark Dowie, ‘Conservation Refugees: When Conservation Means Kicking People Out’ Seedling (25 January 2006), accessed at www.grain.org/article/entries/545-conservation-refugeeswhen-conservation-means-kicking-people-out. 18 ibid. 19 For details, see ‘Overview of the Millennium Ecosystem Assessment’ (UN 2006), accessed at www.millenniumassessment.org/en/About.html. 20 Reducing Emissions from Deforestation and forest Degradation (REDD) is to mitigate climate change through reducing net emissions of greenhouse gases through enhanced forest management in developing countries. REDD+ extends REDD by sustainable forest management, conservation of forests and enhancement of carbon sinks. 21 A fuel derived directly from trees and plants through biological processes. 14 15

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290 Research handbook on law, environment and the global South mechanism in its control over forest. The State adorns the mantle of taking care of the forest, a national wealth, as the trustee of and on behalf of the people. The ‘economic’ perspective that dominates decision-making and mainstream discourse dismisses forest destruction, displacement of forest dependent communities and conflicts as externalities to be ‘managed’. Unfettered capital investment, growth and development are fundamental to increase Gross Domestic Product while all else is not only subservient to this, but in fact is usually deployed in its service. This ‘economic’ perspective requires that the economic activities be so designed and marketed as catering to conservation needs of the times with an attractive return in order to attract capital. On the other side, capitalism too needs new ways to make money.22 If activities can be recognized as serving conservation and also capable of generating profit, then conservation can be an attractive proposition for investors. For the conservationists, whether governmental or non-governmental, engaging with capitalism is the best way to source capital and to get things done. All the required conservation activities have to be re-engineered to make it economically profitable or linked to economically profitable ventures. Or alternatively, certain activities such as eco-tourism activities (including nature, wildlife and adventure tourism, landscape beautification, trekking, rafting, and so on), collection and sale of timber and non-timber forest produce, biodiversity conservation for bio-prospecting and harvest by sectors like pharmaceuticals, industrial biotechnology, plant biotechnology (agriculture), animal breeding, horticulture, personal care/cosmetics/perfumes, botanicals/nutraceuticals, and food and beverages, and commercial tree plantations as carbon offsets,23 agro-forestry, commercial watershed services, and biofuel crops may be tagged as conservation to attract investors irrespective of how much ‘conservation’ these activities truly comprise. With this, conservation that was thought to be antithetical to development, to keep the conserved areas off-limits to development, became an integral part of development, rendering the conservation versus development debate redundant. Conservation was earlier thought to be a real dampener to unfettered capitalist growth that was based extensively on natural resource extraction, both renewable and non-renewable, with consequent resource depletion and destruction, and environmental degradation and pollution. The limits to growth due to increasing demand on natural resources and the finite nature of these resources, it was argued, would require imposition of limits to material goods to achieve a state of equilibrium between population and production.24 Despite overshooting the limits in many areas, demand has continued to rise beyond what can be sustained. Forests are a major source for raw 22 George Holmes, ‘Biodiversity for Billionaires: Capitalism, Conservation and the Role of Philanthropy in Saving/Selling Nature’ (2012) 43(1) Development and Change185. 23 Where the trees remove carbon dioxide from the atmosphere which are marketed and sold as carbon credits to compensate for or to offset an emission made elsewhere. 24 In Donella H Meadows and others, The Limits to Growth (Universe Books 1972) the implications of continued worldwide growth were studied by analysing data on five factors – population increase, agricultural production, non-renewable resource depletion, industrial output, and pollution generation. Various scenarios were generated. They concluded that the Earth would probably not be able to support present rates of economic and population growth much beyond the year 2100. The report was twice updated, see: Donella Meadows and others, The Limits to Growth: The 30-Year Update (Earthscan, 2005).

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Conservation and livelihoods: conflicts or convergence? 291 materials such as minerals for the production of material goods and water for agricultural production and energy. Meanwhile the Intergovernmental Panel on Climate Change (IPCC) established in 1988 under the auspices of the United Nations produced comprehensive assessment reports reviewing the latest climate science, reviewing the extent of anthropogenic climate change, its impact and measures needed to counter such change. The United Nations Framework Convention on Climate Change was negotiated in 1992 with the objective to stabilize ‘greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system’.25 Protection of forests for reducing forest-based emissions and maintaining carbon stock, and tree plantations for developing carbon sinks to capture carbon dioxide from the atmosphere, are some of the key climate change responses envisaged. There has been a push to introduce a market for carbon credits, which industrial actors, governments and even ordinary persons can use to offset damaging carbon emissions that they are generating. The rationale for such mechanisms is that a tonne of CO2 emitted can be offset by either reducing or removing emissions from the atmosphere via sequestration and tree planting activities. This has attracted significant attention at the international level, for instance, in the context of the Reducing Emissions from Deforestation and Forest Degradation (REDD) programme.26 As both technology and markets are being primarily deployed to serve capital, conservation ethics are being expressed in ways that will contribute to sustained profits. Conservation and forests are packaged as attractive business ventures and peddled into the arms of the market so that ‘capitalist conservation’ could serve investors.27 All non-market-based forms of conservation may be progressively excluded as invalid or outdated, as forests which are State owned public assets held in trust for public interest and good are being appropriated for private interests in ways that exclude local people in order to apply a business approach to management of Protected Areas. This begs the question whether these conservation activities negotiate the transition from past to future so as to secure the long-term health of ecosystems by taking into account sustainability of lives and livelihoods. If they do, then forests will be uncontested terrains that are zones of peaceful coexistence and cooperation. Instead, the battle for control over forests between the forest dependent communities and those who seek to appropriate/exploit forests by bringing them fully within the confines of investment, market and private profits has only spread and intensified. This struggle could reach a zenith forcing the State to concede the injustice and formally hand over the forests, or at least a sizeable part of them, to the democratic control by forest dwellers as in India, while simultaneously attempting to subvert this democratization.28 25 United Nations Framework Convention on Climate Change, Rio de Janeiro, 9 May 1992, 1771 UNTS 107, art 2 [hereafter UNFCCC]. 26 eg UN REDD Programme, accessed at http://www.un-redd.org/. 27 See Dan Brockington and Rosaleen Duffy, ‘Capitalism and Conservation. The Production and Reproduction of Biodiversity Conservation’ (2010) 42(3) Antipode 460; Jim Igoe and Dan Brockington, ‘Neoliberal Conservation: A Brief Introduction’ (2007) 5(4) Conservation and Society 432. 28 See Gopalakrishnan in this book.

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292 Research handbook on law, environment and the global South

B. BATTLE FOR THE FOREST: THE INDIAN EXPERIENCE The lawfully demarcated ‘forest’ covers 708,273 km2 which constitutes 21.54 per cent of the land area of India. This includes 2.99 per cent of very dense forests, 9.38 per cent of moderately dense forests while open forests account for 9.18 per cent of the total land area.29 Forest land has increased by 18.49 per cent from 597,740.93 km2 at the time of independence (1949–50). Forest diversion for non-forest purposes such as development and infrastructural projects since 1947 is well over 62,000 km2 (1.9 per cent of the total area).30 More land has been brought under ‘forest’ by law than has been taken out. Within the legal category of forest land, there has been a steady increase in the forests being brought under the Protected Area regime. Between 1970 and 2019, the number of National Parks has increased from 5 to 104 covering an area of 40,501.13 km2, while the number of Wildlife Sanctuaries increased from 62 to 551 covering an area of 119,775.80 km2.31 Together with 87 Conservation Reserves of 4,286.31 km2 and 127 Community Reserves covering 525.22 km2, the total Protected Area is 165,088.36 km2 or 5.02 per cent32 of the total land area or 23.31 per cent of the forest. 1. Forest as Homeland About 100 million people live on land that is classified as forest in India,33 and 170,379 of 587,274 villages of the country with a mixed population of 147 million are located in and around these forests. The estimates for the forest dependent population of India range from 275 million to as many as 350–400 million.34 There are still on official record 4,526 forest villages with a population of 2,206,011 of whom 1,332,265 are Ministry of Environment, Forest and Climate Change, Government of India: Forest Survey of India, State of Forest Report 2017 (2017) 25, accessed at http://fsi.nic.in/isfr2017/isfr-forestcover-2017.pdf. 30 Between 1950 and 1980, 45,000 km2 of forests were estimated to have been diverted, see Ministry of Environment, Forest and Climate Change. Minister of Environment and Forests’ Statement regarding Steps Taken by the Government for Regularizing Forest Land Being Cultivated by the Farmers in Lok Sabha (10 May 2006) accessed at http://pib.nic.in/newsite/ erelcontent.aspx?relid=9130. Another 15,200 km2 was diverted from 1980 to 2018, see e-Green Watch, FCA Projects, Diverted Land, CA Land Management (24 December 2018) accessed at http://egreenwatch.nic.in/FCAProjects/Public/Rpt_State_Wise_Count_FCA_projects.aspx. 31 For data as at May 2019, see ENVIS Centre on Wildlife and Protected Areas, Protected Areas of India (2019), accessed at www.wiienvis.nic.in/Database/Protected_Area_854.aspx. 32 ibid. 33 RJ Fisher and others, ‘Numbers of Forest Dependent Peoples and Types of People Forest Relationships, People and Forests in Asia and the Pacific: Status and Prospects’ in Asia-Pacific Forestry Sector Outlook Study: People and Forests in Asia and the Pacific – Situation and Prospects, Asia-Pacific Forestry Sector Outlook Study, Working Paper Series, Working Paper No: APFSOS/WP/27, Forestry Policy and Planning Division, Rome, Regional Office for Asia and the Pacific, Bangkok (December 1997), accessed at www.fao.org/docrep/w7732e/ w7732e04.htm. 34 World Bank, Unlocking Opportunities for Forest: Dependent People in India (World Bank, Report No. 34481–IN, Main Report: Vol I, 6 February 2006) 1; MoEFCC, ‘Asia-Pacific 29

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Conservation and livelihoods: conflicts or convergence? 293 Scheduled Tribes.35 It is believed that there could be a few thousand more unrecorded forest habitations. Both official and non-official estimates concur that at least 40 million ha or 400,000 km2, or 56.5 per cent of the forests in the country, are accessed and used by forest dwellers.36 While no clear estimates are available on the number of people displaced from forests for state sponsored development projects and conservation, what is estimated is that 21.3 million people were displaced between 1951 and 1990 alone of whom 8.54 million (40 per cent) are Scheduled Tribes.37 Of these, only 2.12 million (24.8 per cent) were rehabilitated.38 Some researchers estimate that the figure is as high as 50 million.39 They have been displaced by dams, mines, industrial development and Protected Areas (Wildlife Sanctuaries, National Parks and Tiger Reserves) in that order. The bulk of these are in forested regions. It can safely be presumed that most of the displaced are forest dwellers and forest dependent communities. Precise figures for the number of people living inside Protected Areas are not available. Three to four million people resided inside Protected Areas in the 1990s.40 These are estimates of more than two decades ago when the number of Protected Areas was lower. A few million more around them access the Protected Areas for livelihood. Since then the number and area under Protected Areas have increased manifold. About 100,000 to 600,000 people are estimated to have been displaced from Protected Areas, again figures from two to three decades ago.41 2. Colonization of the Forest and Its People During the British era, forested regions were largely inhabited by adivasis, literally meaning ‘original settlers’ or ‘indigenous people’, most of whom are also categorized as Scheduled Tribes. Prior to the colonization of their homelands by the British, these Forestry Sector Outlook Study II: India Country Report’ (MoEFCC, Working Paper No. APFSOS II/WP/2009/06, 2009) 72, accessed at www.fao.org/docrep/014/am251e/am251e00.pdf. 35 Lok Sabha Question No. 104 answered on 2 May 2016, accessed at http://www.india environmentportal.org.in/files/file/forest%20villages.pdf. 36 MoEFCC (n 34) 75–6; Rights & Resources Initiative (RRI) and Vasundhara & Natural Resources Management Consultants (NRMC), Potential for Recognition of Community Forest Resource Rights Under India’s Forest Rights Act: A Preliminary Assessment (2015) 3, accessed at www.rightsandresources.org/wp-content/uploads/CommunityForest_July-20.pdf. 37 ‘Scheduled Tribes’ (STs) is an administrative category defined by Article 366(25) of the Constitution of India as ‘such tribes or tribal communities or parts of, or groups within such tribes, or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the purposes of this Constitution’. 38 Planning Commission of India, Tenth Five Year Plan: 2002–07, Chapter 4.2, Scheduled Tribes, 458 (December 2002), accessed at http://planningcommission.nic.in/plans/planrel/fiveyr/ 10th/volume2/v2_ch4_2.pdf. 39 Arundhati Roy, For the Greater Common Good (India Book Distributor 1999) 7. 40 Ashish Kothari and others, ‘Conservation in India: A New Direction’ (1995) 30(43) Economic & Political Weekly 2755. 41 Ashish Kothari and others, Management of National Parks and Sanctuaries in India (Indian Institute of Public Administration 1989); Walter Fernandes and Vijay Paranjpye, Rehabilitation Policy and Law in India: A Right to Livelihood (Indian Social Institute 1997).

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294 Research handbook on law, environment and the global South habitations were independent self-governing realms, nominally part of the existing kingdoms. British colonization led to repeated incursions into these forested regions that were resisted by local inhabitants. The building of railways since 1851 and the establishment of a network of railways across the sub-continent caused an unregulated assault on the forest to meet the huge demands for timber for railway sleepers. This devastated vast tracts of rich forests while intensifying conflicts with local communities. The Imperial Forest Department was established in 1864 followed by the Indian Forest Act, 1865 to facilitate removal of timber. Later the Indian Forest Act, 1878 classified the forest into ‘reserve forest’ for commercial exploitation extinguishing customary rights of its inhabitants or transforming them to ‘privileges’ to be exercised elsewhere at the will of the forest bureaucracy. ‘Protected forest’, another category, required recording of rights of local people with the Forest Department restricting or prohibiting rights; the Forest Department could also convert them into reserve forest. The third category was ‘village forest’ which was under the jurisdiction of the Forest Department but managed by the village, which predictably has not taken off to date, not wanting to lose exclusive control over the forest. The Forest Policy of 1894 classified forests for preservation, supply of timber, minor forest produce and pasture. Between 1875 and 1925 there was large-scale conversion of forests to agriculture and decimation of wildlife. Major adivasi rebellions broke out against these incursions into the forests which were put down by the British army.42 This was followed by consolidation of the forest laws with the Indian Forest Act, 1927, a colonial law with colonial intent, which continues to regulate forests to date. The Forest Department emerged as the biggest landlord, controlling almost a quarter of the country’s geographical area, and lording over its inhabitants as colonial masters. In independent India, the colonization of forests progressed steadily with the continuation of the colonial forest laws post-independence. Maximization of revenue from forests remained the stated focus. The period of 1947 to 1971 was the extractive phase of forestry. The National Forest Policy, 1952 created National Forests to meet defence, communications and industrial needs and brought private forests and tree lands under its ambit. Timber extraction and industrial needs continued to dominate as more lands were notified as forests. The period 1972 to 1988 saw forest protection enter forest governance. Recognizing the rapid destruction of forests and wildlife, the Wildlife (Protection) Act was enacted in 1972 to provide for the creation of Protected Areas, primarily wildlife sanctuaries and national parks, further restricting the access of forest dwellers and denying whatever rights that were permitted. In 1976, Article 48A was added to the Constitution of India stating that: ‘The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country’. The National Commission on Agriculture in 1976 declared that rights and privileges have brought destruction to the forests and so it is necessary to reverse the process and that production of industrial wood has to be the raison d’être for the existence of forests. 42 CR Bijoy, ‘Forest Rights Struggle: The Adivasis Now Await a Settlement’ (2008) 51(12) American Behavioral Scientist 1758.

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Conservation and livelihoods: conflicts or convergence? 295 The Forest Conservation Act was enacted in 1980 ostensibly to restrict the largescale diversion of forests by the States for non-forest activities by bringing forests that were under the control of State governments also under the control of the central government and mandating central government approval for forest diversion and denotification by the States. The Act also disallowed settlement of rights on forest land after 25 October 1980. This virtually put an end to the tardy and sluggish regularization of land rights, and officially categorized even those who had customary and traditional rights as ‘encroachers’, turning millions of forest dwellers overnight into criminal encroachers on their own land. By calling them ‘encroachers’ instead of people who have allegedly committed the illegal act of encroachment, they are made inherently unlawful and therefore worthy of brutal eviction. This led to a wave of unrest in the forests resulting in the National Forest Policy in 1988 recognizing the dissonance in the laws and the rights of forest dwellers and ‘the symbiotic relationship between tribals and forests’.43 Meanwhile forests, which were under the Ministry of Agriculture, came under a new ministry, the Ministry of Environment and Forests in 1985 (renamed later as the Ministry of Environment, Forest and Climate Change (MoEFCC) in 2014 acknowledging the challenges that climate change poses). The Ministry issued a set of circulars in 1990 heeding the recommendation of the Commissioner for Scheduled Castes and Scheduled Tribes to regularize rights and to also restore rights recognized that were illegally nullified. But these too were ignored by the States. In 1996, the Supreme Court of India defined forest land by saying that it ‘will not only include “forest” as understood in the dictionary sense, but also any area recorded as forest in the Government records irrespective of the ownership’.44 This new definition of forest extended the scope of application of the Forest Conservation Act and the power of the forest bureaucracy to all lands that could be interpreted as falling within the ambit of this definition. In 2000, the Supreme Court also banned the ‘removal of dead, diseased, dying or wind fallen trees, drift wood and grasses, etc’ from the Protected Areas.45 This was interpreted to mean that no rights can be exercised in these areas. The notification process was flawed and remains incomplete in most Protected Areas to date. Conflicts with local communities further escalated. At the same time, parts of Protected Areas continue to be diverted for development projects, in many instances, even when these were created to protect certain species that are threatened or endangered. 3. The Final Assault: but Tide Turned46 The Ministry of Environment and Forests on 3 May 2002 ordered all the States and union territories to launch a ‘time-bound action plan’ to evict encroachers by 43 Ministry of Environment and Forest (MoEF), National Forest Policy, 1988, accessed at http://asbb.gov.in/Downloads/National%20Forest%20Policy.pdf. 44 TN Godavarman Thirumulpad v Union of India & Others AIR 1997 SC 1168 (Supreme Court of India). 45 ibid, Order of 14 April 2000. 46 For a background on the issue and the struggle, see Bijoy (n 42) 1755–73. For a comprehensive narrative, see CR Bijoy, ‘Forest Rights Struggle: The Making of the Law and the Decade After’ (2017) 13(2) Law Environment and Development Journal 73.

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296 Research handbook on law, environment and the global South 30 September 2002. Evictions were carried out from 152,400.110 hectares or 1,524 km2 between May 2002 and March 2004 alone.47 When these brutal evictions were on, from 2002 to 19 April 2006, 3,052.66 km2 of forest were diverted for non-forestry purposes. At least 300,000 forest dwellers were evicted from their habitats depriving them of their livelihood, destroying their houses, crops and food, and in many instances, violence was used with people being shot and killed, and women being raped. This nationwide unlawful eviction drive, unparalleled in the history of the country, also sparked protests and resistance leading to a national mobilization of adivasis. The Ministry had to clarify that the aforementioned 1990 orders that dealt with regularization of rights of Scheduled Tribes were still valid. However, rather than resisting eviction the agenda of the mobilization turned to asserting rights of forest dwellers to the forest. The Ministry in July 2004 conceded to the Supreme Court ‘the historical injustice done to the tribal forest dwellers through non-recognition of their traditional rights must be finally rectified’.48 In December of the same year, the Ministry issued yet another order to stop all evictions. The protests to recognize rights to the forest spread and intensified with tens of thousands being jailed across the country. A draft Bill to recognize rights to the forests through a democratic community centric process of determination of rights, both individual and community, for all traditional and customary usages of forests, was drafted and introduced in the Parliament in 2005. The conservation aristocracy and the forest bureaucracy unleashed a malicious campaign that this Bill would sound the death knell of the forest as it is to be distributed to the tribals. The campaign, in an attempt to garner the support of the elite urban section, focussed on a ‘tiger versus tribal’ debate, trying to provoke emotions around the extinction of the threatened tiger, the national animal of India. The initial wave of scaremongering ebbed as they were thin on facts and thick on falsehoods.49 A large section of environmentalists asserted that forest protection is fundamental to secure people’s livelihood and that these were strongly integrated into the proposed law. At the same time, stories of the vanishing tigers50 made media headlines leading to an amendment to the Wildlife (Protection) Act, 1972 introducing a This was out of a total of about 13.43 lakh hectares of encroachment of which 3,65,669.111 hectares were regularized until then as per the figures provided in the MoEFCC’s reply on 16 August 2004 to the Lok Sabha for Question No. 284 regarding ‘Regularisation of encroachments on forest land’. Also see the state-wise data as on 31 March 2004 in the table in Annexure III on ‘Encroachments Evicted from Forest Lands since May 2002 (in Hectares)’ (16 August 2004), accessed at http://164.100.47.194/Loksabha/Questions/QResult15.aspx?qref= 2276&lsno=14. 48 In Interlocutory Application No. 703 of 2000 In Writ Petition (Civil) No. 202 of 1995 (Godavarman case, n 44) dated 21 July 2004. 49 The most prominent of them being that forest lands would be distributed amongst the forest dwellers when the Bill only proposed recognition of existing rights to the extent that communities’ claims were approved and verified by higher level bodies. The law does not distribute forest land or offer new rights. 50 Significantly the report of the task force constituted by the Prime Minister of India, amongst other things, asserted that ‘the protection of the tiger is inseparable from the protection of the forests it roams in. But the protection of these forests is itself inseparable from the fortunes of people who, in India, inhabit forest areas’ and that coexistence should inform the 47

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Conservation and livelihoods: conflicts or convergence? 297 new section on Tiger Reserves in 2006 just before the Bill on forest rights got enacted in the Parliament in the same year.51 Elements of the Bill on forest rights naturally percolated into this amendment that outlined the process to be adopted for notification of Tiger Reserves as a statutory category, recognizing the primacy of community centred democratic decisions and consent for determining the area to be demarcated for tigers as well as livelihood-based relocation. However, in complete disregard to this law,52 the Ministry of Environment and Forests got 31 Tiger Reserves notified securing 2,925,202 km2 with breakneck speed to beat or confound the operationalization of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (Forest Rights Act) when Rules to the Act would be notified on 1 January 2008. The Act acknowledges that the ‘forest rights on ancestral lands and their habitat were not adequately recognised (…) resulting in historical injustice to the (…) forest dwellers who are integral to the very survival and sustainability of the forest ecosystem’; therefore it became ‘necessary to address the long standing insecurity of tenurial and access rights of (…) forest dwellers including those who were forced to relocate their dwelling due to State development interventions’. The Act recognizes and vests forest rights on forest land in forest dwelling Scheduled Tribes and other traditional forest dwellers,53 who ‘primarily reside in forests’ for generations and are ‘dependent on forest land or forests for bona fide livelihood needs’ and have occupied forest land before 13 December 2005 but whose rights could not be recorded.54 Fourteen sets of rights,55 including any rights not specified but excluding hunting,56 are recognized in the form of individual, community, territorial (including the habitat rights for Particularly Vulnerable Tribal Groups) and development rights.57 Other than the individual rights, all other rights are vested in the village assembly. Moreover, the individual rights are in the name of both spouses in case of married persons, and in the name of the single head if a single headed household. The individual rights are ‘heritable but not alienable or transferable’. In the absence of a direct heir, the heritable right passes on to the next-of-kin. Significantly, the Act confers the rights holders with ‘the responsibilities and authority for sustainable use, conservation of biodiversity and maintenance of ecological balance and thereby strengthening the conservation regime of the forests while tiger conservation strategy. See MoEF (Project Tiger), Joining the Dots: The Report of The Tiger Task Force (2005), accessed at https://projecttiger.nic.in/WriteReadData/PublicationFile/full_ report.pdf. 51 The Wildlife (Protection) Amendment Act, 2006. 52 For a detailed examination, see CR Bijoy, ‘The Great Indian Tiger Show’ (2011) 46(4) Economic and Political Weekly 36. 53 They must be resident in the area for three generations before 2005. Here a ‘generation’ is defined as 25 years. 54 The date when the Bill on Forest Rights was introduced in the Indian Parliament. 55 These are both access and use rights over forest land and its resources. See Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, Section 3(1) [hereafter Forest Rights Act]. 56 Includes trapping or extracting a part of the body of any species of wild animal. 57 Forest Rights Act (n 55) s 3(2).

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298 Research handbook on law, environment and the global South ensuring livelihood and food security of the (…) forest dwellers’. The village assembly is to protect wildlife, forest and biodiversity; the adjoining catchment area, water sources and other ecologically sensitive areas, and their habitat from any form of destructive practices affecting their cultural and natural heritage. They are to regulate access to community forest resources and stop any activity that adversely affects forest, wildlife and biodiversity.58 All such ‘villages’ shall have a ‘customary common forest land within the traditional or customary boundaries of the village, or seasonal use of landscape in the case of pastoral communities, including reserved forests, protected forests and Protected Areas such as Sanctuaries and National Parks to which the community had traditional access’. In the unlikely event of any such village not having such an area, the reasons are to be recorded. Acceptable evidence for recognizing rights includes public documents, government records and reports, physical attributes such as houses, huts and permanent improvements made to land, quasi-judicial and judicial records, research studies on customs and traditions, records from erstwhile princely States including maps and records of rights, traditional structures, genealogy tracing ancestry to individuals mentioned in earlier land records, statements of elders, community rights, traditional grazing grounds, areas for collection of forest produce including medicinal plants, fishing grounds, irrigation systems, sources of water for human or livestock use, sacred trees, groves and ponds or riverine areas, burial or cremation grounds, and earlier or current practice of traditional agriculture. The ‘village assembly’, the statutory authority to determine rights, is to function in an open transparent and democratic manner. The ‘village’, moreover, is defined as a habitation or group of habitations, within ‘forest’ or adjoining it, a small enough population that makes it manageable for the full participation of its inhabitants. All pertinent records and documents are to be provided.59 The Forest Rights Committee constituted by the village assembly makes inquiries on the claims and place their recommendations before the village assembly for approval. Higher level committees, consisting of officials and community representatives, examine, approve and issue titles for these rights. If there are ambiguities, the claims are reverted back to the village assembly for reconsideration. If the claims are modified or rejected, the reasons are to be communicated to the claimants and to the concerned village assembly. Any violation of the provisions in the law by any official is a punishable offence. There are provisions for redressal of grievances. The Ministry of Tribal Affairs is the nodal ministry and the Tribal Department of the State is the nodal agency for implementation in the State with a State Level Monitoring Committee overseeing the process. To declare an area as an inviolate area (Critical Wildlife Habitat), rights have to be first recognized and the village assembly has to certify the completion of the process. The government, in consultation with experts and inhabitants, is to establish through scientific and objective criteria that the presence of rights holders will adversely impact 58 ibid s 5 confers the power to the village to govern the forests; the village assembly is to constitute a committee to execute its decisions. 59 This is the duty of the sub-divisional committee consisting of representatives from the revenue, tribal and forest departments and community representatives nominated by the local government as prescribed in the Rules of the Forest Rights Act 2006.

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Conservation and livelihoods: conflicts or convergence? 299 wild animals and their habitat and also conclude that other options, such as coexistence, are not available. It is then to prepare and communicate a resettlement package ensuring ‘secure livelihood’ in consultation with and free informed consent of the village assemblies. Resettlement is to take place after facilities and land allocations at the resettlement location are complete as per the promised package. These inviolate areas are not to be subsequently diverted by the government or any other entity for other uses. Diversion of forest for non-forestry purposes is permissible only after completion of forest rights recognition in that area and certified thus by the government and the village assemblies; and the informed consent of the village assemblies as to the purpose and area proposed to be diverted. As on March 2019,60 1,964.048 titles have been issued for 52,361.31 km2, 13.09 per cent of the 400,000 km2 in almost a decade since the Forest Rights Act became operational, that, at the least, should have been recognized.61 Still, this seems to be the largest such recognition of tenurial rights anywhere in the world. Official reports points to weak implementation and resistance by the officialdom while the legal battle challenging the Forest Rights Act by the association of retired forest officers and the conservation aristocracy is being fought out in the Supreme Court.62 The petitioners argue that rights of forest dwellers have been recognized under existing forest laws; only ‘encroachers’ remain who need to be evicted, that the village assemblies are incompetent to decide on key matters, while officials are the competent authority to address issues, if any, and that the Forest Rights Act not only violates existing forest laws but also the constitutional frame of law making. State governments and the Ministry of Environment, Forest and Climate Change continue to violate the law with impunity even as it attempts to dilute the law through subterfuges in order to enable the forest bureaucracy to take back control where communities have succeeded in getting their rights recognized, and bypass the requirement of recognition of rights and village consent for diversion of forest to the corporate sector.63 However, the pervasive evictions, whether induced to exit or physically removed, from the forest, that were systemic to the colonial governance regime have since abated after the enactment and operationalization of the Forest Rights Act. Evictions of forest dwellers from their Ministry of Tribal Affairs, Government of India (MoTA), ‘Status Report on FRA Implementation’ (March 2019), accessed at https://tribal.nic.in/FRA/data/MPRMar2019.pdf. 61 Ministry of Environment, Forests and Climate Change. Government of India (2009), ‘Asia-Pacific Forestry Sector Outlook Study II, India Forestry Outlook Study’, FAO, Bangkok, 75-6, accessed at http://www.fao.org/docrep/014/am251e/am251e00.pdf. 62 Joint Committee of MoEF and MoTA, ‘Manthan: Report, National Committee on Forest Rights Act’ (December 2010), accessed at http://www.indiaenvironmentportal.org.in/files/file/ Final%20Report_MoEF_FRA%20Committee%20report_Dec%202010.pdf . For a brief overview on the court cases, see Campaign for Survival and Dignity, Court Cases (n.d.), accessed at https://forestrightsact.com/court-cases/. 63 Bijoy (n 46) 86–92; Forest Campaign, ‘CPM MP Reveals New Proof of NDA Govt’s Attack on Forest Rights at National Convention against Illegal Takeover of Forest Land’ (4 May 2016), accessed at https://forestrightsact.com/2016/05/04/cpm-mp-reveals-new-proof-of-ndagovts-attack-on-forest-rights-at-national-convention-against-illegal-takeover-of-forest-land; Forest Campaign, National Convention against Illegal Grabbing of Forests and Forest Lands (4 May 2016), accessed at https://forestrightsact.com/2016/04/27/national-convention-against-illegalgrabbing-of-forests-and-forest-lands/. 60

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300 Research handbook on law, environment and the global South forests have become a criminal offence; recognition of rights and consent of the communities are made the prerequisites for diversion of forests and relocation for the creation of inviolate areas where coexistence with wildlife is no longer possible. Yet such evictions continue, largely confined to forest lands that are diverted for nonforestry purposes and from Protected Areas, especially Tiger Reserves, in gross violation of the laws.64 The Ministry of Environment, Forest and Climate Change issued a circular on 5 February 2013 exempting linear projects such as construction of roads, canals, laying of pipelines/optical fibres and transmission lines, and the like from obtaining consent of village assemblies for forest diversion when the Forest Rights Act does not provide for any exemptions and despite the Ministry of Tribal Affairs repeatedly pointing out the illegality. The Forest Conservation Rules were amended in 2014 and 2017 entrusting the District Collectors to ‘get the consent’ of village assemblies instead of village assemblies deciding on the proposal for diversion. In February 2019, the Ministry further declared that these requirements be carried out only when the final approval is to be granted instead of the initial stage approval. The Ministry also issued a guideline on 11 August 2015 to lease out 40 per cent of degraded forests limiting access for non-timber forest produce to tribal communities to only 10–15 per cent of the leased-out area effectively annulling the Forest Rights Act where implemented. The Indian Forests (Maharashtra) (Regulation of Assignment, Management and Cancellation of Village Forests) Rules, 2014 and the Madhya Pradesh Village Forest Rules, 2015 have given significant powers to the state forest authorities to manage forests and control forest produce, thereby taking back control over the forests from the village assemblies infringing the statutory rights and authority of village assemblies. In the state of Andhra Pradesh, titles for Community Forest Resource rights under the Forest Rights Act were issued illegally to the Vana Samrakshana Samithis, the forest protection committees constituted by the Forest Department, instead of the village assemblies, despite objection by the Ministry of Tribal Affairs. The Jharkhand state government ordered its Deputy Commissioners in July 2015 to settle all the ‘eligible’ claims under the Forest Rights Act within a month and obtain implementation certificates from village assemblies by 2 October of the same year. The Chhattisgarh state government asked the village assemblies in August 2015 to certify that the Forest Rights Act was implemented in full despite large-scale gaps so that these can be used for diversion of forestland for industrial purpose. The Odisha state government launched the Ama Jungle Yojana, the Community Forest Protection and Management Programme to promote and strengthen Joint Forest Management in 7,000 villages directly impinging on the statutory powers of the village assembly in community forest resource management. The Ministry of Environment, Forest and Climate Change continued its assault against the paradigm shift of conservation with forest dwellers when, in March 2017, the National Tiger Conservation Authority, a wing of MoEFCC, barred the recognition of rights under the Forest Rights Act in the Critical Tiger Habitats of Tiger Reserves, in violation of the Wild Life Protection Act 1972 as amended in 2006 under which the Tiger Reserves were notified, and the Forest Rights Act as well. The Critical Tiger 64

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For a discussion on this, see Bijoy (n 46) 87–8.

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Conservation and livelihoods: conflicts or convergence? 301 Habitats now cover an area of 40,145.3 km2. The draft ‘National Forest Policy’,65 announced by the Ministry in March 2018, disregards the Forest Rights Act while promoting a commercial plantation-centric forest management. This was opposed by the Ministry of Tribal Affairs in June 2018.66 In March 2019 the Ministry proposed amending the colonial Indian Forest Act 1927 empowering forest officials to nullify recognized forest rights, legalize commercial plantations and empower forest officers to use firearms with impunity. The Supreme Court, hearing a spate of petitions by conservation groups and retired forest bureaucrats challenging the constitutional validity of the Forest Rights Act, instead ordered on February 2019, which has been kept on hold till July 2019, the eviction of over a million forest rights claimants whose claims under the Forest Rights Act stood rejected.67 These have triggered waves of protests in the forests to protect the hard-won battle to decolonize and democratize forest governance. Rapid economic growth meant increased diversion of forests under the Forest (Conservation) Act, 1980 for non-forestry purposes such as mining and infrastructure projects. With the Supreme Court making the extraction of a mandatory amount called the Net Present Value68 from the user agency, including for compensatory afforestation, catchment area treatment plan and wildlife management to mitigate the impact of diversion of forest land, over Rs 5,200 million have been accumulated. The Compensatory Afforestation Fund Act, 2016 (CAFA) was enacted to provide for the establishment of a permanent institutional framework to ensure utilization of these funds in an expeditious and transparent manner. Afforestation by forest bureaucracy from the money collected by destroying natural ecosystems is to be carried out in double the area diverted for projects if degraded forests, or equivalent area if revenue land. With no reference to the Forest Rights Act or acknowledgement that substantial forest land would now fall within the jurisdiction of village assemblies, CAFA invites conflicts with the village assemblies. The destruction of forests along with violation of forest rights when forests are diverted is now compounded with further violation of rights and possible loss of valuable biodiversity when the land use changes with afforestation.69

65 Ministry of Environment, Forest and Climate Change (2018), accessed at http://www. indiaenvironmentportal.org.in/files/file/Draft%20National%20Forest%20Policy,%202018.pdf. 66 Kumar Sambhav Shrivastava, ‘Tribal Affairs Ministry Opposes Centre’s Draft National Forest Policy for Its “Privatisation Thrust”’ (17 July 2018) Scroll.in, accessed at https://scroll.in/ article/886708/thrust-on-privatisation-tribal-affairs-ministry-opposes-centres-draft-national-forestpolicy. 67 Office of the High Commissioner, Human Rights, United Nations, ‘India Must Prevent the Eviction of Millions of Forest Dwellers, say UN Experts’ (4 July 2019), accessed at https:// www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=24786&LangID=E. 68 Ranging from Rs 4.38 lakh to 10.43 lakh per hectare (2008). 69 David M Richardson, ‘Forestry Trees as Invasive Aliens’ (1998) 12(1) Conservation Biology 18; Jean-Michel Carnus and others, ‘Planted Forests and Biodiversity’ (2006) 104(2) Journal of Forestry 65; Ásrún Elmarsdóttir and others, Effects of Afforestation on Biodiversity in Afforestation in the Nordic Countries (The Nordic Council of Ministers 2008) 38, accessed at http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.524.9507&rep=rep1&type=pdf.

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302 Research handbook on law, environment and the global South With India showcasing the Green India Mission,70 tree plantation is expected to attract investment under climate change mitigation for establishing carbon sinks for carbon credits. Afforestation under CAFA amongst other afforestation programmes is expected to take over forest lands, common lands and private lands outside the forests. Recently the Ministry also issued guidelines for creating land banks for compensatory afforestation plantations in revenue and degraded forests.71 As one study on forest and common lands in India concludes: [b]ut as long as that state machinery retains its original imperatives and basic institutional structures, these laws are condemned to organisational marginalisation, as the interests they represent conflict with what the state views as its own interest.72

The resistance to democratization of forests, by assuming absolute control over their management and conservation by the State stems from the economic interests of the State, which seeks to take absolute control over forests in the name of development as well as conservation. The struggle against this has been waged by forest dependent communities seeking to tilt the balance of power in their favour. These struggles clearly negate the notion of the state being the trustee of natural resources, as it stands discredited by what has unfolded across nations and is hence no longer capable of being the trustee on behalf of communities. Instead, the struggles seek to take collective control over the protection, use and management of the natural resources subordinating the state to the collective will of local communities. This manifests as community self-governance which is increasingly finding its way into the legal realm as India’s Forest Rights Act exemplifies.

CONSERVATION: THE WAY FORWARD What goes in the name of conservation is actually re-regulation of nature using the state, through various forms of commodification that transform previously untradeable things into tradeable commodities through new forms of territorialization that partitions natural resources and landscapes and take control over them excluding local people. Conservation then, through conservation-based enterprises, fuels the processes of capital accumulation creating another material space for global capital expansion. These exclusionary islands of conservation with rigorously formulated technocratic solutions running parallel with economic development outside are then marketed as 70 This is one of the eight Missions outlined under the National Action Plan on Climate Change by the Government of India, accessed at http://moef.gov.in/wp-content/uploads/2018/04/ Pg0152.pdf. 71 Letter issued by MoEFCC to all Principle Secretaries (Forest) in all States providing a clarification to the 2003 Forest Conservation Rules (8 November 2017), accessed at http://forests clearance.nic.in/writereaddata/public_display/schemes/553905943$11%20423%202011.pdf. 72 Shankar Gopalakrishnan, ‘Undemocratic and Arbitrary: Control, Regulation and Expropriation of India’s Forest and Common Lands’ (Society for Promotion of Wastelands Development and Rights & Resources Initiative 2012), accessed at www.rightsandresources.org/wp-content/ uploads/2014/01/doc_5642.pdf.

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Conservation and livelihoods: conflicts or convergence? 303 ‘sustainable development’ that can easily overcome the ecological crisis while fulfilling the unfettered economic aspirations of the ‘people’, a euphemism for the affluent. It does none of these in the long term. While conservation poses a critical challenge to humanity, the centrality of the conflict arises from resource grab by the elite for profit and resistance by communities asserting their rights to livelihood. This is evident from the narrative of the struggles that gets reflected through conflicting formulation of policies and laws. Conservation is not just about preserving a few bio-rich zones, but of ensuring that conservation ethics inform all decision-making related to land (and ocean) and its resource use while sustaining livelihoods of many. This can be ensured only by democratizing natural resource governance where more and more resources are progressively brought under the collective control of communities as commons. Policies and laws that favour this can at best aid and legitimize the political struggle to resolve the conflict for converging conservation and livelihoods.

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16. International energy policy for development: human rights and sustainable development law imperatives Thoko Kaime

INTRODUCTION The facts about energy access make for very distressing reading. A significant proportion of the global population lacks access to suitable energy sources. According to the International Energy Agency, 1.4 billion people in the poorest regions of the world have no access to electricity.1 According to some estimates, the poorest three-quarters of the global population use only ten per cent of global energy.2 The majority of forecasting scenarios indicate that 1.2 billion people – mostly in rural areas – will still lack access to electricity in 2030 if the current patterns of investment are maintained.3 Worldwide, 2.7 billion people – that is, roughly a third of the global population – rely on biomass-sourced fires for cooking and heating.4 These fires are made by burning animal dung, waste, crop residue, rotted wood, and other forms of biomass.5 Although between 1970 and 1990, rural electrification programmes in developing countries connected nearly 800 million people to the electricity grid and provided another half billion with improved cooking facilities, the number of people without access to modern energy services has remained unchanged because of

1 International Energy Agency and others, Energy Poverty: How to Make Modern Energy Access Universal? (International Energy Agency 2010) 7. 2 Mark Williams and Sharmila Murthy, ‘Reconciling the Carbon Market and the Human Right to Water: The Role of Suppressed Demand under Clean Development Mechanism and the Gold Standard’ (2013) 43 Environmental Law 517, 541. 3 International Energy Agency and others (n 1) 7. 4 ibid 7; see also Nina Robertson and others, ‘As the World Burns: A Critique of the World Bank Group’s Energy Strategy’ (2013) 43 Environmental Law Reporter News & Analysis 10760, 10762; Arno Behrens and others, ‘Escaping the Vicious Cycle of Poverty: Towards Universal Access to Energy in Developing Countries’ (CEPS, Working Document No. 363, 2012) 3. 5 See Nigel Bruce and others, ‘Indoor Air Pollution in Developing Countries: A Major Environmental and Public Health Challenge’ (2000) 78(9) Bulletin of the World Health Organization 1078; Makoto Kanagawa and Toshihiko Nakata, ‘Assessment of Access to Electricity and the Socio-Economic Impacts in Rural Areas of Developing Countries’ (2008) 36 Energy Policy 2016, 2017; Paul Wilkinson and others, ‘A Global Perspective on Energy: Health Effects and Injustice’ (2007) 370 The Lancet 965, 966; Kamil Kaygusuz, ‘Energy Services and Energy Poverty for Sustainable Rural Development’ (2011) 15(2) Renewable & Sustainable Energy Reviews 936, 937.

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306 Research handbook on law, environment and the global South population growth.6 There is yet no commonly accepted and internationally adopted definition of modern energy access. However, a census of definitions generally highlights a number of common themes including the requirement that households must have: (a) access to a minimum level of electricity; (b) access to safer and more sustainable cooking and heating fuels; (c) access to energy services that enable value-added economic activity such as mechanical power for agriculture; and (d) modern energy for public services such as electricity for schools and hospitals. The great proportion of these people have no access to electricity or the benefits that it brings, such as lighting, space heating, cooking, or mechanical power. While biomass is good for making fires, it does not have the exogenous qualities needed to allow people to escape the social exclusions that are often associated with poverty. Fires from biomass cannot power hospitals, operate water pumps, enable agricultural equipment, or provide modern and reliable transportation systems. In order to achieve the Sustainable Development Goals (SDGs), and specifically the goal to end poverty in all its manifestations by 2030,7 new policies specifically designed to address energy poverty must be put in place so that many more enjoy the benefits of safe, reliable, and secure energy sources. In contrast, the challenge is different in communities in which modern energy services are adequate or plentiful. Emissions of greenhouse gases, principally from the combustion of fossil fuels, are changing the Earth’s climate to the detriment of those who depend on our planet’s natural systems for survival.8 Climate change poses threats to ecosystems, weakening food security and restricting access to water for hundreds of millions of people around the world.9 Extreme weather events, a side effect of our warming planet, are getting more frequent and severe, in rich and poor countries alike, decimating lives and livelihoods, infrastructure, and budgets.10 With this background, United Nations Development Programme and others, World Energy Assessment: Energy and the Challenges of Sustainability (United Nations Development Programme 2000) 21. 7 The first Sustainable Development Goal is to end poverty in all its manifestations by 2030. 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). 8 Christopher B Field and others, ‘Climate Change 2014: Impacts, Adaptation, and Vulnerability: Summary for Policymakers’ (Intergovernmental Panel on Climate Change 2014) 3, accessed at www.ipcc.ch/site/assets/uploads/2018/02/ar5_wgII_spm_en.pdf; Victor B Flatt, ‘Adapting Energy and Environmental Policy for Climate Change’ (2010) 11 Vermont Journal of Environmental Law 655; Uma Outka, ‘Environmental Law and Fossil Fuels: Barriers to Renewable Energy’ (2012) 65 Vanderbilt Law Review 1679. 9 Hugh Turral and others, Climate Change, Water and Food Security (Water Report 36, FAO 2011); Alejandro E Camacho, ‘Adapting Governance to Climate Change: Managing Uncertainty through a Learning Infrastructure’ (2009) 59 Emory Law Journal 1. 10 See Sofya Matteotti and Olga Nartova, ‘Climate Change: Implications for the (Re)Insurance Industry’ (2012) 10 New Zealand Journal of Public and International Law 107, 107–22; Michael K Lee, ‘The Day after Tomorrow Scenario: What if Global Warming Causes Rapid Climate Change’ (2007) 7(2) Sustainable Development Law & Policy 39, 39–40; Cynthia Rosenzweig and others, ‘Climate Change and Extreme Weather Events: Implications for Food Production, Plant Diseases, and Pests’ (2001) 2(2) Global Change & Human Health 90, 90–102; Alan Ramo and Deborah Behles, ‘Transitioning a Community away from Fossil-Fuel Generation 6

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International energy policy for development 307 the challenge of bringing energy to those without is compounded by the need to reduce the world’s carbon footprint and mitigate climate change.11 While bringing energy to those that lack access is imperative, it is critical that this does not result in the worsening of the global carbon footprint. To address these twin challenges, it is critical that international energy policy addresses the glaring gap in access without exacerbating the problems wrought by energy demand for development while at the same time reigning back the impacts of energy in more developed economies. In other words, international energy policy must by design deliver sustainable energy interventions. This requirement entails that all initiatives aimed at addressing the challenges outlined above must address the three dimensions of sustainable development: namely environmental, economic, and social factors. Effective international energy policy must ultimately seek to balance these elements of development in energy investments. This chapter presents a framework for achieving this balance by arguing that a set of rules drawn from international law should govern energy policy development. In order to establish the importance of energy in sustainable development and, more importantly, the need for a rules-based framework, the chapter begins by analysing the role that energy plays in sustainable development. It argues that there are three important ways in which energy is related to sustainable development: (a) energy as a necessity for meeting basic human needs; (b) energy as a source of environmental stress; and (c) energy as a key driver of macroeconomic growth. Building upon this conceptual framework, the chapter then discusses how international law could mediate the oft-times competing goals of this sustainable development tripod. It does this by unpacking rules drawn from international law which would enable the articulation of a sustainable international energy policy. An overarching theme that emerges from this analysis is that a robust framework on energy for development must have, at its centre, a human rights and sustainable development focus.

A. THE CONCEPTUAL NEXUS BETWEEN ENERGY AND SUSTAINABLE DEVELOPMENT 1. Energy and Basic Human Needs Access to modern energy services is strongly linked to poverty eradication.12 Human wellbeing, poverty eradication, social inclusion, and economic improvement are not achievable without access to reliable electricity, clean fuels, and the range of services

to a Green Economy: An Approach Using State Utility Commission Authority’ (2014) 15 Minnesota Journal of Law Science & Technology 505, 506. 11 See Kamil Kaygusuz, ‘Energy for Sustainable Development: A Case of Developing Countries’ (2012) 16 Renewable & Sustainable Energy Reviews 1116. 12 United Nations Development Programme and others (n 6) 6, 12, 33–44.

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308 Research handbook on law, environment and the global South that they provide.13 This connection is most apparent in Africa and South Asia, where the number of people who depend on biomass for cooking and heating and who lack access to electricity is the greatest.14 In particular, expanding access to end-use services based on modern energy sources emanates from the SDGs, and in particular Goal 7 which calls on states to take measures to ensure access to affordable, reliable, sustainable, and modern energy for all. SDG 7 is an overarching goal in that many of the other goals such as the call to end hunger, and for poverty eradication; the establishment of quality education and industry and infrastructure; as well as the call to establish gender equality also require access to sustainable energy in order to be realized. For example, affordable and reliable access to electricity contributes to the eradication of poverty and hunger due to increased productivity in agriculture. Electricity can be used for irrigation as well as to improve the manner in which farm produce is stored and transported to markets.15 Increased agricultural productivity also provides ecosystem benefits for cultivable land by allowing reduced planting so that ecosystems and biodiversity may recover and flourish.16 There is also a strong nexus between access to energy and the educational attainment of children.17 Although basic educational services and literacy can be achieved without access to modern energy sources, access to improved energy services can improve the availability and quality of educational services. Safe, accessible, and affordable energy services help increase children’s educational attainment by reducing dropout rates from school, as more child-friendly environments encourage school attendance.18 Children can spend more time on their studies as the amount of time they need to spend 13 Kaygusuz (n 5); Jenny Sin-hang Ngai, ‘Energy as a Human Right in Armed Conflict: A Question of Universal Need, Survival, and Human Dignity’ (2012) 37(2) Brooklyn Journal of International Law 579. 14 See World Health Organization, Global Health Risks: Mortality and Burden of Disease Attributable to Selected Major Risks (World Health Organization 2009) 23, accessed at www.who.int/healthinfo/global_burden_disease/global_health_risks/en/; Reza Kowsari and Hisham Zerriffi, ‘Three Dimensional Energy Profile: A Conceptual Framework for Assessing Household Energy Use’ (2011) 39 Energy Policy 7505, 7505–6; Raffaella Centurelli, ‘Energy Poverty: Can We Make Modern Energy Access Universal? Focus on Financing Appropriate Sustainable Energy Technologies’ (2011) 22 Colorado Journal of International Environmental Law & Policy 219, 238. 15 P Balachandra, ‘Universal and Sustainable Access to Modern Energy Services in Rural India: An Overview of Policy-Programmatic Interventions and Implications for Sustainable Development’ (2012) 92(1) Journal of the Indian Institute of Science 163, 165–7. 16 Marshall Wise and others, ‘Implications of Limiting CO2 Concentrations for Land Use and Energy’ (2009) 324 Science 1183, 1185; Virginia H Dale and Stephen Polasky, ‘Measures of the Effects of Agricultural Practices on Ecosystem Services’ (2007) 64 Ecological Economics 286, 286, 290, 294. 17 Kanagawa and Nakata (n 5); Shahidur R Khandker and others, ‘Welfare Impacts of Rural Electrification: A Case Study from Bangladesh’ (Policy Research Working Paper 4859, World Bank 2009) 2, 7–9, 29–31. 18 United Nations Department of Economic and Social Affairs (UNDESA), Electricity and Education: The Benefits, Barriers, and Recommendations for Achieving the Electrification of Primary and Secondary Schools (UNDESA 2014) 8.

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International energy policy for development 309 collecting fuel falls.19 Electricity also facilitates access to educational media and communications in both schools and homes. It allows children to study when it becomes dark outside and provides the opportunity to use sophisticated teaching equipment such as projectors, computers, and laboratory equipment. More importantly, modern energy services enable access to media and communications that expand the classroom beyond the village, truly connecting children to the outside world.20 Finally, there is growing evidence that specialized teachers in subjects such as mathematics and science are more likely to be retained in rural schools if the electricity grid is extended to rural schools. The improvements in quality of life that accompany electricity access encourage teachers to relocate to rural areas, thereby improving the quality of educational services available there. Gender equality and women’s empowerment can also be greatly improved through better-quality access to energy services. Because women and girls are traditionally responsible for food preparation, they are also often responsible for collection of firewood or other biomass for cooking.21 Consequently, modern energy services save women and girls their time due to avoided wood collection and reduced cooking time. Such time savings can be deployed to productive activities such as income generation or schooling. Eliminating dependency on fuel collection also reduces the risks of assaults and injury, especially where fuel has to be collected far from home. Professor Bradbrook quotes a study commissioned by the United Nations Development Fund for Women, which reported on how Sierra Leonean women spend days in the forest, breaking off firewood with their bare hands and carrying it on their backs.22 Some of those who failed to find firewood or did not bring back adequate amounts were beaten by their husbands.23 Access to modern energy services would reduce the need for this kind of work by women, and might reduce associated physical abuse as well. Access to electricity also benefits public health by providing modern health services that depend on access to modern energy services. For example, diagnostic clinical equipment, safe storage of medicines, and appropriate handling of laboratory specimens all require modern power sources. Local manufacture of medicines and associated delivery systems are only possible with the availability of reliable and safe energy sources. Additionally, health systems are more likely to retain staff, particularly in rural service centres, if they have access to modern energy sources and the services that such sources avail.24 Thus, countries that do not have access to safe and secure energy systems are unlikely to have health systems that are capable of effectively managing the disease burden or retaining quality individuals to service such health systems. International Energy Agency and others (n 1) 15. Balachandra (n 15) 166. 21 Adrian J Bradbrook and Judith Gail Gardam, ‘Placing the Access to Energy Services within a Human Rights Framework’ (2006) 28(2) Human Rights Quarterly 389, 394. 22 See Elisabeth Rehn and Ellen Johnson Sirleaf, Women, War and Peace: The Independent Experts’ Assessment on the Impact of Armed Conflict on Women and Women’s Role in Peace-Building (United Nations Development Fund for Women 2002) 129–30. 23 Bradbrook and Gardam (n 21) 395. 24 World Health Organization and World Bank, Access to Modern Energy Services for Health Facilities in Resource-Constrained Settings: A Review of Status, Significance, Challenges and Measurement (World Health Organization 2014) 16, 18–19. 19 20

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310 Research handbook on law, environment and the global South The nature of the energy source also bears on progress towards achieving the SDGs. Conventional biomass-based fuels, for example, produce smoke and indoor air pollution, which adversely affects people’s health, especially women and children.25 Reliance on biomass often results in regular exposure to harmful emissions of carbon monoxide, hydrocarbons, and other particulates, particularly among women and children most frequently engaged in biomass-based cooking.26 Exposure to these emissions is a key cause of disease and mortality in developing countries. According to the World Health Organization, nearly two million people a year die prematurely from illness attributable to indoor air pollution due to solid fuel use.27 Among these deaths, 21 per cent are due to lower respiratory infection, 35 per cent to chronic obstructive pulmonary disease, and 3 per cent to lung cancer.28 Fifteen per cent of all deaths among children under five years old can be attributed to particulate matter inhaled from indoor air pollution from household solid fuels.29 Women exposed to heavy indoor smoke are three times as likely to suffer from chronic obstructive pulmonary disease (e.g., chronic bronchitis) than women who use cleaner fuels.30 Among men (who already have a heightened risk of chronic respiratory disease due to their higher rates of smoking), exposure to indoor smoke nearly doubles that risk. Approximately 1.5 per cent of annual lung cancer deaths are attributable to exposure to carcinogens from indoor air pollution.31 As with bronchitis, the risk for women is higher due to their role in food preparation as well as their comparatively lower rates of smoking. Women exposed to indoor smoke thus have a higher risk of lung cancer in comparison with those not exposed.32 Thus, access to clean fuels has a clear impact on the health of women and children. More generally, fossil fuel-based energy systems emit substantial quantities of pollutants that contaminate the air, sea, and land, resulting in serious adverse health impacts. The residential energy sector is responsible for substantial quantities of air pollution. In 2008, electricity generation for the residential sector accounted for nearly one-fifth of global CO2 emissions.33 The net contribution to climate change is 25 eg Lakshman Guruswamy, ‘Drafting Model Laws on Indoor Pollution for Developing and Developed Nations Workshop, July 12–13, 2012, Boulder, Colorado: Introduction’ (2013) 24 Colorado Natural Resources, Energy & Environmental Law Review 319, 324–5; Amelia Reiver Schlusser, ‘Seeing the Forest for the Trees: Regulating Carbon Dioxide Emissions from Bioenergy Production under the Clean Air Act’ (2013) 43(4) Environmental Law Review 989, 991. 26 ibid 325. 27 World Health Organization, Health in a Green Economy (World Health Organization 2011) 1, accessed at www.who.int/hia/hgebrief_henergy.pdf?ua=1; see also Andy Haines and Carlos Dora, ‘How the Low Carbon Economy Can Improve Health’ (2012) 344 British Medical Journal 1018. 28 World Health Organization (n 14) 23. 29 ibid 28. 30 ibid 50. 31 ibid 46. 32 ibid 46, 50. 33 See, eg, International Energy Agency, CO2 Emissions from Fuel Combustion: Highlights (International Energy Agency 2010) 65; cf John C Dernbach, ‘Harnessing Individual Behavior to Address Climate Change: Options for Congress’ (2008) 26 Virginia Environmental Law Journal

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International energy policy for development 311 considerably greater when other greenhouse gases, such as methane and black carbon, are included. These impacts are problematic, as developing nations will bear a disproportionate burden from adverse climate change impacts.34 The non-CO2 pollutants from the incomplete combustion of household fuels have the most immediate effects on climate and damaging effects on health. It has been estimated that the global warming effect of black carbon is equal to 20 to 50 per cent of the effect of CO2.35 2. Energy and Environmental Resource Use The establishment of any energy system will have a significant geological footprint that is hard to reverse with attendant impacts on the adjoining ecosystems. For example, the establishment of a coal-based power system will require a significant period before land degraded by coal mining can be reclaimed.36 In the case of nuclear energy systems, the toxic effects of any accident will likely last hundreds of years before land can be used.37 But even so-called clean energy systems are not costless. Renewable energy systems may even leave a larger immediate footprint on landscapes and ecosystems than traditional energy generating facilities.38 It is therefore critical that energy policies and investments are subjected to and pass the full range of human rights and sustainable development imperatives. Water systems do not escape the impact of energy production. The production of feedstock for bioenergy, the abstraction of water for thermal power cooling systems, and the diversion and harnessing of water for hydroelectric systems all have impacts on water usage, as well as the supporting geological and geographical structures.39 Production of biomass for energy locks up water resources into the feedstock and may 107, 129; John R Nolon, ‘The Land Use Stabilization Wedge Strategy: Shifting Ground to Mitigate Climate Change’ (2009) 34 William & Mary Environmental Law & Policy Review 1, 7–8. 34 See Marissa S Knodel, ‘Wet Feet Marching: Climate Justice and Sustainable Development for Climate Displaced Nations in the South Pacific’ (2012) 14 Vermont Journal of Environmental Law 127, 143; Mary Jane Angelo and Joanna Reilly-Brown, ‘Whole-System Agricultural Certification: Using Lessons Learned from LEED to Build a Resilient Agricultural System to Adapt to Climate Change’ (2014) 85 University of Colorado Law Review 689, 705; Teresa Thorp, ‘In Search of Coherency in Negotiating Post-2015 International Climate, Development, and Disaster Risk Reduction Agreements’ (2014) 25 Fordham Environmental Law Review 706, 715. 35 eg Jessica Seddon Wallack and Veerabhadran Ramanathan, ‘The Other Climate Changers: Why Black Carbon and Ozone Also Matter’ (2009) 88 Foreign Affairs 105, 105. 36 eg Vasilis Fthenakis and Hyung Chul Kim, ‘Land Use and Electricity Generation: A Life-Cycle Analysis’ (2009) 13 Renewable & Sustainable Energy Review 1465; Carl E Zipper and others, ‘Restoring Forests and Associated Ecosystem Services on Appalachian Coal Surface Mines’ (2011) 47(5) Environmental Management 751. 37 cf National Cancer Institute, Accidents at Nuclear Power Plants and Cancer Risk (2011), accessed at www.cancer.gov/cancertopics/factsheet/Risk/nuclear-power-accidents. 38 eg Robert L Glicksman, ‘Solar Energy Development on the Federal Public Lands: Environmental Trade-Offs on the Road to a Lower Carbon Future’ (2011–12) 3 San Diego Journal of Energy & Climate Law 107, 114–17. 39 Ibrahim Dincer, ‘Environmental Impacts of Energy’ (1999) 27(14) Energy Policy 845.

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312 Research handbook on law, environment and the global South lead to the degradation of water resources in the areas that the crops are grown either through overuse or discharge of fertilizers into the ecosystem. The use of water for cooling systems for nuclear or fossil fuel fired power stations may also have impacts on aquatic ecosystems. While in these cases, the use of water may not deplete the resource and the used water may be made available for other uses downstream, the returned water is often at a higher temperature than the natural temperature ranges. This aspect may sometimes alter the character of ecosystems and the life forms that it supports.40 Dam construction alters the character of river basins, affecting downstream habitats and species as well as irreversibly altering the lifestyles and opportunities of downstream communities. A study commissioned by the World Commission on Dams in 2000 estimated that 40 to 80 million people were directly affected by dam construction and the associated displacements around the world.41 However, further analysis of systemic impacts showed that the number of people impacted downstream due to dam construction and river basin alteration were in the magnitude of 500 million.42 Access to modern energy is a critical prerequisite to improved living conditions in the developing world. However, enhanced energy comes at a cost. This Part articulates quite clearly the adverse health and environmental effects linked to all forms of energy development. Consequently, addressing these effects in an adequate manner will require more than just a shift away from traditional energy sources that generate greenhouse gases that contribute to climate change or hazardous pollutants such as nuclear waste or particulate matter. In addition to addressing these challenges head on, it is critical that energy systems address the issues of sustainability, equity, conservation, and human rights in a comprehensive and consistent manner. 3. Energy and Economic Growth Energy plays a critical role in the economic aspects of sustainable development as a key driver of macroeconomic growth. At its most basic, economic growth is a physical process whereby energy is used to transform materials into useful goods and services. At an aggregate level, therefore, it is not surprising that there is a strong relationship between the quantity of energy a nation uses and the size of its economy and the wealth it produces. Consequently, it follows that larger economies will use considerably more energy than smaller economies. This being the case, the rise in material living standards in developing countries – a central goal of sustainable development – is likely to be accompanied by a substantial increase in their aggregate energy use. This development path is evident in the dynamics of global energy use and economic growth. Both Gross World Product (GWP) and global energy use (E) increased steadily from the end of the second oil price shocks of 1981–82 through 2000. Although the 40 eg EH Poornima and others, ‘Impact of Thermal Discharge from a Tropical Coastal Power Plant on Phytoplankton’ (2005) 30 Journal of Thermal Biology 307, 307–8; Yi-Li Chuang and others, ‘Effects of a Thermal Discharge from a Nuclear Power Plant on Phytoplankton and Periphyton in Subtropical Coastal Waters’ (2009) 261 Journal of Sea Research 197, 197. 41 See World Commission on Dams, Dams and Development: A New Framework for Decision-Making – the Report of the World Commission on Dams (Earthscan 2000). 42 ibid.

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International energy policy for development 313 general pattern is clear, energy use and GWP do not move in lockstep. Indeed, the E/GWP ratio declines by an average of 1 per cent per year over this period. Analysts attribute this improvement to the shift to higher quality fuels, improvements in fuel efficiency caused in part by higher energy prices, and structural changes in the global economy.43 Despite the decline in the E/GWP as well as national E/Gross Domestic Product (GDP) ratios, there is a significant body of econometric research that suggests energy usage and GDP are tightly linked. In particular, Granger causality running from energy use to GDP has been established for many industrial,44 emerging,45 and developing economies.46 This means that an increase in GDP, even in the context of sustainable development, is likely to require an increase in energy usage. However, the data also reveals some heartening news: it is possible to achieve sustainable development, while making savings in energy use. Investments in efficiency are therefore a necessary part of the sustainable use of energy in driving development. The point to be made here is that, even if energy had no environmental impacts whatsoever, it would be a key issue for sustainable development policy on economic grounds alone. The fact that energy is, in fact, both a key motor of economic growth and a key source of environmental stress only makes the issue more confounding for sustainable development policy; the goal of such policy now becomes to optimize the economic virtues of increased energy use with its potential for environmental damage. The question for policymakers is how? The following Part demonstrates how international law provides a coherent framework for resolving this conundrum.

B. INTERNATIONAL ENERGY POLICY FOR SUSTAINABLE DEVELOPMENT: THE ROLE OF INTERNATIONAL LAW It is clear from the foregoing analysis that although energy systems play a critical role in human development, they inevitably will have serious impacts on global sustainability and human wellbeing in both the short and long terms. On the one hand, usage of unimproved energy sources such as biomass will continue to impose a not insignificant disease burden on many around the world, especially in poor, undeveloped communities. On the other hand, increased energy production and access will likely take a major toll on the environment, imposing significant costs on ecosystems and communities. In this regard, energy efficiency is a crucial path forward because efficiency reduces the footprint of energy systems, no matter which energy path is chosen. RK Kaufmann, ‘A Biophysical Analysis of the Energy/Real GDP Ratio: Implications for Substitution and Technical Change’ (1992) 6(1) Ecological Economics 35; CJ Cleveland and others, ‘Energy and the U.S. Economy: A Biophysical Perspective’ (1984) 255 Science 890. 44 David I Stern, ‘A Multivariate Cointegration Analysis of the Role of Energy in the US Macroeconomy’ (2000) 22(2) Energy Economics 267. 45 George Hondroyiannis and others, ‘Energy Consumption and Economic Growth: Assessing the Evidence from Greece’ (2002) 24(4) Energy Economics 319. 46 Obas John Ebohon, ‘Energy, Economic Growth and Causality in Developing Countries: A Case Study of Tanzania and Nigeria’ (1996) 24(5) Energy Policy 447. 43

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314 Research handbook on law, environment and the global South International energy policy must therefore endeavour to balance these potentially conflicting pressures by ensuring that increased access is matched by investments in renewable energy and efficiency. Although there is a plethora of international energy policies dealing with specific aspects of energy investments, there are two key overarching policy statements that may be considered as driving global energy development. These are the SDGs, which include universal energy access as a key goal; and the United Nations Secretary-General’s Sustainable Energy for All initiative (SE4All). SE4All aims to deliver sustainable energy for all by 2030 through three mutually reinforcing objectives. First, the initiative seeks to ensure universal access to modern energy services – access to electricity and to modern fuels and technologies for cooking, heating, and productive uses.47 Second, it targets a doubling of the rate of improvement in energy efficiency – increasing the current rate of improvement to 2.5 per cent per year, achieving a 40 per cent reduction by 2030 (measured in terms of global energy intensity).48 Third, it strives to double the share of renewable energy in the global energy mix – increasing the current renewable energy share of global energy consumption to 30 per cent.49 The objectives of SE4All have been reinforced by the inclusion of energy in the SDGs. SDG 7 requires that all states work towards ‘ensur[ing] access to affordable, reliable, sustainable and modern energy for all. Taken together, these two documents state that international energy policy aims to ensure that the benefits of modern energy are available to all and that energy is provided as cleanly and efficiently as possible.’ This result is a matter of equity, first and foremost, but it is also an issue of urgent practical importance because it addresses two of the most pressing challenges of our time – reducing poverty and minimizing the risks of climate change. In fact, SDG 7 has been described as an enabler for all the other SDGs because the availability of energy assures the states’ ability to deliver these goals.50 While the system of commitments envisaged by SE4All and SDG 7 is deliberately voluntary to encourage stakeholder buy-in, the legal framework on which it is based and its ability to drive the societal changes needed to accomplish its goals are less clear. However, the lack of binding obligations risks turning international energy policy into mere ambition that will not deliver the substance of the policy’s plans and programmes. There is therefore a need to urgently articulate and clarify the applicable legal framework for international energy policy. In particular, the aim should be to harness the mechanisms that are already available in international law to foster international energy objectives and policy development. In the following sections, the chapter outlines the key justifications for the necessity of a clear legal framework in favour of a sustainable international energy policy. It first explains why international human The Secretary-General’s Advisory Group on Energy and Climate Change (AGECC), Energy for a Sustainable Future: Summary Report and Recommendations (United Nations 2010) 9. 48 ibid 9. 49 Secretary-General’s High-Level Group on Sustainable Energy for All, Sustainable Energy for All: A Framework for Action (2012) 9, accessed at www.seforall.org/sites/default/files/SE_ for_All_-_Framework_for_Action_FINAL.pdf. 50 See generally, Måns Nilsson and others, ‘Towards an Integrated Framework for SDGs: Ultimate and Enabling Goals for the Case of Energy’ 2013 5(10) Sustainability 4124. 47

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International energy policy for development 315 rights and sustainability frameworks hold the greatest promise for effective implementation of international energy policy; and then addresses how existing international law commitments in these two realms already provide a strong foundation for the imposition of binding state duties consistent with international energy policy goals. 1. The Need for an International Legal Framework to Promote International Energy Policy Goals Despite the obvious linkages between energy and poverty, there has been a dearth of legal responses to address the challenges posed by lack of access to modern sources of energy.51 Although well intentioned, international energy policy continues this trend by failing to articulate any legal basis for interventions in favour of promoting activities needed to achieve the initiative’s energy-related goals. It is important to articulate a well-developed legal regime that could support the recognition of enforceable state duties under international energy policy. In view of the social, economic, and environmental impacts created by access (or lack thereof) to different forms of energy, the regimes of international human rights law and international sustainable development law represent a logical source of legal duty and a powerful tool for realizing international energy policy ambitions. Compelling reasons support insistence on a clearly articulated legal framework for energy policy, and in particular for a framework derived from international human rights and international law on sustainable development.52 First, both these frameworks are capable of encouraging states to undertake focused efforts at implementing their international energy policy obligations as well as measuring the progress of such efforts. For example, an explicit link between international energy policy and a human rights framework enables the articulation of a series of binding obligations on states to undertake measures aimed at ensuring the realization of universal access to energy services, one of the international energy policy’s three fundamental precepts. The establishment of a norm of universal access would be a useful basis for bringing pressure to bear on states to fulfil their responsibilities to their citizens.53 At a minimum, such a norm would require states to demonstrate that they are undertaking the necessary steps to realize at least the essential elements of such a right.54 Similarly, an explicit incorporation into international energy policy standards by states of the rules of sustainable development law would lay the ground for matching the quest for an increase in the stock of renewable energy and increases in energy efficiency with states’ obligations within various environmental treaties.55 For example, 51 Adrian J Bradbrook and others, ‘A Human Dimension to the Energy Debate: Access to Modern Energy Services’ (2008) 26(4) Journal of Energy and Natural Resources Law 526, 528; Ngai (n 13) 605. 52 eg Philippe Sands, ‘International Law in the Field of Sustainable Development’ (1995) 65(1) British Yearbook of International Law 303. 53 Bradbrook and Gardam (n 21) 413. 54 Committee on Economic, Social and Cultural Rights, General Comment 3: The Nature of States Parties’ Obligations (Fifth session, 1990), UN Doc E/1991/23, Annex III (1991) para 10. 55 eg UN Framework Convention on Climate Change, New York, 9 May 1992, 1771 UNTS 107; Convention on Biological Diversity, Rio de Janeiro, 5 May 1992, 1760 UNTS 79.

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316 Research handbook on law, environment and the global South the development of dams for power production would have to pass strict environmental impact assessments to ensure that the impacts on ecosystems were minimized.56 Such an approach would alter the voluntary nature of policy commitments by creating enforceable state duties. Although a clear link between energy policy and a state’s obligations under human rights or sustainable development law does not impose new or additional obligations, such a link makes clear the immediate nature of the current international energy policy effort to satisfy important state duties already recognized under existing principles of international law. For example, the SE4All initiative’s obligation to put in place an accountability framework for implementation, including the ‘tracking of progress’ through a ‘transparent and accessible platform … for self-reporting’,57 fits well with state obligations on human rights reporting. Second, the articulation of a clear legal framework offers a strong platform for advocacy initiatives by non-governmental stakeholders aimed at ensuring state adherence to international energy policy commitments. The realization of international energy policy goals requires the active collaboration of all stakeholders, including citizens and non-governmental entities, within and across states. Such participation not only improves the quality of information available to states seeking to implement international energy policy programmes, but also enhances the legitimacy of resulting policy choices.58 The framing of international energy policy commitments as human rights obligations or sustainable development imperatives increases the likelihood of such participation by increasing citizen awareness of the duty of their governments to ensure at least minimal access to modern energy supplies, and heightens stakeholder opportunities to discover inadequacies in state responses and to use public disclosure to pressurize states to improve their track records. Third, an international legal framework such as the one outlined here would lead to better coordination between United Nations human rights institutions and the body’s specialized agencies that focus on the environment. Whereas such a scenario is vaguely envisaged in the Global Action Plan,59 the articulation of a right of access to energy, for example, would allow the various human rights bodies and environmental agencies to participate in the global tracking and reporting platform through the examination of commitment and progress reports submitted to the UN as part of those bodies’ own human rights mandate. This linkage would not only aid the work of the human rights bodies, but also enable states to build better-integrated plans for their energy policy actions, which link policy to human rights and environmental obligations. Finally, the legal framework availed by international human rights and sustainable development affords a certain structure to the discourse on international energy policy and the interventions that it stipulates. The wide-ranging interrelationships between international energy policy goals (universal access to energy, renewable energy, and 56 See Matthew McCartney, ‘Living with Dams: Managing the Environmental Impacts’ (2009) 11 Water Policy 121, 135–6. 57 The Secretary-General’s High-Level Group on Sustainable Energy for All, Sustainable Energy for All: A Global Action Agenda (United Nations 2012) 14 [hereafter Global Action Agenda]. 58 See Thoko Kaime, ‘Cultural Legitimacy and Regulatory Transitions for Climate Change: A Discursive Framework’ (2011) 3 Carbon & Climate Law Review 321, 322. 59 Global Action Agenda (n 57).

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International energy policy for development 317 energy efficiency) and the impacts of striving towards those goals on economics, human development, and the environment amplify the risk that these ‘issues are considered in a wide range of disparate bodies’ in which the quest for focused action is ultimately lost.60 In its 2002 report, the Water, Energy, Health, Agriculture and Biodiversity and Ecosystem Management Working Group (WEHAB) noted that ‘access to energy and modern energy services’ was a key issue to be addressed by the international community, but observed that ‘[c]urrently there is no international or intergovernmental process to host or facilitate dialogue on priority energy issues’.61 Although current policy initiatives have gone a long way to address this gap, the articulation of a legal framework for implementing the goals would move the discourse on international energy policy from one that addresses a random range of interventions into a focused debate on how best to deliver energy in a manner that not only pays heed to the sustainable development tripod but is measurable against established benchmarks available under human rights and sustainable development mechanisms. Application of an international legal framework to international energy policy therefore holds out the prospect of important practical benefits. In the following section, we outline the basic contours of this framework by highlighting existing international human rights and sustainable development norms and institutional processes that have general applicability to the SE4All effort. 2. International Human Rights Law and Sustainable Development Law in International Energy Policy The prospects for achieving international energy policy goals would be enhanced if an explicit link was made between state duties to pursue them to existing international human rights and sustainability legal frameworks. Fortunately, the goals for sustainable energy and the actions needed to achieve them fit comfortably within both those frameworks. The three elements of international energy policy – realizing universal access to modern energy services, increasing the stock of renewable energy capacity, and improving energy efficiency – are already implicit within existing state human rights and sustainable development obligations. In this section, we focus on several international legal instruments relating to human rights and sustainability that are relevant to energy provision and access and that support the recognition of enforceable state duties to promote international energy policy’s three principal objectives.62 Take, for example, the provisions of the Universal Declaration of Human Rights.63 Although initially intended as a non-binding aspirational statement on human rights, some contend that the instrument has now become binding customary law.64 Article 25 of the Bradbrook and Gardam (n 21) 414; WEHAB Working Group Report, A Framework for Action on Energy (UNESCO 2002) 15–16. 61 WEHAB (n 60) 16. 62 cf Ngai (n 13) 606 arguing that access to energy is an implied human right. 63 Universal Declaration of Human Rights, New York, 10 December 1948, UN Doc A/RES/217A [hereafter UDHR]. 64 See Jochen von Bernstorff, ‘The Changing Fortunes of the Universal Declaration of Human Rights: Genesis and Symbolic Dimensions of the Turn to Rights in International Law’ (2008) 19 European Journal of International Law 903; Katharine G Young, ‘Freedom, Want, and 60

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318 Research handbook on law, environment and the global South Declaration provides that ‘[e]veryone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services’.65 Although access to energy is not included on this list, its availability is an important attribute of ‘a standard of living adequate for health and well-being’, for reasons described in section B.1 above. Similarly, interventions in favour of renewable energy and energy efficiency have a considerable impact on raising living standards and the ability to protect human rights because such interventions not only increase access, but also mitigate the negative impacts of expanding energy systems.66 Similarly, an expansive reading of both the International Covenant on Civil and Political Rights67 and the International Covenant on Economic Social and Cultural Rights68 does provide the normative basis for sustainable energy as a basic plank of international energy policy. Between them, these instruments guarantee the rights to life, to an adequate standard of living, to the highest attainable standard of health, among others. Similarly, the Convention on the Elimination of All Forms of Discrimination against Women69 as well as the Convention on the Rights of the Child,70 guarantee many of the same rights, with the former going one step further and expressly recognizing at article 14 an individual entitlement to access to energy. Without access to modern energy services, it is nigh near impossible for states to effectively implement these rights. Consequently, it is possible to make the argument that achieving sustainable energy for all is part and parcel of states’ express obligations for a catalogue of human rights protections. Beyond human rights prescriptions, sustainable development law directly influences the manner in which international energy policy is implemented.71 The core principles of this branch of international law72 require that actions to implement international

Economic and Social Rights: Frame and Law’ (2009) 24 Maryland Journal of International Law 182; Catherine Jean Archibald, ‘What Kind of Life: Why the Canadian Charter’s Guarantee of Life and Security of the Person Should Include the Right to a Healthy Environment’ (2013) 22 Tulane Journal of International & Comparative Law 1, 28. 65 UDHR (n 63) art 25. 66 cf Ngai (n 13) 616. 67 International Covenant on Civil and Political Rights, New York, 16 December 1966, 999 UNTS 171. 68 International Covenant on Economic, Social and Cultural Rights, New York, 16 December 1966, 993 UNTS 3. 69 Convention on the Elimination of All Forms of Discrimination against Women, New York, 18 December 1979, 1249 UNTS 13. 70 Convention on the Rights of the Child, New York, 20 November 1989, 1577 UNTS 3. 71 eg Ngai (n 13) 616. 72 Although there has been much discourse regarding the uncertain nature of sustainable development as a legal principle, certain legal rules have emerged to describe what the principle requires in international law. Nico J Schrijver, The Evolution of Sustainable Development in International Law: Inception, Meaning and Status (Nijhoff 2008) ch IV; Virginie Barral, ‘Sustainable Development in International Law: Nature and Operation of an Evolutive Legal Norm’ (2012) 23 European Journal of International Law 377.

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International energy policy for development 319 energy policy be undertaken within strict environmental limits.73 Based on the seminal work of the United Nations Commission on Sustainable Development74 and the International Law Association Committee on the Legal Aspects of Sustainable Development,75 it is possible to distil six fundamental principles of international sustainable development law. The first principle is that although states have sovereignty over their natural resources, they must utilize such resources in a manner that does not cause undue damage to the environment.76 In relation to international energy policy, this principle requires, for example, that plans to achieve universal access must not cause undue environmental degradation. Second, states must adhere to the principle of equity and the eradication of poverty. This principle arguably requires states to ensure that energy policy initiatives focus on meeting the needs of the poor, as they have the greatest priority.77 Additionally, actions promoting the objectives of international energy policy must not deny the ability of future generations to benefit from critical environmental resources.78 Consequently, the path to achieving universal access must be carefully structured in such a way that it does not limit the options for future generations. There is therefore a duty to develop an appropriate mix of energy sources, including clean sources, and with efficient technologies. Third, states have a common responsibility to protect the environment at the national, regional, and global levels, although that responsibility is qualified by the need to take into account different circumstances, particularly in relation to each state’s historical contribution to the creation of a particular problem and its ability to prevent, reduce, and control the threat.79 As a result, developing states who have contributed little to climate change may be allowed to achieve universal access to energy goal through higher polluting energy sources than developed countries, which will have a more onerous task in meeting the initiative’s renewable energy and efficiency targets. However, recognition of this allowance must be balanced by the necessity for developing countries to choose clean energy now to avoid energy system lock-in and further harm to populations that are already poor, sick, and subject to much pollution. This calls for a careful balancing act in determining the energy mix for universal access. 73 See generally Roy Haines-Young and others, ‘Defining and Identifying Environmental Limits for Sustainable Development. A Scoping Study’ (Centre for Environmental Management 2006), accessed at www.nottingham.ac.uk/cem/pdf/NR0102_FTR_Final.pdf. 74 UN Commission on Sustainable Development, Report of the Expert Group Meeting on Identification of Principles of International Law for Sustainable Development (1995), accessed at www.un.org/documents/ecosoc/cn17/1996/background/ecn171996-bp3.htm. 75 International Law Association, Declaration of Principles of International Law Relating to Sustainable Development, New Delhi, 6 April 2002, UN Doc A/CONF.199/8. 76 Rio Declaration on Environment and Development, 14 June 1992, UN Doc A/CONF.151/ 26/Rev. 1 (Vol. I), Annex II (1992). 77 See Agenda 21 – Programme of Action for Sustainable Development, Report of the UN Conference on Environment and Development, Rio de Janeiro, 3–14 June 1992, UN Doc A/CONF.151/26 (Vol. I) para 3.8(o). 78 Rio Declaration (n 76) principle 3. 79 ibid principle 7.

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320 Research handbook on law, environment and the global South Fourth, international sustainable development law requires that states observe the precautionary principle. Where there is scientific uncertainty, the principle shifts the burden of proof to those proposing activities that might cause serious harm and favours prevention over remediation.80 The precautionary principle requires that implementing activities undergo robust risk assessment to ensure that innovation in favour of international energy policy goals does not exacerbate environmental damage, such as by land degradation or damage to river systems caused by large dams. Another important cross-cutting principle is that of public participation and access to information and justice, which requires that citizens be allowed to participate meaningfully in government decisions that affect them.81 A good example of an international environmental treaty encapsulating the principle is the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters.82 This treaty would appear to obligate states to put in place mechanisms for citizen input into the formulation of SE4All action plans, including avenues of appeal if citizen concerns are not addressed. A final and reinforcing principle is that of integration and interrelationship.83 For energy policy, the principle requires that action plans strive to resolve the likely conflicts between economic and financial, social, and environmental considerations. Thus, states must take positive steps to ensure that there is a proper balance between the three related goals of the initiative as well as between the human rights and environmental objectives of all planned interventions.

CONCLUSION: A PRINCIPLED APPROACH TO INTERNATIONAL ENERGY POLICY The challenge of energy injustice requires urgent and radical solutions. SE4All is an ambitious flagship policy initiative on energy which has the potential to radically change the global energy landscape. Backed by a strong UN Charter mandate, current international energy policy seeks to make a fundamental and lasting difference in the lives of many across the globe by unlocking the opportunities that access to energy promises as well as deal with the negative consequences of energy systems that depend on the use of fossil fuels. However, the failure to couple international energy policy with a clear legal framework risks reducing the activities envisaged under the initiative to mere political gestures with no reasonable way of ensuring that states adhere to the commitments they have undertaken. Consequently, the articulation of an applicable legal framework, drawn from existing legal obligations of participating states, would ibid principle 15. ibid principle 10. 82 Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, Aarhus, 28 June 1998, 2161 UNTS 447. See also Convention on Biological Diversity (n 55) arts 13, 14.1(a); UN Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, Paris, 14 October 1994, 1954 UNTS 3, arts 3 (a), 10.2(f). 83 Rio Declaration (n 76) principle 4. 80 81

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International energy policy for development 321 bring clarity and the binding force of law to the initiative. The framework outlined here would allow states to set goals which can be tracked with the aid of existing human rights and sustainable development implementation mechanisms, ensuring not only that the policy goals underpinning SE4All remain a priority, but also that states construct their plans within structures that are already well-understood. Reliance on human rights and sustainable development frameworks to achieve international energy policy’s three principal goals holds considerable promise that its implementation will alleviate past deficiencies in efforts under precursor international legal regimes to facilitate energy access, enhanced energy efficiency, and clean energy goals, particularly among the world’s most disadvantaged populations. The legal principles outlined above, taken together, provide considerable guidance for ensuring that international energy policy actions not only change the profile of energy systems towards universal access, improvements in the proportion of renewables, and higher rates of energy efficiency, but also that such interventions contribute in a coherent manner towards the protection of human rights and adherence to sustainable development. Universal access to energy stands at the heart of sustainable development and effective human rights protection. However, it is critical that international energy policy results in just outcomes both in relation to access and the form of energy systems as well as the impacts surrounding the development of such systems. Ensuring that states undertake their obligations in relation to sustainable energy for all while at the same time averting the deleterious effects of energy development requires a fine balancing act; one which cannot be achieved by general policy goals alone. Instead, it is imperative that such goals are supported by an effective legal framework. In this regard, international human rights law as expressed through the UN Charter, the Universal Declaration of Human Rights, and subsequent treaties on human rights as well as the general principles of sustainable development law offer a robust framework for balancing international energy policy goals with the actions taken to achieve them with a view to sustainable outcomes. While the proposed framework may seem light on detail, assessments of domestic energy policy along the framework suggested would likely lead to more nuanced analysis as competing options are weighed and validated according to their human rights and sustainable development law compliance. In this regard, outcomes in favour of sustainable energy for all would not only adhere to states’ obligations on human rights and sustainable development but also the SDGs. Ultimately, an approach to both international as well as domestic energy policy that supports states in meeting these obligations in an integrated way is more likely to bring about just results.

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17. Nuclear energy and liability: an environmental perspective Saurabh Bhattacharjee

INTRODUCTION Some suppliers had earlier expressed concern over the issue of supplier’s liability in our [Civil Liability for Nuclear Damage] Act, 2010. To address such concerns clarification was provided by the Government along the lines of ‘Frequently Asked Questions (FAQs)’ posted on websites of Ministry of External Affairs and Department of Atomic Energy. Dr Jitendra Singh, The Minister of State, Government of India for Personnel, Public Grievances & Pensions and Prime Minister’s Office1

The understated response of the Minister of State for Personnel, Public Grievances & Pensions and Prime Minister’s Office to a query in the Parliament is reflective of the impasse between Indian government and international nuclear companies over the sale of nuclear reactors due to Indian legislation on civil nuclear liability.2 This deadlock calls for renewed attention to the international legal norms on liability for the nuclear industry. With its legislative provision for supplier’s liability,3 India is being regarded as an outlier undermining the core principles of liability that the international community has evolved in recognition of the transnational nature of any nuclear accident.4 India’s conundrum is, however, illustrative of the broader challenge faced by many developing countries as they embark on expansion of their nuclear energy industry. Increased competition over fossil fuels and concerns over climate change have prompted many states to shift to nuclear energy. Energy-starved countries like India

1 ‘Suppliers Seeking Indemnity from Liability Clause’ (Reply to Unstarred Question No. 1988, Rajya Sabha, 4 August 2016), accessed at http://dae.nic.in/writereaddata/parl/monsoon 2016/rsus1988.pdf. 2 Mohit Abraham, Nuclear Liability: A Key Component of the Public Policy Decision to Deploy Nuclear Power in Southeast Asia (American Academy of Arts and Sciences 2014); Ayushi Sutaria, ‘Placing the Indian Civil Nuclear Liability Regime in Context: The Extent of Supplier’s Liability’ (2014)17(1) Journal of Risk Research 97. 3 Civil Liability for Nuclear Damage Act 2010 (Act 38 of 2010), s 17 [hereafter CLNDA]. 4 Anupama Sen and Arghya Sengupta, ‘Resolving the Nuclear Liability Deadlock’ The Hindu (6 January 2015), accessed at www.thehindu.com/opinion/lead/lead-article-resolving-thenuclear-liability-deadlock/article6757524.ece; Brahma Chellaney, ‘Don’t Believe the Hype on US-India Nuclear Deal’ Nikkei Asian Review (9 February 2015), accessed at https://asia.nikkei. com/Politics/Don-t-believe-the-hype-on-US-India-nuclear-deal.

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Nuclear energy and liability: an environmental perspective 323 and China have made massive investments in nuclear energy in recent years.5 In fact, Indian government has plans of generating one-fourth of its total energy need through nuclear power by 2050.6 Similarly, China has around 18 nuclear power reactors currently in construction.7 However, the expansion of civil nuclear power is not restricted to large developing countries only; instead preliminary steps towards nuclear power have been taken in many of the smaller states, including Bangladesh and Sri Lanka.8 Indeed, a report of the International Atomic Energy Agency (IAEA) had noted in 2014 that some 33 countries, including many from Asia-Pacific and Africa, were ‘considering, planning or starting nuclear power programmes’.9 However, this expansion of nuclear power in the developing world poses certain political, economic, and legal challenges with respect to the construction of an appropriate regulatory framework for the nuclear industry, particularly with reference to financing, legal liability and technical cooperation. Since most of these new pursuers of nuclear energy do not have the industrial and scientific base for manufacturing indigenous atomic reactors, their entry into the nuclear energy industry is hinged on the supply of reactors by a select group of companies.10 Therefore, the growth of nuclear power is likely to reinforce the relationship of technological dependence between the Global South and the North, with reference to supply of nuclear technology and materials.

5 Shannon Tiezzi, ‘Why China Will Go All-In on Nuclear Power’ The Diplomat (8 October2014), accessed at http://thediplomat.com/2014/10/why-china-will-go-all-in-on-nuclearpower/; World Nuclear Association, ‘Nuclear Power in India’ (2019), accessed at www.worldnuclear.org/information-library/country-profiles/countries-g-n/india.aspx; Jack Perkowski, ‘China Leads in Renewable Investment Again’ Forbes (17 June 2014), accessed at www.forbes.com/ sites/jackperkowski/2014/06/17/china-leads-in-renewable-investment-again/#4120131aeb0a. 6 Aniruddha Mohan, ‘The Future of Nuclear Energy in India’ (ORF Occasional Paper, 9 August 2016), accessed at www.orfonline.org/research/the-future-of-nuclear-energy-in-india/#_ edn9. 7 Mark Hibbs, ‘The Future of Nuclear Power in China’ (Carnegie Endowment for International Peace 2018), accessed at https://carnegieendowment.org/files/Hibbs_ChinaNuclear_ Final.pdf; World Nuclear Association, ‘Nuclear Power in China’ (2019), accessed at www.worldnuclear.org/information-library/country-profiles/countries-a-f/china-nuclear-power.aspx. 8 Md. Asad Rehman and others, ‘The Prospects of Nuclear Power in Bangladesh’ (2012) 1(1) International Journal of Renewable Energy Technological Research 15–22, accessed at www.ijretr.org/Vol%201%20%20%20No%201%20December%202012/The%20Prospects%20of %20Nuclear%20Power%20in%20the%20Bangladesh.pdf; Matt Fisher, ‘Introduction of Nuclear Power in Bangladesh Underway with IAEA Assistance’ (March 2018) 59/1 IAEA Bulletin 22, accessed at https://www.iaea.org/sites/default/files/publications/magazines/bulletin/bull59-1/591 2223.pdf; World Nuclear News, ‘India, Sri Lanka Agree to Nuclear Cooperation’ World Nuclear News (16 February 2015), accessed at www.world-nuclear-news.org/NP-India-Sri-Lanka-agreeto-nuclear-cooperation-1602154.html. 9 IAEA, International Status and Prospects for Nuclear Power 2014, IAEA Doc GOV/INF/ 2014/13-GC(58)/INF/6 (2014), accessed at www.iaea.org/About/Policy/GC/GC58/GC58Inf Documents/English/gc58inf-6_en.pdf. 10 World Nuclear Association, ‘Heavy Manufacturing of Power Plants’ (2018), accessed at www.world-nuclear.org/information-library/nuclear-fuel-cycle/nuclear-power-reactors/heavymanufacturing-of-power-plants.aspx; see also Abraham (n 2).

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324 Research handbook on law, environment and the global South In this context, this chapter highlights how international nuclear law has been shaped by this relationship of technological dependence that these countries have on the suppliers from the developed world. In particular, international legal rules on nuclear liability fail to take into account the particular concerns of developing countries. The central elements of international nuclear liability law – channelling of liability, liability caps, temporal limits on claims, and so on – were developed without the significant participation of developing countries or without reference to their special concerns. The chapter also posits that the existing legal regimes are against contemporary international environmental law principles. As such, the existing paradigm of nuclear liability requires modification in order to incorporate the specific interests of developing countries and major principles of international environmental law.

A. CIVIL LIABILITY AND NUCLEAR LAW: AN OVERVIEW The potential transnational impact of nuclear accidents means that nuclear liability has been a concern of international law. It is a well-established principle of international law that a state that violates its international obligations has a duty to make reparations for the wrongs committed.11 This principle of state responsibility is enshrined in several texts including Principle 21 of the Stockholm Declaration which holds that states are responsible for activities under their jurisdiction and must ensure that they do not cause damage to the environment of other states’ activities.12 This principle would generally be applicable to harm caused by nuclear activities as well.13 Indeed in its Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons, the International Court of Justice referred to the obligation of states to ‘ensure that activities within their jurisdiction and control respect the environment of other states or of areas beyond national control’.14 Yet, states have opted to deal with liability from nuclear accidents through civil liability.15 Since state responsibility has traditionally been based on a fault or a breach of state obligations, it is not very suitable to the nuclear sector where establishing a causal connection between an accident and an omission is a very complex exercise.16 The 11 Trail Smelter (US v Canada), 16 April 1938 and 11 March 1941, 3 Rep. Int’l Arbitral Awards 1905 (1941), Corfu Channel Case (UK v Albania), Judgment of 15 December 1949, ICJ Reports 1949, 249. This principle has also been endorsed by Article 31(1) of the Draft Articles on Responsibility of States for Internationally Wrongful Acts of 2001. International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, UN Doc A/56/10 (2001) art 31(1). 12 Alexandre Kiss and Dinah Shelton, A Guide to International Environmental Law (Martinus Nijhoff 2007) 19–20. 13 Jon M Van Dyke, ‘Liability and Compensation for Harm Caused by Nuclear Activities’ (2006) 35 Denver Journal of International Law and Policy 13, 14. 14 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, 226. 15 Alexandre Kiss, ‘State Responsibility and Liability for Nuclear Damage’ (2006) 35 Denver Journal of International Law and Policy 67, 69. 16 ibid.

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Nuclear energy and liability: an environmental perspective 325 weaknesses of enforcement mechanisms also make state responsibility a less attractive instrument for protection.17 Further, an individual victim has no direct remedy under the doctrine of state responsibility. In other words, where states remain unable or disinclined to enforce their claims against the polluting-state, individuals may be left without any legal protection whatsoever. Private civil liability mechanisms, on the other hand, allow injured persons to seek compensation directly and avoid reliance on state claims.18 Since private actors may have better information about environmental damage in certain cases and a more direct stake in environment protection, civil liability facilitates more robust environmental management. As observed by one scholar, ‘private litigators contribute to larger regulatory system, thereby producing a public good while pursuing their private aims’ through tort litigation.19 Scholars also assert that states prefer civil liability to state responsibility since submission to binding international adjudication represents partial relinquishment of sovereignty as well.20 Further, holding states responsible in international law for activities of private actors would also entail very rigorous state scrutiny of private economic activities.21 Therefore, norms on civil liability have been preferred, instead of sole reliance on state responsibility, as a more effective instrument for redressing harm arising out of a nuclear accident. Civil liability can be an effective instrument for compensating victims of pollution too. As has been noted, regulatory sanctions and criminal penalties are enforced by state agencies and any consequent relief for the victims is mediated through state action. Tort law, in contrast, enables the aggrieved person to directly claim monetary relief from the polluter.22 Further, civil liability not only provides a modicum of legal protection to victims of environmental damage, but also encourages rigorous compliance with safety regulations by deterring undesirable behaviour.23 It is argued that the spectre of potential liability would induce an operator of a polluting industry to take optimal preventive measures. Conversely, an absence of liability would mean that actors would have little incentive to resort to costly precautionary measures as part of their industrial processes. An optimally designed legal regime on civil liability shall thus minimise the risk of pollution by inducing behavioural modification in corporate 17 Patricia Birnie and others, International Law and the Environment (3rd edn, OUP 2009) 518–19. See also Rajendra Ramlogan, ‘The Environmental and International Law: Rethinking the Traditional Approach’ (2002) 3 Vermont Journal of Environmental Law 1. 18 Jillian Barron, ‘After Chernobyl: Liability for Nuclear Accidents under International Law’ (1987) 25 Colum Journal of Transnational Law 747, 765. 19 Michael Anderson, ‘Transnational Corporations and Environmental Damage: Is Tort Law the Answer?’ (2002) 41 Washburn Law Journal 399, 409. 20 Harvard Law Review Association, ‘State Liability and Procedural Norms’ (1991) 104 Harvard Law Review 1492, 1502. 21 ibid 1507. 22 Noah Sachs, ‘Beyond the Liability Wall: Strengthening Tort Remedies in International Environmental Law’ (2008) 55 UCLA Law Rev 837, 846. See also Anderson (n 19) 409. 23 Elli Louka, ‘Bringing Polluters before Transnational Courts: Why Industry Should Demand Strict and Unlimited Liability for the Transnational Movements of Hazardous and Radioactive Wastes’ (1993) 22 Denver Journal of International Law and Policy 63.

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326 Research handbook on law, environment and the global South entities who may otherwise externalise the environmental consequences of their action to third parties.24 It has also been argued that the actual instance of an award of compensation also sends out price signals to other industrial operators and thereby deters them.25 Therefore, as Michael Faure argues, ‘the goal of the liability system is not ex post compensation, but rather ex ante prevention’ and liability ‘has an important social function in remedying market failures’.26 Not surprisingly, civil liability has been a central component of the emerging discipline of nuclear law. Given the capacity of nuclear power to inflict catastrophic damage, rules on liability for third party damage in the aftermath of a nuclear accident have been a vital concern for nuclear regulators. These norms can serve as an instrument for both compensation as well as deterrence. But liability norms are effective instruments for reallocation of costs of nuclear accidents too by internalisation of the external cost.27 At the same time, they can serve as a signal of social priorities and can incentivise or impede the growth of the industry. Thus, states have sought to institutionalise special norms on civil liability that seek to reconcile the competing interests of encouraging nuclear power and insulating citizens from the associated risks. But the cross-border nature of any nuclear accident also calls for uniformity between tort law rules across legal systems in order to avoid conflict of laws. Thus the post second world war era saw a proliferation of several civil nuclear liability regimes at the international level in the form of the Organisation for Economic Co-operation and Development (OECD) Paris Convention on Third Party Nuclear Liability of 1960 (Paris Convention),28 the Vienna Convention on Civil Liability for Nuclear Damage of 1963 (Vienna Convention)29 and the Joint Protocol of 1988 and the Convention on Supplementary Compensation for Nuclear Damage of 1997 (CSC)30 – all of which exemplified the impulse of the international community towards harmonisation of legal rules on liability arising out of a nuclear accident. The Paris Convention was the first major international treaty law on nuclear liability. Negotiated by the OECD, the Convention includes all Western European countries except Ireland, Austria, Luxembourg and Switzerland and came into force in 1968.31 This Convention laid down the basic framework of international law on nuclear liability

24 Anderson (n 19) 408–9. See also Alfonso Ascencio, ‘The Transboundary Movement of Living Modified Organisms: Issues relating to Liability and Compensation’ (1997) 6(3) Review of European, Comparative and International Environmental Law 293. 25 Anderson (n 19) 409. 26 Michael Faure, ‘Attribution of Liability: An Economic Analysis of Various Cases’ (2016) 91(2) Chicago-Kent Law Review 603. 27 Birnie and others (n 17) 521. 28 Convention on Third Party Liability in the Field of Nuclear Energy, Paris, 29 July 1960, 956 UNTS 263 [hereafter Paris Convention]. 29 Vienna Convention on Civil Liability for Nuclear Damage, Vienna, 21 May 1963, 1063 UNTS 265. 30 Convention on Supplementary Compensation for Nuclear Damage, Vienna, 12 September 1997, IAEA INFCIRC/567 [hereafter CSC]. 31 Nuclear Energy Agency, Paris Convention on Third Party Liability (1960), accessed at www.oecd-nea.org/law/paris-convention.html.

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Nuclear energy and liability: an environmental perspective 327 by recognising the strict liability of the operator32 and setting a maximum liability of 15 million Special Drawing Rights (SDR; about EUR 18 million).33 This liability cap was later increased by the Brussels Supplementary Convention of 1963 and the Protocol to the Paris Convention of 2004. The Brussels Supplementary Convention not only increased the liability cap but also added to the regime by creating a system of three tiers to provide for damages. The first tier of funds is sourced from the operators whose liability is provided in the Paris Convention.34 Tier 2 requires the state of the operator to pay from public funds the difference between operator’s liability determined under Tier 1 and a slab of SDR 175 million.35 Tier 3 calls upon all parties to the Convention to supply up to SDR 125 million. The maximum total amount available for compensation is therefore SDR 300 million.36 Unlike the Paris Convention which is restricted to the OECD states, the Vienna Convention, which was formulated by the IAEA and adopted in 1963, is open to all states and came into force in 1977.37 This Convention also adopts the core scheme of the Paris Convention and renders the operator strictly liable for nuclear damage38 and imposes liability caps.39 The Vienna Convention was amended by a Protocol to the Convention in 199740 which raised the liability caps and provided for a broader definition of nuclear damage.41 The Paris Convention and the Vienna Convention were linked together in 1988 through the Joint Protocol Relating to the Application of the Vienna Convention and the Paris Convention. Because of this linkage, the parties to the Protocol are accorded a choice of determining which of the two convention-regimes shall apply to them with respect to an incident.42 The choice of one convention-regime operates to exclude the other regime. In view of the inconsistencies in details, a country cannot be subject to both conventions simultaneously.43 The post-Chernobyl deliberations resulted in adoption of a separate regime under the CSC 1997. The CSC establishes an international fund to which state parties shall Paris Convention (n 28) art. 3. ibid art. 7. 34 Convention Supplementary to the Convention on Third Party Liability in the Field of Nuclear Energy Concluded at Paris on 29 July 1960, Brussels, 31 January 1963, 1041 UNTS 358, art. 3(b)(i). 35 ibid art. 3(b)(ii). 36 ibid art. 3(b)(iii). 37 IAEA, Vienna Convention on Civil Liability for Nuclear Damage (Vienna Convention) (1963), accessed at www.iaea.org/publications/documents/conventions/vienna-convention-oncivil-liability-for-nuclear-damage. 38 Vienna Convention on Civil Liability for Nuclear Damage, Vienna, 21 May 1963, 1063 UNTS 265, art IV(1). 39 ibid art. V. 40 Protocol to Amend the Vienna Convention on Civil Liability for Nuclear Damage, Vienna, 12 September 1997, 2241 UNTS 270. 41 IAEA (n 37). 42 ibid. 43 World Nuclear Association, Liability for Nuclear Damage (2018), accessed at www.world-nuclear.org/information-library/safety-and-security/safety-of-plants/liability-for-nucleardamage.aspx. 32 33

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328 Research handbook on law, environment and the global South contribute to in case of a nuclear accident to supplement the compensation payable under the national law.44 Around 90 per cent of the contributions to the international fund will be based on the installed nuclear capacity in a member country. The remaining 10 per cent of the contributions will be based on the UN rate of assessment of a member country.45 Further, the Convention provides that 50 per cent of the funds shall be allocated for compensating the claims arising out of transboundary damage suffered outside the territory of the Installation State.46 Thus, these conditions were designed to obtain the support of non-generating states by ensuring that an overwhelming part of the contribution was to be made by generating states and guaranteeing half of the funds for transboundary damage, the direct concern of non-generating states.47 The Paris Convention, the Vienna Convention and the CSC cumulatively set up an interlocking maze of international legal regimes on nuclear liability. These conventionregimes have provided for a common set of international standards for harmonisation of civil liability for accidental nuclear damage.48 Through harmonisation, these regimes seek to ensure common liability standards and create ‘shared expectations on a regional or global basis’ thus avoiding conflict of laws problems.49 Critically, these legal regimes also recognise the competence of national courts to decide claims for compensation for transboundary damage from nuclear accidents and seek to ensure that these decisions of national courts would be enforceable in other state parties to the agreement.50 Thus, they seek to provide uniformity not only in the substantive realm but also in the realm of procedure.

B. CORE PRINCIPLES OF INTERNATIONAL LAW ON NUCLEAR LIABILITY The three regimes on nuclear liability have been described by some observers as patchy and complicated.51 However, while they may be different in their intricacies, these regimes share certain fundamental structural features. In this section, we look at these central elements and the rationale behind them. CSC (n 30) art. II. Ben McRae, ‘The Convention on Supplementary Compensation for Nuclear Damage: Catalyst for a Global Nuclear Liability Regime’ (2012) 2007(1) Nuclear Law Bulletin 17. 46 CSC (n 30) art. XI(1). 47 McRae (n 45). 48 Alan E Boyle, ‘Globalising Environmental Liability: The Interplay of National and International Law’ (2005) 17 J of Environmental Law 3, 16. 49 ibid 12. 50 Malgosia Fitzmaurice, ‘International Responsibility and Liability’ in Daniel Bodansky and others (eds), The Oxford Handbook of International Environmental Law (OUP 2007) 1010, 1025. 51 Duncan EJ Currie, ‘The Problems and Gaps in the Nuclear Liability Conventions and an Analysis of How an Actual Claim Would be Brought under the Current Existing Treaty Regime in the Event of a Nuclear Accident’ (2007) 35(1) Denver Journal of International Law and Policy 85. 44 45

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Nuclear energy and liability: an environmental perspective 329 1. No-fault Liability In view of the ultra-hazardous nature of nuclear energy, civil liability for nuclear damage has not been made fault-based. It has been well recognised in international law as well as municipal law that liability for any harm arising out a hazardous activity must be attributed to the proponent of such activity irrespective of his fault.52 This has been recognised in nuclear law as well and liability of an operator in the case of a nuclear accident arises regardless of lack of any fault on his part. A claimant only needs to show that the damage had been caused by a nuclear accident. In other words, proof of fault or negligence need not be shown and the only exceptions that an operator can rely on are armed conflict, civil war or negligence of victims.53 No-fault liability is necessitated by several peculiarities of nuclear energy. Proving fault can be difficult for a plaintiff, especially where technical knowhow about the nuclear sector largely remains in the hands of the operator. Secondly, the hazardous nature of the sector means that catastrophic accidents may occur in spite of due diligence and may not be a product of a default. In this context, no-fault liability operates as an invaluable standard since it ‘relieves courts of the difficult task of setting appropriate standards of reasonable care and plaintiffs of the burden of proving breach of those standards’ through evidence in an increasingly developing and technically complex industrial field.54 2. Channelling of Liability Legal channelling of liability implies that one party shall exclusively bear the liability for a matter to the exclusion of liability of any other party.55 It is usually a response to complex cases of multiple wrongdoers and uncertainty on their causal role. As Faure argues: Traditional approach to torts, both legal and economic, has always started from a simple premise, which assumes one tortfeasor, one victim, and a clear causal relationship between the tortious conduct of the tortfeasor and the damage suffered by the victim.56

Cases of multiple tortfeasors challenge this multiple premise and lend considerable ambiguity to claims of tort liability. Channelling, in contrast, is an effective solution to

52 This chapter uses the term ‘no-fault liability’ due to some ambiguity about usage of terms, ‘strict liability’ and ‘absolute liability’ which have both been used to describe liability without attribution of fault. In common law, strict liability, however, permits certain exception to liability whereas absolute liability, developed for severely hazardous substances and activities, does not permit any exception. Liability in nuclear law straddles this distinction in as much as it relates to ultra-hazardous activity while it also permits certain exceptions to liability. 53 Vienna Convention (n 38) art. II; Paris Convention (n 28) art. 9. 54 Boyle (n 48) 13. 55 Faure (n 26) 603. 56 ibid.

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330 Research handbook on law, environment and the global South such ambiguity in so far as it allocates exclusive responsibility to only one among multiple potential defendants.57 Another justification for channelling asserts that it assures avoidance of costly, duplicative and lengthy litigation.58 Making the operator exclusively liable, it is also argued, promotes greater adherence to safety standards since it is the party who will be in the best position to exercise effective control over a nuclear installation.59 It is also argued that channelling boosts insurability. It is claimed that insurers cannot accurately calculate premiums under a system of joint and several liability and, therefore, such multiple liability shall push up the cost of insurance.60 Further, maintenance of insurance by all potentially liable parties would also make the cost of insurance prohibitive.61 In contrast, channelling, by pinpointing liability, minimises the transaction cost of insurance. Not surprisingly, such legal channelling is the norm in nuclear liability treaty regimes and civil liability for any nuclear damage to a third party is channelled exclusively to the operator of a nuclear installation.62 Thus, victims can sue only the operator and other parties involved in nuclear commerce would ordinarily be protected from any claim from potential defendants. As is the case with strict liability, the Paris Convention was the first international treaty to introduce this concept of channelling liability in international nuclear law. 3. Limited Liability The amount of compensation to be paid to victims by operators has been limited by imposition of upper ceilings. Borrowed from maritime law wherein limited liability has a long-established history,63 such monetary limits on liability have been integral to civil nuclear liability regimes right from their very inception.64 It is argued that in absence of such liability caps, the prospect of massive damages would inhibit investment in new power plants.65 Further, such caps were also seen as a response to the initial disinclination of insurance companies to provide adequate insurance cover to new Boyle (n 48) 14. Arya Hariharan, ‘India’s Civil Nuclear Liability Bill and Supplier’s Liability: One Step towards Modernizing the Outdated International Nuclear Liability Regime’ (2012) 36 William & Mary Environmental Law and Policy Review 223, 225. 59 Currie (n 51) 91–2. 60 Faure (n 26) 605. 61 Kazimierz Grzybowski and William Dobishinski, ‘Property and Tort in Nuclear Today’ (1977) 10 Vanderbilt Law Journal 433, 449. 62 Vienna Convention (n 29), art. II(2), Paris Convention (n 28) art. 6. 63 Wang Hui, Civil Liability for Marine Oil Pollution Damage: A Comparative and Economic Study of the International, US and Chinese Compensation Regime (Wolters Kluwers 2011) 75–7. See also Gotthard Gauci, ‘Limitation of Liability in Maritime Law: An Anachronism?’ (1995) 19(1) Marine Policy 65–74. 64 Paris Convention (n 28) art. 7; Vienna Convention (n 38) art. 5. 65 Julia A Schwartz, ‘International Nuclear Third-Party Liability Law: The Response to Chernobyl’ in OECD Nuclear Energy Agency and the International Atomic Energy Agency, International Nuclear Law in the Post-Chernobyl Period (IAEA and OECD 2006) 38. 57 58

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Nuclear energy and liability: an environmental perspective 331 investors in the sector due to the lack of experience and data with respect to nuclear technology.66 It has been asserted that since nuclear power was regarded as a possibly limitless source of indigenously produced energy, special incentives in the form of liability caps were provided for encouraging the private sector to invest in nuclear industry.67 Beginning with legal standards in the United States, limited liability therefore became entrenched in international nuclear liability regimes since it facilitated the growth of the private sector in nuclear power generation.68 4. Temporal Limits on Liability Statutes of limitation that impose temporal caps on liability are an integral part of most jurisdictions. It is desirable that legal claims should be brought forward at a time when documentary evidence is still available, and recollections of witnesses have not faded. Further, commercial actors require certainty and stability of legal obligations. In order to ensure that dormant claims do not severely impede business, such limitation in time is justified and they have become de rigueur in most jurisdictions. Nuclear liability is no exception. All the nuclear liability conventions specify a timeframe within which an action must be brought, or else compensation rights shall be extinguished. For example, Article VI(1) of the Vienna Convention prescribes that liability shall be extinguished if an action related to loss of life and personal injury is not brought within 30 years from the accident. The time for extinction of rights is ten years for other nuclear damage.69 Admittedly, this article does allow for the period of liability to be extended beyond ten years for such damage, not related to loss of life and personal injury, through national legislation, but there must be available financial coverage for the entire period of liability. Article 8(a) of the Paris Convention provides for a similar period of limited liability with an allowance for extension depending on the applicable national legislation of the Contracting State. 5. Grant of Exclusive Jurisdiction Exclusive jurisdiction of the courts of the country in which the affected nuclear installation is situated is another integral principle of international law on civil liability for nuclear damage. This has been provided so as to minimise conflicts over forum for dispute settlement, choice of law, and avoid claims of forum non conveniens. Therefore, it is specified that the jurisdiction to try such claims for damages for loss to third parties in a nuclear accident shall rest solely with the courts of the country in whose Dan M Berkovitz, ‘Price-Anderson Act: Model Compensation Legislation? The SixtyThree Million Dollar Question’ (1989) 13 Harvard Environmental Law Review 1. 67 Schwartz (n 65). 68 Norbert Pelzer, ‘Concepts of Nuclear Liability Revisited: A Post-Chernobyl Assessment of the Paris and the Vienna Conventions’ in Peter Cameron and others (eds), Nuclear Energy Law after Chernobyl (Kluwer Law International 1988) 97, 99. See also Diane Carter Maleson, ‘The Historical Roots of the Legal System’s Response to Nuclear Power’ (1982) 55 Southern California Law Review 597. 69 Vienna Convention (n 38) art. VI(1). 66

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332 Research handbook on law, environment and the global South territory the accident occurs.70 The significance of this principle is highlighted by the series of lawsuits initiated in the United States by a varied set of persons in relation to the Fukushima disaster.71 In that sense, it is a corollary to the other preceding principles by ensuring that channelling of liability, liability caps or the no-fault liability norms are not subverted by initiation of a legal claim in another jurisdiction. These common principles were evolved through special treaty regimes to facilitate the growth of nuclear industry and yet accord meaningful legal protection to potential victims of a nuclear accident. More specifically, they have been shaped by the imperative of instituting a mechanism for spreading the risk associated with the use of nuclear energy among different actors.72 In this sense, these principles were also based on other international regimes that provided for civil liability. For instance, the International Convention on Civil Liability for Oil Damage of 1969 also provided for exclusive liability of the ship-owner.73 This was supplemented by an international fund to pay compensation in cases beyond the limit specified by the 1969 Convention.74 However, I shall argue in the next section that the underlying assumptions of these treaty regimes must be revisited. It is my argument that the imperatives of the suppliers largely shaped the evolution of the liability regimes. Consequently, these regimes are not appropriately tailored for the needs of the developing countries, especially the power and technological asymmetry between supplier states and developing countries. It is my further argument that many of these principles like limited liability and legal channelling appear suspect when assessed on the touchstone of insights from law and economics and require revision. My final critique is that some of these tenets of nuclear liability also violate contemporary standards of international environmental law.

C. THE INEQUITABLE POLITICAL ECONOMY OF NUCLEAR LIABILITY LAW The basic principles of international law on civil liability for nuclear damages have been justified as a case of optimal balance between competing interests. Yet, an interdisciplinary analysis of historical and economic foundations of these principles presents a more complex account. The history of legal channelling and limited liability suggests that these principles were a product of geopolitics, lobbying power and 70 Paris Convention (n 28) art. 13(1), Vienna Convention ibid, art. XI(1). See also Currie (n 51) 91–2. 71 For a discussion of lawsuits filed in the United States in connection with the Fukushima disaster, see Cheryl Parkhouse and Ian Salter, ‘Nuclear Liability Developments: Forum Shopping in United States’ Lexology (23 January 2018), accessed at www.lexology.com/library/detail. aspx?g=a6a2402e-6d13-44a2-838f-f04955800fea. 72 Schwartz (n 65) 40. 73 International Convention on Civil Liability for Oil Pollution Damage, Brussels, 29 November 1969, 973 UNTS 3, amended by Protocol of 27 November 1992, art 4 [hereafter Oil Pollution Convention]. 74 International Convention on the Establishment of an International Fund for Compensation of Oil Pollution Damage, Brussels, 18 December 1971, 1110 UNTS 57, amended by Protocol of 27 November 1992.

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Nuclear energy and liability: an environmental perspective 333 sectional interests of the nuclear industry rather than an instrument either protecting the interests of victims or promoting the optimal working of accident law. Further, insights from law and economics literature raise doubts about the economic utility of these principles. There is substantial academic work which situates the origin of limited liability and legal channelling around the elimination of federal monopoly in the nuclear industry in the United States by the Atomic Energy Act 1954 and the quest to attract the private sector into the industry.75 Imposition of liability caps was meant to assure protection to investors against crippling damages and assure insurance for them. Based on crude estimates and likelihood of insurance, a liability cap of US$500 million was introduced in the Price-Anderson Act in 1957. The original draft of this legislation prepared by the US Atomic Energy Commission did not contain any liability caps. However, a cap was added during the legislative passage of the Bill.76 Berkovitz describes the history of the cap in this manner: [b]oth the bill introduced by the Joint Committee and the final legislation imposed a $500 million limit on liability. This limit was admittedly arbitrary. The Joint Committee staff originally suggested a figure of $500 million because it was halfway between zero and a billion dollars.77

As crude as the quantitative limits were, liability caps became a necessary part of international liability regimes with the Paris Convention in 1960 which also provided for limits on monetary damages and replication by subsequent treaties. It is evident, however, that there was scarcely any participation of developing countries in the formulation of this norm.78 This historical exclusion is compounded by the fact that the impact of such liability caps would be overwhelmingly unfavourable for states that do not generate nuclear power. It may plausibly be argued that liability caps are a way of spreading the risk between all users of nuclear energy and therefore justifiable.79 However, this rationale ignores the severe transnational impact on the global environment that a nuclear disaster is likely to have. Such long-lasting damage to the global environment shall not discriminate between states that use and states that do not use nuclear power. As such, non-generating states would bear the risk of transboundary impact of nuclear accidents without having the benefit of nuclear power and, yet, their right to legal redress would be curtailed due to liability caps. This history of limited 75 Tom Vanden Borre, ‘Channelling of Liability: A Few Juridical and Economic Views on an Inadequate Legal Construction’ in Nathalie LJT Horbach (ed), Contemporary Developments in Nuclear Energy Law Harmonising Legislation in CEEC/NIS (Kluwer Law 1999) 13; Tom Vanden Borre, ‘Shifts in Governance in Compensation for Nuclear Damage’ in Michael Faure and Albert Verheij (eds), Shifts in Compensation for Environmental Damage (Springer 2007) 262. 76 Berkovitz (n 66) 9. 77 ibid. 78 Suvrat Raju and MV Ramana, ‘The Other Side of Liability’ (2010) 45(16) Economic and Political Weekly 48. 79 David M Rocchio, ‘The Price-Anderson Act: Allocation of the Extraordinary Risk of Nuclear Generated Electricity: A Model Punitive Damage Provision’ (1987) 14 Boston College Environmental Affairs Law Review 521.

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334 Research handbook on law, environment and the global South liability caps indicates how interests of nuclear commerce were given precedence over environmental concerns in shaping the liability regimes. Similarly, the origin of the principle of legal channelling is enmeshed with the interests of developed states. Historical accounts of liability laws more directly attribute legal channelling to the geopolitical dominance of the United States during the early stages of growth of the private nuclear industry when American suppliers were seeking to export reactors and materials to Europe. It has been shown that channelling was introduced in the nuclear liability conventions due to lobbying by American suppliers of nuclear fuel.80 Even as they were looking to expand their footprint in Europe, American companies were unwilling to shoulder liability for any potential nuclear incident taking place in the continent.81 Channelling of liability through the operator as a legal principle was first mooted by a Harvard Report prepared by the Atomic Industrial Forum.82 This was preceded by adoption of a ‘hold-harmless’ clause in bilateral agreements between the United States and European countries in order to assuage the concerns of American suppliers.83 Under this clause, European nuclear operators were mandated to indemnify the American suppliers for all claims resulting from their activities.84 Yet, these holdharmless clauses proved inadequate for the nuclear industry and gave way to legal channelling as recommended by the Harvard Report. This instrument ensured that the American suppliers would be insulated from any liability which would instead be directed at the operators who would purchase the reactors from them.85 This historical account suggests that legal channelling of liability was primarily animated by the need for protecting American suppliers. Given the strategic dependence of European countries on the United States, this principle was thrusted upon the countries which lacked an indigenous technological base and imported nuclear reactors. Consequently, the importing states operating the nuclear reactors assumed exclusive liability while providing legal immunity to suppliers. Since this principle has permeated into every international treaty regime on nuclear liability, the exclusionary effects of the principle have been magnified. Even as more countries have taken to civilian use of nuclear energy, the asymmetry of technical capacity and relationship of technological dependence that existed at the time of adoption of legal channelling has only been reinforced. Even after massive expansion of the nuclear industry in the six decades since the Paris Convention, nuclear commerce related to reactors is largely dominated by a few select companies like Westinghouse, General Electric, AREVA, Rosatom.86 In view of their multinational ownership, it may not be possible to describe some of these companies in national Hariharan (n 58) 226. ibid 224. 82 ibid 227, referring to the report Harvard Law School and Atomic Industrial Forum, International Problems of Financial Protection against Nuclear Risk (Atomic Industrial Forum Inc. 1959). 83 Faure (n 26) 625. 84 ibid. 85 ibid. 86 One major exception is UAE whose nuclear power programme is dependent mainly on materials and technical expertise from South Korean entities. See Abraham (n 2) 32. 80 81

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Nuclear energy and liability: an environmental perspective 335 terms.87 Yet, it is undeniable that these companies do belong to the developed countries. Therefore, the nuclear industry is still characterised by a technological inequity where developing countries like Bangladesh, Vietnam, Nigeria, and so on have contracted to purchase or purchased nuclear reactors from foreign companies from the highly industrialised states.88 In this political economy of nuclear energy, the unique interests of these new entrants to nuclear energy who are reliant on foreign suppliers and expertise are ignored as a result of legal channelling. Denial of the right to victims to sue suppliers, even where an accident may be attributable to their conduct, curtails the right to legal redress for victims of a potential nuclear accident. Given the oligopolistic control that few large companies from the developed world have over the supply of nuclear materials, such curtailment is going to affect the Global South disproportionately. The legal disabilities associated with legal channelling and limited liability not only impose an additional burden on the developing countries, but their economic rationale may also be suspect. Limited liability and channelling of liability have become an integral part of nuclear liability law on the premise that they boost insurability and reduce transaction costs, thereby boosting investment in the nuclear energy sector. It is submitted, however, that insights from law and economics literature call for a relook at this premise. It has been argued that while legal channelling of liability through the operator is aimed at reducing the transaction cost of insurance and potential litigation, it may, in reality, push up the cost of insurance for the operator. Since the operator will also have to cover the risk of accidents caused by acts of other persons in the economic chain, insurance would be substantially costlier for the operator.89 Further, liability also plays the role of providing suitable incentives for industrial operators to take adequate measures towards prevention of accidents. This perspective would posit that liability must be fixed at levels sufficiently high to induce operators to pursue safety measures in their own rational self-interest. Limited liability caps may, however, lead to negative incentives against adoption of safer and ecologically efficient operational processes. They may result in scenarios where the potential cost of an accident may be comparable or even lower than the cost of instituting preventive measures. In such a case, the operator’s reliance on preventive measures is likely to be sub-optimal.90 The same objection extends to legal channelling of liability through the operator. With transfer of liability to the operator, the upstream actors are left with sub-optimal incentives to take necessary preventive measures.91 Exempting other actors from liability may induce them to cut back on safety measures and externalise the cost of the Raju and Ramana (n 78) 52. Mycle Schneider and others, ‘The World Nuclear Industry Status Report’ (2016), accessed at www.worldnuclearreport.org/The-World-Nuclear-Industry-Status-Report-2016HTML.html. 89 Faure (n 26) 625. 90 Michael Faure and Tom Vanden Borre, ‘Compensating Nuclear Damage: A Comparative Economic Analysis of the U.S. and International Liability Schemes’ (2008) 33 William & Mary Environmental Law and Policy Review 219, 265. 91 M Trebilcock and RA Winter, ‘The Economics of Nuclear Accident Law’ (1997) 17 International Review of Law and Economics 215, 217. 87 88

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336 Research handbook on law, environment and the global South potential damage to the operator. Therefore, channelling can lead to a surge in the liability exposure for the operator and the insurer. So, exclusive channelling not only leads to denial of rights for the victims but is also detrimental for the operator.92 When juxtaposed against the broader global trend of export of hazardous wastes and technology to developing countries, exemption for suppliers from liability can have a deleterious impact. Particularly, in view of the instances of alleged supply of obsolete or defective industrial equipment and technology by manufacturers in the nuclear field and beyond, the concern about exemption of suppliers from liability is too real to ignore. For example, the Bhopal Gas Leak of 1984, one of the worst industrial disasters at the global level, has been surrounded by allegations of sub-standard technology being shared by the Union Carbide Corporation to its Indian subsidiary, Union Carbide India Ltd (UCIL).93 While this accident involved transfer of materials from a parent company to a subsidiary company, questions raised over defective technology illustrate the fear of supply of obsolescent materials by a manufacturer. This apprehension is further strengthened by specific instances within the nuclear energy sector where instances of flaws with some of the reactors on sale have been revealed. For instance, the Nuclear Safety Authority (ASN), the French regulator, revealed that they found more than a hundred irregularities, including a very serious anomaly with the European Pressurised Reactor (EPR) that is under construction in France and Finland and has been supplied to several other countries.94 In fact, India has also contracted with AREVA to commission EPR reactors.95 In view of this background, the immunity provided to suppliers from liability may encourage further neglect of safety standards and dumping of sub-standard technology by suppliers to importing countries, many of which are the developing countries that are new entrants to nuclear energy. Limited liability and legal channelling not only provide disincentives against introduction of rigorous safety norms and operational procedures, but also distort the economics of nuclear power. Liability caps protect the nuclear operator by artificially decreasing its risk costs since there is no internalisation of the environmental costs of use of nuclear power. As a result, the external environmental costs are not reflected in the final price charged to the consumer. In other words, a subsidy is created in favour of the nuclear industry. Karin Fiore argues that limited liability regimes created a total subsidy spread between 8.12 million to 191.4 million €/year for the French nuclear

Faure (n 26) 626. International Medical Commission on Bhopal, ‘Bhopal Disaster and the BP Oil Spill’ The Hindu (4 August 2010), accessed at www.thehindu.com/opinion/op-ed/Bhopal-disaster-and-theBP-oil-spill/article16117949.ece. 94 Henry Samuel, ‘France’s Nuclear Giant Areva Admits to Four Hundred Irregularities in Power Plant Parts’ The Telegraph (4 May 2016), accessed at www.telegraph.co.uk/news/2016/ 05/03/frances-nuclear-giant-areva-admits-to-400-irregularities-in-nucl/. Rob Broomby, ‘Flaw Found in French Nuclear Reactor’ BBC News (9 July 2015), accessed at www.bbc.com/news/ science-environment-33469774. 95 AREVA, India: AREVA Signs Agreements for the Development of the Jaitapur Nuclear Power Plant Project (10 April 2015), accessed at www.sa.areva.com/EN/news-10497/indiaareva-signs-agreements-for-the-development-of-the-jaitapur-nuclear-power-plant-project.html. 92 93

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Nuclear energy and liability: an environmental perspective 337 park as a whole.96 Thus, nuclear power is made to appear more competitive than alternative sources of energy through generation of artificial competitiveness through limited liability.97 The consequences of such artificial competitiveness are very far-reaching since they preclude an adequate cost-benefit analysis of nuclear power. It must be noted that the basic contours of the nuclear liability regimes were formulated in an era when nuclear energy was considered a potentially inexhaustible and cheap and clean source of energy.98 However, the actual experience with nuclear energy raises questions about the financial costs of nuclear power. Several scholars have asserted that nuclear power has not delivered on its promise of cheap electricity, lacks competitiveness and is an expensive indulgence.99 Most nuclear power projects have been plagued by significant delays and cost overruns.100 Further, studies show the cost of using nuclear power has escalated with more experience in France. This is contrary to the initial assumption that the operational costs would incrementally decline with learning effects of accumulated experience.101 Some commentators argue that on consideration of the full life cycle of nuclear fuel, nuclear energy turns out to be one of the costliest sources of energy.102 These questions about the cost of nuclear energy require a clear and dispassionate analysis about its economic utility. However, it is submitted that the indirect subsidies that are provided in the form of limited liability and suppliers’ liability by states to the nuclear industry cloud the analysis on the economic prudence of using nuclear power. Given the immense thirst for energy and limited financial resources in most developing countries103, policymakers have to exercise profoundly critical choices on the appropriate role for different sources of energy in their total energy matrix. Indirect subsidies can lead to sub-optimal decisions in this regard with monumental consequences for the lives of their citizens. In the simultaneous presence of enormous scarcity of energy and lack of resources in developing countries, such perverse decisions may have monumental impact on the lives of the poor. 96 M Faure and K Fiore, ‘An Economic Analysis of Nuclear Liability Subsidy’ (2009) 26 Pace Environmental Law Review 419, 435. 97 ibid 437. 98 In an oft-cited speech, Lewis L Strauss, the then Chairman of the United States Atomic Energy Commission, stated in 1953 that electricity would become too cheap to meter as a result of nuclear power. Lewis L Strauss, Speech to the National Association of Science Writers, New York City (16 September 1954). 99 John Deutch and others, The Future of Nuclear Power: An Interdisciplinary MIT Study (Cambridge 2003); MV Ramana, The Power of Promise: Examining Nuclear Energy in India (Penguin 2012). 100 Mark Cooper, ‘The Economics of Nuclear Reactors: Renaissance or Relapse?’ (2009) 35–7, accessed at http://nonuclear.se/files/cooper200906economics_of_nuclear_reactors.pdf. 101 A Grubler, ‘The Costs of the French Nuclear Reactor Scale-Up: A Case of Negative Learning by Doing’ (2009) 38(9) Energy Policy 5174. 102 BK Sovacool, Contesting the Future of Nuclear Power: A Critical Global Assessment of Atomic Energy (World Scientific 2011) 279. 103 See generally, Oxford Energy, Energy in Developing Countries (n.d.), accessed at www.energy.ox.ac.uk/energy-in-developing-countries/; US Congress, Office of Technology Assessment, Energy in Developing Countries, OTA-E-486 (US Government Printing Office 1991), accessed at www.princeton.edu/~ota/disk1/1991/9118/9118.PDF.

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338 Research handbook on law, environment and the global South

D. CONFLICT BETWEEN NUCLEAR LIABILITY LAW AND INTERNATIONAL ENVIRONMENTAL LAW Even as the historical origin and economic justification of the international liability regimes on nuclear damage merit scrutiny, it must also be appreciated that these regimes predated the emergence of the United Nations Stockholm Conference in 1972104 and the subsequent expansion of international environmental law.105 In this context, it is argued that many of the central principles of nuclear liability cannot be reconciled with norms of international environmental law. As is well known, the 1972 Stockholm Declaration and the Rio Declaration on Environment and Development of 1992 recognised that there was a human right to a healthy environment106 and affirmed that states have an obligation not to cause harm to the environment of another state or of the global commons.107 Further, the Rio Declaration espoused the goal of sustainable development which has become the organising conceptual framework for international dialogue on the environment for almost three decades now.108 While the content of this concept has been subject to contestation,109 one may find the essence thereof in the principles outlined in the Rio Declaration. The Rio Declaration recognised, among many others:110 (a) Intergenerational equity (Principle 3), (b) Integration of environmental protection in development process (Principle 4), (c) Use of the precautionary principle (Principle 15), (d) Internalisation of costs and Polluter-Pays Principle (Principle 16) and (e) Broad public participation including consultation and access to justice (Principle 10). These principles have formed the normative basis for development of law and policy on environmental concerns at the global level.111 Further, international judicial bodies have begun to increasingly refer to the concept or its components.112 The principle of sustainable development was recognised as an integral part of international law in the separate opinion of Vice-President Weeramantry in the International Court of Justice decision in Gabcˇíkovo Nagymaros Project 113 ‘by reason not only of its inescapable logical necessity, but also by reason of its wide and general acceptance by the global Declaration of the United Nations Conference on the Human Environment, Stockholm, 16 June 1972, UN Doc A/CONF.48/14/Rev.1 [hereafter Stockholm Declaration]. 105 Philippe Sands, Principles of International Environmental Law (Cambridge University Press 2003) 905–6. 106 Stockholm Declaration (n 104) Principle 1; and Rio Declaration on Environment and Development, 14 June 1992, UN Doc A/CONF.151/26/Rev. 1 (Vol. I), Annex II (1992), Principle 1 [hereafter Rio Declaration]. 107 Stockholm Declaration (n 104) Principle 21; and Rio Declaration (n 106) Principle 2. 108 David Hunter and others, International Environmental Law and Policy (Foundation Press 2006) 199. 109 Michael Jacobs, ‘Sustainable Development as a Contested Concept’ in Andrew Dobson (ed), Fairness and Futurity: Essays on Environmental Sustainability and Social Justice (Oxford University Press 1999) 24. 110 Hunter and others (n 108) 199–200. 111 Sands (n 105) 935–40. 112 Birnie and others (n 17) 126. 113 Gabcˇíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, 7. 104

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Nuclear energy and liability: an environmental perspective 339 community’.114 This principle has also been referred to by the African Commission on Human and Peoples’ Rights in The Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria.115 Further, the Inter American Commission on Human Rights too recognised the principle in Maya indigenous community of the Toledo District v. Belize.116 According to some scholars, recent state practices ‘demonstrate some sense of obligation for states to act in a manner consistent with sustainable development’s environmental principles’ and certainly evidence ‘an emerging rule of customary international law’.117 Yet an examination of the existing legal regimes on third party liability for nuclear damage reveals that they violate many of the key constitutive principles of sustainable development. Admittedly, some critical revisions have been made to the field of nuclear liability law in the aftermath of the development of environmental law. For example, neither of the first two conventions on civil liability for nuclear damage – the Paris Convention and the Vienna Convention – mentioned damage to environment as a ground for compensation and damages were mainly awarded for damage to persons and to property.118 However, in the aftermath of the Chernobyl accident and the Rio Declaration, a new Protocol amended the definition of damage to include the costs of measures of reinstatement of the impaired environment and the costs of preventive measures.119 Nonetheless, even after the amendment, compensation for damage to the environment itself is still not included within the ambit of liability law.120 These illustrate how nuclear liability law has been slow to adapt to the imperatives of international environmental law. Indeed, many of the fundamental principles of environmental law – most notably, the polluter-pays principle, inter-generational equity and access to justice – cannot be reconciled with the structure of liability regimes in the nuclear field. 1. Polluter-pays Principle Though this principle may elude a precise definition, there is agreement over its core precept that the person causing any environmental damage or creating a threat of such

ibid 94. The Social and Economic Rights Action Center and the Center for Economic and Social Rights v Nigeria, African Commission on Human and Peoples’ Rights, Comm. No. 155/96 (2001). 116 Maya indigenous community of the Toledo District v Belize, Case 12.053, Report No. 40/04, Inter-Am. CHR, OEA/Ser.L/V/II.122 Doc. 5 rev. 1 at 727 (2004). 117 SN Palassis, ‘Beyond the Global Summits: Reflecting on the Environmental Principles of Sustainable Development’ (2011) 22 Colorado Journal of International Environmental Law and Policy Review 41, 73. 118 Louise Angélique de La Fayette, ‘International Liability for Damage to the Environment’ in Malgosia Fitzmaurice and others (eds), Research Handbook on International Environmental Law (Edward Elgar Publishing 2010) 320, 343. 119 Protocol to Amend the Vienna Convention (n 40) art. 1(2); CSC (n 30) art. 1(6). 120 Fayette (n 118). 114 115

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340 Research handbook on law, environment and the global South damage should, in principle, bear the cost of the preventive or remedial measures.121 The Supreme Court of India further elaborated that the principle ‘extends not only to compensate the victim of pollution but also the cost of restoring the environmental degradation’.122 The underlying rationale is that the person who creates the risk and benefits the most should be held liable.123 Principle 16 of the Rio Declaration endorsed this principle by calling upon states to ‘promote the internalisation of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the costs of pollution’. The polluter-pays principle is backed by perspectives from law and economics too. By requiring polluters to pay for the environmental costs of their operations, it ensures internalisation of the environmental externalities. Consequently, the principle seeks to induce polluters to reduce their waste output and reduce the harmful effects of the waste they do produce. Further since such internalisation is transferred to the price of the goods, the polluter-pays principle can result in modification of consumer preferences.124 In other words, consumers would prefer environmentally safer products in their own self-interest due to the higher price of environmentally hazardous goods.125 However, it is submitted that the norms of limited liability and legal channelling of liability that are essential elements of nuclear liability regimes cannot be reconciled with the polluter-pays principle. Limited and exclusive liability of the operators shifts the costs of abating pollution away from other actors in the nuclear economic chain who may be polluters in certain cases. As such, they create disincentives against incorporation and application of safety standards by these actors. Thereby, the economic rationale of the polluter-pays principle is undermined. Critically, the caps on operator’s liability are, as per most estimates, utterly inadequate in comparison with the potential costs of a nuclear accident. A study commissioned by the US Nuclear Regulatory Commission in the 1980s had estimated that a nuclear meltdown could cause 50,000 fatalities and $314 billion in property damage.126 Belarus, just one of the many states affected by the Chernobyl disaster, had estimated the losses from Chernobyl to be around US$235 billion.127 Similarly, some observers have estimated the cost of remedial measures for the Fukushima nuclear

121 Jonathan Remy Nash, ‘Too Much Market? Conflict between Tradable Pollution Allowances and the “Polluter Pays” Principle’ (2000) 24 Harvard Environmental Law Review 465, 466. 122 MC Mehta v Union of India (1997) 2 SCC 353, 382 (Supreme Court of India). 123 Fayette (n 118) 327. 124 Barbara Luppi and others, ‘The Rise and Fall of the Polluter-Pays Principle in Developing Countries’ (2012) 32 International Review of Law and Economics 135–44. 125 Sharon Beder, Environmental Principles and Policies: An Interdisciplinary Introduction (University of New South Wales Press 2006) 33–4. 126 Steve Hargreaves, ‘Nuclear Industry Shielded from Big Disaster Costs’ CNN (25 March 2011), accessed at http://money.cnn.com/2011/03/25/news/economy/nuclear_accident_costs/ index.ht. 127 Chernobyl Forum, Chernobyl’s Legacy: Health, Environmental and Socio-Economic Impacts and Recommendations to the Governments of Belarus, Russian Federation and Ukraine (IAEA 2005) 33.

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Nuclear energy and liability: an environmental perspective 341 accident in 2011 to be approximately between US$100 billion and US$200 billion.128 While such a loss may not result from every nuclear accident, these estimates do provide an indication of the mammoth cost that a nuclear accident may potentially entail. When stacked against such massive human and economic costs, the liability caps appear insignificant. For example, the Paris Convention, as amended by the 2004 Protocol, places a cap of a mere €700 million. While there are additional tiers of compensation that would be available under the Brussels Protocol, they may still be insufficient. Faure and Fiore argue that the total available amount for compensation – both at national and supranational level – is strikingly low when pitted against the massive cost of a nuclear accident.129 Even under the CSC regime, the funds available at the supranational level from contributions from member states, given the meagre number of signatories to the convention, may turn out to be inadequate. Further, even if additional tiers of compensation paid by states prove to be sufficient, it is pertinent to note that the operators may not have to pay any substantial price for this state financing. Such governments-pay-for-pollution model,130 which the additional tiers of compensation at the national and supranational level represent, does not address or answer the argument related to the shift of liability away from the polluter and creation of a disincentive against preventive and operational safety. While the additional tiers may ensure adequate compensation for the victims, they fail to guarantee internalisation of the environmental costs of nuclear business by the operators. Thus, it is amply clear that due to their reliance on limited liability, international nuclear liability regimes are ill-equipped to deal with the potential magnitude of liability arising out of nuclear accidents and most directly violate the ‘polluters-pays’ principle. 2. Inter-generational Equity Inter-generational equity has also emerged as an inextricable part of sustainable development. It suggests that each generation must use and conserve ‘natural and cultural heritage in such a manner that they can be passed on to future generations in no worse condition than it was received’. While the practical and juristic implications of the concept are still being contested, some scholars believe that this concept is already a part of international law.131 At the same time, inter-generational equity has come to embody the philosophy that future impacts and concerns must be considered

Takaya Yamaguchi, ‘Bill for Japan’s Fukushima Clean-Up to Double to $201 Billions’ Reuters (30 November 2016), accessed at http://in.reuters.com/article/us-nuclear-fukushimacosts-idINKBN13P056 and James Conca, ‘After Five Years, What is the Cost of Fukushima’ Forbes (10 March 2016), accessed at www.forbes.com/sites/jamesconca/2016/03/10/after-fiveyears-what-is-the-cost-of-fukushima/#756cc5b76016. 129 Faure and Fiore (n 96) 444. 130 This formulation has been borrowed from Luppi and others (n 124). 131 Edith Brown Weiss, ‘Implementing Intergenerational Equity’ in Fitzmaurice and others (eds) (n 118) 110. 128

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342 Research handbook on law, environment and the global South by present generations in current developmental and institutional patterns as incontrovertible.132 As Edith Weiss observed: inter-generational equity ‘opens the possibility that all major policy decisions deserve to be scrutinized from the point of view of their impact on future generations’.133 When viewed from this angle, it is evident that nuclear liability regimes may not square up to the norms of inter-generational equity. As discussed earlier, every one of these regimes imposes a temporal limit of 30 years for claims with respect to human health and a limit of 10 years for other claims. The long temporal caps do take into account the possibility of long-term harm on future generations. However, in view of the prolonged and pervasive health and environmental effects of radiation, such limitation caps may not be long enough and may prejudicially affect the rights of future generations. Radiation exposure may not always produce immediate and obvious physical impairments and diseases may develop through chronic exposure to radiologically contaminated environments. Moreover, certain radioactive materials like caesium have a half-life as long as 30 years and scientific evidence does not preclude long-term and trans-generational injuries caused by exposure to radiation. Therefore, it is feared that even a 30-year time period may be too short for claims related to inter-generational injury and may deny reparations to a large number of victims.134 3. Access to Justice Access to justice is now seen as critical to averting environmental degradation. In fact, it has been argued that access to justice to defend environmental legal rights has become a customary norm of international law.135 As mentioned earlier, the right to access to justice for environmental harms has been recognised by Principle 10 of the Rio Declaration. It has also been recognised in treaty law through the Aarhus Convention of 1998.136 This principle involves equality of access to transboundary remedies and procedures, based on the principle of non-discrimination.137 Further, such equality of access must be guaranteed not only in its formal sense but also in institutional terms and must therefore be expeditious and inexpensive.138 In this regard, the norm of exclusive jurisdiction in nuclear law which requires that claims be instituted in the courts of the installation state arguably militates against effective equality of access. As shown by the Chernobyl incident, in which more than 100,000 square kilometres was contaminated with radioactive fall-out, a nuclear accident can affect a vast swath of territory. As a result, victims from distant states may not have the resources and the knowledge to institute a suit in the state of the nuclear installation. Birnie and others (n 17) 122. Weiss (n 131). 134 Currie (n 51) 93. 135 Nicholas A Robinson, ‘Ensuring Access to Justice through Environmental Courts’ (2012) 29(2) Pace Environmental Law Review 363, 365. 136 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, Aarhus, 25 June 1998, 2161 UNTS 447. 137 Birnie and others (n 17) 122. 138 Donald Anton and Dinah Shelton, Environmental Protection and Human Rights (Cambridge University Press 2011) 91. 132 133

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Nuclear energy and liability: an environmental perspective 343 Therefore, their right to access to judicial remedies may be curtailed in practice even in the absence of any formal impediment. In this section, I have argued that the vital elements of international law on nuclear liability – limited liability, channelling of liability through the operator and temporal limits on compensation – conflict with many emerging norms of international environmental law including the polluter-pays principle, inter-generational equity and access to justice. Moreover, the economic basis for these principles also appears suspect in view of the dispute around the real cost of nuclear energy. Therefore, the current nuclear liability regimes need a radical redefinition.

E. REORIENTING NUCLEAR LIABILITY In order to make the norms of nuclear liability at the international level more inclusive and protective of the interests of citizens of developing countries and reconciled with international environmental law, they would require considerable modification. It is proposed that any such new model of nuclear liability must necessarily provide for unlimited liability and right to recourse against the suppliers. 1. Unlimited Liability As discussed earlier, limited liability undermines the deterrent function of liability. It minimises the costs of accidents in relation to the costs of preventing them through safety measures and therefore increases the risk of an accident. Further, it is contrary to the principle of full compensation of victims.139 Therefore, it is imperative that the norm of limited liability be jettisoned. It is indeed possible that the consequent fear of financially incapacitating liability may deter investment since insurance cover may not be available for operators for the entire compensatory cost of a nuclear accident. However, it has been argued by some scholars that the link between availability of insurance cover and liability caps is questionable. Insurance cover is dependent not just on the liability exposure but on a variety of structural features of the insurance market.140 For example, Michael Faure asserts that unpredictability of risk is a greater barrier to insurability than the amount of damage.141 Even if unlimited liability does result in retraction of investors from the industry, instead of being viewed with alarm, such exit must be considered desirable from the prism of safety and environmental protection. Enhanced liability norms would weed out operators with weak safety profiles or those unable to bear the potential liability in case of an accident.142 As such, unlimited liability may generate greater confidence in safety 139 Michael Faure and David Grimeaud, ‘Financial Assurances Issues of Environmental Liability’ in Michael Faure (ed), Deterrence, Insurability, and Compensation in Environmental Liability: Future Developments in the European Union (Springer 2003) 192. 140 Louka (n 23) 86–9. 141 Faure and Grimeaud (n 139) 192–3. 142 Richard A Epstein, ‘BP Doesn’t Deserve a Liability Cap’ Wall Street Journal (16 June 2010), accessed at www.wsj.com/articles/SB10001424052748704312104575298902528808996.

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344 Research handbook on law, environment and the global South standards followed by the nuclear industry.143 Another marginal benefit of unlimited liability is that it would eliminate the need for periodic revisions of liability ceilings in order to take into account the cost of living adjustments and increases in estimated costs of environmental disasters.144 It is conceded that abolition of liability caps may indeed result in making nuclear energy costlier and, thus, make it particularly unattractive for resource-starved developing countries. However, such withdrawal of the subsidy that the liability cap connotes would allow for proper internalisation of all the costs of nuclear power. Thus, unlimited liability caps would further a more realistic appraisal of the costs and benefits of nuclear energy and promote its optimal and efficient use as a resource. It must be noted that some countries have already experimented with unlimited liability. The Austrian Atomic Liability Act 1999 does not provide any maximum liability caps. Germany has unlimited operator liability and requires €2.5 billion security which must be provided by the operator for each plant.145 Even the liability regimes for oil pollution which provide for limited liability remove the caps in certain circumstances. For example, the International Convention on Civil Liability for Oil Pollution Damage (CLC) which provides for limited liability as a general rule stipulates that ship-owners are not entitled to the liability cap where pollution damage results from an act or omission, committed with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result.146 While this provision does not jettison limited liability altogether, it is an example of partial incorporation of unlimited liability in international law. In fact, it is arguable that the current international nuclear liability law already provides ample space for unlimited liability. Pertinently, Article 3(1)(a)(i) of the CSC allows states to provide a higher amount of liability cap. As such, it does accord to states the flexibility to not have any liability cap.147 What has been left understated in the CSC must be explicitly articulated and emphasised as an indispensable pillar for a new framework of liability laws for nuclear damage. 2. Right of Recourse against Suppliers The second indispensable feature of the proposed regime for liability is the right of recourse against suppliers. It has been already established in this chapter that some of the economic benefits of exclusively channelling liability through the operator have 143 Dyna Tuytel and Patrick Dyke, ‘Encouraging Pollution: Perils of Liability Limits’ Environment Probe (8 April 2011), accessed at https://environment.probeinternational.org/2011/ 04/08/encouraging-pollution-perils-liability-limits/. 144 Faure and Grimeaud (n 139) 192–3. 145 World Nuclear Association (n 43). Japan and Switzerland are other major countries that have experimented with unlimited liability. See Nuclear Energy Agency and OECD, Japan’s Compensation System for Nuclear Damage (2012), accessed at www.oecd-nea.org/law/ fukushima/7089-fukushima-compensation-system-pp.pdf. 146 Oil Pollution Convention (n 73) art. V(2). 147 Ram Mohan MP, ‘Nuclear Liability Law of India: An Appraisal of Extent of Liability, Right to Recourse and Transboundary Applicability’ (2014) 17(1) Journal of Risk Research 115, 121.

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Nuclear energy and liability: an environmental perspective 345 been exaggerated. In addition, they leave suppliers with inefficient and sub-optimal incentives for compliance with safety standards. It also denies full compensation to victims who cannot claim damages from other parties who may have contributed to the loss. Since most of the developing countries who have invested in nuclear energy are purchasers of nuclear energy, such an exemption for suppliers places them in a position of disadvantage. In view of its history, its suspect economic rationale and its disproportionate impact on developing countries, complete exemption for suppliers must be reviewed. Not only will making the suppliers liable ensure a stronger incentive for more rigorous safety management across the entire economic chain, it would also ensure more effective redress for the victims from the operators. This is because operators would be in a better position and have more incentive to compensate injured plaintiffs if they were assured of payment of damages by actors further up the nuclear chain.148 It would also deter suppliers from dumping obsolete or suspect materials and technology on to developing countries seeking to generate nuclear energy. To the extent that there is a compelling interest in eliminating frivolous and opportunistic litigations against multiple actors in the nuclear chain, it may be advisable to retain the bar against suits against suppliers by victims. This would also ensure that the victims have a clearly identified actor to seek redress against and prevent operators from shifting responsibility to other parties. The Civil Liability for Nuclear Damage Act 2010 (CLNDA) of India is a very pertinent exemplar in this context.149 Section 17 of the Act grants, subject to certain conditions, the operators a right of recourse against suppliers after paying the compensation for nuclear damage.150 This provision allows recourse where the ‘incident has resulted as a consequence of an act of supplier or his employee, which includes supply of equipment or material with patent or latent defects’. It is submitted that replicating the principle espoused in section 17 of CLNDA would provide a more meaningful and effective recourse to operators against the suppliers. This would ensure that each party in the nuclear chain is held separately liable for its own contribution to the risk and thereby provide a more efficient allocation of incentives for safety management to different actors. Therefore, this provision can serve as a helpful starting point for reformulating the norms of suppliers’ liability and the right of the operators to have recourse. In view of India’s long history of reliance on civil nuclear energy as a developing country and its plans to import a large number of reactors,151 this provision on supplier’s liability can be an invaluable model to emulate.

Hariharan (n 58) 251. The Kerala High Court has also endorsed the constitutionality of this statute. Yash Thomas Mannully v Union of India 2015 SCC Online 25670. 150 CLNDA (n 3) s 17. 151 Mohan (n 6). 148 149

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346 Research handbook on law, environment and the global South

CONCLUSION This chapter has argued that international legal norms on liability for nuclear damage were framed in a specific historical juncture in order to facilitate the growth of the nuclear industry. Consequently, the interests of the nuclear industry have found much stronger resonance in these norms than the interests of the local communities, restitution for potential victims of a nuclear incident and protection of the global environment. Secondly, it has been argued that the economic justifications advanced in support of these norms are suspect and impede an objective assessment of the utility of nuclear power, especially in comparison with alternative sources of energy. The third major claim of this chapter posits that limited liability, legal channelling and temporal limits on liability – key elements of nuclear liability law – conflict with the fundamental principles of international environmental law. In view of the current position of most developing countries in the nuclear chain, these weaknesses in the nuclear liability regime may have a severely detrimental impact on the global environment and on citizens of developing countries, in particular. Therefore, there is need for a significant overhaul of the architecture of the nuclear liability law so as to ensure comprehensive internalisation of the environmental externalities by actors in the nuclear industry and catalyse stronger compliance with safety standards. Such realignment may certainly lead to an increase in cost of nuclear power and yet such upsurge in cost must be welcomed for it would truly reflect the cost of nuclear energy and allow states, especially cash-starved developing countries to arrive at a rational estimation of the role of nuclear power in their energy matrix.

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18. Realisation of the right to water: lessons from South Africa Michael Kidd

INTRODUCTION The classic Brundtland Commission notion of sustainable development entailed as one of its two core concepts that the basic needs of humanity must be met.1 One of the most basic of human needs is access to water, as it is trite that humans without access to any water will die within a few days. Access to water that is not suitable for drinking can lead to diseases – the World Health Organization states that 502 000 people die every year from the effects of drinking contaminated water2 – and an existence without adequate access to water can in no way be regarded as a dignified life. In 2010, the United Nations observed that at least 884 million people worldwide did not have access to improved drinking water, with millions more living in informal housing likely missing from this number.3 The link between poverty and access to water is well recognised by the same body, which states that ‘The roots of the current water and sanitation crisis can be traced to poverty, inequality and unequal power relationships, and it is exacerbated by social and environmental challenges: accelerating urbanization, climate change, and increasing pollution and depletion of water resources’.4 Transforming the World: The 2030 Agenda for Sustainable Development,5 the 2015 source document of the 17 Sustainable Development Goals (SDGs), recognised that ‘eradicating poverty in all its forms and dimensions, including extreme poverty, is the greatest global challenge and an indispensable requirement for sustainable development’.6 As pointed out above, poverty frequently goes hand in hand with inadequate access to water, which often further entrenches existing poverty and disempowerment.7 Improved access to water, therefore, is an important facet of poverty alleviation. One of the Sustainable Development Goals – Goal 6 – requires that we must ensure World Commission on Environment and Development, Our Common Future (OUP

1

1987). 2 World Health Organization, Drinking Water Fact Sheet (2018), accessed at www.who.int/ mediacentre/factsheets/fs391/en/. 3 United Nations, The Right to Water: Fact Sheet No 35 (2010), accessed at https://www. ohchr.org/Documents/Publications/FactSheet35en.pdf. 4 ibid. 5 UN General Assembly Resolution 70/1, Transforming our World: The 2030 Agenda for Sustainable Development, UN Doc. A/RES/70/1 (2015). 6 ibid 1. 7 See Michael Kidd, ‘The Right of Access to Water in South Africa’ in Yves le Bouthillier and others (eds), Poverty Alleviation and Environmental Law (Edward Elgar Publishing 2012) 52.

348

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Realisation of the right to water: lessons from South Africa 349 ‘availability and sustainable management of water and sanitation for all’. One of the specific targets falling under this Goal requires that, by 2030, universal and equitable access to safe and affordable drinking water for all must be achieved.8 The focus of this chapter is on the legal dimensions pertaining to the achievement of access to water. That water is a basic human need is incontrovertible, but whether there is a clear human right to water, from the perspective of international law, is not as clear. This will be considered briefly, followed by an examination of the right of access to water in one particular country, South Africa, which contains such a right in its Constitution. The study of South Africa will entail consideration of three separate (although interrelated) aspects of the achievement of the right: achievement of access to water where there was no such access before; deliberate restriction of the right of access to water; and restriction of the right to water that is not deliberate. These aspects are considered through the lens of applicable law, with a view to assessing challenges to the application of the law and possible gaps in the legal framework. It is beyond the scope of this chapter to provide answers to all the questions raised; rather the purpose is to highlight these as issues that have to be addressed in attempting to meet the right of universal access to water. The study is intended not to be a parochial study but to highlight legal challenges and possible solutions that would likely be faced in other developing countries facing similar situations to that in South Africa. It will be shown, not surprisingly, that law, as only one of the tools available in meeting the target of access to safe water for all, is unable alone to meet the challenge. One final preliminary note is that the focus of this chapter is specifically the right of access to water, and not sanitation, even though the two are closely related.

A. THE RIGHT TO WATER IN INTERNATIONAL LAW The recognition of the right to water in international law is not considered in detail here as it has been discussed admirably elsewhere,9 but it is somewhat surprising that access to water, a prerequisite for human existence, is not expressly recognised as a human right in the major international human rights instruments, such as the Universal Declaration of Human Rights,10 the International Covenant on Civil and Political Rights,11 and the Covenant on Economic, Social, and Cultural Rights.12 Target 6.1 in United Nations (n 3) 18. eg Stephen C McCaffrey, ‘The Human Right to Water’ in Edith Brown Weiss and others (eds), Fresh Water and International Economic Law (Oxford University Press 2005) 93; Stephen C McCaffrey, ‘The Human Right to Water: A False Promise’ (2016) 47 The University of Pacific Law Review 221; Anton Kok and Malcolm Langford, ‘The Right to Water’ in Danie Brand and Christof Heyns (eds), Socio-Economic Rights in South Africa (Pretoria University Law Press 2005) 191. 10 Universal Declaration of Human Rights, New York, 10 December 1948, UN Doc A/RES/217A. 11 International Covenant on Civil and Political Rights, New York, 16 December 1966, 999 UNTS 171. 12 International Covenant on Economic, Social and Cultural Rights, New York, 16 December 1966, 993 UNTS 3. 8 9

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350 Research handbook on law, environment and the global South In 2002, the UN Committee on Economic, Social, and Cultural Rights adopted General Comment No. 15 on ‘The right to water (Articles 11 and 12 of the International Covenant on Economic, Social, and Cultural Rights)’.13 The ‘first recognition of an independent and generally applicable human right to water’14 by a UN body, the General Comment is a reflection of the Committee’s interpretation of Articles 11 (dealing with the ‘right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions’) and 12 (the right of everyone ‘to the enjoyment of the highest attainable standard of physical and mental health’) of the Covenant. It is important to note that this interpretation is not binding, unless accepted by States parties, which has not yet happened on a general scale. It is beyond the scope of this chapter to consider the detail of the General Comment, but it requires, broadly, that everyone has ‘sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses’. Also noteworthy is that it exhorts countries with the means to ‘provide international assistance and cooperation, especially economic and technical which enables developing countries to fulfil their core obligations’.15 In 2010, both the United Nations General Assembly and the United Nations Human Rights Council adopted resolutions recognising the human right to water that were supported by most countries.16 As McCaffrey observes, however, there were several countries, particularly rich ones, that did not support the resolutions,17 casting doubt on the right’s universal acceptance (a prerequisite for acceptance as a norm of international customary law). In summary, then, the right to water is not yet universally accepted at international level and is consequently unlikely to be regarded as having become a customary norm of international law.18 It is, however, a right that has been adopted at domestic level in various countries, one of which is South Africa, to which attention now turns.

B. THE RIGHT TO ACCESS TO WATER IN SOUTH AFRICA Section 27(1)(b) of the 1996 Constitution of the Republic of South Africa provides that: (1) Everyone has the right to have access to sufficient food and water … (2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights. 13 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). 14 McCaffrey 2005 (n 9) 101. 15 UN Committee on Economic, Social, and Cultural Rights (n 13) 38. See also McCaffrey 2016 (n 9) 229. 16 UNGA Resolution – The Human Right to Water and Sanitation, UN Doc No A/RES/64/ 292 (3 August 2010); Human Rights Council Resolution – The Human Right to Safe Drinking Water and Sanitation, UN Doc A/HRC/151L.14 (24 September 2010). 17 McCaffrey (n 9) 227. 18 ibid 232.

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Realisation of the right to water: lessons from South Africa 351 Each right in South Africa’s Bill of Rights (Chapter 2 of the Constitution) ‘applies to all law, and binds the legislature, the executive, the judiciary and all organs of state’.19 Section 27 is one of the so-called ‘socio-economic rights’ in the Constitution, and even though these are legally justiciable, they are not rights that may be insisted upon immediately, but must be progressively realised, as indicated in section 27(1)(b)(2) quoted above. It is, of course, unrealistic to expect immediate realisation of the right: as McCaffrey observes, No government can immediately turn on the tap for each and every unserved person in the country. The infrastructure involved in making this possible is enormous and expensive.20

The approach to progressive realisation accepted by the Constitutional Court is set out in Grootboom,21 where Yacoob J stated (in relation not to the right to water, but to the right to housing): The State is required to take reasonable legislative and other measures. Legislative measures by themselves are not likely to constitute constitutional compliance. Mere legislation is not enough. The State is obliged to act to achieve the intended result, and the legislative measures will invariably have to be supported by appropriate, well-directed policies and programs implemented by the Executive. These policies and programs must be reasonable both in their conception and their implementation. The formulation of a program is only the first stage in meeting the State’s obligations. The program must also be reasonably implemented. An otherwise reasonable program that is not implemented reasonably will not constitute compliance with the State’s obligations.22

Moreover, programmes adopted to fulfil the right must be ‘balanced and flexible’.23 In Grootboom, the Constitutional Court adopted this so-called ‘reasonableness approach’ as an alternative to the ‘minimum core’ approach to progressive realisation, which requires adoption of a minimum acceptable achievement of the right which the government is required to furnish. This approach was confirmed in the principal Constitutional Court decision on the right of access to water, Mazibuko v City of Johannesburg.24 Here, O’Regan J for a unanimous court characterised the appellant’s argument that the Court should determine a quantified amount25 of water as ‘sufficient water’ within the meaning of section 27 of the Constitution26 as a ‘minimum core’ argument and rejected it for two reasons: first, on the basis that the text of the Constitution (section 27(2)) does not require immediate realisation of the right, which means that the fulfilment of the right depends on context. Constitution of the Republic of South Africa 1996, section 8. McCaffrey 2005 (n 9) 98. It should be noted that ‘turning on the tap’ is the final destination in a long journey of infrastructural development and, in many regions in many countries, provision of piped water would not be a policy outcome that is seen as feasible in the short term, and other means of realising the right would have to be pursued. 21 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC). 22 ibid 42. 23 ibid 43. 24 Mazibuko v City of Johannesburg 2010 (4) SA 1 (CC), paras 51–62. 25 The appellants argued that this amount ought to be 50 litres per person per day. 26 Mazibuko v City of Johannesburg (n 24) para 44. 19 20

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352 Research handbook on law, environment and the global South Second, the courts are not institutionally appropriate bodies to determine ‘precisely what the achievement of any particular social and economic right entails and what steps government should take to ensure the progressive realisation of the right’.27 It is, however, appropriate for the legislature and executive to make such determinations. Before examining the legislative and executive efforts adopted in South Africa to realise the right of access to water in South Africa, it would be instructive to consider, in broad statistical terms, the progress that has been made in relation to access to water in the country since the onset of democracy in 1994. In 1997, the White Paper on a National Water Policy for South Africa28 observed that between 12 and 14 million South Africans (out of a total population at the time of about 40 million – amounting to between 30 and 35 per cent) were without access to safe water and over 20 million (more than 50 per cent) were without adequate sanitation.29 The vast majority of these were black people, mainly living in peri-urban and rural areas. The White Paper specifically noted the impact of this on women, many of whom spent a lot of time and effort on fetching water, and children, many dying from avoidable diseases resulting from inadequate sanitation.30 The 2015 ‘Strategic Overview of the Water Sector in South Africa’31 an ongoing comparison of basic water supply progress, as indicated in Table 18.1. Table 18.1 Basic water supply progress in South Africa32 1994

2001

2011

2014

DWS

DWS

Stats SA

Stats SA

Households (HH) million

8.66

11.52

14.45

15.6

HH below basic (million)

3.89

3.07

2.16

Source of data

HH below basic (%) HH equal to or above basic (million) HH equal to or above basic (%)

33

44.9 4.77 55.1

26.7 8.44 73.3

34

2.20

15.0

14.1

12.29

13.40

85.0

85.9

ibid para 61. Department of Water Affairs and Forestry (DWAF), ‘White Paper on a National Water Policy for South Africa’ (April 1997). 29 ibid 15. 30 ibid. 31 Department of Water and Sanitation (DWS), Strategic Overview of the Water Sector in South Africa (Government of the Republic of South Africa 2015). 32 ibid 29. 33 The national government department currently known as Department of Water and Sanitation (DWS) has previously been known as Department of Water Affairs and Forestry and then Department of Water Affairs. 34 Stats SA refers to Statistics South Africa. 27 28

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Realisation of the right to water: lessons from South Africa 353 In the table, ‘basic’ refers to a basic household water supply as defined in the Strategic Framework for Water Services35 as either 25 litres per person per day, or 6000 litres per household per month, supplied in accordance with the following criteria: a minimum flow rate of not less than 10 litres per minute; within 200 metres of a household; interruptions of less than 48 hours (at any one time) and a cumulative interruption time year of less than 15 days/year; and a potable standard. The data in the above table was initially (1994 and 2001) sourced from the Department of Water Affairs (DWA),36 and was based on infrastructure provided. The data in 2011 and 2014, taken from Stats SA, measures functioning infrastructure. Various causes, mainly lack of maintenance, have caused some schemes to become non-functional. This explains why the number of households below the basic level increased between 2011 and 2014.37 The document also states that an amendment (apparently planned although not yet promulgated) to the definition of basic water supply, to a yard or house connection (as opposed to a supply within 200 metres of the dwelling), will reduce the above 2014 value of 85.9 per cent to 75 per cent. And if reliability or assurance of supply were to be included, then the above 2014 progress figure of 85.9 per cent would drop to about 66 per cent.38 In 2014, 75 per cent of households in South Africa either had a tap in their house (48 per cent) or in their yard (27 per cent).39 These figures indicate that substantial success has been achieved by the government in rolling out access to water to the South African population, but it is clear that there are still segments of society whose section 27 right has yet to be fulfilled, and some whose right has been fulfilled in the past but who, for whatever reason, have subsequently been deprived of that right. In order to appreciate what is required of the government in realising this right completely, it is necessary to consider in some detail the challenges involved. Before doing so, however, we will consider the legislative and policy framework within which the government is attempting to fulfil the right of access to water in South Africa. 1. Legislative and Policy Framework in South Africa Whereas management of water generally is a national competence in terms of the Constitution, a municipality has executive authority in respect of, and has the right to administer, inter alia, water and sanitation services limited to potable water supply systems and domestic waste-water and sewage disposal systems.40 In other words, the 35 DWAF, Strategic Framework for Water Services (Government of the Republic of South Africa 2003). 36 This department will be referred to in this chapter as DWA despite changes in nomenclature from time to time, see (n 33). 37 DWS (n 31) 29. See discussion below at section C.1. 38 ibid. The document observes that a combination of requiring a yard connection and reliability could possibly lower the 2014 progress value to about 55 per cent, but this is yet to be definitively determined. 39 ibid. 40 Constitution of the Republic of South Africa, 1996, section 156(1) read with Part B of Schedule 4.

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354 Research handbook on law, environment and the global South fulfilment of the right of access to water is a local government responsibility, certainly at the point of the consumer. At the time of writing, water resources management generally is regulated by the National Water Act (NWA),41 which is relevant to the provision of water services in relation to ensuring that there are sufficient water resources of an acceptable quality in order for water services to be provided to people. The provision of water services, on the other hand, is governed by the Water Services Act (WSA).42 The WSA defines a ‘water services authority’ as any municipality, including a district or rural council … responsible for ensuring access to water services’; and a ‘water services provider’ is any person who provides water services to consumers or to another water services institution.43 In practice, most water services providers are water services authorities, in other words, municipalities. This means that the provision of water services, and the realisation of the right of access to water, is by and large a function of the local sphere of government.44 The Act, reflecting the right in section 27 of the Constitution, provides in section 3 that everyone has a right of access to basic water supply and basic sanitation;45 every water services institution must take reasonable measures to realise these rights;46 every water services authority must, in its water services development plan, provide for measures to realise these rights;47 and the rights mentioned in section 3 are subject to the limitations contained in the Act.48 The Act also provides in section 4 for conditions for the provision of water services, which must be set by each water services provider. These include conditions relating to the technical conditions of existing or proposed extensions of supply; the determination and structure of tariffs and conditions for payment; the circumstances under which an institution may, and procedures for, limit or discontinue water services; and measures to promote water conservation and demand management. Section 9 provides for the power of the Minister to prescribe, from time to time, compulsory national standards relating to water services, which are binding on all water services institutions. According to the Strategic Framework for Water Services (SFWS),49 it is the responsibility of a water services authority to ensure that ‘adequate and appropriate investments are made to ensure the progressive realisation of the right of all people in its area of jurisdiction to receive at least a basic level of water and sanitation services’. The WSA defines ‘basic water supply’ as ‘the prescribed minimum standard of water supply services necessary for the reliable supply of a sufficient quantity and quality of water to households, including informal households, to support life and personal National Water Act 36 of 1998. Water Services Act 108 of 1997. 43 ibid, section 1. 44 South Africa’s Constitution provides for three spheres of government that have their own Constitutionally defined responsibilities: national, provincial and local. 45 WSA (n 42) section 3(1). 46 ibid section 3(2). ‘Water services institutions’ include water services authorities, water services providers, and water boards, which provide bulk water to water services providers. 47 ibid section 3(3). 48 ibid section 3(4). 49 DWAF (n 35). 41 42

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Realisation of the right to water: lessons from South Africa 355 hygiene’.50 Regulations relating to compulsory national standards and measures to conserve water were made in 2001.51 According to regulation 3(b), a minimum standard for basic water supply is a minimum quantity of potable water of 25 litres per person per day or 6 kilolitres (kl) per household per month (i) at a minimum flow rate of not less than 10 litres per minute; (ii) within 200 metres of a household; and (iii) with an effectiveness such that no consumer is without a supply for more than seven full days in any year. In September 2017, national norms and standards for domestic water and sanitation services were published.52 They are intended to operate in conjunction with the 2001 regulations mentioned above. The norms and standards are seen as necessary in order to avoid a ‘one size fits all’ approach to the provision of water and sanitation services and provide for a ladder-type system where people progress from the most basic level of services to the top of the ladder, which is regarded as ‘full services’. The norms and standards provide for the acceptable level of service at each level: intermittent; free basic; basic; basic plus; intermediate; upper; and full. The document also recognises that there are people who do not fall within any of these categories but have no service. These are to be the ‘primary focus’ of service providers in the provision of a minimum level of service in order to meet the SDGs’ goal of access to water for all by 2030. The basic requirement of 25 litres per person per day (lcd), provided for in the 2001 regulations, has not been changed, but the ladder system in the norms and standards document shows how the basic level may be built upon. The norms and standards recognise that there may be interruptions in water supply, and provide for specified access to water services for both interim measures – ‘a temporary water supply service [which] … should provide, within reasonable walking distance, water of an adequate quality from a health point of view’, while repairs and/or reconstruction of a water services failure/interruption/breakdown are in effect – and emergency measures – ‘aimed at meeting displaced people’s need for potable water for drinking and hygiene within 24 hours of the onset of a sudden or declared emergency or disaster situation and for as long as the situation persists’. The latter does not include a ‘slow onset’ disaster situation such as drought. In addition to the legislation outlined above, there are some important policy dimensions in relation to access to water services, possibly the most prominent of which is the free basic water (FBW) strategy.53 The main idea of this strategy is to provide FBW to those consumers who are unable to afford paying for water. A variety of methods of subsidising this are discussed in the strategy: in practice, several municipalities have provided FBW to all consumers (and thus avoided the administrative costs of differentiating between those who can and cannot afford to pay),

WSA (n 42) section 1. DWAF, Regulations Relating to Compulsory National Standards and Measures to Conserve Water, GN R509 GG 22355 (8 June 2001). 52 Department of Water and Sanitation, National Norms and Standards for Domestic Water and Sanitation Services, GN 982 in GG 41100 (8 September 2017). 53 DWAF, Free Basic Water Implementation Strategy (Pretoria 2002). 50 51

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356 Research handbook on law, environment and the global South subsidising this by means of higher tariffs for amounts of water above the basic level;54 whereas others have provided FBW only to those who qualify as indigent according to whatever criteria the provider uses (and some have not implemented it at all).55 What appears above is a description, without analysis, of the main features of the legislative and policy framework in South Africa. The adequacy of this framework in relation to the right of access to water in section 27 is considered in the discussion below of a variety of challenges that exist in relation to provision of water services in South Africa, most of which are likely not to be unique to this country but faced in developing countries generally. The challenges will be analysed under three headings: achievement of access to water where there was no such access before; deliberate restriction of the right of access to water; and restriction of the right to water that is not deliberate.

C. CHALLENGES TO ACHIEVEMENT OF THE RIGHT OF ACCESS TO WATER IN SOUTH AFRICA 1. Access to Water where there Was No Access Before As the figures above show, about 14 per cent of South African households in 2014 did not have access to a basic water supply. These people either have to use water from natural sources that is often of dubious quality and not treated or have to travel some distance to fetch water from a source of (mostly) reliable quality, which is not only inconvenient but often exposes them to risks to their personal security. This ‘backlog’, as it is referred to in South Africa, is found mainly in municipal areas that are ‘largely rural in nature and chiefly within “old homelands” areas’,56 meaning that historically these are areas that have suffered chronic underfunding and are consequently short of financial and other resources. Not surprisingly, one of the main reasons for the absence of water services in these areas is due to resource constraints. Lack of resources is not the only problem. In 2014, the Department of Cooperative Governance and Traditional Affairs found that a third of municipalities were [f]rankly dysfunctional, and significant work is required to get them to function properly. Among others we find endemic corruption, councils which don’t function, no structured

The City of Johannesburg was one of these. In 2017, the City announced that it would be departing from this approach and providing only indigent persons with FBW: Kaveel Singh, ‘Free Water Limited to the Indigent: City of Johannesburg’ News24 (4 July 2017), accessed at www.news24.com/SouthAfrica/News/free-water-limited-to-the-indigent-city-of-johannesburg20170704. 55 Jackie Dugard and others, ‘Determining Progress on Access to Water and Sanitation: The Case of South Africa’ in Malcolm Langford and Anna FS Russell, The Human Right to Water: Theory, Practice and Prospects (Cambridge University Press 2017) 259–61. 56 DWS (n 31) 29. For examples, see Dugard and others (n 55) 244. 54

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Realisation of the right to water: lessons from South Africa 357 community engagement, and poor financial management leading to continuous negative audit outcomes … [and] a poor record of service delivery.57

This highlights the frequent lack of appropriate human resources in the governance of many municipalities,58 and also lack of sufficient oversight by other spheres of government, despite the fact that this is provided for in the Constitution.59 Even if municipal governance is cleaned up, progressive realisation of the right to water in these areas will require resources that are often beyond the capability of these municipalities. Although there is finance provided to municipalities from national government,60 this is probably insufficient for many of the poorer municipalities,61 and it is probably necessary for this funding to be increased significantly, and to be targeted for provision of water services, if the backlog is to be meaningfully addressed. This indicates that appropriate law is not enough to ensure access to water – the resources (financial, skills, and otherwise) necessary for provision of water services are often the major stumbling block. A further problem that has been identified is the provision of water to people living in informal dwellings, which is a feature of numerous developing countries. In South Africa in 2016, 13.9 per cent of South Africans lived in informal dwellings.62 Many of these are in informal settlements in urban areas and it is difficult for water service providers to provide water services to these communities because of their (perceived) temporary nature, their location (often in areas that are inaccessible and/or difficult to connect to infrastructure) and other reasons. This challenge demonstrates how the provision of water services is often closely linked with the provision of housing and issues of land tenure. Policy alignment is therefore an important component of provision of water services, and fulfilment of socio-economic rights generally. Progressive realisation is particularly important in relation to those who do not have access to water, and this is, not surprisingly, the policy priority in relation to achievement of the Sustainable Development Goals.63 It must be borne in mind, though, that progressive realisation of levels of access to water above the basic minimum is also something that must be incorporated in plans to provide access to water. While there are still major strides to be made in relation to providing access to water to those who have not yet had such access, there are also problems in South Africa in relation to interruption or limitation of existing water services, which frequently go beyond tolerable levels. 57 Department of Cooperative Governance and Traditional Affairs, Back to Basics: Serving Our Communities Better! (Department of Cooperative Governance and Traditional Affairs 2014) 4.5. See also Dugard and others (n 55) 267. 58 See also Dugard and others (n 55) 267. 59 ibid 255. 60 Municipalities receive a Municipal Income Grant and an amount known as the Equitable Share from national government. 61 Dugard and others (n 55) 256. 62 Statistics South Africa, ‘General Household Survey 2016’ (Statistics South Africa, Statistical Release P0318 2017) 30. 63 Department of Water and Sanitation (n 52) 20.

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358 Research handbook on law, environment and the global South It is internationally recognised that, in relation to human rights, the principle of non-regression applies. This means that, once a right has been fulfilled, it is legally unacceptable for such right to be withdrawn or limited. In the South African context, once access to water has been provided, progressive realisation only applies in relation to improving the level of service.64 Limitation of the existing right of access may only be justified in terms of section 36 of the Constitution, which provides that a right in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including – (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose.65

Limitations to the right of access to water do happen in various circumstances, so these must be considered in the light of this Constitutional injunction and relevant provisions relating to limitation of water services in the WSA. 2. Deliberate Restriction of the Right to Water The deliberate restriction of existing water services occurs in two broad sets of circumstances – for operational/maintenance purposes; and as a result of non-payment for services. These are considered separately. Restriction of water services for operational purposes From time to time, infrastructural repairs or upgrades will have to be made, often necessitating interruptions in water supply. The Act provides for ‘limitation or discontinuation’ of water services, stating that:66 Procedures for the limitation or discontinuation of water services must(a) be fair and equitable; (b) provide for reasonable notice of intention to limit or discontinue water services and for an opportunity to make representations, unless – 64 There has been some debate about whether section 27(1) can be regarded as a self-standing right independent of the modifier (requiring progressive realisation) in section 27(2). Constitutional Court dicta suggesting the opposite must be considered in the context in which they were made (the right not having been fulfilled) and there is compelling argument to suggest that, once a section 27 right has been fulfilled, it is then not subject to the condition of progressive realisation. See Michael Kidd, ‘Not a Drop to Drink: Disconnection of Water Services for Non-Payment and the Right of Access to Water’ (2004) South African Journal on Human Rights, 119. 65 Constitution of the Republic of South Africa 1996, section 36(1). 66 ibid section 4(3).

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Realisation of the right to water: lessons from South Africa 359 (i) other consumers would be prejudiced; (ii) there is an emergency situation; or (iii) the consumer has interfered with a limited or discontinued service; and (c) not result in a person being denied access to basic water services for non-payment, where that person proves, to the satisfaction of the relevant water services authority, that he or she is unable to pay for basic services.

These are applicable to limitations for maintenance purposes, although some of the provisions deal with disconnection for non-payment, which is discussed below. Planned interruption of water services requires reasonable notice, which may be provided in a way that is not unduly onerous on the water services provider (as procedural fairness is variable in terms of section 3 of the Promotion of Administrative Justice Act 3 of 2000). Regulation 4 of the Regulations relating to compulsory national standards and measures to conserve water is applicable to interruptions, providing that a water services institution must take steps to ensure that where the water services usually provided are interrupted for a period of more than 24 hours for reasons other than those contemplated in section 4 of the Act, a consumer has access to alternative water services comprising (a) at least 10 litres of potable water per person per day; and (b) sanitation services sufficient to protect health. It appears that the ‘reasons contemplated in section 4 of the Act’ refer to disconnection for non-payment. Alternative services are usually provided by water tankers. The 2017 norms and standards require emergency water supply to be of appropriate quality, but this has not always been the case: in 2014, allegations were made that water tankers, hired to provide water in the Ngaka Modiri Molema municipality in the North West in 2014, after the regular service broke down, provided water sourced direct from a stream just below a malfunctioning water treatment plant. This was alleged to be the cause of the deaths of several infants in the area.67 While planned limitations sometimes take longer than initially intended, these tend not to have been as problematic as disconnections for non-payment. Disconnection for non-payment Disconnection for non-payment for water services is one of the most controversial aspects pertaining to fulfilment of the right of access to water in South Africa. The provision of water services costs money, involving treatment (basic water services in South Africa entail potability) and reticulation infrastructure, both the installation/ construction expenditure and operational and maintenance costs. In South Africa, consumers pay for water services, and water services providers set applicable tariffs. At first glance, this would appear to be prejudicial for those who are not able to afford paying for water, but this is (purportedly) addressed by the provision of FBW in accordance with the FBW policy outlined above. Municipal by-laws usually provide for the power to disconnect consumers’ water services in the case of non-payment of water accounts. The connection is restored once 67 Niki Moore, ‘North West’s Water Contamination: A Dark Story of Lost and Ruined Lives’ Daily Maverick (9 July 2014), accessed at www.dailymaverick.co.za/article/2014-07-09north-wests-water-contamination-a-dark-story-of-lost-and-ruined-lives/#.Wj4sJjdLfIU.

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360 Research handbook on law, environment and the global South payment is made, but this is problematic in the case of those who are unable to pay. Section 4(3)(c) of the WSA provides that procedures for the limitation or discontinuation of water services must not result in a person being denied access to basic water services for non-payment, where that person proves, to the satisfaction of the relevant water services authority, that he or she is unable to pay for basic services. How this is done will depend on the municipality’s procedures,68 and ought to be addressed during the procedural fairness process preceding disconnection. Despite the paper protection of section 4(3)(c), in reality many consumers have their supplies disconnected despite being unable to afford the costs of water.69 The application of section 4(3)(c) would (ideally) apply in the position when consumers are billed after consumption, allowing the procedurally fair process envisaged by the Act to take place. The position is significantly complicated, however, in the case of prepayment meters (PPM). In the case of those persons receiving FBW, the PPM operates by providing the relevant amount (6 kl per household per month) and then switching off before reactivation by means of a prepaid card. The advantage of this method over the billing approach is a reduction in the administrative burden. The problem, however, is that consumers who are unable to pay are then effectively without access to water until the supply resumes at the beginning of the following month. The effect is that a consumer may be without water for several weeks at a time, particularly where the household size is larger than the norm (discussed further below). This was the issue in the famous Mazibuko case,70 where the City of Johannesburg installed prepayment meters in the Phiri district of Soweto, one of the poorest areas in the township. The residents there had previously had access to unlimited water, for which they had not paid. While that state of affairs is clearly unsustainable, the problem with the solution of PPMs, installed at considerable expense, was that indigent consumers whose consumption exceeded 6 kl would be deprived of access to water for significant portions of each month. Part of the reason for this is that the 6 kl amount is calculated on the basis of the 25 lcd provided for in the 2001 regulations71 for eight persons per household. Leaving aside for now the question of whether 25 lcd is sufficient (this is discussed later), the 6 kl allowance provides more than the basic level if the household size is smaller than eight (the average household size is just over three). In poorer areas, however, such as in Phiri, there are often more than eight people living on a particular plot (stand)72 (in the case of some of the applicants in the Mazibuko case, there were 20 people living on a plot) and each person would then receive less than the basic level of water if relying only on FBW. 68 There are several potential (and real) problems in relation to demonstrating indigency and/or being registered as such with the municipality including no uniform standard for indigency. See Dugard and others (n 55) 262–4; Cristy Clark, ‘Trans-Jurisdictional Water Governance and Implementing the Human Right to Water in South Africa’ in J Gray and others (eds), Trans-Jurisdictional Water Law and Governance (Earthscan 2016) 290. 69 Clark (n 68) 288. 70 Mazibuko v City of Johannesburg (n 24). 71 DWAF (n 51). 72 The norm would be one household (dwelling) per plot, but there is often more than one family living in a dwelling and often more than one dwelling on a plot – particularly in poorer areas.

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Realisation of the right to water: lessons from South Africa 361 One of the arguments raised in Mazibuko was that the use of PPMs did not allow for procedural fairness as required by section 4(3) of the WSA, but the Constitutional Court held that the section regulates the circumstances where a water service provider intends to implement a permanent discontinuation or limitation of the water service. It does not apply to a discontinuation or limitation that may be undone by the purchase of prepayment vouchers or the renewal of the basic water supply at the end of every month.73 This conclusion was based on an interpretation of the term ‘discontinuation’ that suggested permanence, but it is perfectly clear that ‘limitation’ does not (necessarily) mean a permanent limitation. The fact that PPMs did not fit within the ambit of section 4(3) could be interpreted in either of two ways: it does not apply to PPMs (which is the approach the Court took) or that the section did not allow the use of PPMs if they did not permit procedural fairness in the limitation of the water supply, the preferable approach as far as respect for the poor’s right to water is concerned. Another argument raised in the Mazibuko case was that the FBW policy of the City was unreasonable because it was based on a household allowance instead of a per person allowance. As indicated above, in the case of large households, the household approach would result in persons receiving less than 25 lcd. The Court relied on evidence of the City that determining how many persons there were per household would be administratively burdensome. This was accepted completely uncritically by the Court, which decided against the applicants on the basis of the unacceptable administrative burden. If the right of access to water were to be taken seriously, much closer scrutiny of the administrative burden on the City ought to have been carried out, bearing in mind that the trade-off was that people would be deprived of the right of access to water for significant periods of time. It is not possible here to provide a solution for the unacceptable impact that disconnections of water supply have on those unable to pay, but the discussion above indicates that the status quo is severely prejudicial to many people. Part of the solution may involve a reconsideration of what an acceptable basic amount of water is (discussed below), but it certainly requires careful consideration of aspects such as tariffs and their progressive increments, cross-subsidisation, procedural fairness and so on. It may well also require review of assumptions relating to water tariffs for commercial and industrial users and investor attractiveness. It would also seem necessary that one-size-fits-all approaches to FBW are not conducive to universal respect of the right of access to water. This is the case in at least two ways: first, the basic amount of water regarded as sufficient must depend on context (for example, a consumer who has waterborne sanitation compared with one who does not); and approaches to the provision of FBW that are based on a fixed household size are prejudicial to households with large numbers (many of which are poor households).

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362 Research handbook on law, environment and the global South 3. Restriction of the Right to Water that Is Not Deliberate There are broadly three sets of circumstances that could lead to a restriction that is not deliberate. The first, which unfortunately arises too frequently in South Africa, is due to the water services infrastructure not being operated or maintained properly. The second scenario is an unexpected emergency situation. The third is a so-called ‘slow onset’ situation of drought, which is usually not completely unexpected and is often not only foreseeable but also foreseen. These three sets of circumstances will be examined separately. Infrastructural breakdown Examples of severe breakdowns in water supply (and sanitation) services throughout the country are legion.74 This explains how the number of households with access to basic water declined between 2011 and 2014. According to the South African Human Rights Commission:75 At least 26 per cent (3.8 million) of households within formal areas have sanitation services which do not meet the required standards due to the deterioration of infrastructure caused by lack of technical capacity to ensure effective operation, timeous maintenance, refurbishment and/or upgrading, pit emptying services and/or insufficient water resources.

It also noted that: A key issue with access to water is the poor quality of infrastructure. In some cases, the infrastructure that is provided was broken or dysfunctional. In other cases, those businesses

74 See, eg, Anonymous, ‘Water Crises in N West, Mpumalanga Towns’ News24 (1 March 2013), accessed at www.news24.com/SouthAfrica/News/Water-crises-in-N-West-Mpumalangatowns-20130301. This article quotes an engineer from the Council for Scientific and Industrial Research (CSIR) as saying that ‘ongoing severe water shortages in Ermelo, Lichtenburg, Middleburg, Kriel, Delmas and Lydenburg could be attributed to a lack of expertise, poor maintenance of infrastructure and an absence of political will to maintain existing systems’; Sarah Wild, ‘Rhodes “On the Brink of Closure” Due to Lack of Water’ Mail & Guardian (14 August 2013), accessed at https://mg.co.za/article/2013-08-14-rhodes-on-the-brink-of-closuresays-vice-chancellor (this refers to Rhodes University, situated in Grahamstown in the Eastern Cape, where for several years there were frequent interruptions of water supply due to ageing infrastructure (water pumps) that needed replacement); Rebecca Davis and Thapelo Lekgowa, ‘Dying for Water in Brits: Protestors’ Blood Flows Again’ Daily Maverick (14 January 2014), accessed at www.dailymaverick.co.za/article/2014-01-14-dying-for-water-in-brits-protestors-bloodflows-again/#.WjwzVjdLfIU; Melissa Fourie, ‘Three Infants Die from Polluted Water in Northwest: Justice Must be Done’ GroundUp (9 June 2014), accessed at www.groundup.org.za/ article/three-infants-die-polluted-water-northwest-justice-must-be-done_1864/; Anonymous, ‘Pietermaritzburg: One Working Tap for an Entire Community’ Water Online (15 September 2017), accessed at www.waterafrica.co.za/index.php/features/water-usage/58-pietermaritzburg-oneworking-tap-for-an-entire-community. 75 South African Human Rights Commission (SAHRC), Report on the Right to Access Sufficient Water and Decent Sanitation in South Africa: 2014 (SAHRC 2014) 13.

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Realisation of the right to water: lessons from South Africa 363 contracted to provide infrastructure, did not deliver on their contracts or delivered in a manner which did not uphold human rights.76

In some cases, infrastructure was constructed but apparently never became operational.77 In a 2017 report, the South African Institution of Civil Engineering observed that:78 Budgeting and spending on maintenance, rehabilitation and expansion remains inadequate for water supply in all areas. Damage caused by increased service delivery protests in urban and rural areas diverts funding from maintenance and expansion budgets. Consequently, given continually growing demands, communities face increasing risk of supply failures.

The 2017 Norms and Standards for Domestic Water and Sanitation Services79 require that water services authorities ‘shall commit to rectifying [a] disruption/breakdown within 48 hours’ and that a ‘disruption/breakdown shall not last longer than 7 days’. Also, ‘unplanned interruptions/breakdowns to the services shall be prevented’. Although these norms and standards are legally binding, experience and knowledge of the finance required to deal with infrastructural shortcomings suggests that these may turn out to be merely aspirational. The Department of Performance Management and Evaluation (DPME) in 2014 estimated that, based on 2011 pricing, ‘an amount of R44.75 billion is required to provide basic services to the un-served (R13.5 billion) and to refurbish and upgrade existing infrastructure (R31.25 billion)’.80 Restriction in water supply due to infrastructural breakdown is a particularly egregious contravention of the right to water because it is retrogressive and avoidable. In order to address this problem, however, considerable amounts of finance are required, which obviously cannot be guaranteed by applicable legal provisions. Although the enforcement of the relevant norms and standards is important in order to avoid disruption to water services of this type, it is finance and proper governance that are the biggest obstacles to existing access to water being maintained. Unexpected emergency situation Water services may sometimes be affected by an unexpected emergency situation. The best example of this in recent times is the contamination of the water source of Carolina, a town of approximately 17 000 inhabitants in Mpumalanga province. On 12 January 2012, residents discovered that their water was undrinkable and burned the

ibid 14. SAHRC (n 75) 53. 78 South African Institution of Civil Engineering (SAICE), 2017 Infrastructure Report Card (SAICE 2017). 79 Department of Water and Sanitation (n 52) 27. 80 SAHRC (n 75) 13. 76 77

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364 Research handbook on law, environment and the global South skin,81 soon ascertaining that the dam that supplied the town’s water, the Boesmanspruit Dam, had been contaminated by what turned out to be acid mine drainage.82 The town was without a water supply for several months, with water being brought in by tanker from neighbouring towns and many inhabitants using water from the local mosque’s borehole.83 A court application arising from this situation, the Federation for Sustainable Environment case,84 requested the national DWA, provincial government (Mpumalanga) and various local government authorities responsible for the town’s water supply to provide a temporary water supply in accordance with the 2001 regulations; and that the respondents must engage meaningfully with the applicants regarding the steps being taken in this regard. Full discussion of the case is not possible in this chapter,85 but there is one aspect requiring comment for present purposes. National and provincial government argued that, although they are ‘committed’ to providing financial assistance (which had been provided), ‘they are debarred from interfering and imposing their will on the local government’.86 The Court agreed with this argument and decided, in effect, to absolve them of any responsibility in the case (although not in so many words; this seems to be the effect of this aspect of the judgment). Although the Court found in favour of the applicants vis-à-vis the municipality, it failed to engage sufficiently with several critically important questions relating to the relationship between responsibilities under water legislation and Constitutional responsibilities. Probably the main issue, which the Court bypassed, was the responsibility of the national government, through the Minister of Water Affairs, to act as ‘public trustee’ of the nation’s water resources and how this duty (in terms of section 3(1) of the NWA87) relates to the Constitutional allocation of responsibilities. The critical question is thus at which stage the DWA is authorised to intervene, in order to address problems that are initially the municipality’s responsibility. This question is not only relevant to the factual circumstances in this case but also to the pervasive failure by local government bodies throughout the country to comply with the legislation pertaining to the operations of water treatment works (discussed below). Despite being let ‘off the hook’ in this case, it is clear from the NWA that the national department, through the Minister, is responsible, alongside the local authority 81 JWN Tempelhoff and others, ‘The 2012 Acid Mine Drainage (AMD) Crisis in Carolina’s Municipal Water Supply’ (2014) 46 African Historical Review 77. 82 Terence S McCarthy and Marc S Humphries, ‘Contamination of the Water Supply to the Town of Carolina, Mpumalanga, January 2012’ (2013) 109(9–10) South African Journal of Science 1. 83 Tempelhoff and others (n 81). 84 Federation for Sustainable Environment and Another v Minister of Water Affairs and Others (35672/12) [2014] ZAGPPHC 428 (9 June 2014). 85 For further detail, see Michael Kidd, ‘Muddied Water: (Un)Cooperative Governance and Water Management in South Africa’ in J Gray and others (eds) (n 68) 157. 86 Federation for Sustainable Environment and Another (n 84) para 19. 87 This section reads: ‘As the public trustee of the nation’s water resources the National Government, acting through the Minister, must ensure that water is protected, used, developed, conserved, managed and controlled in a sustainable and equitable manner, for the benefit of all persons and in accordance with its constitutional mandate’.

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Realisation of the right to water: lessons from South Africa 365 (the water services provider), for water issues, especially when the municipality is failing in its management of water services in its area. This is reinforced by section 156(7) of the Constitution, which provides that ‘the national government, … and the provincial governments have the legislative and executive authority to see to the effective performance by municipalities of their functions … by regulating the exercise by municipalities of their executive authority’. Provided that the national government does not usurp the functions of the municipality,88 there is no Constitutional impediment to their assisting the municipality, which assistance does not have to be confined to finance. As for provincial government, section 156(6) of the Constitution provides that each provincial government must, by legislative or other measures, provide for the monitoring and support of local government in the province, and section 139 empowers the executive of provincial government, when a municipality cannot or does not fulfil an executive obligation in terms of legislation, to intervene by taking any appropriate steps to ensure fulfilment of that obligation, including by assuming responsibility for the relevant obligation in that municipality to the extent necessary to maintain essential national standards or meet established minimum standards for the rendering of a service. This seems to have been ignored in the Federation for Sustainable Environment case. The 2017 norms and standards provide for provision of water in cases of sudden emergency situations such as the Carolina one. In this case, the cause of, and subsequent response to, the contamination of the water supply was beyond the municipality’s control, which highlights the role to be played by other spheres of government in such situations. While it is difficult to plan for how to fix a compromised water source, such as in Carolina, it is possible to plan for how one deals with people’s water needs while the emergency situation persists, and this is what is required by the law. It is clear, however, as noted above, that confining the response to the water services provider will in many cases be too much of a burden for that entity to address itself: the response of all spheres of government is necessary when an emergency happens. Slow onset restrictions of access to water The best example of a slow onset restriction of water, that is usually foreseen, is drought. In recent years, South Africa has experienced the worst drought in decades in many parts of the country – some towns’ water supplies were exhausted and even parts of Johannesburg ran dry.89 At the time of writing, the Western Cape and the City of 88 See, eg, the cases of City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal 2010 (6) SDA 182 (CC) and City of Cape Town v Maccsand (Pty) Ltd and Others 2010 (6) SA 63 (CC). 89 See, eg, Dineo Bendile and others, ‘Taps Run Dry in Parts of Joburg, Water Tankers Dispatched’ Eyewitness News (11 November 2015), accessed at http://ewn.co.za/2015/11/11/ Water-tankers-dispatched-as-taps-run-dry-in-Joburg; Daily Dispatch, ‘Drought Killing of Aliwal North’ Daily Dispatch (13 January 2016), accessed at https://www.dispatchlive.co.za/news/201601-13-drought-killing-off-aliwal-north/ (Aliwal North is in the Eastern Cape, on the banks of the Orange River and on the border with the Free State); and Jeanette Chabalala, ‘“Everything has Dried up Completely”: Senekal Residents’ News 24 (18 January 2016), accessed at

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366 Research handbook on law, environment and the global South Cape Town are in the midst of what is reported to be the worst drought in recorded history and facing the possibility of water supplies being exhausted in the near future.90 Detailed discussion of the reasons why the situation has become so serious is beyond the scope of this chapter, but what is evident is that planning for drought preparedness, particularly when climate change is making meteorological predictions more difficult, is essential. While there is legislation – the Disaster Management Act91 – which assists in dealing with the after-effects of disasters (including drought), drought preparedness is not explicitly addressed in legislation. The effects of climate change in South Africa are likely to lead to the drier western and interior parts of the country becoming more arid, and the comparatively wetter eastern parts of the country becoming more humid, with increased instances of floods and droughts.92 This increases the importance of adequate drought preparedness, including consideration of how this affects the provision of water services.

D. CROSS-CUTTING ISSUES 1. What Amount of Water Is ‘Sufficient’? Section 27 of the Constitution requires everyone to have access to sufficient water. Regulations in terms of the WSA have provided that a basic water supply is 25 lcd.93 In the Mazibuko case, the Constitutional Court held that this was not an unreasonable amount, but it avoided deciding on whether this amount was ‘sufficient’, holding that this was a matter for the executive to decide. If a sufficient amount of water is regarded as being sufficient not only for an existence free of threats to health and vitality, but also conducive to dignity (also protected in the South African Constitution),94 then surely an amount of water equivalent to two flushes of a waterborne toilet per day cannot be sufficient?95 www.news24.com/SouthAfrica/News/everything-has-dried-up-completely-senekal-residents-2016 0118 (Senekal is in the Eastern Free State). 90 David W Olivier, ‘Cape Town’s Water Crisis: Driven by Politics more than Drought’ News24 (14 December 2017), accessed at www.news24.com/Analysis/cape-towns-water-crisisdriven-by-politics-more-than-drought-20171214; Diana Neville and others, ‘Cape of Storms to Come’ Daily Maverick (27 October 2017), accessed at http://features.dailymaverick.co.za/capeof-storms-to-come/cape-of-storms-to-come-part-1.html. 91 Disaster Management Act 57 of 2002. 92 Department of Environmental Affairs, White Paper on the National Climate Change Response (Pretoria, South African Government 2011) 9. See also Michael Kidd, ‘Climate Change, Groundwater and the Law: Exploring the Connections in South Africa’ (2017) 42 Water International 678. 93 DWAF (n 51) clause 3. 94 Human dignity is one of the foundational values enshrined in section 1; the Bill of Rights is introduced as affirming the democratic values of human dignity, equality and freedom (section 7(1)); and section 10 states that everyone has inherent dignity and the right to have their dignity respected and protected. 95 Clark (n 68) 290.

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Realisation of the right to water: lessons from South Africa 367 There are suggestions that the amount of 25 lcd was initially based on somewhat arbitrary considerations,96 whereas several experts believe that an amount of 50 lcd is more appropriate as a basic level.97 It is not possible in this chapter to come up with the right answer in this regard, but it is important to bear in mind that the notion of the right to ‘sufficient water’ is important to determine in quantitative terms in relation to health, dignity and well-being, bearing in mind that the availability of water may vary with changes in meteorological conditions and is likely to be more unpredictable when climate change’s effects become more prevalent. 2. Water Quality A further aspect to consider that will have an impact on all of the scenarios considered above is the fact that there are severe water quality issues in South Africa, primarily from acid mine drainage98 and sewage. Problems with sewage are essentially caused by the same issues identified in relation to water services infrastructure above, and the water services providers (municipalities) are largely responsible.99 The national Department of Water and Sanitation publishes periodic ‘Green Drop Reports’ that are apparently aimed at praising those water services providers that are doing an exemplary job in relation to water treatment, and ‘naming and shaming’ those that are in charge of water treatment works that are in a critical state. In the 2013 ‘Green Drop Report’,100 of the 824 water treatment plants assessed, operated by 152 water services authorities, 409 (just under 50 per cent) were rated as having ‘poor’ or ‘critical’ risk profiles. It is likely that the vast majority of these plants (as well as several scoring in the ‘average’ category) are not in compliance with the law relating to effluent discharges. Water of poor quality complicates the function of water services providers having to treat water for human use, and this highlights one of the main connections between water and sanitation. Often, too, poor persons who are battling with water services delivery have to contend not only with lack of access to water but inadequate sanitation as well.101 There has, to date, been no litigation in relation to the pervasive failure by municipalities in relation to sewage and water treatment issues, and the ‘naming and shaming’ mentioned above is falling on deaf ears. If municipalities fail to perform in other respects (for example, financial management), there have been several instances of provincial government invoking the provisions of section 139 of the Constitution and placing the affairs of the municipality under administration (aimed at improving the performance of the affected entity). This has not occurred in relation to poor service delivery in water and sanitation (including water treatment) and it is my view that the Patrick Bond, ‘The Political Economy of Water Management: Neoliberalism and Social Resistance in South Africa’ (Centre for Civic Society Seminar: Durban Water and Sanitation Policies, Projects and Politics, Durban, September 2014), accessed at http://ccs.ukzn.ac.za/files/ Bond-CCS-paper-on-EWS.pdf. 97 Kidd (n 64). See also Dugard and others (n 55) 254 and 261–2. 98 Kidd (n 85) 157. 99 ibid. 100 DWS and DWA, Green Drop Report (DWS and DWA 2013). 101 SAHRC (n 75). 96

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368 Research handbook on law, environment and the global South absence of provincial Constitutional competence (legislative and executive) in water matters is a reason why provinces have not stepped in. The position is exacerbated by the ‘hands off’ position taken by the national Department of Water in relation to local government non-performance, which is contrary to a proper interpretation of cooperative government102 and to section 3 of the NWA.

CONCLUSION This chapter has shown a variety of difficulties that face a developing country in providing for the right to sufficient access to water. There is not just the challenge of providing water where there was not access previously, but also ensuring that water services remain in good order once they have been installed. It is clear from the above discussion that there are various measures required from government in order to ensure that the right is appropriately respected – in South Africa, section 27 of the Constitution refers to ‘legal and other measures’. While appropriate legal mechanisms are important components of this suite of measures, more is clearly required. The South Africa experience demonstrates that the following are essential requirements for ensuring the right of access to sufficient water in any country, although the challenges are often more difficult in developing countries: + Good governance: this requirement almost goes without saying, but there must be the political will and ability to ensure that rights are respected, legislation is observed and policies followed. Corruption and maladministration are obviously inimical to meeting the goals of good governance, not only in the water sector, but the amounts of finance involved in infrastructural development and maintenance attracts the potential for corruption. Good governance also requires that those government entities that have powers and duties to ensure good water services management must cooperate. The pervasive example in South Africa appears to be one of under-resourced local government bodies failing to provide the necessary services while other spheres of government stand by doing little or nothing to ensure proper functioning: local government is receiving inadequate support from national and provincial government.103 + Appropriate financing: water infrastructure is expensive, not only in relation to initial installation but also operation and maintenance. Maintenance and replacement of obsolete equipment is often neglected in South Africa and inadequate finance is available to address the shortcomings. If the primary service provider (local government) is under-resourced, national government as the public trustee of water resources in the country, as well as being ultimately responsible for the provision of sufficient water services to the population, must work to address the shortfall. As argued by Dugard and others, ‘without a fundamental restructuring and redistribution of roles, functions and resources, the local government sphere 102 103

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Realisation of the right to water: lessons from South Africa 369 will certainly collapse’.104 Exactly how such restructuring may be carried out, though, is beyond the scope of this chapter. The involvement of foreign assistance, financial or otherwise, may potentially be involved as well. While the structure of government in South Africa is different from that in other countries, the basic message remains the same: without enough money, government, however it may be structured, will not be able to provide sufficient access to water. + Nuanced approach to payment for services: there is no such thing as free water, where people are provided water by means of reticulation systems (that is, not abstracting it direct from rivers and streams). Somebody has to pay for the provision of the infrastructure that allows people to open a tap and obtain water, whether the taxpayer in general, or whether consumers of water. Intuitively, it would appear that putting a price on water ought to result in more responsible use of water, suggesting that water infrastructure ought to be paid for by consumers of water. In countries where there are many poor people, however, the challenge is to ensure a payment system that meets the costs of providing the services but does not prevent the poor from adequate access to water. Current systems in South Africa, for example, are often prejudicial to the poor, particularly prepayment meters, and unfortunately the leading case (Mazibuko) did not protect their rights. The solution to this problem is not immediately apparent and is not suggested here: what is important is that considerably more thought needs to be given to this and it certainly appears that one-size-fits-all approaches may be suitable for administrative efficiency but do not ensure that the rights of the poor are respected. + The ‘implementation gap’ between law on paper and law in action must be addressed: on paper, South Africa appears to have adequate and appropriate laws and policies to ensure water services that meet the Constitutional right of access to water in section 27 of the Constitution. Experience suggests that these laws are being contravened widely, without any evident legal response. It is trite, and has been said many times before, that laws on paper that are not adequately enforced are all but worthless. The main complicating factor in the South African experience is that, in the water services sector, the overwhelming majority of those who are contravening the law are government entities. While this is a challenging issue for authorities to address, it is ultimately part of good governance, which, as stated above, is a prerequisite for meeting the right to water in South Africa, or anywhere else. While South Africa has generous legal rules allowing persons access to courts to enforce rights and the laws that give effect to them, it is clearly inappropriate for the norm for enforcement to be citizen suits in the absence of any state enforcement. Although, at the time of writing, there have been few cases involving the right to water, particularly given the scale of infringements of the right, ongoing government inertia will surely lead in future to the courts being called upon more frequently to bring the government into line. The disappointing result in Mazibuko may be a reason why there 104

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370 Research handbook on law, environment and the global South have been relatively few water cases subsequently, but the ongoing clear failure to comply with South Africa’s water laws suggest that the government may well not be as fortunate as it was in Mazibuko the next time. While South Africa has many unique social and institutional features compared to other developing countries, its experiences demonstrate the types of challenges that countries having developmental objectives that aim to address poverty alleviation are facing or will face in provision of access to water. Some of the lessons learned in South Africa may point in a particular direction but the discussion above often leaves one with an impression of what does not work rather than a solution. It is clear, therefore, that if a relatively well-resourced developing country such as South Africa is facing significant difficulties in fulfilling the right to water, the challenge in many other developing countries will be considerable indeed. Some of the experiences of South Africa in achieving the right of access to water may help in addressing these challenges.

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19. Dams and displacement: the case of the Sardar Sarovar Project, India Varsha Bhagat-Ganguly

INTRODUCTION – WATER SCENARIO IN INDIA* India is basically an agricultural country and a significant majority of the population lives in rural areas. Paradoxically, some regions of the country face a precarious inadequacy of water resources whereas others receive supplies in excess. With such inequities in distribution of water resources, the need for appropriate water management with the goal of poverty alleviation in the rural areas is of paramount significance. The growing concern on availability of freshwater resources raises many questions pertaining to not only the economic development of the nation, but also social development as well as sustainability of the lives of mankind and biodiversity. The planning, therefore, needs to focus on availability of water resources in space (between regions, states or nations) and time (between years and between seasons within a year) and its management, that is, to distribute freshwater resources as evenly as possible in many parts of the country by engineering interventions.1 Since the 1950s, the focus on using river basins and the idea of inter-basin transfer of water have been important strategies in the overall scenario of the development of water resources in the country. The state of Gujarat started planning on the Narmada river basin in the 1940s and India started a command area development programme in 1974–75. The Central Water Commission2 was set up in the early 1950s to undertake the task of preparing designs and schemes for the development of river valleys for multiple purposes, such as power generation, irrigation, flood management, environment management and soil management. This implies engineering interventions and choosing suitable technology for construction of dams. As of 2016, 4,877 large dams had been completed and 313 large dams were under construction in India. In the category of ‘Dams of National Importance’, 59 were completed and 10 were under construction.3 The Sardar Sarovar Project (SSP) is one of * The author would like to thank Hirak Ganguly, legal practitioner at Gujarat High Court, for preparing a chart of legal cases related to the Sardar Sarovar Project (SSP). 1 MJ Kaledhonkar and others, ‘On-Farm Land and Water Management’ in MJ Kaledhonkar and others (eds), On Farm Land and Water Management (Central Soil Salinity Research Institute 2007) 17, accessed at www.researchgate.net/publication/274736320_Water_resources_scenario_ of_India_emerging_challenges_and_management_options. 2 Originally established under the Ministry of Irrigation and Power in 1952, the Central Water and Power Commission was linked to the Department of Irrigation, Ministry of Agriculture and Irrigation in 1978. 3 Central Water Commission, National Register of Large Dams (2016), accessed at http://cwc.gov.in/national-register-large-dams.

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372 Research handbook on law, environment and the global South the dams of ‘national importance’. Maharashtra stands top rank with 1,845, Madhya Pradesh stands second rank with 906 and Gujarat stands third rank with 632 completed and under construction dams. Half of the total dams (2,558) were built between 1971 and 1990. Of the total 313 large dams, half (152) are in Maharashtra, followed by Jharkhand (29), Andhra Pradesh (25), Telangana (20), Uttar Pradesh, Gujarat (13) and Chhatisgarh (10).4

A. DISCOURSE ON DEVELOPMENT, DAMS AND DISPLACEMENT The technology of dams, particularly large dams,5 is widely considered to be a guaranteed formula for the techno-managerial model of development, especially in terms of irrigation provided, hydro-electric power generated, supply of water for domestic and industrial use, and supply of carbon-free energy. There are some indirect benefits of large dams such as navigation, development of fisheries, tourism, employment generation, and checking rural to urban migration.6 Dams are promoted as a strategy for water harvesting, as a flood control mechanism and a promising measure for poverty alleviation in India.7 This level of acceptance of dams is reflected through the number of dams even at the global level, that is, over 45,000 large dams have been built the world over. The International Commission on Large Dams mentions that there are 58,519 registered dams, of which 28,614 (48.9 per cent) are single-purpose dams and 9,930 (17 per cent) are multi-purpose dams. In 1948, Mr Jawaharlal Nehru, the then Prime Minister of India, speaking to those displaced by the Hirakud Dam said, ‘If you are to suffer, you should suffer in the interest of the country’.8 The suffering refers to a development paradigm that Nehru aspired for and thus that aspiration was translated into the aspiration of the nation. Sufferings of some, thus, became a precondition for development of the nation. Swain has elaborated various aspects of dam building as a strategy on how big dams helped political leadership to buy the loyalty of local elites, why ideas of modern development received little resistance from any front, how the ‘national interest’ argument is developed and every local interest was morally compelled to make sacrifices, and

ibid. This is defined in the definition section of the Constitution of the International Commission on Large Dams, 2011: ‘A dam with a height of 15 metres or greater from lowest foundation to crest or a dam between 5 metres and 15 metres impounding more than 3 million cubic metres’. The National Register of Large Dams (2016) adds ‘storage more than 60 million cubic metres’ to the above definition. See Central Water Commission (n 3). 6 Pradip Baijal and PK Singh, ‘Large Dams: Can We Do without Them?’ (2000) 35(19) Economic and Political Weekly 1662, 1663. 7 Esther Duflo and Rohini Pande, ‘Dams’ (2007) 122(2) The Quarterly Journal of Economics 601. 8 Quoted in Duflo and Pande (n 7) 601. 4 5

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Dams and displacement: the case of the Sardar Sarovar Project, India 373 environmental movements addressed issues of big dams.9 At the same time, those who recognised suffering as a human cause questioned development induced displacement. The World Commission on Dams estimates that 40–80 million people – almost 4 million annually – have been forced to leave their homes because of flooding caused by dam projects.10 The studies on development induced displacement highlight a series of inter-connected issues, such as, the need for creating a database on the definition of displacement (as involuntary/forced eviction, specified as development induced displacement, different from development refugees and different from forced migration); extent of displacement; causes of displacement; problems of large chunk of population that faced multiple displacement; impacts of displacement; and the need for just and proper Rehabilitation and Resettlement (R&R) plans. Land acquisition for various development projects (mining, dam construction, infrastructure building, urbanisation, defence colonies and security reasons) came to the fore more apparently as a critique of the development paradigm in the early 1980s. The increasing demand for land for augmenting industrial development, after the introduction of a structural adjustment programme and the New Economic Policy in 1991 in India, added new dimensions to the perspective of land acquisition, displacement and R&R. Cernea’s11 impoverishment, risk and reconstruction model was widely accepted in this context.12 By that time, Medha Patkar, one of the founder members of the Narmada Bachao Andolan, had started advocating the use of ‘right to development’,13 the rights to life and livelihood of the displaced population, right to participation of project affected persons (PAPs), stressing the need to link displacement and development.14 Many eminent citizens of India advocated the right to development in the context of multiple displacements emphasising the need for R&R on a one-to-one project basis, inadequate R&R measures and irregularities observed during implementation of R&R packages, lack of transparency in R&R and unfair distribution of resources, which had revealed continuous sufferance and neglect of the displaced population. This has resulted in suspicion and distrust on the government measures by the PAPs, a sense of lack of Ashok Swain, ‘Democratic Consolidation? Environmental Movements in India’ (1997) 37(9) Asian Survey 818. 10 Black Harvey, ‘Dam-Building Decisions: A New Flood of Fairness’ (2001) 109(2) Environmental Health Perspectives A80. 11 Michael Cernea, ‘Risks, Safeguards and Reconstruction: A Model for Population Displacement and Resettlement’ (2000) 34(41) Economic and Political Weekly 3659. 12 Impoverishment, risk and reconstruction model: landlessness, joblessness, homelessness, marginalisation, food insecurity, increased morbidity and mortality, loss of access to common property and social disintegration. 13 UN General Assembly Resolution – Declaration of the Right to Development, UN Doc A/RES/41/128 (4 December 1986) upholds the right to development as an inalienable human right and right of peoples to self-determination (Article 1), and duties of the state to formulate development policies with a view to facilitating the full realisation of the right to development (Article 4). 14 Medha Patkar, ‘The People’s Policy on Development, Displacement and Resettlement: Need to Link Displacement and Development’ (1998) 33(38) Economic and Political Weekly 2432. 9

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374 Research handbook on law, environment and the global South political will of the government by different interest-holders,15 an environment of resistance and a series of mass protests in different parts of the country against further land acquisition by PAPs. These have constituted the sources for generation of the language of rights.16 On the question of development, dams and displacement, three shades of opinion are known in India.17 First, proponents of dams who believed it inevitable for a small population to suffer or make sacrifices for the larger cause of the nation’s development. Second, those opposing big dams highlighted the huge social cost paid by certain sections. This group stresses the need for a cost-benefit analysis by taking into account factors such as resource accounting, energy accounting and environment impact assessment. This group encourages alternative technologies or mechanisms for harvesting water resources for development. The third group has two shades – some want proper rehabilitation and proper planning and treatment for ecological balance considering impact on the social environment as well as environmental issues while some agree to the concept of big dams and do not consider proper planning of rehabilitation, social and environmental impact, as prior conditions for construction of a big dam. BD Dhawan, the then member of the Planning Commission of India, categorised two groups – ‘hard’ and ‘soft’ critics: ‘the hard ones comprise of environmentalists, natural scientists and social scientists. They raise objections on discipline-specific grounds (…) the soft ones reveal a rather woolly understanding of the complex nature of water resources, or of ecological matters’.18 He further clarified that ‘our irrigation planners have baulked at engaging in an open dialogue and discussion with their critics. As a result, more and more cross-sections of the society have become very receptive to the criticism of big dams in the popular media’.19 The debate on dams, displacement and development is characterised with different voices representing different groups of proponents and opponents of dams. Those who thought that dams are a necessary measure for development; they focused on economics and especially cost-benefit analysis. They estimated direct and indirect benefit through generation of hydropower, irrigation facilities, flood control, drinking water supply, vis-à-vis the PAPs. Those who believed that development needs to be accountable to ecological systems and needs to address environmental concerns while controlling river flow through technological interventions, they say important aspects such as seismic imbalance, loss of forest cover and loss of biodiversity and health 15 Arundhati Roy, ‘The Greater Common Good’ Frontline (4 June 1999), accessed at https://frontline.thehindu.com/static/html/fl1611/16110040.htm. 16 Varsha Bhagat-Ganguly, Protest Movement and Citizen’s Rights in Gujarat (1970–2010) (Indian Institute of Advanced Study 2015). For more information on ‘rights’, see Varsha Bhagat-Ganguly, ‘Tracing Journey of Legislative Processes for Land Acquisition and Resettlement in India’ (2016) 4(1) Journal of Land and Rural Studies 36; Ramaswamy R Iyer, ‘Large Dams: The Right Perspective’ (1989) 24(39) Economic and Political Weekly A107. 17 Edward Goldsmith and Nicholas Hildyard, The Social and Environmental Effects of Large Dams – Vol. 1 (Wadebridge Ecological Centre 1984) 231 describe three categories of scholars working on dams and displace: development optimists, conditionalists and negotiationists. 18 BD Dhawan, ‘Mounting Antagonism towards Big Dams’ (1989) 24(20) Economic and Political Weekly 1096, 1096. 19 ibid 1099.

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Dams and displacement: the case of the Sardar Sarovar Project, India 375 impacts need to be taken care of. Those who believe in inclusive development and equitable resource distribution adopted the human rights framework to articulate lesser known points such as just R&R policy and ‘compensation’ where non-monetised items, solatium, land against land/employment/shareholding are not duly considered. Those who found that the policy debates on large dam construction shroud without adequate, systematic empirical data on how the average large dam affects welfare, especially of the rural poor, advocated for logical debates based on a scientifically built up database on the impact of large dams such as displacement, change in cropping patterns, changes in water quality, increase in salination and land degradation caused by waterlogging, and susceptibility to seismic activity.20 Loss of large tracts of land that gets submerged and loss of land leading to loss of livelihoods of many is as such a major concern but not articulated very diligently from the perspectives of land rights of the displaced population and their livelihood. The loss of biodiversity is another point on which a satisfactory database is available but the dam building authority usually treats this issue as the need for afforestation.

B. DAM CONSTRUCTION AND DISPLACEMENT IN INDIA Displacement in India is accepted as an inevitable process in the context of development. There exists no policy that suggests an alternative to displacement. Use of the ‘principle of eminent domain’ and ‘public purpose’ are continued to be allegedly a powerful tool to legitimise displacement in India.21 In this scenario, it is necessary to present an overview of dams and displacement, covering different perspectives, such as technology for development, human rights and human suffering, R&R – concerns and policy critique, and whether the rights to development are employed, especially by/for the displaced population. The extent of displacement and the extent of the resettled population are important concerns. Various studies mentioned repeatedly that there is no official database on displacement and resettlement in India. The existing figures of displaced population mentioned in various studies need to be considered indicative. A study conducted by Negi and Ganguly mentions that around 50 million people have been displaced in India due to development projects in over 50 years.22 Of these, dams, mines, industrial development and others account for over 21 million development-induced internally displaced persons. Of the total 21.3 million, 16.4 million are displaced due to dam construction. Obtaining figures of the resettled population is as difficult as getting figures of the displaced population; mainly because R&R plans have been developed on a case-to-case basis since the 1950s. Further, it is also a fact that not every displacing authority had implemented an R&R plan prior to the 1970s. Duflo and Pande (n 7) 601; Baijal and Singh (n 6) 1662, 1663. Smitu Kothari, ‘Whose Nation? The Displaced as Victims of Development’ (1996) 31(24) Economic and Political Weekly 1476. 22 Nalin Singh Negi and Sujata Ganguly, ‘Development Projects and Internally Displaced Population in India: A Literature based Appraisal’ (Working Paper 111, COMCAD 2010). 20 21

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376 Research handbook on law, environment and the global South Whether a large dam is desirable or not is highly contested. The opponents of large dams argue that large dams artificially change the natural course of rivers and streams, and instead of local people, the outsiders like those residing in urban areas or pursuing industrial-commercial operations or potential energy consumers elsewhere are likely to benefit the most. Therefore, outsiders are the key supporters of dams in the name of modernisation and development. Building large dams in India has become a symbol of modernisation (use of technology) and development (power generation and industrial development). In order to justify large dams, they are being promoted as multi-purpose (flood control, development of tourism, congenial habitat to water birds) and as beneficial to most citizens.23 This argument has remained strong and is supported in the public policy regime in India.

C. SARDAR SAROVAR PROJECT: A CASE STUDY OF A LARGE DAM The foundation stone for the SSP was laid down in 1961. This project has engaged the Union and four beneficiary state governments (Gujarat, Maharashtra, Madhya Pradesh and Rajasthan) of India. Over a period of four decades, it led to the creation of different authorities with specified roles and responsibilities and/or implementing agencies including the Narmada Valley Development Authority, the Narmada Control Authority,24 the Narmada Water Dispute Tribunal, the Sardar Sarovar Narmada Nigam Ltd and the Grievance Redressal Authority. International agencies, such as the World Bank and Japanese Official Development Assistance, Japanese Export Credit Agencies, and transnational agencies, such as Oxfam, Environmental Defence Fund and the International Development Agency,25 were also involved who advocated for different proper R&R and the environmental cause. This project has witnessed many highs and lows due to a gamut of reasons, including a series of protests by PAPs, long-drawn-out legal actions by the protesting groups, involvement of transnational agencies and civil society actors, advocacy by international agencies such as Survival International for the rights of indigenous peoples and the World Commission on Dams for issues of the dam, lawyers and academia, controversial roles of political leaders and senior bureaucrats, articulation of various rights of the displaced population leading to policy framing and changes in the existing laws. Some responses and actions of political leaders and government officials indicate that they have overlooked and eroded democratic processes like dissent, dialogue and collective decision-making.

23 Subhash Sharma, ‘Development for Whom and at Whose Cost: Displacement Due to Dams in India’ (2014) 60(1) Indian Journal of Public Administration 19, 20. 24 Robert H Wade, ‘Muddy Waters: Inside the World Bank as It Struggled with the Narmada Projects’ (2011) 46(40) Economic and Political Weekly 44. He states that: ‘The misnamed Narmada Control Authority had neither control nor authority’. 25 ibid 52.

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Dams and displacement: the case of the Sardar Sarovar Project, India 377 SSP is considered and promoted to be an ‘engineering marvel’ by the Government of India.26 However, every claim of SSP’s manifold benefits is questioned and challenged by different civil society groups along with the Narmada Bachao Andolan27 in terms of long-term water supply, and generation of energy and food security; also on counts of fair distribution of resources and consequent benefits through social action, the legal course and judicial interpretations. The increasing binary logic, each opposing the other, has resulted in various contentious views and warfare of information, disinformation and misinformation. Each side used communications that distorted the facts skilfully. Using half-truths and denial of the facts provided by the other side were also not uncommon. The selective use of facts, figures and source of material generated debates on authenticity, verification and cross-verification of facts.28 Those opposing the SSP believe that the Narmada Bachao Andolan movement is an example of powerful collective action, transnational alliances and support of awakened citizens, which changed the discourse on dams worldwide, and on R&R measures in India.29 The proponents of the SSP, including political parties across four beneficiary states (Rajasthan, Gujarat, Maharashtra and Madhya Pradesh), technocrats, administrators, and even the Supreme Court of India trusted the state-created agency and its performance, represented the aspirations of the beneficiaries.30 Thus, the SSP is a case in which the discussion focuses on the use of technology that is questioned from the perspectives of fair and just distribution of natural resources based on economics and environment concerns; politics of water resources including approaches to river control and role of technocrats in public policy decision-making; people’s right to development including right to participation and livelihood of the PAPs;31 resistance by PAPs in the absence of proper R&R and for seeking justice; participation of various social groups, both national and transnational, in support of PAPs; numerous studies covering different aspects of the project by development 26 More details about the SSP are available at www.sardarsarovardam.org/document/ engineering-marvel.pdf. 27 The construction of Sardar Sarovar Dam began in 1987. Many problems related to resettlement of project affected families (PAFs) were identified by a group of social activists working in the project affected areas, such as insufficient land available for redistribution, inadequate amenities at resettlement sites, difficulty for PAFs to adjust to new environments. The various groups involved allied in 1989 to form the Narmada Bachao Andolan (NBA), or the Save Narmada Movement, led by Medha Patkar, see www.lokashakti.org/encyclopedia/groups/143narmada-bachao-andolan. Since then, NBA has represented the problems of the Narmada Valley Development Plan at national and international levels as an umbrella organisation. See Bhagat-Ganguly 2015 (n 16) 171. 28 Bhagat-Ganguly 2015 (n 16). 29 Sharma (n 23). 30 Ramaswamy R Iyer, ‘A Judgment of Grave Import’ (2000) 35(45) Economic and Political Weekly 3913; Shiv Visvanathan, ‘Supreme Court Constructs a Dam’ (2001) 35(48) Economic and Political Weekly 4176. 31 John Wood, The Politics of Water Resource Development in India: The Narmada Dams Controversy (Sage 2007); Ranjit Dwivedi, ‘People’s Movement in Environmental Politics: A Critical Analysis of the Narmada Bachao Andolan in India’ (Institute of Social Studies, Working Paper Series No 242, 1997).

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378 Research handbook on law, environment and the global South activists and researchers, scientists and academics; and judicial interpretations32 and trends that unfold patterns in consonance with the techno-managerial development model. These controversial debates have been running for more than 30 years and they are multi-layered, multi-dimensional and have evolved with various standpoints. 1. Background Details of SSP Narmada is the longest river in central India; west flowing and fifth longest river in the South Asian peninsula. It rises near Amarkantak, in Shahdol district of Madhya Pradesh, at an elevation of about 2,700 feet (823 metres). After travelling a distance of more than 965 km, it forms an approximately 35 km long natural border between Madhya Pradesh and Maharashtra, and a 40 km long natural border between Maharashtra and Gujarat. It then flows through Gujarat for about 160 km and finally enters the Gulf of Khambhat (Cambay) and drains into the Arabian Sea.33 The Narmada Valley Development Plan conceived the construction of 30 major multi-purpose dams (11 dams on the main river and 19 on tributaries), 135 medium dams and 3,000 minor irrigation dams. The SSP is one of the largest among the 30 large dams.34 The Narmada basin is about 98,800 km2 of which 87 per cent lies in Madhya Pradesh, 1.5 per cent in Maharashtra and 11.5 per cent in Gujarat. The SSP was conceived as a multi-purpose, inter-state project including the Sardar Sarovar Dam and the Sardar Sarovar Reservoir (extending up to 216 km) and a canal system (main canal and distribution system). The foundation stone of the project was laid down in 1961. The recommended height of the dam was 500 feet (152.44 metres) for full reservoir level and the total catchment area was 88,000 km2.35 The SSP has ambitious claims: The Sardar Sarovar Project (SSP) envisages a 139 m high dam across the river, an underground river bed power house (1,200 MW), a canal head power house (250 MW) and 700 km long Main Canal to irrigate more than 2.5 million ha of land in Gujarat and in Rajasthan, and to provide drinking water facilities to 8,215 villages and 135 urban centres, mostly located in the Saurashtra and Kachchh areas. In addition, 881villages affected by fluoride will get potable water. Other benefits include protection against floods in the downstream villages and against the advancement of deserts like Little Rann of Kachchh.36

Four beneficiary states had to settle the issues of water distribution and use, the cost of construction of dams and canals, displacement and resettlement of PAPs. The Narmada Water Dispute Tribunal was set up for settlement of disputes. The launching of the SSP 32 Iyer (n 30) 3913; Visvanathan (n 30) 4176; SP Sathe, ‘NBA Contempt of Court Case’ (2001) 36(46–7) Economic and Political Weekly 4338; Mathew John, ‘Interpreting Narmada Judgment’ (2001) 36(32) Economic and Political Weekly 3030. 33 Tata Institute of Social Sciences (TISS), Performance and Development Effectiveness of the Sardar Sarovar Project (TISS 2008) 1. 34 For a brief and comprehensive phase-wise history of SSP, see Iyer (n 30) and TISS (n 33) 92–8. 35 Details are available at www.sardarsarovardam.org. 36 MS Menon, ‘Sardar Sarovar Project: Another Perspective’ (2003) 38(39) Economic and Political Weekly 4095, 4096.

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Dams and displacement: the case of the Sardar Sarovar Project, India 379 was announced through a gazette notification in December 1979 and the Narmada Control Authority was set up in 1980 as machinery for implementing the directions and decisions of the Narmada Water Dispute Tribunal, which was funded by the four beneficiary states. The World Bank declared the Sardar Sarovar loan effective in early 1986.37 However, the Ministry of Environment and Forests refused to clear the project for environmental reasons. This caused a hiatus in the project until the ministry issued a conditional clearance in 1987.38 The conditions for environmental clearance included environmental safeguard measures such as phased catchment area treatment, compensatory afforestation, command area development, survey of flora, fauna and carrying capacity, seismicity and health aspects. These were to be planned and implemented pari passu (side by side) with the progress of work on the project, and a report to this effect was to be provided by 1989.39 As per the government’s estimate in the late 1980s, of the total 19 villages in Gujarat, 3 villages were to be fully submerged while 16 were to be partially submerged with a total of 4,737 families as affected by the project. Thirty-three villages of Maharashtra were to be partially submerged with a total 4,163 families as project affected while of the total 192 villages in Madhya Pradesh, 1 village was to be fully submerged and 191 to be partially submerged with a total 39,369 families as project affected. The responsibility for R&R was exclusively on the state of Gujarat. However, the number of displaced and resettled families kept on varying in different years. It was estimated at the time of the Narmada Water Dispute Tribunal Award in 1979 that 6,417 families would be affected due to submergence. In 1986, the Department of Environment and Forests estimated the total number of affected persons as 66,675 (or about 13,335 families). In 1994, the Five Member Group gave a figure of 40,245 families. In 2000, the Supreme Court of India acknowledged a figure of 40,287 families and in 2006, in an affidavit submitted by the Union of India, the number of affected families was put at 43,000. However, from the year 2002 onwards, there is a trend to diminish the number of project affected families (PAFs).40 Official sources stated that, in the case of the SSP, 182 villages in Madhya Pradesh, 36 villages in Maharashtra and 19 villages in Gujarat would be under water and the NSP (Narmada Sagar Project) would submerge an additional 254 villages in Madhya In 1985, the World Bank provided a ‘start-up’ loan of $450 million to SSP and later a $350 million loan for construction of the canal. This loan comprised about 18 per cent of the costs of the dam and 30 per cent of the expenditure on the displaced; the rest were to be borne by the state governments. Following this loan, the Government of India gave conditional clearance to the SSP in June 1987 that the R&R would be completed by the end of 1989. As part of the conditions, the governments of Gujarat and Madhya Pradesh were required to fulfil four conditions: to prepare alternative afforestation sites to compensate for the submerged forestland; to improve the rehabilitation package for the displaced people; to create sanctuaries for wildlife; and to prepare both command and catchment areas to mitigate both the dam’s negative environmental effects. Following the loan conditions by the World Bank, the Narmada Control Authority agreed to meet these conditions on a pari passu basis by 1989. 38 Wade (n 24); Bhagat-Ganguly 2015 (n 16) 137. 39 TISS (n 33) x, xi. 40 ibid 2. 37

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380 Research handbook on law, environment and the global South Pradesh. These figures, however, are incomplete, because they only include revenue villages, with no mention of forest villages. Similarly, no attempt has been made to list those villages that would be affected due to the backwater effect. In 2007, a status report by the Narmada Control Authority mentioned, The projected cost of at Full Reservoir Level (FRL) of 455 feet (138.68 m) the dam will submerge 37,533 ha of land in 245 villages in Gujarat, Maharashtra and Madhya Pradesh, displacing 48,304 families as noted in the latest (2007). The planned mammoth canal distribution network of 90,000 km will take a toll of approximately 80,000 ha of land.41

As presented by the Narmada Control Authority,42 about 32,553 families were to be affected due to submergence and back water effect at the full height of dam (FRL 138.68 metres). State-wise break-up of affected villages and the number of PAFs are shown in Table 19.1. Table 19.1 State-wise break-up of affected villages and number of PAFs States

Villages affected

No. of PAFs*

Full

Partial

Total

Madhya Pradesh

1

177

178

23 614

Maharashtra

–

33

33

4 176

Gujarat

3

16

19

4 763

Totals

4

226

230

32 553

Note:

* Families to be rehabilitated including major sons/daughters.

The construction of Sardar Sarovar Dam began in December 1987. The estimated projected cost at the time of the Planning Commission’s investment approval was Rs 64.06 billion at 1986–87 price levels. As per the 11th Plan Working Group of the Planning Commission, the financial costs of the SSP have risen to Rs 450 billion.43 A total of Rs 86.64 billion have been spent during the period from 1996–97 to the end of March 2015.44 2. Techno-managerial Model and Approach to River Control The core of a mega-dam or multi-purpose project on a river begins with the notion of ‘river control’. It is regarded as necessary to control river flow to facilitate its use, namely for solving problems of flooding, making provision for drinking water, providing irrigation facilities, electricity generation and to meet other needs. The SSP is a hallmark of this worldview, a dominant view for the development of the nation. The Quoted in TISS (n 33) x. Narmada Control Authority, accessed at http://nca.gov.in/rnr_index.htm. 43 TISS (n 33) xii. 44 Narmada Control Authority, Status Report on Sardar Sarovar Project (December 2015), accessed at http://nca.gov.in/forms_pdf/Status_Report_Dec_2015.pdf. 41 42

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Dams and displacement: the case of the Sardar Sarovar Project, India 381 entire planning of river control becomes technological planning, financial planning and planning about water distribution and its uses/benefits. In this process, displacement and submergence of land, R&R, and other concerns about ecology, cultural aspects and life survival strategies, remain secondary. Expert knowledge has acquired supremacy over the commoner’s knowledge about ecology and survival strategies. The power of the subject expert does influence both public policy and the specific objectives of the project; and then becomes shared professional knowledge and an influential public discourse on such a technology-driven development paradigm. Once this is established, the implementers endorse that an expert can see what ordinary people cannot.45 The expertise on river control in fact falls in a grey zone of ‘soft epistemology’ where theoretical knowledge by itself is not sufficient, but requires an additional practical dimension that guides it.46 In the existing system of governance, a convergence between the political and the technical is necessary for creating the ideal system of legitimation. When the technical and the political converge, legitimation crises cease to exist. Thus, these experts’ views have become ‘ideal’ for the public discourse on river control and have gone on to acquire supremacy. The processes of the state are believed to be sacrosanct in this manner. This becomes one of the points wherein shrouding around the facts, dataset and debates gathers momentum. The non-technical group is compelled to argue either in the language of technological expertise or seeking the support of technological experts for counter-argument. In this situation, communication creates scope for disinformation, misinformation and controversies. While analysing the World Bank retrofitting, Wade mentions that: NGO pressure built up began to produce apparently deceitful behaviour on the part of the operational staff. Their logic went like this. (1) We know things are not going well in the project. (2) But do we want to pull out or suspend? (3) No, it is potentially a damn fine project, and things will go better if we are in. (Anyway, management would not allow a pull out, for country relations reasons. India is too good a borrower.) (4) Therefore we need to justify staying in. The way to do so is to send reports up the hierarchy that things are going well or at least improving, making sure that if anything is said about things not going well the phrasing implies that they are minor or on the way to being fixed. The trick is to make the aroma of words do the work that the evidence cannot.47

The distribution of river water between different riparian states poses two problems – allocation and distribution of water; and avoidance or resolution of conflict. In this case, water distribution was settled by the Supreme Court of India while the latter problem kept appearing intermittently between Gujarat and Madhya Pradesh. A related issue in this regard is the different opinion about use of water and environment clearance as well as R&R on pari passu which is a cause for conflict between the state government and social/environmental activists. The prevalent technology based Bhagat-Ganguly 2015 (n 16) 162. R Baghel, River Control in India: Spatial, Governmental and Subjective Dimensions, Advances in Asian Human-Environmental Research (Springer 2014) 121, 122. 47 Wade (n 24) 59. 45 46

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382 Research handbook on law, environment and the global South approach does not address or capture this issue effectively. Wade has analysed this situation after going through various official documents of the World Bank.48 Hopper and Tibor49 agreed – as did the Secretary of irrigation, Government of India – that the Bank had for too long been helping Indian engineers to perfect the 19th century British engineering design instead of upgrading to the late 20th century design standards. Notwithstanding the size, Sardar Sarovar would be, if Gujarat’s plans were not changed, a canal that reflected a late 19th century solution to a problem that 20th century technology had long solved. Indeed, everything except the physical infrastructure was neglected. Hopper and Tibor wanted to seize the rare chance of Sardar Sarovar to make a beachhead of change in India’s conservative irrigation establishment. Conversely, they thought Gujarat’s existing plans would be a disaster in the making; the resulting canal would have insufficient water control to avoid extensive waterlogging and salinity, let alone to support a variegated agriculture. Hence, issues of seepage, drainage and water control became central to the project’s definition. In this limited sense, the World Bank, supported by the Indian irrigation secretary, gave great weight to ‘environmental’ issues,50 and it baffled the World Bank’s project staff when the campaign later accused them of neglecting the environment. 3. Conundrum of Multiple Implementing Agencies for SSP Different authorities have been established by the Government of India for certain specific roles. These authorities constitute a web of institutions, and judicial interpretations have led to putting one agency against the other. For instance, two court judgments – 2000 and 2005 – differed from the Narmada Water Dispute Tribunal Award, namely the judgments speak of pari passu (side by side) R&R whereas the Award is clear that all R&R should be completed at least six months prior to the commencement of any construction work on the wall. The Grievance Redressal Authority was constituted by the Supreme Court’s directive to redress grievances of the PAFs in 1999 for the states of Gujarat, Madhya Pradesh and Maharashtra. Almost 9,000 grievances were registered with it in the year after its constitution. Performance of the Grievance Redressal Authority on effective implementation of the R&R plan is expected, in coordination with the Narmada Control Authority sub-group of R&R and Sardar Sarovar Narmada Nigam Ltd. However, looking at the discrepancy in the number of PAFs and the resettled population, the action-taken report of the Grievance Redressal Authority based on monitoring and evaluation of the SSP indicates its poor performance. The issue of backwater estimates of the Maximum Water Level of the dam was not settled until 2008. As a result, about 10,000 families were not informed whether their ibid 46, 47. David Hopper, an expert on Indian irrigation and agriculture, was vice-president during the critical first two-thirds of the Bank’s involvement in SSP, from 1979 to 1987. Gabriel Tibor worked under Hopper as chief of India Irrigation Division in the World Bank. See Wade (n 24) 46. 50 This also refers to the conditional environmental clearance point imposed by the Ministry of Environment and Forests in 1987. 48 49

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Dams and displacement: the case of the Sardar Sarovar Project, India 383 homes would be submerged if the Sardar Sarovar Dam is completed by installation of gates. Thus, by delaying this decision, the Narmada Valley Development Authority and the Narmada Control Authority are placing at least 10,000 families in a precarious situation.51 Similarly, the Environment Sub-Group of the Narmada Control Authority failed to ensure compliance with the conditions for clearance given by the Ministry of Environment and Forests to carry out monitoring and review of environment mitigation measures such as catchment area treatment, compensatory afforestation and command area development. Sardar Sarovar Narmada Nigam Ltd was created for effective implementation of the Narmada Water Dispute Tribunal Award. It is criticised for its indiscriminate resource mobilisation that has led to a mounting debt repayment burden on the people of the state of Gujarat.52 Regarding technical issues like the submergence zone due to backwater level in tributaries, Sardar Sarovar Narmada Nigam Ltd needs to coordinate with the Narmada Control Authority, the Central Water Commission and the Sardar Sarovar Construction Advisory Committee. However, lack of coordination among these agencies seems a crucial challenge.53 4. Playing Number and Policy Games about Project Affected, Displaced and Resettled Population Regarding the number of the displaced and resettled families as well as how much land would be submerged, the shrouding attitude of the state governments has been discussed by different agencies, subject experts and writers.54 Key aspects such as survey of submergence area; identification and enumeration of people affected by reservoir, canals and other irrigation structures; and an assessment of the nature and extent of resources and institutional mechanisms required for resettlement were not addressed properly.55 The state governments invariably underestimated the number of resettled families and requirements, and their special status.56 According to the Morse Commission, 117,575, or 59 per cent of the 199,500 people officially acknowledged as affected by the project, belong to Scheduled Tribes.57 Recently, when the Narmada Bachao Andolan organised jal samadhi (death by drowning in protest) or jalsatyagraha (protesting in water for truth revelation) in September 2017, an official of Madhya Pradesh’s Narmada Valley Development Authority said that 23,614 families were affected by the dam in the four districts of Madhya Pradesh. He claimed that ‘Ninety-nine per cent families, who were partially affected by the dam’s backwater, had TISS (n 33) xii. ibid. 53 ibid 16. 54 S Parasuraman, The Anti-Narmada Project Movement in India: Can the Resettlement and Rehabilitation Policy Gains be Translated into a National Policy (International Institute of Social Studies 1993); T Scudder, ‘India’s Sardar Sarovar Project (SSP)’ (unpublished manuscript 2003). 55 Parasuraman (n 54) 2. 56 Scudder (n 54) 9. 57 Quoted in Amita Baviskar, ‘The Political Uses of Sociology: Tribes and the Sardar Sarovar Project’ (1995) 44(1) Sociological Bulletin 89, 90. 51 52

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384 Research handbook on law, environment and the global South already left their places and are comfortably staying in the state government-run shelter homes or rehabilitated’.58 As per the Narmada Water Dispute Tribunal Award, initially the Government of Gujarat accepted ‘land against land’ only for the landholders and not the rest. There was no provision for encroachers (having usufructuary rights over the land), the landless people and the land that would become tapu (island) after submergence of the surrounding area. The Government of Gujarat announced an R&R package in December 1989, in which, the definition of ‘resettlement’ was expanded with somewhat clear definitions of oustee, family, land allotment for landed oustees and encroacher oustees, landless oustees and major sons of the above-mentioned categories, house plot, components of rehabilitation package, such as rehabilitation grant, grant-in-aid, subsidy, transportation grant, acquisition of private land, civic amenities and other facilities. Pravin Sheth, representing the Government of Gujarat, appreciated R&R measures in the following words – ‘the PAPs are rehabilitated and resettled with a most liberal package, not offered in such cases anywhere in the Third World’.59 An analyst sympathetic to the dam described this post-R&R phase in the Narmada Movement as ‘a golden chapter of cooperation between the state and the people, its governments and NGOs’.60 Gujarat, Maharashtra and Madhya Pradesh have followed each of these categories (oustee, components of rehabilitation package) with some modifications. The provisions of R&R were considered a remarkable improvement compared to the earlier practice of compensation through cash. However, discrepancies continued at the level of R&R measures by each state and perceptions of displacement and R&R too varied from family to family. Mixed views on the impact of resettlement were expressed.61 For instance, the Government of Maharashtra followed the R&R law of 1976, while the Government of Madhya Pradesh declared cash compensation against the land lost. Later the Government of Madhya Pradesh announced a Special Rehabilitation Package involving an ‘offer’ for oustees to give up/surrender their legal entitlement to alternative land, by opting for cash with which to ‘purchase’ the land. Due to such discrepancies in R&R provisions, both the states did not match the requirement of the World Bank’s policy guidelines on involuntary resettlement.62 The Supreme Court Judgment of 200563 upheld the entitlement of each major son to 2 ha of land against 1 ha that was previously approved by the Maharashtra State R&R Policy. The Government of Maharashtra passed a Government Resolution in April 2007 declaring an entitlement to 2 ha land for major sons. 58 PTI (Press Trust of India), ‘Protests in Madhya Pradesh as PM Dedicates SSD to Nation’ Outlook (17 September 2017), accessed at www.outlookindia.com/newsscroll/protests-inmadhya-pradesh-as-pm-dedicates-ssd-to-nation/1148298. 59 Pravin Sheth, Narmada Project: Politics of Eco-Development (Har-Anand Publications 1994) 60. 60 Quoted in Mona Mehta, ‘A River of No Dissent: Narmada Movement and Coercive Gujarati Nativism’ (2010) 1(4) South Asian History of Culture 509, 512. 61 Baviskar (n 57) 89. 62 Parasuraman (n 54) 24. 63 Narmada Bachao Andolan v Union of India and Others (2005) 4 SCC 32, Judgment of 15 March 2005 (Supreme Court of India).

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Dams and displacement: the case of the Sardar Sarovar Project, India 385 As per the estimate of the World Commission on Dams, the canal would displace an additional 157,000 people.64 The numbers game has continued until 2016. Saxena and Dave65 reported that 45,000 PAFs of Madhya Pradesh and Maharashtra are awaiting rehabilitation. They further wrote: Rajnish Vaish, additional chief secretary, Narmada Valley Development, Madhya Pradesh, said police are lodging FIRs [First Information Report] against bogus claimants and against government officials who conspired with them to claim compensation. He said 22,068 oustee families who faced submergence when the dam was 121.91metres high have been rehabilitated. According to government records, most of the remaining 15,000 families who face submergence once the gates are closed continue to live in their original homes and till their ancestral lands. Some of them have got caught up in the scam as government records show forged documents were used to claim compensation on their behalf.66

5. Role of Civil Society Actors – NGOs, Political Parties and Eminent/Concerned Citizens Until 1987, the Government of Gujarat, a few civil society organisations based in Gujarat and PAPs were working for resettlement of PAPs jointly. They were constantly evolving methods and mechanisms for resettlement based on experiences in Gujarat as well as in Maharashtra. Initially, there was an exchange between these actors on resettlement related issues. For instance, ARCH-Vahini decided to support the Government of Gujarat for effective implementation in the initial phase of R&R while Maharashtra-based Narmada Dharangrasta Samiti and Madhya Pradesh-based Narmada Ghati Nav Nirman Samiti focused on issues of displacement of the PAPs, need for holistic resettlement including basic amenities and infrastructure at the resettlement sites, and to rebuild the socio-cultural environment. Out of the more than 25,000 people affected by the SSP in Gujarat and Maharashtra, more than 90 per cent of them are members of the Bhil and Tadavi tribes. Most of them are landless and fall into two categories of traditional tribal cultivators with no land titles and the real landless agricultural labourers found in many villages of Madhya Pradesh. For the forestdwelling tribals, the most serious impact of displacement will be the separation from their natural surroundings. The forest and the river play central roles in their cultural and economic life; neither will be present at the resettlement sites. Later, the NGO movement in Maharashtra and Madhya Pradesh took a completely different turn.67 The demand – ‘first rehabilitation then the dam’ – began in Maharashtra through a Left-led ‘Committee of Dam and Project Evictees’.68 Håkan Gustafsson and others, Law, Resistance and Transformation: Social Movements and Legal Strategies in the Indian Narmada Struggle (Lund Studies in Sociology of Law 2013) 32. 65 Deshdeep Saxena and Kapil Dave, ‘Damning Report on Rehab in MP Hits Sardar Sarovar Dam’ Times of India (19 October 2016), accessed at https://timesofindia.indiatimes.com/city/ ahmedabad/Damning-report-on-rehab-in-MP-hits-Sardar-Sarovar-dam/articleshow/54929053.cms. 66 ibid. 67 Scudder (n 54) 19. 68 Dwivedi (n 31). 64

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386 Research handbook on law, environment and the global South The chief ministers of the beneficiary states, especially Gujarat and Madhya Pradesh, expressed commitments for the completion of the SSP.69 They sought to address the differences between beneficiary states through a series of dialogues and also sought mediation of the central government as well as the Prime Minister as and when needed, for instance, with Indira Gandhi in 1972, Rajiv Gandhi in 1987 and later with AB Vajpayee. The beneficiary states have adopted different strategies in their engagement with the opposition to the project. In fact, ‘[f]rom 1987, the Gujarat Congress Party government of Amarsinh Chaudhary adopted a hard-soft approach to meeting the protesters’ challenge. Hard measures included the use of draconian laws to arrest anti-dam demonstrators and protect the dam-site, while soft measures added gradual improvements to the resettlement package and more environmental compensations’.70 The chief ministers of Madhya Pradesh organised large rallies countering Narmada Bachao Andolan’s rallies, addressed large crowds and influenced the central government to continue support to the SSP. Once a Chief Minister of Gujarat and the Prime Minister of India since 2014, Narendra Modi has been consistently promulgating Narmada as the ‘lifeline of Gujarat’.71 When the Narmada Bachao Andolan announced a three day jalsatyagraha during September 2017, the Prime Minister dedicated the SSP to nation.72 As a result of such political actions by political leaders belonging to different political parties and representing/ruling state and the central government, the masses thought that consensus among different political party means that the SSP is beneficial to all. In December 1990, Baba Amte, Medha Patkar along with a few community leaders and eminent citizens started Bharat Yatra with about 300 jansatyagrahis (people who wish to establish truth). They had planned to enter Gujarat from the border of Madhya Pradesh and Maharashtra through a place called Ferkuva. They wanted to talk to people of Gujarat about the myths of Narmada water being flowing through canals in their region. The then Gujarat Chief Minister, Chiman Patel, and his wife actively mobilised the masses to prevent Baba Amte and Medha Patkar from crossing the border. Baba Amte, Medha Patkar and all the jansatyagrahis were not allowed to cross the border for more than 16 days and eventually they had to return.73 The Narmada Bachao Andolan played and continues to play a critical role insofar as the human and ecological impacts of the project are concerned. There are four important points of the Narmada Bachao Andolan’s struggle: (a) R&R related issues; 69 This is, for instance, the case of Chiman Patel, twice elected Chief Minister of Gujarat in the 1970s and 1990s. In 2014, after the Ministry of Water Resources granted clearance for raising the height of the dam by 16.76 metres, Anandi Patel, Chief Minister of Gujarat rushed to the dam site to pray for the swift commencement of the work. See ‘Gujarat Gets Approval to Raise Height of Narmada Dam’ Outlook (12 June 2014), accessed at www.outlookindia.com/ newswire/story/gujarat-gets-approval-to-raise-height-of-narmada-dam/844261. 70 John R Wood, ‘India’s Narmada River Dams: Sardar Sarovar under Siege’ (1993) 33(10) Asian Survey 968, 977. 71 eg Deepal Trivedi, ‘Lifeline of Gujarat Brought to Life’ Ahmedabad Mirror 18 September 2017, accessed at https://ahmedabadmirror.indiatimes.com/ahmedabad/others/lifeline-of-gujaratbrought-to-life/articleshow/60724635.cms. 72 PTI (n 58). 73 For more details, see Bhagat-Ganguly 2015 (n 16) 133–74.

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Dams and displacement: the case of the Sardar Sarovar Project, India 387 (b) environmental risks; (c) financial issues in terms of cost and benefit analysis; and (d) whether displacement can be minimised with regional planning and alternative technological solutions. Alternative solutions for water resource crisis included watershed management, check dams, and small dams and conjunctive use of aquifers. R&R related issues largely focused on whether there exists a policy for R&R and whether its implementation is satisfactory in terms of compensation, employment, civic amenities, infrastructure for education and cultural aspects of community life. Earlier, displacement and R&R were considered as two sides of the same coin, focusing on compensation and R&R, the issue of minimising displacement or accepting displacement as an inevitable process was sidelined. The Narmada Bachao Andolan addressed the undemocratic modes employed in the planning and execution of projects within the Narmada Valley Development Plan and criticised the non-participative modes of development adopted by the post-independent state; the limited capacities of the state to rehabilitate all PAPs; approach to R&R, the livelihood issue of the large numbers of persons and submergence of forestlands and its impact on biodiversity; and flaws in statistical details provided by the Narmada Valley Development Plan through various technical studies carried out on water irrigation, energy generation and ecological issues. The Narmada Bachao Andolan relied on the ‘right to development’ as enshrined in the UN General Assembly Declaration on the Right to Development to highlight the centrality of people and their welfare in the development discourse as opposed to the mainstream development discourse that, in effect, serves the interest of only a privileged few.74 The protest strategies of the Narmada Bachao Andolan along with other protesting groups employed a number of strategies. This includes, along with PAPs across different states, dialogues with concerned government officials, submission of memorandums for policy change, reaching out through mass media, organising jalsatyagraha, fast unto death, organising rallies and padyatras (foot march) across different states in India for spreading awareness and policy change. The ‘eminent citizens’ category broadly includes academia, lawyers and journalists. These groups of citizens have taken mainly two types of action: (i) independent review by means including writing letters to the elected representatives (Prime Minister, MPs, chief ministers, and MLAs (Member of [State] Legislative Assembly) of concerned states), and (ii) organisation/participation in protests like padyatra (foot march) and sitting on dharna (symbolic collective action). One of the very recent letters by eminent citizens was written to the Prime Minister calling for a review and discussion on Sardar Sarovar Dam in the national interest, which raises issues of rehabilitation and the plight of the displaced population; issues of land records in Madhya Pradesh, diversion in use of Narmada water as well as land in the command area for industries which were not to be availing the water.75

Declaration on the Right to Development, UN General Assembly Resolution 41/128 of 4 December 1986, UN Doc A/RES/41/128, preamble; Patkar (n 14) 2432. 75 Letter dated 28 October 2014; a copy of the letter is available at www.sacw.net/article 9894.html. 74

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388 Research handbook on law, environment and the global South 6. Cost Factor and Cost-benefit Methodology and Analysis The cost-benefit analysis covers mainly three aspects: (i) environment, that is, impacts on the ecosystem, including loss of biodiversity, loss of flora, fauna and wildlife, seismological problems and human health impacts; (ii) economics incorporating cost/expenditure versus specified benefits such as drinking water, electricity generation, irrigated areas; and (iii) displacement and human cost versus what is achieved and what is lost on a humane count. Every category of cost-benefit analysis is composed of more than one component, for example, environment consists of treatment of catchment area and flora and fauna, and fishing. Each component requires a different methodology for cost-benefit analysis and there is no method to prepare a composite index. Further, the availability of data is also an issue. Various studies reveal that either there exists discrepancies in data or non-existent data.76 Regarding economic cost-benefit analysis, it is in a way a simpler method of calculation, that is, allocation of the fund and its utilisation/expenditure incurred. However, here too, discrepancy in data exists. The TISS report, based on reports by the Comptroller and Auditor General of the respective beneficiary states, provides details on original cost when the project was approved, cost escalation, factors contributing to cost escalation and lack of trusted data. By 1987, about 2,000 families from Gujarat and 90 families from Maharashtra had been displaced and shifted to the resettlement sites. In 1985, the World Bank provided a ‘start-up’ loan of $450 million to the SSP and later a $350 million loan for construction of the canal. Another loan of $90 million for environmental protection in the Narmada Basin Development Project was under negotiation. This loan comprised about 18 per cent of the costs of the dam and 30 per cent of the expenditure on the canals; the rest were to be borne by the state governments. The escalation in the total cost of the SSP is very high, followed by several revisions and projections by the Planning Commission and other concerned government agencies. Displacement versus human cost, R&R cost and environment cost is one of the most complex issues for cost-benefit analysis. No research report or monitoring and evaluation report has holistically looked at these issues and calculated impacts based on a composite index or regression analysis. Many studies provide data on one-to-one processes, that is, displacement and extent of R&R or cost incurred on R&R, displacement and loss of employment. 7. Course of Legal Action and Judicial Interpretation All judicial verdicts operate in a social field and, therefore, the process of interpreting a judicial decision needs to be positioned in the sociological matrix within which it operates. As the Supreme Court of India is considered the guardian of justice, its verdicts are regarded as symbols of justice. These verdicts are valued highly, as

76 eg TISS (n 33) 32; Ashish Kothari and Rahul N Ram, Environmental Aspects of the Sardar Sarovar Project (Kalpavriksh 1994) 48.

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Dams and displacement: the case of the Sardar Sarovar Project, India 389 different institutions are bound by them. The course of legal action in the context of SSP witnessed the discussion of various dimensions of displacement and right to rehabilitation as well as a discourse on dams and development. The discussion in the courts, in fact, has not been restricted only to the SSP but relates to a very large number of project situations in the country. Table 19.2 summarises various issues raised by different actors and the Supreme Court’s orders and judgments.77 The litigation of importance started in 1994 and after hearings at respective state High Courts, it reached the Supreme Court of India. The issues raised by different actors for legal action could be classified broadly into two categories: (i) environmental concerns including dam related issues, that is, height of the dam and its impact on environment and R&R; and (ii) R&R related issues such as land acquisition, compensation and whether adequate and satisfactory R&R plans are executed. Mainly three judgments of the Supreme Court of India (popularly known by their year, namely 2000,78 2005 and 2011) and other orders (of 2015 and 2017) are considered to be important in the context of their implications and repercussions on displaced population, performance of R&R plans and environment issues related to the SSP. The 2000 judgment essentially stated that the construction should be pari passu (alongside) R&R. The 2005 judgment rejected the distinction between ‘temporary’ and ‘permanent’ submergence, thereby giving equal R&R rights to all dam-affected people. The Narmada Water Disputes Tribunal Award ruled on aspects of land-for-land, quality of land and resettling communities as a whole.79 The legal cases are seen as a strategy of ‘creating space’ for different claims and parties.80 An analysis of the judgments reveals how the rights are recognised by the Narmada Water Dispute Tribunal Award – land against land for R&R, right to choose between Gujarat and their home states for R&R, irrigable land, R&R as a precondition for increase in height of the dam. They also reveal how the Court views rights and gives recognition in the form of justice post-conflict era, in a situation where a lot of tussle has taken place over competing claims of the truthful facts between contending parties. Insofar as R&R is concerned, the solution of land against land was not effectively ensured. Mostly, cash compensation has been a mode of R&R. At the same time, even this dispersal seems problematic because the number of displaced and resettled families have remained contentious.

77 These details are retrieved from http://nca.gov.in/court-cases/court-cases-may14-R&R.pdf and https://indiankanoon.org/docfragment/1642722/?formInput=narmada%20bachao%20andolan. 78 The first writ petition by NBA is to be seen in the context of a ‘no dam’ demand, which was originally started for just and proper R&R as part of pari passu and environment concerns. For further details see Gustafsson and others (n 64) 58–65. 79 Lyla Bavadam, ‘Sardar Sarovar Project: Drowned in Politics’ Frontline (5 May 2006), accessed at www.frontline.in/static/html/fl2308/stories/20060505003912000.htm. 80 Gustafsson and others (n 64) 66.

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390 Research handbook on law, environment and the global South Table 19.2 Details of legal cases and order/judgments of the Supreme Court

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Case details (parties, case number, year)

Supreme Court’s Order/Judgment (main points)

Writ Petition (C) No. 319 of 1994 Narmada Bachao Andolan

On 18 October 2000, the Supreme Court of India delivered its judgment on the Sardar Sarovar Project. In a two to one majority judgment, it allowed immediate construction of the dam up to a height of 90 m and held that further raising of the height would be only pari passu with the implementation of the relief and rehabilitation measures. → The judgment authorised construction up to the originally planned height of 138 m with 5-m increments subject to approval from the Relief and Rehabilitation Subgroup of the Narmada Control Authority. → The Narmada Water Disputes Tribunal Award states that land should be made available to the oustees at least a year in advance before submergence (Clause XI, Subclause IV(2)(iv), Subclause IV(6)(i),(ii)). The essentially unfettered clearance from the Supreme Court of India came despite major unresolved issues on resettlement, the environment, and the project’s costs and benefits.

WP (C) 328 of 2002 – Sardar Sarovar Project

Contentions raised regarding PAFs’ entitlements for the benefits of the rehabilitation package of the Narmada Water Dispute Tribunal: (i) all major sons of the landholders; (ii) those who had also been temporarily affected; and (iii) the heirs of landholders who died prior to the date of notification. Final outcome: → It is not in dispute that the Award provided that every displaced family, whose 25 per cent or more agricultural landholding has been acquired, shall be entitled to be allotted irrigable land to the extent of land acquired subject to the prescribed ceiling of the state with a minimum of 2 ha of land. → It is not in dispute that the lands offered by the Narmada Valley Development Authority, a state forum, have been found to be acceptable by the applicants belonging to Village Jalsindhi. The Respondents were directed to allot such lands immediately to them.

Sardar Sarovar Project IA No. 18-35 in WP No. 328 of 2002 Filed in 2006

The dispute is about the rehabilitation of the oustees in terms of the Narmada Water Dispute Tribunal Award and decisions of the Supreme Court of India. The decision of the Narmada Control Authority permitting the raising of the Sardar Sarovar Dam height from 110.64 m to 121.92 m was challenged. The Supreme Court of India directed vide judgments dated 18 October 2000 and 15 March 2005 that all affected oustees be rehabilitated by providing them minimum 2 ha of irrigable, cultivable land and house plots at rehabilitation villages without any further delay.

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Dams and displacement: the case of the Sardar Sarovar Project, India 391 Case details (parties, case number, year)

Supreme Court’s Order/Judgment (main points)

Narmada Bachao Andolan v Union of India and Ors

On 15 March 2005, the said petition was disposed of by issuing various directions and findings including: (i) displacement of the tribals and other persons would not per se result in violation of their fundamental or other rights; (ii) on their rehabilitation at new locations they would be better off than what they were; (iii) at the rehabilitation sites they will have more and better amenities than those they enjoyed in their tribal hamlets; and (iv) their gradual assimilation in the mainstream of society would lead to betterment and progress.

Sardar Sarovar Project (SSP) WP No. 12620 of 2013 High Court of Madhya Pradesh, at Jabalpur

The petition sought for the following: (i) To challenge all the mining leases for extraction of minor minerals (sand) issued by the Collectors of districts Badwani, Dhar, Khargone and Alirajpur in the villages on the Narmada river bank or her tributaries and/or affected by the Sardar Sarovar Project (submergence areas, directly draining catchment and indirectly draining catchment) since 2008 to date. (ii) To direct the Government of Madhya Pradesh to scrupulously comply with all the directions in the Judgment of the Hon’ble Supreme Court dated 27 February 2012 in Deepak Kumar v State of Haryana and Ors. (iii) To initiate strict legal action, including action as per the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989, against all those persons who are involved in disrupting the law and order in the villages. (iv) To direct the Regional CCF (Chief Conservator of Forests), Bhopal and the SEIAA (State Environment Impact Assessment Authority) to conduct an environment impact assessment in the mining areas, studying violations of laws, rules and judgments over the last few years. (v) To direct the Justice Jha Commission of Inquiry to investigate into the corruption in the entire sand mining process vis-à-vis the excavation on the lands acquired by the Narmada Valley Development Authority for the purpose of SSP. (vi) To direct the responsible authorities to compensate the PAFs for the losses incurred by them.

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392 Research handbook on law, environment and the global South Table 19.2 (continued)

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Supreme Court’s Order/Judgment (main points)

Garudeshwar Weir under Sardar Sarovar Project (SSP) Application No. 10 of 2014 National Green Tribunal (NGT) Western Zone (WZ), Pune

The application challenges the following: → The illegal commencement of construction of Garudeshwar Weir which is being set up about 12 km downstream of the Sardar Sarovar Dam in Narmada district, Gujarat → The damage which will be done to the environment, the large number of villages and their livelihood that will be affected because of this. Pass orders staying any and/or ongoing construction at or in respect of Garudeshwar Weir at Garudeshwar village of Narmada district, Gujarat. → Direct the Respondents to take adequate and necessary measures to ensure stoppage of any further construction; → Direct the Respondents to initiate legal action under Sections 15 and 16 of the Environmental (Protection) Act, 1986 (EPA) against the concerned individuals and companies that have started construction or given permission for construction of Garudeshwar Weir; and under Section 17 of the EPA against the concerned officers who have failed to ensure complete compliance with the EPA; → To restrain the Respondents from carrying out any further construction until the final disposal of the application; and → To direct the first Respondent to take all necessary steps for restitution of the project area to its status quo ante.

Supreme Court IA Nos 42, 43, 50–51 & 52–53 in WP (C) 328 of 2002

On 8 February 2017, the cases were closed and the Supreme Court of India has ordered final compensation of Rs 6 million. Further IAs (interlocutory application) mentioned are pertaining to the issue of non-compliance with the judgment given in WP (C) 328 of 2002. Directions issued to the centre and state to settle the claims of the people who have not received the compensation. An amount of Rs 6 million has been directed to be paid. Total of 681 families will receive the said compensation who had earlier not accepted compensation and demanded land for land as per the original Narmada Water Dispute Tribunal Award. Also ordered 1,358 families to get Rs 1.5 million compensation, who under inducements from the officials-brokers had accepted part cash compensation and found themselves involved in the fraudulent and fake registry cases and ensuing corruption.

Civil Appeal No. 2957 of 2013 Kachchh Jal Sankat Nivaran Samiti & Ors

The petitioners approached the Supreme Court of India challenging the allocation of total amount of water allocated to the district of Kutch. The Court held that as the water dispute tribunal being an expert body has already decided the issue, the same cannot be interfered in by the courts. It was also held that the states have the prerogative to frame a policy.

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Dams and displacement: the case of the Sardar Sarovar Project, India 393 Case details (parties, case number, year)

Supreme Court’s Order/Judgment (main points)

Civil Appeal No. 2082 of 2011 Narmada Bachao Andolan v State of Madhya Pradesh and Anr

Civil Appeal No. 2082 of 2011 Civil – Allotment of agricultural land – Whether landless oustees entitled to allotment of agricultural land. → There was nothing in the Award which provided any benefit to the oustees of the Omkareshwar Dam or suggested that the Award was applicable in the present case also. Hence, the claim as sought not sustainable. Civil – Entitlement to land in lieu of submerged land – Whether the oustees of five villages which have already been submerged are entitled to allotment of land in lieu of land acquired, in spite of the fact that the SRG (Special Rehabilitation Grant) had already been granted to them → In view of the settled legal proposition that no person should suffer from an act of the Court and to ensure that the oustees of the five villages, which have already been submerged under the orders of the courts, did not face hostile discrimination at the hands of the authorities held to be entitled to the relief to which the other oustees were entitled in Civil Appeal Nos. 2115–2116 of 2011 Civil Appeal Nos. 2083–2112 of 2011 Civil Rehabilitation – Directions passed in connection related thereto under challenge – Whether acquisition is a compulsive necessity of land likely to be submerged temporarily or permanently and, also, whether the acquisition proceedings had reached the stage of no return, that is, they cannot be abandoned. → No straitjacket formula can be laid down for taking possession of the land for the purpose of sections 16 and 17 of the Land Acquisition Act, 1894 as it would depend upon the facts of an individual case; → In the instant case, in view of the fact that land in dispute was agricultural land and has 167 dwelling houses, law in fact required taking over of the actual physical possession. Since actual physical possession has not yet been taken by the authorities and the entries in the revenue records are not the conclusive proof, the state government is competent to exercise its power under section 48 of the 1894 Act. However, it will be subject to the decision on another relevant issue regarding submergence of the land in dispute permanently or temporarily which is to be considered hereinafter.

D. DEVELOPMENT, DAMS AND DISPLACEMENT: CONTINUED DEBATES Though dams have been regarded as a key factor in the construction of a modern Indian nation they have often been built ignoring popular demands for equity, efficiency, participatory decision-making, sustainability and accountability.81 Dams assumed greater importance in the overall developmental activities in India. A draft prepared by the Planning Commission of India on dams, displacement, policy and law in India mentions that ‘budget provisions for major irrigation projects outstrip most other John (n 32) 3030.

81

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394 Research handbook on law, environment and the global South sectors, including health and education, in the annual plans of many state governments. These are also far in excess of financial allocations for establishing or strengthening decentralised irrigation schemes’.82 However, they have often been built ignoring popular demands for equity, efficiency, participatory decision-making, sustainability and accountability.83 Any decision of a development project, especially an infrastructure project, generated two sets of responses – first, the ruling party would initiate a chain of actions such as budget allocation, approval from concerned authorities, promotional activities to reach out to the beneficiaries, and creating positive atmosphere among the public. Second, there would be scrutiny by the PAPs and/or civil society organisations who may raise questions on equity and distributive justice. As a follow up action, they would opt for two choices – create political dialogue; and assess the pros and cons of the proposed project based on the available information. They would ask for accountability of the government through people-oriented processes, for instance, environmental impact assessment and public hearing. If there were no gaps between the first and second set of options, the project would go through; if a gap existed, a series of questions, follow up actions and debates would be initiated from both sides. The strategies of parties may include legal action, which has increasingly become popular since the 1990s as illustrated under ‘course of legal action’. In fact, this is a very simplistic understanding of the scenario that the SSP has taught us. Once contention begins, the flow of information including technical, technological and financial details of a development project may follow an asymmetric path. Every group of different stakeholders tends to present their point of vantage and, most of the time, these vantage points create a web of contentions and confusion. Some of the vantage points known from the SSP include technology of dam for water resource management; political benefits and mobilisation of the masses with a political agenda in the name of development; financial allocation in tune with the political agenda of the ruling government, again in the name of development; attracting financial investment and accepting terms and conditions of international financial institutions who may bring newer aspects of any development activity such as environmental concerns and R&R and cost-benefit analysis. The SSP case study reveals that the PAPs look for mediators and process of mediation84 or an idea similar to ‘political society’.85 The Right to Fair Compensation and Transparency in Land Acquisition and Rehabilitation & Resettlement, 2013 highlights that the resistance to displacement and demand for R&R packages have evolved and compensation against displacement is streamlined to a considerable extent, even though non-monetised items are yet to be addressed. Frontier and evolving topics such as cost-benefit analysis, social audit, social and environmental assessments and a 82 Planning Commission of India, Dams, Displacement, Policy and Law in India (2002) 3, accessed at http://planningcommission.nic.in/reports/articles/ncsxna/art_dam.pdf. 83 Quoted in John (n 32) 3030. 84 Ashok Swain, ‘Democratic Consolidation? Environmental Movements in India’ (1997) 37(9) Asian Survey 818; TK Oommen, ‘Coping Strategies Development Pathologies: Resistance to Development’ (2006) 55(2) Sociological Bulletin 267. 85 Partha Chatterjee, The Politics of the Governed: Reflections on Popular Politics in Most of the World (Columbia University Press 2004).

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Dams and displacement: the case of the Sardar Sarovar Project, India 395 combination of quantitative and anthropological databases have to make inroads as cross-cutting concerns of any development project that involves displacement. The government alias ruling party attempts to authenticate the decisions through existing legal frameworks as well as technological experts and to welcome foreign investment for the proposed development project. In response to this modus operandi of the government, the PAPs (and civil society organisations) negotiate on the grounds of technological and technical information, mediation (if required), examine the nexus between the government and beneficiaries/ruling elites and administrators. After going through the possible channels of democratic institutions, strategies such as approaching the judiciary and bringing the issue to the public sphere are chosen by the PAPs as viable strategies. In this form of resistance, frenzied decisions and behaviour were observed from both sides. The legal framework and legal actions are also utilised by both, PAPs and the state. The SSP is a classic example of these processes. With greater conflicts and controversies, the politically relevant discourse had become war-like and the dominant development paradigm was challenged, but no alternative was provided to the mega and multiple purpose projects.

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20. Wastewater reuse in irrigated agriculture in urban and peri-urban India: a farmers’ rights perspective Lovleen Bhullar

INTRODUCTION Agriculture is a source of livelihood for a majority of the population in several developing countries. Many of these countries, particularly those in arid and semi-arid regions, are heavily reliant on rain-fed irrigation. In these circumstances, wastewater serves as a source of reliable water supply for irrigation and guarantees livelihood for poor farmers. According to a United Nations report of 2002, 20 million hectares of land in 50 countries were irrigated with raw or partially treated wastewater.1 According to more recent estimates, the total area irrigated with wastewater is 35.9 million hectares, 29.3 million hectares of which are in countries with very limited wastewater treatment, and five countries – China, India, Iran, Mexico and Pakistan – account for most of this cropland.2 In recent years, technological advancements in wastewater treatment, recognition of wastewater as a valuable resource, increase in the purchasing power of consumers of agricultural produce, and growing awareness of the adverse health and environmental impacts of wastewater reuse have led to demands for the prevention or control of reuse of untreated or partially treated wastewater in irrigated agriculture, and the use of treated wastewater instead. In practice, however, it is difficult to regulate the reuse of untreated or partially treated wastewater in irrigated agriculture in resource-poor countries.3 Governments in developing countries face a trade-off between depriving farmers of the only means to secure their livelihood and providing sufficient wastewater treatment to meet water quality standards and address public health and environmental concerns.4 We can also examine this issue through the lens of a rights-based approach. We can articulate each of the abovementioned concerns in terms of the rights to livelihood, food,

1 United Nations, UN World Water Development Report: Water for People, Water for Life (UNESCO 2003). 2 AL Thebo and others, ‘A Global, Spatially-Explicit Assessment of Irrigated Croplands Influenced by Urban Wastewater Flows’ (2017) 12(7) Environmental Research Letters, accessed at https://iopscience.iop.org/article/10.1088/1748-9326/aa75d1/pdf. 3 P Drechsel and others, ‘Balancing Health and Livelihoods: Adjusting Wastewater Irrigation Guidelines for Resource-Poor Countries’ (2002) 8 Urban Agriculture Magazine 7. 4 Blanca Jiménez and Hector Garduño, ‘Social, Political and Scientific Dilemmas for Massive Wastewater Reuse in the World’ in Cheryl K Davis and Robert E McGinn (eds), Navigating Rough Waters: Ethical Issues in the Water Industry (American Water Works Association 2001).

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Wastewater reuse in irrigated agriculture in India: farmers’ rights 397 health, and water. Further, wastewater management, which includes the collection, treatment, recycling/reuse and finally disposal of wastewater, is a key component of the right to sanitation. The complementarity between the right to sanitation and other human rights is widely acknowledged.5 Scholars have also highlighted the possibility of conflict where measures undertaken for the realisation of some rights for some right-holders may undermine the realisation of either the same rights for other right-holders, or other rights for the same or other right-holders.6 In this context, this chapter examines the scope and limits of the regulatory framework for treatment, recycling and reuse of wastewater in irrigated agriculture in India for the realisation of the abovementioned rights, as well as a site of conflict among rights and right-holders. Two considerations motivated the selection of India. First, India is one of the five countries where untreated wastewater is widely reused in irrigated agriculture. Second, the Supreme Court of India and high courts have read several of the abovementioned human rights into the fundamental right to life guaranteed by the Constitution of India to all the citizens. More broadly, an examination of the extent of complementarity and tension between these rights also sheds light on the operationalisation of rights. This chapter specifically focuses on farmers in urban and peri-urban areas who reuse untreated or partially treated wastewater in irrigated agriculture. We can attribute this focus to a number of reasons. First, the increase in urban wastewater generation due to the adoption of water-based sanitation systems, and the lack of capacity among urban local bodies to treat wastewater, has led to the release of vast quantities of wastewater into water bodies or on land (and into aquifers) with little or no treatment. The second reason is the reduction in the available supply of surface water and groundwater for irrigation due to the growing urban population’s demand for water supply for domestic uses, as well as to climate variability and climate change. The third reason is the growing demand for food to meet the requirements of the increasing urban population and market incentives that favour food production in urban and peri-urban areas.7 Fourth, these farmers represent a section of the urban population that lives in abject poverty and lacks job opportunities, besides having low education and limited awareness of health risks.8 Finally, these farmers are excluded from laws, policies, programmes and schemes governing farmers in rural areas, and their rights and interests are often ignored by the state.

5 eg Loretta Feris, ‘The Human Right to Sanitation: A Critique on the Absence of Environmental Considerations’ (2015) 24(1) Review of European Community and International Environmental Law 16. 6 ibid. See also Owen McIntyre, ‘Environmental Protection and the Human Right to Water: Complementarity and Tension’ in Laura Westra and others (eds), Human Health and Ecological Integrity: Ethics, Law and Human Rights (Routledge 2012) 225. 7 Liqa Raschid-Sally and Priyantha Jayakody, ‘Drivers and Characteristics of Wastewater Agriculture in Developing Countries: Results from a Global Assessment’ (International Water Management Institute, IWMI Research Report 127, 2008) v. 8 Blanca Jiménez, ‘Irrigation in Developing Countries Using Wastewater’ (2006) 6(2) International Review for Environmental Strategies 229, 229.

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398 Research handbook on law, environment and the global South

A. THE FRAMEWORK OF HUMAN RIGHTS Before examining the domestic regulatory framework in India, this section considers the link between wastewater reuse, and the enjoyment/realisation of human rights by farmers in urban and peri-urban areas, farmers in rural areas, other users of wastewater, as well as consumers of agricultural produce. 1. International and Domestic Perspectives Under international human rights law, Article 6 of the International Covenant on Civil and Political Rights 1966 recognises the right to life, and Articles 11 and 12 of the International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR) recognise the rights to an adequate standard of living and to health, respectively. More specifically, Article 11(1) of the ICESCR requires the State parties to recognise the right of everyone to an ‘adequate standard of living for himself and his family, including adequate food’. Food production requires water.9 Further, according to the Committee on Economic, Social and Cultural Rights, the core content of the right to adequate food inter alia implies that food is ‘free from adverse substances’.10 The Committee has interpreted this phrase to mean that the State parties must adopt food safety and other protective measures to prevent contamination through ‘bad environmental hygiene’.11 In general parlance, environmental hygiene is based on a link between environmental conditions and human health. This may lead to the adoption of measures by the State parties to prevent or control irrigation with untreated or partially treated wastewater. Further, safe food and nutrition are among the ‘underlying determinants of health’ for the right to health.12 Finally, the rights to water and sanitation have been derived from the rights to health and to an adequate standard of living, and duties corresponding to these rights as well as some components of the environment have been imposed on the State parties. At the national level, Article 21 of the Constitution of India 1950 guarantees the fundamental right to life. The Supreme Court of India (Court) has interpreted this fundamental right to include several rights including the right to live with human dignity,13 the right to health,14 the right to livelihood,15 the right to water,16 the right to Eibe Riedel, ‘The Human Right to Water and General Comment No. 15 of the Committee on Economic, Social and Cultural Rights’ in Eibe Riedel and Peter Rothen (eds), The Human Right to Water (Berliner Wissenschafts-Verlag 2006) 25. 10 UN Committee on Economic, Social and Cultural Rights, General Comment No. 12: The Right to Adequate Food (Article 11 of the International Covenant on Economic, Social and Cultural Rights), UN Doc E/C12/1999/5 (1999) para 8. 11 ibid para 10. 12 UN Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to the Highest Attainable Standard of Health (Article 12 of the International Covenant on Economic, Social and Cultural Rights), UN Doc No E/C12/2000/4 (2000) paras 4, 11 and 15. 13 Francis Coralie Mullin v The Administrator, Union Territory of Delhi (1981) 1 SCC 608. 14 Consumer Education and Research Centre v Union of India (1995) 3 SCC 42. 15 Olga Tellis and Others v Bombay Municipal Corporation (1985) 3 SCC 545. 16 Subhash Kumar v State of Bihar and Others (1991) 1 SCC 598. 9

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Wastewater reuse in irrigated agriculture in India: farmers’ rights 399 sanitation,17 the right to environment,18 and the right to food.19 The recognition of these rights as a part of the constitutional schema by the Court imposes certain duties on the state and its instrumentalities. Even before the Supreme Court read these rights into the fundamental right to life, the Constitution imposed certain duties on the state that correspond to the rights to livelihood, food, health and the environment, explicitly or implicitly. Part IV of the Constitution sets out these duties as Directive Principles of State Policy (DPSP).20 According to Article 37 of the Constitution, although the DPSP are not enforceable in a court, they are fundamental in the governance of the country and it is the duty of the state to apply them in making laws. Therefore, these DPSP find expression in the form of provisions of laws enacted by the state – both the Central Government and state governments. Further, List II (State List) of Schedule VII of the Constitution vests the power to make laws in respect of health, sanitation and water in state governments. In contrast, environment and ‘adulteration of food stuffs and other foods’ are included in List III (Concurrent List) of Schedule VII of the Constitution, which empowers the Central Government as well as state governments to make laws in relation thereto. In fact, several states have adopted the laws enacted by the Central Government. 2. Wastewater Reuse: Synergy or Conflict among Rights Both at the international level as well as domestically in India, the right to water has been narrowly interpreted to include domestic and personal uses.21 Water for agriculture is excluded.22 This means that farmers cannot invoke the right to water to claim, and there is no obligation on the government to provide, water to irrigate land. As a result, farmers in urban and peri-urban areas, who operate at the periphery or outside

Virender Gaur v State of Haryana and Others (1995) 2 SCC 577. Vellore Citizens’ Welfare Forum v Union of India and Others (1996) 5 SCC 647. 19 People’s Union for Civil Liberties v Union of India Writ Petition (Civil) No 196 of 2001 (Supreme Court of India, Interim Order of 2 May 2003. 20 The relevant constitutional provisions include: Article 39(a): ‘The State shall, in particular, direct its policy towards securing that the citizens, men and women equally, have the right to an adequate means of livelihood’; Article 41: ‘The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work … and to public assistance in cases of unemployment, (…) and in other cases of underserved want’; Article 47: The primary duties of the State include ‘the raising of the level of nutrition and the standard of living of its people and the improvement of public health’; and Article 48A: ‘The State shall endeavour to protect and improve the environment (…)’. 21 eg 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) paras 2 and 6. See also Venkatagiriyappa v Karnataka Electricity Board, Bangalore 1999 (4) Karnataka Law Journal 482 (High Court of Karnataka). 22 Riedel (n 9) 27. 17 18

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400 Research handbook on law, environment and the global South the formal irrigation water supply framework, have no choice but to resort to untreated wastewater for irrigation. They may be unable to access groundwater for this purpose because often they are not landowners. This takes us to the understanding of wastewater management in the context of the right to sanitation.23 Traditionally, sanitation has been defined simply as access to toilets. It is not surprising then that the recent recognition of the right to sanitation at the international (and domestic) level is accompanied by an overwhelming emphasis on the construction and use of toilets. Wastewater management is recognised as one of the goals of policy instruments relating to sanitation, but in practice, it takes a backseat. The realisation of this narrow version of the right to sanitation, with its emphasis on the construction of toilets, may have positive impacts on the right to livelihood of a few people where, in the absence of treatment facilities, wastewater becomes available to farmers in urban and peri-urban areas. At the same time, this narrow version of the right to sanitation may have adverse impacts on the rights of other people where the use of untreated or partially treated wastewater in irrigated agriculture compromises public health and the environment. In recent years, however, the issue of wastewater management has gained traction partly due to growing interest in the economics of wastewater treatment.24 An increase in the demand for treated wastewater of a desired quality for different uses may promote the construction and operation of centralised and decentralised treatment facilities, subject to local climatic and geographic conditions, and contribute to the realisation of the broader version of the right to sanitation, which encompasses wastewater management.25 At least two outcomes may follow for farmers in urban and peri-urban areas who reuse untreated or partially treated wastewater in irrigated agriculture at present. Their right to livelihood may be realised where they get access to treated wastewater. Alternatively, the supply of treated wastewater to more powerful interest groups, such as the industry or other farmers, might adversely affect their right to livelihood. 3. Wastewater Reuse: an Opportunity or a Challenge? Wastewater reuse in irrigated agriculture may promote or undermine the realisation of the abovementioned rights, depending on the level of treatment of wastewater before its reuse. The reuse of treated wastewater has a number of positive effects,26 which

23 Lovleen Bhullar, ‘The Environmental Dimension of the Right to Sanitation’ in Philippe Cullet and others (eds), The Right to Sanitation in India: Critical Perspectives (OUP 2019) 261. 24 United Nations World Water Assessment Programme, The United Nations World Water Development Report 2017: Wastewater – The Untapped Resource (UNESCO 2017). 25 Maria Fernanda Jaramillo and Ines Restrepo, ‘Wastewater Reuse in Agriculture: A Review about Its Limitations and Benefits’ (2017) 9 Sustainability 1734. 26 eg Mahima Gupta and others, ‘Wastewater Irrigation in Karnataka: An Exploration’ (IWMI, Water Policy Research Highlight-04, 2016); Alka Palrecha and others, ‘Wastewater Irrigation in Maharashtra: An Exploration’ (IWMI, Water Policy Research Highlight-09, 2016).

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Wastewater reuse in irrigated agriculture in India: farmers’ rights 401 have a bearing on the realisation of the rights to food and livelihood. As a consistent and reliable means of irrigated agriculture, treated wastewater ‘permits higher crop yields, year-round production, and enlarges the range of crops that can be irrigated,particularly in (but not limited to) arid and semi-arid areas’.27 This contributes to food security and increased nutrition.28 It also increases household income for the residents of poverty-ridden urban and peri-urban areas who lack job opportunities.29 Further, the reuse of treated wastewater in irrigated agriculture allows the farmers to avoid the cost of groundwater extraction,30 and to save the cost of fertilisers as wastewater contains macro-nutrients and micronutrients.31 This reuse of treated wastewater provides farmers with a more reliable livelihood and indirect benefits of using the income for education and improving health conditions.32 The reuse of treated wastewater in irrigated agriculture is also beneficial for the environment (and the quantity and quality of water sources). First, it reduces pressure on freshwater sources33 and groundwater extraction. Second, the high concentration of nutrients in raw wastewater can reduce the dependence on synthetic fertilisers and organic matter. This improves soil texture, ensures ‘a closed and environmentally favourable nutrient cycle that avoids the indirect return of macro- (especially nitrogen and phosphorous) and microelements to water bodies’, and reduces eutrophication conditions in water bodies.34 Third, the diversion of wastewater for agriculture prevents pollution of sources of water supply and improves the source quality of receiving water bodies.35 Fourth, it preserves groundwater and facilitates aquifer recharge in permeable soils with higher quality water.36 In contrast, the use of untreated or partially treated wastewater results in adverse impacts on public health and the environment.37 This has a bearing on the enjoyment of

Jiménez (n 8) 230. E Corcoran and others (eds), Sick Water? The Central Role of Wastewater Management in Sustainable Development: A Rapid Response Assessment (UNEP, UN HABITAT and GRIDArendal 2010). 29 Jiménez (n 8) 243. 30 Jaramillo and Restrepo (n 25). 31 ibid. 32 Blanca Jiménez and others, ‘Wastewater, Sludge and Excreta Use in Developing Countries: An Overview’ in Pay Drechsel and others (eds), Wastewater Irrigation and Health: Assessing and Mitigating Risk in Low-Income Countries (Earthscan 2010) 13. 33 The wastewater irrigation potential (taken at two million ha) is 44 per cent of the major and medium potential created and nearly three times the surface water-based minor irrigation potential created in the 10th Five Year Plan. See World Bank, WSP (Water and Sanitation Program) and IWMI (International Water Management Institute), Recycling and Reuse of Treated Wastewater in India: A Proposed Advisory and Guidance Document (IWMI/CGIAR Research Program on Water, Land and Ecosystems 2016) 2. 34 Jaramillo and Restrepo (n 25). 35 ibid. 36 Jiménez (n 8) 240. 37 Priyanie Amerasinghe and others, ‘Urban Wastewater and Agricultural Reuse Challenges in India’ (IWMI, IWMI Research Report 147, 2013). 27 28

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402 Research handbook on law, environment and the global South the rights to health and to environment. In respect of health, the presence of pathogens, heavy metals and organic toxic compounds in wastewater exposes four groups of people to acute or chronic risk: agricultural workers and their families; crop handlers; consumers of crops, meat and milk; and those living near the areas irrigated with wastewater.38 From an environmental perspective, wastewater reuse may affect the yield and/or the quality (in terms of appearance, flavour or presence of pollutants) of the crop.39 Cattle that consume polluted forage/fodder or drink wastewater may develop health or growth problems.40 Wastewater reuse for agriculture may alter the physicochemical parameters of soil, vary the structure and magnitude of microbial landmass in soil and increase microbial activity, thus affecting fertility and productivity.41

B. THE REGULATORY FRAMEWORK IN INDIA In India, there is no comprehensive law to address the issue of wastewater management, including its reuse in irrigated agriculture. At the same time, the domestic regulatory framework is not silent. This section sheds light on some of the key features of the relevant legislation enacted by Parliament or State Legislature, and policies, programmes and schemes formulated by the Central Government or state governments, generally as well as with specific reference to farmers in urban and peri-urban areas. 1. Legislation: the Gap between Existence and Operationalisation The domestic legislation relating to the environment, urban local bodies (ULBs) and food safety includes provisions that are relevant in the context of wastewater reuse in irrigated agriculture. First, wastewater reuse in irrigation is permitted subject to compliance with standards laid down by the Central Pollution Control Board (CPCB) under the Environment (Protection) Act, 1986 (EPA). These include general standards for discharge of effluents from industries, operations or processes on land for irrigation,42 as well as certain industry-specific standards for discharge on land, standards for discharge of treated sewage from sewage treatment plants (STPs) into water bodies, and standards for land disposal/applications.43

38 Jiménez and others (n 32) 16. See also Abhijit Banerjee, ‘Wastewater Use for Agriculture in India: A Background Review’ (2014), accessed at www.hrdp-network.com/igep/content/live/ hrdpmp/hrdpmaster/igep/content/e48745/e57806/e61054/e61055/AgricultureWastewaterReuseBack groundReview.pdf. 39 Jiménez (n 8) 237. 40 ibid 238. 41 Jiménez and others (n 32); Jaramillo and Restrepo (n 25). 42 The Environment (Protection) Rules, 1986 (EPR), Schedule VI: General Standards for Discharge of Environmental Pollutants Part-A: Effluents. 43 The Environment (Protection) Rules, 1986 (EPR), Schedule I.

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Wastewater reuse in irrigated agriculture in India: farmers’ rights 403 In terms of enforcement, the CPCB is empowered to issue show cause notices to government agencies/departments at the state level in case of default or noncompliance of statutory provisions.44 These provisions include the direction to establish STPs to treat wastewater before its reuse. Further, the Water (Prevention and Control of Pollution) Act, 1974 (WPCPA) prohibits anyone from discharging sewage or trade effluent without the prior consent of the State Pollution Control Board (SPCB) and punishes contravention with imprisonment and fine.45 These provisions will apply to the supply of wastewater by the state or local government authorities to farmers. In respect of wastewater reuse, one of the functions of the SPCB under the WPCPA is to evolve methods of utilisation of (treated) sewage in agriculture. Further, the EPA vests the Water Quality Assessment Authority with the power to direct government, local bodies and non-governmental agencies to draw up schemes for imposition of restrictions on the discharge of treated sewage/trade effluent on land with a view to mitigating crises of water quality46 and to promote recycling/reuse of treated sewage for irrigation.47 In 2015, the CPCB directed SPCB/Pollution Control Committee (PCC) to introduce a mandatory requirement to sell secondary treated sewage for use for non-potable uses/applications such as irrigation.48 A 2017 amendment to the EPA encourages ‘Reuse/Recycling of treated effluent’ and requires the application of the statutory standards ‘where part of the treated effluent is reused and recycled involving possibility of human contact’.49 Second, some of the laws governing ULBs prohibit the cultivation of any description of crop, the use of any kind of manure, or irrigation of land, which is injurious to health.50 This prohibition will extend to the use of untreated or partially treated wastewater in irrigated agriculture. Third, the Prevention of Food Adulteration Act, 1954 is applicable to ‘primary food’, which means the produce of agriculture or horticulture in its natural form. It provides for inspection of samples and for penalty in the form of imprisonment and fine for traders selling adulterated food. The enforcement of these provisions can regulate the sale of wastewater-irrigated vegetables by farmers in urban and peri-urban areas and promote the realisation of the public (consumer)’s right to health.

44 The Water (Prevention and Control of Pollution) Act, 1974 (WPCPA), s 18; The Environment (Protection) Act, 1986, s 5. 45 WPCPA s 25 read with s 44. 46 Water Quality Assessment Authority Order No SQ 583(E) dated 29 May 2001, clause 2(II)(f). 47 ibid clause 2(II)(d). 48 eg Central Pollution Control Board, ‘Directions under Section 18(1)(b) of the Water (Prevention and Control of Pollution) Act, 1974 regarding treatment and utilisation of sewage’ (21 April 2015), accessed at https://cpcb.nic.in/displaypdf.php?id=ZGlyZWN0aW9uL0hhcnlhbm Ffc3dnXzE4KDEpKGIpXzIwMTUucGRm. 49 EPR Schedule I (n 43). 50 eg The Uttar Pradesh Municipalities Act, 1916, s 282(1).

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404 Research handbook on law, environment and the global South Notwithstanding the existence of this regulatory framework, poor monitoring and widespread non-enforcement are prevalent. In the case of environmental laws, the reasons include the lack of capacity, awareness and willingness among the statutory authorities.51 Besides the failure of the statutory authorities to ensure compliance with the prescribed standards, there is the issue of adequacy of these standards. For instance, the general and industry-specific standards for discharge on land for irrigation cover fewer parameters than the standards for discharge to inland surface water, public sewers and marine coastal areas. This raises an important question: is the enforcement of existing laws sufficient to address the health and environmental concerns associated with wastewater reuse in irrigated agriculture? The laws governing ULBs do not prioritise implementation of wastewater-related provisions but they empower ULBs to levy a sewerage tax on all households with a sewerage connection.52 This may subsidise the cost of wastewater treatment. However, the charge may be set at a low rate, the households may not pay or they may be unable to pay. Sometimes, the government tolerates regulatory vacuum, that is, the absence of regulation to address the situation, or non-enforcement of existing regulation as a conscious (or unconscious) poverty alleviation measure. In other words, the government may ignore the reuse of untreated or partially treated wastewater in irrigated agriculture, which provides a means of livelihood to farmers in urban and peri-urban areas, in a situation where the government does not/cannot provide any alternatives at present. The government may also be reluctant to undertake unpopular measures in respect of politically sensitive issues such as making farmers pay for sewage or destroying crops irrigated with untreated sewage. However, it may swing into action to implement judicial directions because it ceases to be directly responsible for the unpopular measures. 2. Policies for Wastewater Recycling/Reuse and Pricing There is no comprehensive policy at the national or state level to govern wastewater generally or wastewater reuse in irrigated agriculture specifically. Instead, the Central Government as well as state governments have addressed the issue of wastewater reuse and pricing in policies relating to the environment, water and/or sanitation. a) Wastewater reuse and recycling Since 2006, policy instruments prepared by different ministries of the Central Government have highlighted the need for treatment, reuse and recycling of wastewater for non-potable uses/application, which include irrigation. These include:

51 Comptroller and Auditor General of India (CAG), ‘Performance Audit of Water Pollution in India’ (CAG, Report No 2, 2012) 16. 52 eg The Uttar Pradesh Municipalities Act, 1916, s 128.

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Wastewater reuse in irrigated agriculture in India: farmers’ rights 405 + Ministry of Environment and Forests (MoEF, now Ministry of Environment, Forest and Climate Change) + Ministry of Water Resources + Ministry of Urban Development (now, Ministry of Housing and Urban Affairs)

+ National Environment Policy 2006 [NEP]

+ National Water Policy 2012 [NWP] + National Urban Sanitation Policy 2008 [NUSP] + Handbook of Service Level Benchmarking [Handbook SLB] + Swachh Bharat Mission (Urban) + Atal Mission for Rejuvenation and Urban Transformation (AMRUT) 2015 + National Policy on Faecal Sludge and Septage Management (FSSM) 2017 [NPFSSM]

The provisions of some of these instruments are general in nature. For instance, the NWP simply mentions recycling/reuse of water. Some instruments mention use for agriculture/irrigation specifically (Handbook of SLB, SBM (Urban)) while others refer to non-potable uses/applications generally (NUSP, AMRUT, NPFSSM). The latter instruments lend themselves to the creation of an order of priority of non-potable uses/applications where irrigation may take a backseat. The discretionary nature of the requirement in respect of recycling/reuse is evident from the use of terms such as ‘where applicable’ (NEP), ‘encouraged’ (NUSP) and ‘wherever possible’ (NUSP, NPFSSM). None of these policy instruments specifies the implementation framework and mechanisms. Two of these instruments – the NUSP and AMRUT – have provided the impetus for the preparation of wastewater policies by an increasing number of state governments.53 Promotion of recycling and reuse of treated sewage for non-potable uses/applications is one of the core principles of all the state-level policies. Some of these policies also include more details in respect of the implementation framework and mechanisms. More recently, a few states have prepared policies for the management of faecal sludge and septage, which envisage the potential reuse of treated septage and sludge for agriculture.54 Further, the Manual on Sewerage and Sewage Treatment 2013, which is prepared by the Central Public Health and Environmental Engineering Organisation (CPHEEO) of the Ministry of Urban Development, includes guiding principles for recycling and reuse 53 see, for example, Government of Rajasthan, Department of Local Self Government, State Sewerage & Waste Water Policy 2016; Government of Jharkhand, Urban Development & Housing Department, Wastewater Policy 2017; Government of Madhya Pradesh, Urban Development & Housing Dept, State Level Policy for Waste Water Recycle & Reuse and Faecal Sludge Management (FSM) 2017; Government of Gujarat, Policy for Reuse of Treated Wastewater 2018. 54 eg Government of Odisha, ‘Odisha Urban Septage Management Guidelines 2016’; ‘Government of Rajasthan, Faecal Sludge and Septage Management’ (FSSM) Policy 2018.

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406 Research handbook on law, environment and the global South of sewage in agriculture. Although it is not binding, the Manual has influenced the development of relevant instruments at the state and local levels. Finally, there is some confirmation from India of the observation that as wastewater irrigation usually takes place outside the formal irrigation sector, most governments adopt a ‘laissez-faire’ attitude.55 For instance, in an affidavit filed before the National Green Tribunal (NGT), the Maharashtra SPCB acknowledged the existence of the practice of auctioning and supply of raw sewage – with water quality exceeding the general discharge standards for irrigation – by ULBs to farmers for irrigation.56 b) Wastewater pricing For a number of years, a few states have recognised the economic value of wastewater used in irrigated agriculture and earned revenue by selling treated wastewater to farmers. Two examples are noteworthy. First, Chennai Metro Water, which provides water supply and sewage treatment to the city of Chennai (the capital of the State of Tamil Nadu) and surrounding areas, covered its entire operating cost with the sale of treated wastewater.57 Second, the State of Gujarat collects charges where wastewater treatment facilities are functional at the same rates as applicable for lifting water from notified rivers. Some of the municipal corporations collect water charges for wastewater use until treated water is disposed into the river.58 In most cities, however, the sewage supplied to farmers is not treated.59 In addition, there are informal arrangements between industries and local farmers in the states of Andhra Pradesh and Karnataka for the supply of treated effluents at a price or free of cost.60 In recent years, the economic value of wastewater has received greater attention in policy instruments accompanied by a greater emphasis on pricing. For instance, the Rajasthan State Sewerage & Waste Water Policy 2016 permits the sale of treated wastewater for industrial/commercial reuse (at a base tariff that is 50 per cent of the drinking water supply tariff) or for agriculture/horticulture/fishery/landscape reuse (at a base tariff of Rs three per thousand litres increasing by 10 per cent per annum). It also permits the sale of untreated wastewater for appropriate treatment in a sewage treatment plant and its reuse (at 50 per cent of the treated wastewater tariff). The treated wastewater may be sold at a rate as decided by adopting a transparent procedure as per the Rajasthan Transparency in Public Procurement Act, 2012, at the market rate or as decided by the State Government. Instrumentalities of the state such as ULBs and public sector undertakings such as the National Railways may be subsidised in order to pay for treated wastewater. 55 Pay Drechsel and others, ‘Informal Irrigation in Urban West Africa: An Overview’ (IWMI, IWMI Research Report 102, 2006). 56 See Dr Udaykumar Vasantrao Jagtap v Saswad Municipal Council and Others Application No. 46 of 2013, Order of 4 September 2014 (NGT – Western Zone Bench) para 6. 57 Pritika Hingorani, ‘The Economics of Municipal Sewage Water Recycling and Reuse in India’ in Infrastructure Development Finance Corporation, India Infrastructure Report – 2011; Water: Policy and Performance for Sustainable Development (OUP 2011) 320. 58 Alka Palrecha and others, ‘Wastewater Irrigation in Gujarat: An Exploratory Study’ (IWMI, Water Policy Research Highlight–30, 2012) 4–5. 59 ibid. 60 Banerjee (n 38) 9.

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Wastewater reuse in irrigated agriculture in India: farmers’ rights 407 Industries may be able to bear the cost of wastewater treatment and pass it on to their consumers. In contrast, poor farmers who depend on wastewater for irrigation to meet their livelihood needs may not be able to afford the cost of treated wastewater. Further, they cannot pass on the cost to the consumers. The availability of a local market for the produce is one of the drivers of wastewater-based agriculture in urban and peri-urban areas, and it is contingent upon reasonable pricing. An increase in the price of the produce is likely to result in a reduction in demand, which will threaten this source of livelihood. This raises some questions. Whether these poor farmers should be subsidised, and if yes, by whom – the government and/or the generators of wastewater? Alternatively, can we hold the government accountable to provide water for livelihood agriculture?

C. THE JUDICIARY’S APPROACH The judiciary acknowledges the existence of the practice of wastewater reuse in irrigated agriculture, and it has taken note of concerns relating to public health61 and the environment.62 It has also engaged more directly with issues relating to reuse of untreated or partially treated wastewater in irrigated agriculture by farmers in urban and peri-urban areas. This section highlights selected issues and trends in the judicial decision-making process. 1. Balancing Rights, Prohibiting Use The reuse of untreated wastewater in irrigated agriculture can create a right-claim, which is in conflict with other proposed uses of treated wastewater. This issue arose in a case where farmers challenged the State Government’s decision to prohibit the supply of untreated sewage for irrigated agriculture. In Amar Singh and Others v Union Territory, Chandigarh and Others,63 the petitioners were irrigating their agricultural land using sullage water (untreated sewage) lifted through pump sets from the municipal sewers on payment of charges at a per acre rate. Pursuant to the direction of the Chandigarh PCC, the Department of Public Health stopped the use of sullage water for irrigation purposes as it was emitting a foul smell and resulting in pollution and contamination. The petitioners challenged this action. The department’s defence was threefold. First, the grant of permission to use sullage water would be in violation of sections 25 and 26 of the WPCPA and the concerned officers would render themselves liable for prosecution under the WPCPA. Second, the department has set up an STP to treat the sullage water and then supply the treated water to the city for drinking and other purposes. Third, the residents of the area on the periphery of the city adjoining the agricultural lands were complaining of the foul smell emitted by sullage water. eg Vijay Singh Puniya v State of Rajasthan and Others AIR 2004 Rajasthan 1 para 31. eg Amar Singh and Others v Union Territory, Chandigarh and Others AIR 1993 Punjab and Haryana 100. 63 ibid. 61 62

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408 Research handbook on law, environment and the global South The High Court of Punjab and Haryana dismissed the petition on two main grounds. First, the supply of sullage water to the petitioners against charges as fixed by the department from time to time created a contractual obligation. According to the court, constitutional provisions did not govern the relationship between the parties. In other words, as in the case of international human rights law, there is no constitutional right to water for livelihood agriculture. Second, the department was allowing the petitioners to draw untreated sullage from its sewers in violation of the WPCPA, which required prior permission from the PCC. So the PCC had threatened it with prosecution under the WPCPA. Therefore, the court could not compel the department to permit the discharge of untreated sullage to the petitioners. Courts have prohibited the use of untreated or partially treated wastewater in irrigated agriculture in cases where public interest litigants/applicants were concerned about its negative impacts on public health and the environment.64 In all these cases, courts engaged in a balancing exercise to identify the members of the public whose interest merits greater attention and to determine the outcome of the case. In the Amar Singh case, for instance, the court attached lesser weight to the farmers’ right to livelihood than the rights to health and water of the inhabitants of the city in order to justify the government’s action of stopping the use of sewage water. 2. Searching for Alternatives The judiciary’s approach towards alternatives to wastewater reuse in irrigated agriculture is inconsistent. In some cases, it did not consider practical aspects such as whether or not the affected farmers have access to alternative sources of water supply. In Manoj Misra v Union of India and Others, for instance, the NGT refused to modify its order, which prohibited the cultivation of edible crops and vegetables on the Yamuna floodplain, as prayed for by an association of the affected farmers.65 Further, one of the stated benefits of wastewater reuse in irrigated agriculture is a reduction in groundwater extraction. Judicial decisions prohibiting the use of untreated wastewater in irrigated agriculture with immediate effect may cause farmers to resort to groundwater extraction. In other cases, the judiciary identified alternatives such as floriculture, sericulture and/or horticulture to address the livelihood concerns of farmers. In Subhash C Pandey v Union of India and Others, for instance, the NGT considered the livelihood issues of the affected farmers who had been carrying on wastewater-irrigated agriculture and supporting their families for a long time. It directed the State Government to provide Subhash C Pandey v Municipal Corporation Bhopal and Others OA No. 34 of 2013, Judgment of 19 September 2014 (NGT – Central Zone Bench); Subhash C Pandey v Union of India and Others OA No. 117 of 2014, Order of 19 December 2014 (NGT – Central Zone Bench); Manoj Misra v Union of India and Others OA No. 6 of 2012 and MA Nos. 967 of 2013 and 275 of 2014, Order of 13 January 2015 (NGT – Principal Bench). 65 OA No. 6 of 2012, Order of 7 June 2016 (NGT – Principal Bench). See also Press Trust of India, ‘NGT Says No to Farming on Polluted Yamuna Land’ Economic Times (15 November 2016), accessed at https://economictimes.indiatimes.com/news/economy/agriculture/ngt-says-noto-farming-on-polluted-yamuna-land/articleshow/55439022.cms. 64

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Wastewater reuse in irrigated agriculture in India: farmers’ rights 409 necessary guidance, infrastructure and support for alternative farming such as floriculture, and the like so that their livelihood is not adversely affected.66 However, these alternatives are viable only if farmers receive encouragement, time and incentives/ subsidies to alter their farming practices.67 3. Applying Principles of Environmental Law The judiciary has based some of its decisions implicitly on principles of environmental law. In Subhash C Pandey v Municipal Corporation Bhopal and Others, the NGT prohibited fish cultivation in a lake with high pollution levels until the fulfilment of water quality standards.68 This is tantamount to an application of the principle of prevention in that there was scientific certainty in respect of the impacts of water pollution. The invocation of the precautionary principle appears to be more straightforward. In the abovementioned case, the NGT based its direction to the authorities to make all efforts to ensure that the fish caught from the lake does not reach the market by conducting an awareness programme to warn people at large on scientific uncertainty or the likelihood of the fish being unfit for human consumption. The NGT also prohibited the use of water flowing out from a lake for irrigation purposes pending the submission of a report by the SPCB as to whether water let out from a lake is fit for cultivation of agricultural crops and vegetables.69 In another case, the NGT’s direction prohibiting any authority from permitting any person from carrying out the cultivation of any edible crops/fodder on the Yamuna floodplain until the river was rejuvenated and restored to its wholesomeness was based on scientific uncertainty, that is, ‘persons eating or using such agricultural produce can suffer from serious diseases including cancer’ (emphasis added).70 In some of these cases, the affected farmers questioned the basis of the concerns relating to the adverse impacts on public health and the environment that informed these decisions.71 This tension highlights the need for studies to gain a better understanding of the source and scale of the alleged problem. The government’s response in these cases, to questions about its inability to prevent or control pollution, is also relevant in the context of the larger debate about the inequitable application of the polluter pays principle to different residents/polluters in the same spatial and temporal fields. The government identified poor farmers in urban and peri-urban areas who relied on wastewater for irrigation as polluters/encroachers, and paved the way for the application of the polluter pays principle, explicitly or 66 OA No. 117 of 2014, Orders of 6 October 2015 and 13 October 2015 (NGT – Central Zone Bench). 67 Sushmita Sengupta, ‘Is Sewage Farming Safe?’ Down to Earth (28 February 2015), accessed at www.downtoearth.org.in/coverage/is-sewage-farming-safe-48566. 68 Subhash C Pandey v Municipal Corporation Bhopal and Others (n 64) para 24. 69 ibid. 70 Manoj Misra (n 64) para 95(V)(e). 71 eg Amita Bhaduri, ‘Yamuna Riverbed Declared Off-Limits for Vegetable Cultivation Makes Farmers Fume’ Yourstory (23 October 2017), accessed at https://yourstory.com/2017/10/ yamuna-riverbed-vegetable-cultivation; Sengupta (n 67).

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410 Research handbook on law, environment and the global South implicitly, as the justification for directions prohibiting wastewater-based irrigated agriculture.72 Further, in the Manoj Misra case, the government had granted leases to farmers in respect of some of the lands falling within the Yamuna floodplain and/or riverbed for agriculture/fodder produce. The NGT directed the government to terminate all the leases and to pass orders of eviction.73 Such directions may fail to consider the implications for the lives and livelihoods of the poor farmers who lack property rights. At the same time, other encroachers escape identification as polluters as well as judicial sanctions.74 A problematic version of the polluter pays principle also underpins the NGT’s direction to prohibit fish cultivation in a lake until the fulfilment of water quality standards.75 This is because the people whose livelihood this prohibition affects may not be responsible for poor water quality. In other words, the non-polluter may pay instead of the polluter. 4. Wastewater Treatment: an Incomplete Solution The recognition of the adverse health impacts of consuming vegetables and crops irrigated with untreated wastewater has provided the impetus for court directions relating to the construction and operation of wastewater treatment facilities. For instance, the High Court of Karnataka directed the State Government and the SPCB to establish an STP to treat sewage water before use for irrigation or gardening purposes.76 But the construction and operation of more wastewater treatment infrastructure may fail to address the problem if treated domestic effluents mix with toxic industrial effluents before reaching agricultural fields. This highlights the need to separate disposal of domestic effluents and industrial effluents. There is also a need for greater emphasis on decentralised wastewater treatment infrastructure especially where the distance between the STP and the fields may increase the cost and the likelihood of mixing treated wastewater with untreated wastewater from other sources, such as industry.

CONCLUSION This chapter highlights the need to go beyond a binary understanding of regulation. The choice is not just between regulatory vacuum and the introduction of a(ny) regulation. There is a need for deeper engagement with the implications of the regulatory See Amar Singh (n 62). See also Manoj Misra (n 64). Manoj Misra (n 64) para 55. 74 Amita Baviskar, ‘What the Eye Does Not See: The Yamuna in the Imagination of Delhi’ (2011) 46(50) Economic and Political Weekly 45; Gautam Bhan, ‘“This Is No Longer the City I once Knew”: Evictions, the Urban Poor and the Right to the City in Millennial Delhi’ (2009) 21(1) Environment and Urbanisation 127. 75 Subhash C Pandey v Municipal Corporation Bhopal and Others (n 64) para 24. 76 see Smt Susheela Devi and Others v State of Karnataka ILR 2004 Karnataka 1214 para 15 referring to WP No. 33645 of 1998 (Order of 27 July 1999, High Court of Karnataka). 72 73

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Wastewater reuse in irrigated agriculture in India: farmers’ rights 411 responses for the lives and livelihood of the poor farmers, and their effectiveness in terms of prevention or control of the adverse impacts on health and the environment. More generally, the regulatory framework does not appear to ask where, why and to what extent farmers use wastewater for irrigation. This is critical given the lack of reliable and sufficient data in an environment where there is fear about disclosing information, by the farmers who do not want their trading opportunities compromised and by the government who does not want to acknowledge the existence of a practice outside the regulatory landscape. The reuse of wastewater in irrigated agriculture clearly establishes the link between urban wastewater, livelihood, health and the environment. A similar link exists in respect of the use of wastewater, faecal sludge and excreta as fertiliser and provides fertile ground for further research. It is also possible to examine the link between urban wastewater, livelihood and health through the lens of sewage-fed aquaculture, and animal produce (meat, milk, eggs) where farmers use wastewater to grow fodder or for supply of drinking water. Further, there is a need to identify appropriate mechanisms for the management of the increasing quantity of wastewater that rural areas are likely to generate due to the Central Government’s scaled-up efforts to ensure access to toilets for all under the Swachh Bharat Mission (Gramin). Finally, the design and implementation of emerging regulations for the management of faecal sludge and septage generated in septic tanks, which is the on-site sanitation management system for a majority of toilets in the country, is also likely to have an impact on the reuse of wastewater in irrigated agriculture.

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

INTRODUCTION ‘Development’, especially in newly independent nation states, has often been equated with, or seen as dependent upon, a process of industrialisation. The material basis of any industrialisation process is mining, and this chapter examines the mining scenario in India, where many commentators on the situation of tribal people in particular have pointed out extreme conditions of exploitation, dispossession and ‘internal colonialism’ often in the name of giving tribal people ‘development’.1 After a historical overview in the first section, around the theme of ‘false development’, the second explores the paradox that processes termed ‘development’ and ‘growth’ cause destruction on a scale that needs to be conceived in terms of ecocide and cultural genocide. The next three sections look at the funding for mining projects, the ‘resource wars’ associated with industrial projects, and the urgent need for ‘real development’.

A. MINING AS A BASE FOR FALSE DEVELOPMENT 1. Coal-based Industrialisation as a Blueprint for ‘Development’ Following the pattern laid down during the industrial revolution in Britain and other countries in the 18th–19th centuries, mining-based industrialisation has often caused vast environmental degradation, as well as human suffering, in India and other so-called ‘developing countries’. This is particularly clear with coal and coal-fired power stations, whose negative impacts were documented from the 1980s, when India’s aluminium and steel industries also started to see rapid growth.2 Mining and metal production played a key role in the process that we call the industrial revolution, that fuelled the rise to world dominance of ‘developed countries’, and it plays a key role in the economic growth of ‘developing countries’ right now. There is much about mining and metal production that has to be perceived with fresh eyes if we are to gain a holistic appraisal of what is really happening on planet 1 eg BD Sharma, 29th Report of Commissioner for the Scheduled Castes and Scheduled Tribes (Government of India 1989) and BD Sharma, Unbroken History of Broken Promises: Indian State and Tribal People (Freedom Press 2010). 2 Felix Padel and Samarendra Das, Out of This Earth: East India Adivasis and the Aluminium Cartel (Orient BlackSwan 2010).

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414 Research handbook on law, environment and the global South earth – of what humans are doing to each other and the ecosystems that support us, as well as what might be done to save ourselves and our planet from disaster before it is too late. For a start, we tend to forget the appalling human cost of Britain’s industrial revolution. Blake captured its essence in his phrase ‘those dark satanic mills’, and a prime argument in Engels’ first book was that – in contradiction to mainstream propaganda as well as to a recurring strand in much Marxist ideology – industrialisation drastically reduced workers’ standard of living.3 Marx’s and Engels’ work showed the inhuman exploitation of working conditions in factories – an inhumanity that persisted in Stalin’s Soviet Union and continues in today’s India, among so many other places. By comparison, the inhuman working conditions endured by mineworkers were neglected, with emphasis on the textile industry for example, even though the materiality of coal and metals were the foundation of industrialisation processes. The neglected history of miners finds expression in novels by Alexander Cordell, which document the lives of thousands of men, women and children who worked and died for the ‘iron masters’ in Wales during the first half of the 19th century, struggling for the most basic rights, including one of the world’s first trade union movements which manifested under the banner of the Chartists.4 The exploitation of mine-workers has been notorious since ancient times, when the Romans worked untold numbers of slaves to death labouring in mines, with a similarly sordid history continuing in ‘New World’ mines such as the infamous Potosi silver mines in Bolivia.5 In India today, a survey of mining throughout the country shows that nothing that could be called ‘sustainable mining’ exists, and Koraput district, Odisha, where the country’s biggest bauxite mine and alumina refinery are located, suffers some of the worst poverty indices of any district.6 In Britain, unionisation and environmental activism, backed by legislation (such as the Mines and Collieries Act of 1842, that banned mine work by children under ten years of age) – strongly resisted by industrialists at many points during the 19th and 20th centuries – guaranteed basic rights and compensation for workers’ frequent injuries and deaths for example, and limited the impact on ecosystems. Until a new phase of mining history started with ‘monetarism’ (as this early phase of neoliberalism was known) and Mrs Thatcher’s clampdown on ‘the enemy within’ in the form of striking coal miners, reducing Britain’s coal-mining workforce from approximately 40,000 to 4,000 within a few years of the 1984–5 strike led by Arthur Scargill. British coal production decreased from about 228mtpy (million tonnes per year) in 1952, to 128mtpy in 1981, to just 13mtpy in 2014. Significantly, in 1952, 95 per cent of coal was being mined from 1,334 deep mines; while in 2014, 26 of Britain’s 30 remaining coal mines were opencast, mostly in Scotland, since developments in technology have 3 Friedrich Engels, The Condition of the Working Class in England (edited with an introduction by David McLellan, OUP 1999). 4 eg Alexander Cordell, The Rape of the Fair Country (first published 1959, Blorenge Books 1998). 5 Documented, for example, in Eduardo Galeano, Open Veins of Latin America: Five Centuries of the Pillage of a Continent (first published 1971, Monthly Review Press 1997). 6 Centre for Science and Environment, Rich Lands, Poor People: Is Sustainable Mining Possible? (Centre for Science and Environment 2008).

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Mining, development and environment in India 415 made it cheaper to remove vast quantities of overburden than to tunnel underground, even when coal deposits lie deep below the surface. Another shift is the ‘outsourcing’ of mining to other countries. Under Thatcher, the Ridley plan outlined a strategy of importing most coal from Australia, Colombia and other countries, where it could be obtained more cheaply, in a sense by cutting labour costs and environmental protection. The rapid increase since the 1980s in production of coal, steel and aluminium in India and other ‘developing countries’ has taken place in relation to ‘de-industrialisation’ in Britain and other ‘developed’ countries. The ‘extractive economy’ underpinning global capitalism has to be understood in the hegemonic relationships that bind populations in ‘developing countries’ into a form of modern serfdom – in which the idea that these countries are ‘developing’ or ‘underdeveloped’ while the richest countries are ‘developed’ adds insult to injury and serves as a justification for domination.7 The same shift from underground to opencast mining that took place in Britain also occurred in India, as well as in China and elsewhere, though here it accompanied a vast increase in coal output. From 18mtpy in 1920, and 30mtpy in 1946, India became the world’s second largest coal producer in 2016, with an estimated output of 692.4mtpy, after China’s 3,411mtpy, overtaking the USA, whose production fell from 812mtpy in 2015 to 660.6mtpy in 2016.8 Summarising the recent boost and expansion of coal mining in India in what follows, one needs to bear in mind a similar boost in coal mining in other countries, including Bangladesh, where recent plans for expansion have involved a number of deaths among protesting populations threatened with displacement and loss of livelihood (including Santal Adivasis), as reported in this book. Since the 1960s, some of the largest World Bank loans to India involved funding vast open-cast coal-pits in Singrauli (Madhya Pradesh), Jharkhand (formerly south Bihar), Chhattisgarh (formerly eastern Madhya Pradesh), West Bengal and Odisha.9 These expanding coal mines have involved large-scale forest destruction and displacement of mainly Adivasi villages, with a long history of human horror stories and injustice;10 and a huge assault on water sources.11 Three-quarters of India’s coal mines are run by Coal India Ltd (CIL), a public sector company and technically the world’s largest coalmining company. To give a sense of the scale of expansion, the CIL during 18–21 October 2010 financed a new phase by organising an initial public offering that was oversubscribed by 15 times, with bids from leading American and other international 7 Anthony Bebbington and Jeffrey Bury (eds), Subterranean Struggles: New Dynamics of Mining, Oil and Gas in Latin America (University of Texas Press 2014). 8 From the BP, Statistical Review of World Energy (2018), accessed at https://www.bp.com/ en/global/corporate/energy-economics/statistical-review-of-world-energy.html. 9 Bruce Rich, Mortgaging the Earth: The World Bank, Environmental Impoverishment and the Crisis of Development (Earthscan 1994); Felix Padel, Ajay Dandekar and Jeemol Unni, Ecology, Economy: Quest for a Socially Informed Connection (Orient BlackSwan 2013) 112–13. 10 Madhu Ramnath, ‘Coal Country Politics in Surguja: People Forsaken by the Fine Print’ Down to Earth (14 March 2013), accessed at www.downtoearth.org.in/news/coal-countrypolitics-in-surguja-people-forsaken-by-the-fine-print–40589. 11 Makarand Purohit, ‘More than 250 Springs Have Run Dry in Chhattisgarh, Thanks to the Chirimiri Coal Mines’ Your Story (25 April 2017), accessed at https://m.yourstory.com/2017/04/ dying-springs-chirimiri/.

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416 Research handbook on law, environment and the global South banks and corporate houses, raising $3.43 billion – making it the largest ever on India’s stock market.12 When this happened, Jairam Ramesh, as India’s Minister for Environment and Forests, was fighting a rearguard action to try and classify a third of India’s easily accessible coal deposits – 203 coal blocks in six states, basically those under primary forests – as ‘No-Go-Areas’, to protect forests and communities and conserve some coal for India’s future, while giving clearance for 383 blocks, or 63 per cent of the area requested. This attempt was overruled from the coal and energy ministries, backed by Montek Singh Ahluwalia, Deputy Chairman of the Planning Commission.13 One of the prime needs for this expansion in coal mining and its use in power generation, dominated by another public sector company, the National Thermal Power Corporation, has been to power a huge expansion in other industries, especially steel, aluminium and cement. Attention on the implication of overruling the No-Go-Areas was diverted by the so-called ‘coalgate’ scandal that emerged when a draft report by the Comptroller and Auditor General of March 2012 showed that coal blocks had been allocated in an inefficient and biased manner rather than through competitive bidding, resulting in a reported loss to the exchequer of Rs 185,000 crores. A number of companies were accused of overestimating their value or price speculation while failing to develop their deposits. In other words, media focus on coalgate diverted attention from the basic problem that India’s coal deposits are being opened up much too fast, with human and environmental costs that are far too high.14 Evidence that India is mining its coal deposits too fast emerges in a report by TERI,15 which estimates that, factoring in a 5 per cent increase in the rate of extraction, India’s coal reserves will last just 40 years – and of course, the increase is already a lot faster than this. Negative impacts on ecosystems are colossal, destroying forests while disrupting underground aquifers and seriously jeopardising water security for present and future populations over large areas.16 When this is put together with the human rights abuses, the costs are impossibly high. The murder of Sister Valsa John by

12 John Satish Kumar, ‘Coal India’s Blockbuster Listing’ The Wall Street Journal (4 November 2010), accessed at http://blogs.wsj.com/indiarealtime/2010/11/04/coal-indiasblockbuster-listing/; Padel, Dandekar and Unni (n 9) 109. 13 Grace Boyle, ‘Good Afternoon. How Much for a Forest?’ The Independent (10 November 2010); Mahendra Kumar Singh, ‘Jairam, Coal Ministry in Tussle over Mines in No-Go Zones’ Times of India (29 December 2010), accessed at https://timesofindia.indiatimes.com/india/ Jairam-coal-ministry-in-tussle-over-mines-in-no-go-zones/articleshow/7181216.cms. 14 Padel, Dandekar and Unni (n 9) 115; M Rajshekhar, ‘The Real Scam in India’s Coal Sector Has Gone Unnoticed’ Economic Times (2 February 2013), accessed at https://economic times.indiatimes.com/industry/indl-goods/svs/metals-mining/coalgate-the-real-scam-in-indias-coalsector-has-gone-unnoticed/articleshow/18303115.cms. 15 The Energy Resources Institute (TERI), India’s Coal Reserves Are Vastly Overstated: Is Anyone Listening? (TERI 2011). 16 Nitish Priyadarshi, ‘Effects of Mining on Environment in the State of Jharkhand’ (2 May 2012), accessed at http://nitishpriyadarshi.blogspot.in/2012/05/effects-of-mining-on-environmentin.html; Centre for Science and Environment (n 6).

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Mining, development and environment in India 417 individuals associated with PANEM coal company is a particularly dark episode.17 Like recent protests against a coal-fired power station in Bangladesh for example, police firing on protestors against land acquisition for a new National Thermal Power Corporation power station near Barkagaon in Hazaribagh district of Jharkhand killed at least 4 people and injured 40 on 1 October 2016.18 Apart from areas in Central India, Jaintia Hills in Meghalaya is an area where coal mining as well as limestone quarrying for the cement industry are having terrible impacts on the environment and human rights, despite the 6th Schedule provision of Autonomous District Hill Councils.19 Analysis of the funding of new power stations, especially the mega-ones being built by India’s leading companies such as Reliance, shows that a lot of the finance is coming from ‘non-performing assets’ in the form of ‘bad loans’, that Public Sector Banks are lending, and that these corporations are not repaying.20 This economic madness of industrial projects financed by unrepayable debts needs to be understood as an intrinsic part of today’s mining industry and its impacts, which damage the overall economy as well as environment and communities. Successful resistance to Adivasi displacement by the Mahan coalfield in Singrauli, where Essar and Hindalco want to expand coal mining, is offset by painful awareness ‘that Mahan is just one of hundreds of coal mines planned in forested India’.21 2. Aluminium, Steel and Mega-dams The Mahan project was stalled by a gram sabha, or village council,22 voting against mining. This followed a pattern set in Niyamgiri mountain range in Odisha, where 12 villages of Dongria Konds and Dalits voted unanimously against bauxite mines planned by Vedanta in coordination with the Orissa Mining Corporation, to feed Vedanta’s Lanjigarh refinery nearby.23

17 Research Collective, Coallateral: A Report of the Independent People’s Tribunal on the MOU between Rajmahal Pgad Bachao Andolan & PANEM Coal Mines (Programme for Social Action 2015) 52–5. 18 Ankush Vengurlekar, ‘Police Firing on Anti-Mining Protesters in Hazaribagh Kills Four’ The Wire (1 October 2016), accessed at http://thewire.in/70306/hazaribagh-four-dead-policefiring-anti-mining-protest. 19 Gideon L Kharkongor and Rajesh Dutta, Status of Adivasis/Indigenous Peoples Mining Series-4, Meghalaya (Aakar 2014). India’s main tribal areas are officially termed Scheduled Areas. Under India’s Constitution, the 5th Schedule applies throughout ‘mainland’ India, while the 6th applies in selected regions of the Northeast, where these local Councils provide a higher degree of autonomy in local decision-making. 20 The Research Collective, Down the Rabbit Hole: What the Bankers Aren’t Telling You (Programme for Social Action 2014). 21 Greenpeace India, Victory for Mahan as Indian Government Pulls Disputed Forest from Auction (20 March 2015), accessed at https://www.greenpeace.org/archive-international/en/press/ releases/2015/Victory-for-Mahan-as-Indian-government-pulls-disputed-forest-from-auction/. 22 Panchayat (Extension to Scheduled Areas) Act, 1996 (PESA Act). 23 Felix Padel, ‘The Niyamgiri Movement as a Landmark of Democratic Process’ Vikalpsangam (July 2014), accessed at http://vikalpsangam.org/article/the-niyamgiri-movement-as-alandmark-of-democratic-process/#.U9HMfLEruO5; Shiuli Vanaja, ‘Niyamgiri Mountain and the

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418 Research handbook on law, environment and the global South Mahan coal was wanted for generating energy to smelt aluminium by Hindalco (Hindustan aluminium corporation, part of the Birla group). In India, as in other countries, every steel and aluminium factory needs coal-fired power stations and ‘captive’ coal mines to supply electricity, and most also depend on dams built nearby to ensure a supply of cheaper hydropower too. To give a few examples of mega-dams built to supply aluminium factories from the 1950s–80s, the Rihand dam was built in southeast Uttar Pradesh, south of Varanasi, bordering the Singrauli region, to supply Hindalco’s refinery-smelter complex at Renukoot; the Hasdeo Bango dam was built to supply Bharat Aluminium Company Ltd’s similar complex at Korba (now Chhattisgarh); the Hirakud dam was built in northwest Odisha to supply Alcan’s nearby aluminium smelter, and its recent refurbishment, rather than bringing more water promised to farmers, has supplied water and electricity to Vedanta’s Jharsaguda aluminium smelter and a Bhushan steel plant; the Upper Kolab dam in Koraput district was built to supply National Aluminium Company Ltd (NALCO)’s Damanjodi refinery; and the Upper Indravati dam has been used to supply Vedanta’s Lanjigarh refinery. To power one of the first new steel plants in Independent India, financed through German collaboration, the Mandira dam in north Orissa was built to supply Rourkela’s steel plant. Together, these dams displaced well over a million people, of whom the majority were Adivasi farmers, and destroyed untold biodiversity by flooding vast areas of forests and lightly cultivated land.24 Polavaram dam on the Godavari river, in Andhra Pradesh-Telangana – a mega-dam likely to displace 300,000 people – is similarly planned partly with new aluminium factories in mind.25 The exceptional destructiveness of bauxite mines and aluminium factories is due, among other factors, to the fact that producing a tonne of aluminium consumes over 1,000 tonnes of water, a symptom of the industry’s huge negative impact on ecosystems as well as on the regional economy, which is ‘enslaved’ by ‘enclave colonialism’.26 Contradicting the often-promoted idea that an aluminium industry can boost regional development, Dewey Anderson, a top government aluminium expert, is perhaps the only one to have written honestly about the industry’s vast subsidies and other aspects and is explicit that ‘[a]luminum reduction is no great maker of employment, uses little skilled labor, and adds little to the independent development of an area’.27 Aluminium’s form is hidden in nature, unlike that of other common minerals, and its close bonding with H2O is what makes the bauxite deposits at the top of bauxitecapped mountains in south Odisha and north Andhra Pradesh so vital in the ecosystem of a vast area. The base rock of these mountains was named Khondalite ‘after those fine men the Khonds’ in 1902,28 and mountains are central to Khond religion, which is Movement’s Leader Lingaraj Azad’ Foilvedanta (7 April 2014), accessed at www.foilvedanta. org/articles/lingaraj-azad-niyamgiri-movement-leader-and-political-activist/. 24 All these and other cases are documented or referred to in Padel and Das (n 2). 25 Patrik Oskarsson, Status of Adivasis/Indigenous Peoples Mining Series-3, Andhra Pradesh (Aakar 2014) 62. 26 Padel and Das (n 2). 27 H Dewey Anderson, Aluminum for Defence and Prosperity (Public Affairs Institute 1951) 21. 28 TL Walker, The Geology of Kalahandi State, Central Provinces (Geological Survey of India, Memoirs of the Geological Survey of India, 1902).

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Mining, development and environment in India 419 why every mountain in the region now has a movement of tribal people to protect it against mining. ‘We need the mountain, and the mountain needs us’, as a Dongria woman has expressed this. Lado Sikoka, the Dongria leader, in a speech at Belamba Public Hearing in 2009, mocked the idea of Niyamgiri’s bauxite as crores of rupees’ worth of money, lying unutilised, waiting to be mined: it is the source of life and fertility. Water runs straight off Panchpat Mali, the mountain in Koraput where NALCO has set up India’s biggest bauxite mine. As a result, perennial streams have dried up, and the area for miles around is intensely dried out. A similar issue arises with the iron and steel industries: huge new iron ore mines are being set up on Khandadhara in north Odisha,29 in Saranda Forest in south Jharkhand,30 and in Raoghat mountain range in Kanker district of Chhattisgarh, which is ringed with 22 camps of the Central Reserve Police Force (CRPF) and Border Security Force (BSF), to counteract Maoist support for Adivasis’ anti-mining movement.31 This follows momentous scams concerning illegal mining and devastation revealed in recent years in Karnataka, Goa and Odisha32 and the Shah Commission Reports on illegal mining.33 The police firing at Kalinganagar in Odisha on 2 January 2006, that killed 14 Adivasis who were opposing a new Tata Steel plant being set up on their land, symbolised to many the immense violence implicit in the expansion of India’s steel industry. Sukinda chromite mines nearby have been declared one of the ten most polluted areas on earth. The coercion used on Adivasis in the Lohandiguda area of Bastar (Chhattisgarh) to try and force through a new Tata Steel plant has been infamous;34 though the company withdrew from this project in April 2016. Since 2014, India has been the world’s third largest steel producer, with hopes of becoming the second largest and a growth rate of over 9 per cent in steel production;

29 Madhushree Mukerjee, ‘The Death of a Waterfall’ Outlook (11 June 2012), accessed at www.outlookindia.com/magazine/story/the-death-of-a-waterfall/281092; Felix Padel, ‘Death of a Waterfall? POSCO’s Designs on Khandadhara’ Environmental Justice Organisations, Liabilities and Trade (October 2012), accessed at www.ejolt.org/2012/10/death-of-a-waterfall-posco%E2% 80%99s-designs-on-khandadhara/. 30 Gladson Dungdung, Mission Saranda: A War for Natural Resources in India (Deshaj Prakashan 2015). 31 Chhattisgarh Bachao Andolan (CBA), ‘Press Statement against Bhilai Steel Plant’s Criminal Activities in Rowghat Mines’ (19 February 2014); Paramita Ghosh, ‘Raoghat Mines in Bastar: Iron in Their Souls’ Hindustan Times (30 March 2014), accessed at www.hindustantimes. com/india/raoghat-mines-in-bastar-iron-in-their-souls/story-wh0f6njppQ5tR0lsHAHflM.html; Nandini Sundar, The Burning Forest: India’s War in Bastar (Juggernaut 2016) 33. 32 Hartman de Souza, Eat Dust: Mining and Greed in Goa (HarperCollins 2015). 33 MB Shah, ‘Illegal Mining in the State of Goa: Commission of Enquiry for Illegal Mining of Iron Ore and Manganese’ (Government of India, 15 March 2012), accessed at www.india environmentportal.org.in/content/362839/report-of-justice-mb-shah-commission-of-inquiry-forillegal-mining-of-iron-ore-and-manganese/; MB Shah, ‘First Report of Illegal Mining of Iron and Manganese Ore in the State of Odisha’ (Government of India, 1 June 2013), accessed at https://mines.gov.in/writereaddata/UploadFile/First%20Report%20of%20Shah%20Commission% 20on%20Odisha%20%E2%80%93%20Vol%20II.pdf. 34 Sundar (n 31).

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420 Research handbook on law, environment and the global South while it is the top producer of sponge iron.35 Steel production is often viewed as a symbol of national progress and prestige. Chairman Mao’s ‘Great Leap Forward’ in 1958–59 involved an attempt to boost steel production in China so as to overtake the USSR, Britain and the USA. At the time, steel production figures were faked, and the forced conversion of millions of peasants to industrial workers almost certainly caused the world’s worst famine, with about 30 million deaths.36 Since then, however, China has become the world’s top producer. Increasing production to become the third largest producer, by forcing the industry onto unwilling populations, and displacing tribal communities, one could certainly say, then, that India has a Maoist mining policy. Yet paradoxically, Maoists are opposing deals for new mines and steel plants, so what is going on? Maoist cadres probably know little about Mao’s own policies, especially his Great Leap Forward. Their opposition to the mining industry is in part anyway strategic; with considerable evidence that Maoists have taken ‘protection money’ from mining companies rather than trying to close them down.37 For these reasons, one is unlikely to get a full critique of the mining industry from Maoists, so long as they call themselves after Chairman Mao. Currently, over 90mtpy of steel are being produced in India. Since producing one tonne of steel consumes over 40 tonnes of water,38 the harm to ecosystems, farmers and India’s future water security are clear. Similar considerations apply to the mining industry in other ‘developing countries’ such as Indonesia, which is among the world’s top exporters of coal, steel, nickel, copper and bauxite, with vast destruction of forests, and takeovers of indigenous lands.39 In Australia, opposition by aboriginals and environmentalists to plans for the world’s biggest coalmine at Carmichael in Queensland, by Adani, demonstrate the ambivalence to mining that plagues a ‘developed’ country for which the industry remains a prime source of income.40

35 IBEF (India Brand Equity Foundation), Iron & Steel Industry in India (October 2016), accessed at www.ibef.org/industry/steel.aspx. 36 Frank Dikötter, Mao’s Great Famine: The History of China’s most Devastating Catastrophe, 1958–1962 (Bloomsbury 2010). 37 eg Nandini Sundar, ‘No End in Sight for India’s Bloody Maoist Conflict’ Aljazeera (9 May 2017), accessed at www.aljazeera.com/indepth/opinion/2017/05/sight-india-bloodymaoist-conflict-170508120738882.html. 38 Michael Ritthoff, Holger Rohn and Christa Liedtke, Calculating MIPS: Resource Productivity of Products and Services (Wuppertal Institute for Climate, Environment and Energy 2002). 39 Dezan Shira & Associates, Masterplan for Acceleration and Expansion of Indonesia Economic Development 2011–2025 (2011), accessed at www.indonesia-investments.com/ projects/government-development-plans/masterplan-for-acceleration-and-expansion-of-indonesiaseconomic-development-mp3ei/item306. 40 Joshua Robertson, ‘Traditional Owners Vote to Sack Representatives Who Received Benefits from Adani’ The Guardian (21 March 2016), accessed at www.theguardian.com/ environment/2016/mar/21/adani-mine-traditional-owners-vote-to-sack-representatives-who-receivedbenefits-from-adani; Joshua Robertson, ‘Big Four Banks Distance Themselves from Adani Coalmine as Westpac Rules Out Loan’ The Guardian (28 April 2017), accessed at https:// www.theguardian.com/environment/2017/apr/28/big-four-banks-all-refuse-to-fund-adani-coalmineafter-westpac-rules-out-loan.

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Mining, development and environment in India 421

B. DO ‘DEVELOPMENT’ AND ‘GROWTH’ NECESSITATE ECOCIDE AND CULTURAL GENOCIDE? If mining in Wales was a ‘Rape of the Fair Country’, this is even truer of tribal areas in Central India, where ecosystems of huge beauty and bounty are getting devastated, with little outcry from mainstream society. Claims that environmental issues are only relevant in rich countries are contradicted by The Environmentalism of the Poor, evident in a multitude of movements of indigenous and working class people in all the poorer nations, and serve to justify over-exploitation of nature and working class people alike, through a narrow nationalism.41 A move is under way to list ‘Ecocide’, defined as destruction of ecosystems such that peaceful enjoyment of a given territory by its inhabitants is likely to be severely diminished, as a Crime Against Peace under the Rome Statute of international law.42 It is clear that ecocide has often taken place alongside (cultural) genocide, from the extermination of bison along with native American tribes that dwelt in symbiosis with bison on America’s Great Plains, to the destruction of forest, mountain and riverine ecosystems that accompanies mass displacement of tribal communities in India today. Environmental activism is often seen as a ‘roadblock to development’, and while left-wing activists and parties support many farmer and tribal movements against landgrabs and imposed ‘development projects’, the belief of many Marxists in industrialisation as a necessary stage of social evolution makes them ambivalent allies in campaigns against imposed industrialisation. For example, in promoting the Nandigram and Singur projects, and a proposed Jindal steel plant at Shalboni, Buddhadeb Bhattacharya, at the helm of a CPM (Communist Party of India – Marxist) state government in West Bengal, articulated a perceived need to convert peasants or small-scale farmers into industrial labourers more strongly than any other Chief Minister, and as dogmatically as Chidambaram did (as Finance and Home Minister for the Congress-led Government between 2004 and 2014). It was on 2 November 2008, when Buddhadeb was returning after laying the foundation stone for this proposed plant that his cavalcade was hit by a Maoist-planted landmine. The police atrocities in nearby Santal villages in turn led to setting up the People’s Committee Against Police Atrocities (PCAPA) and Maoist support for this initiative led to the ‘Lalgarh Operation’ in the ‘Jungle Mahal’ area in West Midnapur district, that caused widespread bloodshed, including the killing or jailing of most active members of the PCAPA. ‘Operation Greenhunt’, that the Jungle Mahal conflict formed part of, refers to a huge surge in counterinsurgency operations against the Maoists, perceived as ‘India’s biggest security threat’. As the ambiguity of the name implies, it was also part of a massive assault on the ‘greenfield’ areas demanded by expanding industries – a land-grab of remote forest regions that increasingly threatens them with ecocide, while marginalising Adivasi communities and their traditional economy, which have flourished in these areas since the beginning of recorded history. Joan Martinez-Alier, The Environmentalism of the Poor: A Study of Ecological Conflicts and Valuation (Edward Elgar Publishing 2002). 42 Polly Higgins, Eradicating Ecocide: Laws and Governance to Prevent the Destruction of Our Planet (Shepheard-Walwyn 2010). 41

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422 Research handbook on law, environment and the global South The genocide faced by indigenous peoples in Australia and the Americas had two aspects: physical extermination, which obliterated many tribes completely, and killing the culture, which was done by destroying the resource base, as well as boarding schools that removed children from their peoples’ knowledge and value systems. The second aspect is also referred to as ‘ethnocide’, or ‘cultural; genocide’, and it is this that many of India’s tribal peoples face now, not least when they are displaced from their land and/or villages.43 India’s tribal cultures are remarkable for the egalitarian political systems they have preserved up to modern times, as well as for an ‘Adivasi Economics’ based on sustainable use of resources;44 and these political and economic systems are obviously undermined when an area is industrialised. When Nehru was speaking of bringing democracy to India’s tribal areas on 19 December 1946, during the Constituent Assembly Debates that set up the 5th and 6th Schedules, to guarantee a basic level of rights for the Scheduled Tribes, Jaipal Singh Munda confronted him as follows: This Resolution is not going to teach Adivasis democracy. You cannot teach democracy to the tribal people; you have to learn democratic ways from them. They are the most democratic people on earth. What my people require, Sir, is not adequate protection as Pandit Jawaharlal Nehru has put it. They require protection from Ministers that are in position today (…).45

India is often called the world’s largest democracy, with good reason. But it seems that indigenous models of democracy available in the country may be inherently more democratic than the European and American model that involves political parties whose funding, and all too often decision-making too, shows strong influence from corporate lobbying behind the scenes. Dependence on loans from the World Bank and other foreign financial institutions has become so institutionalised that no key decision seems to be made by State or Central Governments in India (as in most other ‘developing countries’), without approval from the IMF/World Bank. On aluminium and steel, a pattern is clearly visible of getting State Governments into unrepayable debt after years of loans for coal mines, dams, roads and other infrastructure elements, to facilitate the rapid expansion of mines and metal factories, and to use this as leverage to support such projects.46 Underlying the World Bank classification of countries into ‘Developed’, ‘Developing’ and ‘Underdeveloped’, and a similar classification often made of regions within a country, the assumption is that a single ‘correct’ model of development exists. Gustavo Esteva has shown how the concept of ‘underdevelopment’ was introduced by President

Padel and Das (n 2) chapter 13. Padel, Dandekar and Unni (n 9) chapter 2. 45 Quoted from Alma Grace Barla, Indigenous Heroines: A Saga of Tribal Women of India (International Work Group for Indigenous Affairs 2015) xxii–iii. See also Radhika Bordia, ‘A “Jungli” in the Constituent Assembly: Jaipal Singh Munda’ NDTV (26 January 2017), accessed at www.ndtv.com/people/a-jungli-in-the-constituent-assembly-jaipal-singh-munda-1652949. 46 Padel and Das (n 2) chapter 17. 43 44

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Mining, development and environment in India 423 Truman in 1949, as a justification for a new age of US-led imperialism,47 before this term came into widespread use across the political spectrum. Concepts such as monolithic development and ‘underdevelopment’ are based on social evolutionism – the idea, adapted from Darwin’s theory, that all societies evolve through the same set stages. Darwin was tracing the evolution of hundreds of different species, along different paths – interrelated, yet all separate, not all trying to evolve into homo sapiens! To force human history into a monolithic line is to distort it fundamentally. For example, when the East India Company established British rule over India after Plassey in 1757, expanding it through one takeover and war after another, and hardening under the British Parliament after 1857, this led to de-developing elaborate Indian systems of manufacture, as well as multiculturalism. Britain during the 18th–19th centuries was clearly more ‘advanced’ than India militarily, but India can be seen as much more advanced in terms of multiculturalism and in quality of manufacturing. Similarly, the ways that tribal communities are less ‘advanced’ than mainstream societies are obvious, but how aware are we of the many ways in which they are more evolved than us, for example in living more sustainably, and sharing more equally? By contrast, the value system we imbibe in capitalism places strong emphasis on competition, private property and the creation of profit at all costs. We take it for granted that a ‘competitive economy’ is good; while Adivasi economics emphasises exchange labour, and other transactions that do not involve exploiting other parties. In political gatherings, the emphasis is on achieving consensus rather than competitive voting. In the informal ways that knowledge was traditionally transmitted, there is no equivalent to the competition instilled through exams. In traditional Adivasi law, the aim of procedures was to reconcile contestants rather than establish one party as right and punish the other as wrong. The main traditional ‘sport’ in Adivasi society is dancing, where there are no winners and losers. Mining companies in the process of taking over tribal lands, around Raoghat for example, promote modern sports that are inherently competitive, in line with one of the first impacts of ‘development projects’ imposed on unwilling populations, which is to divide communities into those for and against.48 When the Niyamgiri gram sabhas voted against mining, they also voted against receiving title to individual plots of land; affirming the value placed by tribal societies on common rather than private property, which Marx and Engels highlighted. Rather than a state of ‘underdevelopment’, tribal societies represent the opposite end of the spectrum to capitalism, which is why they often stand up against mining companies so strongly, and why their fundamental values and social formations are systematically dismantled in the name of ‘development’. This illustrates some of the ways that tribal communities suffer a catastrophic de-development process in the name of imposed ‘development projects’. Displacement leads to a breakdown of social structure, along with the knowledge and value systems 47 Gustavo Esteva, ‘Development’ in Wolfgang Sachs (ed), The Development Dictionary: A Guide to Knowledge as Power (Zed 1992) 7. 48 Felix Padel, ‘Displaced by Development: Assessing Social and Cultural Impacts on Affected Communities’ in Hari Mohan Mathur (ed), Assessing the Social Impact of Development Projects (Springer International 2016) 115–25.

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424 Research handbook on law, environment and the global South that have sustained communities in a symbiotic relationship with their natural environment. In these ways, cultural genocide tends to take place simultaneously with ecocide.49 The topic of ecocide points to a fallacy at the heart of modern economics, implicit in the concept of economic growth, in a world of finite resources that are rapidly depleting. The transition to a no-growth economy (or one in which growth is defined in a fundamentally different way) is inevitable, but it will go much better if we plan for it rather than simply watch in dismay as institutions we have come to rely on fail, and then improvise a survival strategy in their absence (…).50

For example, ‘developed’ countries are not expected these days to show a high rate of economic growth; and the relatively high growth rate in ‘developing countries’ such as India depends on huge foreign investment coming into the country. Essentially, this investment needs to be understood as looting a country’s non-renewable resources, as well as the sources of water that get taken over for the processes of industrialisation that start with mining. If economics held true to its root meaning of oikonomia (laws of correct housekeeping), economists would be trained first of all to understand ecosystems, and how to live without damaging them. Instead, what is really developing in resource-rich regions is wastelands, with water sources in intact mountains and underground aquifers destroyed, along with forests and uncounted biodiversity.51 It should be obvious that no project should be termed ‘development’ if it depletes and damages a region’s natural water systems. GDP … has ballooned from a narrow economic tool into a global article of faith … While economies and cultures measure their performance by it, GDP ignores central facts such as quality, costs, or purpose … GDP promotes a form of stupid growth and ignores real development … A finite planet cannot sustain blind and indefinite expansion. If we consider future generations equal to our own, replacing the GDP regime is the ethical imperative of our times.52

One aspect of the fallacy that GDP represents is the role of black money. In Arun Kumar’s analysis, The black economy in India is all-pervasive, affecting the day-to-day life of the common people [at every step] (…) the black economy as a percentage of the national income (GDP) is supposed to have grown from about 3 per cent in the mid-50s to 7 per cent by the end of the ‘60s, to around 35 per cent by 1990–1 and 40 per cent by 1995–6.53

Higgins (n 42); Padel and Das (n 2). Richard Heinberg, The End of Growth: Adapting to Our New Economic Reality (New Society Publishers 2011) 21. 51 Padel, Dandekar and Unni (n 9). 52 Dirk Phillipson, The Little Big Number: How GDP Came to Rule the World and What to Do about It (Princeton University Press 2015) (quoted from the summary on the cover). 53 Arun Kumar, The Black Economy in India (first published 1999, Penguin 2002) 2. 49

50

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Mining, development and environment in India 425 In 1992, Gupta gave an even higher estimate of black money in India’s economy as ‘42 per cent of the GDP for 1980–1 and 51 per cent for 1987–88’.54 What is certain about black money, as with the corruption it is based on, is that accurate measurement tends to be impossible. If black money is motivating the deals, and continually getting siphoned off, what substance is there behind economists’ statistics? Corruption has been shown as intrinsic to India’s mining industry in particular, for instance by the Shah Commission Reports;55 and considerable evidence suggests that corruption is intrinsic to the mining industry worldwide.56

C. FEEDING THE BEAST: THE INVESTMENT PROMOTING MINING ‘Development-induced displacement’ is an obvious misnomer, when people displaced make it clear that, for them, the dams, mines and factories dispossessing them are the opposite of development. ‘Investment-induced displacement’ encapsulates the process.57 How finance is collected for funding India’s new spate of industrialisation involves many shady aspects. One involves leading companies’ failure, periodically reported in the press, to pay their vast water and electricity bills and their tax. Another is the loans they take from banks that they fail to repay: Why are banks not held liable for the bad loans they grant to disastrous projects? Why are banks funding projects that are inherently undemocratic, irreparably damaging the environment, displacing huge numbers of people, & serving only to increase private profits? Bad loans in Public Sector Banks shot up by more than 400 per cent in 2008–13, hitting Rs 1,64,000 crore in March 2013 – of which 64,000 crores is just from the top 30 bad loans! Accounting for the bad loans that are restructured & shown as good loans, this amount doubles to Rs. 3,25,000 crores.58

The funding of mining projects in India and other countries involves a complex nexus that veers constantly between legitimate and black money, between banks, corporate houses with numerous subsidiaries, hedge funds, metals trading and speculation at the London Metal Exchange and similar institutions, accountancy firms, credit rating agencies, and much more.59 Tax havens, where most hedge funds are registered, play a significant role in mining investment, and in the world economy as a whole, as well as

ibid 55. The original source is Suraj B Gupta, Black Income in India (Sage 1992). Shah (n 33). 56 eg Padel and Das (n 2) chapters 7 and 9. 57 Felix Padel, ‘Investment-Induced Displacement and the Ecological Basis of India’s Economy’ in Sita Venkateshwar and Sekhar Bandyopadhyay (eds), Globalisation and the Challenges of Development in Contemporary India (Springer 2016) 147. 58 Research Collective (n 20) 6. 59 Padel and Das (n 2). 54 55

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426 Research handbook on law, environment and the global South in the economies of most nation states. One of their main functions, apart from paying taxes, is to convert black into legitimate money.60 Another little-understood aspect of mining finance involves risk insurance. For example, the Grasberg mine in West Papua (Indonesia), which is the world’s biggest and certainly one of the world’s worst mines in terms of its devastating impacts on the environment and communities, has been allowed to operate and expand through the financing of political risk insurance, even though this has financed a campaign of brutal suppression by security forces against resisting communities.61 At the heart of world mining investment, and its rapid rise in recent years, is what is probably the world’s largest financial entity, Blackrock International, which started as a risk management fund in 1988, and has a major stake in all the world’s largest mining firms, as well as in arms companies, playing a key role in financing drone warfare technology for example. It manages assets worth nearly $5 trillion – far more than most nation states. Blackrock’s CEO Larry Fink was almost certainly the most influential person Narendra Modi met in the USA on his visit there in September 2014 after becoming Prime Minister, in terms of the promotion of more investment into India.62

D. ESCALATING RESOURCE WARS The example of Blackrock, as an apex investor in mining projects as well as military hardware, illustrates the extremely close connection between the mining and arms industries. In worldwide wars, every missile fired has to be replaced, and serves as an advertisement for more sales.63 As Dewey Anderson summarised the key importance of aluminium for arms, Aluminum has become the most important single bulk material of modern warfare. No fighting is possible, and no war can be carried to a successful conclusion today, without using and destroying vast quantities of aluminum.64

If corruption is systemic in the mining industry, it is also systemic in the arms industry and trade, as Andrew Feinstein shows in Shadow World: Inside the Global Arms Trade.65 In many ways, although this is not made easy to understand, war is the world’s 60 Nicholas Shaxson, Treasure Islands: Tax Havens and the Men Who Stole the World (Random House 2011). 61 Roger Moody, The Risks We Run: Mining, Communities and Political Risk Insurance (International Books 2005) 105–40. 62 NDTV, ‘PM Modi-US CEOs Meet: BlackRock to Host Global Investors Event in India Next Year’ (29 September 2014), accessed at www.dnaindia.com/india/report-after-meetingpm-narendra-modi-blackrock-ceo-offers-to-host-global-investors-meet-in-india-in-2015-2022468; Dungdung (n 30). 63 Felix Padel, ‘Mining as a Fuel for War’ (War Resisters International, 2008), accessed at www.wri-irg.org/en/story/2008/mining-fuel-war-0. 64 Anderson (n 27) 3. 65 Andrew Feinstein, Shadow World: Inside the Global Arms Trade (Farrar, Straus and Giroux 2011).

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Mining, development and environment in India 427 most profitable business, and the logical conclusion of the development process is the kind of all-out wars we see escalating around the world today. Investments coming into the mineral-rich states in eastern Central India are without doubt fuelling the civil war there, which is arguably the worst war there has ever been in India, in terms of catastrophic impacts on tribal village life.66 This can be shown through the huge extra funds a district receives when it is counted as ‘Maoist-affected’; and through the vast expansion in security forces in the region, in terms of formal forces as well as non-formal ones, especially the recruitment of Adivasi ‘Special Police Officers’, which, as the Supreme Court has commented, is a recipe for civil war, since they are pitted against Adivasi Maoists.67 It also emerges in strong evidence that a key part of the funding for Maoists comes from mining companies.68 On the surface, Maoists give vital support to Adivasi movements against mining and metal factory deals, such as the Raoghat mines. But this support acts as a kiss of death when it triggers an influx of security forces, such as the 22 CRPF and BSF camps now ringing Raoghat. If Maoist cadres knew the real history of Chairman Mao’s Great Leap Forward, forcing people to produce steel and promote exports in a way that caused millions of deaths through starvation, surely they would not call themselves after him. A glaring contradiction is apparent between sincere opposition to new steel projects and a Maoist identity. The tendency for both sides to portray this conflict as ideological arguably masks its fundamental nature, which is that of a resource war. Of course, Maoists may well be correct about the exploitation and class system they oppose. But their policy of ‘assassination of class enemies’ back in the 1980s, when they entered Bastar, was what instigated Mahendra Karma and others to set up Salwa Judum and commit the hundreds of atrocities recorded. If Adivasi society has a shadowy side, it is revenge for wrongs that cannot be righted through legal processes, and killings are used by both sides to fuel the conflict. The top leadership in both is non-tribal. On the Government side, leadership is organised through the police, while the Maoist leadership seems caught in an ideology that shows little development or wider awareness since the time of Charu Mazumdar and Mao himself. Mao’s propaganda differed fundamentally from his actions,69 and calling a political party after an individual seems to contradict the essence of a socialist ethic. The Maoist conflict, epicentred in south Chhattisgarh, has clearly been fuelled by mining projects. For example, Mahendra Karma was a key player in promoting these as well as leading the Salwa Judum’s campaign of terror. If one looks at specific instances where Maoists have given support to legitimate Adivasi movements, and gained temporary control over regions, such as Jungle Mahal in West Bengal and the Narayanpatna area of south Koraput district through support for the Chasi Mulya 66 Felix Padel, ‘Is Central India’s Civil War a Resource War over Metals for Arms’? War Resisters International (August 2012), accessed at http://wri-irg.org/node/20305; Sundar (n 31). 67 The Supreme Court judgment that banned the Special Police Officer system as a cause of civil strife, but then limited this judgment to Chhattisgarh, has been analysed in the work of Nandini Sundar (n 31), who was a main petitioner in this case. 68 Dungdung (n 30); Sundar (n 31). 69 Dikötter (n 36).

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428 Research handbook on law, environment and the global South Adivasi Sangh’s campaign against land alienation through illegal liquor shops and against bauxite mining, these instances ended up undermining the movements, since Maoist support served as the perfect pretext to send in security forces who established a reign of terror. The way that investment for mining funds security forces is clear in the massed deployment of police in far greater numbers against protestors opposing key projects, such as POSCO, Tata Steel, Vedanta and Jindal factories in Odisha, Chhattisgarh and Jharkhand, or the Kudankulam nuclear power plant in Tamil Nadu, than are ever directly deployed against Maoists. Huge foreign investment in nuclear power stations also highlights the significance of India’s uranium mines at Jaduguda in Jharkhand, where conditions of villagers near the mines are among the worst in India, and of attempts to start new uranium mines in other states, especially Meghalaya and Andhra Pradesh.70 The crucial fact is the amount of investment at stake in the nuclear industry, especially in high profile investment projects such as Kudankulam, as in key mining, energy and construction projects. Sometimes the collusion between mining companies and police becomes visible, as when Naveen Patnaik, as Chief Minister of Odisha, visited Kalinganagar on 16 December 2009, for the first time since the police firing that killed 14 Adivasi protestors on 2 January 2006, to open a new police station, publicly thanking the steel companies for funding it.71

E. URGENT NEED FOR REAL DEVELOPMENT India’s National Mineral Policy of 2008 was aimed at facilitating a seamless transition from regional prospecting to mining,72 bypassing previous checks and regulations. It promotes the idea that mining companies should invest a percentage of their profits in local development through Corporate Social Responsibility (CSR).73 This was reinforced by the 2013 amendment to the Companies Act, 2013, which requires companies to invest 2 per cent of their profits in CSR. Obviously, for those who understand how top-down CSR is, and how cynically it is often promoted with public relations aims in mind, this may not make much difference on the ground. In India’s mining areas, what would lead to ‘real development’ is not so much the financial investment that mining companies are bringing in, which is clearly feeding corruption and conflict, as upholding the rule of law in a way that ensures that mining companies and security forces are equal before the law with the Adivasis whose lands 70

MV Ramana, The Power of Promise: Examining Nuclear Energy in India (Penguin

2013). Reported in The Times of India, Bhubaneswar edition, 17 December 2009 (on file with the authors). 72 Ajitha S George, Status of Adivasis/Indigenous Peoples Mining Series-2, Jharkhand: Mining Jharkhand, an Adivasi Homeland (Aakar 2014) 36–7. 73 This is not mandatory and has oscillated between 26 per cent and 2 per cent. Ministry of Mines, Govt of India, Sustainable Development Framework of Indian Mining Sector (30 November 2011), accessed at http://mines.gov.in/writereaddata/UploadFile/Sustainable_ Development_Framework.pdf (mentions at 53 a guidance of 3 per cent for Public Sector companies, through CSR). 71

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Mining, development and environment in India 429 are under threat. It is often said that India has some of the best legislation to protect the environment, human and labour rights, yet some of the worst implementation.74 For example, environmental impact assessments and public hearings are notorious for their manipulation; false cases are lodged against Adivasi protestors, while mining companies and security forces get away with blatant transgressions of regulations, and even with murder.75 The Forest Rights Act, 2006 and other recent legislation represent a landmark, but implementation has been very poor. In Jharkhand, a threatened repeal of the Chota Nagpur and Santhal Pargana Tenancy Acts (1908, 1949), which uphold traditional tribal land rights, has met strong local opposition.76 Education is often seen as a prime symbol of real development. In the case of tribal education, mining companies have recently started to become major funders. In south Chhattisgarh for example, the National Mineral Development Corporation, which is expanding its iron ore mines from Bailadila to Raoghat, has funded construction of huge new schools.77 The Kalinga Institute of Social Sciences (KISS) in Bhubaneswar claims to be the world’s largest residential school, with over 25,000 Scheduled Tribes children from all 62 of the Scheduled Tribes in Odisha. Reportedly, the district administration exerts pressure on tribal families to send their children here. KISS is funded by mining companies including Vedanta and NALCO, while Tata Steel has been funding ‘multilingual education’ in Jharkhand for example. New KISS schools are being planned in other parts of Odisha, and in neighbouring states, in areas where new mining projects are coming up.78 On 25 October 2016, KISS signed a memorandum of understanding (MoU) with Adani to fund a new KISS school in Baripada, Mayurbhanj district.79 Boarding schools have been promoted in tribal areas since Independence. Ashram schools, which are nearly all residential, already numbered over 3,000 in 1989. Eklavya and Kasturba Gandhi boarding schools have multiplied since. The fact that ST populations have the lowest literacy rates and highest dropout rates, especially for girls, is used to justify promotion of such schools, even while day schools in large numbers are being closed down in tribal area.80 Widespread occupation and wrecking of schools

A paradox explored in Padel, Dandekar and Unni (n 9) chapter 8. Centre for Science and Environment (n 6); Padel, Dandekar and Unni (n 9) chapter 8. 76 Kumar Prashant, ‘“We Shall Not Part with Our Land”: Jharkhand Tribals Protest against CNT-SPT Act Amendments’ The Citizen (12 December 2016), accessed at www.thecitizen.in/ index.php/en/newsdetail/index/2/9407/we-shall-not-part-with-our-land-jharkhand-tribals-protestagainst-cnt-spt-act-amendments. 77 Aastha Vidya Mandir, in ‘Education City’, near Geedam in Dantewada district, is one such example. 78 Eg KISS, National Mineral Development Corporation KISS Residential Public School, Chhattisgarh (2011), accessed at http://archive.kiss.ac.in/mou/chhattisgarh.html. 79 Ayaskant Das, ‘KISS inks MoU with Adani Foundation for branch in Mayurbhanj’, Odisha Sun Times (24 October 2016), accessed at https://odishasuntimes.com/kiss-inks-mouadani-foundation-branch-mayurbhanj/. 80 Malini Subramaniam, ‘Chhattisgarh is Closing down Schools in Areas where it Should Expand Them’ Scroll.in (15 July 2015), accessed at http://scroll.in/article/738028/chhattisgarhis-closing-down-schools-in- areas-where-it-should-expand-them. 74 75

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430 Research handbook on law, environment and the global South by security forces and Maoists,81 and the fact that police are involved in orchestrating the sending of tribal children in ‘Maoist-affected villages’ to boarding schools, motivating them to join the police in fighting the Maoists when they finish schooling,82 shows what is at stake. Boarding schools remove tribal children from their families and communities, and thereby also from the knowledge and value systems and economic skills at the heart of tribal culture. This seems to be the real reason for high dropout rates among ST children. Boarding schools produce a profound alienation among Adivasi children.83 In many ways, such schools are at the heart of the cultural genocide taking place throughout tribal India, on a model that replicates the ‘stolen generations’ of forced assimilation imposed on indigenous populations throughout North America and Australia.84 KISS is reminiscent of the Carlisle Indian Industrial School at Pittsburgh, that regimented native American children into a mainstream lifestyle that denied their own religions, languages, knowledge and values.85 At Independence, India supposedly chose a tribal policy of integration, avoiding the isolationism and assimilationism of earlier times. In education, this was supposed to manifest in schools based on Gandhi’s model of Basic Education, incorporating tribal languages and many elements of local knowledge and culture, adapting school timings to seasonal work patterns and tribal festivals, employing increasing numbers of tribal teachers. In fact, employment of tribal teachers in tribal schools has remained below 20 per cent in most areas, and far from fulfilling every child’s constitutional right to be taught in their mother tongue, many schools still punish and humiliate children who speak their tribal languages in a classroom. School timings are rarely adapted to the tribal calendar of festivals and work seasons, and tribal knowledge and culture are not incorporated into most schools’ curriculum in any meaningful way. The Xaxa Committee Report shows that overall the policy promoted, especially through boarding schools, has been one of assimilation.86 The shift towards private models started through the avenue of ‘Non-Formal Education’ in the National Policy on Education of 1986, when the Rashtriya Swayamsevak Sangh started setting up a huge network of schools through Vidya Bharati; and has grown recently with KISS and similar ventures funded by mining companies. Save the Children, Caught in Crossfire: Children and Education in Regions Affected by Civil Strife (2013), accessed at https://www.savethechildren.in/sci-in/files/60/60ac49bf-87874683-9db4-d53ea1c8ea44.pdf. 82 B Vijay Murty, ‘Jharkhand Cops Save Kids from Becoming Maoist Child Soldiers’ The Hindustan Times (23 March 2016), accessed at https://www.hindustantimes.com/india/ jharkhand-cops-save-kids-from-becoming-maoist-child-soldiers/story-ihqNzBhVrFCDoEYnPHi NIJ.html. 83 Sarada Balagopalan, ‘Neither Suited for the Home nor for the Fields: Inclusion, Formal Schooling and the Adivasi Child’ (2003) 34(1) IDS Bulletin 55. 84 David Wallace Adams, Education for Extinction: American Indians and the Boarding School Experience, 1875–1928 (University Press of Kansas 1995); John S Milloy, A National Crime: The Canadian Government and the Residential School System, 1879–1986 (University of Manitoba Press 1999). 85 Andrea Smith, Indigenous Peoples and Boarding Schools: A Comparative Study (United Nations Permanent Forum on Indigenous Issues 2009). 86 Ministry of Tribal Affairs, Report of the High Level Committee on Socio-Economic, Health and Educational Status of Tribal Communities of India (Government of India 2014). 81

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Mining, development and environment in India 431 By contrast, a network of alternative, multilingual and multicultural schools exist in tribal areas. For example, Imlee Mahua, a democratic school near Kondagaon in Chhattisgarh, uses Gondi and Halbi.87 Best known is the Tribal Academy at Tejgadh, Gujarat, which uses several tribal languages and incorporates many elements of tribal learning in the classroom, such as riddles, songs and dances.88 Unlike most mainstream schools, these ones, in line with traditional tribal culture,89 use a lot of humour and only the lightest discipline. If such models could be widely learnt from, this could start a proper integration of Adivasi culture with mainstream knowledge.90 Real development means improving everyone’s quality of life. The Human Development Index fails to measure tribal people’s well-being effectively. Faced with displacement by mining projects and bogus offers of compensation, Adivasis often say ‘We’re being swept away by money’, and ‘We can’t eat money’,91 in a context where self-sufficiency in food is undermined, and the kind of food that money can buy is grossly inferior to food that people used to grow and make themselves. Adivasis’ educational status is similarly hard to measure, since enrolment at a school does not mean that children attend regularly, or even that the school is functional; while boarding schools impose an alien knowledge system that undermines local skills.92 Human rights surely represent a prime indicator of real development,93 and so does the rule of law. When police burn effigies of human rights activists when the latter prove in India’s Supreme Court that the police have been guilty of killing Adivasis in false encounters, as happened in Kondagaon with images of Nandini Sundar, Bela Bhatia, Himanshu Kumar and Manish Kunjam burnt on 25 October 2016,94 it becomes clear that the rule of law is being sacrificed for an image of development that does not promote human well-being at all. No peace process exists presently, by contrast with Colombia for instance. On Friday 21 October 2016, in response to Nandini Sundar’s petition, the Supreme Court advised 87 N Coelho and S Padmanabhan, Imlee Mahuaa: Learning in Freedom the Democratic Way (Kalpavriksh 2016). 88 Joeanna Rebello, ‘Here, Literacy is Unimportant’ Times of India (22 June 2008), accessed at http://timesofindia.indiatimes.com/home/sunday-times/Here-literacy unimportant/articleshow/ 3152492.cms. 89 Madhu Ramnath, Woodsmoke and Leafcups: Autobiographical Footnotes to the Anthropology of the Durwa (HarperCollins 2015). 90 Felix Padel and Malvika Gupta, ‘Adivasi Education: Forced Assimilation, Gandhi’s Nai Talim and Contemporary Alternatives’ (Gandhi Foundation, 2016), accessed at https://gandhi foundation.files.wordpress.com/2016/04/adivasi-education-forced-assimilation3.pdf; Felix Padel and Malvika Gupta, ‘Education Oriented to an Ecology-Based Economy’ (Non-Timber Forest Products – Exchange Programme 2016) 4, accessed at http://ntfp.org.in/education-oriented-toan-ecology-based-economy/. 91 Padel and Das (n 2). 92 Save the Children (n 81). 93 Felix Padel, ‘Human Rights and Self-Determinations as Prerequisites for Real Development’ (5th Naorem Sanajaoba Memorial Lecture, Manipur University, Imphal, 29 December 2015). 94 Anonymous, ‘Security Forces in Chhattisgarh Burn Effigies of Petitioners, Journalist, Activists’ The Wire (25 October 2016), accessed at http://thewire.in/75623/security-forceschhattisgarh-burn-effigies-petitioners-journalists-activists.

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432 Research handbook on law, environment and the global South the Central and Chhattisgarh Governments to hold peace talks with the Maoists to end the horrendous conflict.95 It was clearly this ruling that prompted police to burn her effigy four days later. But is the only strategy of the security forces to exterminate the Maoists? Surely some compromise should be reached. For example, obviously beneficial measures introduced by Maoists, such as fair prices, a ban on illegal liquor, and return of alienated tribal lands, need to be merged with measures meant to bring democracy to tribal areas, such as the PESA (Panchayat Extension to Scheduled Areas) Act of 1996. At present, it is hard to imagine the path to peace in Central India; for it will need to come with Justice in the form of some kind of Truth and Reconciliation process that brings police officers and mining corporation officials under the rule of law, while giving some form of compensation to thousands of under-trial Adivasis jailed in false cases, and others whose kin have been killed in false encounters.96 Equally, some resolution will have to be made on what a balanced approach to mining should be. One positive proposal is by the Goa Foundation, directed by Claude Alvares, who has led a running legal battle against illegal mining in Goa, to set up a Goenchi Mati Permanent Iron Ore Fund to collect profits from mining for the public good, in a way that will make economic sense, restraining unsustainable mining at the same time as preserving the environment and mineral resources for future generations.97 Iron ore mining was banned by Supreme Court order in 2012, after the Shah Report on Goa came out, but resumed after 2–3 years, making life hell for many Adivasi villagers.98

CONCLUSION The brief overview presented here suggests that the mining industry in India is unsustainable in the long term, and out of control, in the sense that regulatory mechanisms are failing to prevent projects that are illegal and/or immensely destructive. Occasional successes have been thanks to civil society activism, such as temporary closure of illegal mines in Goa and Karnataka due to the MB Shah Commission, and J Venkatesan, ‘Start Talks with Maoists: Supreme Court to Centre, Chhattisgarh’ The Asian Age (22 October 2016), accessed at www.asianage.com/india/start-talks-maoists-supremecourt-centre-chhattisgarh-611. 96 Padel, Dandekar and Unni (n 9) chapter 8. 97 Goa Foundation, ‘The Goenchi Mati Permanent Iron Ore Fund: Proposal Submitted by the Goa Foundation to the Goa Government’ (drawn up by Claude Alvares with Rahul Basu, 5 May 2014). 98 eg Shah (n 33); Sebastiao Rodrigues, Status of Adivasis/Indigenous Peoples Mining Series-1, Goa: Land, Mining and Indigenous Peoples, An Overview (Aakar 2014); Nida Khan, ‘Why 45 Goa Villagers Opposing Mining are Stuck in Jail despite Bail’ Hindustan Times (18 April 2017), accessed at https://www.hindustantimes.com/india-news/why-45-goa-villagersopposing-mining-are-stuck-in-jail-despite-bail/story-gi0PNRGfy7nIfnkICwLeuI.html; Nidhi Jamwal, ‘As Mining Resumes, Villagers in Goa’s Sonshi Say It’s “Back to Hell”’ The Wire (21 April 2017), accessed at https://thewire.in/126584/sonshi-goa-iron-ore-vedanta/. 95

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Mining, development and environment in India 433 gram sabhas in Niyamgiri and Mahan that prevented new mines, destructive to local livelihoods and ecosystems. The destruction of ecosystems, including forests, fields, mountains and water sources presents huge dangers for future generations of Indians; quite apart from the hundreds of communities facing displacement and disintegration now due to the mining and metals projects. India fell to 177th place in the Environmental Performance Index in 2018 – near the bottom, and falling.99 In Southeast Asia, Africa and Latin America, similar devastation is evident,100 with occasional success stories, even though these sometimes appear as drops in an ocean of destruction. For example, a recent judgment in London’s High Court allowed Vedanta to be sued by Zambian farmers over extensive damage from its subsidiary Konkola Copper Mines to people’s health from severe pollution of the Kafue River back in 2006.101 Worldwide, the mining/metals industry, and extractive industries generally (since oil and gas extraction is at the centre of resource conflicts in many countries), can also be seen as out of control – or as under the control of a financial, corporate elite who do not care about negative impacts on ecosystems or communities. The Yasuní Park project in Ecuador, that attempted to keep the oil in the ground through an alternative valuation of the biodiversity benefits involved, appears to have failed.102 Ecuador and Bolivia are hailed as showing the way towards sustainability and indigenous rights, not least by enshrining the Rights of Nature in their constitutions. So, the failure to follow through in Yasuní, and a similar promotion of the road to facilitate oil/gas extraction through the Isiboro Secure Indigenous Territory and National Park rainforest in Bolivia, against indigenous activism in 2011,103 show how far we still have to go. We have mentioned an initiative in Goa called the Goenchi Mati Permanent Iron Ore Fund as presenting one possible alternative to the mainstream model of outside investors funding mining projects that reduce biodiverse lands to wastelands. This involves collective profits from mining, based on the concepts of minerals as common property and of zero loss mining, and the principle of intergenerational equity in preserving a large proportion of minerals in the earth.104 The Environmental Performance Index is run by the World Economic Forum with Yale and Columbia Universities (23 January 2018), accessed at https://news.yale.edu/2018/01/23/ 2018-environmental-performance-index-air-quality-top-public-health-threat. 100 eg Ugo Bardi, Extracted: How the Quest for Mineral Wealth is Plundering the Planet (Chelsea Green 2014) [German edition 2013]. 101 Foilvedanta, Victory for Zambian farmers Suing Vedanta in UK (13 October 2017), accessed at http://www.foilvedanta.org/uncategorized/victory-for-zambian-farmers-suing-vedantain-uk/. 102 Marc Becker, ‘Resource Extraction and Yasuní National Park Ecuador’s Bitter Choice’ Solidarity (January–February 2014), accessed at www.solidarity-us.org/node/4061; Maria Cristina Vallejo and others, ‘Leaving Oil Underground in Ecuador: The Yasuní-ITT Initiative from a Multi-Criteria Perspective’ (2015) 109 Ecological Economics 175–85. 103 Nancy Postero, The Indigenous State: Race, Politics and Performance in Plurinational Bolivia (California University Press 2017). 104 Goa Foundation (n 97); Sarah Dynah McGinnis, ‘The Goenchi Mata Permanent Fund’ The Herald (Goa, 1 January 2017), accessed at www.heraldgoa.in/Review/Voice-Of-Opinion/ The-Goenchi-Mati-Permanent-Fund/110019.html. 99

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434 Research handbook on law, environment and the global South The funding of tribal education by mining companies, often on an industrial scale, seems aimed at undermining resistance to mining projects, and compounds the cultural genocide instigated by displacement, by alienating children from their traditional knowledge and value systems. As an alternative, a number of schools in different states exemplify the cultural sensitivity that could provide a model for real development, aimed at structural change. What is at stake is not just the well-being of India’s (and indeed the world’s) Adivasis – though this is something of immense importance in itself. The future of humanity is at stake, and many think that mainstream society will have to start learning from the principles of long-term sustainability encoded in Adivasi economics, if future life on earth is to be worth living.105 Can we collectively develop to a stage of ‘democratic civilisation’, formulating models of power not based on corruption and coercion? Can we learn to share the resources remaining on mother earth, rather than destroying ourselves competing over them in senseless resource wars?

105 Noam Chomsky, ‘World Indigenous People only Hope for Human Survival’ Telesur (26 July 2016), accessed at https://www.telesurtv.net/english/news/Chomsky-World-IndigenousPeople-Only-Hope-for-Human-Survival-20160726-0040.html.

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22. Environment impact assessment in India: contestations over regulating development Manju Menon and Kanchi Kohli

THE SOCIAL ROOTS OF ENVIRONMENTAL REGULATION In India, the establishment of infrastructure or development projects requires obtaining an approval from ministries and government departments entrusted with the task of environmental protection. This approval begins with vetting the project from an environmental point of view and ends in securing an environmental clearance or licence. The entire process runs as a step wise decision-making framework which involves the assessment of potential environmental and social impacts of the proposed project, consultations with locally affected people and an appraisal of this information along with environmental management plans, mitigation measures and disaster preparedness. This process is seen to have the capability to suggest, purportedly with reasonable accuracy, the likely consequences a project will have during its construction and operational life. These procedures, which have been regulated by law since 1994, are called the Environment Impact Assessment (EIA) and have become the basis of environmental decision-making on development projects in India. India is not alone in using an EIA based framework for decision-making on large and high impact projects. These regulatory procedures are a symbol of the global concerns for environmental protection and sustainability. EIA regulations first emerged amidst the growing environmental consciousness in the West since the 1960s. Weston argues that when the US government promulgated the National Environment Policy Act in 1969, the public demand from an environmentally concerned citizenry was for a ‘rational and scientific environmental decision-making’ process.1 Another demand, seen as contradictory to this, was for greater public involvement in such decisions as there was mistrust in the government’s ability to take environmentally sound decisions.2 Nevertheless, these two aspects of scientific information and public opinion were brought together to form the EIA framework so that development decisions could factor in and mitigate environmental and social impacts of proposed projects. While the EIA framework originated in the West, it became a part of the national laws of several countries within a matter of two decades. The global conventions on the environment were responsible for the spread of these regulations throughout the global south. The United Nations Conference on the Human Environment held in Stockholm, Sweden in June 1972 held that preserving nature and wildlife or improving the environment should not come in the way of much needed development in the 1 Joe Weston, ‘EIA in a Risk Society’ (2004) 47(2) Journal of Environmental Planning and Management 313. 2 ibid 313.

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436 Research handbook on law, environment and the global South developing countries.3 At the time of the conference in 1972, 11 countries had environment departments. Within ten years it increased to 106, mostly in developing countries such as Thailand and the Philippines.4 These nations adopted the highly procedural system of EIA that was devised by the United States Environment Protection Agency and also set up specialized agencies or departments to implement these laws. By the time of the United Nations Conference on Environment and Development in June 1992 in Rio, EIAs were institutionalized as the tool for sustainable development. In the decade of the 1990s, much international recognition was given to EIAs.5 Today EIA based decision-making is practised in more than 191 countries.6 Just as in the US, the EIA law in India also has its roots in social demands. Before EIA became a law in India, the government assessed projects of certain sectors for their impacts as an administrative requirement. Through the 1970s, the central government engaged in detailed assessments of its projects to recognize the many consequences of its proposed investments. One of the reasons to introduce these assessment processes was the massive protests faced by central government projects from large social movements in post-colonial India. The 1950s and 1960s were a period of planned investments in irrigation and industrial infrastructure and some of the government’s flagship projects such as the Bhakra Nangal (on river Sutlej) and Nagarjunasagar dams (on river Krishna) resulted in massive displacement and poor rehabilitation and environmental problems such as salinity and deforestation.7 These problems gave rise to visible protests and threatened to render unpopular the high investment government projects. The adoption of an assessment process that took into account these problems in advance could help the government pre-empt these social flashpoints and manage development with less friction. However, this method did not ensure a smooth passage for the proposed projects. The assessments were done using the Cost-Benefit Analysis (CBA), a method through which the economic viability of projects was determined. The CBA, a techno-economic framework of assessment, arrives at the total equivalent money value of the benefits and costs of a project to help establish whether they are worthy of undertaking.8 CBA is used in the calculation of the internal rate of return, an indicator of the profits on capital investment. The rule of thumb followed for official decision-making on public 3 Declaration of the United Nations Conference on the Human Environment, Stockholm, 16 June 1972, UN Doc A/CONF.48/14/Rev.1. 4 Asit K Biswas and SBC Agarwal, Environmental Impact Assessment for Developing Countries (Elsevier 1992) vii. 5 Mathew Cashmore, ‘The Role of Science in Environmental Impact Assessment: Process and Procedure versus Purpose in the Development of Theory’ (2004) 24 Environmental Impact Assessment Review 403. 6 Richard K Morgan, ‘Environmental Impact Assessment: The State of the Art’ (2012) 30(1) Impact Assessment and Project Appraisal 5. 7 Shekhar Singh, ‘Social and Environmental Impacts of Large Dams in India’ (2003) 11(1) The Ecologist 61. 8 Satyajit Singh, Taming the Waters: The Political Economy of Large Dams in India (OUP 1997) 67–76.

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EIA in India: contestations over regulating development 437 investment in India was that benefits should exceed costs by a proportion of one and half times.9 Many communities who faced displacement and loss of livelihoods on account of projects approved by this assessment method took to the streets. They claimed that the CBA externalized the true costs of these ill-designed projects and that these costs were borne by tribal communities, small peasant farmers and the landless. Due to these social movements and local resistance to projects, public investments were stalled. These conflicts posed economic costs to the government due to delays in project implementation. In some places, preliminary work had been undertaken at substantial costs, in others, loans had already been received to undertake construction and in several others the financial viability of sectoral departments were riding on the completion of projects. These issues could also threaten the political legitimacy of government decisions. It was in 1975 that the Central Water Commission issued a special set of guidelines to conduct investigations regarding major irrigation and hydroelectric projects.10 Its chapter on environment stated that the planning, construction and operation of projects have impacts on ecology, some of which are irreversible. Therefore, it would be necessary to have a careful evaluation of these impacts. These guidelines mark a shift in the government’s approach to project assessment. It was an acknowledgement that the CBA method of decision-making had to be revised to account for the burdens these projects placed on sections of society. These new guidelines, however, remained incidental in use. In 1985, the Department of Environment issued guidelines for EIA, which specified the need for various studies as part of project assessment. It included, besides studies on technical and engineering aspects, studies on the impact on forests and wildlife in the submergence zone, of waterlogging and ecological changes.

A. INDIA’s EIA TRAJECTORY 1. EIA 1994 Obtaining prior environmental clearance for industrial and infrastructure projects was not a mandatory requirement until January 1994 when the first EIA notification was issued in India under the Environment (Protection) Act, 1986, under Sections 3(1) and 3(2)(v). These sections of the Act give far-reaching powers to the central government to design, amend and enforce laws in the interest of the environment. The latter provision gives powers to the central government to place ‘restriction of areas in which any industries, operations or processes or class of industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards’.11 Such legal instruments became necessary to regulate development projects, as between the 1980s 9 Muraleedharan Valappil, Dimitri Devuyst and Luc Hens, ‘Evaluation of the Environmental Impact Assessment Procedure in India’ (1994) 2(1) Impact Assessment 75. 10 Central Water Commission, Guidelines for Investigations of Major Irrigation and Hydroelectric Projects (Government of India 1975). 11 Environment (Protection) Act, 1986, s 3(2)v.

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438 Research handbook on law, environment and the global South and the next decade, more and more private actors became involved in project implementation. When the 1994 notification was issued it became mandatory for a list of 29 activities to get approval from the central government before initiating construction activities and operations. All the enlisted projects/processes/operations had to follow a procedure that included the preparation of a detailed EIA report, organizing a public hearing and an appraisal by expert committees. All of these together were meant to determine the viability of a project and thereby decide if a project should be granted an environmental approval. If yes, on what conditions which would help mitigate and manage impacts? From then, the EIA process has emerged as a dominant tool for environmental decision-making on development projects in India. The draft of the 1994 notification contained a strong rationale for an EIA regime for India. It clearly stated that considerable adverse environmental impact had been caused due to the degradation of the environment with excessive soil erosion, water and air pollution on account of certain development activities. It stated that it is necessary to protect and improve the quality of environment by controlling pollution and developmental pressures. Further, it stated that certain developmental projects should be carried on within the carrying capacity of an ecosystem. The method of arriving at the carrying capacity of an area was not stated anywhere in the notification. Interestingly, when the EIA notification was issued on 27 January 1994,12 this rationale did not appear as a part of it. Only a reference was made to the draft notification. There were some other significant differences between the draft notification and what was finally notified. For instance, the draft notification did not restrict it to being applicable to certain activities either due to investment limits or due to operations or processes involved in the project/activity. However, the final notification was made applicable only to certain kinds of projects and activities of specified size or investment. All other activities and projects were excluded from the need to study impacts or seek approvals. Another major difference between the draft and the final notification was the mention of railway lines (involving acquisition of non-railway land) including underground railways in the list of projects requiring environmental clearance. As per the January 1994 notification, railway lines did not need environmental approvals and this has remained so. Since then until 2006, while the overarching structure of the law remained the same, several amendments and clarifications made the framework complex and difficult to implement. Between 1994 and 2005, 12 amendments were made to the notification. One kind of amendment was with respect to the inclusion and exclusion of projects into and from the notification. While Schedule 1 or the list of projects that were mandated to seek environmental approvals expanded due to the introduction of new sectors like real estate or special economic zones, the EIA notification also provided exclusionary clauses for many projects or activities. Despite the list of exclusions that

12 The EIA notification was conferred by sub-section (1) and clause (v) of sub-section (2) of section 3 of the Environment (Protection) Act 1986 (29 of 1986) read with clause (d) of sub-rule (3) of rule 5 of the Environment (Protection) Rules 1986.

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EIA in India: contestations over regulating development 439 were made to the notification, the regulatory footprint expanded to include 32 activities by subsequent amendments until 2005.13 This ‘flexibility’ of the notification attracted intense lobbying efforts from mobilized industry associations.14 They sought to be excluded from the notification as it set additional demands on their project timelines and resources and also made approvals to their projects subject to certain conditions to mitigate impacts. As a result of the efforts by industry, the regulatory footprint of the notification on the arena of economic activities expanded and excluded in almost equal measure. One significant amendment was the introduction of the procedure for public hearings. Conducted by the government to obtain views and comments from the public about proposed projects, these hearings became major opportunities for people to mobilize together based on their views or demands related to the project.15 The public hearings also offered the participating civil society groups and affected communities a window to look into how decisions on projects were taken. They brought to public attention a whole range of issues such as procedural fairness, democratic decision-making and prior informed consent that challenged the implementation of the notification. Through this initial period of the EIA notification, the overall implementation of this law suffered very much. As a result, this new decision-making process got bad press from the public as well as from industry. Critics from industry called it a bottleneck, a hurdle and a roadblock while civil society actors referred to it as a toothless regulation and a ‘rubber stamp’ approval process. They charged government agencies implementing this law with corruption and favouritism.16 2. ‘Re-engineering’ the EIA India underwent economic liberalization by 1991. The process of opening up manufacturing and production sectors of the economy to the private sector involved changes to legal and policy instruments such as labour laws and environmental regulations. The pace of such policy transformation to aid liberalization picked up gradually and was mediated by international organizations such as the World Bank. The World Bank has 13 Kanchi Kohli and Manju Menon, Eleven Years of the Environment Impact Assessment Notification, 1994 (Kalpavriksh, Just Environment Trust, Environment Justice Initiative 2005) 94. 14 Response dated 20 June 2006 to Right to Information application seeking details of the organizations and associations consultation for the finalization of the EIA Notification 2006 (No J11012/6/2006-IA-II-(I)) (on file with the authors). 15 eg Doctors for Safer Environment (DOSE), The First Public Hearing on a Nuclear Reactor in India: A Report (DOSE 2001); Kohli and Menon (n 13). 16 Government of India, ‘Report on Reforming Investment Approval and Implementation Procedure (Part II)’ (Government of India 2002); Leo F Saldanha and others, Green Tapism: A Review of the Environmental Impact Assessment Notification 2006 (Environment Support Group 2007); and ToxicsWatchAlliance, ‘Press Release: Adverse Consequences of DMK’s Regime at Environment Ministry’ (26 November 2010), accessed at www.sanctuaryasia.com/component/ content/article/81-news/3686-press-release-adverse-consequences-of-dmks-regime-at-environmentministry.html.

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440 Research handbook on law, environment and the global South been called the environment knowledge holder.17 It was the primary agency supporting India’s shift to an EIA based decision-making process. The foundation for the environmental clearance norms was set when a still newly formed environment ministry accepted to undertake the World Bank funded National Environment Action Plan, 1993. The five objectives of the action plan included assessing environment issues in India against the backdrop of the changing economic policies and identifying future directions for ‘integrating environmental concerns into development projects’.18 Even as the implementation of EIA was floundering in India in the early years, the Ministry, together with several law universities and consultancy groups was engaged in developing newer formats for a more efficient implementation of this law. On 29 November 2004, at a meeting with NGOs, the environment ministry distributed a draft format for a new environmental clearance (EC) process. This note titled ‘Reforms in grant of Environmental Clearances’ gave reference to the Govindarajan committee report on investment reforms, which was one of the first official documents to suggest that India’s economic agenda was being restrained by an inefficient environment approval process.19 It also established the link between the proposed reforms with a project called ‘EMCB project’ or the Environment Management Capacity Building (EMCB) Project supported by the World Bank. This Technical Assistance Project between the World Bank’s International Development Agency and the Ministry of Environment and Forests (MoEF) was approved in 1998 and went on until December 2004. The EMCB project was a step in the Bank’s overall assistance to the environment ministry in implementing the National Environment Action Plan (NEAP) through research, training and drafting of amendments to the law. In particular, the review of ‘Environment Assessment’ was added as an objective of the project and included in the Development Credit Agreement between the Bank and the Ministry in April 2001. Once the objectives were clarified, the Ministry commissioned consultancy groups like ERM India Pvt. Ltd and National Environment Engineering and Research Institute to present reviews of the EIA process and develop EIA manuals for specific sectors. A document titled ‘Good Practices in Environmental Regulation’ was finalized by the Ministry.20 The changes to the EIA notification that followed can be considered the most critical output of the World Bank intervention in the environment sector in India during that time.21 After the issuance of the document indicating the ‘Reforms in Grant of Environmental Clearances’ in 2004, a draft notification presenting a new version of the EIA process was issued on 15 September 2005. As per the Ministry’s own submission in applications filed under the Right to Information Act (RTI Act), 2005 the consultations on the draft notification were held 17 Michael Goldman, Imperial Nature: The World Bank and the Struggle for Social Justice in the Age of Globalisation (Yale University Press 2005) 101. 18 Ministry of Environment and Forests (MoEF), Environment Action Programme: India (Ministry of Environment and Forests, Government of India 1993). 19 Government of India (n 16). 20 MoEF, ‘Good Practices Adopted in Environmental Regulations to Facilitate Expeditious Decision Making’ (Press Release, 21 June 2004), accessed at http://pib.nic.in/newsite/erel content.aspx?relid=2064. 21 Manju Menon and Kanchi Kohli, ‘Re-Engineering the Legal and Policy Regimes on Environment’ (2008) 43(23) Economic and Political Weekly 14.

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EIA in India: contestations over regulating development 441 only with representatives of industry and central government agencies. A revised version of the draft notification was also shared with industry associations in mid-2006 before the final version was issued in September 2006.22 According to documents received through appeals under the RTI Act, it was revealed that specific instructions for this were given from the Prime Minister’s Office.23 There were protests from civil society organizations and political party representatives over the undemocratic and partisan manner of ‘reform’ by central government in collaboration with the World Bank and industry. Political parties such as the Communist Party of India (M), Samajwadi Party, All India Forward Bloc, AIADMK and the Pattali Makkal Katchi raised this issue. But the MoEF went ahead and issued a re-engineered EIA notification on 14 September 2006, a day before the draft notification was to lapse.24 It became amply clear that not only were civil society and environmental groups kept out of these reforms, the Parliament had little oversight over the powers of the executive to legislate on a matter that could influence the lives of citizens. 3. The EIA 2006 Law The new EIA notification, 2006 set in place a revised system of environmental approvals.25 It includes four steps: Screening, Scoping, Public Consultation and Appraisal (Table 22.1). Screening is the first level where projects are split between central and state government for approvals. Scoping determines the Terms of Reference for EIA assessments. This is followed by Public Consultations where a draft EIA report and other related project documents like the pre-feasibility report are opened to the public for comments. It has two components, one is a public hearing event and the other is a 30-day window for anyone to send their comments in writing. The final step of the approval process is the review of all these documents, including minutes of public hearings by a thematic expert committee. The fifth and crucial step on post-approval compliance is addressed by two short paragraphs. It is one of the least attended to aspects of the notification and one that makes all the difference to what this law can achieve. Its implementation is under the jurisdiction of the central Ministry of Environment, Forests and Climate Change. Post approval compliance is monitored both by the Ministry’s internal mechanism through its Impact Assessment division as well as State Environment Impact Assessment Authorities of state governments (more details below). The new notification decentralised the approval process by setting up the State Environment Impact Assessment Authority. All projects covered under this notification 22 Manju Menon and Kanchi Kohli, ‘Environmental Decision Making: Whose Agenda?’ (2007) 42(26) Economic and Political Weekly 2490. 23 Note dated 28 March 2006. PMO I.D. No. 250/31/C/4/05-ES-II to Secretary, MoEF. 24 The draft EIA notification was issued on 15 September 2005 and the final version was issued on 14 September 2006. As per Section 5(3)(d) of the Environment (Protection) Act, 1986 a draft notification would lapse if not finalized within a period of 365 days from date of issue of the notification. The time period was subsequently extended to 545 days (Notification No GSR 513(E), 28 June 2012. 25 Notification SO 1533, 14 September 2006, Gazette of India, Extraordinary, Part-II, and Section 3, Sub-section (ii).

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442 Research handbook on law, environment and the global South were divided into Categories A and B, supposedly based on their potential environmental impacts. Category A projects were to develop an EIA based on a Terms of Reference and presented to the MoEF. Category B projects were to be screened and further subdivided into B1 and B2. The requirement of an EIA and public consultation were dispensed with for B2 projects. Table 22.1 Four stages of the EIA notification Four Stages of the EIA Notification Screening

Categorization of applications into Category A (central level) and B (state level). B projects can further be separated into B1 (need EIA) or B2 (do not need EIA)

Scoping

Finalization of Terms of Reference for EIA, preparation of draft EIA report

Public Consultation

Includes Public Hearing and seeking written responses

Appraisal

Thematic Expert Committees to review applications

There are some key differences between the 1994 and 2006 versions of the EIA, adding layers to the notification that perceivably favour project proponents. For instance, Clause 4 of the 1994 notification said that in the case that the project proponent submits false and misleading data at any stage of clearance, the project is liable to be rejected. This clause rarely got utilized but it was at least part of the law. Clause 8(vi) of the new notification amended this to state that rejection will not be done without giving a personal hearing to the project proponent. This implies that non-compliance with legal clauses of the notification is opened up to a negotiation between an expert committee and the project proponents. Even after the issuance of the 2006 notification following a long drawn-out ‘reform’ process, the EIA law has continued to be dynamic and subject to frequent changes. The period of 2006–18 has seen several amendments sometimes substantially reshaping the regulation or restricting the scope of the law. One of the first big amendments to the 2006 notification came in 2009. The environment ministry proposed exemptions for certain projects from either public consultations or appraisal by the central government. For instance, dredging activity was exempt from the requirements of public consultations provided the dredged material is dumped within port limits.26 Subsequently there were amendments that reduced the requirements for carrying out EIA reports for projects based on their expansion capacity or final built-up area.27 Amendment through Notification dated 1 December 2009 (SO 3067-E). Manju Menon and Kanchi Kohli, ‘From Impact Assessment to Clearance Manufacture’ (2009) 44(28) Economic and Political Weekly 20; Shibani Ghosh, ‘Is the MOEFCC Encouraging Environmental Violations?’ (Centre for Policy Research 2016); Neha Sinha, ‘Scrapping Green Clearances is a Bad Way to Promote the Ease of Doing Business’ The Wire (6 June 2016), accessed at https://thewire.in/environment/scrapping-green-clearances-is-a-bad-way-to-promotethe-ease-of-doing-business. 26 27

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EIA in India: contestations over regulating development 443 An office memorandum related to appraisals28 states that the Expert Appraisal Committees (EACs), set up to review the EIA and public hearing documents before recommending an approval or rejection, should only ask for a comprehensive set of questions and studies at the scoping stage when the Terms of Reference for an EIA report is issued. The office memorandum states that additional studies, especially ‘fresh issues’, need to be added at the appraisal stage only if it is inevitable and along with a justification that is to be unambiguously stated in the minutes. The purpose of this office memorandum is to address the complaints of project authorities that too many questions are being asked at the appraisal stage causing delays. However, this office memorandum does not factor in two aspects: first, the very purpose of expert scrutiny is to seek essential feedback to address issues that could lead to impacts. Secondly, the cause of questions at the appraisal stage is related in good measure to the quality of EIA reports submitted by the project proponent. Curtailing powers of appraisal committees goes completely against the spirit of the notification, which requires the EACs to do a ‘detailed scrutiny’. Today, the total number of projects that have been granted environmental approvals by the central Ministry alone have exceeded 15 000.29 The annual rate of approvals is in the hundreds and the rate of rejection of EIAs by the Ministry is extremely low indicating that the EIA process hardly filters out any project as undesirable.30 The government has continued to be under pressure to ‘fast track’ environmental approvals. The time taken for the processing of approvals after the required documents are presented to the Ministry has reduced from several months to about two months in the interests of economic growth and facilitating investments.31 In the case of projects with an investment above 1000 crore rupees, a cabinet committee headed by the Prime Minister determines the time available for approvals.32 Since 2013, there is also a special Project Monitoring Group that specifically responds to conflicts brought to their attention by the project authorities.33

Office Memorandum F. No. 22-A3/ 2O14-IA-III, dated 7 October 2014. Based on the approval list available at environmentclearance.nic.in from January 1994 onwards. 30 Padmaparna Ghosh, ‘MoEF Rejection Rate Hasn’t been Reined in, RTI Response Shows’ The Mint (22 January 2011), accessed at www.livemint.com/Politics/GeDWH5PZUUe6UPoi1h JoyI/MoEF-rejection-rate-hasn8217t-been-reined-in-RTI-respons.html. 31 TV Padma, ‘India Races through Environmental Approvals’ (2014) 511(7508) Nature 134. 32 Shibani Ghosh, ‘Demystifying the Environment Clearance Process in India’ (2013) 6(3) NUJS Law Review 433. 33 As per the website of the Prime Minister of India, ‘The Project Monitoring Group (PMG) was set up in 2013 under Cabinet Secretariat. It is an institutional mechanism for resolving a variety of issues including fast tracking the approvals for setting up and expeditious commissioning of large Public, Private and Public–Private Partnership (PPP) Projects. PMG is now functioning under Prime Minister’s Office (PMO) since 14.09.2015’. 28 29

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444 Research handbook on law, environment and the global South

B. EIA CHALLENGES IN INDIA A close analysis of the implementation of the EIA notification shows that there are key issues that have been a challenge from the outset and unaddressed to date. These include the quality of Impact Assessment studies, the role of experts in decisionmaking and public participation. These issues are discussed below. These issues have been at the centre of cases brought to India’s National Environmental Appellate Authority (NEAA) and the National Green Tribunal (NGT), two special institutions that were set up to deal with implementation of environmental laws. The NEAA was an institution set up in 1997 to address complaints of those aggrieved specifically by the grant of an approval under the EIA notification. In 2010, the NGT replaced the NEAA through an act of Parliament. The NGT’s scope is wider as it allowed any person aggrieved by any order passed under the seven statutes under the jurisdiction of the NGT to approach the tribunal for relief. The tribunal also hears matters that raise substantial questions relating to the environment.34 1. Quality of Impact Assessments Researchers and NGOs have regularly brought to light the poor and inadequate content of the EIA studies and the environment ministry itself has acknowledged this to be an area of concern.35 Courtroom debates have also brought out questions of inadequate baselines studies and biased assessments.36 The data in the EIA reports have been questioned for inaccuracy and deliberate misinformation. These claims are backed by the charge that EIA consultants are not independent to give objective assessments. As they do it on behalf of project developers whose projects need approvals, they are forced to write assessments that favour the project. Since EIA funding continues to be directly tied to the client or project proponent, there is no incentive for consultants to bring the best information into the EIA reports.37 A case in point is the EIA prepared by the consultant Detox Corporation Pvt. Ltd, Surat, for a 300 MW thermal power plant of the OPG Power Gujarat Limited in the ecologically fragile inter-tidal area of the Kutch coast in Gujarat. The opening lines of the Executive Summary of the EIA set the tone on the ‘need’ for a thermal power plant. In the draft EIA report made available before the mandatory public hearing, the EIA consultant misled the public by giving ambiguous information about the location of the project. The location of the project was given as being out of the inter-tidal area and The National Green Tribunal Act, 2010 (No 19 of 2010). Menon and Kohli (n 22) 2493; Kohli and Menon (n 13) 21–40. 36 T Muruganandam and others v Union of India and others Appeal No. 50/12, Judgment of 10 November 2014 (National Green Tribunal, Principal Bench). 37 M Rajshekhar, ‘How India’s Upcoming Green Regulator Can Strike a Balance between Growth & Environmental Protection’ The Economic Times (11 March 2014), accessed at https://economictimes.indiatimes.com/news/economy/policy/how-indias-upcoming-green-regulatorcan-strike-a-balance-between-growth-environmental-protection/articleshow/31807389.cms; Ritwick Dutta (ed), ‘An Update on News, Views and Developments in India’s EIA Process’ (2012) V(1) EIA Journal, accessed at https://ercindia.org/sites/ercindia.org/files/ERC%20Journal%20May% 2C%202012.pdf . 34 35

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EIA in India: contestations over regulating development 445 that the nearest village, Bhadreshwar, was 5 km away. However, during the public hearing, the project proponent categorically denied that the project would be situated on the Randh Bander – an ecologically important site – and clarified that the nearest village of Bhadreshwar was 1.5 km away. Despite being located on the coast the EIA consultant had not done the marine EIA at the time the project was being discussed with the public.38 2. Role of Experts The second issue with the EIA process has been about the role of experts in it. One set of debates has focused on what should be the appropriate composition of the EAC that read the EIA reports and recommend decisions on the project approvals. The EACs have been skewed in terms of the disciplinary scope and in many cases experts from the field of social sciences, ecology or conservation are absent from the committees. As part of a case litigated in the NGT, the court delivered a detailed judgment on the composition of expert committees in 2014.39 Several court orders have also critiqued EACs for not applying their mind to the task of project appraisal.40 In 2005 there were press releases issued by civil society organizations to indicate that the chairpersons of expert committees on river valley and mining were simultaneously serving as board directors of companies who were seeking approvals from the same committees. Clearly such ‘conflict of interest’ would prevent experts from taking objective positions on the projects that they appraise.41 The government and courts have responded by undertaking small steps. For instance, to address the issue about the quality of EIA reports, a voluntary system of accreditation of EIA consultants has been set up. The process is led by the National Accreditation Board for Education & Training (NABET), which is a constituent board of the Quality Council of India (QCI). The NABET process has been critiqued to be opaque and with members of the board largely comprising of former and present representatives from the industry.42 This scheme has recently become a mandatory requirement under the EIA notification, through an amendment to the notification.43 Following this only those consultants accredited by the QCI-NABET or recognized by the environment ministry can prepare EIA reports. As of 9 January 2019 the MoEF listed 159 EIA consultants who are accredited to carry out EIAs for specialized

38 Submission made by Bharat Patel, Machhimar Adhikar Sangharsh Sangaghan to KU Mistry, Gujarat Pollution Control Board (GPCB), on 2 March 2010. 39 Kalpavriksh and others v Union of India Application No 116 (THC) of 2013, Judgment of 17 July 2014 (National Green Tribunal, Principal Bench). 40 Samata and another v Union of India and others Appeal No 9 of 2011, Judgment of 13 December 2013 (National Green Tribunal, Southern Zone). 41 Kohli and Menon (n 13) 28; Ghosh (n 32) 475; Dutta (n 37) 3. 42 Sugandh Juneja, ‘Accreditation Scheme on Hold’ Down to Earth (31 March 2012), accessed at www.downtoearth.org.in/news/accreditation-scheme-on-hold-37768. 43 See Notification Amending the EIA Notification, Doc No SO 648(E), 3 March 2016, accessed at http://environmentclearance.nic.in/View_order.aspx?rid=40.

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446 Research handbook on law, environment and the global South industries or sectors.44 Despite this system, the complaints of poor studies have not reduced. In fact, litigation that contests EIA content has only increased.45 While the above debates have played a major role in questioning decisions based on EIAs, there have not been as vocal questions regarding what ‘expertise’ means in this context of project impact assessment and how the process can make space for the relevant kinds of knowledge in this decision-making process. 3. Public Participation The third set of EIA issues that have gained attention is the public consultation process. Public hearings were made mandatory through an amendment to the EIA notification in 1997.46 Since then this has been a one-time event in the life of a project, when project authorities, EIA consultants, regulatory agencies and affected people interact in the same space. The space is saturated with power imbalance and information asymmetry. While these forums are not a place for the practice of open and deliberative discussions, even basic logistical issues remain unaddressed. These range from the improper selection of timing and sites to organize the hearings to the use of force, coercion and threat to obtain consensus or an agreement on projects. Such public hearings have been the subject of many petitions and court cases by civil society organizations.47 There is one crucial aspect that differentiates the public consultations of the 2006 notification and public hearings as envisaged in 1997. The 2006 framework makes the entire public consultation process a platform for seeking the responses of locally affected people or ‘those with a plausible stake in the project’, to the content of the draft EIA report.48 Others are allowed to send written comments on the EIA document. The purpose of these comments is to incorporate them into the report and improve its quality before it is sent for appraisal and placed before the EAC. This change in the purpose of the public hearing forum limits the participation of people simply for the finalization of the EIA report from the earlier objective of influencing the decision on the project itself. When public hearings were first introduced to the EIA, there were no limitations on who could participate and speak at these events. Also, in the process followed today, the affected people do not ever see the final EIA based on which the regulatory agency and its expert committees take a decision. The courts and the NGT have emphasized the importance of the public hearing process. They have put in place protocols for how hearings are to be conducted as well as how expert committees are to address concerns raised by affected people. In a judgment dated 18 December 2013 in Appeal No. 9 of 2011, the southern bench of the NGT ordered the expert committee to record their responses to all the concerns raised The list is available at www.qcin.org/nabet/EIA/documents/Accredited%20consultants.pdf. Dutta (n 37) 2. 46 Kohli and Menon (n 13) 14. 47 Jitendra K Panigrahi and Suruta Amirapu, ‘An Assessment of EIA System in India’ (2012) 35 Science Direct 1; Ghosh (n 32) 447; Dutta (n 37) 6. 48 Notification, n (25) 5. 44 45

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EIA in India: contestations over regulating development 447 at the time of public hearings, prior to taking a decision on the project.49 But the practice of decision-making fell very short of this as shown by the rising complaints and litigation on public hearings.50

C. EIA – A HANDMAIDEN OF ECONOMIC GROWTH While the above challenges continue to hinder implementation of the law, there are also conceptual concerns regarding this regulatory framework itself. Although first established as a way of arriving at a balance between environment and development, the EIA process now largely operates as a measure of government’s propensity to push development by speeding up the paperwork on bureaucratic procedures and make the approval system more efficient in terms of the number of projects that receive clearances every year.51 1. Approvals as Outcomes The EIA process has always been a late arrival on the scene of the project. However, with investments getting more complex and multifaceted, this problem has gained in importance. Since the EIA is a ‘downstream’ regulation, that is, it comes into play after most industries have gone through the process of acquiring land or finances, it continues to be seen as a hurdle. In several cases, the projects seeking approval have already given contracts and project proponents and state governments have made binding commitments. Advance payments are made to state governments to secure their land or permissions,52 and in others there are commitments to keep the area free of encumbrances.53 As a result, EIAs continue to face the criticism that they block investments and growth. The Ministry responds to these concerns by continuing to reduce the number of days taken by the EIA process. While the shortage of time created by this urgency gravely affects the quality of the EIA studies, the reduced time does not necessarily appease the industry, which criticizes the EIA as an unnecessary imposition on economic growth. There have also been numerous cases where projects held up for violating the EIA regulations and operating without approvals have pleaded Samata and another v Union of India and others, Appeal No. 9 of 2011, Judgment of 13 December 2013 (National Green Tribunal, Southern Zone). 50 Kanchi Kohli, ‘Courting Controversy’ IndiaTogether (15 August 2013), accessed at www.indiatogether.org/court-laws; Dutta, Mishra and R. Sreedhar (n 37) 2. accessed at https:// ercindia.org/sites/ercindia.org/files/EIA_jornal_4.pdf. 51 Ministry of Environment, Forests and Climate Change (MoEFCC), Towards Transparency and Good Governance (Government of India 2015). 52 Latha Jishnu, ‘PM Lays Foundation Stone 600 Km from Site’ Business Standard (2 February 2008), accessed at www.business-standard.com/article/economy-policy/pm-laysfoundation-stone-600-km-from-site-108020201059_1.html. 53 Memorandum of Understanding between the Government of Orissa and M/s POSCO for Establishment of an Integrated Steel Plant at Paradeep dated 22 June 2005 has three clauses relating that the Government of Odisha will keep the proposed area free from encumbrances for the project authority. 49

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448 Research handbook on law, environment and the global South that they be allowed to carry on operations. In early 2017, the environment minister was reported to have told the expert committee members not to ‘sit on projects’. While opinions could be put on record, they were expected not hold back development and create a culture of delays.54 Several of the recent major amendments or legal ‘clarifications’ provided by the Ministry testify this. In mid-2014, the Government of India initiated a series of new ‘reforms’ and amendments to the EIA process in India. Some of these were straightforward revisions to the scope of the EIA notification, carried out either through draft notifications seeking public comments or via internal ministerial notes, circulars and office memoranda with no citizen’s review or participation. These have resulted in delegation of powers to state governments for specific categories of projects and creating exceptions for projects requiring approval, and procedural relaxation for sectors such as real estate projects. 2. Taking over New Geographies During the last two decades, the emphasis on economic growth policies has enabled India’s industrial developers to move into new geographies that were hitherto considered ‘marginal’ to India’s growth story. These include the Himalayas, the coasts and forest areas where adivasi communities reside. Many of these new areas are governed through special constitutional provisions such as the Fifth (Article 244(1)) and Sixth (Articles 244(2) and 275(1)) Schedules of the Constitution of India. These allow for either special or autonomous administration of designated areas through tribal councils or autonomous district councils. They have been regarded as needing special protection due to their sensitive socio-cultural conditions. Yet these areas have to contend with the same EIA procedures for projects proposed in these regions. The constitutional uniqueness of these regions has not been reconciled with the EIA regulations. Instead, the EIA documents present the projects proposed for these areas as efforts towards inclusion, removing “backwardness” and making opportunities for participating in the nation’s growth. Such statements and their underlying assumptions are opened up when the project EIA report is made public. Communities participating in public hearings raise issues of cultural prejudices and insensitivity. The EIAs fail to account for the loss of traditional common lands, water and forest resources of the region. In areas such as Dibang valley in Arunachal Pradesh, the communities have resisted public hearings and they had to be cancelled 14 times.55 The project was not able to complete regulatory formalities for over six years. In the coastal stretches of Kutch, communities have questioned why the EIA report completely misses any reference to them and their fishing commons while 54 Jay Mazoomdar, ‘Don’t Let Studies Delay Projects: Environment Minister Anil Madhav Dave to Experts’ Indian Express (20 January 2017), accessed at https://indianexpress.com/ article/india/dont-let-studies-delay-projects-environment-minister-to-experts-4482793. 55 Raju Mimi, ‘No Impact Assessment Study Done for Dibang Hydropower Project’ India Water Portal (4 August 2013), accessed at www.indiawaterportal.org/articles/no-impactassessment-study-done-dibang-hydropower-project.

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EIA in India: contestations over regulating development 449 land-based livelihoods are documented.56 The EIA formats have no answer to such nuanced issues. They continue to be constructed using the same parameters, no matter what the specificities of place, the knowledge and views of development held by local people and their preparedness to transform their lives. 3. Rampant Non-compliance While on the one hand, EIAs have become more pervasive, on the other, the regulatory model has been unable to catch up with approved projects to restrict environmental damage and social impacts. Although the EIA is seen as a process of decision-making on projects, it has failed to prevent impacts through its decision-making. The existing process rarely looks back at what it has done to places and people. Many projects in India that were approved in the earlier decades, especially up to the 1980s, are now seeking permissions for expansions and extensions. A large majority of them such as the coal mines in Korba (Chhattisgarh) or ports and cement plants in coastal Gujarat have caused severe pollution, land degradation, displacement and loss of livelihoods. Instead of ensuring compliance and reducing environmental and social impacts, the government indulges these projects with more approvals. One proposal by the Ministry in 2016 offers a way out to violators of environmental norms.57 It seeks to provide an option of preparing environmental supplemental plans for projects that have already initiated construction activity and expansion without a thorough EIA process. Rather than trying to protect and improve the quality of the environment and provide for a process that deters non-compliance and compensates for ‘the pecuniary benefit of non-compliance and damage to environment’,58 it merely demands an environmental supplemental plan from project developers operating illegally. Compliance with conditions, written out as part of environmental clearances, remains a central issue that environment regulation needs to address.59 Both corporations and governments need to be held accountable to this legal requirement prior to considering any further expansions or allowing for additional projects in an area where noncompliance remains unchecked. While affected communities often raise issues of old non-compliance and their related environmental impacts at the time of the public hearing, both the EIA reports as well as expert appraisals ignore them in the decision-making process. In a rare recent example, in January 2017, one expert committee while reviewing a proposal for the expansion of a coal mine in the central Indian state of Chhattisgarh recorded that ‘[t]he Committee was also not convinced 56 MHRM (Mundra Hit Rakshak Manch), Letter to the Gujarat Pollution Control Board for cancellation of the public hearing dated 18 December 2013 for setting up integrated facilities in the Kandla Port Trust. 57 Draft Notification of Ministry of Environment, Forest and Climate Change, Doc No SO 1705 (E), 10 May 2016; Final Notification of Ministry of Environment, Forest and Climate Change, Doc No SO 804 (E), 14 March 2017. 58 Final Notification of Ministry of Environment, Forest and Climate Change, Doc No SO 804 (E), 14 March 2017, para 11. 59 Kanchi Kohli and Manju Menon, Calling the Bluff: Revealing the State of Monitoring and Compliance of Environment Clearance Conditions (Kalpavriksh 2009).

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450 Research handbook on law, environment and the global South with the compliance status of EC conditions, and desired to make a site visit by 2–3 of its members’.60 However, such cases are few and far between. All environmental clearance letters carry a condition that non-compliance with any of the conditions listed can make the approval liable to be revoked. There has not been a single instance where this has been done by the MoEF, despite scathing evidence of non-compliance recorded by the Ministry’s own committees.61 4. Contestations over Environment Regulation The EIA process of the US has its origins in the public demand for environmental protection and social justice. In India, public sector projects that were proposed in sensitive sites or where public opposition was expected followed an EIA based approval system even before EIA norms became statutory.62 The intention of such an exercise was to first guess the issues that could become the bulwark of resistance and to provide ways to settle them in advance. In this way, the EIA could bolster the legitimacy of the official decision-making process of governments. The conflicts which the government faced, due to the unfair distribution of costs and benefits, could potentially be overcome through a process that made visible or transparent the costs of the project and proceeded to mitigate them to the greatest extent possible. The EIA turned projects with serious social and environmental impacts into acceptable investments. Through the 1990s, as the economies of several countries in the global south were opened up, national governments adopted new laws and policies to accommodate private investments in mainstream economic sectors. Liberalization freed up new territories for companies engaged in mining, hydropower and industrial development. The operations of these sectors would necessarily increase the negative impacts on communities dependent on natural resources and the environment.63 In this context, the EIA served as a useful device to show to the critics of liberalization that its impacts would be scientifically regulated. It seemingly allowed governments to advance the notion that regulation would allow the provision of services, boost economic growth and curtail negative impacts.64 The international conventions on the environment and This matter is recorded in the Minutes of the 4th meeting of the EAC held on 30–31 January 2017 for Thermal and Coal Mining Sector projects. The proposal for expansion relates to ‘Parsa East and Kanta Basan’ Opencast Coal Mine from 10 MTPA to 15 MTPA and expansion of Pit Head Coal Washery from 10 MTPA to 15 MTPA of M/s Rajasthan Rajya Vidyut Utpadan Nigam Ltd, located in Hasdeo-Arand Coalfields in District Sarguja (Chhattisgarh). 61 eg MoEF, Report of the Committee for Inspection of M/s Adani Port & SEZ Ltd, Mundra, Gujarat (Government of India 2013). 62 Will Banham and Douglas Brew, ‘A Review of the Development of Environment Impact Assessment in India’ (1996) 11(3) Project Appraisal 195. 63 Aseem Shrivastava and Ashish Kothari, Churning the Earth: The Making of Global India (Penguin 2012) xv. 64 Kanchi Kohli and Manju Menon, ‘Liberalisation and Environmental Legislation in India’ in A Perry-Kessaris (ed), Law in Pursuit of Development (Routledge-Cavendish 2009) 97. 60

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EIA in India: contestations over regulating development 451 the World Bank played a major role in promoting EIA as a tool of sustainable development throughout the global south. By their efforts, EIAs were institutionalized as a mechanism to study, review and manage projects that generate environmental damage and social risks. EIAs thus legitimized the continuous growth of harmful and unjust private projects. Through its period of implementation in India and as private investments increased, the EIA has been captured by industry and governments as a means to speed up and justify economic growth that is tied to high environmental and social impacts. It has legally allocated valuable land, water and other common property and sensitive ecosystems to thermal power plants, ports and mines. It has led to unabated pollution and environmental impacts that have already affected communities in many industrial regions of the country. Yet, it has also been one of the most widely used platforms that citizens have had to resist the takeover of forests, common lands, coastal areas and fresh water lakes in the name of development. Citizens have brought to bear on this ‘clearance process’ values of aesthetics, attachment, sustenance, risk and trusteeship.

CONCLUSION In this chapter we have outlined the history of environment regulation in India and how it has performed as a process of decision-making on development and infrastructure projects. We have also analysed the challenges faced by this system of decision-making due to poor quality of data, the compromised role of experts and the lack of meaningful public involvement in project decisions. The implementation of EIA based approvals shows that the regulation operates to legalize more and more environmentally and socially harmful projects, expand the zone to impact to newer geographies and overlook legal non-compliance of environmental and social safeguards. These issues have generated growing ground level opposition and policy critiques from various actors engaged in building social and legal accountability and environmental governance. The contestations over the EIA procedures in India are a reflection of the contradictory priorities that are inherent in regulating environmental and social impacts of development. Although EIA is one of the most socialized laws in India, it has ironically transferred more power into the hands of governments and experts through the years while shrinking the space for affected people to participate meaningfully. As a result, rather than truly informing the qualitative content of economic growth, EIAs in India have legitimized widespread social and environmental injustice.

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23. The informal waste sector: ‘surplus’ labour, detritus, and the right to the post-colonial city Kaveri Gill

INTRODUCTION This chapter brings together extensive research on the urban informal waste and plastic recycling economy in Delhi in the late 1990s and early 2000s.1 The introduction focuses on the informal economy and the ‘need economy’ in contemporary India, before giving an overview of, and some key findings upon, that segment working in the particular domain of waste. The chapter then goes on to trace salient urban and environmental policy developments, predominant amongst them being the steady privatization of various aspects of the waste management system, and a closing of access to waste as a source of livelihood and enterprise to those in the urban informal economy. It will be concluded that this is an illustration of exclusion as hypothesized by Sanyal and Bhattacharya,2 with coerced dispossession resulting in a flow of resources from the informal to the formal economy, and the decimation of the already marginalized informal waste worker and enterprise owner in India’s burgeoning ‘need economy’. In July 2017 came the news that the newly rolled out Goods and Services Tax in the country applied to many discarded and refashioned materials, such as recycled plastic granules, glass bottles and so on. Each was categorized in the exorbitant 18 per cent tax bracket.3 This additional burden was reported to be jeopardizing the already precarious livelihood of those dependent on the informal waste sector, numbering hundreds of 1 The research resulted in a monograph Kaveri Gill, Of Poverty and Plastic: Scavenging and Scrap Trading Entrepreneurs in India’s Urban Informal Economy (OUP 2010) [hereafter Gill 2010a], and a paperback edition two years later with a postscript on the ongoing public interest litigation seeking to close down the market [hereafter Gill 2012a], Kaveri Gill, ‘Poverty Invisibility Litigation?’ Indian Express (13 March 2010), accessed at https://indianexpress.com/ article/opinion/columns/poverty-invisibility-litigation [hereafter Gill 2010b]. See also Kaveri Gill, ‘Deprived Castes and Privileged Politics: An Urban Informal Market in Contemporary India’ (2006) 41(2) Economic and Political Weekly 133; Kaveri Gill, ‘Interlinked Contracts and Social Power: Patronage and Exploitation in India’s Waste Recovery Market’ (2007) 43(8) Journal of Development Studies 1448; Kaveri Gill, ‘Informal Waste Work in Delhi’ (2012b) 636 Seminar, accessed at http://www.india-seminar.com/2012/636/636_kaveri_gill.htm. 2 Kalyan Sanyal and Rajesh Bhattacharya, ‘Beyond the Factory: Globalisation, Informalisation of Production and the New Locations of Labour’ (2009) 44(22) Review of Labour, Economic and Political Weekly 35. 3 Of the five tax slabs under the Goods and Services Tax (exempt; 5 per cent; 12 per cent; 18 per cent and 28 per cent), other illustrative goods and services in the 18 per cent bracket include ice cream, mineral water and information and technology services, as well as financial services.

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The informal waste sector 453 thousands across cities of India. Coming close on the heels of the demonetization drive of November 2016, ostensibly to tackle black money, the urban waste economy – along with many others in the informal sector – has been negatively impacted.4 Reacting to the charge that the leading 200 companies in India had made significant layoffs in their workforce in the last few years, with the lack of employment generation in the formal sector presenting a real concern, the country’s railway minister from the ruling Bharatiya Janata Party (BJP) suggested it was in fact a positive sign, ‘The country today is seeing more and more young people wanting to be entrepreneurs’.5 BJP leader and now its detractor, Yashwant Sinha, strongly contested the government’s claim that its loan programme was creating manifold opportunities for self-employment and entrepreneurship, arguing: Do you know what the average loan amount is of all those millions of people [under the Mudra scheme]?6 Eleven thousand rupees! And you tell me, in today’s day and age, what kind of business can be set up with 25 thousand rupees, 50 thousand rupees? … The [BJP] party president said that all these 80 million people today are self-employed which means we have created 80 million job opportunities. This is absolutely untenable.7

Now, the Marxist economists Kalyan Sanyal and Rajesh Bhattacharya posit the phenomenon of informalized self-employment quite differently to the BJP coterie:8 The classic paradigm of economic growth in developing countries was based on the pre-supposition that the modern (capitalist) economy would expand by breaking up traditional (pre-capitalist) economies, transferring both economic resources and labourers from the traditional to the modern economy. Yet, the experience of economic growth in developing countries shows that while the capitalist economy did expand by breaking up traditional economies, it did so by transferring resources, not labourers. As a result, a ‘surplus’ labour force emerged in developing countries consisting of dispossessed producers whose traditional livelihoods were destroyed but who were not absorbed in the modern sector … Wherever the ‘surplus’ labour force settled, the following economic characteristics emerged – the clear preponderance of self-employment largely assisted by family labour, the household as a major site of production, particularly in case of non-agricultural activities, and community or kinship networks involving trust and reciprocity in place of impersonal exchange relations. Enterprises with these characteristics – which distinguish them from public and private corporate enterprises in the formal sector – came to be referred to as informal enterprises. The informal economy, that is, the economy of the ‘surplus’ labour force, is a product of the 4 The unexpected demonetization drive stripped the Rs 500 and Rs 1,000 denomination of their status as legal tender and led to the introduction of new Rs 500 notes and the replacement of the Rs 1,000 note with a new denomination of Rs 2,000. 5 Jahnavi Sen, ‘Lost Your Job? Piyush Goyal Thinks That’s a ‘Very Good Sign’ The Wire (6 October 2017), accessed at https://thewire.in/184907/piyush-goyal-india-jobs/. 6 Launched in 2015, the Pradhan Mantri Mudra Yojana is a flagship scheme of the Government of India to provide loans in order to boost self-employment amongst the marginalized, especially women and subordinate castes. 7 Karan Thapar, ‘Yashwant Sinha: Economic Crisis Intensifying, BJP Will be Held to Account in 2019’ The Wire (1 October 2017), accessed at https://thewire.in/183070/yashwantsinha-karan-thapar-economic-crisis-bjp-2019/. 8 Sanyal and Bhattacharya (n 2) 9.

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454 Research handbook on law, environment and the global South process by which the capitalist economy secures its resources minus the people who traditionally survived on it, a process which Sanyal refers to as ‘exclusion’.9

Since such exclusion is integral to the reproduction and expansion of the capitalist economy, it involves recurring forays into the resources of the non-capitalist production space. ‘This understanding of the informal economy as a product of exclusion places it right at the heart of capitalist development and yet outside the circuit of capital – an outside that is expanded along with and in proportion to capitalist accumulation’.10 In their understanding, then, unlike the classic dual-economy formulations, capitalist development can never result in the dissolution of dualism. Instead, the ‘accumulation economy’, or space of capital, with dispossession written into its very being, is in constant engagement with its outside, the ‘need economy’, an economic space which functions to facilitate the mere economic survival of redundant surplus labour at subsistence levels. The ‘need economy’ consists of those in both rural non-farm employment, as well as the urban informal sector. The motivation to undertake research on the neglected area of the urban informal waste sector emerged against the backdrop of neoliberal reforms in India in the early 1990s, and subsequent labour market dynamics of jobless growth and increasing informalization and poverty, as documented by the National Commission for Enterprises in the Unorganised Sector (NCEUS).11 It stemmed from a desire to understand the following. Who was driven to engage in such work, and why? Was it really financially viable and, if so, how was it made so at various scales of the entire chain, including the specifics of being ‘self-employed’, family labour, place of stay as a location of work, kinship and community networks as a source of credit and so on? What were the socio-economic dynamics underlying the structural inequality of subordinate caste groups engaged in this work in the subcontinent, did they conform to finely tuned and upheld labour market segmentation, as well as confront double deprivation (i.e. being a provider of a service that was largely not provided by urban

ibid 36. Sanyal and Bhattacharya (n 2) 37. 11 The increase in total employment of 17 per cent between National Sample Survey (NSS) 55th round (1999–2000) and NSS 61st round (2004–05) has been of an ‘informal kind’, i.e. protected formal sector jobs marginally decreased, but 16 per cent of the employment increase has sectorally taken place within the organized sector, implying ‘informalization of the formal sector’ (regular, casual or contract workers without social security benefits or job security). National Commission for Enterprises in the Unorganised Sector (NCEUS), Report on Conditions of Work and Promotion of Livelihoods in the Unorganised Sector (Ministry of Small Scale Industries, Government of India 2007) 4. This trend has continued between NSS 61st round (2004–05) and NSS 68th round (2011–12). CP Chandrashekhar, ‘India’s Informal Economy’ The Hindu (3 September 2014), accessed at http://www.thehindu.com/opinion/columns/ Chandrasekhar/indias-informal-economy/article11119085.ece. Although employment in India has always been predominantly in the informal sector, globalization has fuelled the growth of employment within the formal sector that is akin to that in the informal sector. See Sanyal and Bhattacharya (n 2). 9

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The informal waste sector 455 local bodies (ULBs)12). What were the political settlements required to sustain such labour and enterprises in the informal domain in a 21st century metropolis of the global South? An attendant question was whether the Brundtland Report’s resource recognition approach,13 which urged cities in developing countries to make more effective use of their wastes as resources and which argued that sustainable development ‘will depend on closer work with the majorities of urban poor who are the true city builders’,14 was in fact a guiding principle on the ground.

A. THE INFORMAL WASTE RECOVERY AND PLASTIC RECYCLING SECTOR IN DELHI – KEY FINDINGS15 In terms of dealing with municipal waste, cities of the global South have a problem, and those located in India are no exception.16 At present, fuelled by a greater and changing consumption pattern amongst the increasingly affluent middle classes, estimates suggest between 62 and 69 million tonnes of solid waste is generated annually in urban areas of India.17 Of this, approximate calculations suggest 5.6 million tonnes per annum is plastic waste, 0.17 million tonnes are biomedical waste, 7.9 million tonnes are hazardous waste and 15 lakh tonnes is e-waste.18 The ‘management’ of such waste involves one of three options, captured visually in Figure 23.1. First, formal collection by the ULB, or a body contracted by it, predominantly for disposal in landfills, and, to a limited extent, processing/treatment.19 In the Indian context, the following terms, in English or Hindi, all refer to ULBs: a municipal corporation, nagar nigam, municipal council, nagar palika, nagar palika parishad, municipal board, or nagar panchayat. 13 World Commission on Environment and Development, Our Common Future (OUP 1987). 14 ibid 17. 15 This section is based predominantly on Gill 2010a (n 1), with secondary estimates updated to the present. 16 Municipal solid wastes refer predominantly to refuse from households, as well as non-hazardous and non-pathogenic solid waste from commercial establishments, markets, streets and other institutions. 17 Planning Commission, Report of the Task Force on Waste-to-Energy: In the Context of Integrated Municipal Solid Waste Management – Volume 1 (Government of India 2014). 18 Ministry of Environment, Forests and Climate Change, Solid Waste Management Rules Revised after 16 Years; Press Information Bureau Government of India, Rules Now Extend to Urban and Industrial Areas: Javadekar (5 April 2016), accessed at http://pib.nic.in/newsite/ PrintRelease.aspx?relid=138591. A lakh is 100,000. 19 Disposal refers to getting rid of the waste in landfills. Dependent on quantity and composition of waste, amongst other factors, processing/treatment currently includes a range of thermal, biological, chemical and mechanical technologies capable of converting municipal solid waste into compost and energy. Central Public Health and Environmental Engineering Organization (CPHEEO), Advisory on Improving Municipal Solid Waste Management Services (Ministry of Urban Development, Government of India 2013); Planning Commission 2014 (n 17). Each of these options have their own negative environmental fallouts, which must be balanced against their benefits, more on which below. 12

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456 Research handbook on law, environment and the global South Estimates suggest 31 million tonnes of waste is sent to landfills each year and 11.9 million tonnes is processed/treated.20 Second, retrieving the recyclable content of solid waste – comprising specialized streams of plastic, paper, glass, and metal – an activity undertaken by the informal sector, in order to recycle it. Third, waste that remains uncollected and is indiscriminately dumped anywhere, which conservative estimates put at 25–30 per cent of all waste that is generated. From an environmental perspective, on a scale of successively less desirable options, a waste management hierarchy widely adhered to is reduction, followed by reuse, recycle, and energy recovery, with disposal as the option of last resort.21 Market

Wholesalers

Market

Recycling factories Recycling factories

Specialization by material: plastic, paper, glass, metal INFORMAL SYSTEM

FORMAL SYSTEM

Dealers Disposal sites

Pollution

Recyclables Itinerant waste buyers

Waste pickers Transfer station

Recyclables: plastic, paper, glass, metal Non-Recyclables Collection points Household

Institutions

Factories

Uncollected waste

Compost sites

Subsidized market

Source: Gill 2010a (n 1).

Figure 23.1 The contribution of the informal sector to solid waste management (SWM) in developing countries Solid waste management (SWM) falls under the broader categories of public health and sanitation. According to the Indian Constitution, it falls within the purview of the State List. Under the 74th Constitution Amendment Act, 1992, ULBs assume legal responsibility for provision of adequate SWM services in cities but often lack the financial resources for full coverage of the population. Recent estimates suggest 10 per cent of municipal budgets are devoted to SWM services in the metropolitan cities of India and anywhere between 5 and 40 per cent in smaller towns.22 The situation in India, of Ministry of Environment, Forests and Climate Change (n 18). John Schall, ‘Does the Solid Waste Hierarchy Make Sense? A Technical, Economic and Environmental Justification for the Priority of Resource Reduction and Recycling’ (School of Forestry and Environmental Studies Working Paper no. 1, Yale University 1995). 22 CPHEEO (n 19). 20 21

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The informal waste sector 457 inadequate collection and inequity in provision by ULBs, typifies the waste management problem in cities of the global South in general. The market-driven retrieval and recycling sector found in the developing world qualifies for the informal sector and ‘need economy’ definition lying outside the circuit of capital,23 because it consists mainly of those who may be classified as self-employed workers or own-account enterprises with family labour, who collect and process unregistered waste material, which they regard as economic resources from which to make a living, and not as detritus. This informal sector thus plays an important environmental role (depicted visually in Figure 23.1), shoring up inadequate formal provision at zero cost to the public, simultaneously reducing the burden of both uncollected waste as well as waste destined for disposal in landfills. In India, it is estimated that every tonne per day of recyclables collected by the informal sector saves the ULB Rs 24, 500 per year and avoids the emission of 721 kg of carbon dioxide per year. Notwithstanding these positive externalities, in a sample year like 2011, 6.7 million tonnes of recyclables are lost to landfills due to various factors.24 Proximate demand-side causes for informal sector involvement in the retrieval and recycling of waste, in India in particular, include rapid urbanization, rising urban shares in the gross domestic product (GDP) of the country, and increases in consumption accompanied by attendant changes in its composition. Today, urban Indians comprise a third of the total population of the country and they contribute to three-fifths of its GDP.25 By 2031, the urban share of total population is projected to increase from 377 million at present to 600 million, with the urban share of GDP rising to 75 per cent; and with a concomitant rise in consumption, the volume of waste generated annually is expected to reach 165 million tonnes.26 Estimates suggest a 50 per cent increase since 2001 in the municipal solid waste generated.27 On the supply side, this sector’s context is that of widespread urban poverty, significant slum populations in cities of the developing world, and multiple inequities and deprivation of socially excluded groups. According to the Rangarajan Expert Group, urban poverty stands at 26.4 per cent in India in 2011–12.28 Based on NCEUS’s Report of 2007, it is seen that there is a high overlap between the urban poor and those employed in the informal sector, including many of those working in the waste retrieval and recycling sector (conservatively estimated to number between 80,000 and 100,000 in Delhi in the plastic recovery and recycling chain alone). In other words, the urban poor work in the informal sector, even if all those within the informal sector, including those running own-account enterprises, cannot be categorized as poor. On average, a Cf. definitions of concepts in the Introduction. RK Annepu, ‘Sustainable Solid Waste Management in India’ (MSc Earth Resources Engineering thesis, Columbia University 2012). 25 Ministry of Finance, Economic Survey, 2016–2017 (Department of Economic Affairs Government of India 2017). 26 High Powered Expert Committee (HPEC), Report on Indian Urban Infrastructure and Services (Ministry of Urban Development, Government of India 2011). 27 Annepu (n 24). 28 Planning Commission, Report of the Expert Group to Review the Methodology for the Measurement of Poverty (Government of India 2014). 23 24

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458 Research handbook on law, environment and the global South quarter of the urban population of India is living in slums.29 This is also a constituency that is poorly served by the ULBs, with pervasive state-produced inequality, including in the quantity and quality of various services.30 Some key findings that are relevant for the present chapter include the following. First, on an income measure of poverty based on household survey data, waste workers (including waste pickers, itinerant waste buyers, scrap labour and scrap godown owners) as a combined group fared no better or worse than other informal sector workers. All of them were vulnerable in facing a high variability in income. Moreover, income distribution was found to be more unequal amongst those living in slum settlements and employed in sectors other than the waste sector. The astounding finding was that none of these subgroups, not even pickers, fell below the then official state poverty line of Delhi. This exposed the urgent need for a reassessment by the state of the narrow and arbitrary basis of its poverty calculation methods, which were clearly inadequate in capturing the true extent of poverty and deprivation in society. It also highlighted that since the state does not view any of these subgroups as poor on their narrow official measures, they must turn to the market to support themselves. Second, since research and policymaking in this area continues to equate the entire informal waste sector with waste pickers or rag pickers alone, to the complete – and I begin to surmise, deliberate – neglect of the rest of the chain, an in-depth look at the nature of the interlinked contract between the lowest levels of collectors, that is, waste pickers and itinerant waste buyers, and their respective dealers, was undertaken. This was also necessary as the predominant argument at the time, even amongst nongovernmental organizations (NGOs) working in this area, was that the dealers were exploiting the waste pickers and the latter needed to be removed from their ambit. Findings suggested each of these two groups enjoyed differential access to household and other municipal waste, with waste pickers dealing mostly with a wet, unsegregated mix of organic and inorganic waste (kooda-kachra), and itinerant waste buyers in dry, segregated waste (kabada). The distinguishing characteristic of the former was that they did not pay for waste collected from concrete municipal dustbins, streets and open dumps, a common property resource of sorts. The latter, on the other hand, frequented houses, colonies and slums on bicycles, and paid for access to dry, recyclable plastic, paper, glass and metal waste. Both sets of informal collectors engaged in personalized and relatively long-term exchange relations with their respective dealers, transacting on a number of interrelated urban informal markets, including not just those for waste and labour, but also finance and land markets. While itinerant buyers and their dealers enjoyed rather equitable relationships, waste pickers were in restrictive relationships with their dealers. It turned out that this is because both pickers and their dealers belonged to lower castes, even amongst the scheduled caste category, and engaged in the more unclean, distasteful and ‘polluting’ lesser value chain of wet and contaminated waste, as compared to the caste associated with the relatively cleaner and respectable value chain of dry and segregated HPEC (n 26). Patrick Heller and Partha Mukhopadhyay, ‘State Produced Inequality in an Indian City’ (2015) 672 Seminar, accessed at http://india-seminar.com/2015/672/672_patrick_&_partha.htm. 29 30

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The informal waste sector 459 waste, including that of plastic recyclables, to which both itinerant buyers and their dealers belonged. Strongly asserted differentiation by the latter group, underwritten by institutionalized discrimination in larger society, policed through gatekeepers such as household help and guards for gated communities, prevented mobility across these boundaries. The conclusion was that the state or civil society groups had little moral authority in advocating the abolition of waste picking without taking it upon themselves to address unjust and deeply rooted structural background conditions. Minimally, the latter would involve the actual efficient implementation of public good provision, such as education and health for these disadvantaged groups, the amelioration of formal market imperfections in finance, housing and so on, as well as the creation of viable employment alternatives. Otherwise, it would simply be consigning them to complete destitution, and to the lowest rungs even within the ‘need economy’. Third, the research focused on the functionally specialized own-account enterprises operating at various higher scales. Geographical concentration in a single cluster on the outskirts of the metropolis explained its reputation as being the centre for plastic recycling within India. Joan Robinson’s famous remark, about the only thing worse than being exploited by a capitalist was being exploited by nobody at all, was suggested as being applicable because the formal labour market was closed off as an option for them.31 The traders emerge as true Schumpeterian entrepreneurs, negotiating a highly competitive system in order to survive. They conceived of this market opportunity in ingenious ways. First, by ‘discovering’ plastic waste as an economic resource, rather than seeing it as detritus to be disposed. Second, by introducing novel and cheaper ‘goods’ in the form of recycled plastic pellets and products. Third, by experimenting with, and improving upon, basic indigenous technology for recycling. Finally, by creating new markets, both amongst the poorer sections of society and amongst formal plastic retailers and manufacturers. Unlike formal sector businesses, scarce capital and a strict upper bound on the final price of recycled commodities made for a flat value chain. Activities and dealings were not legally underwritten in a formal sense, which enhanced risk. Significant risks already characterized this sector, due to mode of payment (predominantly forward or delayed, rather than spot, and a source of capitalization for many of the poorer traders in the absence of access to formal financial markets); fluctuations in price in the interim period; trust in receipt of payment from physically distant traders; and the physical imperatives of storage in changeable environments, along with unpredictable exogenous factors, such as seasonality and negative policy decisions. Their modest incomes, proxied by net margins, were justified by their specialized activities and risk-bearing functions, which lay in contrast to industries with super-normal profits in the formal sector. Again, the research challenged the prejudiced view of the state and civil society of these own-account enterprises as dissimilar to those operating in any Interestingly, visiting and writing about this market in 2013, Gidwani references Joan Robinson’s famous quip, too. Vinay Gidwani, ‘Value Struggles: Waste Work and Urban Ecology in Delhi’ in Anne Rademacher and K Sivaramakrishnan (eds), Ecologies of Urbanism in India: Metropolitan Civility and Sustainability (Hong Kong University Press 2013) 169, 192. 31

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460 Research handbook on law, environment and the global South other mainstream microcosm of a market-driven capitalist economy, perceiving and labelling them middlemen exploiters without any evidence to support the claim. Fourthly, the research contributed to the relatively understudied area of the ethnicization and mobilization of numerically less prominent low status groups in the economic domain, in this case within the urban informal economy. It laid bare the social underpinnings of the plastic recycling market, which was dominated, at both the level of labour and own-account enterprise owners, by a single scheduled caste group (albeit with numerous subcastes) traditionally associated with pig breeding, butchery, bristle trading, and the tanning and dyeing of leather. In a unique form of status enhancement, this low status group is revealed to have moved to the metropolis of Delhi a few decades ago. They move into the relatively cleaner work of transforming and recycling plastic, a livelihood that they invent as a derivative of the primary plastic manufacturing industry, and the know-how for which they acquire in tandem with the exponential growth in the material’s production and consumption in the city and country. The research indicated numerous reasons why liberalization and globalization, and attendant immiserating labour market dynamics, along with induced rural-urban migration, the rise of mega cities, and the resulting pressure on land and urban services, led to vulnerable caste groups moulding themselves into a single affective community. The latter was organized around employment and enterprise ownership of a particular commodity in the informal sector, which acted collectively to protect and advance their material interests in an uncertain urban milieu. As NCEUS’s Report of 2007 and other data show, scheduled castes have a higher propensity to be employed in the more casual end of the informal sector. Those in the plastic recycling market therefore looked to each other to find gainful and relatively decent work within it. The non-existence or failure of formal credit and finance markets, not just of the private sector but also those of the state, for these groups, is well known. It was dealt with by relying on each other for petty capital raised through co-caste self-help groups or lenders. In the further absence of the legal and state system to secure property and transactions in this sector, it is they themselves who internally regulated the market, either on a one-to-one basis or through dispute resolution by the caste-based trade association. A critical vein running through the research was how various subgroups of informal sector waste workers saw the state through their lived experience. For instance, those at the lowest end of the recovery and recycling chain failed to qualify for any targeted assistance as they did not fall in the below poverty line category. Labelled scheduled castes, they were eligible for affirmative action and other benefits, which rarely ever fructified. Moreover, they could not actually avail of state support in any of the following spheres: slum housing and infrastructure provision; credit and insurance facilities; employment guarantee schemes and so on. Yet, in the final instance, they are forced to see the state as it compounded its own failure in various domains with further punitive action against these groups with, for example, sudden orders for the physical displacement of the market or a policy ban on the works of certain subgroups amongst them. In this quest, the state – joined by the judiciary and others from an elite urban middle class – chose to see the informal recycling market as non-conforming and adding to citywide pollution, rather than contributing to its alleviation. Suspicion around its

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The informal waste sector 461 informality, its displeasing aesthetic and its nuisance factor drove the privileged to seek forced urban transformation via attempts at relocation and bans on recycling work in the city environs, without any heed to the fact that the informal sector was increasingly and officially relied on for survival by many. The collective resistance over a deeply contested urban reality is an illustration of Chatterjee’s32 classic political society dictum, that of shared and politicized subordinate caste-class identity, which underpinned the plastic recycling market and was exercised via scheduled caste politician traders, with varying degrees of success. They succeeded in changing the course of policy where intended changes went through the legislature but not where it involved judicial overreach via the instrument of public interest litigation (more on which in Section C below).

B. SALIENT POLICY SHIFTS IMPACTING THE INFORMAL WASTE SECTOR IN THE LAST DECADE The most discernible trend since 2005 has been the privatization of the management of municipal waste in the country, and its capital city, Delhi.33 It has unfolded in three distinct phases, neatly summarized by Schindler, Demaria and Pandit.34 The first began with Delhi ULBs floating tenders for private formal sector bidders to collect, segregate and transport municipal waste, from transfer stations and further to landfills, for a collection fee calculated by tonnage of waste. This made waste at the transfer stations the private property of the company and closed off access to the hitherto common property resource that some informal sector waste collectors relied upon. The second phase is the diversion of waste from Delhi’s three landfills at Okhla, Ghazipur and Bhalswa, as well as from private sector-operated transfer stations, to incinerator-based waste-to-energy plants that would convert the waste into refusederived fuel and consequently electricity.35 A technical requirement for them to be able to do so is to have continual access to waste high in calorific value and low in moisture content, quite contrary to the nature of India’s waste stream, even today. Not only does the technology remain unsuited (as it did decades before), but it also involves the diversion of as much waste as possible, again directly and coercively dispossessing those in the informal sector from their resources.36 The third phase sought to extend the reach of the private companies to encompass the right to the door-to-door collection of waste, which would completely close off 32 Partha Chatterjee, The Politics of the Governed: Reflections on Popular Politics in Most of the World (Columbia University Press 2004). 33 Gidwani (n 31). 34 Seth Schindler, Federico Demaria and Shashi B Pandit, ‘Delhi’s Waste Conflict’ (2012) 48(42) Economic and Political Weekly 18. 35 ibid. 36 Federico Demaria and Seth Schindler, ‘Contesting Urban Metabolism: Struggles over Waste-to-Energy in Delhi, India’ (2015) 48(2) Antipode 293 and Aman Luthra, ‘Waste-to-Energy and Recycling: Competing Systems of Waste Management in Urban India’ (2017) 52(13) Economic and Political Weekly 51.

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462 Research handbook on law, environment and the global South access to informal sector waste collectors.37 The example given is that of Delhi’s municipality signing a contract with a single private sector company, a subsidiary of the firm Ramky, to manage door-to-door collection, transfer and transportation of municipal waste in four zones of the city, including the development of what is termed ‘an “integrated” Municipal Solid Waste Processing Facility (including a waste-to-energy plant) and an Engineered Sanitary Landfill’.38 While the move towards the privatization of this sector was already signposted in the late 1990s and early 2000s, the state’s increasingly explicit direction in the last decade has been one which frames the entire issue of SWM as a simple ‘service delivery problem’ stemming from an ‘infrastructure and finance deficit’. In its chapter titled, ‘From Competitive Federalism to Competitive Sub-Federalism: Cities as Dynamos’, the Economic Survey 2016–17 begins by setting the context as follows: By all accounts, urbanization will define the trajectory of Indian development. The exodus of rural Indians into the cities over the coming decades will pose tremendous challenges for government, particularly the municipalities who will be primarily responsible for providing the services that the new migrants – and established residents – will need. Success in overcoming these challenges will be vital if the nation is to seize the opportunities that migration to the centres of economic activity can create.39

The chapter then sets out that the ULBs in the country face three ‘major and interlinked problems: poor governance capacity; large infrastructure deficits; and inadequate finances’.40 It proceeds: ‘The second challenge is the infrastructure deficit. Productive and healthy urbanization requires efficient public services delivery. But every Indian city faces serious challenges related to water and power supply, waste management, public transport, education, healthcare, safety, and pollution’.41 In line with the increasing importance given to Ease-of-Doing-Business indices and rankings for the country calculated by companies such as McKinsey & Company, it goes on to discuss the ‘ranking of global cities based on urban infrastructure’, wherein New Delhi and Mumbai are placed at 47th and 50th positions respectively.42 The chapter then quotes projections of the High Powered Expert Committee appointed by the Ministry of Urban Development under the previous government, underlining the fact that regardless of which political party is in power, the state’s direction had remained the same. Its report estimates that the investment required for setting up urban infrastructure over the next 20 years was $39 lakh crore (at 2009–10 prices), of which, $8 lakh crore (20 per cent) was required for services, such as SWM, water supply, sewerage and so on.43 Operation and maintenance costs were calculated separately at $20 lakh crore. Schindler, Demaria and Pandit (n 34). ibid 19. 39 Ministry of Finance (n 25) 300. 40 ibid 303. 41 ibid 303. 42 ibid 303. 43 HPEC (n 26). A lakh is 100,000 and a crore is 10 million. The dollar exchange rate must be factored in to arrive at the final amounts in Indian rupees (Rs). 37 38

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The informal waste sector 463 The Economic Survey 2016–17 then moves to the third challenge outlined, regarding the financing of this infrastructure deficit. It suggests some of it ‘could come from the Centre and the states [of the Union, henceforth referred to as states]’,44 while the rest of the required funds would have to come from local resources, that is, ULBs, the third tier of government provided for by the 74th Constitutional Amendment Act of 1992. It proceeds to touch upon the fraught political economy of federalism in the country, wherein the Amendment left it to the discretion of states to carry out said devolution, and consequently, 25 years on there remain glaring inter-state disparities in the actual devolution of functional and financial powers to the ULBs. The logical conclusion would require going into the details of how the vertical inequality in public finance was meant to address the horizontal inequalities, and that how, despite the Fourteenth Finance Commission’s supposed devolution of greater untied funds to states, the reality in the post-Planning Commission India is that of squeezed social sector spending,45 well as bankrupt states and ULBs.46 Neatly sidestepping a greater exploration of such issues, the report catapults to some of the national government’s programmes for ‘urban rejuvenation’.47 The following sub-sections will examine two of the government programmes mentioned here – the Jawaharlal Nehru National Urban Renewal Mission (JnNURM) 2005, as well as Swachh Bharat Mission 2014 – that have sought to impact urban development and the sector of waste management in particular, as well as the latest Solid Waste Management Rules notified by the government in 2017. They will show that while the reliance on the private sector is not explicitly mentioned in the Economic Survey 2016–17 as the main source of infrastructure funding, the de facto reality of these programmes and rules are very much consonant with that view. Before we do that, however, it is worth highlighting what the Survey sets out as the way forward to overcome the problem it has posited as one of purely an urban infrastructure deficit and a shortfall of resources to finance it. What is clear is this: just as competition between states is becoming a powerful dynamic of change and progress, that dynamic must extend to competition between states and cities, and between cities. Cities that are entrusted with responsibilities, empowered with resources, and encumbered by accountability can become effective vehicles for unleashing dynamism so that to competitive federalism India can add, and rely on, competitive sub-federalism’.48

In other words, as the official discourse has increasingly recommended competitive federalism, wherein states compete with each other to deregulate labour and environmental standards in order to attract investment from the private sector, here cities are being encouraged to likewise compete with each other, for performance-related Ministry of Finance (n 25) 304. Subrat Das, Amar Chanchal and Jawed Alam Khan, ‘Recent Changes in India’s Fiscal Architecture Implications for Public Provisioning in Social Sectors’ in Centre for Equity Studies (ed), India Exclusion Report 2016 (CES 2016) 161. 46 KC Sivaramakrishnan, Governance of Megacities: Fractured Thinking, Fragmented Setup (OUP 2014). 47 Ministry of Finance (n 25) 305. 48 Ministry of Finance (n 25 ) 301. 44 45

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464 Research handbook on law, environment and the global South financial disbursements from higher tiers of government, as well as more importantly, public private partnerships (PPPs).49 1. The Jawaharlal Nehru National Urban Renewal Mission Launched in 2005 as the Government of India’s flagship programme for urban development, the ambitious JnNURM was to provide Rs 1,200 billion to 63 chosen cities over a period of seven years, for the express purpose of sustainable infrastructure development (including civic infrastructure, such as sanitation and SWM) and to meet estimated investment requirements in the urban sector.50 In order to achieve these objectives, reform initiatives were suggested – especially by ‘the State Governments in order to create an investor-friendly environment’ – such as ‘reform-linked assistance to State Governments and ULBs in the country’; sustainable infrastructure development, which ‘establishes a link between [physical infrastructure] asset creation and management’ and to ‘enhance efficiencies in urban service delivery’.51 Straightaway, in its design itself, the Mission delinked urban infrastructure and governance for the privileged from that of the poor. For the former, it set up a separate Sub-Mission to be administered by the Ministry of Urban Development, under which falls infrastructure projects relating to SWM, as well as the task of ‘shifting industrial and commercial establishments to conforming areas’.52 For the already marginalized, the Mission set up a segregated Sub-Mission, administered by the Ministry of Housing and Urban Poverty Alleviation for ‘basic services to the urban poor’, with its main focus on ‘integrated development of slums through projects for providing shelter, basic services and other related civic amenities’.53 In this single demarcation of administrative responsibility, the state betrays its own inherent biases, not least a complete disregard of the double-exclusion of informal waste workers from a service that they themselves provide to others, as well delinking the urban poor’s livelihood problem from their housing and basic service provision problem. Under JnNURM, each city was required to formulate a City Development Plan outlining its policies, programmes, strategies, and financing plans. ULBs/parastatal agencies were to prepare and submit detailed project reports for proposed projects in various spheres, covering both capital outlays and attendant overhead and maintenance costs. Funds would be disbursed to the ULB/parastatal agency through the designated state-level nodal agency as a soft loan; a grant plus loan; or a simple grant. The 49 David Harvey, ‘From Managerialism to Entrepreneurialism: The Transformation in Urban Governance in Late Capitalism’ (1989) 71(1) Geografiska Annaler 3. This is reminiscent of David Harvey’s concept of the ‘entrepreneurial city’, which rises as a result of economic globalization and which is characterized by the role of local government in promoting economic development, as well as an emphasis on the entry of the private sector and new ways of organizing public administration. 50 Ministry of Urban Employment and Poverty Alleviation and Ministry of Urban Development, Jawaharlal Nehru National Urban Renewal Mission: An Overview (Government of India 2011). 51 ibid 3–4. 52 ibid 5. 53 ibid 6.

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The informal waste sector 465 state-level nodal agency and ULBs in turn would leverage additional resources from other sources, primarily the PPP modality enlisting the NGO or private sector, in the ‘development, management, and implementation of projects’.54 In the JnNURM, then, the ULB entered into a concessionaire agreement with the private contracted company, who was to be held responsible for all activities of collection, transportation, treatment and disposal. Importantly, on the labour question, the ULB is asked to subsidize the absorption of informal waste pickers, where private contractors employ them. This ‘formal’ sector space, however, is closed off to public enquiry. The opacity refers not just to the working conditions and rights of those employed therein, on which – to the best of my knowledge – no research has been undertaken because of a lack of permission, but also, the complete right of the company to withhold critical information, such as the terms of the contract (including tipping fees and so on) between the ULB and the contracted company, and where the contracted company is not even obliged to respond to right to information requests.55 This inability to access and research whether these formal companies, some very large and ‘reputed’, are adhering to standards of ‘decent work’ demanded and required even of the informal sector, raises serious questions, not least for comparability between the two sectors and work conditions of labour therein. The extent of financial encouragement and underwriting of risk that the state extends to the private sector in order for them to enter into PPP agreements is notable. There are serious barriers to private sector participation in urban infrastructure as the financial status of ULBs, except for a minority, is precarious. [The] urban sector is seen as a very high-risk sector, also because of institutional complexity due to the multiplicity of agencies involved in service delivery. Further, there is [a] lack of [a] regulatory or policy-enabling framework for PPPs, barring [a] few exceptions and [a] lack of bankable and financially sustainable projects considering the opportunities and risks involved. There is also a need to rationalize tariff and user charges. JnNURM has thrown up opportunities for expanding PPPs in the urban sector. JnNURM grants can be used for viability gap funding,[56] good debt-equity structure etc.57

The Government of India provided assistance of Rs 25 billion under the Twelfth Finance Commission for SWM; permitted income tax relief to formal waste management agencies as well as tax-free municipal bonds; and the Eleventh Five Year Plan envisaged an investment of Rs 22 billion for SWM. ibid 7. Federico Demaria, Rights for Waste Workers as Service Providers: A Comprehensive Valuation of Delhi’s Informal Recycling Sector (All India Kabadi Mazdoor Mahasangh 2015). 56 Viability gap funding is the ‘financial support determined by the ULB or authorized State Government or Central Government agency to be paid to the concessionaire or operator of a solid waste processing facility based on the output quantity of compost, biogas produced or energy or power generated so as to cover or partly cover the difference between market price of the output and its production cost plus a reasonable profit margin’. Ministry of Environment, Forest and Climate Change, Draft Solid Waste Management Rules 2015, 6, accessed at http://www.indiaenvironmentportal.org.in/files/file/SWM%20Rules%202015.pdf. 57 Ministry of Finance, Position Paper on the Solid Waste Management Sector in India (Department of Economic Affairs Government of India 2009) 2. 54 55

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466 Research handbook on law, environment and the global South The other notable critical feature in this phase of the government’s policymaking is the (mis)appropriation and redefining of globally accepted terms and hierarchies. The first example is of the internationally well-received order of preference in environmental terms for SWM options, prioritizing reduction over reuse and the latter over recycling, which is seen as better than energy recovery, and with disposal as the last resort.58 This hierarchy has been upturned in some, but not all, influential official consultative documents. Upholding the accepted order, on paper at least, the Draft Solid Waste Management Rules 2015 ‘lay emphasis on waste reduction, reuse, recycling, recovery and optimum utilization of various components of solid waste to ensure the minimization of waste going to the landfill and minimize the impact of solid waste on human health and environment in state policy and the solid waste management strategy’.59 Elsewhere in policy documents of the state, with no reference given for the source, the accepted ordering is changed to put ‘(energy) recovery’ before ‘recycling’, so that the ‘thrust of the task force is therefore to minimize the quantum of waste for disposal by optimal utilization of the potential of all components of municipal solid waste management by adopting the “concept of 5-Rs” – Reduce, Reuse, Recover, Recycle and Remanufacture’.60 This re-ordering is also set out in a befuddled way in the Plastic Waste (Management and Handling) Rules 2011, as ‘reduction, re-use, recovery, recycling, composting or disposal of plastic waste’.61 Another example is the term ‘integrated municipal solid waste management’, which is also misappropriated and redefined. In commonly accepted international parlance, it refers to the amalgamation of the informal sector into the formal system,62 where ULBs are accountable not just to affluent communities but also to informal waste workers, who are incorporated into the overall system. Yet, in this policy phase, the term alludes to the entire set of options for the management of solid waste, with no mention of the informal sector at all, in many instances: In contrast to the current fragmented approach to management of municipal solid waste, an Integrated Municipal Solid Waste Management (IMSWM) system that addresses all essential activities, namely, segregation and storage of waste at source, door-to-door collection, secondary storage, transportation, transfer stations, processing and disposal of municipal solid waste simultaneously in a coordinated manner is recommended as a way forward to transforming municipal solid waste management practices in the country. Such an integrated approach will make towns and cities clean and liveable and optimize the tapping of the Schall (n 21). Ministry of Environment, Forest and Climate Change (n 56) 7. 60 Planning Commission (n 17) ii. 61 Ministry of Environment and Forests, Plastic Waste (Management and Handling) Rules 2011, 3, accessed at https://indiankanoon.org/doc/50644613/. 62 Sandra Cointreau-Levine, ‘Private-Sector Participation in Municipal Solid Waste Services in Developing Countries’ Urban Management Programme Discussion Paper 13 (World Bank 1994); Syed Mansoor Ali, ‘Integration of the Official and Private Informal Practices in Solid Waste Management’ (PhD thesis, University of Loughborough 1997); Chukwunonye Ezeah, Jak A Fazakerley and Clive L Roberts, ‘Review: Emerging Trends in Informal Sector Recycling in Developing and Transition Countries’ (2013) 33(11) Waste Management 1. 58 59

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The informal waste sector 467 potential of municipal solid waste through recovery of recyclables, generation of energy, compost and refuse derived fuel from the waste and minimize the waste going to landfills.63

Likewise, the Ministry of Finance, Government of India, lists the manifold challenges faced by the ULBs, including the lack of technical expertise to set up and operate municipal waste management facilities; the lack of technical competence to review proposals and bids and engage the private partners in a transparent manner; finding appropriate land along with a buffer zone for municipal waste management in cities and so on.64 The first on the list, however, is the lack of ‘funds to establish and operate integrated municipal waste management facilities’,65 as interpreted uniquely by them. 2. The Swachh Bharat Mission, 2014 Introduced in 2014, Swachh Bharat Mission is another much-touted flagship programme of the Government of India. Addressing the Joint Session of Parliament on 9 June 2014, the President of India explained the motivation behind its introduction: We must not tolerate the indignity of homes without toilets and public spaces littered with garbage. For ensuring hygiene, waste management and sanitation across the nation, a ‘Swachh Bharat [Clean India] Mission’ will be launched. This will be our tribute to Mahatma Gandhi on his 150th birth anniversary to be celebrated in the year 2019.66

The Swachh Bharat Mission is again divided into rural and urban components, with the element devoted to the rural sphere falling under the Ministry of Drinking Water and Sanitation, and the other element devoted to the urban sphere, covering all statutory towns, under the charge of the Ministry of Urban Development. The objectives for the urban part include the elimination of open defecation; the eradication of manual scavenging; introducing municipal SWM based on modern and scientific lines; promoting behaviour change in sanitation practices; generating awareness about sanitation and its links to public health; augmenting the capacity of ULBs; and creating an enabling environment for private sector participation.67 It has special components on SWM; household, public and community toilets; information, education and communication; and capacity building. Now, the Swachh Bharat Mission has occupied a disproportionate space in the public imagination due to the Prime Minister’s support, and consequently, the media’s coverage, with high expectations of it in terms of its contribution to municipal waste management.68 In actuality, its potential is modest and skewed in various respects, not least because the programme’s focus is heavily in favour of the rural sphere; in both the Planning Commission (n 17) 10. Ministry of Finance (n 57). 65 ibid 32. 66 Ministry of Urban Development, Guidelines for Swachh Bharat Mission (Urban), 2014, 3. 67 ibid. 68 Almitra Patel, ‘Swachh Bharat: A Step-by-Step Manual to Change our Habits and Clean our Habitats’ (2015), accessed at http://www.almitrapatel.com/docs/Swachh_Bharat_Guidebook_ v25.pdf. 63 64

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468 Research handbook on law, environment and the global South rural and urban spheres, the emphasis is largely on toilet construction in the sanitation sector; and within the urban sphere, purely under the goal of toilet construction (not touching the more difficult behaviour change component and so on), the target is colonies with existing water supply, leaving out those living in unauthorized colonies and slums.69 The budgetary allocation for the urban part of Swachh Bharat Mission in 2016–17 was Rs 23,000 million, increased from Rs 10,000 million in 2015–16 (contrast this with the budget allocation for the rural component in 2016–17, of Rs 90,000 million, increased from Rs 65,250 million in 2015–16). Of the estimated total amount necessary for implementation of the programme, the urban component is getting only 25 per cent from the Government of India; 25 per cent from states/ULBs; and the rest is to be ‘raised through diverse private sector participation, additional resources from state governments and urban local bodies, beneficiary share, user charges, land leveraging, innovative revenue streams; corporate social responsibility; market borrowing; external assistance’.70 In comparison to other social sector programmes, then, the financial contribution from the government’s side is very modest and this is despite levying a Swachh Bharat Mission tax of 0.5 per cent on all taxable services in the entire country from mid-November 2015. In a circular sent from the Joint Secretary, Ministry of Urban Development, to the Principal Secretaries of the Urban Development Department of all states, yet another homegrown definition of integrated municipal waste management, this time for Swachh Bharat Mission, is extended: ‘Integrated Municipal Solid Waste Management, one of the admissible components under Swachh Bharat Mission, comprises waste segregation, and storage at source, primary collection, secondary storage, transportation, resource recovery, processing and final disposal’.71 There is no place and mention of recycling in this definition at all.72 The Union Government’s assistance for municipal waste management is put at Rs 240 per capita as per Census 2011 for the population of a city/town. The rest is to be raised through the viability gap funding mode described previously,73 indicating a heavy reliance on the private sector, with the letter ending

Centre for Budget and Governance Accountability (CBGA), Connecting the Dots: An Analysis of Union Budget 2016–2017 (CBGA 2016) 1. 70 Ministry of Urban Development (n 66). 71 Ministry of Urban Development, D.O. No. Q-15014/2/2009-CPHEEO, 9 April 2015. 72 Meanwhile, under the Swachh Bharat Mission, where collection is to remain selffinancing via user charges, there are compulsory purchase requirements and subsidies for other waste management modalities, i.e. processing, in order to render them economically viable (Ministry of Urban Development, D.O. No. Q-16019/1/2014-CPHEEO, 11 December 2015). In another circular from the Joint Secretary, Ministry of Urban Development to all States and Union Territories, the directive is that the Government of India is considering providing a subsidy on the sale of compost of Rs 1,500 per tonne; providing a subsidy on electricity usage of waste-to-energy and refuse-derived fuel based plants; and to have state electricity companies compulsorily purchase all the power generated from municipal solid waste. 73 See text at note 56. 69

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The informal waste sector 469 with an exhortation to ‘ensure that the entire solid waste management chain is enhanced and functions efficiently’.74 And indeed, the de facto reality is that of dependence on the private formal sector, with a long list of 47 empanelled agencies, ‘for providing technical support to states/ULBs for solid waste management’, sent in a memorandum from the PPP Cell of the Ministry of Urban Development to the CPHEEO.75 This list is dominated by private companies, including large and well-known international consultancies, such as Deloitte, Ernst and Young, GHK, Grant Thornton, IPE Global, Mott McDonald, Tata Consulting Engineers, as well as recognized names in the waste management space, such as Ramky, that have entered the fray in the last decade. For the proposed waste-to-energy plants, a list of eight ‘worldwide’ companies have been provided for states/ULBs to consult, including Hitachi (Japan and Switzerland), Kawasaki and Mitsubishi (Japan) and so on. During this time, some other formal sector companies who have entered and who dominate the municipal waste management space in India are SELCO, Zanders, Jindal, Mailhem and Southern Cogen Systems.76 European business consortia, too, now have their own view on India’s waste economy and propose their own definition of integrated waste management: The private sector has been involved in the door-to-door collection of solid waste, street sweeping in a limited way, secondary storage and transportation and for treatment and disposal of waste [no mention is made of recycling]. Some private firms are carrying out integrated municipal solid waste management, which includes collection, segregation and transportation, treatment, compost, biomethanation, refuse derived fuel, and final disposal.77

Naturally, they appeal for an underwriting of their risk by the amenable state. They do so by simply cutting and pasting a paragraph from page two of the Report of the Department of Economic Affairs, Ministry of Finance,78 quoted earlier in this chapter. Mentioned previously is the studied state strategy of deliberately reducing this entire complex and multi-layered informal sector chain to the level of waste pickers alone. These rag pickers, as policy documents refer to them, may be inducted to carry out the unpleasant but necessary job of segregating the waste in order to ready it for various processing and disposal solutions. This intention is clearly articulated in the quote below: The municipal authority may also involve rag pickers (there are an estimated 1 million rag pickers in the country) through NGOs or the private sector for picking plastic and other recyclable materials from the streets in a designated area for making cities ‘litter free’ and 74

Ministry of Urban Development, D.O. No. Q-16019/1/2014-CPHEEO, 11 December

2015. Ministry of Urban Development, File. No. A-46020/3/2013-EA, 27 November 2014. European Business and Technology Centre (EBTC), The Solid Waste Management Sector in India: An Overview of Research and Activity [Research Report], companion to the EU–India Greentech Matchmaking Event 2011, organized by EBTC and its partners, the Indo-Italian Chamber of Commerce and Industry (IICCI), the Chamber of Commerce of Milan, Innovhub and CEIPIEMONTE 1-26 (EBTC 2011). 77 ibid 7. 78 Ministry of Finance (n 57). 75 76

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470 Research handbook on law, environment and the global South preventing useful material going to landfills. Such rag pickers could be paid incentive money for carrying out the task satisfactorily. While protecting the interest of rag pickers, care needs to be taken to prevent child labour.79

In order to continue to pay lip service to the idea of integrating the informal sector into the formal system, as per the original internationally accepted definition of ‘integrated municipal solid waste management’, they are as always given a mention in the special focus group category of the Swachh Bharat Mission (Urban) Guidelines: In their efforts to streamline and formalize solid waste management systems, it shall be the endeavour of ULBs that the informal sector workers in waste management (rag pickers) are given priority to upgrade their work conditions and are enumerated and integrated into the formal system of solid waste management in cities.80

In a highly inequitable suggestion, since these are the very groups likely to remain uncovered or underserved by the state/ULB as regards waste management in their neighbourhoods,81 an idea for self-provision and provision to others is circulated from the Joint Secretary, Ministry of Urban Development to all states and Union Territories. It is argued that since the construction of toilets and SWM are significant components of the urban segment of the Swachh Bharat Mission, ‘for implementing these components, it has been seen that many cities have engaged self-help groups and slum level federations formed under National Urban Livelihood Mission in a very successful manner’.82 For such ‘dove-tailing’ in the sphere of SWM, it is generously proposed that, ‘The self-help groups are given the responsibility of door to door collection of garbage in many municipalities’.83 3. The Solid Waste Management Rules, 2016 To round off how the state has chosen to perceive and deal with SWM and the informal economy in particular in recent times, it is worth revisiting the Solid Waste Management Rules of 2016, notified in 2017 by the Ministry of Environment, Forest and Climate Change, Government of India. In superficial ways, it turns out they are a continuation of what was proposed by the Committee set up by the Hon. Supreme Court on Solid Waste Management in Class I cities in India in 199884 and finally legislated in the Municipal Solid Wastes (Management and Handling) Rules of 2000, while in other ways, they are a significant departure. The Municipal Solid Wastes (Management and Handling) Rules of 2000 acknowledged the contribution of the informal sector in collecting waste in the city and sought, on the face of it, to integrate it within the formal system. They did so by focusing solely on the waste pickers, that is, that the ULB ought either to work with NGOs or Planning Commission (n 17) 22. Ministry of Urban Development (n 66) 5. 81 Heller and Mukhopadhyay (n 30). 82 Ministry of Urban Development, D.O. No. 13/6/2015-SBM, 13 August 2015. 83 ibid. 84 Committee Constituted by the Hon. Supreme Court of India, ‘Interim Report on Solid Waste Management in Class I Cities in India’ (1998). 79 80

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The informal waste sector 471 resident welfare associations to organize rag pickers for the job of door-to-door collection of waste or entirely contract out the door-to-door collection on a full cost-recovery basis. They also suggested NGOs give rag pickers identity cards to ‘increase their acceptability in society’.85 Further, by making the ULB or those authorized by the ULB responsible for choosing various types of primary collection, the fine print of the documents reveals that the way was paved for pure privatization of the service, which is what has come to pass. The highlights of the Solid Waste Management Rules 2016,86 beginning with the superficial continuities, are as follows: first, they direct waste generators, including households, to segregate waste into three streams: biodegradable or wet waste; non-biodegradable or dry waste; and hazardous waste. Second, waste generators are to pay user fees to the ULB for sustainable SWM services, including collection, transportation, processing and disposal of solid waste. Third, like all policy documents of the government, it does suggest the integration (understood in the sense of the original international usage of the term) of waste pickers/rag pickers in the formal system by the state governments, albeit by forming self-help groups or any other groups. Finally, the ULB is charged with the responsibility to ensure that the operator of a waste facility provides personal protection gear, such as a uniform, fluorescent jacket, hand gloves, appropriate footwear and masks to all workers for handling solid waste. In terms of the substantive differences, the Solid Waste Management Rules 2016 explicitly emphasize the promotion of waste-to-energy plants, in contravention of the well-accepted waste management hierarchy.87 They do this in the face of contradictory empirical evidence, which suggests that the physical, chemical and biological characteristics of waste in the country make it technically unsuitable for incineration,88 something which was tried and which failed in the 1970s and which has been recognized for decades.89 That the viability of waste-to-energy technology demands a continuous feeding of waste, which in turn requires control of the entire waste management chain, from end to end, resulting in the dispossession of recyclable waste from the informal sector, is also well known.90 Regardless, the Solid Waste Management Rules 2016 explicitly state that they are promoting waste-to-energy plants in the following ways. All industrial units within a 100-kilometre radius of a plant must start purchasing 5 per cent of their fuel requirement from the plant. The Ministry of Power must ensure the compulsory purchase of the power generated by waste-to-energy plants by electricity distribution 85 Ministry of Environment and Forests, Municipal Solid Wastes (Management and Handling) Rules of 2000, 28, accessed at http://mpcb.gov.in/images/pdf/MSWrules2000.pdf. 86 Ministry of Environment, Forest and Climate Change, Solid Waste Management Rules 2016, accessed at http://www.indiaenvironmentportal.org.in/files/file/Solid%20Waste%20 Management%20Rules,%202016.pdf. 87 Schall (n 21). 88 Luthra (n 36). 89 Frank Flintoff, Management of Solid Wastes in Developing Countries (World Health Organization (WHO), Regional Office for South-East Asia 1984). 90 Demaria and Schindler (n 36); Luthra (n 36).

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472 Research handbook on law, environment and the global South companies. The Ministry of New and Renewable Energy should facilitate the infrastructure of such plants and provide a subsidy and incentives for them. High calorific waste must be diverted to such plants and so on. In short, the state will do everything in its power to underwrite the risk and finance the setting up and running of such plants, despite consistent evidence on their technological, ecological, social and economic fallibility in the Indian context.

C. JUDICIAL OVERREACH AND THE RIGHT TO THE CITY IN THE LAST DECADE Far from the Economic Survey’s 2016–17 banal and apolitical conceptualization of urbanization in India, the urban political economy of the metropolis of the global South has increasingly focused on the aspiring elite, seeking to forcibly mould each into a ‘global city’ connected to a dispersed world economy.91 Greater space for capital accumulation via neoliberal mega infrastructure and urban development projects is continually claimed, while clawing away resources from the urban poor.92 Some have conceptualized and explored whether these ‘worlding’ projects are particular and situated.93 Others have fleshed out the links between cities and global capitalism,94 including positing post-colonial urbanization as characterized by the ‘bypass’ approach wherein hegemonic immaterial labour dominates new economic towns set on the fringes of old metropolises and linked to a global economy, but where encroachment by excluded informal labour and the ‘squalor and dirt of material production’ is, over time, inevitable.95 This is not the place to go into a deeper discussion of these perspectives, which are posed as a segue to outlining the fate of the informal plastic recycling market situated on the fringes of Delhi, during the previous phase of research in the late 1990s and early 2000s, and since that time period. This informal market has been caught in the cross hairs of supposedly environmental concerns for a long time. Previous research recounted and mapped how the market had faced repeated eviction and displacement, in accordance with a changing definition of what constituted the city’s periphery as it grew beyond all recognition. From Karol Bagh and Punjabi Bagh in the 1970s, it was 91

Saskia Sassen, The Global City: New York, London, Tokyo (Princeton University Press

2001). 92 Sanyal and Bhattacharya theorize, ‘surplus’ labour seeking to survive outside the circuit of capital in the ‘need economy’. Kalyan Sanyal and Rajesh Bhattacharya, ‘Beyond the Factory: Globalisation, Informalisation of Production and the New Locations of Labour’ (2009) 44(22) Review of Labour Economic and Political Weekly 35. 93 Ananya Roy and Aihwa Ong (eds), Worlding Cities: Asian Experiments and the Art of Being Global (Wiley-Blackwell 2011); Himanshu Burte and Lalitha Kamath, ‘The Violence of Worlding: Producing Space in Neo-Liberal Durban, Mumbai and Rio de Janeiro’ (2017) 52(7) Economic and Political Weekly 66. 94 Ugo Rossi, Cities in Global Capitalism (Polity Press 2017). 95 Rajesh Bhattacharya and Kalyan Sanyal, ‘Bypassing the Squalor: New Towns, Immaterial Labour and Exclusion in Post-Colonial Urbanisation’ (2011) 46(31) Review of Urban Affairs Economic and Political Weekly 41.

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The informal waste sector 473 moved outwards to Jwalapuri by orders of the Delhi Government and the Delhi Development Authority in 1981. Again in 1995, it was made to shift to Mundka. The Supreme Court’s industrial relocation order of 1999–2000 targeted 77,000 informal enterprises, including the plastic recycling market, categorized as ‘polluting’ and ‘non-conforming’ by the standards of the Master Plan of Delhi 2001. It ruled in favour of the petitioner,96 and resulted in a widespread sealing drive of 2000–01, which devastated the market. Judicial activism in the sphere of urban governance through the instrument of public interest litigation was critiqued because, in contravention of their original purpose, they forego democratic processes whereby those in the informal economy are able to secure their social reproduction and survival in the face of a privileged perspective that desires pristine cities and demands coercive urban transformation to suit their aspirational vision of a global metropolis.97 Another public interest litigation against the plastic recycling market was admitted in early 2009, with the petitioner claiming the area in northwest Delhi hosts a number of ‘polluting’ and ‘non-conforming’ industries, including plastic recycling units. The Delhi High Court ruled in favour of the petitioner in October 2009, with the court instructing the Delhi government to act immediately, in accordance with the Supreme Court industrial relocation order of 1999–2000. Problematic in many respects,98 first-hand engagement with the process of the 2009 case formed the basis for a far more trenchant critique of such social action litigation in urban governance.99 The irony of environmental public interest litigations and associated court benches blithely disregarding subordinate groups in the informal economy and their rights – of various kinds, from life to livelihood and the city itself – was highlighted. At a broader level, the slums housing all the waste worker categories surveyed for the estimation of income and multidimensional poverty for the original research were completely demolished in the early 2000s. Since then, especially prior to the Commonwealth Games being held in Delhi in 2010, the drive to evict and demolish ‘illegal’ slums across the city has only intensified, with the judiciary complicit in redefining the urban poor as encroachers, with scant rights to housing, shelter or livelihood in this aspiring global city.100

MC Mehta v Union of India 1996 SCC (4) 750 (Supreme Court of India, 8 July 1996). Gill 2010a (n 1). Public interest litigation was first introduced as a means of giving the less privileged a legal voice, but has increasingly been appropriated by the elite to further their concerns in the urban sphere, via a judiciary that is itself complicit in being partial to elite causes and not averse to using the instrument to micromanage governance. See also Anuj Bhuwania, Courting ‘the People’: The Rise of Public Interest Litigation in Post Emergency India (CUP 2016). 98 Gill 2010b (n 1). 99 Gill 2012a (n 1). 100 Usha Ramanathan, ‘Illegality and the Urban Poor’ (2006) 41(29) Economic and Political Weekly 3193; D Asher Ghertner, ‘Analysis of New Legal Discourse behind Delhi’s Slum Demolitions’ (2008) 43(20) Economic and Political Weekly 57; Gautam Bhan, ‘“This Is No Longer the City I once Knew”: Evictions, the Urban Poor and the Right to the City in Millennial Delhi’ (2009) 21(1) Environment & Urbanization 127. 96 97

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474 Research handbook on law, environment and the global South

CONCLUSION This chapter brings together extensive research on the informal waste and plastic recycling economy in India, undertaken in the late 1990s and early 2000s, and has traced subsequent developments, which have been shown to lie in intensified efforts to completely privatize the entire management of municipal waste. The closing of access to waste, hitherto a common property in some measure and a resource for those subsisting on it (and not mere discarded detritus), is reminiscent of the theorization of the accumulation economy and the need economy, as posited by the economists Kalyan Sanyal and Rajesh Bhattacharya.101 ‘Exclusion is a constitutive process of the capitalist economy such that the reproduction and expansion of the latter involves repeated invasion of resources which lie outside it’.102 It is concluded here that this drive towards the privatization and formalization of the waste economy is a clear-cut example of coercive dispossession, wherein the capitalist economy continually leaches more and more resources as it expands, relegating those previously dependent on it to ‘surplus’ labour status, in a truly immiserating process of ‘exclusion’.103 A decade ago, when writing up the previous research, one naively hoped if not absorption into the formal sector, then those who were self-employed and running own-account enterprises in this urban informal sector would somehow garner support for their entrepreneurial and environmentally beneficially work. Indeed, the recommendation was made that if non-existent and failed markets in numerous spheres, including finance and land, were somehow addressed by the state, the flourishing informal economy would be integrated – in the internationally understood connotation of the term and not in the bizarre manner subsequently interpreted by the state – into the formal waste management system. This would have resulted in the attainment of the Brundtland Report’s utopian vision of linking ecological goals to economic and social goals.104 A close reading not just of what has transpired within the municipal waste management policy space, but also of what has transpired within the economy as a whole, even as a quarter of a century has passed since the country liberalized and opened up to the world economy, makes it apparent that this hope was quite misplaced. The fact is, the informal economy in general has been devastated by the ill-conceived demonetization, as well as a poorly thought out move towards the Goods and Services Tax (the highest rates of which have even been applied on the informal recycling economy). This comes on the heels of years of jobless growth, and an already burgeoning ‘need economy’. State support for the accumulation economy, as shown here by the underwriting of the risk and incentivization of the formal private sector to build and finance large infrastructure, to set up and run environmentally unsuitable technology for waste-to-energy plants and so on, stands in stark contrast to support for the need economy. It is clear that far from actually seeing the self-employed as the entrepreneur, as the BJP coterie claims, it is more a case of an ever expanding ‘surplus’ 101 102 103 104

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The informal waste sector 475 labour force having to fend for itself in ever more desperate ways. Today, it is quite apparent that capitalist development is highly unlikely to see the end of dualism. Finally, the persistent tendency for judicial overreach in urban governance, pitted against the very existence of the informal recycling market in Delhi – both at the time of previous research and again in the last decade – was highlighted. Such judicial activism has again been shown to have expanded its tentacles in recent years, being instrumental in denying the urban poor in general in Delhi their basic rights – to livelihood, to shelter, to housing, to the very city. Supposedly environmental public interest litigation, as adjudicated today, bypasses democratic processes whereby those in the informal economy are able to resist aspirational elite demands for a reconfiguration of the urban metropole in the image of the global city, and to guarantee their own social reproduction. As to the fate of the ‘surplus’ labour in the urban informal waste economy in Delhi, it is hard to foretell what they will need to do next to merely survive.

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Index

Aarhus Convention (1998) 342 abatement potential 61 access to justice 342–3 access to land for livelihood 151–3 accumulation economy 454 Addis Ababa Action Agenda 24 Adharshila Learning Centre 81 Adivasi economics 422, 423 Adivasi Maoists 427 African Charter on Human and Peoples’ Rights (AfricanCHPR) 91–2, 102 AfricanCHPR see African Charter on Human and Peoples’ Rights African Commission on Human and Peoples Rights (ACommHPR) 93, 100 African Commission on Human and Peoples’ Rights v Kenya 102 Agenda 2030 3 A-historicism xxii–xxiii Ahluwalia, Montek Singh 416 Alvares, Claude 432 Amar Singh and Others v Union Territory, Chandigarh and Others 407 AmericanCHR see American Convention on Human Rights American Convention on Human Rights (AmericanCHR) 92, 100, 101 American Legislative Exchange Council 47 Amte, Baba 386 Anderson, Dewey 418, 426 Anderson, Warren 141, 142, 143, 144 Anthropocene causes by Earth system 14–15 crisis of development 16–19 crisis of sustainable development 19–26 environmental racism 26–9 injustice 26–9 overview of 14–16 theology of 3–4 towards social justice 29–31 unsustainability 26–9 Anthropocene justice theory 8, 12–13 intergenerational justice vs. 5–7 appeal of rights-based approach 87–90 Aristotle 172 ASN see Nuclear Safety Authority

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assurance of land rights 156–63 Atomic Energy Act (1954) 333 Atomic Industrial Forum 334 austerity 35–6 Austrian Atomic Liability Act (1999) 344 authoritarian biopolitical security surveillance 16 Bamako Convention on the Ban on the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Waste in Africa 114 Bank of England 34 Basel Action Network (BAN) Amendment 115–18, 120–21, 127–30, 134 Basel Convention on the Control of the Transboundary Movement of Hazardous Wastes and their Disposal 109, 115 Basel Convention on waste-resource interface 124 Basel Declaration on Environmentally Sound Management 123 Basel I treaty (1988) 52 Basel II treaty (2004) 52 Basel III treaty (2010) 53 BASIC (Brazil, South Africa, India and China) countries xxi Baxi, Upendra 18 Beej Bachao Andolan 75 Berlin Wall 15 Bhatia, Bela 431 Bhattacharya, Buddhadeb 421 Bhattacharya, Rajesh 453, 474 Bhopal Gas Disaster case law as re-emerge 144–5 mirage of criminal justice 142–3 NEAAA 145 NETA 145 NGT Act 145 overview of 138–40 PLIA 145 unanticipated questions and consequences 140 unjust settlement 141 waning trust in state 143–4

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478 Research handbook on law, environment and the global South Bhopal Gas Leak Disaster (Processing of Claims) Act (1985) 144 Bill of Rights 95 black money 200 Blackstone, William 174 Blomley, Nicholas 51 Bolivian Law of the Rights of Mother Earth 68 Bombay Town Planning Act 1915 (BTPA) 197 BP Southern Africa (PTY) Ltd v MEC for Agriculture, Conservation, Environment & Land Affairs 95 Bretton Woods institutions 33, 237 Britain’s National Health Service 35 Brussels Protocol 341 BTPA see Bombay Town Planning Act 1915 buen vivir 29–31 CAFA see Compensatory Afforestation Fund Act, 2016 Caffentzis, George 63 capitalism 26 green 21 Indian, forests and forest lands centralised control 252 illegal and non-formal systems 252 property tenures 252 industrial 59 carbon budgets 40 Cartagena Declaration on the Prevention, Minimization and Recovery of Hazardous Wastes and Other Wastes 129 CBA see cost-benefit analysis CBD see Convention on Biological Diversity CBDR-RC see common but differentiated responsibility and respective capabilities CEC see Central Empowered Committee CEGIS see Centre for Environmental and Geographic Information Services Center for Economic and Social Rights v Nigeria 93 Central Empowered Committee (CEC) 280–81 Central Pollution Control Board (CPCB) 402, 403 Central Public Health and Environmental Engineering Organisation (CPHEEO) 405–6 Central Water Commission 371 Centre for Environmental and Geographic Information Services (CEGIS) 216–17, 227

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CFDT see Committee on Forest Development in Tropics channelling of liability 329–30 Chaudhary, Amarsinh 386 Chicago Board Options Exchange 48 civil liability definition of 325 nuclear law and 324–8 tort law vs. 325 Civil Liability for Nuclear Damage Act 2010 (CLNDA) 345 civil society activism 104–5 CLC see International Convention on Civil Liability for Oil Pollution Damage Clean Air Act (1970) 43 Clean Development Fund 43 Clean Development Mechanism (CDM) 43, 53 climate injustices 28–9 climate rents 40 CLNDA see Civil Liability for Nuclear Damage Act 2010 coal-based industrialisation 413–17 Committee on Forest Development in Tropics (CFDT) 237 common but differentiated responsibility and respective capabilities (CBDR-RC) 9 Community Land Act (2016) 174, 182, 183 Compensatory Afforestation Fund Act, 2016 (CAFA) 301–2 compliance and enforcement 100–104 concept of 5-Rs 466 Conferences of the Parties (COPs) 103 to the Basel Convention (COP2) 111 to the Rotterdam Convention (RC COP7) 133 to the Stockholm Convention (SC COP7) 133 conservation battle for forests colonization of forest and people 293–5 final assault 295–302 forest as homeland 292–3 time-bound action plan 295–6 definition of 286 economic perspectives 290 ethics of 286 expropriation for profits 287–91 going forward 302–3 Conservation in Protected Areas 287–8, 293 Constitutional Amendment Act (1978) 193 constitutionalism 87–90 Constitution of Kenya (2010) 177, 181

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Index 479 contemporary political institutions 16 Convention on Biological Diversity (CBD) xx, 209, 213, 214, 225 Convention on Supplementary Compensation for Nuclear Damage of 1997 (CSC) 326, 327 Cooperativa Integral Catalana 74 COP2 see Conference of the Parties to the Basel Convention COPs see Conferences of the Parties Cordell, Alexander 414 corruption concept 48–9 cost-benefit analysis (CBA) 42, 436–7 Covenant on Economic, Social, and Cultural Rights 349 CPCB see Central Pollution Control Board CPHEEO see Central Public Health and Environmental Engineering Organization criminalization landscape 44–9 criminal justice, mirage of 142–3 crisis of development 16–19 authoritarian biopolitical security surveillance 16 Descartian dualism 17 ecological degradation 18 economic hardship 18 Enlightenment rationality 17 Eurocentric rationality 17 crisis of sustainable development 19–26 Brundtland Commission 19–20 green capitalism 21 Living Planet Report (2016) 22–3 Paris Agreement 22 Sustainable Development Goals (SDGs) 23–6 transnational corporations 26 weak sustainability 26 cross-jurisdictional learning 94 CSC see Convention on Supplementary Compensation for Nuclear Damage of 1997 cultural diversity 67, 80–81 cultural genocide 421–5 cultural identity 71 culture of compliance 103 curative petitions 142–3 dams and displacement construction in India 375–6 continued debates 393–5 discourse on development 372–5 Sardar Sarovar Project (SSP) approach to river control 380–82

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background details of 378–80 conundrum of multiple implementing agencies 382–3 cost factor and cost-benefit methodology 388 judicial interpretation 388–93 legal action course 388–93 NGOs, political parties and eminent/concerned citizens 385–7 project affected, displaced and resettled population 383–5 Supreme court legal cases and order/judgments 390–93 techno-managerial model 380–82 water scenario in India 371–2 dangerous climate change 3 De Angelis, Massimo 41 Deccan Development Society 75, 79, 80 decriminalization landscape 44–9 delegated democracy 67–72 Descartian dualism 17 development-induced displacement 425 Dhawan, BD 374 direct democracy 67–72 Directive Principles of State Policy (DPSP) 399 Director: Mineral Development, Gauteng Region, and Another v Save the Vaal Environment and Others 94 displacement see dams and displacement Dodd-Frank Act (2010) 53 Dowd, Kevin 52 DPSP see Directive Principles of State Policy dynamic interpretative communities 103 EACs see Expert Appraisal Committees Earth Summit (1992) 22 ecocentrism 56 ecocide 421–5 ecological degradation 18 ecological identity 71 ecological integrity and resilience 67–8 economic democracy 67, 72–8 economic hardship 18 Economic Survey 2016–17 462–3 eco-swaraj 83–4 Ecosystem Management Working Group 317 Ecuadorian Constitution (2008) 68, 105 egalitarian principle 152 EIA see Environmental Impact Assessment; environmental impact assessment Elango, Ramaswamy 76

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480 Research handbook on law, environment and the global South EMCA see Environment Management and Coordination Act 1999 enforceability of land rights 163–4 Enlightenment rationality 17 environmental human rights appeal of rights-based approach 87–90 civil society activism 104–5 compliance and enforcement 100–104 constitutionalism 87–90 definition of 90 in global South 90–95 AfricanCHPR 91–2 AmericanCHR 92 Bill of Rights 95 cross-jurisdictional learning 94 Inter-American Court of Human Rights 92 jury’s general view 91 transnational comparative constitutionalism 94 indigenous formulations of novel 105–8 overview of 86–7 protection of 90 rule of constitutional law and respect for 98–100 socio-economic development vs. environmental protection 96–8 environmental impact assessment (EIA) 185 mangrove forest ecosystem services 209–12, 226–8 overview of 207–9 public participation tools 226–8 Rampal Power Plant Project 212–26 environmental impact assessment 212–14 precautionary principle 218–24 size and location of project 214–18 strength and weaknesses of 228–30 transboundary impact of 224–6 environmental injustices 27–9 environmental justice (EJ) movement 26–7, 79 environmental law for marginalised people A-historicism xxii–xxiii development challenges and alternatives xxiii–xxiv equity and human rights xxiv–xxvi ostensible neutrality pitfalls xxii–xxiii overview of xvi–xvii South-North dimensions xvii–xxii environmentally sound management (ESM) capacity paradigm 132 definition of 116

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of waste 122, 126–34 environmental racism 26–9 environment impact assessment (EIA) challenges in India public participation 446–7 quality of impact assessments 444–5 role of experts 445–6 cost-benefit analysis 436–7 handmaiden of economic growth approvals as outcomes 447–8 contestations over environment regulation 450–51 new geographies 448–9 Rampant non-compliance 449–50 India’s trajectories in 1994 437–9 EIA 2006 law 441–3 re-engineering 439–41 social roots of environmental regulation 435–7 stages of notification 442 Environment Management and Coordination Act 1999 (EMCA) 184, 185 Environment Management Capacity Building (EMCB) Project 440 Environment Protection Act, 1986 (EPA) 139, 402 EPA see Environment Protection Act, 1986 equity rights xxiv–xxvi ESM see environmentally sound management Esteva, Gustavo 422 Ethiopia case study see land rights; land rights, livelihoods, and poverty EU Emissions Trading Scheme 49 EU ETS see European Union Emissions Trading Scheme Eurocentric rationality 17 European Union Emissions Trading Scheme (EU ETS) 40, 44 e-waste contemporary geography of 113 UNEP estimation 113 exclusive jurisdiction 331–2 Expert Appraisal Committees (EACs) 443 FAO see UN Food and Agriculture Organization Faure, Michael 343 FCPF see Forest Carbon Partnership Facility Feinstein, Andrew 426 Felli, Romain 39, 62 Ferguson, George 74 financialization process 48

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Index 481 Fink, Larry 426 Fiore, Karin 336 first occupancy theory 173 5-Rs see reduce, reuse, recover, recycle and remanufacture FLEGT see Forest Law, Enforcement, Governance and Trade Action Plan forcible acquisition of land 198 forest(s) battle for colonization of forest and people 293–5 final assault 295–302 forest as homeland 292–3 time-bound action plan 295–6 conflicting values and policy processes 232–4 INDCs 233 multinational enterprises’ (MNE) business strategies 233–4 UNFCCC 233 contested legal territory 235–6 new product, new market, old paradigm 244–8 accumulation by conservation 245 Forest Carbon Partnership Facility 246 natural capital mechanisms 245 reducing emissions from deforestation and degradation 245–8 Social Standards initiative 246 overview of 231–2 phases and policies description of 236–7 governance and legality 242–4 making sustainable 239–42 planned extraction 237–9 village 294 Forest Act (1927) 227 Forest (Conservation) Act of 1980 250 Forest Carbon Partnership Facility (FCPF) 246 Forest Conservation Act 295 Forest Conservation and Management Act (2016) 184 Forest Law, Enforcement, Governance and Trade Action Plan (FLEGT) 243–4 forest resources and tribal rights 276–8 Forest Rights Act (FRA) 69 BJP-led National Democratic Alliance (NDA) government 258–9 bone of contention and tool of struggle community and collective control 266–8 individual and land rights 265–6 NDA government 268–70

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expropriation, trends of resistance to 256–8 instruments of centralisation and expropriation 253–6 law as exercise in institutional contestation 260–62 major provisions of law land rights 262 right against arbitrary relocation 263 rights recognition procedure 263 right to protect and conserve 263 use rights 262–3 making and implementation of law 260–62 nature and meaning of rights recognised collective powers 264 collective property rights 264 forest diversion 265 forest management 265 individual property rights 264 protected areas 265 political context of 258–62 Forests Act, Cap 385 185 forests and forest lands in Indian capitalism centralised control 252 illegal and non-formal systems 252 property tenures 252 overview of 250–52 scientific management 250 shaping of struggle centrality of law, oppressive instrument 252–3 community and communal forms of production 253 state vs. people 253 Forest Stewardship Council (FSC) 55, 240 Foucault, Michel 27 FRA see Forest Rights Act Framework for the Environmentally Sound Management (ESM) of Hazardous Wastes and Other Wastes 111, 132 framework of human rights, wastewater use international and domestic perspectives 398–9 opportunity/challenge 400–402 synergy/conflict among rights 399–400 free basic water (FBW) strategy 355–6 free market policy 50 Free Prior Informed Consent 55 free trade policy 50 FSC see Forest Stewardship Council fugitive resource 186 full liberal ownership 174

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482 Research handbook on law, environment and the global South Gandhi, Indira 386 Gandhi, Rajiv 386 Gardiner, Stephen 11 Gates, Bill 39, 47 genocide, cultural 421–5 Ghosh, Amitav 16 Glass-Steagall Act (1913) 53 Global Happiness Index 79–80 global waste market 126 Gonzalez, Carmen 112, 113 Graeber, David 44, 50 Gray, John 51 Great Eastern Ranges Initiative 70 green capitalism 21 green certification rules 55 Green India Mission 302 green safeguards 55 green standards 55 Gross National Happiness 80 growth infrastructures of land 202 GTPUDA see Gujarat Town Planning and Urban Development Act 1976 Gudynas, Eduardo 30 Guha, Ramachandra 29 Gujarat Town Planning and Urban Development Act 1976 (GTPUDA) 194, 196–9 Hansen, James 15 Hardin, Garret 169, 171 harm principle 10–12 Heinzerling, Lisa 42 Heller, Michael 172 HGAs see Host Government Agreements historical injustices 9–10 Hobbesian state of nature 173 Holocene, approaches to justice 16 Homo industrius 67 Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships 114 Host Government Agreements (HGAs) 37–8 human rights see environmental human rights IACommHR see Inter-American Commission on Human Rights IAEA see International Atomic Energy Agency ICCAs see indigenous peoples’ and community conserved territories and areas’

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ICESCR see International Covenant on Economic, Social and Cultural Rights 1966 IMF see International Monetary Fund IMSWM see Integrated Municipal Solid Waste Management INDCs see Intended Nationally Determined Contributions Indian agriculture 202–3 Indian capitalism, forests and forest lands centralised control 252 illegal and non-formal systems 252 property tenures 252 Indian Council of Medical Research 143 Indian Forest Act (1927) 294 indigenous peoples’ and community conserved territories and areas’ (ICCAs) 67–8 Indonesian-Swiss Country-Led Initiative 118, 128 industrial capitalism 59 informal waste sector judicial overreach 472–3 overview of 452–5 policy shifts in last decade Economic Survey 2016–17 462–3 Jawaharlal Nehru National Urban Renewal Mission 463–7 Solid Waste Management Rules 2016 470–72 Swachh Bharat Mission (2014) 463, 467–70 three phases of 461–2 recovery and plastic recycling sector 455–61 injustices Anthropocene 26–9 climate 28–9 environmental 27–9 Integrated Municipal Solid Waste Management (IMSWM) 466, 468 integrated waste management 469 Intended Nationally Determined Contributions (INDCs) 233 Inter-American Commission on Human Rights (IACommHR) 96, 101 Inter-American Court of Human Rights 92 inter-generational equity 341–2 intergenerational justice 5–7 Anthropocene justice vs. 8, 12–13 Intergovernmental Panel on Climate Change (IPCC) xxii, 291

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Index 483 International Atomic Energy Agency (IAEA) 323 International Commission on Large Dams 372 International Convention on Civil Liability for Oil Damage (1969) 332 International Convention on Civil Liability for Oil Pollution Damage (CLC) 344 International Covenant on Civil and Political Rights 318, 349, 398 International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR) 318, 398 International Energy Agency 305–6 International Energy Policy challenges 307 energy and economic growth 312–13 energy and environmental resource use 311–12 energy and human needs 307–11 principled approach to 320–21 sustainable development description of 313–15 international human rights law 317–20 need for an international legal framework 315–17 sustainable development law 317–20 international environmental law 8 nuclear liability law vs. access to justice 342–3 inter-generational equity 341–2 overview of 338–9 polluter-pays principle 339–41 International Law Association Committee on the Legal Aspects of Sustainable Development 319 Internationally Transferred Mitigation Outcomes (ITMOs) 40 International Monetary Fund (IMF) 33 International Tropical Timber Agreement (ITTA) 238–40 International Tropical Timber Organization (ITTO) 238 investor-state dispute settlement system (ISDS) 38 IPCC see Intergovernmental Panel on Climate Change ISDS see investor-state dispute settlement system ITMOs see Internationally Transferred Mitigation Outcomes ITTA see International Tropical Timber Agreement

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ITTO see International Tropical Timber Organization Jaiv Panchayat network of Navdanya 75 Jawaharlal Nehru National Urban Renewal Mission, 2005 (JnNURM) 463–7 Jharcraft 77 Jinping, Xi 16 JnNURM see Jawaharlal Nehru National Urban Renewal Mission, 2005 judiciary’s approach, wastewater treatment balancing rights, prohibiting use 407–8 environmental law principles 409–10 incomplete solution 410 searching for alternatives 408–9 Kadraka, Drika 283 Kadraka, Haribandhu 283 Kagad Kach Patra Kashtakari Panchayat (KKPKP) 79 Karma, Mahendra 427 Kenya case study see land rights and wildlife conservation; wildlife conservation Kenya Wildlife Service (KWS) 184 KKPKP see Kagad Kach Patra Kashtakari Panchayat knowledge democracy 67, 80–81 knowledge diversity 80–81 Krishnamurti Foundation 81 Kuehn, Robert 112 Kumar, Arun 424 Kumar, Himanshu 431 Kunjam, Manish 431 Kyoto Protocol 10, 40, 43, 53 LAA see Land Acquisition Act of 1894 labour theory 172 land forcible acquisition of 198 growing rentier economy 199–201 growth infrastructures 202 infrastructure investments 202–3 nature vs. labour 204 transfer of ownership of 198 value and work 201–5 land acquisition doctrine of eminent domain 192, 194 private property entitlements 192 redistributive land reforms 192 Zamindars 191–2 Land Acquisition Act of 1894 (LAA) 192 land ceiling laws 193–4

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484 Research handbook on law, environment and the global South land dispossession doctrine of eminent domain 192, 194 private property entitlements 192 redistributive land reforms 192 Zamindars 191–2 land-grabs and rent 194–6 land-labour-capital relations 202 land pooling 196–9 Land Pooling Policy (LPP) 197 land rights assurance of 156–63 compensation 158–9 due process aspect of 162 environmental standards 157 expropriation of livelihood land 157–8 income capitalization approach 161 independent body assessment 161 landholder’s loss and ‘taker’s gain’ perspective 160 perpetuation of land tenure insecurity 158 perspective of security of land rights 159 public purpose, public interest, and public benefit 156–7 self-assessment approach 161 breadth of 154–5 constitutional protection to 164–7 duration of 155–6 enforceability of 163–4 vs. poverty vs. wildlife conservation in Kenya 178–80 regime 183–4 land rights and wildlife conservation congruences and incongruences 176–8 first occupancy theory 173 full liberal ownership 174 Hobbesian state of nature 173 interface between 186–8 labour theory 172 personality theory 173 vs. poverty in Kenya 178–80 property rights 173–4 land rights, livelihoods, and poverty access to land for livelihood 151–3 constitutional protection to 164–7 allocative function 166 personhood function 165 promotive function 165 protective function 165 welfare function 166 economic efficiency and marketization approach 148, 152 interlink between 149–53

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interwoven relationship 147–8 overview of 147–9 security of 148 Lawrence, Peter 11 legal activism 63 legal channelling of liability 329–30 legalized extortion 52 legal landscape, flattening of 41–4 limited liability 330–31 livelihoods see land rights, livelihoods, and poverty Living Planet Report (2016) 22–3 Locke, John 172 LPP see Land Pooling Policy Lutzenberger, Jose 116 Maasai Mara Game Reserve, Kenya 187–8 MacKenzie, Donald 48, 50 Maduro, Nicolás 86 Mahindra, Keshub 141 mangrove forest ecosystem services 209–12, 226–8 Manoj Misra v Union of India and Others 408 Mara Serengeti ecosystem 187 Martinez-Alier, Joan 27 Marudam 81 Maya indigenous community of the Toledo District v. Belize 339 Mazibuko v City of Johannesburg 351 McCarthy, James 34, 38, 42 MDGs see Millennium Development Goals MEAs see multilateral environmental agreements Mickelson, Karin 131 Millennium Development Goals (MDGs) 17, 21, 86 Millennium Ecosystem Assessment 289 Mines and Collieries Act (1842) 414 Mines and Minerals Regulation and Development Act, 1957 (MMRDA) 274–6 mining development aluminium, steel and mega-dams 417–20 coal-based industrialisation 413–17 cultural genocide 421–5 development-induced displacement 425 ecocide 421–5 escalating resource wars 426–8 investment promotions 425–6 need for real development 428–32 overview of 413 mining regulations, India 273–6

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Index 485 Mirowski, Philip 41 Mittal, Arcelor 40 MMRDA see Mines and Minerals Regulation and Development Act, 1957 Mobile Phones Partnership Initiative (MPPI) 114–15 Modi, Narendra 386, 426 ‘molecular-unit’ regulation 57 Movement of Landless Workers (MST) movement 73 MPPI see Mobile Phones Partnership Initiative multilateral environmental agreements (MEAs) 103–4 multinational enterprises’ (MNE) business strategies 233–4 Munda, Jaipal Singh 422 NAACP see National Association for the Advancement of Coloured People NABET see National Accreditation Board for Education & Training NAC see National Advisory Council NAFTA see North American Free Trade Agreement Nairobi Declaration on the Environmentally Sound Management of Electrical and Electronic Waste 115 Narmada Bachao Andolan 81 Narmada Water Dispute Tribunal 378–9 National Accreditation Board for Education & Training (NABET) 445 National Advisory Council (NAC) 259 National Association for the Advancement of Coloured People (NAACP) 47 National Biodiversity Strategy Action Plan (2004) 227 National Commission for Enterprises in the Unorganised Sector (NCEUS) 454 National Commission on Agriculture (1976) 294 National Environment Action Plan (NEAP) 440 National Environmental Appellate Authority (NEAA) 444 National Environmental Management Authority 185 National Environment Appellate Authority Act (NEAAA) 145 National Environment Tribunal Act (NETA) 145 National Forest Action Plans (NFAP) 237–8 National Green Tribunal (NGT) 145, 406, 444

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National Hawkers Federation 79 national-level Jan Swasthya Abhiyan (People’s Health Movement) 81 National Mineral Development Corporation 429 National Mineral Policy (2008) 428 National Urban Livelihood Mission 470 nature as historical 56–7 NCEUS see National Commission for Enterprises in the Unorganised Sector NEAA see National Environmental Appellate Authority NEAAA see National Environment Appellate Authority Act Nehru, Jawaharlal 372 neoextractivism 36 neoliberal fire 57–62 neoliberal globalisation 15 neoliberalism austerity 35–6 growth of 33–7 legal activism 63 nature as historical 56–7 overview of 32 prisonfare programme 34 quantitative easing 34–5 transnational capital 33–7 Workfare programme 34 neoliberal transformation of law criminalization landscape 44–9 decriminalization landscape 44–9 legal landscape flattening 41–4 privatization 49–56 trade, investment, property 37–41 NETA see National Environment Tribunal Act New York Declaration on Forests 233 NFAP see National Forest Action Plans NGOs see non-governmental organizations NGT see National Green Tribunal Nixon, Rob 28 no-fault liability 329 non-governmental organizations (NGOs) 104–5, 260, 278, 458 North American Free Trade Agreement (NAFTA) 33 nuclear energy and liability civil liability and nuclear law 324–8 core principles channelling of liability 329–30 grant of exclusive jurisdiction 331–2 limited liability 330–31 no-fault liability 329 temporal limits on liability 331

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486 Research handbook on law, environment and the global South overview of 322–4 nuclear law 324–8 nuclear liability law inequitable political economy of 332–7 international environmental law vs. access to justice 342–3 inter-generational equity 341–2 overview of 338–9 polluter-pays principle 339–41 nuclear liability new model right to recourse against suppliers 344–5 unlimited liability 343–4 Nuclear Safety Authority (ASN) 336 OECD see Organization for Economic Co-operation and Development Oleum Gas Leak case (1986) 139 Open-Ended Working Group 121, 123, 127–8 Organization for Economic Co-operation and Development (OECD) 115 Organization of African Unity 114 ostensible neutrality pitfalls xxii–xxiii PACE see Partnership for Action on Computing Equipment Panchayat Extension to the Scheduled Areas Act, 1996 (PESA) 277 Paris Agreement 22 Paris Convention on Third Party Nuclear Liability (1960) 326, 327 Partnership for Action on Computing Equipment (PACE) 115 Partnoy, Frank 54 Patel, Chiman 386 Patkar, Medha 373, 386 Patnaik, Naveen 428 PEFC see Programme for the Endorsement of Forest Certification personality theory 173 PESA see Panchayat Extension to the Scheduled Areas Act, 1996 PLIA see Public Liability (Insurance) Act Polanyi, Karl 51 polluter-pays principle 339–41 poverty vs. land rights vs. wildlife conservation in Kenya 178–80 see also land rights, livelihoods, and poverty PPPs see public private partnerships practical pluralism 12

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Prevention of Food Adulteration Act (1954) 403 Price-Anderson Act (1957) 333 primum non nocere 11 prisonfare programme 34 private civil liability mechanisms 325 private-public partnerships 49 privatization 49–56 Problem of Ethics of Rights 13 Problem of Imagination 12 Problem of Loyalty 13 Problem of New and Unforeseen Technologies 12 Problem of Original Position 12 Problem of Owing 12 Problem of Righteousness 13 Problem of Rights 13 proclaimed absconders 142 producer-consumer-investor cooperative 74 producer-consumer-prosumer 73 Programme for the Endorsement of Forest Certification (PEFC) 241 property rights 60 Protocol of San Salvador (1988) 92 Public Liability (Insurance) Act (PLIA) 145 public private partnerships (PPPs) 52, 115, 464, 465 Pyne, Stephen 57, 63 QCI see Quality Council of India Quality Council of India (QCI) 445 quality of environment impact assessments 444–5 quantitative easing 34–5 radical ecological democracy (RED) 83–4 radical well-being alternatives alternatives 65 cultural diversity and knowledge democracy 67, 80–81 direct and delegated democracy 67–72 ecological integrity and resilience 67–8 economic democracy 67, 72–8 overview of 64–5 social well-being and justice 67, 78–80 Ramesh, Jairam 416 Rampal Power Plant Project 212–26 environmental impact assessment 212–14 precautionary principle 218–24 contingency measures 222–4 definition of 218–19

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Index 487 impact on environment and human health 219–21 potential harm, public interest 221–2 role of judiciary 221–2 substantive law of Bangladesh 219 size and location of project 214–18 authorities concerns 216–17 content issues 217–18 legal obligation 215–16 strength and weaknesses of 228–30 transboundary impact of 224–6 Rawls, John 8 RC COP7 see Conference of the Parties to the Rotterdam Convention Reagan, Ronald 42, 43 recycling loophole 116–17 RED see radical ecological democracy REDD+ see reducing emissions from deforestation and degradation reduce, reuse, recover, recycle and remanufacture (5-Rs) 466 reducing emissions from deforestation and degradation (REDD+) 245–8 reductive flattening process 42 re-engineering EIA 439–41 Reid, Julian 22 rentier economy 199–201 representative democracy 68 rethinking environmental law A-historicism xxii–xxiii development challenges and alternatives xxiii–xxiv equity and human rights xxiv–xxvi ostensible neutrality pitfalls xxii–xxiii Rights of Mother Earth (Pachamama) 30, 31 right to access to water in South Africa access to water where there was no access before 356–8 challenges appropriate financing 368–9 governance 368 implementation gap 369 nuanced approach to payment for services 369 Constitution of the Republic of South Africa (1996) 350–51 cross-cutting issues sufficient water 366–7 water quality 367–8 deliberate restriction of right to water disconnection for non-payment 359–61 restriction of water services, operational purposes 358–9

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free basic water (FBW) strategy 355–6 legislative and policy framework 353–6 minimum core approach 351 reasonableness approach 351 restriction of right to water infrastructural breakdown 362–3 slow onset restriction of water 365–6 unexpected emergency situation 363–5 Strategic Framework for Water Services 352–3 Water Services Act 354 Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act 2013 (RTFCTLARRA) 194–6 Right to Information (RTI) Act 440–41 right to water in international law 349–50 Rio Declaration (1992) 9 Rissman, Burton 48 Robinson, Joan 459 Roman law 11 Roundtable on Sustainable Palm Oil 55 RTFCTLARRA see Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act 2013 rule of constitutional law 98–100 Sanyal, Kalyan 453, 474 Saramaka People v Suriname 99 Sarbanes-Oxley Act (2002) 53 Sardar Sarovar Project (SSP) approach to river control 380–82 background details of 378–80 conundrum of multiple implementing agencies 382–3 cost factor and cost-benefit methodology 388 judicial interpretation 388–93 legal action course 388–93 NGOs, political parties and eminent/concerned citizens 385–7 overview of 371–2, 376–8 project affected, displaced and resettled population 383–5 Supreme court legal cases and order/judgments 390–93 techno-managerial model 380–82 Sawhoyamaxa Indigenous Community v Paraguay 107 Scargill, Arthur 414 SC COP7 see Conference of the Parties to the Stockholm Convention

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488 Research handbook on law, environment and the global South Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act (2006) 249, 272 Scott, James 64 SDGs see Sustainable Development Goals SDR see Special Drawing Rights SE4All see Sustainable Energy for All initiative SEA see strategic environmental assessment Second World War 14 Sent, Esther-Mirjam 41 Serengeti National Park, Northern Tanzania 187–8 SEZs see Special Economic Zones SFM see sustainable forest management SFWS see Strategic Framework for Water Services Shadow World: Inside the Global Arms Trade (Feinstein) 426 Sheth, Pravin 384 Singh, Manmohan 259 Sinha, Yashwant 453 Social and Economic Rights Action Center (SERAC) 93, 100 The Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria 339 social justice 29–31 Social Standards initiative 246 social well-being and justice 67, 78–80 socio-economic development vs. environmental protection 96–8 solid waste management (SWM) 456–7, 470–72 Solid Waste Management Rules 2016 470–72 Sorabji, Soli 143 South Africa, right to access to water see right to access to water in South Africa Special Drawing Rights (SDR) 327 Special Economic Zones (SEZs) 194–5, 200 SSP see Sardar Sarovar Project Steiner, Achim 111, 130 Stockholm Convention on Persistent Organic Pollutants 115 Stockholm Declaration (1972) xvi, 19 strategic environmental assessment (SEA) 229 Strategic Framework for Water Services (SFWS) 352–3, 354 Strategic Framework on the Implementation of the Basel Convention 2012–2021 118 Subhash C Pandey v Municipal Corporation Bhopal and Others 409

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Subhash C Pandey v Union of India and Others 408 Summers, Larry 116 Sundar, Nandini 431 Supreme court legal cases and order/judgments 390–93 surplus labour force 453 sustainability transitions 2 sustainable development Brundtland Commission 19–20 International Energy Policy description of 313–15 international human rights law 317–20 need for an international legal framework 315–17 sustainable development law 317–20 Sustainable Development Goals (SDGs) 14, 23–6 Sustainable Energy for All initiative (SE4All) 314 sustainable forest management (SFM) 239–42 sustainable forests 239–42 sustainable pastoralism 75–6 Swachh Bharat Mission (2014) 463, 467–70 SWM see solid waste management Technical Working Group (TWG) 119 temporal limits on liability 331 TFAP see Tropical Forest Action Plan Thompson, Janna 9 Timbaktu Collective 75 tort law vs. civil liability 325 trade bureaucracies 50 Trade-Related Aspects of Intellectual Property Rights (TRIPS) 39 Transatlantic Trade and Investment Partnership (TTIP) 33 transboundary movement of hazardous waste BAN Amendment 115–18 capacity paradigm 110 contestations over ‘hazardous’ 119–20 hardening/softening North-South differentiation 120–21 intrinsic hazard criterion 120 justice paradigm 110 North-South difference 109–12 problem of 112–15 from waste to resources 121–6 transcultural neoliberalism 57 transfer of ownership of land 198 transformed world, law and policy in 84 transnational comparative constitutionalism 94 transnational corporations 26, 38

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Index 489 transnational mega-corporations 50 transnational private governance 242 transnatural neoliberalism 57 Tredegar Medical Aid Society 42 tribal communities (adivasis) 249, 252, 256–7, 263, 293, 296 tribal rights forest resources and 276–8 Indian Supreme Court and 279–82 TRIPS see Trade-Related Aspects of Intellectual Property Rights Tropical Forest Action Plan (TFAP) 237–8 Truman, Harry 21 Trump, Donald 46, 86 TTIP see Transatlantic Trade and Investment Partnership TWG see Technical Working Group UCC see Union Carbide Corporation UCIL see Union Carbide India Limited UDHR see Universal Declaration of Human Rights of 1948 UK Ordnance Survey 56 ULBs see urban local bodies UN Commission on Human Rights 112 UN Committee on Economic, Social, and Cultural Rights 350 UN Conference on the Human Environment 19 UN Conference on Trade and Development (UNCTAD) 238 UNCTAD see UN Conference on Trade and Development UN Environment Programme (UNEP) 20 UNEP see UN Environment Programme UNESCO World Network of Biosphere Reserves 208 UNFCCC see United Nations Framework Convention on Climate Change UN Food and Agriculture Organization (FAO) 17, 237 UN Framework Convention on Climate Change 22 UN Intergovernmental Panel on Forests 240 Union Carbide Corporation (UCC) 141 Union Carbide India Limited (UCIL) 141, 336 Union of World Scientists 2 United Nations Commission on Sustainable Development 319 United Nations Conference on the Human Environment 15, 91

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United Nations Environment Programme (UNEP) 109 Global Mercury Partnership 115 Global Partnership on Waste Management 115 United Nations Framework Convention on Climate Change (UNFCCC) 10, 103, 233 United Nations Human Rights Council 350 United Nations Summit on Environment and Development 117 Universal Declaration of Human Rights (UDHR) 88, 317, 349 unlimited liability 343–4 UN Paris Agreement 2015 3 unsustainability, in Anthropocene 26–9 urban local bodies (ULBs) 402–4 US Atomic Energy Commission 333 US Federal Reserve Act (1913) 53 US Nuclear Regulatory Commission 340 US’s Investment Company Act (1940) 48 Vaish, Rajnish 385 Vedanta mining case assertive communities 283–4 tribal rights and Indian Supreme Court 279–82 Vida Digna jurisprudence of the Inter-American Court 107–8 Vienna Convention on Civil Liability for Nuclear Damage (1963) 326, 327 Vikalp Sangam process 82–3 village assembly 298 village forest 294 Vogel, Stephen K 50 Voigt, Christina 19 Washington, Haydn 25 wastewater pricing 406–7 wastewater reuse and recycling 404–6 wastewater use, urban and peri-urban areas framework of human rights international and domestic perspectives 398–9 opportunity/challenge 400–402 synergy/conflict among rights 399–400 judiciary’s approach balancing rights, prohibiting use 407–8 environmental law principles 409–10 incomplete solution 410 searching for alternatives 408–9 overview of 396–7

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490 Research handbook on law, environment and the global South regulatory framework in India gap between existence and operationalisation 402–4 wastewater pricing 406–7 wastewater reuse and recycling 404–6 water access 4–5 water-based resources 4–5 Water, Energy, Health, Agriculture and Biodiversity (WEHAB) 317 Water Prevention and Control of Pollution Act 1974 (WPCPA) 403, 407, 408 Water Quality Assessment Authority 403 water scenario in India 371–2 Water Services Act (WSA) 354 WCED see World Commission on Environment and Development weak sustainability 26 WEHAB see Water, Energy, Health, Agriculture and Biodiversity Weiss, Edith 342 well-being alternatives, ethical foundations of collective commons and solidarity with individual freedoms 82 dignity and creativity of labour and work 83 diversity and pluralism 82 ecological integrity and rights of nature 82 equity, justice, and inclusion 82 non-violence, harmony, peace 83 resilience and adaptability 82 right to and responsibility of meaningful participation 82 simplicity and sufficiency 83 subsidiarity, self-reliance and ecoregionalism 82–3 wildlife conservation environmental easements 177 fugitive resource 186 land rights and 169–71 congruences and incongruences 176–8

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first occupancy theory 173 full liberal ownership 174 Hobbesian state of nature 173 interface between 186–8 labour theory 172 personality theory 173 property rights 173–4 overview of 169–71 vs. poverty vs. land rights in Kenya 178–80 rationale for 174–6 regime of 184–5 resource governance 180–88 Wildlife Conservation and Management Act (1976) 181 Wildlife Management and Conservation Act (2013) 183, 184 Wild Life Protection Act (1972) 254 Wilson, Mark 20 Workfare programme 34 World Bank Worldwide Governance Indicators 242 World Commission on Dams 312, 373, 376 World Commission on Environment and Development (WCED) 14 World Heritage site 188 World Meteorological Organization 86 World Trade Organization (WTO) 25, 33 World Wide Fund for Nature (WWF) 240 WPCPA see Water Prevention and Control of Pollution Act 1974 WSA see Water Services Act WTO see World Trade Organization WWF see World Wide Fund for Nature Yellowstone National Park 287 Yosemite National Park of California’s Sierra Nevada Mountains 287 Žižek, Slavoj 39

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