Series Editors Dr Robert Fisher Dr Nancy Billias
Advisory Board Dr Alejandro Cervantes-Carson Dr Peter Mario Kreuter Professor Margaret Chatterjee Martin McGoldrick Dr Wayne Cristaudo Revd Stephen Morris Mira Crouch Professor John Parry Dr Phil Fitzsimmons Paul Reynolds Professor Asa Kasher Professor Peter Twohig Owen Kelly Professor S Ram Vemuri Revd Dr Kenneth Wilson, O.B.E
A Critical Issues research and publications project. http://www.inter-disciplinary.net/critical-issues/ The Ethos Hub ‘Environmental Justice and Global Citizenship’
Connected Accountabilities: Environmental Justice & Global Citizenship
Oxford, United Kingdom
© Inter-Disciplinary Press 2009 http://www.inter-disciplinary.net/publishing/id-press/
The Inter-Disciplinary Press is part of Inter-Disciplinary.Net – a global network for research and publishing. The Inter-Disciplinary Press aims to promote and encourage the kind of work which is collaborative, innovative, imaginative, and which provides an exemplar for inter-disciplinary and multidisciplinary publishing.
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 without the prior permission of Inter-Disciplinary Press. Inter-Disciplinary Press, Priory House, 149B Wroslyn Road, Freeland, Oxfordshire. OX29 8HR, United Kingdom. +44 (0)1993 882087
British Library Cataloguing in Publication Data. A catalogue record for this book is available from the British Library.
ISBN: 978-1-84888-014-6 First published in the United Kingdom in eBook format in 2009. First Edition.
Ecological Survival. Participation and Citizen Activity: Case Studies from Poland and the UK Radoslaw Stech NGO Participation in Investment Treaty Arbitration Tomoko Ishikawa Legal Frameworks to Support Community-based Natural Resource Management Erika J Techera From Margins to Margins: Cultural Integrity. Calling for Radical Transitions in Industrialised Countries Gert Goeminne and Erik Paredis The Agrofuel Debate: Conflicts between Diverse Environmentalisms Klemens Laschefski Public Consultations and Democracy: The Case of GMOs in the EU Marko Ahteensuu Environmental Information. and Future Transcripts in the Historical Home-Based Health Narratives of Nova Scotia and West Virginia Deborah Stiles ix
.Table of Contents
Preface Silvaram Vemuri Significance of Connectedness for Environmental Justice and Participation Sivaram Vemuri The Value of Nature: A Holistic Perception Arvind Jasrotia The Concept of Ecological Debt: An Environmental Justice Approach to Sustainability.
Relevance of Labelling Localised Products in Southern Countries: A Case Study of Dried Shellfish in Saloum Delta Biosphere Reserve (Senegal) Omar Sarr Developmental Projects and Violence in Rural Brazil: The Case of Hydroelectric Dams Andréa Zhouri and Raquel Oliveira Mechanisms for Achieving Environmental Justice in Darfur Seisei Tatebe-Goddu
These include the responsibilities and rights of individuals. it seems. increasingly. groups within society. Or. connections between thought and action. to Africa including Darfur and Senegal.
. A range of different accountabilities are identified and explored here. Case studies are taken from many and varied parts of the world. the theme of connections inevitably runs through all of the chapters in the book. We are all accountable. of groups. These papers are all based on earlier versions presented and discussed at the Ecological Justice and Global citizenship conference in Mansfield College. and the importance of connectedness and participation.are obviously also intertwined. breakdown of traditional family and social groupings. Accountabilities to each other and to the environment. from family. which cover conceptual.accountability and connectedness . from the environment.with immigration. then they are not likely to recognise their accountability to society. Linking the chapters of this book is the identification of so many connections that need to be in place. Where people become disconnected from society. and between people and the environment.Preface Sivaram Vemuri
The chapters of this book discuss a wide range of topics all related to environmental sustainability. A number of chapters describe instances where disconnections are evident. of societies. While ‘connectedness’ itself is explored in detail in a single chapter. conflicts within the environmental debate. And not least. however. of governments. we are all connected. In today’s world. there are many types and causes of disconnections. connections between consumers and producers. environmental debt. Poland and Finland. to the environment. The papers have been loosely grouped into three sets. from European states such as the United Kingdom. and working well. within countries and internationally. The two themes . connections between investors and host states. Connections between people and the environment. In the same way. connections between people and government. from government. legal and social/economic topics. Oxford in 2008. The first four chapters grapple with concepts such as environmental ethics and the value of nature. are also linked by two intertwining themes of accountability and connectedness. Connections between people: family. for environmental sustainability to be achieved. disconnected. They provide an indication of the breadth of research and debate on environmental issues and provide a number of interesting perspectives. in order for environmental justice. All of the chapters. through to Brazil and also Atlantic Canada and Appalachia. Between people .
nature itself needs to be given a value: If something valuable is destroyed when nature is destroyed.sustainable or unsustainable. between groups and society. While globalisation has allowed the formation of new connections between individuals and groups across the world. The findings highlight a ‘democracy deficit’ in the three key areas of
. in fact. in order to build an environmental ethics.between individuals and groups. Siva Ram Vemuri examines a paradox. Ecological debt assigns value to the networks of environmental and social links . Arvind Jasrotia’s chapter explores the philosophical issues involved in the environmental debate. then the connection between people and nature. The government is accountable to international laws as well as to the community. using Finland as a case study. The chapter argues that the concept of ecological debt has the potential to change the way commodities are valued and provides a more environmentally just approach to sustainability. other perspectives see the expansion of agrofuels as threatening traditional societies and vulnerable ecosystems in developing countries and promote the reduction of energy consumption in developed societies.within and between communities as well as to the environment.and identifies the accountabilities . The next four chapters explore legal and participation issues. one chapter discusses NGO participation in investment treaty arbitration in Brazil. and the other examines legal frameworks for community-based environmental initiatives.‘agrofuels’ in particular .to illustrate conflicts emerging between them.viii
______________________________________________________________ The first chapter. While ecological modernization promotes agrofuels as a viable alternative to fossil fuels and recommends regulation to control the agrofuel trade. and also between thought and action. there are also a growing number of disconnections .one of the key themes that run throughout this book. Ecological debt values the connections . In the following chapter. Once an appropriate value is applied to nature. Two case studies explore participation and public consultation in environmental issues in Europe. looks at the concept of ‘connectedness’ and ‘disconnectedness’ . and therefore the accountability of people to the environment becomes more concrete. The chapter by Marko Ahteensuu looks at the public consultation process surrounding the release of GMOs. then nature itself must have intrinsic value. proposing that. These are demonstrated by a diminishing engagement of and participation by citizens and are rapidly becoming detrimental to not only social justice but also environmental justice.involved in producing a commodity. The chapter argues for greater promotion of connectedness to improve social and environmental outcomes. equitable or not . Gert Goeminne and Erik Paredis provide an overview of the concept of ‘ecological debt’ and its potential effect on the sustainability debate. The chapter by Klemens Laschefski compares various streams of environmental thinking using the debate about alternative energy production .
The topics range from narratives of women from Nova Scotia and West Virginia. Issues of cultural integrity and ecological survival are examined through oral history narratives of rural women who lived at the margins to seek lessons for future generations. and in particular local and/or traditional knowledge in natural resource management. which can provide the tribunals with a broader perspective on issues involved in the dispute. now have the discretion to accept submissions from third parties. to conflicts caused by the expansion of hydroelectric power generation in Brazil and the dilemmas posed by environmental crimes perpetrated during the conflict in Darfur. This type of deficit may have an effect on citizen participation in the consultation process. Issues relating to quality and traceability. The discussion ranges from environmental justice to international human rights law and sustainable development. These tribunals. Radoslaw Stech provides a comparison between two case studies of the compliance with requirements laid down in the Aarhus Convention for access to information and for participation in decisionmaking. to the labelling of hand processed shellfish in Senegal.Sivaram Vemuri
______________________________________________________________ availability of information. They discuss the impact of the encroachment of large scale exploitation of natural resources on marginal
. as well as economic efficiency and conservation of both biological and cultural diversity are discussed. The last four chapters provide the reader with windows into some compelling case studies from around the world involving issues related to environmental sustainability. investigating disputes between foreign investors and host states. such submissions highlight disconnections between government and local people. including NGOs. Underdevelopment. unhealthy populations and ravaged landscapes in Atlantic Canada and Appalachia provide a backdrop for the paper by Deborah Stiles. Omar Sarr’s chapter examines the relevance and effects of a labelling initiative on traditional hand processed shellfish products from the Saloum delta in Senegal. The case studies from Poland and from the UK relate to waste deposit sites that may be detrimental to the local environment. Andrea Zhouri and Raquel Oliveira focus on the expansion of electric power generation in southeastern Brazil. possibility of citizens affecting decisions and the transparency of the decision-making process. Similarly. In a number of cases. Tomoko Ishikawa investigates the ability of investment treaty arbitration tribunals to accept submissions of amicus curiae briefs by NGOs. They also highlight the importance of connections to community and to the environment. The chapter by Erika Techera provides a comprehensive summary of the legal theories. principles and concepts involved in formulating legal frameworks to assist community-based environmental management practices.
and accountability. While the chapters in the book identify a number of difficult issues. as well as the effects of a large displaced population. Seisei Tatebe-Goddu looks at the issues of environmental crimes. they also provide hope and inspiration. and an increased recognition of the value of nature and the value of traditional and local knowledge. while others suggest ways forward.Net. Nancy Billias for bringing this to reality. but also. they indicate further steps that can be taken towards environmental and social justice and sustainability into the future.
. of the need to ensure environmental sustainability. related social issues that also need to be addressed. Together they provide some background to the current situation. By promoting connectedness . I am grateful to Christine Edward of Charles Darwin University for her invaluable assistance in putting this book together and take this opportunity to thank the contributors and the Director of Publications. on many levels. Using the case study of Darfur. It highlights a deficiency in the current International Criminal Court legislation and proposes some possible alternatives.x
______________________________________________________________ economic areas occupied by ethnic minorities undertaking family-based agriculture. not only into the pressing environmental issues of the present. They deliver a number of important insights. including deliberate destruction of farmlands and contamination of drinking water sources. in many cases. InterDisciplinary. Some explore initiatives being undertaken. They show that there has been an increased awareness over the past thirty or so years.and therefore participation .
These institutions are regarded as ‘organisational skins’ that provide the necessary soul for promoting justice. Moreover.The Significance of Connectedness for Environmental Justice and Participation Sivaram Vemuri
Abstract Globalisation. the paper calls for strategic involvement in significantly promoting connectedness. Management is about getting things done in an appropriate manner. However. Citizenship participation is also waning rapidly. ***** 1. especially through communicative channels and gadgets. Such a received wisdom has created an impression that the individual is the legitimate constituent of the citizenry and participation and justice is best served through individual’s pursuit of self-interest through efficient means. markets and bureaucracies. workings of the two institutions of the twentieth century. at one level. as well as thought and action . has produced closer proximity between individuals and groups. if anything. But at another level individuals in the society feel a sense of despair.will be examined. legal restrictions. Although there is little disagreement with the significance of human connectedness. globalisation. the gulf between what people say and do is increasing. Many blame the distancing between talk and action and its ramifications on globalisation. the group and society. The global connections and networks are closer than ever before. strategic management. Moreover. Key Words: Connectedness. globalisation has joined people more so than ever before. The concern of this paper is: Have individuals and societies become numb? Several forms of disconnections between the individual and the group. But environmental injustices prevail. In the field of sustainable development many point to the increasing obsession governments have with the idea of global thought and local actions. became the focus of attention. This paper explores reasons for such continued prevalence of environmental injustices and lack of public consciousness. Introduction Connectedness is an essential prerequisite for effective provision of environmental justice. As connectivity affects genetic communication within a population.
. the nature of inquiry for sustainable futures was reduced from what needs to be ‘done’ to what needs to be ‘managed’.
2. Individuals need to be connected to achieve higher levels of development. What does connectedness mean? How is connectedness the common platform for achieving environmental justice and global citizenship? The second section of the paper relates to three forms of justice . It is the dual focus on the individual utilities and society’s welfare that is reflected in terms of aggregation and representation. This paper is about the involvement of people. Connectedness is considered a necessary condition for empowering citizenship. they become disconnected to enjoy the fruits of growth.2
The Significance of Connectedness
______________________________________________________________ People are at the very core of the management process. In the third section. no matter how scary things may become. procedural and intergenerational. Through formation of alliances there is greater efficiency in production. In the final section of the paper. It is a sense that. Individualism and democracy have been the fundamental pillars of much of the global economic success. or what can be termed as temporal. Connectedness Connectedness: is a sense of being a part of something larger than oneself. Such an empowerment is essential for deliberating and achieving environmental justice. links between connectedness and global citizenship are explored. there is overwhelming evidence that mechanisms based on selfregulating market processes. Nowhere is this more explicit than in the fields of economics and politics. as well as streamlined public bureaucracies
. The paper suggests the need for connectedness in simultaneously achieving justice on these fronts. While ambition drives us to achieve. to affiliate. It is a sense of belonging.distributive. It is that feeling in your bones that you are not alone. 1 When one refers to connectedness there is simultaneity of focus about the individual and the group. there is a hand for you in the dark. At the same time. to take strength and to grow through cooperative behaviour. The first section is devoted to connectedness. to enter into mutual relationships. a call is made for strategic inquiry to enhance connectedness in every field of inquiry. In particular. Although societies have experimented with several mechanisms and processes. or a sense of accompaniment. To this effect connectivity exists in two forms .connected and disconnected. it is about how they are increasingly being managed to be involved and the effects this is having on environmental justice and public participation. connectedness is my word for the force that urges us to ally. The paper is organized as follows.
but also in creating scientifically rigorous and universally applicable mechanisms and processes.Siva Ram Vemuri
______________________________________________________________ involving many levels of representations with a common purpose of pursuing rational economic behaviour became the clear winners. although later the concept has been re-jigged against the background of realism. costs were never mentioned until such time as publications concerning costs of growth gained attention. For example. was costless. Many recognised the realities of incurring costs in pursuit of development and responded intellectually by bringing in other social. Calls for sustaining development were made and in 1987 ‘sustainable development’ as a concept was conceived. Roles of the markets and governments continued to remain the focus of attention of discussions. social and the environmental . It is now represented through three disciplines . such as increases in national income. Initially it was construed as emphasising environmental costs. A commonly recognised definition of sustainable development emerged from the Brundtland Commission report. identification of the issue of concern became the focus. pursuing economic development through growth-promoting factors. When markets failed to deliver envisioned economic betterment. markets was futile and calls were made for creating policies to ensure markets function efficiently. environmental and ecological disciplines and extending the economic development framework by re-examining the micro-foundations of macroeconomic analysis.the so-called ‘Triple Bottom Line’. Not only is there an intergenerational time span incorporated into its notion. It is also aggregated differently. as ‘development that meets the needs of the present. national employment and reducing inflation. The limiting factors to growth and development became foci of realities with publications such as ‘Limits to Growth’ of the Club of Rome. it was acknowledged that the debate about plan vs. without compromising the ability of future generations to meet their own needs.’2 For many proponents of aggregate economic analysis.’ Representation and aggregation emerged as issues of concern once again in the context of sustainable development. but also
. and social and cultural as well as political costs have been incorporated into sustainable development. In prescribing policies towards pursuing developments. A transformation of concepts took place without much change in the fundamental thought process. Analysis of underlying forces became the focus of attention not only to help transmit individual needs to societal concerns at large. At another level. Hirsch’s ‘Social Limits to Growth’. Bauer’s ‘Dissent on Development’. economic development was promoted as ‘growth plus fundamental changes in the structure of the economy.the economic. without any focus on micro-foundations.
the human ingenuity led to the creation of simultaneity of concern between the individual and the society on the one hand and environment and economics on the other. The mix that has ultimately eventuated was the idea of unifying economics with environment. What Happened to Connectedness? Connectedness met the same fate as all other concepts in the fever that gripped the technocracy and bureaucracy. Evidence-based decision-making was embraced for achieving efficiency of operations. the ‘influence of economic forces’ are recognised to ‘mould the character of humans’. There are number of evidences that the political ramifications on resource allocation and distribution are increasingly being acknowledged in terms of environmental records. However such actions had an influence on environmental justice. Partly the reason was an obsession with exactness and partly a preoccupation with globalisation of issues related to environments. ‘But separatism won’t work. you’ll end up leaving so many people out that they’ll be undoing all the good and undermining your efforts. The influence of such a complex mix of politics and economics is resulting in relying on organisational skins for improving the records for achieving environmental justices. boosting wages with the same old dirty jobs inevitably ends up hurting the poor. On the environmental side. A recurring theme in the sessions I attended was encouragement for entrepreneurs and activists to gain a
. The power of a solution that bridges economic and environmental development. ‘For at least a generation.3 through use of money and monetary instruments. accelerating problems like cancer and asthma. injustices and above all unfairness could not be converted into thinking. Another relates to the creation of ‘green jobs’. a sense of generality about these topological spaces prevails. activists of all constituencies have believed they could fix their problems on their own. says Jones. The mounting evidence of statistics concerning environmental crisis. is that it has the potential to unite traditionally disparate factions of the progressive movement. One such topology is recurrence of themes about developing an understanding between businesses and environmentalists.’ he says.’ On the social-justice side.4 3. political and geographical dimensions are transgressed. Actions and observations could not be converted into knowledge. explains Jones. Although connectedness is one of the principal topological properties used to distinguish topologies. While the power of economics is not only recognised and indeed acknowledged as influencing political outcomes.4
The Significance of Connectedness
______________________________________________________________ boundaries represented through historical. As a matter of fact.
and community revitalization. The practical focus of green jobs was a shot in the arm for long-time environmentalists feeling the pressure to achieve rapid. Supporters say that truly green jobs can’t be outsourced. Others who’d never heard of green jobs found it an entrée into a larger movement they’re only just beginning to approach. and vitalise communities. this conference offered stories of people like Bracken Hendricks. technology. whose commitment to organic foods for her food-allergic son . I also saw that the green jobs movement would depend on the same sort of reframing we’ve seen in the larger environmental movement.bought at pricey health food stores . The clear message was that the green jobs movement is like a speeding train on which everyone has a seat. environmental justice. and racially divided subsets of each. Many presenters were using green economy as a way to further the causes they’d championed for decades: issues like labour rights. are available to the poor. who decided to become a force for change after working with hazardous chemicals on a construction site. ending poverty. several sectors of society must do just that if crucial highlevel policy change is to occur. Tied as much to environmental justice as conservation. Those include conservation. and La Donna Redmond. policy. to the tune of half a million dollars) often grew out of a person’s day-to-day experience with an environmentally hostile reality. In fact. provide living wages.opened her eyes to the food desert that kept others in her community from having access to healthy foods. It struck me that the organisations that had mastered this strategy (in one case. massive change. finding the cracks that could fund green jobs. if not more so. I saw it as a step toward linking so many elements of the environmental movement that have thus far been moving in parallel but not always in union.Siva Ram Vemuri
______________________________________________________________ deep understanding of how their communities work and how their governments spend. Green collar jobs advocates throw economic justice into the
It would indeed be impossible to fully come to grips with it totally. There is a level of consciousness to acquire. It is not having a very significant effect on knowledge. let alone prescribe comprehensive policies to influence it. At one time.5 These movements. beliefs and values. numbers and above all attempts to embrace small and efficient means to make a change in the way people act has not translated into thinking. they are obliged to pile up over-whelming weights of documentation relating to human action . It is becoming pragmatism as it has now more to do with ideas. What they are working with is circumstantial evidence. This is mainly a result of globalisation of the human labour force and is a net effect of familial. It is therefore no surprise that knowledge ‘is more effectively used today to justify wrong being done than to prevent it’. maintain and rejuvenate connectedness in the event of globalisation. The distinctions between imaginations and realities are blurred. Globalisation has resulted in disconnecting knowledge and information from actions. The connectedness is being redefined. A disconnect has emerged between information and ideas. It is the imagination of the mind that allowed for such a phenomenon to occur. A chasm is engulfing the mind. This sort of material carries the forces of neither history nor creativity. The core essential ingredient of knowledge creativity. specify. pursue.6 Another form of disconnect is what can be termed disconnectedness arising from diaspora. Nowadays imaginations and perceptions are considered real. little of it even illustration. In place of real evidence. real world complexity was therefore reduced in its dimensions into manageable parts. The meaning of morality is no longer embedded in ideas but in recognising.6
The Significance of Connectedness
______________________________________________________________ mix. It no longer has space and time constituents. reading. reviewing.none of which is proof. relating to daily lives and transforming actions through reviewing and positioning one’s own actions.
. The net result has been to create a sense that knowledge about environmental injustices is on the rise. How often do we hear of statistics and evidence being the real test of injustice and exploitation? Evidence based environmental justice is becoming extremely popular. historical and socio-cultural distancing. It no longer is about acquiring knowledge as much as managing the knowledge one possesses. What is real and what is an imaginary? Why does the world we live in need to be tested by contemporary experiences? Reality in its entirety is complex. especially as everything depends on everything else. namely imagination and experiences is confusing at best and being numbed deliberately. asking us to look at environment through an economic lens and the economy through an environmental lens. Indeed it was such imaginations that gave rise to the existence of disciplines.
Aristotle taught ‘all things have a potential for development specific to their nature. supports advanced specification of policy prescriptions and enables the prospect of promoting uniformity of vision between global and local connectivity. Analysts at IMF and the World Bank often argue that crisis-hit…nations need to introduce ‘good governance’ into their societies. ‘anything
.’9 Because of its popularity. what is justice? Aristotle’s attempted to define justice by identifying several categories of justice.’7 Another form of disconnectedness is a result of organisational change.including justice in general and environmental justice in particular .and is greatly reinforced through global and communication revolutions. this is considered a ‘neutral’ framework and therefore universally just to pursue. Good for whom and for what? Left unspoken is the fact that ‘good governance’ often means ‘good capitalist development. This view underpins every aspect of contemporary deliberation . 4. Justice Several theories of justice attempt to answer the question. it becomes the basis of theoretically fixed measurements . It is in this context that the need for pursuing visions of ‘thinking global and acting local’ came into existence. ‘the ‘good’ of an acorn is to develop into a tree’.Siva Ram Vemuri
______________________________________________________________ It is meant to create the impression of evidence by the force of weight.’8 There is a perception that increasingly has become a reality that self interest of the individual and the firms and bureaucracies is the basic economic motive that fundamentally conditions all activity. but these are too fragile to produce anything other than passivity. He distinguished between distributive and corrective justice.11 Accordingly. ‘They claim to produce truths. Whether this is credible or not. property rights. This impression of knowledge leads to passivity in the social scientist. Organisations are increasingly responding to philosophical constructs and methodological underpinnings which advocate a dominant view that the ‘current Western system of free markets. the achievement of which is its particular good’.10 The existence of a value-neutral framework. along with its associated ramifications. and the rule of law is in fact the best hope for environmentally sustainable development. wherein public choice transforms ‘economic analysis into other realms of human action.’ And that ‘good governance’ is brought about by good politics and good culture. But the phrase is vague and vaguely understood.a social truth has theoretically been established.
arguments of individual persuasion and relatively free departure to a more congenial State are more practical than if they were made in a modern society. it is always a task to be achieved’. which can be captured in a formula once and for all. to achieve their maximum potential appropriate development. ‘a just law… needs to be moulded in reason. She argues. Corrective justice seeks to restore equality when this has been disturbed… which assumes that the situation that has been upset was distributively just’.15 That is. R W M Dias notes ‘abstract philosophy played very little part in the practical outlook of the Roman lawyers.29 Friedrich notes that ‘justice is never given.30 Laura Nader disagrees with the juxtaposition of discourse on law and order to discourse on social justice in America.18 Universal justice is ‘a morality higher than that embodied in ‘good laws’’.particular and universal. including equality’. by modern standards. who were content for the most part to take over Greek philosophy’. for the maximum liberty of action is best guaranteed by legal limitations’. he ‘recognised the need for freedom from abuse of power…that there are limits to the use of law as an instrument of power’.31 She notes that. a Roman orator. unclouded by passion as well as intelligible’. ‘we are slaves of the law in order that we might be free’.14 A ‘good’ law is then one that enables its subjects.28 R W M Dias writes that ‘justice is not some ‘thing’.17 Aristotle defined two levels of justice .32
.12 He ‘taught that human beings [too] have an inherent potential for good.21 However. ‘a just law is one which enables individuals to achieve fullness in their nature in society’. as social creatures. the achievement of which it is the proper function of the State to facilitate’. the ‘question of obligation… and the problem of ‘bad’ laws was little considered by Aristotle’. ‘citizens were to be educated in the constitutional structures of their State whatever its moral qualities’. ‘It is possible to have order without justice’. extremely small political units’ and ‘the politically enfranchised citizen body… [constituted]…a small proportion of the total population’.23 The ‘ancient Greek city-state were.24 Hence.16 Further. a complex and shifting balance between many factors.22 Aristotle’s analyses arise ‘from the political context in which they were advanced’. ‘dwelt on Man’s need for government and inquired into the basis of just government and the purpose and function of law’.13 He ‘saw properly conceived laws as a better instrument for the inculcation of virtue than any realistically probable form of autocratic or oligarchic rule’.19 Particular justice is ‘embodied in particular provisions’.27 Further. ‘fascism may provide order without achieving individual or social justice’.20 ‘Distributive justice is based on the principle that there has to be equal distribution among equals.8
The Significance of Connectedness
______________________________________________________________ which assists this process is ‘good’ for the acorn’.26 Cicero argued that ‘law is the means of achieving just government.25 Cicero. for example. it is a process.
individual rights.47 Two freedoms were important to the development of capitalism and constitutional democracy:48 1. the Church was ‘the ultimate repository of authority’ and ‘interpreter of ‘divine law’ as revealed in the [(Christian)] Scriptures’. but for power to preserve the newly-won stability’. which lasted from about the fifth century AD to the fifteenth century AD.36 Thirdly. ‘need not for freedom.46 It ‘used its power to transform the feudal legal system and its religious aristocracy into a capitalist state based on notions of contract. ‘enfiefed lands had steadily reverted to private property.Siva Ram Vemuri
______________________________________________________________ 5.39 Aquinas was influenced by Aristotelian theory. although there is a duty to obey human laws in so far as they are reasonable.38 Accordingly. Saint Thomas Aquinas developed a theory of law.34 Secondly. Under the Thomist system. known as the ‘Thomist system’ that attempted to ‘fulfil the social need for stability’ as well as retain the authority of the Church.35 In satisfying these two needs. the Emergence of the Merchant Class and Transformation of Feudalism During the feudal period. Feudal Theories of Justice There were three social needs during the feudal period.43 Feudal societies remained relatively self-enclosed. there was a need to establish the authority of the Church by reason and argument rather than force.40 Aquinas also ‘preached… that. ‘the moral obligation to obey fails in the case of a… bad law unless greater ‘scandal’ would result from disobedience’.45 The merchant class began to gain power and emerged as a new middle class that owned much of the land. Greek legal doctrines were unsuitable because ‘to take over heathen doctrines… would have been inconsistent with the authority of Christianity’. property. during the feudal period. and
. the freedom of individuals to enter into contracts and regulate relationships with others. they had become… commodities valued more for their exchange value than for their use value’. The Decline of Feudalism. equality. and constitutional democracy’. Europe became divided into classes. ‘little trade was carried on… because feudal estates produced everything that they needed’. which demands compliance with the occasional unjust law’. ‘the produce of the soil was the main… source of subsistence.44 From the fifteenth century.33 The first was the need for order ‘following a long period of chaos’.41 That is. and men came to depend on landlords for land in return for specified services’.42 6. there is… a concomitant need to avoid social disruption.37 Land was ‘the source and measure of power’.
Hobbes was responding to ‘the troubled period in England of the reign of Charles I. Locke conceived ‘property’ to be land and personal rights.55 Locke viewed the functions of the State to be slightly more complex.59 John Locke’s writings provided the theoretical accounting for the 1688/99 ‘Glorious Revolution’ in which James II was overthrown and replaced. the ‘sovereign’’. the Restoration’.61 Rousseau was concerned only with ‘the possibility of [formulating] ‘any legitimate and sure principle of government. In the pre-contractual state. jointly. ‘the even and effective protection of natural property rights would be uncertain and unsatisfactory’. growth and rational thought’. ‘The function of government and civil society… is that of providing a sufficiently powerful way of protecting natural rights which existed independently of it’. taking men as they are and laws as they might be’. a time when ‘the maintenance of peaceable order and the avoidance of civil collapse’ was crucial.60 Hence.
The Enlightenment The Protestant Reformation terminated the universal authority of the medieval Western Church and with it some of the instrumental elements of theories such as that of Aquinas. the Civil War.49 In their place.
. freedom.52 The social contract formed the basis of both the purpose and authority of the law. but also be seen to be done suggests both the ideological and material aspects of the rule of law. Locke and Rousseau devised their theories in different political contexts. the contract was therefore with society and not government. later.62 The difference in their socio-political setting may account for the differences of the three social contract theorists.54 In his major work.58 Note that Hobbes. ‘Hobbes argued that the proper purpose of government and law was primarily to guarantee peace and order’.51 The social contract was ‘conceived in terms of a surrender of the power of individuals to a State organisation.10
The Significance of Connectedness
______________________________________________________________ 2. ‘Locke’s concern was not with the perils of ungoverned anarchy but with what he… considered to be the ‘tyrannical’ government of James II’. the freedom to regulate relations with things through property rights. Locke and Rousseau emphasised that the state must abide by the rule of law because people enter into a social contract giving power to the state only to the extent that this satisfies the needs of civil society. the Cromwellian Commonwealth and. by William III and Mary II.57 Rousseau perceived ‘the social contract as the basis upon which human beings ‘agree’ to combine in society and which is founded… on the facilitation of the development of potential’. ‘a new order was being constructed based upon notions of equality.56 He concluded. Leviathan.
7.50 Hobbes.53 The idea that justice must not only be done.
67 International law developed in the context of the development of capitalism.69 Since World War II.
. commerce. Social and economic inequalities are to be arranged so that they are both a. After the end of the Thirty Years War. geopolitical relationships between nations’.66 Grotius claimed that the natural (or inherent) law was that of social contract.71 Rawls focused on the ‘idea of ‘justice as fairness’’.72 He conducted the following thought experiment: ‘the choice of just principles for social organisation is to be made by persons who do not know what actual position they are to occupy in society. Each person is to have an equal right to the most extensive total system of equal basic liberties [that is] compatible with a similar system of liberty for all. In 1973. freedom of seas to commercial maritime nations and the principles of free commerce. particularly through colonialism and long-distance trade.65 It stated. and property in the race to colonize the world would be carried out by nations competing as legal equals in the emerging world order’. as opposed to religious influence or doctrine’. trade. consistent with the just savings principle.63 The Peace of Westphalia gave autonomous international status to more than three hundred Holy Roman Empire members. and 8.Siva Ram Vemuri
______________________________________________________________ The Twentieth Century The signing of the Peace of Westphalia at the end of the Thirty Years War in 1648 ‘marked the start of the statist era of world relations’. he formulated two principles of justice.
2. the first being primary to the second:74 1. ‘Territory and its acquisition and control would be the basis of international law. the international human rights regime has also served as an external standard by which a State’s laws and political acts are evaluated.68 International law would try to ensure that… ‘the pursuit of wealth. It ‘established secularised. ‘The Rights of War and Peace’. Hugo Grotius wrote his treatise.70 International law and more particularly. John Rawls published his major thesis. not what their particular interests and inclinations will be’.64 It also contained ‘elements of the modern international legal order’ including peaceful settlement of international disputes. to the greatest benefit of the least advantage. the major efforts to establish the rule of law among nations have been made through the United Nations. ‘A Theory of Justice’ which set out principles of justice and revived the socialcontractarian thinking of the seventeenth century. It also ‘emerged… largely to regulate the colonial efforts of western European nations in other parts of the world’.73 Conducting this experiment. respect for religious freedoms and the rights of sovereigns of respective states to govern their internal affairs.
Environmental Justice Note that land and more importantly. ‘in the context of the concerns of the late twentieth century. Rawls’s ‘just savings principle’ is reflected in contemporary writings on intergenerational justice. they explain that all of these vehicles are limited.
. Under the feudal system.82 This capitalist conceptualisation of private property forms the basis for much of environmental law.12
The Significance of Connectedness
______________________________________________________________ b.75 Further. attached to offices and positions open to all under conditions of fair equality of opportunity.76 The idea of intergenerational justice also developed during the twentieth century. energy policy serves as an obvious instance for the operation [and expression] of the just savings principles’. Ronald Dworkin published his thesis. who are often directly affected by environmental 10.79 Intergenerational justice has been referred to in debates concerning apologies to the Stolen Generation in Australia. 9. ‘judges act as the protectors of individual rights against the State as well as between individuals’. ‘Taking Rights Seriously’.85 T C Caputo et al consider three possible legal vehicles to achieve environmental justice.77 Particularly.80 The value of land ‘lay… [only]… in the uses it could be put to. as well as punishing crimes against humanity and genocide. common law remedies and environmental protection legislation. ‘much of the focus of common law remedies to environmental disputes is on land and the rights of landowners. As such.84 Marie Fox observes that ‘far from the law being regarded as instrumental in this social change it appears to have been stranded by the tide of events’. Dworkin argued ‘the majority should not be able to ride roughshod over the minority’s legal rights’. in 1977.86 Considering the period from 1920 to 1989 in Canada and North America. ownership of land has been both a social.
Theories of rights developed during the 1960s and 1970s. which may impose limits upon the use of resources by any given generation’. but something to be used’.83 The ‘Green Revolution’ and Legal Responses The ‘Green Revolution’ was a social movement that gained prominence in the 1980s. environmental law is influenced significantly by the way in which society. as opposed to the rights of the public. such as agriculture and recreation’.78 Rawls’s ‘just savings principle’ ‘refers to the human concern for at least the generation next following.81 Under the capitalist system. For instance. law and economics deals with land ownership. legal and economic concept throughout history. land became privately owned and the property owner could use it as he wished. ‘land… was not considered something to be bought or sold. rights such as water rights.
88 Assessing the United States experience. histories.the distributive. nurturing and productive. regulations. Disconnectedness therefore is the common platform whereby individuals. are contributing to the intellectual vacuum for addressing environmental injustices. behaviours. and decisions to support sustainable communities where people can interact with confidence that the environment is safe.91 Pellow argues that environmental inequality and environmental racism are forms of environmental injustice. Ted Schrecker notes the practical limitations of legal solutions to environmental problems in his essay. defines and explains these concepts further. institutions.87 Marie Fox also notes the advantages of and problems with using tort. Environmental justice is served where people realize their highest potential. values. His paper. rules. as well as philosophical and religious values.93 Environmental justice relates simultaneously to three forms . organisations. Contemporary Views of What Environmental Justice Is Ideas concerning environmental justice have developed since the 1990s. Globalisation is further
.Siva Ram Vemuri
______________________________________________________________ problems before the courts’. ‘Environmental Inequality Formation’. Creation of such universally rationalistic base-line frameworks pose challenges for prescribing policies that have real world significance. planning law and public law to tackle environmental problems. procedural and temporal aspects. ‘The Political Context and Content of Environmental Law’. Ideas concerning environmental justice have developed since the 1990s.92 Pellow concludes by observing that ‘researchers studying environmental justice are now beginning to identify an environmental justice frame or environmental justice paradigm… that extends previous conceptions of environmental–society relationships and provides a theoretical foundation for understanding why people are struggling for environmental justice’. They have partly been combated by identifying ‘best practices’ and prescribing policies that will promote conditions for propagating behaviours emulating the underlying assumptions of the neutral framework. families. David N Pellow provides a modern definition of ‘environmental justice’: Environmental justice (EJ)… refers to those cultural norms. policies.89 11. information and knowledge.90 He draws on Rawls’s language stating ‘environmental justice seeks both ‘justice as fairness’ and ‘justice as mutual respect… owed to human beings as moral persons’’. societies.
The only way to achieve connectedness in everything we say and do is through strategic thinking and positioning our actions to enhance connectivity in every field of inquiry. They consider these to obstruct ‘development’: ‘enclaves’. namely. Perhaps this is what the Indigenous elder from Northern Australia was trying to teach me when he said ‘we must begin.95 These are counterbalanced by a view that actively promotes connectedness to everything that individuals pursue. they can seek out and make more productive links with complementary resources throughout the economy. end and deal with only reality in a
The Significance of Connectedness
______________________________________________________________ assisting in popularising the notion of adopting a value-neutral framework throughout the world economies. It is because as John Ralston Saul states in his book ‘The Unconscious Civilization’ that we as humans need to exercise control in everything that matters because ‘like efficiency. strong provinces and sub-regions under local control. well behind policy and purpose and. for that matter. especially indigenously rooted and corporate ones like the village. In the words of Saul it is ‘our current obsession with the invisible hand of the marketplace’ that we look towards connectedness. minority groups that preserve their own languages. economically. intermediate between the State and the individual or family. ‘facilitating empowerment’. that motivations propagated through self-interest dominate micro analysis. High priority is placed on ‘promoting opportunity’. Continuous interactions of influential interpretations resulted in a global synthesis of economic prescription. Policies are prescribed based on assumptions of modern day economic analysis. ‘segmented markets’. The more effectively organized these are by their members. and ‘enhancing security’ in a vacuous environment devoid of socio-political-economic-cultural differences. is a secondary or tertiary business. It is assumed that economic opportunity and freedom to choose are the building blocks for achieving environmental justice. the more antithetical to ‘development’. villages and tribes.’96 Part of the reason for such a disconnectedness is because of the inherent feature of bureaucracies and because the focus for managing environmental justice is mostly on efficiency rather than effectiveness. These modernizers argue that in its drive toward ‘development’. Many developmental advocates even actively ‘promote the destruction or at least the weakening of social and political groups. whereas macro level interactions are results of pursuing prescriptions based on public-choice theory. religious institutions that affect their members’ important decisions. the State must liberate individuals from their traditional social context so that. and so on.’94 The argument runs along similar lines when addressing the problem of aggregation (where the sum of the parts is not equal to the total) and providing a basis for representation (where one can work with parts without adequate knowledge of the whole).
org/story/2008/4/9/94049/58299 5 http://gristmill. p. 63. 12 ibid. 101. The Unconscious Civilization. W W Norton. 51. 8 J Taylor. New York. p. 18 ibid. p. 26 ibid. Finding the Heart of the Child. p. Association of Independent Schools in New England. 1987. p. 76. p. Inc. Victoria. 1983. 2002.grist. 3 J Mulberg. 24 ibid. 13 ibid. M Roemar and D R Snodgrass. p. 23 ibid.. 25 ibid. 4th edition. Tort Law.. 196. D H Perkins. pp. 28 ibid. p.Siva Ram Vemuri
______________________________________________________________ conscious way if we are to achieve environmental participation. 1999. cit. 2002. vol. 2 M Gills. p.org/story/2008/4/10/8346/44842 6 J R Saul. justice and public
E M Hallowell. 21 ibid. 27 ibid. Oxford. Washington. Economics of Development. 10 T Larsson. op. 14 ibid. p. London. pp. 65. ‘Sustainable Development: A Dubious Solution in Search of a Problem’.grist. 46. Penguin Books. 20 ibid. The Race to the Top: The Real Story of Globalisation. 2004.
. Social Limits to Economic Theory. 1-49. 64. 1993. 22 ibid. 15 ibid. Policy Analysis. 16 ibid. 1995. p. 63. 449. 11 ibid. 7 ibid. p. Cato Institute. 75. 19 ibid. 548. 68. A History of Economic Theory and Method. Routledge. Oxford University Press. 4 http://gristmill. Australia. p. 66. Waveland Press. 17 ibid. London. 29 R M W Dias. 71-72. 9 R Ekelund & Herbert.
The Significance of Connectedness
______________________________________________________________ ibid. 57 Penner. 59 ibid. Law and Society: A Critical Perspective. New York. 58 ibid. See also pp. 56 ibid. 35 ibid. 53 ibid. 26. p. Edited by T C Caputo et al. 189. 34 Dias. 64 ibid. Plenum Press.. 38 ibid. 37 ibid. 44 ibid. 72. op. L Nader. 73.. Canada. Oxford. cit.. 296. p. ibid. 191. p. op. 60 ibid. 43 Law and Society: A Critical Perspective.. 61 ibid. McCoubrey & White's Textbook on Jurisprudence. 77. 77. 2008. 72. 4th edition. Harcourt Brace Jovanovich. p. 36 ibid. 25. p. pp. 47 ibid. op. op. 55 Penner. op. M J Lerner (ed). 73-74 for more detailed information on Hobbes. 52 Penner. 49 Penner. 63 Caputo et al. cit. 1989. cit. p. 45 ibid. op.. 42 J Penner. p. cit. Canada. 1989. p.. cit. cit. 78. 77. p. 51 ibid. 75. 50 Caputo et al. 75. cit. ‘The Origin of Order and the Dynamics of Justice’ in New Directions in the Study of Justice. 75. cit. 77. 39 ibid. p. Oxford University Press. 54 Caputo et al. p. 296. 70. 46 ibid. p. p. p. op. 77. p. Harcourt Brace Jovanovich. op. p. 65-71. 1990. p. 62 ibid. 48 ibid. 27. 41 ibid. p.
. Law and Social Control. 73. p.. 33 ibid. 32 ibid. p. p.
1986. 581-601. Society and Change. 88 M Fox. Vermont. 70 ibid. 80. Oxford University Press. 87 ibid. Clarendon Press. 86 Caputo et al. 76 ibid. 77 See B Barry. 80 ibid.
. pp. 124. cit. ibid. Harcourt Brace Jovanovich. S Livingstone and J Morison. ‘Justice Between Generations’ in Law. 1990. 73 ibid. 582. Oxford. 69 ibid. ‘The Political Context and Content of Environmental Law’. p239. 1987. 71 Penner. The Unconscious Civilization. T C Caputo et al. 79 ibid. in Law. p. 71. 173-198. 67 ibid. ‘Earth Matters? Legal Regulation and Environmental Control’. pp. in Law and Society: A Critical Perspective. 72 ibid. vol. Penguin books. 89 T Schrecker. cit. 1977... 84 M Fox. 95 John Ralston Saul. p. p. New York. The Elementary Structures of Political Life. 75 ibid. pp. p. op. p. Victoria. 68 ibid.Siva Ram Vemuri
______________________________________________________________ ibid. 94 G E Goodell. 90 D N Pellow. p. 100. Morality and Society. Jan. pp. Canada.. op. p. op. p. 74 ibid. 43(4). 81 ibid. Dartmouth Publishing. pp. 82 ibid. 92 ibid. cit. 235. 166. 2000. p. 237-239. 83 ibid. op. American Behavioral Scientist. cit. 587. ‘Environmental Inequality Formation: Toward a Theory of Environmental Justice’. 166-171. Rural Development in Pahlevi Iran. P M S Hacker and J Raz. 93 ibid. 78 Penner. 1989. 85 ibid. Australia. p. 91 ibid. 78. 142.581-601..
M. 1989. Oxford. Schrecker. His current research is in the area of sustainable use of resources available in environments.grist. Canada. Oxford University Press. E. Oxford.. Plenum Press.. London. Lerner (ed). Harcourt Brace Jovanovich. Penner. London. M. et al. R.nd. Law and Social Control. 26. M. Routledge. R. 1995. p.org/story/2008/4/9/94049/58299 T.. L. New York. Hacker and J.18
The Significance of Connectedness
Barry. Vermont. Harcourt Brace Jovanovich. H. M.. 4th edition. Caputo. Canada. http://gristmill. Morality and Society.
. 581-601. Dias. 2004.. and Herbert. in Law. pp. Livingstone and J. S. 173-198. Fox.org/story/2008/4/10/8346/44842 http://gristmill. Society and Change. N. Oxford. R. J. D.. G. Pellow. p. ‘Earth Matters? Legal Regulation and Environmental Control’. R M W.. R. J. 2008. Waveland Press..Mulberg. 71. McCoubrey & White's Textbook on Jurisprudence. Raz (eds).... D.Nader. Australia. ‘The Political Context and Content of Environmental Law’. p. p. Siva Ram Vemuri is an Associate Professor of Economics at Charles Darwin University. 1989. M. S. Social Limits to Economic Theory.. pp. ‘The Origin of Order and the Dynamics of Justice’ in New Directions in the Study of Justice. Clarendon Press. Jan 2000.. E. 189. 1977. D.grist. P. Darwin. Oxford University Press. American Behavioral Scientist. vol. in Law and Society: A Critical Perspective. Tort Law. in Law.. ‘Justice Between Generations’. (eds). J. Ekelund.C. Caputo et al. T. Morison (eds). T. B. J. NT. Dartmouth Publishing. 1990. C.. 1999. M. . . Law and Society: A Critical Perspective. 1990. T. 43(4). 4th edition. A History of Economic Theory and Method.. ‘Environmental Inequality Formation: Toward a Theory of Environmental Justice’.
we can show the undesirability of environmental degradation only to an extent. Environmentalists fear that without a belief in ‘a whole that is greater than
. unless we alter our ways. we face.but not inevitable. The foundations of global security are threatened. environmental ethics. the question of nature’s value is not peripheral or supplementary to the task of environmental ethics. ecocentrism. intrinsic value. Man’s greed attacks nature. their argument goes. we cannot show it to be undesirable in general.1 Earth’s resources are finite and there are ecological limits to growth.to build an environmental ethics that constructs an adequate theory of intrinsic value of nature as a whole. will be exceeded sooner rather than later. Introduction The Planet Earth appears restive. It lies at the very heart of the philosophical endeavour. green thinking.The Value of Nature: A Holistic Perception Arvind Jasrotia
God does not play dice with the Universe Albert Einstein Abstract Environmentalists fear that without a belief in ‘a whole that is greater than us’. The environmental crisis involves social. which.2 The endeavour of environmental ethics remains fundamentally incomplete without the clarification of intrinsic value. These trends are perilous . How can a purely secular ethic. political and economic aspects. we have no reason to value nature for itself. but it also poses a philosophical problem . something valuable is destroyed. Human activities motivated by an attitude of rampant consumerism and unsustainable patterns of production and consumption have never been as inhumane and callous towards environment as in the modern era of scientific and technological innovations. The environment has clearly emerged as one of vital contemporary issues. the initial philosophical problem sparked by the environmental crisis concerns this question directly: something is wrong with the destruction of nature. Key Words: Biocentrism. how can we make theoretical sense of the value apparently contained in nature? Hence. and wounded nature backlashes on the human future. ***** 1. After all. do justice to our concern for the preservation of things for their own sake rather then for the pleasure they give us? Proceeding from the sole basis of human interests.
which is primarily concerned with values. For. we have no reason to value nature for itself. not to humans. we can show the undesirability of environmental degradation only to an extent. On this account. Environmental philosophy envisages strong normative element. After all. Human arrogance towards nature is rooted in anthropocentrism: a way of thinking that regards humans as the source of all value and human needs and interests as of highest. how can we make theoretical sense of the value apparently contained in nature? Hence. Environmental ethics. If nature lacks intrinsic value. environmentalism is just an expression of enlightened self-interest.3 Environmental Ethics Ethical dilemmas abound in environmental politics. significance . do justice to our concern for the preservation of things for their own sake rather than for the pleasure they give us? Proceeding from the sole basis of human interests. Does nature have value separate from its role in meeting human needs? Indeed. the question of nature’s value is not peripheral or supplementary to the task of environmental ethics. how to discover intrinsic value in nature is the defining problem for environmental ethics. their argument goes.5 Contrary to this view is the biocentric or ecocentric vision. Ecocentrics object to human chauvinism.
. provides a link between theory and practice. It lies at the very heart of the philosophical endeavour. it has value and deserves moral consideration in so far as it enhances human well-being. they want human and human culture to blossom and flourish. a claim usually based on their capacity either to experience pleasure and pain or to reason. then environmental ethics is nothing distinct. How can a purely secular ethic. then non-anthropocentric environmental ethics is ruled out. In other words. something valuable is destroyed. The rest of nature is of instrumental value. A central precept of green thinking is the belief that the current ecological crisis is caused by human arrogance towards the natural world which legitimates its exploitation in order to satisfy human interests.4 Anthropocentrism regards only humans as having intrinsic value. and endowed with unique values. by examining questions about how humans ought to think about and act towards nature.2 The endeavour of environmental ethics remains fundamentally incomplete without the clarification of intrinsic value.20
The Value of Nature
______________________________________________________________ us’. that only humans have interests. perhaps exclusive. Ecocentrism rejects the human chauvinism of anthropocentrism and argues that all of nature has intrinsic value. we cannot show it to be undesirable in general. then environmental ethics is but a particular application of human-to-human ethics. and furthermore. if nature lacks intrinsic value. 2.humans are placed at the centre of the universe. if no intrinsic value can be attributed to nature. the initial philosophical problem sparked by the environmental crisis concerns this question directly: something is wrong with the destruction of nature. separated from nature.
3. technological and ideological policies must be changed. and are themselves valuable. including cultures. The ideological change must involve appreciating the inherent value of all life. question the existence of a clear divide between humans and nature and even push humans off their pedestal at the top of the ethical hierarchy. It promises self-realisation through communion with Nature understood as a seamless whole. thereby averting ecological catastrophe. 2. 4. The diversity of life. can flourish only with reduced human impact. Human and non-human life alike has intrinsic or inherent value. As a philosophy and as a movement. Humans have no right to reduce richness and diversity except to satisfy vital needs in a responsible manner. It will encourage civil society to change its behaviour towards nature. rather than continually increasing the material living standard.6 In common parlance. and that value existing independently of humans. Only by resacralising our perceptions of the natural world can we put ecosystems above narrow human interests and learn to live harmoniously with the natural world. Their emphasis on the welfare of the non-human world is an attempt to correct an imbalance in philosophical and social science theory. For example.
6. Granting intrinsic value to nature would make a huge practical difference. 5.Arvind Jasrotia
______________________________________________________________ just as they do other species. Many leading contributors are also committed activists whose main objective is to develop a robust environmental activist theory to underpin green activism. the Deep Ecology championed by the Norwegian Arne Naess and others is a modern ecological version of traditional mysticism. Richness and diversity of life contribute to realizing these values. Present human interference with the non-human world is excessive and rapidly getting worse. deep ecology has spread in many ways since it is constituted by multiple perspectives or ‘ecosophies’ (ecological philosophies) and is compatible with a wide range of religious perspectives and philosophical orientations. Economic. though it has had its share of criticism also. the characterisation of the deep ecology platform is based upon the following eight points: 1. Ecocentric perspectives reconceptualise ethical positions around a non-human centred attitude to the environment and see value residing in the ecosphere as a whole rather than in the human or individual entities. Human lifestyles and populations are key elements of this impact.
. such as deep ecology. in a way that leads to state of affairs deeply different from the present. Radical perspectives.
3. The question ‘How do we know that intrinsic value exists?’ is similar to the question ‘How do we know that consciousness exists?’ We experience both consciousness and intrinsic value introspectively and irrefutably. Thus the most radical approaches adopt a holistic analysis of the human-nature relationship and tend to develop a non-anthropocentric or ecocentric ethic that draws our attention to the importance of developing a higher ecological consciousness which encourages us to adopt holistic attitude towards nature. It is so universal in its appeal and so catholic in its approach that it belongs to the whole world. irrespective of geographical units and historical expressions. as such. A good environmental sense has been one of the fundamental features of India’s ancient philosophy. the concept of righteousness. if the individual self is intrinsically valuable. a self-realisation dawns. These perspectives have also outlined a set of principles that is broad and undogmatic enough to function as a rallying point for groups of widely divergent views on the causes of the ecological crisis. It intuits for a closer identification of the human self with nature that could provide a rationale for nurturing higher ecological consciousness. to the extent that the other (nature) becomes part of our self. applies to peoples of all ages and of all countries. upon which we can develop obligations to non-human nature. It is both universal and timeless and. The continuity of self and nature means that. There has always been a compassionate concern for every form of life in the Indian mind. The civilisation of India had grown up in close association with nature. The Hindu Rishis of the Vedic era perceived the value of maintaining a
. Indian Philosophy and Mysticism India is a land of varied religions living together in harmony.22
The Value of Nature
______________________________________________________________ 8. This concern is projected through the doctrine of Dharma.7
The deep ecology perspective is informed by the idea of symbiosis. (which includes justice) preached by every religious school that flowered in our land. but its content is such as to cover all aspects of human life. The cultural and spiritual heritage of India is both vast as well as rich. There is a quest for an ethical code of conduct based on the existence of intrinsic value in nature and the development of an ethics based on a changed ecological consciousness or ‘state of being’. Its setting is no doubt Indian. By seeing ourselves as part of nature and by identifying more closely with it. Only by changing the way we perceive and think about nature can we overcome the current ecological crisis. But there is nothing sectarian or regional about it. Those who subscribe to the foregoing points have an obligation to participate in implementing the necessary changes in a peaceful and democratic way. then nature must also be intrinsically valuable.
we shall become. as the cosmology of the Upanishads tells us. Man. everything has come out of Brahman and is non-different from Brahman. Earth. day and night. was instructed to maintain harmony with nature and to show reverence to the presence of divinity in nature.10 An analogous interpretation of holistic perception is given in the traditional system of Advaita Vedanta in India. In which food and cornfields have come to be. and if Brahman has entered into all things as it has entered into all
______________________________________________________________ harmonious relationship between the needs of man and spectacular diversity of the Universe. the ultimate reality. The omnipresent one pervades souls and matter. in which the waters. the river and other waters. common to all. Therein unites and there from emanates the Whole. Be for our welfare. set me securely with bliss. In full accord with heaven. in which the entire physical world appears identical with oneself and Brahman. hidden in mystery. May those born of thee. Sanctity of life. but seeking it by developing a sacred attitude towards spiritual significance of nature. to them. Bearers of tribute to thee. my Mother. To them. flow unfailingly. Like warp and woof in created beings. Uphold me in grace and splendour. O wise one. the Prithvi Sukta in Athravaveda is indisputably the oldest and the most evocative environmental invocation. as the acme of spiritual realization. it was the abode of divinity. May she pour on us milk in many streams. included not only efforts to seek salvation. in Hindu culture. The Hymn is redolent with ecological and environmental values: Earth. May she confer on us the finest of her yield.8 The Vedic Hymn to the Mother Earth. Wherein the universe comes to have one home. If. nature was not only the mother that sustained their life. And endow us with lustre. O Earth.9 The idea of Divine Being as the one underlying power of unity is beautifully expressed in Yajurveda: The loving sage beholds that Being. Earth. Wakeful through a long life. In which lives all that breathes and moves. free from sickness and disease. in which lie the sea. Moving on all sides.
This is the highest knowledge. Taking the Whole from the Whole. and in some ways nature and ecosystems.13 In the background of this invocation. then it will be no wonder that all this should verily be Brahman. By Isa (the Lord) enveloped must this all be. carries the correlate of recognising our own limits in claiming the fruits of the earth and in managing and manipulating nature. prudence. and has stayed there as the antrayamin (the inner dweller) of all. Whatever moving thing there is in the moving world. emphatically declares: That is Whole. There can be no qualitative difference between the two. To live within such a holistic relationship requires our rediscovering the spiritual connection that unites us to the land and that nourishes our souls as well as our bodies.11 The invocation to the Isavasya Upanishad. The injunction is to develop
. The way forward will require a turn towards restoration and renewal.that indeed is the very nature of quality. Reality must be present in its qualitative aspect even in the lowliest of its expressions. the Eternal Reality). thou mayest enjoy. Covet not the wealth of another. The cosmic vision of our planet Earth is based on the fundamental concept of Vasudev Kutumbakam (all indeed is Vasudeva.24
The Value of Nature
______________________________________________________________ human beings. while stressing the intrinsic value of nature.12 The invocation obviously speaks of the intrinsic quality of things. that first verse of the Upanishad assumes a significant meaning. It is to this that the Bhagvad Gita refers when it speaks of Avibhaktam ca bhutesu . With this renounced. The Whole resides even in the part . The one central theme underlying all the Upanishads is that Brahman and Atman are identical. This is Whole. The nature of Brahman resides in the Atman. To covet the wealth of another is to display utter ignorance of the fact that the tiniest part of the Universe is impregnated with the whole. Vedic profundity reaffirms the importance of justice.‘Undivided even in the midst of division’. humility and reverence for life and nature. The Whole comes out of the Whole. The part that is assigned to one can alone be the source of one’s joy.14 The above verse says that Reality pervades everything. This is the summum bonum for man to be achieved as a psychological and epistemological process of apprehension of reality by degrees and by stages. The affirmation of the ‘intrinsic worth’ and something like ‘rights’ of (or duties towards) each individual person and all animal and plant species. The Whole remains.
the whole system is thrown out of gear.a fact that was forsaken by the developed nations in the mindless pursuit of development. if we do not see the Infinite Rest and only see the Infinite Motion. It has an infinite idea. it is the sacrifice. But if we detach its movements from the ultimate idea. it repairs itself and reverts to its original state. Redemption lies in striving for a balance.Arvind Jasrotia
______________________________________________________________ harmony with nature and not to exploit the resources of nature for one’s own selfish purpose. The righteous who eat the remains of sacrifice Are freed from all sins. The idea of inter-generational justice.15 According to Gita. one of the salient features of sustainable development. he who seeks nourishment from his own selfhood .he verily eats sin. If the deterioration is for a short term and the life support system has enough resistance. Such is the beautiful exhortation of Sri Krishna to Arjuna. We have to be natural with nature and humane with human society. However. then existence appears to us a monstrous evil. all movements full of meaning and joy. Agni Puran says: Equal to ten wells is a tank. he who prepares food for himself. The progress of our soul is like a perfect poem. which once realized makes. According to Krishna. we have to be vitally savage and mentally civilised. since Vedic times it has been realised that nature and human kind (Prakriti and Purusha) have co-evolved and form an inseparable life support system. But the impious who prepare food for their own sake Verily they eat sin. which is interdependent and indivisible. The poet Rabindranath Tagore gives expression to this idea in the following passage. is most graphically brought out in the following verse in Srimad Bagvad Gita. if the deterioration continues. which is the sustaining force of all creation . thereby leading to global environmental degradation. Equal to ten sons is a tree. Equal to ten tanks is a son. One has only to turn to Agnipuran to have an insight into the minds of the ancient seers for their curiosity and anxiety to preserve the forests and wild life. impetuously rushing towards an unending aimlessness.16 In India.17 For our survival.18
and their mysterious forms. He perceives Him as the inner self of all living beings. pervading all. harmful to self or to other.20 Sikh religion and philosophy are also deeply related to nature. Sikh Gurus strongly warn mankind against any attempt to control nature of the world. Buddha described forests as a peculiar organism of unlimited benevolence that makes no demands for subsistence and extends generously the products of its life activity. In Sri Aurobindo’s Savitri.26
The Value of Nature
______________________________________________________________ As man occupied the highest and the noblest place among the animals. He Himself is the Creator and the Created including the act of Creation. Guru Nanak calls Him the Karta Purukh (Creating power of the Universe). after long days of penance. in the same way the tree is regarded as the highest and noblest production of the vegetable kingdom. Out of God’s perfect ecological balance will come ecological upheaval. attained enlightenment under a Bodhi tree. as has been beautifully depicted in Guru Granth Sahib. Upset the balance and out of order will come chaos. harmony and compassion. The tree occupies a venerable place in Buddhism. Guru Granth Sahib states: Thou the Primal Being. Vedic profundity reverberates in the writings of modern philosophers and scholars from the East. touches the deepest and noblest aspects of human nature maintaining that truth. which is the fundamental postulate of the Jaina way of life. From among the major tenets of Sikhism is Vand Ke Chakko (eat after sharing). And Thou art immanent too. The trees and their grandeur as forests. The physical world is full of wonderful specimens of His creation. Siddhartha. based on spiritual and physical symbiosis must be the foundation for any civilised community. all-pervasive beyond extent. suggest that they are the abodes of the existing agencies of the Creator and are vital component in the beauty of a landscape. thereby affording an opportunity to the disciples to commune with the nature. the saintcum-scientist tells us:
. Creator unknowable Thy limit. Ahimsa. Man does not exercise absolute control over nature.19 Jainism also lays stress upon the indisputable principle of cultural environment. The Upanishadic tradition of imparting education was performed in the Gurukals situated in the dense forests.21 The beauty of His creation is another incomparable characteristic. that one should refrain from easily avoidable acts. while discussing the basic attributes of God. In the Mul-Mantra (the seminal formula). Merged in One. affords protection to all beings and offers shade even to a woodsman who destroys it.
Swami Vivekananda. so to speak. an attempt to reinforce the philosophy of human-nature unity within a holistic civilisational framework. Await discovery in our summit selves. 4. Let us be nature’s patriots. human development is primarily about being more. Immortal our forgotten vastness. i.and that happens only if there is an ethical commitment to environmental values and the moral passion to realise them. they shift from a description of the way nature works to a prescription for an ethical system
.22 The renaissant India finds in Gandhi. philosophy. but through its quest for spiritual and physical symbiosis. Spirituality is a still higher plane. the question is: what kind of ethic will suffice for them? Holistic arguments attempt to derive an ought from an is. These Vedic revelations have also outlined a set of principles that is broad and undogmatic enough to function as a rallying point for groups of widely divergent views on the causes of the ecological crisis. a philosopher and seer of India. arts and sciences. while referring to the spiritual content of psycho-social adaptation says: The lower types of humanity in all nations find pleasure in the resources while the cultured and the educated find it in thought. Unmeasured breadths and depths of being are ours. which is lacking in large sections of the human population. Vedic traditions established the principles of ecological harmony centuries ago .e.Arvind Jasrotia
______________________________________________________________ A death bound littleness is not all we are.not because the world was perceived as heading for an imminent environmental disaster or because of any immediate utilitarian exigency. Nehru and other eminent thinkers. Since effective policies require that the civil society be sensitised. These timeless and ageless Vedic revelations draw our attention to the importance of developing a higher ecological consciousness that encourages us to adopt holistic attitude towards nature and makes us realise that when basic needs have been met. synthesised in a system of ethical awareness and moral responsibility. Gandhiji’s Sabarmati and Tagore’s Santiniketan are instances of both protest and innovation. In Search of a Convergence Paradigm Successful environmental policies require many things. not having more. the most vital being the support of the common masses . Tagore. The life will survive only if the biosphere is safe. The Vedic profundity tends to develop a non-anthropocentric or ecocentric ethic.23 Thus.
social and economic sustainability. the essential needs of the world’s poor. including a strategy for political change and a policy programme.28
The Value of Nature
______________________________________________________________ thereby reappraising the human-nature relationship and to think seriously about the duties we owe to the natural world. which work within the legislative process and the boundaries of civil society. sustainable development has become the dominant policy discourse. concentric circles. environmental. The idea of limitations imposed by the state of technology and social organisation on the environment’s ability to meet present and future needs. adopted in 2005. where the 1997 Nairobi Declaration refers to ‘international environmental law aiming at sustainable development’. there are substantial controversies as to how to translate it into practice and develop standards and indicators to assess whether it is being achieved. since the late 1980s. Even the 1992 Rio Declaration refers to the ‘further development of international law in the field of sustainable development’. Ecocentrics have been criticised for being more concerned with getting the philosophy right. a range of intellectual disciplines and the basis for balancing ecological imperatives with developmental goals. used the interlocking circles model to demonstrate that the three objectives need to be
. The core of mainstream sustainability thinking has become the idea of three dimensions. so environmental activism has become increasingly reconciled to reformist strategies. but also for the environmental movement itself. or interlocking circles. How should we assess this development? Not surprisingly. However. as environmental politics has become more mainstream. for example elevating the anthropocentric-ecocentric debate into a litmus test for greenness.
Over the years. sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs. in particular. to which overriding priority should be given.2008. The IUCN Programme 2005 .25 According to the Brundtland Report. These have been drawn in a variety of ways. However. as pillars.24 Consequently. The UN Environment Programme adopted a more nuanced approach. rather than developing practical political programme for change.26 This sets out two fundamental principles of intergenerational and intragenerational equity and contains the two key concepts of needs and limits: The concept of needs. international organisations and businesses. an ideology also needs a coherent political dimension. not just for governments. sustainable development has rapidly become part of popular language.
a recognition of the interdependence of humanity and the entire natural world. businesses. the future at once holds great peril and promise. organisations. economic justice and a culture of peace. As the world becomes increasingly interdependent and fragile. expressed most characteristically in the notion of the world as a ‘biosphere’. based on a mélange of self-interest and economic advantage as well as some religious. 5. Respect Earth and life in all its diversity Recognize that all beings are interdependent and every form of life has value regardless of its worth to human beings. We must join together to bring forth a sustainable global society founded on respect for nature. the Preamble to the 1992 Convention on Biological Diversity evinces the complex mixture of objectives which characterizes much of the contemporary international environmental law and illustrates what can be referred to as a holistic approach to environmental protection. and implicit in both the Convention on Biological Diversity and Climate Change.
. and transnational institutions is to be guided and assessed. ecological interdependence. universal human rights.Arvind Jasrotia
______________________________________________________________ better integrated. and cultural practices. aesthetic. policy and ethics reveals that the central basis of international environmental law remains anthropocentric. and the need for a holistic approach as is evident from UN-adopted World Charter for Nature. Our dear planet earth is perhaps the only human habitat in the vast universe and we owe it to posterity to preserve the divine heritage of our biosphere without destruction. A. Also. governments. which proclaimed the holistic principles of conservation by which all human conduct affecting nature is to be guided and judged.27 An examination of international law. Epilogue: A Shared Vision of Basic Values We stand at a critical moment in Earth’s history. with action to redress the balance between dimensions of sustainability. the new nonanthropocentric developments reveal a growing recognition of intrinsic values. degradation and pollution. Nonetheless. The Earth Charter promulgated by the IUCN speaks about a global ethic which is both emotionally and intellectually engaging and combines concerns for human well-being with concerns for the environment. a time when humanity must choose its future. The following interdependent principles form a sustainable way of life as a common standard by which the conduct of all individuals. Respect and Care for the Community of Life 1.
2. and institutions that support the long-term flourishing of Earth’s human and ecological communities.
3. knowledge. Ecological Integrity Protect and restore the integrity of Earth’s ecological systems. sustainable.30
The Value of Nature
______________________________________________________________ Affirm faith in the inherent dignity of all human beings and in the intellectual. and power comes increased responsibility to promote the common good. traditions. Promote social and economic justice.
Secure Earth’s bounty and beauty for present and future generations Recognise that the freedom of action of each generation is qualified by the needs of future generations. Transmit to future generations’ values. and love Accept that with the right to own.
Care for the community of life with understanding. participatory. and use natural resources comes the duty to prevent environmental harm and to protect the rights of people. artistic.
B. and peaceful Ensure that communities at all levels guarantee human rights and fundamental freedoms and provide everyone an opportunity to realise his or her full potential. enabling all to achieve a secure and meaningful livelihood that is ecologically responsible. Affirm that with increased freedom.
Build democratic societies that are just. with special concern for biological diversity and the natural processes that sustain life. compassion. and spiritual potential of humanity.
and environmental imperative. Uphold the right of all. and community wellbeing. Adopt patterns of production. values. apply a precautionary approach. and Peace Strengthen democratic institutions at all levels. and reproduction that safeguard Earth’s regenerative capacities. bodily health. when knowledge is limited.
D. Non-Violence. to a natural and social environment supportive of human dignity. and access to justice. human rights. and spiritual wellbeing. Affirm gender equality and equity as prerequisites to sustainable development and ensure universal access to education. Integrate into formal education and life-long learning the knowledge. and peace.Arvind Jasrotia
______________________________________________________________ Prevent harm as the best method of environmental protection and. inclusive participation in decision making. health care. and skills needed for a sustainable way of life. Democracy. with special attention to the rights of indigenous peoples and minorities. Ensure that economic activities and institutions at all levels promote human development in an equitable and sustainable manner. nonviolence. and economic opportunity.
C. Treat all living beings with respect and consideration. Social and Economic Justice Eradicate poverty as an ethical. and provide transparency and accountability in governance. social. consumption. Advance the study of ecological sustainability and promote the open exchange and wide application of the knowledge acquired. without discrimination. Promote a culture of tolerance.
Routledge. 10. ‘Environmental Protection and Sustainable Development: Exploring the Dynamics of Ethics and Law’. Bharatiya Vidya Bhavan.1995. 1993. The future of the planet faces us today.1. Cambridge University Press. 7. viewed on 2 May 2008. Community and Lifestyle. pp.). Salt Lake City. p. Naess. 9 Atharvaveda. Cambridge University Press. 1970. 29. 2007. The Politics of the Environment: Ideas. Long Range Ecology Movement’. It requires a new sense of global interdependence and universal responsibility. Bombay.edu/EJAP/1995. Cambridge. See also B Devall and G Sessions. the nations of the North and South must respond to the call for a new global citizenship under which all earthlings should collaborate to bring about a new environmental world order. pp. See also. regionally. ‘Intrinsic Value in Nature: A Metaethical Analysis’. 4 N Carter. vol.3.15.32
The Value of Nature
______________________________________________________________ Our common destiny beckons us to seek a new beginning. 2 M Schonfield. London.456. 9 and R Eckersley. Activism. Ecology..29
A Jasrotia. p. above. 32. 8 R Mehta. and Ecology. 2007. pp. p. see also J O’Neill. http:/ejap.spring/callicot. no.1995. SUNY Press. 2005. London and New York. 6. 1985. A.html. The purpose of development should not be to develop things but to develop humanity. 95-100. 12 Isavasya Upanishad. Deep Ecology: Living as if Nature Mattered. Cambridge. Policy. 49.html. ‘The Shallow and the Deep. tr. 6-57. We must imaginatively develop and apply the vision of a sustainable way of life locally. Environmentalism and Political Theory. Published by Gita Press (in Hindi). p. viewed on 6 May 2008. 2001.lousiana. 3 J B Callicott. The Invocation. 12. 16. Journal of Indian Law Institute. there is no scope for nation-states to address themselves individually to the challenge. New York. The Call of the Upanishads. D Rothenberg (ed.spring. Bron Tayler (eds).1.spring/schonfield. 30-59.edu/EJAP/1995.
. 1989 p. Encyclopedia of Religion and Nature. 1973. 70.’ 5 See note 3. and globally. Inquiry.8.lousiana. nationally. Continuum. ‘Justifying Value in Nature’. 1992. vol. http:/ejap. 11 See The Upanishads. p. Principle 1 of the Rio Declaration: ‘Human beings are at the center of concern for sustainable development. UT. Policy and Practice.spring. Peregrine Smith. 10 Shukla Yajurveda. Rather. 2nd edition.
W. 1989.. 43. Bombay. L. 20 G L Amar. visit. New Delhi. 2.org. www.
14. G. Oxford. 11.Arvind Jasrotia
______________________________________________________________ Srimad Bhagvad Gita. Hymns from the Vedas. New Delhi. 19 S S Tripathi..N. vol. 25 P Birnie and A Boyle. 1992. op.earthcharter. D. Bose.13. SUNY Press. P. O.org. 24 N Carter. O P Dwivedi and B N Tiwari (eds). 28 The Earth Charter. O P Dwivedi and B N Tiwari (eds. 21 Guru Granth Sahib. p. 448.16.. ‘Jainism and the Environmental Harmony’. in World Religions and the Environment. 2006. International Environmental Law. 2001.
. Hymn 1. p. 1996. ‘Jainism and the Environmental Harmony’. 1987. N Dower. 27. p. 2002. B Norton. P.. 23 The Complete Works of Swami Vivekananda. in op. p.org. p. 1991.
Amar. Oxford Publication. 3. 66. E. ‘Buddhism and Ecological Crisis’. p. 16 J L Shastri and G P Bhatt (eds). 182. 27 www. The Cocoyoc Declaration. nternational Environmental Law. cit. 22 Sri Aurobindo.. R. ‘Earth Charter as Global Ethic’.
Barnhill. Gitanjali Publishing House. Birnie. London. in World Religions and the Environment. 7(2004) at www. Gitanjali Publishing House. 1989. 2002. 29. Asia Publishers. 1968. Tiwari (eds). ‘Environmental Protection in the Hindu Religion’. UNESCO. Isavasya Upanishad. A. Sadhna. and Boyle. 2nd edition. p. O P Dwivedi and B N Tiwari (eds). A.. 38. vol. 3. in op. Toward Unity among Environmentalists. 18 R Tagore. New York. See also. Savitri. Albany. cit. Oxford.The way of Life.. Dwivedi and B.). Deep Ecology and World Religions. Filiquarian Publishing. Rector Press/Indea Books. 15 Srimad Bhagvad Gita. Oxford University Press. 26 World Commission on Environment and Development.iucn. and Gottlieb. Mahapurans.. Oxford University Press. cit. 17 O P Dwivedi and B N Tiwari.iucn. 215. C. See also. 192. New Delhi. 13.
Devall. http:/ejap. P. Boston. Gitanjali Publishing House. 49.15. World Religions and the Environment. pp. and Tiwari. viewed on 6 May 2008. p. 1999. ‘Environmental Protection in the Hindu Religion’.. Dower. 1989. Callicott. A. Jasrotia. Callicott.. Fox. B. Activism.34
The Value of Nature
______________________________________________________________ Bron Tayler (ed). P. B. p. 1991.N. London and New York. Environmental Law and Policy in India. N. C. Warwick. Towards a Transpersonal Ecology.. Policy.spring. SUNY Press. Sham and Roscencranj. B. N.. J. D. Tiwari (eds). Environmentalism and Political Theory. Divan. New York..
. and Tiwari. 7. A. B. Carter. Dwivedi. ‘Holistic Environmental Ethics and the Problem of Ecofascism’. Gitanjali Publishing House. G. and Sessions. Journal of Indian Law Institute.. ‘Environmental Protection and Sustainable Development: Exploring the Dynamics of Ethics and Law’. New Delhi. Albany. O. Kiss.1995. Eckersley.spring/callicot. Shambhala. 2007. New Delhi. 2004 at www. Peregrine Smith: Salt Lake City. Armin. New York. in Beyond the Land Ethic: More Essays in Environmental Philosophy. pp.. R. International Environmental Law. ‘Earth Charter as Global Ethic’. Encyclopedia of Religion and Nature.edu/EJAP/1995. Doubleday. and Shelton. 1992. 2007. N. 30-59.org. (eds). O. Dwivedi. 456. Cambridge. The Politics of the Environment: Ideas. ‘Intrinsic Value in Nature: A Metaethical Analysis’. no. 1.lousiana. 56-57.html.. 2nd edition.. P. 2005. Oxford Publications. Dwivedi and B. Continuum. 1985. Cambridge University Press. J. B. 2001. SUNY Press. 1990. 1989. O.. p. 2002. N. UT. Deep Ecology: Living as if Nature Mattered. 182.iucn. New Delhi. vol. NY. in World Religions and the Environment.
’ Inquiry.The Way of Life. P. J. E. Tiwari (eds). 1994. Bharatiya Vidya Bhavan. G. 1992.spring. 1973. Boston. A. 1987. 66. 11. Tagore.. Cambridge University Press. Toward Unity among Environmentalists. http:/ejap.N. 1993. tr. Rector Press/India Books. Naess.). 16.. Long Range Ecology Movement. G. L. in World Religions and the Environment.
.1995. Oxford. p.Arvind Jasrotia
______________________________________________________________ Mehta. ‘The Shallow and the Deep. Rothenberg (ed... 10. Vedanta Press.. The Complete Works of Swami Vivekananda. Cambridge. ‘Ecology. Naess. Berkeley and Los Angeles. R. Tripathi. Oxford University Press. 95-100. Dwivedi and B. London. Community and Lifestyle. p. vol.. O. O’Neill.edu/EJAP/1995. Sands. Routledge. The Call of the Upanishads. p. 27. A. D.). Schonfield. Bombay. Norton. ‘Buddhism and Ecological Crisis’. World Commission on Environment and Development. Sadhna. 2006.lousiana. Shastri. University of California Press. and Bhatt. Principles of International Environmental Law. Bombay. Filiquarian Publishing. Gitanjali Publishing House. viewed on 2 May 2008.. ‘Justifying Value in Nature’. P. Deep Ecology for the Twenty-first Century.spring/schonfield. (ed). London. 1989. 1993.. B. 1995.. Bombay. p. J.. Zimmerman. S. vol. 1992. M. M. Ecology. Shambhala Publications. Contesting Earth’s Future: Radical Ecology and Post Modernity.html. Cambridge. P. 43. vol.. 1968. Sessions. New Delhi. R. UNESCO. New York. Mahapurans. 1970. S. (eds. Cambridge University Press. pp. 9. 1991. Policy and Practice.
. His research interests focus on the ethical and legal dimensions of climate Change and Sustainability discourse in the backdrop of North-South disparities.36
The Value of Nature
______________________________________________________________ Arvind Jasrotia is an Associate Professor at the Department of Law. University of Jammu -INDIA.
science-policy interfaces. In their seminal book on the potentials of integration between the discourses and practices of environmental justice and sustainability. Calling for Radical Transitions in Industrialised Countries Gert Goeminne and Erik Paredis
Abstract This article discusses how the concept of ecological debt has the potential of enriching the sustainability paradigm by provoking a real ‘gestalt-switch’: once the idea of ecological debt is adopted. While sustainable development and concepts such as the ecological footprint or environmental space mainly focus on (forwardlooking) intergenerational equity. Furthermore. it slowly finds its way in the discourse in international circles.The Concept of Ecological Debt: An Environmental Justice Approach to Sustainability. paradigm shifts. Combining concepts such as environmental space and ecological debt may then ‘provide a robust analytical framework through which to study the essential reactivity of the environmental justice project. and the proactivity of the sustainable development project’. see an important role for ecological debt1. a commodity can no longer be seen without simultaneously realising the network of environmental and social links. and it is quite unique in the sense that it is a grassroots concept. system innovation. transition management. sustainability. it remains a powerful instrument for analysing North–South relations and for enriching the sustainability debate. Key Words: Developing countries. mainly developed through NGO campaigning. its origins as a grassroots concept position it on the interface between politics and science. environmental justice and ecological debt put more stress on (historically grown) intra-generational equity issues. post-normal science. Ageyman et al. It thus reinforces the recent calls for radical transitions and system innovations in industrialised countries. environmental justice. in that way providing an example of the need for more reflexivity and openness towards the political dimension in sustainability science. in particular of South American countries. that were needed to produce it.2 Ecological debt can thus provide an
. ecological debt. ***** The concept of ecological debt figured prominently in the campaigns of several NGOs and NGO networks between 1999 and 2006. Although the concept seems to have disappeared somewhat as a campaigning theme. often non-sustainable and non-equitable. Furthermore.
reflects on the role science and scientists plays when they become involved in defining and elaborating these kind of concepts (in sections 3 and 4). While the problem of the ozone layer was entirely caused by Northern. The Global Forum was the first time ecological debt was mentioned in an international context. Thus. health problems such as skin diseases and cancer were on the rise in Southern Chile. states. IEP labelled this an ‘ecological debt’ of the North towards the South. but around 1997 it was picked up again by several Southern NGOs. and finally links ecological debt with the calls for radical transitions and system innovations in industrialised countries (in section 5). the South could claim the ecological debt. including global environmental deterioration. most prominently by the militant Ecuadorian Acción Ecológica.
. One of the pledges in this treaty is to ‘work for the recognition and compensation of the planetary ecological debt of the North with respect to the South’ (paragraph 16) and ‘to quantify the cumulative debt of the Northern countries which results from the resources they have levied and the destruction and waste produced in the course of the last 500 years’ (paragraph 32). most of which is the responsibility of the North…’.38
The Concept of Ecological Debt
______________________________________________________________ additional element in the recent framing of sustainable development in industrialised countries as needing radical transitions and system innovations. a developing economy such as Chile bore the consequences. ‘the foreign debt is the most recent mechanism of the exploitation of Southern peoples and the environment by the North’. This paper first discusses the concept of ecological debt and its implications (in sections 1 and 2). It further points out ‘the existence of a planetary ecological debt of the North. from a historical point of view. The Birth of a Concept During the 1992 UNCED conference in Rio de Janeiro. then. this is essentially constituted by economic and trade relations based on the indiscriminate exploitation of resources. to negotiate their own Alternative Treaties for a more sustainable world. The unofficial history of the concept traces its origins back to the beginning of the nineties and publications of the Chilean NGO Instituto de Ecologia Politica (IEP). as opposed to the external financial debt of the South towards the North. 1. and its ecological impacts. If the North demanded the payment of the financial debt. called the Global Forum. the ecological debt must be seen as a counterargument to the financial debt weighing upon a lot of developing countries. civil society and grassroots groups gathered outside the official negotiation process in a parallel gathering. Acción Ecológica became one of the chief organisers of a broader campaign on ecological debt. industrialised economies. The concept of ecological debt lay dormant for some years. according to IEP.4 IEP observed that as a consequence of the depletion of the ozone layer.3 The Debt Treaty.
a few scientific articles appeared that use a comparable approach and terminology to describe
. Accíon Ecológica is also part of this commission. which grouped European NGOs and individuals (the European debtors). the concept of ecological debt showed an ‘organic growth’. This led to a proposal to draw a distinction between ‘public’ and ‘private’ ecological debt. In 1999. during the annual assembly of Friends of the Earth International in Quito. Joint efforts by Friends of the Earth International and Acción Ecológica led in 2000 to the launch of the Southern Peoples’ Ecological Debt Creditors Alliance (SPEDCA). it was decided to launch a campaign on ecological debt. with the task of evaluating dossiers on aspects of ecological debt. Ecuador. there was also the European Network for the Recognition of the Ecological Debt (ENRED). three NGO networks had adopted ecological debt as their main campaigning theme. financial debt. they formulate a manifold of demands aimed at reparation for the historical ecological debt and at avoiding ecological debt from increasing in the future. Over the last 2 to 3 years. El Salvador. namely Argentina. To give one example: while ecological debt was originally mostly defined as a problem of industrialised versus developing countries. Three NGO networks campaigning around the same theme may seem somewhat cumbersome. Jubilee South incorporated the concept in its global campaigns for debt cancellation. Two remarks should be added to this short history of ecological debt. secondly. as it was formulated and reformulated in discussions and exchanges within the NGO networks and new interpretations or applications were developed. During the years of the campaigns. 5 South American countries mentioned ecological debt in their public address. Nicaragua. which was a discussion group between creditors and debtors. which grouped NGOs from Southern countries (the creditors). case studies often focused on ecological debt caused by corporations and multinationals. Perhaps the most interesting development is the setting up of an Ecuadorian audit commission to investigate the legitimacy of Ecuador’s external debt. By 2005. between the moment IEP coined the concept (around 1990) and the start of the NGO campaigns at the end of the nineties. but SPEDCA explicitly chose to keep its doors closed for Northern NGOs in order not to let its discussions. Apart from SPEDCA.Gert Goeminne and Erik Paredis
______________________________________________________________ often in the context of campaigns against the external. During the 2008 high-level segment of the UN Commission on Sustainable Development. Around the same time. SPEDCA asks for an ‘international recognition of the ecological debt. they want a ‘recognition of the illegitimacy of external debt as made evident by ecological debt’. and thirdly. and Justicia Ambiental. topics and strategies be dominated by often better financed and organised Northern NGOs. historical and current’. the campaign on ecological debt has halted somewhat. Bolivia. First. Deuda Ecológica y Sustentabilidad (JADES). but the concept itself seems to be slowly finding its way.
marine and forest life). Bravo and Yanez edited is a collection of essays after several years of campaign. debt from the degradation of land. and systematically destroyed. and here ecological debt is defined as ‘the accumulated. first in the Green and now in the GMO revolution. such as the ecological footprint. Azar and Holmberg formulate a generational and foreign environmental debt. 2. Ecological debt is thus a
. debt for the damage caused by chemical.’9 According to SPEDCA the ecological debt includes amongst other things: the historical debt from plundering. gas.6 With ecological debt. water and air through monocultures. while systematic scientific support for these campaigns has been almost non-existent. and later on further refined in close interaction between scientists and some NGOs. then enthusiastically adopted by NGOs. historical and current debt. debt from the intellectual appropriation and use of traditional knowledge through biotechnology by agro-business. there has been no fertilisation in either direction between the NGO campaigns and this scientific work. slave labour and cultural annihilation in the South during the colonial era. We first turn to the definition of ecological debt and the implications it has for the sustainability debate. environmental. and Smith defines a natural debt. devastated and contaminated their natural heritage and sources of sustenance. who has published several articles on the concept and is also personally engaged in some of the NGO campaigns. it is interesting to compare the development of the concept of ecological debt with that of other concepts in the sustainability debate. Jenkins defines a concept of ecological debt between countries. minerals. vegetation and forests. which industrialised Northern countries.5 To the best of our knowledge. The ecological footprint has been developed by scientists. nuclear and biological arms production and depositing of toxic substances. devastation. their institutions and corporations owe to the peoples and countries of the South for having plundered and used their natural resources. exploited and impoverished their peoples. debt from the social. several definitions exist of ecological debt. however.7 and the work done in 2003–2004 by the authors and some colleagues of the present paper. debt through pollution of the atmosphere and the appropriation of carbon absorption capacity of oceans. Second.40
The Concept of Ecological Debt
______________________________________________________________ the ecological relations between industrialised and developing countries and the environment. the development of the concept has almost been the other way round: the concept has primarily been developed through NGO campaigning. Opening Up New Perspectives on Sustainability As mentioned.8 The role of science is discussed further under point 3 and 4. economic and cultural impact of the extraction of natural resources (oil. The only exception is the work of the Spanish ecological economist Joan Martinez-Alier. destruction. putting the food and cultural sovereignty of communities at risk.
11 The testimonies and case studies that have been collected during the campaigns. protest against shrimp farming. to shrimp farming in Thailand. ranging from fishing over agriculture and deforestation to climate change. biopiracy in Costa Rica. South Africa and the Philippines. First. for understanding the causes of wealth and poverty. The diverse and scattered groups protesting against the destruction of their livelihoods are sometimes caught under the term ecologismo popular or environmentalism of the poor. Whether the cases are well-known or not . Three characteristics are briefly discussed here: uniting of comparable experiences of Southern peoples. Union Carbide in Bhopal.12 It also challenges the popular notion in sustainable development discourse that poor people in the South are not interested in protecting their environment. and that therefore more development is the answer to the sustainability crisis.13 sustainable development indeed seems characterized by the absence of a historical perspective.the pattern is often identical: multinational companies (and often conspiring governments) leave a ravaged land behind. the concept of ecological debt is able to draw together comparable experiences from (local) groups all over the South and to unite them under the new label ‘ecological debt’. Shell in Nigeria over mine exploitations in Peru. oil and gas exploitation or the overuse of the absorption capacity of the atmosphere. In its focus on a ‘development that meets the needs of the present without compromising the ability of future generations to meet their own need’. for stopping the destruction of Southern lives. This lack of historical sensitivity can be observed in all major sustainability debates. ecological debt adds a historical dimension to the sustainability debate. opening a new perspective on debtor–creditor relations in contemporary international politics. for identifying responsibilities and fighting against impunity. The term ecological debt seems to be able to articulate the common concerns visible in.10 A look at this definition reveals that it covers a broad field of injustices between North and South. looking at climate
. cultural and economic impacts. or dumping of toxic waste in India . but spreading out to cover social.from Texaco in Ecuador. Indeed. For several of these groups. the concept of ecological debt seems to offer a discourse through which they can frame their struggle and formulate their demands. with all its consequences for the local population. comparable experiences of local communities exist. bringing a historical perspective to the sustainability debate. for example. Second.Gert Goeminne and Erik Paredis
______________________________________________________________ demand for justice. mining. While such a broad definition can be problematic under certain conditions (see under sections 3 and 4). it also turns ecological debt into a concept with characteristics that make it a potentially powerful tool for re-discussing relations between North and South or for re-thinking sustainable development policies. often starting from ecological themes. show that on the different continents around the world.
neither in monetary terms. the lack of a genuine historical perspective becomes clear. The concept of ecological debt shows that countries can be in a creditordebtor relationship on the basis of physical-ecological relations. This in turn points to the need for different analyses and perspectives on trade. when ecological debt is quantified. industrialised and developing countries stand in another relationship: the North as debtor.e. in particular in the South. leading amongst other things to an immense amount of research regarding necessary emission reductions. It is not a coincidence that developing countries try to push this perspective: historically. but it is becoming clear that they will suffer most from climate change impacts.often violent and unjust . It further testifies that international trade. This historical perspective thus adds a particular ethical dimension to sustainable development. not only in financial terms (South-North) but certainly in ecological terms as well (North-South). Ecological debt thus provides a different look not only at the legacy of the colonial period. a new political perspective is brought to international relations. a historical perspective is only marginally present.42
The Concept of Ecological Debt
______________________________________________________________ change as one of the foremost and encompassing sustainability issues of contemporary society. ‘Who owes whom?’ which expresses the central idea in the argumentation of ecological versus external debt. a reversal of the creditor-debtor relations. This is eloquently expressed in one of the slogans of the NGO campaigns. as a consequence of the link made in the campaigns between external financial debt and ecological debt. It points at the collective responsibility of industrialised countries for past and ongoing violations of the right to a clean and safe environment in other countries. has often not been mutually beneficial. developing countries are responsible for a minor part of global emissions. Through the concept of ecological debt. it becomes obvious that the ecological damage and overexploitation of resources in the South by Northern economies easily outweighs the financial debt.past. In particular. Southern movements sometimes
. which are not found in neo-classical trade theories or in current trade policies. generally considered to be one of the driving forces behind development. the South as creditor. Whereas the future-oriented focus is of course clearly present in global climate negotiations. but also at ‘the era of development’ after World War II: a lot of this development has been debt-driven. Ecological debt draws attention to how the present situation has grown out of the . Third. nor in ecological terms. people are used to thinking in terms of developing countries as debtors of a huge financial debt. The new way of looking at past and present relations between countries is one of the important ‘eye-openers’ of ecological debt. i. the so-called Brazilian Proposal being one of the exceptions that tries to deal with historical responsibility in distributing emission reductions. because it corresponds with a reality being faced by human beings in oppressed situations. From an industrialised country perspective.
the new frame for looking at the world.and. but that it also showed some weak points. All these characteristics of the concept (bringing historical perspective to the sustainability debate. but there was no univocal definition: definitions differed between texts and actors. translating a potential into actual power to change policies. During the first months of the projects.17 Application should be understood here as an attempt at formulating policy guidelines to address ecological debt nationally and in an international context of UN negotiations. The new perspectives.16 3. a need . at least from the point of view of quantification and developing policy guidelines. may demand more than a good idea. when recognised. as well as an attempt at quantifying part of Belgium’s ecological debt for the energy/climate theme and the agriculture/food supply theme. where the right to a clean and safe environment is defined as a human right. it became clear that ecological debt indeed had a huge policy potential. However. uniting comparable experiences of Southern peoples) can be seen as an example of what theories on social movements term ‘cognitive praxis’. definitions
. which implies that new perspectives on reality can grow out of the knowledge interests of social movements.14 All (scientific) knowledge is socially embedded. Eyerman and Jamison state that one of the most important characteristics of social movements is their ability to ‘produce’ knowledge. This was the anchor point for a research project that was set up in 2003-2004 with the aim of clarifying the concept of ecological debt and studying its relevance and applicability in Belgian and international policy.Gert Goeminne and Erik Paredis
______________________________________________________________ formulate this as ‘empowerment’ of the South and Southern peoples in international relations. and a grassroots perspective is added with a shift in perspective away from abstract sustainable development policies to the lives and problems of ‘real people in real places’. social movements (from the South) are opening up a context for re-interpretation of knowledge. with questions such as ‘who gets what. there appeared to be a general understanding of what ecological debt was. Through the use of the concept of ecological debt. Through ecological debt. how much and why?’ a rights discourse is added. formulating a new perspective on debtors-creditors in international politics. Amongst the NGOs involved.to rethink sustainable development policies at different levels. the interpretation of sustainable development is enriched with typical environmental justice characteristics:15 an analysis of power relations and patterns that reproduce existing inequalities is added. Preparing Ecological Debt for Application in National and International Politics Its different characteristics turn ecological debt into a potentially powerful concept for reframing and reorienting national and international sustainable development policies. open up a possibility .
terms were interpreted in different ways.
2. as well as for a methodology for calculating ecological debt in physical or monetary terms. Another proof that the concept was still developing is the fact that the discussion on how ecological debt should be handled politically was a very limited one.e.44
The Concept of Ecological Debt
______________________________________________________________ changed over time. they went back at most 15 years (for carbon debt). were meant to ensure this. Cooperation during the research with the Flemish NGO VODO (one of the most active European NGOs in the networks) and several discussion and exchange moments with representatives from southern NGOs in the campaigns. These two core elements lay the foundation for a definition of ecological debt. Important questions remained unanswered. The research distilled two core elements in the meaning of ecological debt. and/or the exploitation or use of ecosystems and ecosystem goods and services over time by country A at the expense of the equitable rights to these ecosystems and ecosystem goods and services of other countries or individuals. such as how the concept could be introduced at different political levels. such as had been developed in the campaigns.
1. and/or the ecological damage caused over time by country A to ecosystems beyond national jurisdiction through its consumption and production patterns. and often just 1 year.
3. tried to stay as close as possible to the original meanings and interpretations of ecological debt. Calculations were always limited in time. either in physical or in monetary terms. ‘causing ecological damage elsewhere’ and ‘using ecosystem goods and services at the expense of equitable rights of others’. The proposed definition reads as follows:18 The ecological debt of country A consists of: the ecological damage caused over time by country A in other countries or in an area under jurisdiction of another country through its production and consumption patterns. The operationalisation of ecological debt in the research project in terms of policy guidelines and quantification. who should initiate it and how it should be interpreted in different contexts. Political interpretations of the concept usually only referred to the external debt context or to climate negotiations (the so-called carbon debt). Furthermore. i. no methodology to calculate ecological debt had been agreed upon. primarily meant to be suitable in international negotiations in a UN context.
. Two prominent demands are compensation for accumulated ecological debt from the past and the avoidance of new accumulations in the future by restructuring production and consumption patterns in industrialised countries.
non-traded goods based on economic techniques to assess the value of goods or services that have no market value. ‘country’ is not further defined so that in principle all countries can be ecological debtor or creditor (which is presently gaining in importance. The proposed methodology is schematically represented in Figure 1. the relations between China and some African countries). for example. Monetary valuation is sometimes necessary (as in the debate on external debt) and attracts a lot of attention. if so desired. This would imply that compensation for damage to non-economic. is not feasible within the concept of ‘environmental damage’. Table 1 gives a concise overview of possible refinements. where possible the content of ‘environmental damage’ is restricted to compensation and restoration of traded natural goods (for example. ‘Use at the expense of’ can be measured by. ‘use at the expense of equitable rights’) also lay the foundation for a quantification methodology. such as the territorial sea and the exclusive economic zone. An area under jurisdiction of another country means an area in which a country can legally exercise sovereignty or sovereign rights. Ecological damage is caused ‘over time’: this explicitly adds the historical dimension. for example. ecological footprints or environmental space. A necessary underlying tool for calculating a lot of aspects of damage or use is material flow analysis. Information needed from MFA includes material requirement. but it is not an absolute
. Monetary valuations dominate the current debate on ecological debt. spatial scales of damage. All these instruments calculate ecological debt in physical terms. A possible next step is a monetary valuation of this ‘physical’ ecological debt. ‘Ecological damage’ can be measured by a combination of indicators. The two main elements of the working definition (‘ecological damage’. The research project evaluates physical and monetary calculations as being complementary. The definition allows for several refinements. For instance. considering. since the methodology has to be able to trace ecological damage or use elsewhere. the country of origin of the flows and their evolution over time. such as the high seas and space. equitable rights to ecosystem goods and services. debtors and creditors and timescales. including what is meant by ecological damage. definitions for actors other than countries are possible. for which several techniques from neoclassical environmental economics are available. ‘Beyond national jurisdiction’ refers to those areas in which no state can exercise sovereignty or sovereign rights.Gert Goeminne and Erik Paredis
______________________________________________________________ This phrasing was carefully chosen through discussions with experts in international law that were part of the research team. fish for consumption). the composition of this material requirement. The terminology ‘ecological damage’ is preferred over ‘environmental damage’ because in judicial interpretations of the majority of environmental liability conventions and subsequent case law. which may be organised in a DPSIR-framework. Based on the definition.
The Concept of Ecological Debt
______________________________________________________________ necessity. Table 1. Belgium’s total carbon debt. and/or (2) the ecological damage caused over time by country A to ecosystems beyond national jurisdiction through its consumption and production patterns. and to 5787 million tons according to the other (which can be compared to a total CO2 emission of 115 million tons of CO2 in 2001). continental. regional. Refinement for ecological damage: According to type of interference: pollution. such as emissions of carbon dioxide (CO2)or figures on land use abroad and related pollution (through fertiliser and pesticide use for example). A monetary valuation of this carbon debt can make use of estimates of the price of one ton of CO2 based on proposed non-compliance penalty mechanisms. Possible refinements for the definition of ecological debt Definition Possible refinements
The ecological debt of country A consists of : (1) the ecological damage caused over time by country A in other countries through its production and consumption patterns. and/or (3) the exploitation or use of ecosystems and ecosystem goods and services over time by country A.g. etcetera. local Refinement for ecosystems and ecosystem services: According to type of ecosystem and service provided Refinement for equitable rights: Different interpretations of ‘equity’ for different ecosystems and ecosystem services Refinement for actors (debtors and creditors) Countries Present and future generations Classes within countries (e. globalised rich. accounted over the period 1900–2003. since recognition of ecological debt or policy conclusions can also be based on physical quantifications. leading to a value ranging from €1 to
. amounts to 4234 million tons of CO2 according to one model. market prices. at the expense of the equitable rights to these ecosystems and ecosystem goods and services of other countries or individuals. degradation According to spatial scale of ecological damage: global. globalised poor) Actors such as companies Refinement for quantification: Physical units Monetary units Refinement for time: A time perspective can be constructed for each category of refinements
We illustrate this with a few examples. depletion.
it co-constitutes the facts and as such it shapes the content of the resulting scientific knowledge. Discussion Part 1: The Intervention of Science As discussed above. The philosopher of science Thomas Kuhn coined the paradigm concept as a worldview to which scientists are committed which defines the legitimate problems (‘puzzles’) and prescribes the rules and standards to solve them.Gert Goeminne and Erik Paredis
______________________________________________________________ €100 per ton of CO2 emitted. Adopting the paradigm of ecological debt reveals the world in a different way: a commodity can no longer be seen without simultaneously realizing the network of environmental and social links that 4. but with figures from 1950–2000. And this is exactly the case with the concept of ecological debt. we take this one step further and regard a paradigm as a necessary condition of possibility for observing facts.
Figure 1. In a transcendental interpretation explored in more detail by Goeminne. a paradigm is what makes it possible to ‘see’ facts. Applying market prices of €20 per ton of CO2 by way of example. it becomes possible to calculate carbon debts/credits for other countries. In this interpretation.21 In our view. monetary valuation is an optional next step. ecological debt presents a new paradigm for interpreting the world. Methodology for calculating ecological debt in its physical and/or monetary form. Biophysical accounting systems form the basis. we do not merely view a paradigm as a kind of theoretical sauce that is poured onto the objects of reality and that gives them their flavour.
. a paradigm shift provokes a new way of observing and interpreting the world.20 Contrary to many Kuhn-interpretations. Using the same calculation methods.19 gives a total Belgian carbon debt of €84 or €116 billion (depending on the model used). a new paradigm reveals the world in a new way. resulting in a carbon credit between €1010 and €1452 billion for India and between €54 and €76 billion for DR Congo.
In our view this is exactly what has happened with the concept of ecological debt in most of the scientific articles elaborating on ecological debt:22 what qualifies most of these approaches is exactly an attempt to narrow down the concept of ecological debt. Whether the issue is climate change or nuclear energy. ‘frames’ questions and how this is often not realised in our Western world. here and now. thrusting aside a reflexive conceptual discussion. I see that my well-being. This not only leads to the raging environmental controversies we are experiencing today regarding the validity. the way the scientific paradigm frames environmental problems and solutions. i. is connected to many instances in space and time and lots of these connections can be questioned in terms of equity and sustainability. previously hidden from the Western eye. there is no legitimate place to stand outside of science: what cannot be incorporated into the scientific paradigm does not have a reality. disinterestedness and numbers? An important starting point for discussing this is to see how science. this one-dimensional discussion leaves the scientific questions. In contemporary Western culture. The main question we want to discuss here is a reflexive one: what does it mean to incorporate a grassroots concept such as ecological debt into our Western scientific framework as we have done in our research project? Or to put it in paradigmatic terms: what happens when we want to introduce an organically grown paradigm into our Western scientific paradigm ruled by objectivity.
. unquestioned. dose limits. As such. 2500 years of Western history have turned the scientific attitude into the only possible and legitimate way of thinking about societal problems and solutions. ecological debt opens up a space in which certain unsustainable realities. into a merely scientific one.e. my thoughts wander from the hazardous uranium mine where the ore is found that eventually fuels my laptop. can be revealed and discussed. with its richness of nonscientific perspectives mentioned above. Seeing the potential for the ecological debt concept to grow into a strong and enriched sustainability paradigm we were very interested to advance the concept in order to enable it transcending its status of mere campaigning instrument.48
The Concept of Ecological Debt
______________________________________________________________ were needed to produce it. Sv dose equivalents. over the computer assembly factories in China to the nuclear waste dumping sites in Africa. In such a scientifically conditioned context. the resolution is sought in ever more science. In the best of scientific traditions. In the latter paragraph we have shown how we have elaborated on a broad conceptualisation as well as a quantification methodology.…) which inevitably gives rise to a quest for scientific solutions (carbon tax. More fundamental.…). science fills our entire horizon. Environmental problems generated by the products of science are indifferently framed in scientific terms (CO2 concentrations. objectivity and correctness of the answers science provides. like every paradigm. When I am sitting at my desk behind my laptop and adopt the ecological debt paradigm.
the Southern activists usually demand measures of a fundamentally different nature.25 This brings us to our own approach. an unconditional cancellation of foreign debt. the essence of ecological debt according to a scientific (i. the whole paper nevertheless deals with the quantification method. a moratorium on oil exploitation. Not only did we have the Flemish NGO VODO in our research team. relates to what is at stake in the ecological debt discourse originally developed by Southern NGOs. ethically and empirically fraught’. a radical reorientation of international trade policy. the way our project progressed can be nicely described in terms of ‘resistance and accommodation’. As has been explained in detail by Kuhn a paradigm shift is always accompanied by a certain degree of incommensurability and this is also the case here. A clear example of this can be found in a recent paper by Srinivasan et al. almost always related to a shift in power relations. others radically oppose it fearing that the ecological debt issue. Instead. Although it is briefly admitted that ‘valuing environmental and human health impacts is conceptually. would be reduced to demands for monetary compensation alone. This narrowing down of the concept of ecological debt observed in these approaches is in our paradigmatic view best described in terms of ‘appropriation and transformation’: the paradigm of ecological debt. In our search for a working definition we
.Gert Goeminne and Erik Paredis
______________________________________________________________ these elaborations rush forward to objectification: ecological debt is provided with a uniform definition that allows for a uniform calculation and valuation method. This is also the impression one gets from the range of views from Southern voices on the issue whether or not to quantify ecological debt in monetary terms.e. once it is transformed into a monetary number. ethical and empirical aspects which make out the heart of the concept of ecological debt. environmental economics) paradigm. organically grown from and intertwined with the lives and problems of ‘real people in real places’ is unreflexively appropriated by the scientific paradigm and in this process it is transformed into a scientific object.e. we are convinced that we adhered at least to a certain degree of reflexivity.23 Here ecological debt is straightforwardly defined in quantitative terms as ‘the environmental costs of human activities over 1961-2000 in six major categories’. Compared to the ‘appropriation and transformation’ approach mentioned above. which ensured relations with all the networks mentioned. i.26 Compared to the examples mentioned above.24 It is indeed hard to see how a certain amount of dollars. Whereas some take a rather pragmatic stance in saying that quantification can assist campaigning and lobby-work for the recognition of the existence of an ecological debt. thrusting aside all these conceptual. A framing in monetary terms would provoke a search for a solution in monetary terms: nothing structural would happen. we also organized face-to-face discussions with Southern NGO-representatives. such as a withdrawal of multinational companies from developing countries’ resource industry.
One example deals with the notion of equitable rights we used in our definition of ecological debt. others are possible. From this. we tried to accommodate their concerns and reactions and would come up with a revised definition. elementary health provision. it is sometimes argued that traditional farmers or indigenous peoples are the owners of the knowledge. these are divided on a per capita basis on a global scale. for example.50
The Concept of Ecological Debt
______________________________________________________________ would come up with a preliminary version. And this went back and forth a few times. Still another form of ‘equitable’ might be an interpretation of equity as subsistence rights.28 The per capita calculation is done on a continental basis. and a roof over one’s head. For example. Finally. which typically provoked some resistance from the NGO-voices involved in the project.’27 Consequently. Usage of the term ‘equitable’ allows for different interpretations. This is highly controversial. countries have the sovereign right to the resources on their territory. implying that there is no equal access for all inhabitants of the planet. with globally accessible resources. global sinks and causing environmental problems on a global scale. but in debates on sustainable development a per capita approach is sometimes advocated (see FoE argument above). After a long discussion and a process of resistance and accommodation we decided to use the broadly interpretable term ‘equitable’ instead of a pinned down idea of what equitable should mean.30 Access to these services is a minimum requisite of the use of equitable development. ‘so that each continent should have a balanced production and consumption. To begin with. The Friends of the Earth campaign on environmental space explicitly stated. with the sovereign rights of states to use their territory. different interpretations exist. which encompass what individuals need to develop as living beings: clean air and drinkable water. Wood and agricultural products are regarded as continental resources. it is important to stress that equitable differs from ‘equal’.29 Apart from the ‘equal’ interpretation of ‘equitable’. not occupying fertile land in foreign countries on a permanent basis’. since it clashes. According to international law. In this way we were constantly forced to rethink our own approach. guaranteeing a more reflexive way of applying a scientific framework. with one of the interpretations being ‘equal’. in the case of information and knowledge on genetic resources. In the case of raw materials. water is considered a regional resource ‘so the availability and the permitted use will be calculated on a regional basis’. The egalitarian interpretation of equity corresponds to ‘equal’ and in the ecological debt debate this approach is almost always used in the discussions on climate change. ‘energy and non-renewable raw materials are seen as global commodities. this would imply that every individual has an equal right to all ecosystems and ecosystem services.
. This egalitarian approach might also be used for other ecosystems and services. If the term ‘equal’ had been used. adequate nourishment and clothing.
Although we still saw the numbers as essential to the concept at that time. In our Western world. leaving room for politics to make real decisions. a radical reorientation of international trade policy. Already then. Science. whenever we performed calculations. up till recently the politics of sustainability have been governed by an ever-present claim for rational decision-making. science claims the monopoly over rationality. The same goes for the monetisation issue. This is precisely the concern that has been voiced by Southern activists in the ecological debt context when they demand measures of a fundamentally different nature. This implies that radically different choices have to be made on a political level. away from deterministic rational decision-making and leaving space for political decisions and action. are attempts to explore such new ways of
. Although we did calculate monetary values based on our definition and certain normative interpretations (for example. dismisses politics in making choices. the concept of ecological debt offers a discourse that allows local groups to speak up and voice their concerns. we deliberately did not settle the ecological debt issue once and for all. however. we did explicitly point to the normative decisions to be made before one can arrive at a scientifically objectified number. we view this as an attempt to broaden this language with a numeraire. see above). a moratorium on oil exploitation or an unconditional cancellation of foreign debt. As mentioned. When demanding the withdrawal of multinational companies from developing countries’ resource industry. not as a clear-cut scientific theory nailing down complex lifeworld problems to bare numbers. besides a plea for more reflexivity in sustainability science. putting more emphasis on political acting and decision taking. Looking back from our present stance. as it were. we could even say that we put too much focus on it. In this way. which has resulted in a complete scientisation of politics: political questions no longer deal with the foundation of a decision.Gert Goeminne and Erik Paredis
______________________________________________________________ In using the term equitable we have tried to accommodate different concerns voiced in the original ecological debt approaches such as those about indigenous knowledge and subsistence rights. If we present a methodology to quantify ecological debt. So. they plea for structural change rather than a purely monetary compensation of a purely scientifically framed ecological debt. we now think that this quantification and monetisation should be regarded as an enrichment of the ecological debt language. System innovation and transition management. which will be briefly discussed in the next section. but are rather an application of the scientific results. this discussion also contains a plea for a new approach to sustainability politics. equal for equitable in the case of climate change. It must be recognized that during the research project.31 Indeed. we have now moved to what could be called a ‘post-normal’ attitude. we did focus on a calculation methodology and numerical results.
and by using ecological goods and services at the expense of equitable rights of others. ecological debt can aid in clarifying what is at stake and in broadening the perspective of approaches for sustainable development that are currently promoted in industrialised countries. ecological debt is not just relevant from a historical perspective. this situation does not relieve or excuse industrialised countries and their companies from taking responsibility for the consequences of their actions. and thus without burden shifting either geographically or in time. In that quest. However. NGOs and scientists have been promoting concept such as the ecological footprint. but while in particular the first two are able to frame the discussion in terms of equity and sustainability. Even though we are by now more than 20 years after the Brundtland report and more than 15 years after the UNCED conference. In fact. economic) might be considered as a central feature of wealth accumulation in industrialised countries. this last part of the paper takes a reflexive look at the concept from a political point of view.52
The Concept of Ecological Debt
______________________________________________________________ dealing with radical choices and structural changes at the interface of science and politics. repayment or other forms of recognition of ecological debt will. scant attention has been paid to these negative impacts of industrialised countries’ policies abroad and on global ecosystems. but these cannot make the difference. Restitution. Southern peoples’ movements and grassroots organisations have not been able to build enough countervailing power to push their own governments to table the topic with a lot of conviction. A lot of countries have some form of sustainable development plan. but it is accumulated daily through two mechanisms: by causing ecological damage elsewhere. Still.
. only come about when the theme is put in the agenda of international negotiations and is championed by Southern governments. there are hardly any signs of a profound restructuring of developed countries’ economies towards more equity and sustainability. the consumption and production patterns of industrialised countries are responsible for the accumulation of ecological debt. reparation. Discussion Part 2: Redesigning Sustainable Development Policies towards Radical System Innovations and Transitions While the previous section took a reflexive look at ecological debt from the point of view of the intervention of science in the debate. burden-shifting (environmental. environmental space or factor 10. serious policies for sustainable development in industrialised countries should start focusing on radically restructuring economies in order to create a style of welfare and well-being that can be reproduced without endangering the planet and its people. Day after day. in the current world order. In the past. they have so far not been able to yield significant policy shifts. 5. Henceforth. As has been stressed above. social. so far.
33 From studying historic transitions. the energy system.35 What complicates the picture even more is the fact that the overall goal is to move the system in the direction of more sustainability and equity. patterns of thinking and value systems. However. by the Dutch government since 2001. the mobility system and the health system. persistent problems in the systems that are central for their welfare creation.32 In the transition perspective. opinion and value. institutions. interdependency and uncertainty that are characteristic of our society’. new policy. economical. multi-factor. This approach. the problems are perceived differently by different actors. This undermines the idea that one rational scientific explanation can be found that can unambiguously advise policy. that they take place through interactions between different levels of a system (niche. Radical innovations at the level of these systems are deemed a prerequisite for changes towards more sustainable development in industrialised countries. it has become clear that transitions usually take a long time to develop (25 to 50 years) and go through different stages. culture and practices are broken down and new ones are established’. structures. regime. socio-cultural). landscape). and that they are the result of interaction between networks of actors. was developed by Dutch scientists and has been implemented. that they are not caused by a single factor but by an interplay of many factors that influence each other (technological. In other words. ecological. These new governance approaches will have to start from the complexity.or governance-approaches need to be developed which take into account the inherent conflict of interest. persistent problems are highly uncertain in terms of future developments. so that problem definitions as well as favoured solutions differ. they are multi-actor. more in line with the in-depth restructuring demanded by ecological debt insights. current industrialised societies are analysed as societies wrestling with complex. practices. Traditional policy and science approaches merely perpetuate these structures and modes of thinking. Third. also opposing the idea of uncontradictory policy guidelines based on sound science.Gert Goeminne and Erik Paredis
______________________________________________________________ An approach that may be promising for initiating a learning process in policy-making towards better choices for sustainable development. multi-level and stretching over a long period of time. Secondly. such as the food system. at least partly.34 This has led transition researchers to conclude that radically reorienting societal systems towards sustainable development cannot be done with traditional policy and science recipes. A transition then is a transformation process ‘in which existing structures. The first reason is that the problems we are struggling with are deeply rooted in our institutions. is the approach of radical system innovations and transitions. ‘In order to properly address the complexity of the processes of change needed in these sectors. these cannot be unequivocally defined and the transitions approach therefore
. which is currently rapidly gaining attention in Europe.
and projects and experiments are set up to initiate a process of learning-by-doing and doing-by-learning.39 NMP4 formulated the ambition of realising fundamental changes (transition) in four policy fields: the transition to sustainable energy. In later stages. as it is often called . but in particular to pay more attention to the processes leading to this goal. changing their perspectives on the problems in the system and leading to a common longterm outlook. plus a shared vision of what a long-term structural change for that system might be. uniting comparable experiences of Southern peoples) have to get internalised somehow and become a normal way of thinking. tacit) try cooperatively to define a problem and find solutions. The new perspectives that ecological debt brings to the sustainability debate (bringing historical perspective to the sustainability debate. Grin borrows a concept from Charles Lindblom to plead for a mode of knowledge generation called ‘inquiry’ or ‘probing’. which goes much further than system improvement.40 More than five
. potential transition paths leading towards the vision are identified. power issues. sustainable mobility. It is important that the systems as a whole were seen an unsustainable and in need of structural change. The hope is that in this way a common understanding and discourse is developed.37 This is not the place to go into how transition policy actually turns out in practice. Suffice it to say that in the ‘mainstream approach’ to transition management38 through a process in a multi-actor setting. and therefore contextual in nature’. first try to develop an analysis of the problem at hand and then try to develop a sustainability vision for that problem. in that way opening up a window for policies aimed at a radical restructuring of industrialised countries’ economies.54
The Concept of Ecological Debt
______________________________________________________________ advises not only to focus on an end goal. universal truth. local.36 This is a process in which experts and other actors.or transition management. or in the words of Lindblom. based on different kinds of knowledge (scientific. called a ‘transition arena’. experiential. but is strongly action-oriented. sustainable agriculture. and the transition in biodiversity and natural resource use. preferences. cited by Grin: ‘problem solving becomes instead a process of bringing inquiry and knowledge to bear in such a way to alter dispositions and positions so that they make a solution possible later’. ‘Inquiry does not aim at some form of objective. This social learning is exactly what is needed for ecological debt insights to be incorporated in sustainability visions and policies.in the Dutch Fourth National Environment Plan (NMP4). in the process also discovering values. An important breakthrough for the transitions approach was the recognition of the necessity of transitions and the inclusion of transition policy . Crucial in the whole model is that it should lead to social learning amongst the actors involved. formulating a new perspective on debtors-creditors in international politics. pro-active members form the stakeholders in the system under discussion.
Of course. First of all. different policy fields such as the ones mentioned above are experimenting with transition approaches and trying to learn from it. 6. the mobility system or the health system. the energy system. Adopting the paradigm of ecological debt provokes a real ‘gestalt-switch’ revealing the world in a new way: not only are relations between North and South now reframed in the light of both a historical and an ecological-material equity perspective on trade and development. Secondly. ecological debt moreover provides a framework for radically rethinking sustainable development policies. participation and representation. as we have tried to show from a reflexive analysis of how we dealt with the concept in our research. Other problems include questions of legitimacy. Conclusions Throughout this paper we have dealt with the concept of ecological debt from very different though related angles: ecological debt is seen as an enriching sustainability discourse that calls for radical changes based on a different way of doing both science and politics. and some experiments have started in other European countries. political concept that has been given shape by scientists. politically implementable answers. System innovation and its translation into transition policy are still very young and wrestle with typical problems. But what is promising for proponents of an ecological debt and environmental justice perspective is that radical innovation of production and consumption systems is on the agenda. transition policy and transition research have gained solid ground in the Netherlands. as well as a new governance approach that opts for problem definition. such as the power structures and conflicts of interests that are encountered when probing for radical transformations in the food system. One could say that on the one hand it is a grassroots. long-term envisioning and practical experiments under the form of a broad and participatory social learning process. we think such a strict demarcation line is contra-productive in view of the in-depth restructuring of sustainability policies demanded by ecological debt insights. we have analysed ecological debt as a concept that is positioned on the interface between science and politics. There lies a long road between theoretical insights and practical.41 While it does not replace regular policy. and the influence of transition policy on the renewal of regular policy. Moreover. we have tried to show how this concept came into being and how its organic history is closely connected to its potential to enrich sustainability discourse with an environmental justice perspective. this does not mean that as if by magic all policy choices become sustainable. Such a double-sided view however goes beyond the fact that a strict demarcation line between science and politics is impossible to draw. on the other hand it can be viewed as a scientific concept giving shape to political action.Gert Goeminne and Erik Paredis
______________________________________________________________ years later. Our analysis of ‘appropriation and transformation’
K R Smith.). 3 The Alternative Treaties were published in R Pollard. BC and Philadelphia. 2 ibid. Gabriola Island. Our Ecological Footprint: Reducing Human Impact on the Earth. R D Bullard and B Evans. Cheltenham. G Goeminne and W Vanhove. Ideas for Tomorrow Today and International Synergy Institute. 1991. system innovation and transition management have been briefly discussed in this respect as promising hybrid frameworks on the science-policy interface calling for a more reflexive and action-oriented approach towards radical change. 1996. 8 E Paredis. Ecological Economics. Santiago. Centrum voor Duurzame Ontwikkeling. Earthscan. PA. Deuda ecológica. 2004. J Lambrecht. The Environmentalism of the Poor: A Study of Ecological Conflicts and Valuation. 227-238. Finally. ‘Defining the Generational Environmental Debt’. as science and politics are viewed as inseparable in our post-normal perspective. 7 J Martinez-Alier.. 2002. pp. 14. 1995. 7-19. 16. Ecological Economics. 20. Universiteit Gent. W Sutherland (eds. Starting from our own ‘resistance and accommodation’ approach towards ecological debt. p. is a plea for a more action and choice-oriented politics of sustainability. 1992. Just Sustainabilities: Development in an Unequal World. Final Report. R West. 326. 2003. New Society Publishers. New York. Inherently contained. 1996. vol. pp. 95-96.
. pp. this paper develops a plea for more reflexivity and openness towards the political dimension in sustainability science. Chile. vol. 4 M L Robleto and W Marcelo. 6 M Wackernagel and W Rees. J Jenkins.56
The Concept of Ecological Debt
______________________________________________________________ approaches towards ecological debt indeed shows that such a strictly scientific framing ruins the enriching ethical-political perspectives the concept has to offer. Moreover it inscribes itself in a deterministic process of rational decision-making leaving no room for real political choices and actions towards radical change. Edward Elgar Publishing. 1993. 5 C Azar and J Holmberg. Instituto de Ecologia Politica. Elaboration of the Concept of Ecological Debt. vol. ‘Democratising the Global Economy by Ecologicalising Economics: The Example of Global Warming’. ‘Allocating Responsibility for Global Warming: The Natural Debt Index’.
J Ageyman. Alternative Treaties: Synergistic Processes for Sustainable Communities and Global Responsibility. Ambio. London.
p. vol.. Chicago. 10 ibid. op. De Gids op Maatschappelijk Gebied.cit. May 2005. ‘Questioning the Questions of Science: Is the Environment in Need of a New Science?’. 17 For the full report of the project. op. ‘Geprangd Tussen Olie. which stated that ‘Belgium will study the concept of ecological debt and its practical applicability in policy’. 2003. 12 Some of these cases can be found in Bravo and Yánez. 14. ‘An Ecological Footprint Approach to External Debt Relief’. op. 2161-2171.. 1991. ‘The Debt of Nations and the Distribution of Ecological Impacts from Human Activities’.. 2008. op. 31. The Structure of Scientific Revolutions. op. 30-41. Smith. 64-80. 11 Martinez-Alier. cit. 16 A Blowers. Jenkins. U T Srinivasan et al.Gert Goeminne and Erik Paredis
______________________________________________________________ A Donoso. in No More Looting and Destruction! We the Peoples of the South are Ecological Creditors.). We are Creditor’. 1962. University of Chicago Press. 50.. 18 ibid. Pittsburgh. in Ageyman et al. Cambridge.. Oxford University Press. World Development. Social Movements.cit. pp. 2007. E Bravo and I Yánez (eds. p. a sentence that was used by the then Minister of Development from the Green party to propose a research project through the Policy Preparation Research Program of the Flemish Interuniversity Council VLIR. 2003. A Cognitive Approach. 17861773. 105. vol. 19 The market price for one ton of CO2 in the EU-ETS was between €25 and €27 in May 2008.
. others are presented during workshops at international forums such as the World Social Forum. pp. Reuzegarnalen en Stortplaatsen: De Wereldwijde Strijd voor Ecologische Rechtvaardigheid’. Polity Press.. SPEDCA. cit.. Annual Meeting of the International Association for Environmental Philosophy. Proceedings of the National Academy of Sciences of the USA. 21 G Goeminne. The institutional logic behind the project was one sentence in the first Federal Plan for Sustainable Development 2001-2004. in that way hoping to gather information that could contribute to his development policy. 22 Azar and Holmberg. Quito. 13 World Commission on Environment and Development. ‘We are not Debtors. pp. M Torras. New York/London. 1987.cit. op cit. op. Our Common Future. 20 T S Kuhn. 15 E Paredis. 14 R Eyerman and A Jamison.cit... see Paredis et al. ‘Inequality and Community and the Challenge to Modernization: Evidence from the Nuclear Oases’.
in Managing the Transition to Renewable Energy. p. J Rotmans. Cheltenham. 6. p.. op. 14. op. 35 Loorbach. Journal of Cleaner Production. Edward Elgar Publishing. 17. 2004. 31 S Funtowicz and J Ravetz. 33 Loorbach. 2007. for example. Nationaal Milieubeleidsplan 4: Een Wereld en Wen Wil. Technological Transition and System Innovations: A Co-Evolutionary and Socio-Technical Analysis. 25. Edward Elgar Publishing. D Loorbach.
.). November 2003. 2007. 2005. op.. Wuppertal Institute for Climate. op. Transition and Transition Management: The Case for a Low Emission Energy Supply. 137. First Results.. 39 VROM. 41 For Flanders. p.. 2008. Kuhn. op.). 28 ibid. F W Geels. cit. pp. Ruimtelijke Ordening en Milieu. ICIS. A Friends of the Earth Europe Campaign. 1995. cit. p. Friends of the Earth.cit. Energy. 38 A Tukker and M Butter. Ministerie van Volkshuisvesting. 34 Elzen et al. Futures. Environment. Den Haag. The Handbook. vol. Edward Elgar Publishing. 2001. B Elzen. Utrecht. ‘Science for the Post-Normal Age’. 27 J H Spangenberg (ed. 735-755.). cit. London. Gent.58
The Concept of Ecological Debt
______________________________________________________________ Srinivasan.). F W Geels and K Green (eds. op. cit. 25 See the articles in Bravo and Yánez (ed. op. Cheltenham. vol. op. R Kemp. Transition Management: New Mode of Governance for Sustainable Development. 15. see E Paredis. M Van Asselt. 36 J Grin. pp. 94-103. 59. Surfacing Tensions. ‘Environment and Human Rights’. System Innovation and the Transition to Sustainability: Theory. 40 Loorbach. 30 W Sachs. CDO/UGent. International Books. Maastricht. G Verbong and K Molendijk. cit. 32 See. ‘Governance of Sustainable Transitions: About the 4(0) Ways to Change the World’. ‘The Multilevel Perspective and Design of System Innovations’. Wuppertal Papers No. Towards Sustainable Europe. Transition Management in Flanders: Policy Context. 6. 37 ibid. 2007. Evidence and Policy.. 29 ibid. Cheltenham. F W Geels. J Van den Bergh and F Bruinsma (eds. cit. 1993.. cit. 26 Paredis et al. 2001.
We are Creditor’. Bravo and I. Edward Elgar Publishing. B. Cambridge. Social Movements: A Cognitive Approach. 14.. G. A. Quito. B. A. 2007. K. Bravo. E. Cheltenham. Ageyman.. Grin. pp. SPEDCA. Technological Transition and System Innovations: A CoEvolutionary and Socio-Technical Analysis. D. R. F. in No More Looting and Destruction! We the Peoples of the South are Ecological Creditors. Donoso. Earthscan. 7-19. and Holmberg.. London. London. System Innovation and the Transition to Sustainability: Theory. vol. 1991. and Yánez.).W.). 2005. J. F. 1993. J... ‘The Multilevel Perspective and Design of System Innovations’. Geels.. and Jamison A. Polity Press. ‘We are not Debtors.. J. Cheltenham. Goeminne. ‘Science for the Post-Normal Age’. Eyerman. 2008. Bullard. ‘Inequality and Community and the Challenge to Modernization: Evidence from the Nuclear Oases’. C. 25. 64-80.W. 2003.. 2003. and Ravetz. 1995. in Just Sustainabilities: Development in an Unequal World. (eds. Evans (eds. No More Looting and Destruction! We the Peoples of the South are Ecological Creditors. J.). 2003. ‘Questioning the Questions of Science: Is the Environment in Need of a New Science?’. Van den Bergh. Cheltenham.. J.. vol.Gert Goeminne and Erik Paredis
Ageyman. E. Blowers. S. SPEDCA. I. Earthscan.. J. 735-755. ‘Defining the Generational Environmental Debt’.). Edward Elgar Publishing. in Managing the Transition to Renewable Energy. Bullard and B. Quito. and Green. and Bruinsma. Edward Elgar Publishing. Funtowicz. Azar. Annual Meeting of the International Association for Environmental Philosophy. Futures. 2003.). and Evans. (ed. F. pp. Yánez (eds. Ecological Economics. Evidence and Policy.
. 2004. Elzen. D. Just Sustainabilities: Development in an Unequal World. R. pp. Geels. (ed. Pittsburgh. R.
The Concept of Ecological Debt
______________________________________________________________ Jenkins, J., ‘Democratising the Global Economy by Ecologicalising Economics: The Example of Global Warming’. Ecological Economics, vol. 16, 1996, pp. 227-238. Kuhn, T.S., The Structure of Scientific Revolutions. University of Chicago Press, Chicago, 1962. Loorbach, D., Transition Management: New Mode of Governance for Sustainable Development. International Books, Utrecht, 2007. Martinez-Alier J., The Environmentalism of the Poor: A Study of Ecological Conflicts and Valuation. Edward Elgar Publishing, Cheltenham, 2002. Paredis, E., Lambrecht, J., Goeminne, G. and Vanhove, W., Elaboration of the Concept of Ecological Debt. Final Report. Centrum voor Duurzame Ontwikkeling, Universiteit Gent, 2004. Paredis, E., ‘Geprangd Tussen Olie, Reuzegarnalen en Stortplaatsen: De Wereldwijde Strijd voor Ecologische Rechtvaardigheid’. De Gids op Maatschappelijk Gebied, May 2005, pp. 30-41. Paredis, E., Transition Management in Flanders: Policy Context, First Results, Surfacing Tensions. CDO/UGent, Gent, 2008. Pollard, R., West, R. and Sutherland, W. (eds.), Alternative Treaties: Synergistic Processes for Sustainable Communities and Global Responsibility. Ideas for Tomorrow Today and International Synergy Institute, New York, 1993. Robleto, M.L. and Marcelo, W., Deuda Ecológica. Instituto de Ecologia Politica, Santiago, Chile, 1992. Rotmans, J., Kemp, R., Van Asselt, M., Geels, F., Verbong, G. and Molendijk, K., Transition and Transition Management: The Case for a Low Emission Energy Supply. ICIS, Maastricht, 2001. Sachs, W., ‘Environment and Human Rights’. Wuppertal Papers No. 137, Wuppertal Institute for Climate, Environment, Energy, November 2003. Smith, K.R., ‘Allocating Responsibility for Global Warming: The Natural Debt Index’. Ambio, vol. 20, 1991, pp. 95-96.
Gert Goeminne and Erik Paredis
______________________________________________________________ Spangenberg, J.H. (ed.), Towards Sustainable Europe: A Friends of the Earth Europe Campaign. The Handbook, Friends of the Earth, London, 1995. Srinivasan, U.T. et al., ‘The Debt of Nations and the Distribution of Ecological Impacts from Human Activities’. Proceedings of the National Academy of Sciences of the USA, vol. 105, 2007, pp. 1786-1773. Torras, M., ‘An Ecological Footprint Approach to External Debt Relief’. World Development, vol. 31, 2003, pp. 2161-2171. Tukker, A. and Butter, M., ‘Governance of Sustainable Transitions: About the 4(0) Ways to Change the World’. Journal of Cleaner Production, vol. 15, 2007, pp. 94-103. VROM, Nationaal Milieubeleidsplan 4: Een Wereld en Een Wil. Ministerie van Volkshuisvesting, Ruimtelijke Ordening en Milieu, Den Haag, 2001. Wackernagel M. and Rees, W., Our Ecological Footprint: Reducing Human Impact on the Earth. New Society Publishers, Gabriola Island, BC and Philadelphia, PA, 1996. World Commission on Environment and Development, Our Common Future. Oxford University Press, New York/London, 1987. Gert Goeminne is a postdoctoral fellow of the Research Foundation, Flanders and is affiliated to the Centre Leo Apostel (Free University of Brussels) and the Centre for Sustainable Development (Ghent University). His research focuses on combining insights in the foundations of science and technology with the political needs of the normative project of sustainability. Erik Paredis is a senior researcher at the Centre for Sustainable Development (Ghent University). His research interests include sociotechnical system innovation and transition management for sustainable development, and North–South aspects of the sustainability debate.
The Agrofuel Debate: Conflicts between Diverse Environmentalisms Klemens Laschefski
Abstract The discussion about climate change has brought issues about alternative energy production onto the mainstream political agenda. However, the socalled ‘biofuels’ - or ‘agrofuels’ - in particular, are already under scrutiny because of their potential to stimulate agricultural expansion in ecologically sensitive areas and traditional peoples’ territories. Four streams of environmental thinking approach the question in different ways. The current dominant line - ecological modernisation - considers agrofuels as a viable alternative to fossil fuels. To reduce conflicts with the local peoples’ areas and threatened ecosystems, they call for regulation of the global agrofuel trade through certification schemes. The second approach is questioning energy consumption patterns, and presenting a general ecological critique of capitalist society. This critique is shared by indigenous and peasant movements in developing countries, which perceive the expansion of agrofuels as a threat to their societies. Therefore, the agrofuel debate provokes a connection between them claiming for environmental justice, resulting in a counter-discourse to ecological modernisation, as seen in some campaigns against monocultures in Brazil. Key Words: Agricultural expansion, agrofuels, biofuels, environmental justice, environmental movements, political ecology, social conflicts, traditional people. ***** Introduction In 2007 the IPCC (Intergovernmental Panel on Climate Change) launched its Fourth Assessment Report (AR4), alerting the public that there is now enough scientific evidence for climate change.1 Therefore, the researchers requested urgent political action, particularly with respect to the current energy production and consumption patterns worldwide. Remarkably enough, the question of alternative energies was also discussed at the World Economic Forum in Davos - of course with a different focus: the political instability in the most important oil producing countries of the middle east, which, in spite of the intervention in Iraq, is far from being resolved.2 These very different contexts of the energy issue were expressed clearly by the President of the United States, George W. Bush, on 5 March 2008, during the opening speech of a conference about renewable energy, 1.
The Agrofuel Debate
______________________________________________________________ when he claimed ‘…let me start first by telling you that America has got to change its habits. We’ve got to get off oil.’3 Besides climate change and national security risks, he also addressed necessary changes with respect to oil dependent strategies of economic growth and poverty reduction.4 It seems that the ideas and concepts previously considered to be the utopia of ideological environmentalists are becoming reality. Within this context, the question of so-called biofuels is occupying a central role. However, there is an increasing understanding that biofuels might lead to a further pressure on ecosystems like the Amazon Rainforest and to competition with food crops. A significant increase in prices for the latter has already been observed.5 Given these problems, journalist George Mombiot raised the question of whether we want to feed cars or people.6 The debate about the ‘agrofuels’ - the critics’ term for biofuels - is pointing out contradictions beyond technical and economic aspects of the alternative fuels. Consequently, tensions, and even conflicts, between the diverse streams of environmental thinking can be observed. Several authors have already systematised approaches of environmental thinking and their relationship with liberalism, marxism, anarchism, feminism, individualism, critical theory and Christianity.7 In contrast, we propose a distinction of four kinds of environmentalism regarding spatiality, as we understand that the agrofuel debate is focused on the scarcity of land, as reflected in conflicts about territories. These tensions are partly based on their diverging visions about society and space - not only the human–nature relations - or, as Lefèbvre would say, the different modes of production of space, as presented in the following sections.8 Ecological Modernisation According to David Harvey, the framework of ecological modernisation is based on the idea that economic activity is systematically producing environmental damages or ‘disruptions of ‘nature’’.9 Society needs to adopt a pro-active role in the regulation of the environment aimed at the prevention of impacts or - if these are considered inevitable - the mitigation of or compensation for these damages. Therefore, it is necessary to implement transversal policies, institutional arrangements and regulatory practices as proposed by concepts like ‘ecodevelopment’ and ‘sustainable development’.10 These proposals are reflected on the international level by the creation of institutions, such as UNEP (United Nations Environmental Programme) and UNDP (United Nations Development Programme), and the ECOSOC (UN Economic and Social Council), CSD (Commission of Sustainable Development), the Intergovernmental Panels on Climate Change and Forests, and others. Wolfgang Sachs called this structure a global environmental regime that is competing with the economic regime of globalisation and free trade ruled by the World Trade Organisation (WTO).11 2.
for instance.12 It is a strategy of environmental adequation of the hegemonic development model without questioning the contradictions with respect to the sustainability of the production of space in urban industrial-capitalist societies. as seen in round tables. The Reconstruction of the Urban-Industrial-Capitalist Society Within this approach. Social conflicts are thought to be addressed through the promotion of dialogue structures between economic. in accordance with the neoliberal tendencies of the 1990s. are rather based on market instruments than state interventionism. 3. stakeholder processes and other participative strategies to implement ‘sustainable’ policies. these ideas reappeared in a modernised form within proposals for a ‘sustainable’ or ‘futureable society’ . the ‘Achilles heel’ of globalisation .14 The extrapolation of environmental space is called an ‘ecological debt’ as a counterpart to the ‘economic debt’ of development countries .
. which question the industrial ‘society of consumption’ or ‘affluent society’.an inverted allegory to the dependency approach in development theory: industrialized countries are ecologically dependent on the Third World’s resources.13 The concepts of ‘Environmental Space’ or ‘Ecological Footprint’ have been designed to calculate the space which modern societies claim outside their national frontiers to sustain their high levels of consumption. as proposed by ecological modernists. Ecological modernists do not question the ideology of unlimited accumulation of capital and material goods in modern societies.in contrast to ‘sustainable development’ . Further a ‘sufficiency revolution’ is necessary. and are sometimes linked with a critique of capitalism. social and environmental ‘interests’.Klemens Laschefski
______________________________________________________________ Consequently. They stated that sustainability could not be achieved by efficiency revolution alone. which amortize themselves through the reduction of the energy bills.elaborated by several groups of Friends of the Earth in Europe. in 1997. Given the participation paradigm. some of the most important environmental groups have changed their strategies of confrontation to negotiation about pragmatic solutions within consensus-finding processes. according to Sachs.as efficiency gains in material input per production unit will be eaten up by the increase in general resource use if the volume of economic activity expands. as. the solutions discussed within the environmental regime. while contributing to the reduction of green house gases. which is. Environmental problems should be faced through ‘win-win’ solutions. a modified critique on the ‘society of consumption’. In the 1990s. promoted by the motto ‘well-being over well-having’. An example is the programme of reconstruction of industrial society presented in the early 1980s by the Green Party in Germany. we subsume groups. the creation of the carbon trade within the Kyoto Protocol. like investments in energy efficiency.
As Sachs put it.many rural communities in the Third World do not need to wait until specialists. ‘. soil erosion’. following the terminology of Lefèbvre. It is possible to identify some parallels to the approach that promotes the restructuring of urban-industrial-capitalist societies. the recent strategies to modernise these populations are based on the same perspective of development. which is imposed on non-industrialised societies. But these claims had never left the rhetorical level.. This refers to notions like community. decentralization and the questioning of the efficiency of state power.66
The Agrofuel Debate
______________________________________________________________ This approach represents a critique to urban-industrial societies as a whole and is therefore not as restricted as the Marxist critique of capitalism. concealed by the adjective ‘sustainable’.19 There might be the risk that centrally designed schemes for the management of environmental resources collide with the locally based knowledge about conservation. say. But as Wolfgang Sachs put it.. In summary. a new politics of sufficiency and equity. solidarity. supported (not dominated) by modest appropriate ‘lean’ technology.. The Environmental Justice Movement The Environmental Justice Movement was founded in the 1980s in the United States with the objective to elaborate a common agenda of
. Universalised Development Model Versus the Heterogeneity of Cultures A number of critical researchers from the so-called Third World are questioning the universality of the hegemonic development model.17 In the 1980s and 1990s these cultures had even been seen as models for sustainable modes of living.18 from which the Western world could learn to correct failures of their development model. locality. from research institutes on sustainable agriculture swarm out to deliver their recipes against. place. which should be adapted to the ecological conditions in its referred territories (like organic farming. the heterogeneity of numerous cultures throughout the world is subsumed under the notion of ‘underdeveloped countries’. 5. 4. permaculture).. turning these cultures not only invisible but also into objects of paternalistic policies by the selfdenominated ‘First World’.15 The spatiality of this current is . the burning Amazon) the environmentalism of the poor. as new research fields of social ecology or ethnoconservation suggest. proximity to nature. Martinez-Allier called the resistance of local communities against the destructive expansion of the hegemonic model (for example.16 According to them. Instead. these proposals could be seen as a search for overcoming the political and social production of space in urban-industrial capitalist systems through internal forces.contrary to the actual globalised corporate structures characterised by strategies to decentralise and localise production processes.
trying to convince the actual economic forces to turn to environmentally sound behaviour.space. David Harvey states that this movement . DuPont. and even contradictory. Petrobras. The participants include NGOs like the WWF itself.22 It is evident that the
. The Environmentalisms and Agrofuels The scenarios of massive expansion of agricultural areas designed for the production of agrofuels has put environmentalists in a dilemma. AfroAmerican. urging for immediate action. Bunge.Klemens Laschefski
______________________________________________________________ numerous localised struggles about sewage treatment. This situation creates a dilemma for the different environmentalisms. and international organisations like the World Economic Forum and the International Energy Agency. promoted primarily by the WWF (Worldwide Fund for Nature). 6. such as low-income groups.has still to go further than symbolic political action to achieve a coherent revolutionary praxis. This tension can be seen within the debate about a certification scheme for sustainably produced agrofuels. Amerindian and Asiatic-American communities. industrial pollution.21 In any case. Either they try to act in between the structural frame of the global environmental regime mentioned above. but also unhealthy working conditions. there is no prospect that agrofuels could be produced on the basis of organic farming. which. we need to stress a fundamental contribution of the environmental justice movement: the challenge of the hegemonic idea that there is only one environment. when materialised in the living space. What can be observed is that mainstream NGOs acting on an international level are opting for the first path. they are confronted with a pessimistic outlook concerning climate change. or they call for more radical solutions to target the contradictions of the actual unsustainable development model. environmental issues are associated with social and racial questions. On the one hand. toxic waste. promoting solutions within the approach of ecological modernisation. given the actual demand for fossil fuels. Toyota. conflicts in which the involved felt themselves to be withheld from their legal rights. within the context of this article. as we shall see in the example presented here. perceptions and conceptions about environment . transnational corporations like Shell. are causing social conflicts. on the other hand. The activities causing environmental impacts are often placed in areas where the most vulnerable segments of society live. incinerators.or better . British Petroleum.given the diversity of the local struggles . Consequently. There are different. OXFAM. Genencor. However. A ‘Round Table on Sustainable Biofuels’ has already been established to elaborate standards for certification. which increasingly faces the resistance of the environmentalists who follow the other approaches.20 The common axis of these groups is the denouncing of environmental injustice and inequality.
7. which aims to guarantee the participation of all interested parties and consideration of formal and informal rights of local people. Accordingly. capacitating. each one destined to produce a certain market product or commodity. former preoccupations. beyond the reach of political action. there are already experiences showing that certification is facing difficulties in practice. In general. the capitalist mode of production is not questioned. With respect to social benefits. we have to remember the question of the illusory perception of
. it is expected that the economic return from the export of agrofuels will stimulate local labour markets and open possibilities for small farmers subcontracted by the agroenergy business to gain monetary income. The monocultures for the production of agrofuels are considered as necessary to satisfy the demand on the world market. are considered less important. The production is based on technical inputs (agro-chemicals.) and adequate social criteria designed for modern companies (respect of workers rights. which are interested in engagement with this new market. etc. The reference for the group is the FSC (Forest Stewardship Council). a certification scheme developed by the forestry sector. which allow a certain independence from the rhythm of natural regeneration cycles. Ecological modernists do not question this mode of spatial production. which is seen as something unchangeable. like mechanised large-scale agricultural plantations. is placed above environmental questions on the local level. also founded by WWF. Given the actual demand for fuels. Conflicts over Different Conceptions of Space The conception of space of the urban-industrial-capitalist system can be characterised. mines.). production forests. machinery). But even if we assume that the transformation of the rural population into active actors in the monetary economy would be successful. beyond the limits of the constructed urban space. etc. like the ecologisation of agriculture. as a global issue. absolute. as a mosaic of uniform landscapes. they accept a hierarchisation of environmental problems in which climate change. The result is the environmental and the social monoculturisation of space. However. Therefore. sustainability can be achieved through the mitigation of environmental impacts (biological control of pests. The difference from common certification schemes is the so-called stakeholder-process. measures against contamination of water and soils.68
The Agrofuel Debate
______________________________________________________________ certification scheme is designed for the big global players in the energy business. except in areas that are scientifically proven to be important for the maintenance of biodiversity or the regeneration of degraded areas. hydroenergy.23 What we will stress here is one aspect: the distinct concepts of the production of space leading to conflicts that might not be solved by stakeholder processes. programs of recreation.
To illustrate the potential of conflict within these different concepts of space we will present here a case of an FSC-certified eucalyptus plantation in Minas Gerais. But we have also to take in account that the concrete space is limited. The incident marks the sad escalation of a long history of conflicts between the company and the rural communities in its neighbourhood.had been neglected by these policies. If the actual demand for fuels is to be maintained. which has been robbed by the eucalyptus planters. could go wherever they wanted.Klemens Laschefski
______________________________________________________________ markets as provider of all desired. Nevertheless. or necessary. these groups are intensifying their campaigns in industrialised countries. which should even be applied in urban space. new agricultural frontiers are inevitable. articulating their discourse with groups in development countries defending their cultures under the umbrella of environmental justice. In theory. following their customs based on collective forms of extractivism. Brazil. the private militia of the company had murdered a peasant while he was collecting fuel wood. Care about the maintenance of natures’ capacity to reproduce is essential to guarantee the survival of future generation. As a result. the communities continued to collect fuel wood within the plantations. considered the largest continuous area of monocultures worldwide. A representative of the local rural workers’ trade union described the underlying causes of the conflicts in an impressive manner. the local struggles between latifundios and local communities in Brazil. In February 2007. as the trees in the plantation are understood as private property. The limits of the expansion are reflected in socio-spatial conflicts . pointing out that his father and grandfather. The rural population of the area . To some extent. Given the contradictions within the conception of ecological modernisation. in the past. goods. The company received concessions for the plantations in the 1970s from the state government of Minas Gerais. nearly two million hectares have been covered.which could not present land titles . However. in a broader context of public policies to provide cheap (renewable) energy on the base of charcoal to the emerging steel industry around the state capital. Traditional land use systems are adapted to the natural rhythms of regeneration. food crops substituted by agrofuel crops can be obtained through the market.24 This understanding of territoriality is directly linked with the flexible modes of production of these communities
. the companies consider the collection of fuel wood as theft. Belo Horizonte. environmentalists struggling for the restructuring of the urban-industrialcapitalist society are trying to reintroduce these principles in new forms of land use based on ecological technologies for production schemes to attend local markets. He used the term ‘territoriality’ as a synonym for ‘liberty’. after the substitution of the natural savannah vegetation by the monocultures.for example.
within an internal re-evaluation process of the plantation principles of the FSC. fixable in concrete limits to be represented in maps. Unfortunately. These distinct territorialities show that strategies to conciliate conflicts between corporate capital and local communities by dialogue. as idealised from the defenders of certification. The invasion of capitalist forms of land use is affecting the local communities in a way that requests not only changes to their modes of production of space. which have not yet been affected by modernisation. in practice.
. of such an approach. through private use. which turned out to be incompatible with 2) the flexible territorialities of traditional groups.25 This concept has many aspects in common with proposals for the restructuring of agriculture in urban-industrialised societies. therefore. given the contradictions and failures. based on the hegemonic development model. based on FSC certification and ecological modernisation. the struggle for social re-appropriation has been weakened as the plantation growers could present a sustainability discourse themselves. there is a tension between the territoriality of 1) the capitalist society. in which the territories are defined through private property. these two currents are aligning themselves through the discourse of environmental justice as a general critique of the production of space. The problem has been denounced by northern groups. are limited. it is not able to conciliate with claims to reduce consumption patterns of the wealthier with respect to their ecological (territorial) debt. Therefore. and. The case described above is significant as the conflicts about certification in Minas Gerais appeared just in the period when the plantation growers had renegotiated the concessions with the government. Several social movements perceived this situation as a unique opportunity for social re-appropriation of the public land for the needs of the smallholders.70
The Agrofuel Debate
______________________________________________________________ adapted to the fragile ecosystem of the savannah and its climatic instability. to benefit local people by production systems based on agroecological principles. In summary. or as in the case presented here. The attempt was not successful as interests of the plantation growers are dominating the organisation. Certification is driven by the rules of the market. but also their social and cultural constitution. an approximation can be observed of the discourse of restructuration of the urban-industrial-capitalist societies to reduce their environmental space to defend the heterogeneity of cultures. in the majority used collectively. Within this context. They presented a detailed proposal for the agroextractive re-conversion of the area.
1987. 8 H Lefébvre. World Economic Forum (WEF). M Wackernagel and W Rees. Our Ecological Footprint: Reducing Human Impact on the Earth. 1995. 1996. Oxford. BC and Philadelphia. New Society Publishers.asp?n=78029-fao-biofuelsfoodprices. 22 March 2008. Blackwell. 5 March 2008. 5 J Halley. A Dobson and P Lucardie (eds).). São Paulo.weforum. Nature and the Geography of Difference. Geneva. 11 W Sachs. ‘President Bush Attends Washington International Renewable Energy Conference 2008’. ‘Etnoconservação da Natureza: Enfoques Alternativos’. Gabriola Island. 2007. Climate Change 2007. The Production of Space. Heat: How to Stop the Planet from Burning. Zukunftsfähiges Deutschland: Eine Studie des Wuppertal-Institut im Auftrag von BUND und Misereor. Oxford. op. 16 See contributions in W Sachs (ed. 1996. Zed Books.
. Justice. accessed 22 March 2008. Groningen. 4 ibid. 10 World Commission on Environment and Development (WCED). PA. 9 D Harvey.foodnavigator. Planet Dialectics. London. ‘FAO Fears Long-term Food Price Hike due to Biofuels’. Oxford University Press. 14 J Opschoor. Economics and Sustainable Development.gov/news/releases/2008/03/20080305. 136. The Development Dictionary: A Guide to Knowledge as Power (5th ed). p. Environment. Our Common Future. http://www. Studio Nobel. Press Release. London. 2000.org/pdf/Energy.html. www. São Paulo.whitehouse. 7 July 2007. Hucitec.pdf. cit. A C Diegues (ed). 3 The White House. cit. op. 1991.com/news/ng. I Sachs. Planet Dialectics: Explorations in Environment and Development. 1995. London. Estratégias de transição para o século XXI: desenvolvimento e meio ambiente. www. p. 27.ipcc. 153f. Fundação do Desenvolvimento Administrativo. 15 Sachs. A C Diegues. 7 D Harvey.Klemens Laschefski
IPCC. Synthesis Report (AR4). in Etnoconservação: novos rumos para a proteção da natureza nos trópicos. 1992. 2006. London. The New Energy Security Paradigm. 1993. http://www. 6 G Monbiot.ch/. Basel. 2007. Blackwell. Wolters Noordhof Publishers. 1999. The Politics of NatureExplorations in Green Political Theory. 2000. Oxford. p. Zed Books. 12 ibid. Penguin. Routledge. 13 R Loske and R Bleischwitz.
A Guide to Knowledge as Power (5th ed). H. Herculano. has a similar structure as the already mentioned Round Table on Biofuel. in Justiça Ambiental e Cidadania. Montes Claros. in A Insustentável Leveza da Política Ambiental: Desenvolvimento e Conflitos Socioambientais. 19 W Sachs. ‘Justiça Ambiental: ação coletiva e estratégias argumentativas’. p. as Plantações de Eucalipto e a Sustentabilidade de Políticas Públicas: uma Análise Geográfica’.72
The Agrofuel Debate
______________________________________________________________ J Martinez-Alier. 20 H Acselrad. Relume. some groups including Via Campesina in Latin America launched a campaign ‘Stop Round Table on Soy’. Rio de Janeiro. pp 23-39. J. In March 2008. 215-231. ‘Justiça Ambiental: Ação Coletiva e Estratégias Argumentativas’. in The Development Dictionary.. Rio de Janeiro. 22 T Fritz.Märkte. Estadual e Federal. in Meio Ambiente: Desenvolvimento Sustentável e Políticas Públicas. 33. 25 STR. 1999. Recife. Zed Books. London. K Laschefski. The social movements claim: Donde hay monocultivo no puede existir sustentabilid – Donde hay agro negocios no pueden existir campesinos! 23 K Laschefski. D P Barros (eds). ‘Environment’. This round table. p. O Çomercio de Carbono. in which 20 ha are destined to preservation.. FDCL. initiated by the WWF. Reconversão Agroextrativista: da Monocultura do Euclipto para Sistemas Agrosilvopastoris: Proposta em Discussão das Comunidades dos Gerais de Rio Pardo de Minas aos Poderes Públicos Municipal. Cortez. 2005. H. 18 A C Diegues. C Calvacanti (ed). op. Minas Gerais. ‘Justiça Ambiental (Local e Global)’. H Acselrad et al. 21 D Harvey. Welthandel mit Bioenergie . pp. cit. S. in Justiça Ambiental e Cidadania. Macht und Monopole. Acselrad. Berlin. Belo Horizonte.
. 2007. A. W Sachs (ed. Padua (eds). Rio Pardo de Minas. Autêntica. 24. A Zhouri. op. cit. Das Grüne Gold. 40 ha to re-establish natural Cerrado (savannah) for extractivist activities and 40 ha for agricultural production. 24 Oral Presentation of Juarez Teixeira of the Sindicado dos Trabalhadores Rurais-Bocaiuva during a strategic seminar to discuss the certification of eucalyptus plantations in the University of UNIMONTES. According the proposal every family should receive a plot of 100 ha.). 30 May 2007. Relume. 1999.
H. T. ‘Etnoconservação da Natureza: Enfoques Alternativos’. Laschefski. ‘Vom Erdöl Weg: Aber Wohin?’. Fritz. accessed 22 March 2008.Märkte. Marxistiche Erneuerung. 1995. The Politics of Nature.ch/. A. ‘FAO Fears Long-term Food Price Hike due to Biofuels’. IPCC. Desenvolvimento Sustentável e Políticas Públicas (2nd ed). 1996. Loske. Berlin. Diegues. E. as Plantações de Eucalipto e a Sustentabilidade de Políticas Públicas: uma Análise Geográfica’.. Welthandel mit Bioenergie . Zukunftsfähiges Deutschland: Eine Studie des Wuppertal-Institut im Auftrag von BUND und Misereor.. 71. http://www. vol. A. Heat: How to Stop the Planet from Burning. 2005. Utrecht. J. Penguin.. Climate Change 2007. London.. A. J.. Oxford University Press.. Justice. and Hamelinck. www.foodnavigator. pp. Blackwell. Cortez. K. in Etnoconservação: novos rumos para a proteção da natureza nos trópicos. Meyer. R. Autêntica. Harvey. Martinez-Alier. C. in A Insustentável Leveza da Política Ambiental: Desenvolvimento e Conflitos Socioambientais. Hucitec. Monbiot. Dobson. Zhouri. Calvacanti (ed). Z. 25-40. C.. P. Synthesis Report (AR4).Klemens Laschefski
______________________________________________________________ Altvater. 2007. Dehue. Lefébvre. P. 2007. 2007. and Lucardie. Belo Horizonte. Barros (eds). G.. A. Basel.ipcc. ‘O Comercio de Carbono. Halley. 2000.. (eds). Routledge. Macht und Monopole. Oxford. C. C. FDCL. Diegues (ed). 7 July 2007.Explorations in Green Political Theory. Towards a Harmonised Sustainable Biomass Certification Scheme. 2007.
. 215-231. Recife. pp. ‘Justiça Ambiental (Local e Global)’ in Meio Ambiente.. Laschefski. The Production of Space. 1996. London. Nature and the Geography of Difference. S.. D.com/news/ng. B. K. WWF/Ecofys Netherlands BV. São Paulo. D. 1991.asp?n=78029-fao-biofuelsfoodprices. Das Grüne Gold. 2007. and Bleischwitz R. Oxford.
Oxford University Press.weforum. K. in The Development Dictionary. A. W. 27. The New Energy Security Paradigm... Sachs (ed. Shiva. 1995. 1999. 1987.
.). London. Sachs. 2005. A. Wackernagel. W. (unpublished). New Society Publishers. B. p. estadual e federal’. Groningen. Economics and Sustainable Development. WWF. Oxford..pdf Zhouri. K. P. 2002. World Economic Forum (WEF). in The Development Dictionary. Zhouri. (Worldwide Fund For Nature) and the EU Biofuels Communication. 1992. World Commission on Environment and Development (WCED). Sachs. ‘Reconversão agroextrativista: da monoculture do euclipto para sistemas agrosilvopastoris: Proposta em discussão das comunidades dos Gerais de Rio Pardo de Minas aos poderes públicos municipal. Sachs (ed.org/pdf/Energy. Sachs. Fundação do Desenvolvimento Administrativo. 1993. Laschefski and D. STR. 11-26. W. V. I.74
The Agrofuel Debate
______________________________________________________________ Opschoor.. London. pp 26-37. London. D. and Barros. A Guide to Knowledge as Power (5th ed). Philadelphia. Geneva. and Rees. pp. W. Belo Horizonte. ‘Environment’. pp. J. Autêntica. 1999. P.org/downloads/wwf_on_biofuels_comm_q_a_2006___fin al_080206. Laschefski. Our Ecological Footprint: Reducing Human Impact on the Earth. São Paulo. www.panda. Wolters Noordhof Publishers. Zed Books.). M. Environment. Planet Dialectics: Explorations in Environment and Development. http://assets. Sustentabilidade e Conflitos Socioambientais’. A Guide to Knowledge as Power (5th ed). Rio Pardo De Minas. 206-218. Our Common Future. 1999. Zed Books. Estratégias de Transição para o Século XXI: Desenvolvimento e Meio Ambiente.pdf. Zed Books. Studio Nobel. ‘Introdução: Desenvolvimento. ‘Resources’. W. Barros (eds). 2006. in A Insustentável Leveza da Política Ambiental: Desenvolvimento e Conflitos Socioambientais.. February 2006..
______________________________________________________________ Klemens Laschefski holds a PhD in Geography. Brazil. He is a researcher at the Post-Graduate Programme for Social Sciences. Catholic University of Minas Gerais.
that they believe to have a great influence on their lives (whatever the truth). democracy. the changes which new technologies are likely to cause concern issues that many people conceive as fundamental to their lifestyles. the majority of the citizens think that modern biotechnologies will either improve things (52 per cent) or make them worse (12 per cent) over the next twenty years. As reported in the Eurobarometer 64. GMO consultation fails to meet these basic requirements.2 Moreover.. European Union. GMOs. Finland ***** Introduction Claims that it is important or necessary to involve the public in societal decision-making concerning the research on and commercial use of GMOs are common and made by many. a considerable number of European citizens believe that this kind of change is happening. First.Public Consultations and Democracy: The Case of GMOs in the EU Marko Ahteensuu
Abstract The paper highlights a democracy deficit in public consultation practices on the deliberate release and placing on the market of genetically modified organisms (GMOs) in the European Union (EU) by focusing on the case of Finland.
. In a democracy people should have especially good opportunities for participation on matters that (will) have a great influence on their lives. and transparency of the decision-making process. GMO consultation practices are assessed in regard to three prerequisites for a democratic decision-making procedure: availability of information. in its current form. it is probable that modern biotechnology and its practical applications will play a significant role in our society and bring about changes in our lives in the near future. Second.4 Third.3. specifically those of food and healthcare. as well as into international agreements and declarations.3 There are at least three reasons why decision-making concerning GMOs forms a context in which special legislative and administrative procedures are needed to guarantee citizens’ opportunities to participate. requirements for engaging the public in modern biotechnology decision-making have been incorporated into several national environmental and biotechnology laws. possibility to affect decisions. It is argued that. Key Words: Public consultations.1 In particular. and/or that concern their fundamental values and are thus central to their 1.
GMO consultation practices make it possible for the general public to familiarise themselves with and give comments on applications for scientific field trials and commercial use of GMOs. the consultations are assessed in regard to three prerequisites for a democratic decision-making procedure: availability of information. They rather form part of—or a supplement to—a general democratic decision-making framework. people should retain the possibility of affecting matters concerning GMOs—at least as long as the ideals of democracy are accepted.9 [I]t is the right way for democratic and ethical decisions to be made. egalitarian.e. Consequently. Specifically. however.6 Public deliberation is essential to democracy.g. 2.5.
. Elections provide its paradigm example. The aim of this paper is to highlight a democracy deficit in public consultation practices on the deliberate release and placing on the market of GMOs in the EU.8 […]desirable for democratic reasons. open-minded and reasoncentred. In what follows. i. and on the related scientific information. as well as provide them with a possibility to affect these decisions.78
Public Consultations and Democracy
______________________________________________________________ lives. GMOs) and decisions. deliberation is expected to produce a variety of positive democratic outcomes. the case of Finland is considered. and transparency of the decision-making process. It should be borne in mind.10 Serving democracy is commonly understood to imply that people are given opportunities to rule on issues belonging to the public sphere. preferences are aggregated and decisions are made according to a decision rule (for example. the democratic ideals. majority rule). Public Engagement and Democratic Decision-Making The most general argument for public engagement—and for public consultation as an instance of it—(in the context of GMOs) is that it serves democracy. possibility to affect decisions.7 If it is appropriately empathetic. a consultation can work as a tool (or a medium) for informing the general public and stakeholders about an issue (e. What this means in practice can be—and indeed has been—interpreted in different ways. In the traditional (aggregative) understanding of democracy. that consultation practices alone are not intended to ensure the realisation of democracy in the full sense of the term. At its best.
and both of them were destroyed by activists. in order to give the public or groups the opportunity to express an opinion. when an application (i. when an application is made in order to release GMOs for market purposes—i. the consultation is organised by the single member state in which the release is proposed to take place. another with birch (Punkaharju -2004) and the third one with birch (Joensuu 2005-). there have lately been only three of them—one with potato (Jokioinen -2005). The deliberative democracy theory. First.16 Although the total number of field trials on GMOs in Finland is over twenty. the Competent Authority. Directive 2001/18/EC is implemented in the reformed Gene Technology Act.11 Deliberation includes both internal reflection and communicative interaction. solutions are found by rational discussion and deliberation. including a reasonable time-period. states that: Member States shall (…) consult the public and.13 In ideal cases of deliberative democracy.e.12 and preferences should be reflected on in a non-coercive manner. In Finland. for the purposes of using them in food or for cultivating them—the consultation is carried out by the European Commission. well-informed opinions in which participants are willing to revise preferences in light of discussion. which is concerned with the deliberate release into the environment of GMOs. emphasises ‘debate and discussion aimed at producing reasonable. national consultations are about scientific field trials. public consultation takes place in two different ways. and claims made by fellow participants’. and no decision rule (voting) is necessary at all.17 The two first-mentioned field trials gave rise to a lively public debate. Second. where appropriate. groups on the proposed deliberate release. CA) on consultation concerning the deliberate releases of GMOs for non-market
.e. new information. The responsible authority (i.15 Concretely.e.Marko Ahteensuu
______________________________________________________________ The requirement for people’s opportunities to rule is taken to be that participants (citizens) have a right to vote and that representatives (governmental officials) are appointed on the basis of rules of an electoral system. deliberative democracy is often regarded as being only an expansion of (or an improvement to) representative democracy. in its turn. Nevertheless. notification) is made in order to release GMOs for non-market purposes. Directive 2001/18/EC. GMO Consultation in the EU In the EU. In doing so. Member States shall lay down arrangements for this consultation.14 3. not its alternative or replacement. In practice.
the latter seems to hold—especially with respect to the consultation practice concerning market purposes. Assessment Three prerequisites for a democratic decision-making procedure are (1) availability of information.18 It publishes information about the planned field trials in the Official Journal (Virallinen lehti) of Finland and on the Board’s internet pages (<http://www. Commenting consists of two 30-day periods.jrc. A link to the web pages managed by the Joint Research Centre and the European Commission is also
. Conversely. and (3) the transparency of the decision-making process. The public has 60 days available for giving their comments. Information about it is both scarce and not easily found. However. they are meant to capture general criteria concerning the very basic intuitions about democratic (good or right kind of societal) decision-making. the minimum requirements of democracy have not been met. are open to the public. except the ones which contain business secrets. It is not claimed that these necessary conditions constitute a sufficient condition for a procedure to be called democratic. Comments can be submitted online as well as in standard written format. 4. durning one of which the public can comment on a part of a SNIF and during the other they can comment on the assessment report. The comments should be provided in written form and be sent to the Board by post or email. The information provided to the public includes a ‘summary notification information format’ (SNIF) and an assessment report. At least in Finland. The Finnish Board for Gene Technology informs the public on its website that the consultations on deliberate releases on market purposes are carried out by the European Commission.1. Copies of the files are also available on request.20 4. Availability of Information Democracy can take place only if people know about their possibility to participate and thus to influence societal decision-making. All files.fi/>). if citizens are unaware of the consultation practices and if the information concerning them is relatively difficult to reach. the information on dossiers can be found on internet pages (<http://gmoinfo. the applicant of a field trial may organise public meetings or inform the public on their planned field trial in other ways. Below I try to show that GMO consultation does not fulfil these basic requirements.geenitekniikanlautakunta.it/>) that are managed by the Joint Research Centre and the Commission.19 In regard to the European Commission’s consultation. Furthermore. (2) possibility to affect decisions.80
Public Consultations and Democracy
______________________________________________________________ purposes is the Finnish Board for Gene Technology. They can be seen on the website of the Board as well as in the library of Ministry of Social Affairs and Health.
once one has familiarised oneself with the consultation practice. especially if one is unaware of the existence of the Board. Information about this process as well as that about the planned field trials is quite easily available from the website of the Finnish Board for Gene Technology—and it is in Finnish. because too aggressive informing may be considered an invasion of privacy. These problems can. obstacles since the use of public funds always raises moral questions. Moreover. as well as ethical. Becoming aware of the consultation practice may still be somewhat improbable. the consultation practice is clearly and quite thoroughly explained. of course. it is relatively difficult to find information on the consultation practice and particular consultations organised by the
. even if people were cognizant of their opportunities to comment. Citizens without English language skills. However. information on different particular consultations is easy to obtain. The critical question can. An e-mail posting list on the matter can be joined. eliminates some people from the consultation practice altogether. be stated as follows: what informing practices are sufficient for a genuine democracy (in this context) and the real opportunity to express one’s views? Insufficient and inadequate informing leads to a situation in which citizens do not. which. lay persons cannot be expected to have such knowledge. in practice. be solved fairly easily—albeit not without incurring extra costs—by increased communication through different media channels and by clarifying the information within the current channels employed.Marko Ahteensuu
______________________________________________________________ provided. Moreover. and/or of the role of the Board in particular GMO consultations. Demanding that each citizen should be individually and actively informed about her/his participation possibilities on the GMO-matter is not sensible. ethics also sets ‘upper limits’ for informing. the costs of providing information form practical. All the public is informed about the consultation process is that ‘[t]he public may make comments on the Part C SNIFs and on the assessment reports to the Commission within 30 days and the Commission shall immediately forward the comments to the competent authorities’. What one might be critical about is lay people’s possibility of becoming aware of the consultation practice as such. On the other hand. In summary. the information on the practice of consultation given on that website is exiguous and is only available in English. have the possibility to participate. In practice. for example. of the existence of consultation practices in general. then. in practice. can neither understand the relevant information (about the consultation practice in general and about specific consultations in particular) nor write comments in English. However. the information provided is written in scientific jargon. Moreover. it may be impossible in practice.21 The issue is a bit less problematic in regard to the Finnish national consultation practice.22 Moreover.
Nevertheless. Possibility to Affect Decisions Democracy implies that citizens have a possibility to affect decisionmaking in practice.82
Public Consultations and Democracy
______________________________________________________________ Commission. Interestingly. it is reasonable to ask whether current GMO consultation practices present a quasi-democracy—an illusion of democracy.e. since the whole (un)acceptance process of GMOs—as well as all legislation concerning them—relies heavily on scientific risk assessment. 4. Provided that only comments that bring in new information about risk assessment can influence decisions made and that scientific risk analysis is a highly developed institutionalised practice only understandable after a considerable amount of training. the system provides specific knowledge about planned field trials and about the placing on the market of GM products. does not provide any information about the kinds of comments that can affect final decisions.23 This policy is also clearly visible in decisions. the way and extent to which citizens’ comments can affect final decisions largely determines how well the consultation practices fulfil the ideals of democracy. in its turn. comments which can have an effect on final decisions) is stated explicitly. The claim about the impossibility of making effective comments is further confirmed by the fact that even a person (or a group of citizens) with the relevant skills for conducting risk assessments is unable to carry them out because the information available is insufficient for doing that. information about particular consultations can only be understood if one posseses specific scientific knowledge about the GMOs. In other words. the consultation practice does not work as a general tool (or a medium) for informing the masses about GMOs. Citizens are just not informed that this is the case. it provides a valuable information service for citizens who already have the basic knowledge on the issue and who actively follow the discussion on the GMOs. Although the information on the Finnish national consultation practice is more extensive and provided in Finnish. it is sensible to assume that the restriction is the same in the Commission’s consultation practice. For a lay person without any basic knowledge of the system. it may be a very hard task to acquaint him/herself with the information in practice—not least because it is only provided in English.2. For them. This problem arises at least with respect to the national consultation practice in Finland. Thus. and it is in accordance with the recommendation which the Finnish National Advisory Board on Biotechnology has put forward concerning the public consultation. Thus. In
. Nevertheless. it is an integral part of democracy that the people can influence decisions made. where the restriction regarding effective comments (i.24 The Commission. the Finnish Board for Gene Technology states explicitly that only comments which provide new information concerning the scientific risk assessment of a planned field trial are relevant and can affect the final decisions.
intrinsic concerns (basically.28.
. the extent to which citizens are informed whether and how their comments have influenced the final decision is important in the context of GMO consultation. they only give an impression of such a possibility. also transparency in regard to how one’s activities (have) influence(d) decisions. Transparency of Decision-Making Process Democracy presupposes not only the possibility to influence decision-making but. this merely amounts to a statement that the public consultation did not bring in new information on risk assessment. in many contexts.29 This is. nor is this information available from any other source. however. in practice. the possible effective comments are. The room left for effective comments is thus highly limited. concerns other than risks27) related to GMOs should be taken into account. Furthermore—at least from the ethical perspective—it is unclear why comments that do not concern scientific risk assessment should be irrelevant in respect to final decisions. In consequence. Accordingly. In the Commission’s consultation practice. 4.26 In summary. In practice. current GMO consultation practices do not fulfil the basic requirement of democracy—that of providing a genuine possibility to influence decisions. a broad issue that is not restricted to the consultation practices but concerns the whole legislation and (un)acceptance process of GMOs. the comments submitted are listed on the consultation website. even these types of comments require expert knowledge about GMOs.3. In voting situations. it should be transparent as to whether some voters have more votes to give than do the others. the decision files do not include a listing of the comments or any information on the degree and way of their influence on the final decisions.e. for example. The raw data necessary for risk assessment are not public (nor accessible to the decision-makers). of course. in a democracy. and it is unlikely to correspond to the real concerns expressed by citizens.Marko Ahteensuu
______________________________________________________________ consultations carried out by the Commission. Comments submitted are not made public. However. but their contributors (i. only the SNIFs and assessment reports are open to the public. the Commission’s practice fails to meet the requirements of democracy in this respect as well.25 Thus. The Finnish national consultation practice seems to fare slightly better. Nevertheless. or whether proportional representation is in use. Rather. non-governmental organisations. Robert Streiffer and Thomas Hedemann as well as Jan Deckers. for example. NGOs) are listed on the decision forms and the influence the comments had (or did not have) on the final decision is briefly mentioned. if not totally absent in practice. limited to the ones which concern the absence of certain general fields of risk assessment or the possible relevance of the latest scientific results on GMOs. have argued for the view that.
in its current form GMO consultation does not fulfil the very prerequisites for a democratic decision-making procedure. T Webler. as pointed out above. ‘Taking Citizens Seriously’. It was originally presented in the 7th Global Conference: Environmental Justice and Global Citizenship. Journal of Agricultural and Environmental Ethics. 2006. ‘The Problem of Citizens’ Participation in Finnish Biotechnology Policy’. 2006. and it is implemented by the Commission. 19. ‘Public Participation: Different Rationales.biotekniikanneuvottelukunta. M Rask. It is concluded that these shortcomings do not imply the abandonment of GMO consultation altogether. 2003. it seems that at least some particular ways of public involvement do not only fail to result in the outcomes usually associated with them—such as consensus. 2 For example. Science and Public Policy. The current (un)acceptance process in the EU is highly science-based and expert-driven. Journal of Agricultural and Environmental Ethics. Different Strategies’. in www. and the European Food Safety Authority (EFSA). However. They only point out a clear need for its active development.fi/muistiot/kuuleminen. vol. are typically considered to contribute to the realisation of the ideals of deliberative democracy. Oxford. This might be considered a worrying result as the possibilities for the public to participate and affect the GMO decision-making are rather limited. which will be published in Environmental Values in 2009. 19. Kansalaisten kuuleminen direktiivin 2001/18/EY mukaisesti kun geneettisesti muunneltuja organismeja levitetään tarkoituksellisesti muussa kuin markkinoille saattamisen yhteydessä. 5. In other words. 9-12 July 2008. Mansfield College. entitled ‘A Critical Assessment of Public Consultations on GMOs in the European Union’ (co-authored with Helena Siipi). S Sterckx and T Macmillan. national CAs. 30. Advisory Board on Biotechnology.asp?contentid=60431&lan=en. vol.environment.
. such as public consultations. K Jensen.
This paper is based on a larger article. 2006. in www. S Tuler and R Krueger. better decisions. ‘Conflict over Risks in Food Production: A Challenge for Democracy’. vol.pdf. Finland [Biotekniikan neuvottelukunta].84
Public Consultations and Democracy
______________________________________________________________ Discussion Public engagement mechanisms. 2003.30 Different forms of civic activity (such as participating in the public discussion) are of course possible. but GMO consultation seems to be the only way to be directly involved in the decision-making. trust—but also fall short from the procedural point of view. Y Rydin.fi/download.
htm. Public Participation in Decision-Making and Access to Justice in Environmental Matters. Genomics Network. vol. 4. cit. 10. 13. op. 2001. 7. 40. 8 T Mendelberg. 20. 2006. p. Y Rydin. A Stirling.pdf. p. in www. 2006. Journal of Agricultural and Environmental Ethics.ec. 3 For example.eu/research/press/2006/pdf/pr1906_eb_64_3_final_reportmay2006_en. Cartagena Protocol on Biosafety to the Convention on Biological Diversity: Text and Annexes. 6 Besides serving democracy. 2001. ‘The Deliberative Citizen: Theory and Evidence’. 27.europa. Who Deliberates? Mass Media in Modern Democracy. less general objectives have been set for public engagement in general and GMO consultation in particular. CPB=Secretariat of the Convention on Biological Diversity. 10. these objectives have also been presented as independent reasons for engaging citizens in GMO decision-making. and establish trust in decision-makers and experts. Diversity and Transparency in the Governance of Risk’. pp. vol. 2006. Aarhus.. increase consensus within a society. p. Public Engagement in Genetics: A Review of Current Practice in the UK. 616.. Environmental Management. ‘Participatory Processes and Scientific Expertise: Precaution. 2001/18/EC=Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the Deliberate Release into the Environment of Genetically Modified Organisms and Repealing Council Directive 90/220/EEC. 2.lancs. 7 B Page. L Pratchett. V Beekman and F Brom. in www. Montreal. UNCED=Rio Declaration on Environment and Development (United Nations Conference on Environment and Development. for example. University Chicago Press. Deliberation and
. Parliamentary Affairs. vol. ‘Perspectives on Public Engagement’.cesagen. Most of these objectives are not distinct from democracy but rather may be considered essential constituents of a democratic system.ac. p. 3-14 June 1992). Rio de Janeiro. M Harvey. Chicago. S Weldon. Europeans and Biotechnology in 2005: Patterns and Trends: Eurobarometer 64. Participatory Learning and Action. 1999. 5 See. They have been stated to inform and educate the public. 4 G Gaskell et al. 1996. Aarhus Convention=Convention on Access to Information. Nevertheless. 2004. ‘Ethical Tools to Support Systematic Public Deliberations about the Ethical Aspects of Agricultural Biotechnologies’. 628.Marko Ahteensuu
______________________________________________________________ ‘What is Good Public Participation Process? Five Perspectives from the Public’. 2000.uk/resources/papers. 25 June 1998. p. in Research in Micropolitics: Political Decisionmaking. 2007. ‘New Fashions in Public Participation: Toward Greater Democracy?’. vol..3. enable better decisions to be made. 52. vol.
fi/netcomm/news/showarticle. 2. in http://gmoinfo. op.europa. Critics. 2007a. which may form a considerable obstacle for citizens without skills in Finnish. (Virtual Finland. although the majority of Finns do speak Finnish as their native language. 15 Directive 2001/18/EC. op. 2007. Shapiro (eds.geenitekniikanlautakunta. Article 9. I Salovuori. Delli Carpini et al. Finland [Geenitekniikan lautakunta]. 36b §. 10 S Sterckx and T Macmillan. 1-2.. 308.html. 2000. Greenwich. English language ability and patience is needed when one familiarises her/himself with the web pages. this information is only provided in Finnish. 19 Board for Gene Technology.info/FAQ/lainsaadanto/fi_FI/faq_lainsaadanto_1_1_1_2/ 20 Joint Research Centre and European Commission. JAI Press.fi/kuuleminen. there is a small Sami speaking minority. 22 However. pp.86
Public Consultations and Democracy
______________________________________________________________ Participation.html. 219. 2007b. 153-154. p. 13 J S Dryzek. M X Delli Carpini. However. cit. Fact Sheet Finland.eu/yourvoice/). 309. 36b §. vol.bioteknologia..it/. op.fi/kenttakokeet. 16 GTA. pp. Annual Review of Political Science. 11 Chambers. Oxford. Oxford University Press. viewed on 12 April 2007. viewed in 2007. Miten kuuleminen käytännössä toteutetaan/on toteutettu?. p. 6. 9 K Jensen. and although the number of nonnative Finns is small. Uusi geenitekniikkalaki edellyttää kansalaisten kuulemista kenttäkokeiden yhteydessä. in www.jrc. cit. cit.
.. Finland [Geenitekniikan lautakunta]. Yleisön kuuleminen. Political Studies. 21 Admittedly. Deliberate Releases and Placing on the EU Market of Genetically Modified Organisms (GMOs). p. 2003. p. 51. ‘Deliberative Democratic Theory’.asp?intNWSAID=27443# peop). 12 R E Goodin and S J Niemeyer. it is growing. Swedish is also an official language of Finland. 14 S Chambers. vol. 17 Board for Gene Technology. L Huddy and R. Deliberative Democracy and Beyond: Liberals.. op. Contestations. in http://virtual. in www. 18 GTA. This is noteworthy since. in www.finland. Moreover. ‘When Does Deliberation Begin? Internal Reflection versus Public Discussion in Deliberative Democracy’. Kenttäkokeet Suomessa. 2002. p. cit. the Your Voice in Europe website includes some brief Finnish translations concerning public consultations (http://ec. 269. 2003.geenitekniikanlautakunta.)..
J Deckers. Journal of Agricultural and Environmental Ethics. 27 More specifically. 25 June 1998. Kansalaisten kuuleminen direktiivin 2001/18/EY mukaisesti kun geneettisesti muunneltuja organismeja levitetään tarkoituksellisesti muussa kuin
. 2005. in www.
Aarhus Convention=Convention on Access to Information. see also V Beekman and F Brom. B K Myskja.pdf. ibid. p. 2005. 2007. pp.Marko Ahteensuu
______________________________________________________________ I Salovuori. in www. Aarhus. pp. 13. vol. Miten kuuleminen käytännössä toteutetaan/on toteutettu?. p. that is. pp. Päätös. the lack of a genuine possibility to affect the decision-making. cit. 28 R Streiffer and T Hedemann. 2007. 2003.fi/dokumentit/001MB2005pts. 25 The case of national consultations is a bit different as scientific field trials are often carried out to assess environmental risks.geenitekniikanlautakunta. Public Participation in Decision-Making and Access to Justice in Environmental Matters. It states that comments that do not affect the decisions are still valuable because they provide the decision-makers with useful information on citizens’ opinions. 2005. Board for Gene Technology. 225-238. 30 See 1829/2003=Regulation (EC) No 1829/2003 of the European Parliament and of the Counceil of 22 September 2003 on Genetically Modified Food and Feed. 18. S Sterckx and T Macmillan. Finland [Geenitekniikan lautakunta]. 24 Advisory Board on Biotechnology. 2006. Uusi geenitekniikkalaki edellyttää kansalaisten kuulemista kenttäkokeiden yhteydessä. this does not solve the original problem. ‘The Political Import of Intrinsic Objections to Genetically Engineered Food’. 13). Nevertheless. ‘intrinsic concerns’ refer to those worries which are not related to the actual (known) or possible (presumed) consequences of an action.info/FAQ/lainsaadanto/fi_FI/faq_lainsaadanto_1_1_1_2/ . cit.bioteknologia. 191-210. 26 This is acknowledged in a report of Finnish Advisory Board on Biotechnology (op. 6. 2007a. 1. Journal of Agricultural and Environmental Ethics. Finland [Biotekniikan neuvottelukunta]. vol. vol. ‘The Moral Difference Between Intragenic and Transgenic Modification of Plants’. Advisory Board on Biotechnology.. Journal of Agricultural and Environmental Ethics. 19. ‘Are Scientists Right and NonScientists Wrong? Reflections on Discussions of GM’. 4. 29 For similar views.. op.
Public Consultations and Democracy
______________________________________________________________ markkinoille saattamisen yhteydessä. 2007. 20. Delli Carpini.unece. F.doc. Contestations. pp. 2003. Finland [Geenitekniikan lautakunta]. R.fi/kenttakokeet. lautakunta]. J. 7. Annual Review of Political Science. Board for Gene Technology. F. 18. Dryzek.geenitekniikanlautakunta.. in www.org/env/pp/gmo/expuk. 315-344. www. vol. 2000. Discursive Participation. in
Chambers. ‘Deliberative Democratic Theory’. 2005. J. Food and Rural Affairs. 2000. S.fi/muistiot/kuuleminen.pdf. Oxford. Aarhus Convention: Application of the Convention to Decisions Concerning Genetically Modified Organisms: UK Experience of Public Participation in Decisions Making on the Deliberate Release of Genetically Modified Organisms.
. Cook. Cartagena Protocol on Biosafety to the Convention on Biological Diversity: Text and Annexes.pdf. pp. in <http://www. vol. Board for Gene Technology. Critics. 451-478. vol. Journal of Agricultural and Environmental Ethics. 2003. 6.. ‘Are Scientists Right and Non-scientists Wrong? Reflections on Discussions of GM’. X.. Oxford University Press... vol. pp. Yleisön kuuleminen. and Brom. Department for Environment. Finland [Geenitekniikan Kenttäkokeet Suomessa. L.html. 2004.. L.html>. and Citizen Engagement: A Review of the Empirical Literature’. The United Kingdom. Journal of Agricultural and Environmental Ethics.fi/dokumentit/001MB2005pts. 2005. 307-326.geenitekniikanlautakunta. 3-12. Finland [Geenitekniikan lautakunta].biotekniikanneuvottelukunta. in
Beekman.fi/kuuleminen. M.geenitekniikanlautakunta. pp. V. www. ‘Public Deliberation. and Jacobs. 2007a. ‘Ethical Tools to Support Systematic Public Deliberations about the Ethical Aspects of Agricultural Biotechnologies’. Päätös. in www. Annual Review of Political Science. S. Deliberative Democracy and Beyond: Liberals. 2007b. Board for Gene Technology. CPB=Secretariat of the Convention on Biological Diversity. Deckers. Montreal.
vol. G.ec. Pratchett..Marko Ahteensuu
______________________________________________________________ Gaskell. ‘New Fashions in Public Participation: Toward Greater Democracy?’. Deliberation and Participation. in www. Greenwich. J..eu/research/press/2006/pdf/pr1906_eb_64_3_final_reportmay2006_en.. 2006. ‘Conflict over Risks in Food Production: A Challenge for Democracy’. 2003. ‘The Problem of Citizens’ Participation in Finnish Biotechnology Policy’.. In http://gmoinfo. ‘The Moral Difference Between Intragenic and Transgenic Modification of Plants’. T. 19. 1999. vol. Who Deliberates? Mass Media in Modern Democracy. JAI Press.. S. 19.. B. L. Journal of Agricultural and Environmental Ethics. 441-454.. vol. K. Europeans and Biotechnology in 2005: Patterns and Trends: Eurobarometer 64. 225-238. 627-649. Shapiro (eds. pp. pp. vol. K. Huddy and R. 30. p.. and Niemeyer. Journal of Agricultural and Environmental Ethics. X. 2006. vol. 2006. GTA=Finnish [1995/377]. M. 616-633. 4. ‘Perspectives on Public Engagement’. 2002. University Chicago Press. 1996. 2003. Jensen. Joint Research Centre and European Commission.jrc. Gene Technology Act (Geenitekniikkalaki). ‘The Deliberative Citizen: Theory and Evidence’. Myskja. 51.). Deliberate Releases and Placing on the EU Market of Genetically Modified Organisms (GMOs).. Parliamentary Affairs. M. Genomics Network.pdf. 13. R.3. Political Studies. Harvey. M. ‘When Does Deliberation Begin? Internal Reflection versus Public Discussion in Deliberative Democracy’. 52. vol. Chicago. Rask.. et al.it/ (viewed on 12 April 2007). 269-283. pp. L. pp. Delli Carpini. 2004/847
Goodin. Science and Public Policy.europa. Page. Mendelberg. pp.
. E. in Research in Micropolitics: Political Decisionmaking. B. 2006. 1996.
.. 2005. Journal of Agricultural and Environmental Ethics. ‘Public Participation: Different Rationales. Sterckx. 2001/18/EC=Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the Deliberate Release into the Environment of Genetically Modified Organisms and Repealing Council Directive 90/220/EEC. and Macmillan. 2004. Diversity and Trasparency in the Governance of Risk’. 66-71. Webler. Public Engagement in Genetics: A Review of Current Practice in the UK.finland. ‘The Political Import of Intrinsic Objections to Genetically Engineered Food’.environment. Virtual Finland. Environmental Management. pp. 3-14 June 1992). T. 2007. Fact Sheet Finland. vol. in www.uk/resources/papers. R.. 2006. T. S. Rio de Janeiro. 2006.bioteknologia. vol. Participatory Learning and Action. Miten kuuleminen käytännössä toteutetaan/on toteutettu?. I. and Hedemann. Salovuori. 1829/2003=Regulation (EC) No 1829/2003 of the European Parliament and of the Counceil of 22 September 2003 on Genetically Modified Food and Feed. Journal of Agricultural and Environmental Ethics.lancs. in http://virtual.asp?contentid=60431&lan=en. and Krueger. 19. pp. ‘Taking Citizens Seriously’.. vol. Uusi geenitekniikkalaki edellyttää kansalaisten kuulemista kenttäkokeiden yhteydessä.. vol.asp?intNWSAID=27443# peop. pp. S. Streiffer. pp.cesagen. Y.ac. 27. A. 2001. R. 40. 1. 435-450. Different Strategies’. 2007. Weldon. 191-210.info/FAQ/lainsaadanto/fi_FI/faq_lainsaadanto_1_1_1_2/. ‘What is Good Public Participation Process? Five Perspectives from the Public’.. 219-223.. 2001. UNCED=Rio Declaration on Environment and Development (United Nations Conference on Environment and Development.fi/netcomm/news/showarticle.90
Public Consultations and Democracy
. Tuler. ‘Participatory Processes and Scientific Expertise: Precaution.htm. in www. T.fi/download. in www. S. Stirling.
esp. Finland. University of Turku. and ethics councils. mechanisms of public engagement.Marko Ahteensuu
______________________________________________________________ Marko Ahteensuu is a Postdoctoral Fellow at the Public Choice Research Centre (PCRC). precautionary decision-making.
. His research interests include philosophical issues related to environmental risk governance.
transparency and citizenship. Key Words: Aarhus Convention. The paper uses material from the case studies to examine compliance with the first two pillars of the Aarhus Convention and citizens’ levels of satisfaction and expectations. transparency and citizenship. namely access to information. Participation and Citizen Activity: Case Studies from Poland and the UK Radoslaw Stech
Abstract The Aarhus Convention is a United Nations Regional Convention signed by the European Union which rests upon three pillars. ***** 1. Distrust in local authorities is identified as an important factor that explains citizens’ disappointment. It sets minimum standards for the signatories and countries can provide a broader catalogue of rights within the framework of the Convention. access to information. citizens in both countries are similarly dissatisfied. This paper provides a report form my research conducted at a local level in Poland. namely access to information. participation in decision-making and access to justice in environmental matters1. It sets minimum standards for the signatories and countries can provide a broader catalogue of rights within the framework of the Convention. It promotes environmental justice. This paper is aimed at presenting results of two case studies based in Poland and the UK. my country of origin and the UK. which rests upon three pillars. Introduction The Aarhus Convention is a United Nations Regional Convention signed by the European Union. trust. Method I was looking for a common scenario based on local activists objecting to sites of deposited waste that now give rise to environmental
. case studies. much better in the UK than in Poland.Environmental Information. public participation. It promotes environmental justice. It finds that despite significantly different levels of compliance. participation in decision-making and access to justice in environmental matters. Both cases involve sites of deposited waste that give rise to environmental problems. the country where I am currently studying. 2. It aims at both assessing a broad technical compliance with the first two pillars of the Aarhus Convention in relation to both cases and analysing citizens’2 satisfaction and expectations stemming from their experiences.
within one month at the latest. free of charge. The Polish site is currently being closed. mostly with the members of NGI Fosfi on which group experience I shall focus in this paper. Crucially. 3. but the public should be informed of the rationale behind the extension. Article 4 requires public authorities to respond to requests for information as soon as possible. files and electronic databases. This period of time may be extended up to two months if needed. The British site is currently operating. through publicly accessible registers. Participation and Citizen Activity
______________________________________________________________ problems. Thanks to interviews I could also compare citizens’ levels of satisfaction and expectations. information regarding the waste site that is freely available on websites is limited in both quantity and quality. Respondents are able to view data in databases at regional offices by making a prior appointment. near Gdansk in Poland. and the case of Welbeck. the process of closure allows a company to dispose of more waste that is going to be used for a purpose of reinforcing the whole construction. Article 6 requires public authorities to identify the public concerned and inform them of forthcoming decisionmaking procedures and possibilities of participation. environmental information appropriate to their functions. In both instances. UK. commercial and household waste is deposited. In May 2008 I conducted five interviews in Poland. when all alternatives can be analysed. there are citizens affiliated with local action groups. but a company has been prohibited from disposing of industrial waste.94
Environmental Information. Article 5 requires public authorities to collect and effectively disseminate. I asked both NGOs to provide me with documentation. a site near Wakefield. I also conducted five interviews with citizens from RATS. Moreover. however.6 Having collected the documentation. where industrial.4 accessing data through requests5 and participation in decision-making or early consultations. Technical Compliance with the Aarhus Convention A. Polish Case Firstly. I chose the case of Wiślinka. I could analyse my interviews by taking a realistic approach7 and compare citizens’ experiences with provisions of the Aarhus Convention. I chose both cases after preliminary research. As to the second pillar. which could complement my interviews. The latter consisted of questions asking about citizens’ experiences with collecting freely available information. where a site of phosphate industry waste is located. As to the first pillar. However. In addition. for example. they normally have to pay for the search and preparation of
. The disclosure of information may be refused in order to protect. NGI Fosfi and WKO3 in Poland and RATS in the UK. when I understood that both groups were complaining in a similar manner about their experiences with access to information and participation. corporate confidentiality. officials should enter into early discussions with the public.
respondents were invited to a meeting in the Voivodeship office just after a public demonstration. In 2006. which were normally reserved for civil servants and company representatives. They were not properly informed about and given time to prepare for forthcoming consultations. Respondents say that they understand information because they have much environmental experience and wastesite-related knowledge background. In one instance.Radoslaw Stech
______________________________________________________________ information and the production of photocopies. however. The latter. They were. replied to the local group by instructing them about their poor qualifications to engage in consultations and social dialogue. which is freely disseminated through their website. one of their letters was passed by the relevant office to the company. Thus. which would not provide them with sufficient background to form their opinion. senior civil servants representing regional offices reassured the public that the waste site posed no harm for human health and the environment in a company-sponsored newspaper article. respondents have had very limited opportunities to participate in consultations and decision-making regarding the waste site. Secondly. 4 of the Convention by not providing an answer to the respondents’ question. The document was finally disclosed and the delay provided no opportunity for making proper judgments before crucial decisions were made. Thirdly. However. the company took over the competences of the local authority and the latter breached Art. in September 2007. NGI Fosfi could have accessed a summary of this document. In addition. Initially. A few documents must be seen in full colour since some environmental details can only be recognized through an analysis of coloration. However. some information is disseminated through local newspapers. a few months after article’s publication. surprised to discover that
. which is contrary to Article 4 of the Convention. the offices had to disclose research analyses showing a potential harmful impact of the waste site on the environment. Interestingly. This also includes some documents that have been obtained from public authorities’ records. Fourthly. instead of the local authority. Respondents produce their own information. the lack of a photocopying machine which would allow production of colour duplicates impairs their analysis of documentation outside public authorities’ headquarters. Most of their efforts to meet with the former have been quashed. Crucial sought-after data included a project concerning a method of closing down the waste site. There are some instances when respondents are not fully informed what data have been collected by public authorities. which was finally granted after few months of sending requests. local authorities reply to respondents’ requests for information by taking as much time as possible in many cases. After this they have insisted on full access to the document. information is helpful and complete to some extent.
British Case Firstly. the Marshall’s office has recently offered more regular meetings with the group. Moreover. the aforementioned office promised them the organization of a ‘commission of social dialogue’. they understand its content thanks to their experience with the issue. The documents are accessible from Leeds’ office but can also be directly posted to RATS. which is strongly opposed by RATS. which was a waste site lease issued for the company by the Wakefield District Council. Moreover. B. mostly within few days. namely a method of closure of the waste site. are crucial sought-after documents.96
Environmental Information. especially when it comes to photocopying large-size documents as license permits or spending money on postage stamps. on the basis of corporate confidentiality to sought-after information. the availability of waste site-related information is also limited. The Environment Agency’s (hereafter EA) compliance assessment reports. Thirdly. which has never been established. one of my respondents has been accidentally presented with the lease and other confidential information during a court process regarding his trespass on the waste site. which denied NGI Fosfi and another group the right to take part in the decision-making process in relation to one of the most important issues. respondents admit that information that they have access to is helpful. which is about 12 miles from RATS’ permanent residence. Institutions. Nevertheless. Secondly. which are prepared after monthly visits to the waste site. Nevertheless. may also reply by saying that a request was either formulated in a general manner to be answered or has been previously considered. Participation and Citizen Activity
______________________________________________________________ representatives of the company were also invited and the consultation took a chaotic turn. There has already been one substantial and properly organized consultation. This document might contain some information regarding future developments of the site as even the possibility of building an incinerator. respondents have access to documents held in a publicly accessible regional office in Leeds. in line with the Convention. Reports contain complex information about elements of the environment related to the landfill site and breaches of a permit contract. They claim that ordinary citizens would not
. Interestingly. respondents claim that they are not informed about the scope of available data and have to discover the documents themselves. From 2008 environmental competences were transferred to the Marshall’s office. However. respondents’ requests for environmental information are being dealt promptly. Crucially. but often incomplete. respondents have had limited access. A court injunction prevented him from discussing this information. the process of obtaining information is claimed to be very expensive. However. One has to make an appointment to view information and can have documents printed or photocopied free of charge.
The liaison committee is attended independently by one of my respondents. for interaction between representatives of the company. even through local authorities’ website. RATS do not attend a liaison committee. Polish Case Respondents are not satisfied with procedures of accessing information and participation in waste site-related matters. and European institutions by sending a petition to the European Parliament8 and independent research or specialist institutions working outside their region. secretive and superficially familiar with waste site-related issues. where they could present their opinions through an independent research institution. They admit that some aspects of public authorities’ attitudes have been improved over time. In effect and in addition to technical information. they are sceptical as to opportunities for more such meetings because of their earlier experiences. RATS is also offered possibilities of issuing opinions. B. RATS is often invited to early and informal meetings with local representatives aimed at explaining pressing issues and future waste site-related developments. They claim that such information. in April 2008 in Marshall’s office. NGI Fosfi expects public authorities to provide them with better and smoother access to information and participation procedures. It was reflected by a recent meeting. public and academic actors. which provides an opportunity. public authorities’ representatives are perceived as incompetent. They suspect that public authorities are biased and not prepared to work with them. The dissatisfaction stems also from the fact that there have been blurred interactions between private. local and regional authorities and citizens. They regret that most of their documentation is either ignored or played down by local authorities. 4. British Case Respondents are similarly dissatisfied with procedures of accessing information and participation in consultations or decision-making process. every three months. As a result respondents do not know whom they can trust and try to establish contacts with national authorities such as the Ombudsman. mostly in the form of photographs showing breaches of permits.Radoslaw Stech
______________________________________________________________ be able to comprehend most of the data that is provided by local authorities. in relation to forthcoming decisions Moreover. as EA’s compliance assessment reports should be directly disseminated to all citizens via local libraries as some of the information concerns above-average release of harmful material that is
. they produce their own data. However. Satisfaction and Expectations A. Moreover. Fourthly. who claims that the whole procedure and substantive discussion is led by the company rather than by representatives of public authorities.
Participation and Citizen Activity
______________________________________________________________ classified as the most serious breach of permit contracts. they seek assistance in both the European Parliament and other national institutions. It appears that my respondents in Poland are still fighting for those standards and proper recognition of their rights of access to information and participation. which requires substantial financial resources for photocopying or preparation. As a result. They have no possibility of attending any formalized liaison committee or a social dialogue commission despite promises and limited possibilities of attending informal consultations. Moreover. an almost 10-year struggle to obtain access to the site lease has also created an impression that public authorities are hiding information and do not want to protect the well-being of citizens. This struggle means that they are wasting
. have good opportunities to access information and attend formalized consultations such as liaison committee and informal meetings with representatives of authorities. just as the Polish respondents. incompetent and having a passing acquaintance with Welbeck’s environment. The former are in constant contact with public authorities.98
Environmental Information. Before the waste site was established. RATS’ satisfaction and expectation levels are significantly affected by the prior experience. which is not matched with regard to the Polish case. they had been sent a folder in which a local authority was promising not to dispose of anything that was publicly viewed as ‘toxic waste’ without offering a proper explanation what they meant by this term. Conclusions It is evident that the access to information and participation experience of the British respondents is much better than that of the Polish ones. there is a broad technical compliance with the Aarhus Convention in relation to the British case. 5. The latter struggle for access to information. They believe that they are not presented with all possible details and expect the EA to take strong measures against the company in relation to violations of permits reflected in the compliance assessment reports. In the end. They would like to have a direct possibility of stopping some decisions during the aforementioned consultations. They also prefer to seek direct consultations with senior decision-makers from the EA or government during which they would like to exercise some influence. As a result of this. RATS claim to have better understanding of the waste-site related issues because they live nearby and notice many inaccuracies and breaches of contract. some industrial waste that is currently seen as ‘toxic’ has been deposited in Welbeck site. They argue that liaison committee meetings offer no more than a mere possibility of asking questions and submitting opinions. which are likely not to be included into minutes that are prepared by a non-professional secretary employed by the company. They are blaming local authorities’ representatives for being unreliable. where the standards of the Convention are often overlooked.
The broad compliance at the UK local level does not lead to greater contentment. art. namely WKO. if not members. 4 Aarhus Convention. and even an exercise of some provisions of the Aarhus procedures are rejected by RATS. 5 ibid. 6. Sage. and is not related to citizenship status. This can be seen in the UK local case. 422. art. Interestingly. Yet.
. 2 The term ‘citizen’ is used here to refer to a person who does not have a formal role within government institutions. A Practical Handbook. if the experience of the British study is correct. London. It is fully understandable in relation to the Polish case. Residents can develop much higher expectations that cannot be satisfied by mere compliance with the provisions of the Aarhus Convention. secret and detached from needs of ordinary citizens and local groups.Radoslaw Stech
______________________________________________________________ efforts and resources that should be devoted for substantive analysis of documents and preparations for meetings. the level of (dis)satisfaction is similar in both cases. 3 Crucial initiative and work is done by NGI Fosfi. are closely associated with the NGI Fosfi. 6 ibid. 2000. where technical compliance with the Convention is weak. art. Polish respondents are still fighting for Aarhus rights to be put in place. Public Participation in Decision-making and Access to Justice in Environmental Matters (adopted 25 June 1998. trust will already have been lost. Once a public authority loses trust the broad standards of two pillars of the Aarhus Convention may not be sufficient to keep residents satisfied and include them in environmental decision-making procedures. p. This is because. entered into force 30 October 2001) (Aarhus Convention). it is questionable whether their satisfaction will be higher if and when civil servants in Poland start adhering fully to the Aarhus provisions. Respondents use similar language to explain their disappointment.
UNECE Convention on Access to Information. All interviewed respondents. An underlying factor of distrust explains RATS’ behaviour that becomes fully comprehensible. 5. which at the time of this research was an informal group closely associated with a formalised local NGO. 4. The latter’s attitude is inseparable form past experiences during which local authorities managed to lose their trust and are now seen by the group as incompetent. 7 David Silverman. by the time that compliance with informational and participatory rights is won. Doing Qualitative Research.
UNECE Convention on Access to Information. Radoslaw Stech is a Doctoral Researcher at The ESRC Centre for Business Relationships. F. 2005. Public Participation in Decision-making and Access to Justice in Environmental Matters (adopted 25 June 1998. Doing Qualitative Research: A Practical Handbook. London. Penguin Books.
. Fukuyama. Sage. The case is now (October 2008) in the EU Commission. Silverman. The Committee also asked the European Commission to ‘conduct a preliminary investigation and provide information regarding compliance with relevant Community legislation’. London. which raised some issues of civil servants’ incompetence. entered into force 30 October 2001) (Aarhus Convention). Participation and Citizen Activity
______________________________________________________________ The Committee of Petitions decided to conduct further research regarding the petition. S. Trust: The Social Virtues and the Creation of Prosperity.100
Environmental Information. 2000. Accountability. Sustainability and Society and a Research Assistant at the Cardiff Law School.
1 Although it is argued that NGOs were visible in international law making since (at least) the early twentieth century.4 which explicitly affirms the important 1.
. ***** Introduction Non-state entities. an investor–state dispute may however have an impact beyond the disputing parties. there are areas where they are yet to play any significant role. one of the areas of international law which has developed rapidly in recent years. in the field of international environmental law. have become increasingly influential in various areas of international law. the public policy of the host state.2 their role and influence expanded considerably in the 1990s. Until recently. For example. This chapter examines this procedural change in investment treaty arbitration and argues that effective use of amicus curiae briefs in investment treaty arbitration procedure may help the tribunals to understand the issues of disputes from a broader perspective. the investment treaty arbitration regime has experienced a change on this account to the effect that the tribunals may now accept submissions of amicus curiae briefs by NGOs. 3 More than 2. particularly in the context of issues such as the environment and human rights. Key Words: International treaty arbitration.NGO Participation in Investment Treaty Arbitration Tomoko Ishikawa
Abstract This chapter examines the role of NGOs in investment treaty arbitration. i. amicus curiae briefs. in particular non-governmental organizations (‘NGOs’).400 representatives of NGOs attended the Conference that adopted Agenda 21. However. investment treaty arbitration was one of such areas. The procedural rules of investment treaty arbitration modelled on those of international commercial arbitration had not allowed participation by NGOs. the 1992 UN Conference on Environment and Development (‘UNCED’) marked a significant step towards NGO participation in the international policymaking process. This change was brought by the increasing recognition of the ‘public nature’ of investment treaty arbitration. NAFTA. Although NGOs have increasingly become influential in the international law sphere. This is particularly the case where investors challenge the host states’ measures that (arguably) intend to protect public interests of the host state. ICSID. Being a dispute between two parties. a foreign investor and the host state.e. in particular. NGO participation.
the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings’. international commercial arbitration deals with disputes between private entities/State entities acting in a private capacity that. is the fundamental principle of arbitration. the UNCITRAL Rules. 10 A similar endorsement of the role of NGOs is found in the declaration on rights and responsibilities. The little influence of NGOs on this area may be explained by the following two features of international commercial arbitration.5 In the field of human rights law. investment treaty arbitration is governed not only by the law of the host state but also by public international law. that the parties control the composition of the tribunal and the applicable law) of the ICSID Rules are modelled on arbitration rules designed for the resolution of international commercial disputes between private parties.g. it is observed that NGOs did have an actual impact on the Conference. such as the UNCITRAL Rules 15 or ICC Rules.17 On the other hand.16 Moreover. as clearly recognised by the preamble of the Vienna Declaration and Programme of Action 8 adopted as a result of the Conference: ‘bearing in mind the suggestions made by intergovernmental and non-governmental organizations’.7 Moreover. This is because the substantive rights and obligations at issue are set by treaties. for example. Among these. First. 18 As a result. the 1993 UN World Conference on Human Rights6 also attracted the wide participation of NGOs. according to which the disputing parties determine the scope of applicable law to the disputes and are in control of the procedure of dispute settlement. do not have significant impact on public interests. because it incorporates the procedural design of international commercial arbitration. which was adopted by the UN General Assembly in December 1998. there are areas of international law in which NGOs are yet to play any significant role. the pronouncements of law made by arbitral tribunals have ramifications in the
.9 The declaration also explicitly recognised the role of NGOs to elaborate. which distinguish it from international commercial arbitration. First. 14 That is. 12 and reflected in Article 19(1) of the 1985 UNCITRAL Model Law: 13 ‘[s]ubject to the provisions of this Law. and general international law is also applicable to investment treaty arbitration. the structure and key contents (e.102
NGO Participation in Investment Treaty Arbitration
______________________________________________________________ role of NGOs in international policy-making. investment treaty disputes are often brought to non-ICSID arbitration.11 Despite these developments. the principle of party autonomy. an example of which is international commercial arbitration. The principle of party autonomy is referred to as ‘the guiding principle in determining the procedure to be followed in an international commercial arbitration’. the principle of party autonomy also lies at the heart of investment treaty arbitration procedure. implement and protect human rights. investment treaty arbitration usually has public aspects. Secondly. at least in principle. which is governed by.
It should be emphasised that even measures of the host state based on legitimate concerns such as environmental regulations may also be challenged by investors.
. arbitral awards have significant effects on the general public of the host state. has occurred in two major venues of investment treaty arbitration. significant procedural change concerning NGO participation has taken place in investment treaty arbitration.22 Despite these public aspects of investment treaty arbitration. Many investor–state disputes involve conflicts arising out of regulatory interferences with various aspects of the investment. 21 Considering that governmental regulations and measures challenged by investors are based on public policy. However. the ICSID Arbitration Rules were amended to authorise tribunals to do so. it is only a natural consequence that the issues raised in such disputes concern not only the parties to the dispute but also the public. in particular. NAFTA/UNCITRAL arbitration and ICSID arbitration. In such circumstances. It then addresses the concerns raised over this shift. This opens the possibility for NGOs to participate in investment treaty arbitration. 20 Indeed.Tomoko Ishikawa
______________________________________________________________ development of public international law. It starts by examining case law and practice in both the NAFTA and ICSID arbitration regime (Section 2). It concludes by proposing the need to make effective use of amicus curiae submissions. it is increasingly recognised that they should be characterised as ‘regulatory disputes within the public law sphere’. namely. Case Law and Practice on NGO Participation The development concerning third party participation in the arbitral process. one of the issues at stake in Methanex was the extent to which the government may exercise its sovereign right to ban a chemical that is (potentially) harmful to public health and the environment. and demonstrates that these concerns are either misplaced or avoidable (Section 3). the decisions and pronouncements of tribunals will ‘have implications that go far beyond commercial impacts to such public policy objectives as the protection of the environment and public health and safety’. reflecting the concern that the procedural rules designed for international commercial arbitration do not actually fit for investment treaty arbitration. NGOs had not played any substantial role in it until recently. For example. 2.23 Following several decisions of NAFTA and ICSID tribunals that acknowledged the power of the tribunal to allow written amicus curiae (‘friend of the court’)24 submissions by non-disputing parties. This is followed by the examination of the purposes and benefits of receiving amicus curiae submissions (Section 4). the submissions of amicus curiae briefs. This chapter examines this change concerning NGOs participation in investment treaty arbitration through amicus curiae submissions. 19 Secondly.
28 In reaching this conclusion. the Tribunal’s willingness to receive amicus submissions might support the process in general and this arbitration in particular.1 2. During the proceedings. whereas a blanket refusal could do positive harm’. The tribunal then held that it could be appropriate to allow written amicus submissions from the IISD and Earth-Justice. The dispute arose out of a Californian ban of a gasoline additive called MTBE.1
. 30 The statement explicitly acknowledges that non2. In this regard. but it would make a final decision at a later stage of the proceedings. which is the essential oxygenating element of MTBE. In response. On the other hand. It should however be noted that the request to present amicus curiae briefs orally was rejected. or conversely be harmed if seen as unduly secretive. Methanex was the largest producer of methanol. the tribunal explicitly recognised the public nature of the dispute. stating: ‘there is an undoubtedly public interest in this arbitration.25 In the absence of an express provision in the UNCITRAL Arbitration Rules and NAFTA Chapter 11 admitting or denying the tribunal’s power to accept amicus submissions.26 the first question before the tribunal was whether the tribunal’s acceptance of amicus submissions fell within the general scope of Article 15(1) of the UNCITRAL Arbitration Rules. and there was no such consent in this case. but since it considered the matter to be premature. The substantive issues extend far beyond those raised by the usual transnational arbitration between commercial parties…[t]here is also a broader argument… (the) arbitral process could benefit from being perceived as more open or transparent. The case was brought before an UNCITRAL arbitration tribunal under Chapter 11 of the NAFTA.29 In 2003. the International Institute for Sustainable Development (‘IISD’) and the Communities for a Better Environment/Earth Island Institute (joint petition: collectively. ‘EarthJustice’) submitted petitions including the request to make oral and written amicus curiae submissions. the tribunal limited such a power under Article 15(1) to ‘procedural matters’.27 The tribunal made it clear that the power is not to accord third parties any rights and the tribunal allows their participation as a matter of discretion. United States This is the first investor–state arbitration case where the tribunal had authority to accept written amicus curiae submissions. The tribunal answered in the affirmative. the NAFTA Free Trade Commission (‘FTC’) issued a statement on third party participation in NAFTA Chapter 11 proceedings (‘FTC Statement on Third Party Participation’).1. the tribunal issued the Decision on Authority to Accept Amicus Submissions in January 2001.104
NGO Participation in Investment Treaty Arbitration
______________________________________________________________ NAFTA/UNCITRAL Arbitration Methanex Corporation v. declined to articulate detailed criteria to do so. on the ground that Article 25(4) of the UNCITRAL Arbitration Rules requires hearings to be held in camera unless both parties consent otherwise. while the Methanex case was still in progress.
31 United Parcel Service v. Glamis challenged two measures adopted by California that required. That is. 2. United States This dispute concerned Glamis’s mining project in the California desert. The power of the Tribunal to accept amicus curiae submissions was never questioned in subsequent procedural orders. it held that the power of the tribunal to receive amicus curiae submissions is within the scope of Article 15(1) of the UNCITRAL Arbitration Rules.32 In 2005.Tomoko Ishikawa
______________________________________________________________ disputing parties may apply for leave to file a submission. In 2004. while emphasising that ‘it is a matter of its power rather than of third party right’. the Methanex tribunal accepted the submissions made by the IISD (‘IISD submission’) and Earth-Justice (made on behalf of Bluewater Network.3 2.2
. The tribunal followed the approach taken by the Methanex tribunal. including the request to submit amicus curiae briefs. The US argued that these measures intended to: (i) ensure that mined lands are returned to a usable condition and pose no danger to public health and safety. 34 because the proceedings began after the release of the FTC Statement on Third Party Participation. and (ii) provide protection to Native American sacred sites. and the Sierra Club/Earthworks (joint submission). the UPS tribunal received the amicus curiae submissions from the CUPE/ Council of Canadians (joint submission) and the US Chamber of Commerce. v.1. Friends of the Earth Canada/Friends of the Earth United States (joint submission). Communities for a Better Environment and Center for International Environmental Law (‘Bluewater submission’)). the claimant challenged Canadian measures concerning its postal services market. in accordance with the procedures set out in the FTC Statement on Third Party Participation. The Canadian Union of Postal Workers (‘CUPE’) and the Council of Canadians made amicus requests to the tribunal. It also outlines guidelines for the acceptance of such submissions. inter alia.33 Glamis Gold Ltd. arguing that they amount to expropriation and are in breach of the obligation to provide fair and equitable standard of treatment. Amicus curiae submissions have been filed by the Quechan Indian Nation. Canada In this case.35 The case is still pending as of the date of writing. backfilling of all open pits and recontouring of the land after cessation of metallic mining activities.1. the National Mining Association.
inter alia..2. following the settlement of the dispute by the parties. Sociedad General de Aguas de Barcelona S. The proceedings of this case were discontinued in March 2006 at the request of both parties. In August 2002. first petition) The dispute related to the privatisation of the public service of water provision. According to the tribunal. However. 36 including the request to submit amicus curiae briefs.A.1
.A. several environmental NGOs and individuals filed petitions for status as amicus curiae. The claimant then filed the claim arguing that.39 The tribunal explained the virtue of accepting amicus curiae submissions as follows: ‘[t]he acceptance of amicus submissions would have the additional desirable consequence of increasing the transparency of investor–state arbitration. and Vivendi Universal S. The claimants argued that certain measures the Argentina government adopted in response to Argentina’s economic and financial crisis injured their investments. in which they made several requests to the tribunal including an opportunity to submit amicus curiae briefs. Argentine (Suez/Vivendi case.2.. ‘it is manifestly clear’ that it does not have the power to grant the request for access to hearings and the documents of the proceedings without the agreement of the parties. v.2 2. 2. the Bolivian government breached its obligation under the concession in responding to the opposition. v. the arbitrators were of the view that ‘there is not at present a need to call witnesses or seek supplementary non-party submissions at the jurisdictional phase of its work’.106
NGO Participation in Investment Treaty Arbitration
______________________________________________________________ ICSID Arbitration Aguas del Tunari. S. the concession for which was awarded to the claimant.37 he stated that the tribunal unanimously decided that the requests were ‘beyond the power or the authority of the Tribunal to grant’. the tribunal rejected all of these requests. Public acceptance of the legitimacy of international arbitral processes. As to the request for the amicus curiae submission. 38 Having confirmed that the ICSID Convention and ICSID Arbitration Rules neither specifically authorise nor specifically prohibit the amicus curiae submission. In response. the tribunal decided that it has the powers to accept amicus curiae submissions under Article 44 of the ICSID Convention. Republic of Bolivia The dispute arose out of Bolivia’s privatisation of water and sewage services.A. Five NGOs filed a ‘Petition for Transparency and Participation as Amicus Curiae’.2 Suez. particularly when they involve states and matters of public interest. the tribunal issued an order on 19 May 2005 (‘Suez/Vivendi First Order on Amici’). The claimant commenced the project.. is strengthened by increased openness and increased knowledge as to how these processes function. In the letter from the president of the tribunal. but soon faced strong opposition and protests by citizens and eventually abandoned the project.[t]hrough the participation of appropriate 2.
. and (c) the procedure by which the amicus submission is made and considered (that the procedure enables an approved amicus curiae to present its views and at the same time to protect the substantive and procedural rights of the parties).2.40 The tribunal then set up three criteria in accepting amicus curiae submissions: (a) the appropriateness of the subject matter of the case (that the case involves issues of public interest and have the potential to affect persons beyond those immediately involved as parties in the case). and InterAguas Servicios Integrales del Agua S.42 2. the public will gain increased understanding of ICSID processes’. and therefore a variety of public and international law questions.46 At the same time. including human rights considerations. It is therefore not surprising that the tribunal decided to apply the principles of the Suez/Vivendi First Order on Amici to the case and reached a very similar conclusion in its order on 17 March 2006. the tribunal left the door open for them to provide the tribunal with further information in order to do so. the tribunal concluded that the petitioners have not provided sufficient specific information and reasons to be admitted as amici curiae in this case. by stating that the tribunal has decided to ‘grant an opportunity to Petitioners to apply for leave to make amicus curiae submission if and when the Petitioners provide the Tribunal with convincing information and reasons that they qualify as amicus curiae’. 41 It should be noted that the tribunal also confirmed that the acceptance of amicus submissions is a procedural question that does not affect disputing parties’ substantive rights. in its actual application of the three criteria (the same as those set out in the Suez/Vivendi First Order on Amici) to the petition.3 Suez.45 However. Argentina (Suez/InterAguas case) The tribunal in this case comprised the same arbitrators as the Suez/Vivendi tribunal.47
. (b) the suitability of a given non-party to act as amicus curiae in that case (that the petitioners have the expertise.A.A. experience. and independence to be of assistance). may be raised.Tomoko Ishikawa
______________________________________________________________ representatives of civil society in appropriate cases. Sociedad General de Aguas de Barcelona S. however. v. 43 The tribunal noted that matters of public interest in the sense that the legality of governmental measures and the responsibility of a state under international law are at stake are common in ‘virtually all cases of investment treaty arbitration under ICSID jurisdiction’.44 The tribunal then stated that this case has particular public interest because it is concerned with the water distribution and sewage systems which provide basic public services.
it held that the amended Rule 37 is in accord with the three criteria set out in the Suez/Vivendi First Order on Amici. Argentine (second petition) In December 2006. 2. the Tribunal shall consider. the tribunal first noted that the amended ICSID Arbitration Rules themselves do not apply to this case.48 Rule 37 (Visits and Inquiries) was amended so as to make it clear that the tribunal has the discretion to allow written submissions from non-disputing parties. and that both parties are given an opportunity to present their observations on the non-disputing party submission. the extent to which: (a) the non-disputing party submission would assist the Tribunal in the determination of a factual or legal issue related to the proceeding by bringing a perspective.2.108
NGO Participation in Investment Treaty Arbitration
______________________________________________________________ Amendment of the ICSID Arbitration Rules These inconsistent three decisions led to the amendments of ICSID Arbitration Rules 32 and 37 in April 2006. The tribunal issued its second order on amici on 12 February 2007 (‘Suez/Vivendi Second Order on Amici’).5 Suez.2. The following second paragraph was added to Rule 37: After consulting both parties.49 As to the request for the written amicus curiae submission. the Tribunal may allow a person or entity that is not a party to the dispute (in this Rule called the ‘non-disputing party’) to file a written submission with the Tribunal regarding a matter within the scope of the dispute.. v. joint amicus curiae submission to the tribunal. 2. Sociedad General de Aguas de Barcelona S. The tribunal then decided that the petition made by these NGOs met these
. and Vivendi Universal S. particular knowledge or insight that is different from that of the disputing parties.A.A. requesting. among other things. five NGOs made the second.4
The Tribunal shall ensure that the non-disputing party submission does not disrupt the proceeding or unduly burden or unfairly prejudice either party. In determining whether to allow such a filing. the non-disputing party has a significant interest in the proceeding. the opportunity to make written amicus curiae submissions.50 Nevertheless. although certain considerations specified by the rule will have to be taken into account in the decision making. the non-disputing party submission would address a matter within the scope of the dispute. inter alia.
3 Summary These NAFTA/UNCITRAL and ICSID cases show fairly consistent attitudes by investment treaty arbitration tribunals. In March 2006.e. but two specific and delimited types of participation by non-parties. (a) the filing of a written submission (Rule 37(2)) and (b) attendance at hearings (Rule 32(2)). United Republic of Tanzania The dispute arose out of the cancellation of the contract between the Tanzanian government and the claimant concerning the service of water supply. Considering that environmental and human rights issues have attracted the largest number of amicus curiae submissions in investment treaty arbitration 54 and that environmental NGOs play an important role in the application and enforcement of international environmental law ‘in their capacity as watchdogs’. This was so even before the release of the FTC statement on third party participation or the amendment of the ICSID Arbitration Rules. status or privileges in the proceedings. Yet at the same time. third parties do not have any rights or privileges in the arbitral proceedings. and concluded that they may file an amicus curiae submission in accordance with certain procedure specified in the Order. 2.Tomoko Ishikawa
______________________________________________________________ criteria. 3. 5 in response.53 2. i.6
. The Petitioners filed their joint amicus curiae submission on 26 March 2007. in particular in the fields of international environmental law and human rights law since the 1990s. NGOs have increasingly become influential in the international law sphere.52 This is in line with the decisions of earlier tribunals that amicus curiae submissions do not give third parties any rights.2. Biwater Gauff Ltd v. five NGOs including the IISD and CIEL (‘Petitioners’) filed a petition for amicus curiae status. all the tribunals except for Aguas del Tunari acknowledged the power of the tribunals to accept written amicus curiae submissions. and the tribunals issued the Procedural Order No. they all agreed on the point that the acceptance of amicus curiae submissions is a matter of discretion and the power of tribunals to accept such submissions is limited to procedural matters: in other words. the tribunal held that it would accept written amicus curiae submissions. The tribunal noted that the new ICSID Arbitration Rules do not provide for a general amicus curiae ‘status’. Concerns Over This Development As noted in the introduction. that is.51 Not surprisingly.55 the amicus curiae submissions in investment treaty arbitration may be perceived as an effort by such NGOs to further implementation of international environmental or human rights norms.
58 the former covers the substantive aspects of arbitration as well. ‘the written submissions in ICSID cases are generally the most influential part of the record for the arbitrators’. and is supposed to. this new trend has not necessarily received full endorsement.1
. and therefore do not constitute valid objections to the acceptance of amicus curiae submissions. the parties’ carefully constructed strategy for victory. an amicus will. In other words. their roles and the impact of amicus curiae participation on investment treaty arbitration. Several concerns are raised over amici.63 3. may well also influence the outcome of the dispute. It is argued that amicus curiae submissions interfere with the self-determination of the disputing parties. Indeed. more concretely. The acceptance of amicus curiae submissions introduces a change to this structure. the primary purpose is to present factual information or express an argument left ignored by the governments’. Arguments of third parties.62 Without doubt.59 In such a system. select the legal and factual issues to be presented. procedural aspects of arbitration such as rules of evidence do affect the substantive outcome of disputes.56 The principle of self-determination is wider than the principle of party autonomy57 in that whereas the latter primarily applies to procedural issues only.110
NGO Participation in Investment Treaty Arbitration
______________________________________________________________ However. in the WTO context. but also brings a substantial change to the arbitration system designed by the parties. One of the reflections of the principle of self-determination in the substantive aspects of investment treaty arbitration is that tribunals rely primarily on the arguments of the parties. brought into the procedure through the ‘procedural’ door of amicus curiae submissions. The next subsections demonstrate that these concerns are either misplaced or avoidable. the parties carefully structure their arguments. That the tribunals have confirmed that the acceptance of written amicus curiae submission is a ‘procedural’ matter is not relevant in this context. as well as gather and select evidence to support their case. Such a consequence not only is an interference with the parties’ strategy to win. As an independent third party. it may surprise the disputing parties.61 If such arguments of amici affect the tribunals’ decision on substantive issues. make arguments from its own perspective. This means that it may present legal and factual arguments that the parties do not make – and indeed often deliberately omit because of political pressure or other tactical considerations 60 —before the tribunal. The Self-Determination of the Disputing Parties The first concern is related to the relationship between the acceptance of amicus curiae submissions and the principle of selfdetermination of the disputing parties. it is argued that ‘for many private actors seeking to participate in a WTO dispute.
if the measure directly or indirectly affects the value of the investment. placing the responsibility of arguing and proving its case on each disputing party serves the principle of self-determination. In the environmental context. 79 MTD.e. (d) as investor–state case law is now central to the future direction of international investment law. waste disposal and so on.83 There is the possibility that an award effectively forces the host state governments to repeal the challenged environmental measure(s). as is often the case with international commercial arbitration. oil and gas. 78 Tecmed. investment treaty arbitration is distinct from international commercial arbitration in that it is also a method of public law adjudication in which arbitrators deal with regulatory and public policy issues of the host state.72 Suez/InterAguas. electricity. even the mere threat of potential claims may chill the willingness of a host state to adopt future environmental measures or to enforce them in a
. 65 and therefore arbitral awards may have a significant impact on the welfare of the citizens of the host state. With this regard.D. the investment arbitration tribunals that have accepted amicus curiae submissions never fail to mention the ‘public nature’ of the disputes (Methanex. 75 S. In fact. for example as identified by Marshall and Mann:68 (a) the disputes often arise in public service sectors that affect the daily life of citizens such as water. 84 in which the Canadian government had to overturn a ban on the sale of Ethyl’s gasoline additive MMT. 80 Santa Elena.Tomoko Ishikawa
______________________________________________________________ If this was a case of purely commercial disputes. as well as the effectiveness of the arbitration process. However.64 Investor–state disputes often involve issues that ‘touch upon matters of public policy’. Where the impact of an arbitral award is limited to the disputing parties.66 This does not just mean the implication for the ‘public purse’ (i. the arbitration process is important to the development of international investment law (as noted in the Introduction). 70 UPS. Investment treaty arbitration involves other important public interests.67 which may also be affected by a purely commercial dispute when. awards against the host state or state entity are funded through taxes levied on citizens). 77 Methanex. 71 Suez/Vivendi. for example. Myers. together with the payment of $13 million (US dollars) in order to settle the dispute brought by Ethyl to a NAFTA tribunal. 81 and Parkerings 82 indicate that investment treaty arbitration has now become an important international forum in which environmental issues are discussed. the ‘chilling effect’ on environmental policy of the host state should never be underestimated. (c) the threat of investor-state arbitration may have a ‘chilling effect’ on states adopting public welfare regulations. Moreover. it involves a state-owned company. it should be noted that investment treaty arbitration cases such as Ethyl.73 Biwater74). it would indeed be inappropriate to introduce such a change. and such a possibility is not merely theoretical.69 (b) investor–state arbitrations may challenge regulatory measures intended by states to protect the public welfare. An example is Ethyl. 76 Metalclad.
D. arbitrators are not tenured but appointed in each case. they do not necessarily sit well with the public aspects of investment treaty arbitration.94 Rather. given the confidentiality that surrounds the system’. Also. In this context.g. The potential chilling effect on the future exercise of regulatory authority (in the context of the threat of expropriation claims) was recognised by one arbitrator in S. the European Court of Human Rights and the WTO Appellate Body) or an appeal mechanism (e. whereas it may be true that the generality of the state’s consent is ‘suffice to constitute an adjudication based on that consent as public law’. This dissonance is highlighted when considering that other ‘public’ international courts and tribunals that have either a tenure system (e. Although these circumstances are almost axiomatic to international commercial arbitration. arbitrators. what is crucial in this context is that the regulatory conduct and measures of host states are challenged and judged by arbitrators. in which the host states’
. It is these concerns that lie at the heart of the argument for the change of investment treaty arbitration proceedings.g.87 Nevertheless. 85 That is. the economic and political costs associated with investment arbitration and ‘the general lack of transparency with regard to situations in which investors threaten to initiate cases against states’86 may well discourage the host state from raising its environmental standards.93 it does not provide much guidance as to whether to allow third party participation to arbitral proceedings. lack the mandate of the people affected by the award they make. Contract-based ICSID arbitration. and it is the resultant ramifications for the general public that necessitate more open and inclusive arbitration proceedings. the WTO panels). and their decisions are free from the possibility of appeal. because: while commercial disputes may also raise issues of public interest.89 These considerations give rise to the concern that the dispute might be resolved in a way that impairs the citizens’ rights. Loughlin and Tollefson argue that what distinguishes investment treaty arbitration as a unique form of adjudication is not the impact of the awards but the fact that the investors’ right to arbitrate is derivative of the host states’ general consent to arbitration given in investment treaties.112
NGO Participation in Investment Treaty Arbitration
______________________________________________________________ meaningful manner. it should be noted that Van Harten. who act in the capacity of private lawyers.91 the fact that the state’s consent to arbitration is limited to the specific contractual relationship (as opposed to a treaty-based consent that applies to a broad range of public regulations measures) makes the arbitration ‘less firmly entrenched in the public sphere than its investment treaty counterpart’.88 Furthermore.90 Van Harten argues that the approach focusing on the consequences of investment treaties is ‘less compelling’. Myers. it is pointed out that the implications of investment treaty arbitration for domestic public law are profound especially because arbitrators may award damages ‘even if the actual impact on governmental decision-making is difficult to assess.92 However.
and the clarification that amici do not have any right in arbitral proceedings and the tribunals retain a right to determine the form and extent of amicus participations on the other.2.96 Other Concerns Other concerns over third-party participation include the following: (a) that it will increase the cost of arbitration and delay the proceedings where the expense of the parties is already high. Amicus curiae briefs may also be accepted in contract-based arbitration under Rule 37. if a contract between an investor and a host state contains ‘stabilization clauses’.Tomoko Ishikawa
______________________________________________________________ consent to arbitration is specific. In addition. what is required is a careful balancing between the principle of self-determination (of the parties) and the need for consideration of the public impact of the case.g. depending on the factual and legal circumstances of the case. For example. a dispute based on the contract may well also have a chilling effect on public policy development.100 If the acceptance of written amicus curiae submissions is not the right of third parties but the discretion of tribunals (see Section 2).2
. The tribunals’ openness towards written amicus curiae submissions on the one hand. (b) that it may cause the ‘politicisation’ of investor–state disputes.99 and this concern is reflected in Rule 37(2) of the ICSID Arbitration Rules. the amended ICSID Arbitration Rules do not distinguish between treatybased arbitration and contract-based arbitration. Therefore.101 When the tribunal accepts such submissions. or specify the form of the submission (e. 95 Indeed. to limit the length of the 3. the breach of which may entail compensation and result in capital flight. appear to be the result of such a careful balancing. it may limit the issues to be addressed to legal issues. although all the arbitration cases that have accepted amicus curiae submissions are treatybased (and therefore this chapter focuses on investment treaty arbitration). Cost Increase and Delay The tribunals themselves were concerned about the increase in cost and time caused by amicus curiae submissions. For example. may also be distinguished from commercial arbitration in this regard. a number of options to mitigate this problem are available to tribunals. the disputing parties are always given the right and opportunity to respond to the amicus curiae briefs submitted.1 3. which not only distorts the proceedings but also reduces the chances of settlement between parties. subject to the same criteria including the public nature of the dispute.98 The following subsections demonstrate that these concerns are either misplaced or avoidable.97 and (c) that it is doubtful whether meaningful and effective amicus curiae submissions can be made in the absence of complete ‘transparency’. a tribunal is free to reject the submissions that merely duplicate the arguments made by the parties.
Any information on such a case will potentially cause strong public reactions. 108 but in the context of investment treaty arbitration. as the example of the Chamber of Commerce in UPS shows. Above all. there is nothing wrong with accepting submissions from various types of amici including ‘industrial’ NGOs or business corporations in investment treaty arbitration. 111 commercial NGOs. excluding submissions from commercial NGOs would be contrary to the equality of parties. 102 After all. tribunals may furnish themselves with a wider range of grounds for the decisions. the UPS tribunal accepted a submission from the US Chamber of Commerce. In fact. the materials of the case may be released by the parties. Similarly.114
NGO Participation in Investment Treaty Arbitration
______________________________________________________________ submission). It is further submitted that diversity of views and analytic competition among amicus curiae submissions will cross-fertilise the debate and thus contribute to a more in-depth analysis.103 Politicisation of the Dispute within the Arbitral Forum The ‘politicisation’ concern is misplaced.104 Related to the politicisation concern is the concern over the credibility of non-state actors. These include issues such as: that NGOs often have only special and limited interests such as commercial and industrial interests (as opposed to the broader interests of the public).112 3. the Glamis tribunal accepted the submission from the National Mining Association.2
. because in the case of a dispute which involves important public issues.2.109 In addition. often support the position of foreign investors. 105 that NGOs may sometimes be manipulated by states or private corporations through subsidy or funding. 107 The general examination of the appropriateness of NGO participation in international law making is beyond the purpose of this chapter. which is comprised of corporations from the American mining sector. 110 This is because what usually happens in amicus curiae participation is that whereas non-commercial NGOs such as environmental and human rights NGOs often support the position of the host state. these concerns are largely misplaced. the risk of politicisation always exists regardless of third party participation in the arbitration proceedings. 106 and that their legitimacy is questionable as their internal decision-making processes are often neither democratic nor transparent. in particular NGOs. it is for tribunals to strike a balance between ‘receiving excessive information and being as fully informed as possible on all points’. if the issue at stake is the balancing between the protection of economic interests of the foreign investor and other public interests of the host state. In addition. By accepting arguments from amici that have different purposes and perspectives. tribunals retain full power to ‘decide whether it will allow the litigation to be extended in the ways suggested by an amicus’. First.
the possible ramification of the tribunal’s decision on Canadian postal workers and consumers.114 such as where there are doubts about the submitter’s transparency and the source of funding. i. for example. it is always possible (and necessary) for the tribunals to eliminate submissions from NGOs with dubious legitimacy or motivations in accordance with the guidelines set out by the FTC Statement on Third Party Participation and Rule 37 of ICSID Arbitration Rules. First. while the US perceived the Californian ban on MTBE as a measure to protect public health. It is argued that ‘in some cases.113 The tribunal has the discretion to reject submissions from applicants that failed to do so. are more at liberty than the national governments to represent global interests. These ‘extra’ perspectives will help tribunals not only to grasp the larger picture but also to make deeper analyses of the case through the ‘cross-fertilisation of the debate’.
. they may supply the tribunals with more comprehensive legal arguments than the parties.Tomoko Ishikawa
______________________________________________________________ Secondly. in UPS. which are free from any mandate to promote national goals. without being bound by the issues presented to the tribunals by the parties. Similarly. amicus curiae submissions may address certain factors the parties are unable to116 or unwilling to address. 4. even assuming that some of the risks cannot be completely eliminated.120 Second. 117 For example.115 Purpose and Benefit of Amicus Curiae Submissions It has been demonstrated that the concerns over accepting amicus curiae submissions are either misplaced or avoidable. the legitimacy of adjudicative decisions which affect regulatory concerns may require views other than those of the claimant and respondent to be represented in the process’. they are overridden by the benefits brought by amicus curiae submissions from wellqualified NGOs.e.122 Considering that investment treaty arbitration tribunals have limited capacity to conduct their own research.119 It is further argued that international NGOs. To put it another way. NGOs. by citing authority not contained in the parties’ arguments 121 or conducting detailed comparative legal studies. submissions from the CUPE and Council of Canadians addressed the issue that neither Canada nor UPS raised.123 such comprehensive studies by amici may well broaden the basis of the tribunal’s analysis and help the tribunal to reach good quality decisions. always have to convince a tribunal that they meet the criteria set out in these guidelines. in Methanex. 118 the IISD and Bluewater submissions placed it in a wider context of environmental protection and raised the issue of the host state’s right to protect the environment and promote sustainable development. However.124 This will be particularly so when the relevant issues are outside of the arbitrators’ areas of expertise. as potential amici.
132 5. however in a limited way. In the area of human rights law. Amicus curiae briefs. and outweighed by the benefits amicus curiae briefs may bring to the investor–state dispute settlement process. policy design and options development. or provide an extra layer of factual information specific to the dispute. comprehensive factual/legal arguments and expert knowledge. Moreover. That is. the comprehensive analysis made by expert NGOs (e. Conclusion This chapter has demonstrated that the law and practice of investment treaty arbitration has opened the door for NGOs to participate. they may provide expert scientific or technical knowledge. will actually contribute to the better quality of an investment arbitration award by providing tribunals a broader perspective. the primary contribution of these submissions is to the content of such decisions. Although concerns have been raised over such participation by NGOs.126 Fourth. through amicus curiae submissions. environmental policy is normally based on ‘a careful problem identification. While incorporating rules and practice that govern international commercial arbitration. 127 They may also provide a measure of access to a particular third party whose interests may be affected by the decision because of their close relationship with the dispute.128 It would be incorrect to assume that amicus curiae submissions automatically broaden public acceptance of the outcome and therefore enhance the legitimacy of the decisions of the tribunals in this sense. As a
NGO Participation in Investment Treaty Arbitration
______________________________________________________________ Third. they may inform the tribunals of the broader implications of a decision beyond the particular interests of the parties.g. it is pointed out that NGOs are best placed to propose ‘good practice’ with their grassroots experience. they are largely misplaced or avoidable. risk assessment.125 When a tribunal is required to assess the appropriateness of environmental measures as an application of such environmental policy. international and local NGOs may combine their expertise and knowledge and make a joint submission) will be particularly valuable. they bridge the gap between (public) substantive aspects and (private) procedural aspects of investment treaty arbitration. For example. and costbenefit analysis’. epidemiological and ecological studies.130 At any event (whatever the real purpose of each amici is). including its regulatory measures. 129 Rather. the primary purpose of amici should be to assist tribunals by providing additional information and arguments. fate and transport analysis. investment treaty arbitration is a forum to adjudicate the legality of the exercise of sovereign power of the host state. etc. as ‘friends of the court’.131 the reason for tribunals to accept amicus curiae submissions should be to enhance the quality and credibility of their own decisions. if they have gone through a proper screening process.
Berkeley. to make effective use of it. In the context of the human rights issues. CA. and better understand the actual impact of their decisions on the public. p. For this framework change to serve its purposes described above.
. and since then NGOs have become regular participants in the human rights work of the UN. OUP. Oxford. Global Community: The Role of International Organizations in the Making of the Contemporary World. amicus curiae briefs should have a substantial. it is also within the discretion of the tribunal whether (and to what extent) to consider arguments made in amicus curiae briefs it actually receives. 142. 52. International Human Rights (3rd edn).uk/p. Cambridge. investment treaty awards often have significant impact on public interests. The Making of International Law.staff.Tomoko Ishikawa
______________________________________________________________ consequence. 2007.ac. 18. pp. Westview Press. 1997.133 the change concerning amicus curiae submissions is one step towards such a departure. 2003. this chapter defines this term through what they are not: they are not established by a government or by intergovernmental agreement and their resources should come primarily from voluntary contributions. ‘Two Centuries of Participation: NGOs and International Governance’.
An NGO is an elusive concept that lacks any generally accepted definition. p. Although there are other important issues remaining to be solved such as the issue of confidentiality of the proceedings.HTM. 183. 2002. and once they received the submission. A Iriye. Donnelly observes that NGO lobbying helped to assure that human rights language was included in the United Nations Charter. 112. role to play—they should not be lightly disregarded. ‘What is a Non-Governmental Organization?’. therefore. 66-90. p. rather than nominal. However. P Sands. 2006. See also. p. In other words. vol. Amicus curiae briefs will mitigate this discrepancy between substance and procedure. accessed 8 October 2008. What is required of the tribunals is to make careful and proper selection of each amicus curiae submission. www. A Boyle and C Chinkin. J Donnelley. On the other hand. whether or not a tribunal receives an amicus curiae submission is a matter of discretion of the tribunal. CUP. Michigan J of Intl L.city. 2002. because they assist investment arbitration tribunals realise public issues surrounding the relevant dispute. under the current rules and practice. 2 S Charnovitz. Taken to its logical extension. Principles of International Environmental Law (2nd edn).willetts/CS-NTWKS/NGO-ART. Willetts. University of California Press. this discrepancy makes it necessary for investment treaty arbitration to depart from procedural rules of international commercial arbitration.
regional and international levels’. 7 More than 800 NGOs attended the Conference. Article 18(3) states that: ‘[i]ndividuals. 54. Article 38: ‘The World Conference on Human Rights recognizes the important role of non-governmental organizations in the promotion of all human rights and in humanitarian activities at national. London. 18. 5 Agenda 21 paras 27. including international finance and development agencies.11. Vienna. For example. vol.un. 265. London. groups.118
NGO Participation in Investment Treaty Arbitration
______________________________________________________________ H French.htm. Article 52: ‘[t]he World Conference on Human Rights recognizes the important role played by non-governmental organizations in the effective implementation of all human rights instruments and. 38. 15. 38. J Werksman (ed). 18(2). Harvard Intl Rev. See also. 10 For example. p. See also.ch/html/menu5/wchr. 82. 6 14-25 June 1993. GA Res. 18(1). 38. 12 A Redfern and M Hunter. Law and Practice of International Commercial Arbitration (4th edn). in Greening International Institutions. accessed 10 October 2008.org/esa/sustdev/documents/agenda21/english/agenda21toc. Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms. as appropriate. 55. 4 The texts of Agenda 21 are available at the website of the UN Division for Sustainable Development www. to the promotion of the right of everyone to a social and international order in which the rights and freedoms set forth in the Universal Declaration of Human Rights and other human rights instruments can be fully realized’. 1995. Earthscan. 53/144 (1998). In particular.13.5. 1996. take measures to:…’. 73. Sweet & Maxwell. 11 Declaration on the Right and Responsibility of Individuals. 38.unhchr. ‘Mixed Blessings: The Growing Influence of NGOs’. Articles 13. ‘The Role of Non-State Actors’. institutions and nongovernmental organizations also have an important role and a responsibility in contributing. and all intergovernmental organizations and forums should.9.14. ‘World Conference on Human Rights’ www. Austria. in particular. pp. the Convention on the Rights of the Child’. S Sinnar. in consultation with non-governmental organizations. 100. 38. accessed 5 October 2008.8 (d). Van Harten explains that the principle of party autonomy requires that the parties’ agreement to arbitrate to be respected by states and the process should be
. 9 It is also observed that ‘NGO lobbying increased the official conference statement’s emphasis on women’s rights’. 8 Vienna Declaration and Programme of Action (adopted by the World Conference on Human Rights on 25 June 1993). UN Office of the High Commissioner for Human Rights. 2004.htm. p. para 27. 254. Articles 16.9 states that ‘[t]he United Nations system.
G Van Harten. the Texts with Amendments as Adopted in 2006’ www. 13 UNCITRAL. accessed 10 October 2008. ‘UNCITRAL Model Law on International Commercial Arbitration. vol. ICLQ.uncitral. p. The ICSID Convention: A Commentary. op.
. v.. 2007. 121(n10). ‘Applicable Substantive Law in ICSID Arbitrations Initiated Under Investment Treaties’.pdf. www. Argentine Republic (Decision on Liability of 3 October 2006) ICSID Case No ARB/02/1 para 97). accessed 5 October 2008.iccwbo. p. LG&E Energy Corp.org/uncitral/en/uncitral_texts/arbitration/1985Model_arbitratio n. 14 are filed under the arbitration rules of the Stockholm Chamber of Commerce. See also. UNCTAD.uncitral. p.Tomoko Ishikawa
______________________________________________________________ insulated from oversight by domestic courts.pdf. 17 (1). 377. 80 are filed under the UNCITRAL Rules. 60. A R Parra. Article 1131 of the NAFTA. 562. accessed 10 October 2008. AAPL v. 2006. 2001. 21. vol..org/pdf/english/texts/arbitration/arb-rules/arb-rules. ‘The Public-private Distinction in the International Arbitration of Individual Claims against the State’. cit. ICSID Rev. Sri Lanka (Award of 27 June 1990) ICSID Case No ARB/87/3 para 21). OUP. 612. Oxford. The principle of party autonomy is reflected in Rule 20(1)(2) of the ICSID Arbitration Rules. 2007. while 182 out of 290 investor-state disputes have been filed with ICSID or ICSID Additional Facility. ‘Investment Treaty Arbitration as a Species of Global Administrative Law’ EJIL. ‘Latest Developments in Investor–State Dispute Settlement’. 18 Article 42(1) of the ICSID Convention. 486. pp. 16. G Van Harten. 17 As of 2007. 16 ICC. Principles of International Investment Law. 371. 15 UNCITRAL. 226. G Van Harten and M Loughlin. Cambridge.html.org/uploadedFiles/Court/Arbitration/other/rules_arb_engl ish. Investment Treaty Arbitration and Public Law. 56.pdf. vol. pp. 2008. OUP. 126). p. accessed 10 October 2008. A Commentary on the Convention on the Settlement of Investment Disputes between States and Nationals of Other States. ‘ICC Arbitration Rules of 1998’ http://www. Redfern and Hunter. and 5 are filed under the ICC Rules. LG&E Capital Corp. C Schreuer. ‘UNCITRAL Arbitration Rules of 1976’ www. and LG&E International Inc. Sri Lanka (Asian Agricultural Products Ltd v.unctad. pp. 2008. See also R Dolzer and C Schreuer.org/en/docs/iteiia20083_en. 14 Van Harten and Loughlin argue that ‘investment treaties incorporate arbitration treaties in order to provide an institutional forum and procedural framework for investment arbitration’. Oxford. 2001. CUP.
For example. ‘The Emergence of Global Administrative Law’. 20 M Sornarajah. 2008. op. pp. Van Harten observes that the system of investment treaty arbitration resembles to domestic systems of constitutional or administrative law. 2007.aspx.com.org/ilc/texts/instruments/english/commentaries/9_6_2001. see. 22 A Cosbey. Sornarajah. Paris.. in International Investment for Sustainable Development: Balancing Rights and Rewards. 2005.naftaclaims.. 2005. Although this chapter focuses on the latter. For the examination of how practices of investment treaty arbitration contribute to the development of general international law. since Methanex Corporation v. United States (documents of NAFTA cases. OECD (ed). www. Chapter I. p. See also. including Methanex. G Van Harten. The Hague. the former has also developed recently. in International Investment Law: A Changing Landscape . 2000.investmenttreatynews. the commentaries to ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts refer to several ICSID awards. 391-401. cit. pp.120
NGO Participation in Investment Treaty Arbitration
______________________________________________________________ For example. Investment Treaty News. pp. 2005. ‘Unilateral Commitments to Investment Protection: Does the Promise of Stability
. C McLachlan.pdf. S W Schill. cit. accessed 15 October 2008. accessed 10 October 2008. judges and other public officials in order to protect the business’. *. op. 1 September 2008. p. ‘International Investment Law and the Host State’s Power to Handle Economic Crises: Comment on the ICSID Decision in LG&E v. Journal of International Arbitration. cit.cit. Argentina’. as it ‘reviews and disciplines legislators. 17-24. 23 The closed nature of arbitration proceedings manifests itself most significantly as the following two features: confidentiality of the proceedings and the limitation on third party participation. Law & Contemporary Problems vol. vol.A Companion Volume to International Investment Perspectives. op. ILC. Van Harten and Loughlin. are available at www. Van Harten. ICLQ. ‘Investment Treaties and General International Law’.org/content/archives. 24(3). p. 57 (2).. 21 B Kingsbury. ‘Commentary: A Case for an International Investment Court’. 3. ‘The Road to Hell? Investor Protections in NAFTA’s Chapter 11’. C Yannaca-Small. OECD Publishing. 62. op cit. ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts. ‘Transparency and Third Party Participation in Investor–state Dispute Settlement Procedures’. pp.. N Krisch and R B Stewart. accessed 10 October 2008). it is a regular practice of NAFTA tribunals to make the hearings open to the public. etc. K Tienhaara. vol. Dolzer and Schreuer. 265. L Zarsky (ed). 3637. Kluwer Law International. op. Dolzer and Schreuer. 68.un. 61-77. The Settlement of Foreign Investment Disputes. with Commentaries’ untreaty. *.
‘Third Party Participation in Investment-Environment Disputes: Recent Developments’. 239. www. La Federacion Departmental Cochabamba de Organizaciones Regantes. Republic of Bolivia. United States (Decision of the Tribunal on Petitions from Third Persons to Intervene as Amici Curiae of 15 January 2001). United States (Procedural Orders No 9-12). and Vivendi Universal S. 32 United Parcel Service v. 165.. v. 2004. Omar Ferdandez. Chapter C. p. S. Ybk Intl Envtl L.A. vol. 24 Amicus curiae is defined as ‘[a] friend of the court. p. 29 August 2002. v. p. 2008. ‘Statement of the Free Trade Commission on non-disputing party participation’.A.. citing B Abbott. paras 29 and 47. para 44). 1963. 28 ibid. Part II. The United States of America (Final Award of 9 August 2005) Part II. 31 See. para 61. 33 United Parcel Service v. A term applied to a bystander. Oscar Olivera. 36 Petition of La Coordinadora Para la Defensa del Agua y Vida. 30 FTC. para 41..Tomoko Ishikawa
______________________________________________________________ Restrict Environmental Policy Development?. 38 Suez. who without having an interest in the cause. 2007. Friends of the Earth Netherlands.gov/assets/Trade_Agreements/Regional/NAFTA/asset_upload_file 45_3600. On the other hand. Canada (Final Award of 11 June 2007).. Father Luis Sanchez. Tribunal Communication re: Amicus Participation of April 6. and Congressman Jorge Alvarado to the Arbitral Tribunal in Aguas del Tunari. 37 Letter from President of Tribunal Responding to Petition.. 34 Glamis Gold Ltd. 25 Methanex Corporation v. Sociedad General de Aguas de Barcelona S. 27 ibid. para 49. para 3. Argentine (Order in Response to a Petition for
. 29 ibid. 694. para 28. ‘Dictionary of Terms and Phrases used in American or English Jurisprudence’.. Canada (Decision on Petitions for Intervention and Participation as Amici Curiae of 17 October 2001). 72(4).A. subject to verification in all three NAFTA languages). 17. vol.ustr.pdf (unofficial text. Methanex Corporation v. Sempa Sur. 16(2). 1879. ‘The Amicus Curiae Brief: From Friendship to Advocacy’. accessed 10 October 2008. 26 ibid. S Krislov. Yale L J. para 24. vol. 29 January 2003.. RECIEL. v. of his own knowledge makes suggestion on a point of law or of fact for the information of the presiding judge’. the tribunal declined to accept the request made by these institutions for the permission to make a post-hearing submission on a legal issue (ibid. Chapter C. 35 K Tienhaara.
Sociedad General de Aguas de Barcelona S. 44 ibid.’) to be a grant of residual power to the tribunal to decide procedural questions.. accessed 10 October 2008. The tribunal also pointed out that Article 44 is substantially similar to Article 15(1) of the UNCITRAL Arbitration Rules.. 45 ibid. p.A. 47 ibid. on which the Methanex tribunal based its decision to grant the submission of amicus curiae briefs (ibid. the amended Arbitration Rules apply to the initiated under investment treaties after the adoption of amendments (A R Parra.. and Vivendi Universal S. Argentina (Order in response to a Petition for Participation as Amicus Curiae of 17 March 2006) ICSID Case No ARB/03/1. the Tribunal shall decide the question. 48 ICSID Senior Counsel. ‘Introductory note to the Aguas del Tunari S. 43 Suez. 41 ibid. It should however be noted that the request for arbitration was filed before the amended Rules came into force.. In addition. para 14. 41(1). Sociedad General de Aguas de Barcelona S. according to Article 44 of the ICSID Convention.worldbank. the tribunal found the last sentence of Article 44 (‘If any question of procedure arises which is not covered by this Section or the Arbitration Rules or any rules agreed by the parties. para 22.. 39 In particular. v. para 17.A.A.. ‘The Development of the Regulations and Rules of the International Centre for Settlement of Investment Disputes’. 49 Suez. This leaves uncertainty as to the application of the amended Rules. 50 Article 44 of the ICSID Convention requires tribunals to use the version of rules in effect at the time the parties consented to arbitration.122
NGO Participation in Investment Treaty Arbitration
______________________________________________________________ Transparency and Participation as Amicus Curiae of 19 May 2005) ICSID Case No ARB/03/19.. and InterAguas Servicios Integrales del Agua S. para 34. whereas. 46 ibid. The Intl Lawyer. para 18. v.org/ICSID. there is nothing on the ICSID website indicating that the disputing parties agreed to apply the amended Rules. but the procedural
. 51 Biwater Gauff (Tanzania) Limited v. 40 ibid. para 14).A.A. United Republic of Tanzania (Procedural Order No 5 of 2 Feb 2007) ICSID Case No ARB/05/22. 58. Republic of Bolivia case’ available at www. 2007. vol. Argentina (Order in Response to a Petition by Five NGOs for Permission to Make an Amicus Curiae Submission of 12 February 2007) ICSID Case No ARB/03/19... 42 ibid. para 38. v. 47(n59).
24(3). The amicus curiae submission is available at the CIEL’s website 10 www. Fouchard. G Handl. p. 56 N Rubins. vol.pdf. 55 Sands. The Hague. Guide to ICSID Arbitration. 31-32. op. vol. 59 L Reed. 4. W Lang. See also. 57 It is argued that the principle of party autonomy is part of the principle of self-determination of the disputing parties. pp. Kluwer Law International. 3(3). H Neuhold and K Zemanek (eds). ‘Environmental Security and Global Change: The Challenge to International Law’. 5 (ibid. 54 Save UPS. J Chalker. pp. a tribunal has power to investigate the case on its own initiative. J Paulsson and N Blackaby. cit. E Gaillard and J Savage (eds). 59. Kluwer Law International. 327-328. 199.ciel. 83. for What Benefit?’. 73. 2006.pdf. ‘Filing Amicus-curiae Petitions in Investor–State Arbitrations’. M Pryles. in Environmental Protection and International Law. Tribunals asked the parties to provide answers to specific questions (Benvenuti & Bonfant v.) para 46. Under the ICSID Convention (Article 43(2)) and ICSID Arbitration Rules (Rules 3436). pp. in particular NGOs. This does not mean that the tribunals exclusively rely on evidence submitted by the parties. ‘Limits to Party Autonomy in Arbitral Procedure’. it is submitted that the effectiveness of the 1989 Basel Convention may ultimately turn on various informal monitoring and verification processes involving non-state actors.Tomoko Ishikawa
______________________________________________________________ orders No 3 and 5 appear to be based on the assumption that the arbitration is operating under the amended rules for purposes of amicus curiae participation.uk/schools/law. all the cases examined in section I involve either environmental or human rights issue. accessed 5 October 2008. 53 Biwater Gauff (Tanzania) Limited v. D Coester. accessed 5 October 2008. Gaillard. United Republic of Tanzania (Award of 18 July 2008) ICSID Case No ARB/05/22 para 68. 58 More specifically.ac. Graham & Trotman. Congo (Award of 15 Aug 1980) ICSID Case No
. London. ‘Constitutional Aspects of Party Autonomy and its Limits: the Prospective of Law’ www. Goldman on International Commercial Arbitration. procedural issues covered by the principle of party autonomy refer to the choice of applicable law that govern the merits of a dispute and the selection of arbitration rules. For example. The Hague. 1991. 2007.kcl. 52 Procedural Order No. sdlanpo. J of Intl Arb.org/Publications/Biwater_Amicus_26March. Transnational Dispute Management. p.org/pub/2007_Filing_Amicus_Curiae_Petitionsin_Investor. accessed October 2008.. p. 1999. ‘Opening the Investment Arbitration Process: At What Cost. 2007. 2004.
615. See also. Good Governance and the Rule of Law: Express Rules for Investor–State Arbitrations Required (International Institute for Sustainable Development)’. p. it may feel that raising certain sensitive issues will exacerbate the dispute or be counterproductive. Article 27 of the UNCITRAL Arbitration Rules and Article 20(4) of the ICC Arbitration Rules. pp. op. pp. pp. pp.
. R Yerxa and B Wilson (eds). Cambridge. cit... For the use of experts. 310. AJIL. 158: ‘(amicus curiae briefs) became a source of ideas and arguments that may affect the outcome of the dispute’. 65 A Palacio. Redfern and Hunter. 155. Cameroon (Decision on Annulment of 3 May 1985) ICSID Case NoARB/81/2). it is usual for an arbitral tribunal to be given express power to appoint experts either by an express term of the arbitration agreement or through the incorporation of institutional rules of arbitration by such an agreement. 2006. 652 and 655.. 21. 62 In Suez/InterAguas. p. to produce specific documents (Amco v. Schreuer. 2001. CUP. 45. ‘Recent Institutional Developments’. Klockner v. Cameroon (Award of 21 October 1983) ICSID Case NoARB/81/2). the tribunal defined a ‘procedural question’ as ‘one which relates to the manner of proceeding or which deals with the way to accomplish a stated end’ and concluded that ‘[t]he admission of an amicus curiae submission would fall within this definition of procedural question since it can be viewed as a step in assisting the Tribunal to achieve its fundamental task of arriving at a correct decision in this case’ (para 12). op. 64 Van Harten. Tribunals also appointed experts on their own motion (Benvenuti & Bonfant v. op. 309. p. Klockner v. ‘Confidentiality in arbitration proceedings: recent trends and developments’. Investment Treaty Arbitration and Public Law. op. pp. J of Intl Economic L. 229. cit. vol. ‘Practical Suggestions for Amicus Curiae Briefs before WTO Adjudicating Bodies’. ‘Amicus Curiae participation in WTO dispute settlement: reflections on the past decade’. Palacio was the Secretary-General of the ICSID. 24(2). 2007. cit. 24. J of Business L. 611 (n24). 66 Yannaca-Small. ‘The Participation of Nongovernmental Organizations in International Judicial Proceedings’. Congo (ibid. May. 300.)). 60 Shelton identifies several reasons for such an omission by a state: it may consider certain issues subordinate or tangential to the major points it wishes to raise. 61 J Durling and D Hardin. 20. 63 G Marceau and M Stilwell. cit.124
NGO Participation in Investment Treaty Arbitration
______________________________________________________________ ARB/77/2. 88(4)... D Shelton. ‘Revision of the UNCITRAL Arbitration Rules. 68 F Marshall and H Mann. 1994. 67 H Seriki. See. op. p. in Key Issues in WTO Dispute Settlement. ICSID News. 2005. Indonesia (Decision on Annulment of 16 May 1986) ICSID Case NoARB/81/1). cit.
vol. v. 273-274. v. The Government of Canada.A.iisd. op. Republic of Chile (Award of 24 May 2004) ICSID Case No ARB/01/7. The Government of Canada (Partial Awards on the Merits of 13 November 2000) para 203. 21(2). 87 Separate opinion of Bryan Schwartz in S D Myers v. cit. 81 Compañía del Desarrollo de Santa Elena.. op. The Government of Canada. 2001. Modern Law Review. 78 See note 23. 71.com. 75 Ethyl Corporation v. 84 See note 76.org/pdf/2006/investment_uncitral_rules_rrevision. ‘International Investment Law and Environmental Protection’. 76 S D Myers v. www. see A Newcombe.Tomoko Ishikawa
______________________________________________________________ 2006. www. v. 85 L J Dhooge..naftaclaims.. and MTD Chile S. vol. op. ‘Confidentiality and Third Party Participation’. 10. Ybk Intl Envtl L. Republic of Lithuania (Award of 11 September 2007) ICSID Case No ARB/05/8. cit. 70 Methanex Corporation v.A. 80 MTD Equity Sdn. Arb Intl. Republic of Costa Rica (Award of 17 Febrary 2000) ICSID Case No ARB/96/1.. 86 O K Fauchald. 74 Biwater Gauff (Tanzania) Limited v. vol. 173.. 82 Parkerings-Compagniet AS v. 2008. para 19. accessed 1 October 2008. Minnesota J of Global Trade.A. United Mexican States. Argentina.) para 65. Canada (Final award. 69 Mistelis also stresses this point. 83 For the contrary view.pdf. ‘The North American Free Trade Agreement and the Environment: The Lessons of Metalclad Corporation v.naftaclaims. 79 Tecnicas Medioambientales TECMED S.com. 150.A. vol. www. op. op. 77 Metalclad Corporation v. Sociedad General de Aguas de Barcelona S. p. para 49. p. L Mistelis. p. 2005. Gus Van Harten. and InterAguas Servicios Integrales del Agua S. v. 71 United Parcel Service v... 2008. United Republic of Tanzania.naftaclaims. Bhd. cit. para 53. and Vivendi Universal S.A. as a result of which the regulations proposed were never adopted. Argentine. cit.com.A. para 18. ‘Book review. v. Sociedad General de Aguas de Barcelona S.A. S. give such an example: in the mid 1990s the US tobacco lobby threatened to commence NAFTA arbitration proceedings against the Canadian government if it proceeded with planned restrictions on cigarette packaging. pp. United States. 72 Suez. www.
. 19. cit. Investment Treaty Arbitration and Public Law’. 73 Suez. cit. op. 230. Mexico (Award of 29 May 2003) ICSID Case No ARB (AF)/00/2. Marshall and Mann. United Mexican States’.
Investment Treaty Arbitration and Public Law. limits the length of the application for leave to file a non-disputing party submission to no more than five pages and that of the submission to twenty pages.Report of the panel (15 June 2000) WT/DS160/R para 6. The Biwater tribunal similarly limited the number of pages of the amicus curiae submission (Biwater Gauff (Tanzania) Limited v. cit.. 387. op. 89 Van Harten. pp. United States—Section 110(5) of US Copyright Act . 68. in International Organizations and International Dispute Settlement: Trends and Prospects. 2002. 1995. op. p. 175183. Investment Treaty Arbitration and Public Law. For the issue of the state consent to investment treaty arbitration. 203-204.. cit. cit. op. p. cit. 93 ibid. p. Transnational Publishers. op. cit.
. p.. 101 For example. ‘Intergovernmental Organizations as ‘Friends of the Court’’. 2002. 66. . Minnesota J of Global Trade. B(8) 97 Rubins. ‘The Public-private Distinction in the International Arbitration of Individual Claims against the State’. cit. ICSID Rev. 100 ‘The Tribunal shall ensure that the non-disputing party submission does not disrupt the proceeding or unduly burden or unfairly prejudice either party’. vol.. pp.. 232. op.126
NGO Participation in Investment Treaty Arbitration
______________________________________________________________ To be sure. United Parcel Service v.5 (n52)) para 60). C Romano and R Mackenzie (eds). 391. 10. cit. op.8. but the potentially significant impact of the decisions on the general public is in common between them. ‘Unilateral Commitments to Investment Protection: Does the Promise of Stability Restrict Environmental Policy Development?’. para 50. Canada (Final award. 99 For example. vol. 94 It may be crucial in considering certain other issues such as the need for the review of arbitral awards and the creation of ‘world investment court’. p.. op. see J Paulsson.. Methanex Corporation v. 103 C Chinkin and R Mackenzie. cit. 159-163. investment treaty arbitration is distinguished from these public dispute settlement bodies in many respects. United Mexican States Revisited: Judicial Oversight of NAFTA’s Chapter Eleven Investor-State Claim Process’. pp. op. 145. 155. p. 92 Van Harten. cit. 96 For example. Van Harten. C Tollefson.. ‘Metalclad v. 5... See. United Republic of Tanzania (Procedural Orer No..) para 69. Investment Treaty Arbitration and Public Law. Chazournes. United States (Final award. 11. New York. 102 The FTC Statement on Third Party Participation. op. 91 Van Harten. op. cit. p. 95 Tienhaara. ‘Arbitration Without Privity’.. 8. p. cit. 98 ibid. 90 Van Harten and Loughlin. p. op. the FTC Statement on Third Party Participation.
The L & Practice of Intl Courts and Tribunals. 17. op. Competition. 331. at its extreme. in Non-State Actors and Human Rights. U of Pennsylvania J of Intl Economic L. p. 109 D C Esty. Dispute Resolution J Nov 2006-Jan 2007. p. United States (Award on Jurisdiction of 5 January 2001). 106 Kamminga. 348. 58. ‘Legitimacy. see S Charnovitz. and NAFTA’s Investment Chapter’. pp. None of the ICSID Arbitration Rules. 2003. It is observed that ‘[i]n fact. the tribunal confirmed that neither the ICSID Convention nor the Rules prevents the parties from revealing their case (para 4). 107 C H Brower. U of New South Wales Faculty of L Research Series 33. Durling and Hardin. ‘Participation of Nongovernmental Organizations in the World Trade Organization’. may ‘unfairly displace the interests of the masses by those of a few’. vol. ‘Non-Governmental Organizations at the World Trade Organization: Cooperation.. findarticlescom/p/articles/mi_qa3923/is_/ai_n17194789.3 (n65)). ‘Amicus Intervention in Investor-State Arbitration’. 1996. 2006. J E Viñuales. op. 110 R P Buckley and P Blyschak.
. ‘The Evolving Status of NGOs under International Law: A Threat to the Inter-State System?’. 2007. vol. United Republic of Tanzania (Procedural Order No3 (on confidentiality/procedural integrity) of 29 September 2006) (Procedural Order No.. or Exclusion’. 100(2). 2007. p. p. 123. Vanderbilt J of Transnational L. ‘Transparency versus Confidentiality in International Investment Arbitration . cit. 1. cit. 111. the UNCITRAL Arbitration Rules or NAFTA Chapter 11 provisions explicitly addresses the issue of the confidentiality obligations between parties. cit. op. 110. p. ‘Guarding the Open Door: Non-Party Participation Before the International Centre for Settlement of Investment Disputes’.Tomoko Ishikawa
______________________________________________________________ The question of whether the parties may unilaterally release the materials introduced during the proceedings of investment treaty arbitration remains unclear. Indonesia. and Biwater Gauff (Tanzania) Limited v.The Biwater Gauff Compromise’. p. 2005. S Charnovitz. n. It is argued that the participation of private actors.. AJIL. See also. Oxford. 97. In Amco v. vol. J of Intl Economic L. 108 For such examinations. ‘Nongovernmental Organizations and International Law’. P Alston (ed). 6(1). 227-228. 1998. 90. 105 M T Kamminga. Boyle and Chinkin. cit. 100 and 103). Loewen Group v. pp. and the case law on this issue is inconsistent. a number of ICSID awards have been released unilaterally by one of the disputing parties’ and ‘[s]ubmissions of the parties and other documents have in fact been made available to the public on a regular basis’ (C Knahr and A Reinisch. op.. 36(1). 73. vol. p. vol. OUP.
op. Donnelley. 660. op. p. 114 This discretional power. which represented 12% of its annual budget) from the UPS before its submission of amicus curiae briefs. cit.. 119 G Van Harten. 2005. p. p. accessed 8 October 2008. primarily. A Broches. op. to the parties. It should be noted that. Rule 37(2) of ICSID Arbitration Rules). cit. despite the fact that the Chamber had received $100. 142. Non-State Actors & Intl L. they have legal authority to investigate the case on their own motion. 626. 117 Chinkin and Mackenzie. raises the concern of the ‘impossibly high threshold’ for granting leave. It should also be noted that. op. see. points out the benefit of amicus curiae briefs for states is that they ‘may lessen their litigation burden and show public support for the arguments they make’. For example.law. cit. cit. cit. cit. 5 (3). cit. op. appointed experts and the ICSID Secretariat.128
NGO Participation in Investment Treaty Arbitration
______________________________________________________________ austlii. v.edu. 113 Buckley and Blyschak. 123 As examined above.000 (US dollars. cit. 159. 118 US Rejoinder on the Merits of 20 April 2004 para 195. but his/her assistance is limited to matters of procedure and the management of the proceedings. op.. 111 Shelton. p. op. 137. Schreuer.. cit.uts. Investment Treaty Arbitration and Public Law... 116 An example where the failure of the respondent state to produce documentation ordered by the tribunal resulted in an unfavourable assessment is AGIP S. p.html. op.au/au/journals/UNSWLRS/2007/33.p.
. 122 L Bartholomeusz... op. vol. but this is a separate issue. cit.A. 256. 121 Shelton. p. for ICSID arbitration. p. op. Buckley and Blyschak. cit. 154. Amicus curiae brief of the Chamber of Commerce dated 10 October 2005 (para 9). the Secretary General of the ICSID appoints a secretary of tribunals who assists arbitrators in each proceeding. together with the ambiguity of the term ‘significant interest (in the arbitration proceedings)’ (Paragraph 6(c) of the FTC Statement on Third Party Participation. Selected Essays: World Bank. 115 Buckley and Blyschak. p. the tribunal in UPS received the amicus curiae brief from the Chamber of Commerce. ‘The Amicus Curiae before International Courts and Tribunals’. 120 French. the circumstances such as a potential amici is subsidised by the host state or has received donations from the relevant foreign investor may well indicate the lack of its independence. 618. but their resources to do so are limited. however. p. 241. People’s Republic of the Congo (Award of 30 Novembe 1979) ICSID Case No ARB/77/1. op. 112 Chinkin and Mackenzie..
124 Here. op. 133 For the examination of the issue of confidentiality. p. 129 This is not to deny such a possibility. 125 Esty. Viñuales. M I Egonu. 1995. For example. 279. 618. cit. cit. 126 E Decaux. D A Wirth. Knahr and Reinisch. see. 2006. United Republic of Tanzania (Biwater)’. 131 For example. p. P Alston (ed). op. 127 Shelton. 479. op.. vol. p. cit. The term a ‘right (or correct) decision’ should be avoided. see. op.. ‘Confidentiality in International Arbitration: An Introspection of the Public Interest Exception’. ‘Investor-State Arbitration Under ICSID: A Case for Presumption Against Confidentiality?’. cit. Iowa L Rev. Oxford. the term ‘good quality’ refers to factors such as based on enough consideration from all relevant perspectives. OUP. op. in The EU and Human Rights. or they may wish to ‘earn their influence’ by demonstrating the attractiveness of their ideas and values in the international sphere (as to the last point. 128 Bartholomeusz. cit. cit. and Other Subjects of Public and Private International Law. 136. J Chalker. J of Intl Arb. enhance public acceptance of the judicial process and decision by providing an opportunity (and a transparent mechanism) for all aspects of the dispute to be considered’. 23(1). op. p. etc. cit. they may have specific reasons to support one party (e. J Misra and R Jordans.sdla-npo. ‘Bricks without Straw: the Confidentiality Order in Biwater Gauff (Tanzania) v. This purpose is reflected in the rule of amicus curiae participation in the European Convention on Human Rights: ‘in the interest of the proper administration of justice’ (Article 36(2)). 348. 132 Bartholomeusz. p. or for the overall arbitration regime. 130 Marceau and Stilwell.. p.). cit.g. op. p. p.. op. The Hague. 180. vol. p. 137: ‘perhaps the amicus can. 1994.org/pub/2007_Bricks_Without_Straw_Emailed_0325. p. J of Intl Arb. op. 285. the Chamber of Commerce in UPS. 790. which is recognised by Chinkin and Mackenzie. potentially at least. Martinus Nijhoff.. Charnovitz..g. cit. op. op. cit.. Although it is argued that amicus curiae submissions will contribute to reduce the likelihood of ‘erroneous’ conclusions. www. because there is no set answer to the question of what is a right decision. ‘Reexamining Decision-Making Processes in International Environmental Law’. the CUPE in UPS). free from legal and factual errors. Seriki. 276. 24(5) 2007. p.pdf. and well-balanced etc. 79.. they may have interests in the outcome of the dispute (e.’Human Rights and Civil Society’. cit.Tomoko Ishikawa
______________________________________________________________ ICSID. vol. 1999. ‘Nongovernmental Organizations and International Law’.. See also. the best decision for the parties in a particular case may not be the best for the public.
New York. L. 2001. Non-State Actors & International Law. p. ‘The Road to Hell? Investor Protections in NAFTA’s Chapter 11’. C. vol. C. p. K. vol. 209. p. CUP.. 123. p.. D. ‘Two Centuries of Participation: NGOs and International Governance’. 2005.100. 2005. ‘Intergovernmental Organizations as ‘‘Friends of the Court’’’. O. Wilson (eds).348 Charnovitz.. Zarsky (ed). 10. United Mexican States’. 2006. R. 183. in International Investment for Sustainable Development: Balancing Rights and Rewards. Dhooge. C. S. Boyle. International Human Rights (3rd edn). The Making of International Law. Chinkin. C. Donnelley.. Michigan Journal of International Law. vol. ‘The Amicus Curiae before International Courts and Tribunals’..130
NGO Participation in Investment Treaty Arbitration
Bartholomeusz. Oxford. 2007. p. Journal of International Economic Law. Romano. and Chinkin. 1. and R. p. ‘Amicus Curiae participation in WTO dispute settlement: reflections on the past decade’. Chazournes. 1998. J. D. ‘Nongovernmental Organizations and International Law’ American Journal of International Law. Westview Press. ‘The North American Free Trade Agreement and the Environment: The Lessons of Metalclad Corporation v. Minnesota Journal of Global Trade. OUP.. Charnovitz. 5. L. Yerxa and B.. Transnational Publishers. J. 2008. J. A. 3. S. 2006... L. A. ‘International Investment Law and Environmental Protection’. in Key Issues in WTO Dispute Settlement.. vol. vol. Fauchald. Esty. 209. 17. 2002. Mackenzie (eds).
. Durling.. Cambridge. in International Organizations and International Dispute Settlement: Trends and Prospects. vol. 1997. 2005. ‘Non-Governmental Organizations at the World Trade Organization: Cooperation. R. and Mackenzie. 18. or Exclusion’. Competition. Cosbey. Yearbook of International Environmental Law. and Hardin.
57. 68.. ‘Revision of the UNCITRAL Arbitration Rules.Tomoko Ishikawa
______________________________________________________________ French. H. 2006. P.. Van Harten. Zemanek (eds). F. Kingsbury. M. International and Comparative Law Quarterly. M.. 2007. G..
. H. 2004. Good Governance and the Rule of Law: Express Rules for Investor–State Arbitrations Required (International Institute for Sustainable Development)’. p. and Mann. A. ‘Confidentiality and Third Party Participation’. ‘Practical Suggestions for Amicus Curiae Briefs before WTO Adjudicating Bodies’. p. 2007. p. 2008. Law and Practice of International Commercial Arbitration (4th edn). Investment Treaty Arbitration and Public Law. vol. 361. London. G. for What Benefit?’.The Biwater Gauff Compromise’. Sands. Arbitration International.. C. Rubins. 2006. 211. London. and Stilwell.. Redfern. 3. Handl. McLachlan. Journal of International Economic Law. ‘The Role of Non-State Actors’ in Greening International Institutions. p. Cambridge. ‘Opening the Investment Arbitration Process: At What Cost. A. www. vol. Law & Contemporary Problems. H. Marceau. accessed 1 October 2008. 2003. ‘Investment Treaties and General International Law’. CUP.. p. Mistelis. and Reinisch. 15. Earthscan. B. 21... and Hunter. 2001. ‘Transparency versus Confidentiality in International Investment Arbitration . ‘The Emergence of Global Administrative Law’. 254. vol. 2005. G.org/pdf/2006/investment_uncitral_rules_rrevision. Marshall. Lang. Graham & Trotman.. ‘Environmental Security and Global Change: The Challenge to International Law’. 1991. and Stewart. Knahr.pdf. Sweet & Maxwell. p. W. C. N.. Transnational Dispute Management. N. vol. OUP. B. London.. Oxford. 155. L.iisd.. Krisch. in Environmental Protection and International Law. Werksman (ed). 97. R.. The Law & Practice of International Courts and Tribunals. Principles of International Environmental Law (2nd edn). Neuhold and K. 2005. J. vol. 6. 1996.
1994. 2001.. p. pp. 183. Suez. Argentina (Order in response to a Petition for Participation as Amicus Curiae of 17 March 2006) ICSID Case No ARB/03/1 Tollefson. 2006. The Settlement of Foreign Investment Disputes. ‘Unilateral Commitments to Investment Protection: Does the Promise of Stability Restrict Environmental Policy Development?’. accessed 10 October 2008. A Commentary on the Convention on the Settlement of Investment Disputes between States and Nationals of Other States. 2002. vol. OUP. vol. G. G. Investment Treaty Arbitration and Public Law. and InterAguas Servicios Integrales del Agua S. G. European Journal of International Law. International and Comparative Law Quarterly. p. Cambridge. Van Harten... Van Harten.. C.. 11.A. Shelton. The ICSID Convention : A Commentary . K. Sornarajah. 2008.org/content/archives. 2007. Van Harten..A. CUP. vol. Oxford. 171-.
. pp. 139-. American Journal of International Law. pp. G. ‘Commentary: A Case for an International Investment Court’. Investment Treaty News. Yearbook of International Environmental Law. Sociedad General de Aguas de Barcelona S.. 2007. 56. 2000..aspx. ‘The Public-private Distinction in the International Arbitration of Individual Claims against the State’. and Loughlin. The Hague. 611. M. 1 September 2008 www. Van Harten. 17. 88. C.. D. Kluwer Law International. Tienhaara. M. 17. ‘Investment Treaty Arbitration as a Species of Global Administrative Law’. ‘Metalclad v. vol. vol. Minnesota Journal of Global Trade. ‘The Participation of Nongovernmental Organizations in International Judicial Proceedings’.investmenttreatynews. United Mexican States Revisited: Judicial Oversight of NAFTA’s Chapter Eleven Investor-State Claim Process’. 371-.132
NGO Participation in Investment Treaty Arbitration
______________________________________________________________ Schreuer. v.
______________________________________________________________ Willetts. accessed 8 October 2008. in International Investment Law: A Changing Landscape . Tomoko Ishikawa is a former judge at the Tokyo District Court (civil division).HTM.. ‘What is a Non-Governmental Organization?’. 2002. 2005.
. www. OECD Publishing. Yannaca-Small.staff. Her current research examines the tension between the international law on foreign investment and the host states’ environmental policy. She is preparing her PhD thesis on the law of foreign investment and international environmental law at University College London.city. ‘Transparency and Third Party Participation in Investorstate Dispute Settlement Procedures’.A Companion Volume to International Investment Perspectives.willetts/CS-NTWKS/NGO-ART. Paris. C.ac. and the role international environmental law may play in investment arbitration to address the tension. She is currently a member of the Tokyo Bar Association and practices in the field of private international law.uk/p.
These livelihoods are based largely upon the use of marine resources for subsistence. environmental justice. from a practical perspective many such projects have had positive social and environmental outcomes. community based environmental management. Furthermore. However. principles and concepts that may be used as a foundation for legal frameworks that support communities taking control of their own environment. Introduction The small island developing states of the South Pacific are post colonial societies composed largely of Indigenous peoples. ***** 1. In particular. customary law. indigenous rights. there is little doubt that the ocean provides the main source of food including approximately 80 per cent of the protein of people living in rural areas. The people of this region have a rich history of customary
. human rights. sustainable development. In many other areas of the world the most pressing problem facing similar nations is poverty. Whereas in the past positivist legal approaches have been taken to environmental regulation. it is likely that it will continue to do so in the future. increasingly attention is turning towards more decentralised and community-based practices. community based natural resource management. This paper seeks to fill that gap by providing an introduction to the legal theories. sustainable livelihoods. Initiatives that involve the participation of all stakeholders are clearly morally persuasive and socially responsible. which has been avoided due to the predominance of subsistence livelihoods. Furthermore. Whilst these people no longer live an entirely traditional lifestyle. But the Pacific Island States have not traditionally suffered from abject poverty. attention will be given to Indigenous communities and the concepts of environmental justice as well as principles of international law including human rights and the emerging law of sustainable development.Legal Frameworks to Support Community-Based Natural Resource Management Erika J Techera
Abstract In recent decades there has been a shift in attitude in relation to natural resource management. there is relatively little literature devoted to identifying the legal frameworks that could be used to support community-based environmental management. which in turn has been said to be the primary cause of environmental degradation. Key Words: Environmental law.
At the global level this has involved the adoption of international treaties. Decentralising management and control of natural resources has significant potential for improved outcomes. Their involvement can result in solutions that address all of the. 2. interests. which are implemented at the domestic level by national governments. But globalisation. One particular example of this is the Locally Managed Marine Area (LMMA) Network. Central to this positivist approach is the concept of law as unified.136
Legal Frameworks to Support Community-based Management
______________________________________________________________ laws and traditional knowledge associated with marine areas. In designing new laws. which is so essential to their way of life. However. Furthermore where local communities ‘own’ these solutions greater compliance can be expected and therefore there are greater prospects for successful outcomes. The next stage is to look at whether a similar approach can be taken in relation to the law. urbanisation and population growth have put increasing pressure on both the traditional way of life and the marine environment upon which it depends. environmental problems were seen as global issues best addressed at the international level.1 This perspective of law has been the orthodox view since the eighteenth century and to a great extent prevails today. but also their spiritual connection with it. In many cases communities work with NGOs and other entities in this regard. into enforceable rights. while some environmental problems are global in their impact. top-down centralised approaches to environmental management have dominated. In the area of natural resource management. not only because of their physical reliance upon the ocean. Nevertheless communities with customary fishing grounds have tried to reinvigorate traditional laws and practices to maintain marine biodiversity. often competing. Similarly. It is in this context that community-based environmental management (CBEM) has received renewed attention. state-based and institutionalised. through the synthesis of customary law and western legal systems. Many environmental issues may have global impacts but are local in origin and are best understood by the local community. This chapter will identify and analyse the legal frameworks and concepts that can be used to support community-based environmental management in the Pacific island states. This system combines western science (biological and ecological management and applied science research) with traditional ecological knowledge and practices. which operates throughout the South Pacific Region.
. Background Since worldwide attention was drawn to environmental issues at the UN Conference on the Human Environment in 1972. legal frameworks are needed in order to convert what local communities see as duties (such as marine custodianship). international law alone has been unable to resolve them and environmental degradation persists. local people often have the greatest information in relation to their natural resources and the impacts upon them.
6 The environmental justice movement originated in the USA7 where the aim was to reverse the trend of poor and marginalised communities bearing a disproportionate environmental burden. establishment of sustainable livelihoods. increasingly it is being recognised that legal support is necessary to strengthen customary approaches to marine management by providing legitimacy and longevity. This paper will focus upon three key areas of environmental justice. There are a number of examples of successful CBEM initiatives many of which are voluntary projects. Therefore. the Eurocentric legal systems were not displaced upon independence. providing more opportunities for true participation and local government is often more responsive to grassroots activism. managing traditional land and resources. Thus there has been a tendency to legislate for new areas of law such as environmental issues and natural resource management following western models.2 Community groups have a greater voice at the local level.8 Proponents argued that the environmental needs of the weaker members of a community must not become secondary to the needs of the more powerful elements. international law. This is particularly important in developing countries where democratic participation at other levels of government is less assured. the difficulty remains of how to design better laws that address multiple aims including conservation of biodiversity. particularly where it runs counter to customary law.4 However.Erika J Techera
______________________________________________________________ By its very nature community-based management offers the best opportunities for democratic participation. however efficacious. This is particularly the case for Indigenous communities. Environmental Justice Environmental justice lies at the intersection of two major social movements: civil rights and environmental protection. Whilst much has been written on CBEM very little literature has been devoted to the legal and theoretical frameworks that are available to support such approaches. In the South Pacific. which face challenges from neighbouring villages and outsiders.3 In any event. It has been said that law is ‘society’s architecture for achieving common purposes and common aspirations’5 and in the context of CBEM legal regulation is needed to provide for their formal recognition and enforcement mechanisms. must be implemented nationally. fisheries management and economic development. this approach has largely been unsuccessful. It is clear that these bottom-up approaches rely heavily on customary village governance institutions which face enforcement challenges from within the community as respect for the institution fades and from adjacent villages and outsiders. However. international human rights laws and sustainable development law. as it is not relevant to the local people.9 In this context much attention has been given to the inequitable distribution of problems such as pollution and 3.
15 Therefore. Specifically.10 Environmental justice also requires the promotion of equality of environmental benefits and effective environmental management for all members of a society.20 However the two concepts remain inextricably linked21 and there is little doubt that principles of environmental justice are important and continue to inform the sustainable development literature.16 In the context of Indigenous peoples and natural resource management. it can be argued further that justice in environmental matters includes recognition of substantive Indigenous laws and institutions as well as procedural fairness in the form of access to remedies and courts. in circumstances where they are heavily reliant on natural resources. environmental justice and the recognition of customary law must be guaranteed in some other manner.11 Environmental justice essentially incorporates a set of ethical principles. and the deliberate targeting of minority communities for environmentally damaging facilities.22
. information. the concept of sustainable development requires the balancing of triple bottom line goals. the key elements of environmental justice can be used to support not only the right to management of natural resources but also the recognition of customary law. It is this broader concept. access to resources and justice in environmental matters. this is not assured where those in power represent the majority as against a minority culture.138
Legal Frameworks to Support Community-based Management
______________________________________________________________ waste. environmental justice is a relatively narrow concept requiring that social equity and environmental quality be elevated above all other considerations.17 The principles of environmental justice provide strong support for CBEM and therefore can be added to the toolbox that may be used by Indigenous peoples in the fight for their rights.12 For it to be achieved environmental hazards and benefits must be equally distributed. equally and in a non-discriminatory fashion.14 For Indigenous communities. community-based environmental justice is achieved when natural resources are managed for the well-being of everyone.13 These elements are particularly critical to many Indigenous communities. As an alternative. which has been almost universally accepted as the paradigm of choice dominating international legal discourse surrounding social and economic development and environmental protection. Therefore.18 However. The challenge that faces Indigenous peoples in securing access to use and management of natural resources is a struggle for environmental justice. Whilst some of these elements may be achieved through an ordinary democratic process. environmental injustice occurs where communities are disempowered.19 The focus on the social may be considered morally right but it is also restricted in its ambit. in situations where they are denied the right to public participation.
environmental quality. Further support for self-determination may be found in the Declaration on the Right to Development35and the Vienna Declaration and Programme of Action on Human Rights.33 In addition ICESCR provides that ‘[a]ll peoples may. social and cultural development’. such as sustainable development. The literature on this topic refers both to external and internal self-determination.34 Clearly this provides a basis for communities having control over and full management of their local environment.37 The latter involves the right for people to determine their own destinies including the right to self-government and to 4. The International Covenant on Civil and Political Rights (ICCPR)30 and International Covenant on Economic.28 Whilst intra.and intergenerational equity are articulated in the Rio Declaration. overlap and are interconnected. the broad principle of eradication of poverty emerged much earlier in the Charter of the United Nations.25 Just as human rights ‘cannot be secured in a degraded or polluted environment’26 a breach of human rights can result in damage to the environment itself when those whose practices best protect the environment are disempowered.36 But precisely what selfdetermination encompasses is a matter of controversy. peace and sustainable development.Erika J Techera
______________________________________________________________ International Human Rights Law Human rights norms and international environmental law concepts.
. Article 1(2) of the UN Charter provides that its purposes include development of relationships between nations based upon respect for the principle of ‘self-determination of peoples’.32 International human rights law also includes rights to selfdetermination and empowerment which intersect with many of the principles of sustainable development and support localised approaches to environmental management.23 This has been acknowledged in international instruments such as the Draft Declaration of Principles on Human Rights and the Environment24 which recognises the interdependence and indivisibility of human rights. The ICESCR states that ‘[a]ll peoples have the right to self-determination’ and freedom to ‘determine their political status and… pursue economic. for their own ends. The former includes the rights to determination of international status. The starting point for any consideration of human rights is the United Nations Charter27 and its core concepts of equality and nondiscrimination. freely dispose of their natural wealth and resources’ and in ‘no case may a people be deprived of its own means of subsistence’. political independence and secession. Social and Cultural Rights (ICESCR)31 prohibit discrimination and provide that all people are equal before the law and entitled to its equal protection and later conventions supported and elaborated upon these fundamental rights.29 Intra-generational equity in terms of equality and freedom from discrimination was also dealt with early in the various human rights treaties.
territories and natural resources and to maintain their traditional way of life’.45 In addition the Draft Declaration of Principles on Human Rights and the Environment provides that Indigenous ‘have the right to control their lands.42 Public participation in environmental decision-making includes human rights elements of the right to hold and express an opinion. there is a need to ensure that ownership is based upon traditional Indigenous land laws (generally communal) and not western conceptions of private property rights.38 Whilst existing human rights might assist Indigenous peoples in obtaining ownership of traditional lands. which has been considered one of the ‘fundamental features’ of Indigenous ‘culture and claims for sovereignty’.52 But whatever its characterisation it undoubtedly marks a shift in human attitudes towards both the environment and development and has successfully put environmental concerns onto mainstream agenda.’44 Furthermore. provides a further framework for legal support of CBEM. cultures and traditional practices contributes to sustainable and equitable development and proper management of the environment’. development and control. there is an emerging area of collective Indigenous rights. the right of access to information and issues of privacy. as well as Indigenous collective rights.46 Therefore. The UN Declaration of the Rights of Indigenous People (DRIP) specifically recognises that Indigenous peoples have the right to their traditional lands and resources and their use.50 Is it a tool or policy.41 Principle 2 of the Rio Declaration.140
Legal Frameworks to Support Community-based Management
______________________________________________________________ pursue development without interference. Sustainable Development Since its popularisation following the publication of the Brundtland Report Our Common Future47 sustainable development has become a central focus of environmental law and policy.43 In addition.48 Yet it is a nebulous phrase49 which has proven difficult to define. non-discrimination and self-determination. relating to equity makes specific reference to the right to development. concept or legal principle with normative value?51 Some have declared it to be a successful new ‘environmental ethic’ and yet others point to its rapid and widespread adoption as evidence that it has little real meaning and value.39 Self-government would appear to also include control over the legal regulation of Indigenous peoples’ lives40 and therefore the recognition of customary law. they ‘have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources. 5. In addition to broad human rights laws.
. it is recognised that ‘respect for indigenous knowledge. which is also supported by human rights law. international law in the context of fundamental human rights relating to equality.
best practice approaches to sustainable development may be identified.57 A detailed consideration of those principles is beyond the scope of this paper but in summary they include integration’. Equity incorporates fairness and equality to both this and future generations.61 inter. Whilst the principle of poverty eradication is fairly straightforward. social and economic development concerns. good governance also involves effective environmental management as an outcome as well as the processes by which it might be achieved.66 By empowering communities to manage their local environment and engaging with them.
. Intra-generational equity would appear easier to achieve. They have received consistent support at the international level including the Aarhus Convention65 which establishes a number of public rights involved in achieving sustainable development. public participation in environmental decision-making and access to justice are essentially procedural elements associated with sustainable development. which is clearly of considerable importance to Indigenous peoples arguing for a greater governance role.69 Local approaches to sustainable development therefore gain support through this Principle.62 public participation and access to information and justice63 and good governance. access to information.Erika J Techera
______________________________________________________________ In essence sustainable development requires the balancing of environmental protection. Lastly. People must be given access to and control over their land and natural resources in order to facilitate this.54 Agenda 21.64 It is the latter three of these principles that are particularly relevant to CBEM. Whilst there is no agreed definition of sustainable development. which support effective environmental regulation.59 common but differentiated responsibilities. however.and intra-generational equity and the eradication of poverty. Nonetheless.55 Millennium Declaration56 and the New Delhi Declaration. The eradication of poverty is also advanced by CBEM where this involves the establishment of sustainable livelihoods in association with resource management. inter. broad principles have emerged through soft law instruments such as the Stockholm Declaration.67 This includes legal and policy frameworks. there is little doubt that it remains elusive. Therefore.68 In addition. good governance involves an analysis of the best level at which decisions should be made which is further supported by the international law principle of subsidiarity.and intra-generational equity are more complex. It includes both a collection of normative principles and the processes by which it might be achieved. standards and guidelines. public participation. education and justice all support CBEM.60 sustainable management and use of natural resources.53 Rio Declaration. institutions. Access to information.58 the precautionary principle. CBEM facilitates equity where communities are empowered and engaged in management issues such as economic development. environmental quality and the provision of human needs.
77 It called for good governance at the domestic level including ‘democratic institutions responsive to the needs of the people’ as well as the implementation of international standards through ‘sound environmental.142
Legal Frameworks to Support Community-based Management
______________________________________________________________ Whilst it could be said that the principles of sustainable development have gone some way to elucidating its meaning. But increasingly there are commentators who believe that sustainable development law has emerged as a new area. CBEM represents the interconnectedness of human and environmental rights and facilitates sustainable development. Progressively key principles such as natural resource use.79 It is local governance. which adds to their status. it was acknowledged early on that local action was necessary.78 Whilst international instruments draw attention to sustainable development and provide implementation tools. Sustainable development may have emerged as a new field of law.80 The concept and principles of sustainable development support CBEM but do not stand alone. they are being incorporated into binding legal instruments implemented in domestic legislation. but it is clear that the principles are informed by other areas of international law. legal and moral issues and further research remains to be
.72 In particular. they do this in an abstract manner without addressing community specific problems. Conclusion Conventional top-down environmental approaches have not delivered positive environmental outcomes and have failed to assist Indigenous Peoples. policies and action that are needed to actually achieve sustainable development. they are not standardised and are often articulated in different forms. This is supported by the literature in which local action has been said to be the ‘lynch pin’ of global sustainable development. Nonetheless the tension between the environmental and Indigenous rights movements raises fundamental ethical.71 Decentralised approaches to sustainable development gained strong support from Agenda 21 where it was accepted that the problems and the solutions of sustainable development have their roots in local activities.70 Furthermore. social and economic policies’ and laws. the precautionary principle and rights to public participation are being accepted as customary international law. particularly human rights laws. Despite the international focus of sustainable development and the recognised global problems it addresses. 6. This makes it difficult to rely upon them as the legal foundation for CBEM.76 In 2002 the Johannesburg Plan of Implementation also emphasised the role of local government in a number of contexts.73 children74 and Indigenous peoples and their communities75 as well as NGOs. Agenda 21 places great emphasis on the role of women.
450. This paper has shown that there is ample legal support for CBEM approaches which take global standards and translate them into local action. 2007. 2005. 4. 'Can Local Government Save the Global Commons? Lessons from the Johannesburg Summit'. 'Equal Rights. which truly achieves social. CBEM has the benefits of incorporating local knowledge. Whilst localised approaches to environmental management have many benefits it is certainly not the case that domestic laws and policies should supplant international ones. 4 For example. Ultimately sustainable development cannot be achieved at the global level without local implementation. It has also been suggested that international legal instruments provide a backstop. p. environmental and developmental outcomes for communities. vol. 2003. CBEM approaches take these global standards and translate them into local action. 270.
M Davies. vol. 'Race and Colonialism: Legal Theory as ‘White Mythology’'. 5. 2 R R M Verchick. p. 33.
. 5 D Hunter. any ambiguity at the international level can be translated into flexibility at the local level. 2006. Governance and the Environment: Integrating Environmental Justice Principles in Corporate Social Responsibility'. Leland Stanford Junior University Stanford Agora. p. 273. in Asking the Law Question: The Dissolution of Legal Theory (2nd ed.. J Salzman and D Zaelke. Ecology Law Quarterly. International Environmental Law and Policy (3rd ed).). strengthening communities and providing sustainable livelihoods. a minimum level of acceptable behaviour and this can certainly be seen in the area of human rights where fundamental and universal norms have developed largely at the international level. Successful examples of CBEM illustrate the realisation of sustainable development. International law provides us with a toolbox however ultimately sustainable development law has been chosen as the most appropriate framework. p. But it can also be seen that the local feeds back into the global. p.81 However. see the Locally Managed Marine Areas (LMMA) network in the South Pacific. Whilst it may have definitional issues and its international normative status remains in issue. this may not be as problematic as first thought. Therefore. 4. environmental and development rights as they relate to local communities.Erika J Techera
______________________________________________________________ done in understanding human. 6 D Monsma. 3 ibid. International law has a clear standard setting role to play as well as providing for the sharing of information and best practice.
'Environmental Justice in Rural South Asia: Applying Lessons Learned from the United States in Fighting for Indigenous Communities' Rights and Access to Common Resources'.uk/Publications/2006/05/23091323/12 at 6 April 2008. pp. 21 Ruhl. op cit. 1990. p. Journal of Land Use and Environmental Law. op cit.gov. 585. 17 Cha. 19. 16 J Firestone.tufts. p.edu/multi/www/1994-decl. op cit.469. 94-95. Pace Environmental Law Review. 18 ibid. Environmental Justice in the Twenty-first Century. vol. 8 J M Cha. 2006. p. 'The Co-Evolution of Sustainable Development and Environmental Justice: Cooperation.cau. 14 Weintraub. op cit. 2004. University of Strathclyde. vol. 178. Practices & Prospects. 24 Draft Declaration of Principles on Human Rights and the Environment. 1998. 9 B A Weintraub.185.cau.html at 10 February 2008. American University International Law Review. vol.. 15 See also the First National People of Colour Environmental Leadership Summit. 23 See also Sax who argues that human rights are designed to protect individuals’ rights to remain free from state coercion whereas environmental rights require positive government intervention and affirmative action: J L Sax. 2005. 22 ibid. Sustainable Development Law: Principles. vol. 12. p. p. Principles of Environmental Justice (Adopted 27 October 1991) www. 10 Monsma.ejrc. 2007. 13 See also R D Bullard. 9. University of Westminster and Law School. p. then Competition then Conflict'. 223. J Lilley and I Torres de Noronha. p.ejrc.html at 4 April 2008. p. 'Environmental Security.. Environmental Management and Environmental Justice'. 1994. 12 Monsma. 'The Search for Environmental Rights'. 572. Georgetown International Environmental Law Review. 2.scotland. 1995. 20. 'Cultural Diversity. 162. 187. 6(1). http://fletcher. 20 M-C Segger and A Khalfan. p. Duke Environmental Law & Policy Forum. vol. p. p. 453.edu/ejinthe21century. Environmental Justice Resource Center <http://www. 186. op cit.htm> at 10 February 2008. Human Rights and the Emergence of Indigenous Peoples in International and Comparative Environmental Law'.
. p. 186. 571. p. op cit. 11 Weintraub.144
Legal Frameworks to Support Community-based Management
______________________________________________________________ Centre for Sustainable Development. Sustainable Development: A Review of International Literature: Chapter 11: Environmental Justice. 19 J B Ruhl.edu/princej. www.
UN GAOR. A/810 (1948).. 10 December 1948. A/810 (1948). 2(1). 27 Charter of the United Nations. Articles 55 provides that ‘based on respect for the principle of equal rights and self-determination of peoples. entered into force 24 October. 1969. vol. 31 International Covenant on Economic. (in force 3 January 1976). Social and Cultural Rights. 26 June 1945. 1945. and conditions of economic and social progress and development’. African Charter on Human and Peoples’ Rights 27 June. 29 Charter of the United Nations.Erika J Techera
______________________________________________________________ ibid. 28 S J Anaya. 3rd Sess. Annex to UNGA Res. UNTS 993. 16 December 1966. entered into force 24 October. Batchelor. (in force 3 January 1976). UN Doc. p. International Convention on the Elimination of All Forms of Racial Discrimination. 2200 (XXI). 16 December 1966. 10 December 1948. 117. 16 December 1966. 1577 UNTS 3 (entered into force 2 Sepember 1990). (entered into force 4 January 1969) American Convention on Human Rights. 4. Annex to UNGA Res. 20 November 1989. 16 December 1966. Interconnectedness between human rights. UN GAOR. 21 ILM 59 (1981) (entered into force 21 October 1986). 1144 UNTS 123 (entered into force 18 July 1978). UNTS 993. UN Doc. 660 UNTS 195. Convention on the Rights of the Child. 16. 26 June 1945. Annex to UNGA Res. 21 December 1965. higher standards of living. University of NSW. Materials prepared for the Diplomacy Training Course. International Covenant on Economic. p. 2200 (XXI). Article 56 calls upon all members to take joint and separate action to achieve this. 6 ILM 360 (1967). 22 November. See also M I Jeffery. 30 International Covenant on Civil and Political Rights. 2200 (XXI). held at Batchelor College. Social and Cultural Rights. 1981. 32 See further. p. Universal Declaration of Human Rights. 6 ILM 368 (1967) (entered into force 23 March 1976). Annex to UNGA Res. 1945. 2005. June 2005. 6 ILM 360 (1967). 2004. 6 ILM 368 (1967) (entered into force 23 March 1976). Northern Territory. Arizona Journal of International and Comparative Law. 'Environmental Ethics and Sustainable Development: Ethical and Human Rights Issues in Implementing Indigenous Rights'. 26 D Craig. International Covenant on Civil and Political Rights. 3rd Sess. 2200 (XXI). GA Res 217 A. 'International Human Rights and Indigenous Peoples: The move toward the multicultural state'. Principle 1. Universal Declaration of Human Rights. 21(1). the environment and indigenous peoples. the United Nations shall promote: a. vol. GA Res 217 A. Macquarie Journal of International and Comparative Environmental Law.
. full employment..
No 53. 41 F v Benda-Beckmann. 5705. 116.lawlink. p. 42 Declaration on the Right to Development.gov. 43 Articles 25. (1987). 37 S Wiessner. 48 An increasing number of international law instruments include sustainable development as an objective or purpose. 'Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis'. (2000) Sentencing: Aboriginal offenders.67. United Nations Convention
. (in force 3 January 1976). 26 and 32. UN GAOR. 44 Article 29. *. 1771 UNTS 107. 40 NSW Law Reform Commission. 36 Vienna Declaration and Programme of Action. 14 September 2007. UN GAOR. 12. 45 Declaration on the Rights of Indigenous Peoples. 'Indigenous peoples and international law and policy'. UN Doc A/CONF. 6 ILM 360 (1967).nsf/pages/r96chp3 at 9 February 2008. 2007. 1986 Supp. 16 December 1966. Social and Cultural Rights. 47 World Commission on Environment and Development. Report No 96.. 4 December 1986. p. Annex to UNGA Res. No 53. 'Putting the ‘Sustainable’ Back in Sustainable Development: Recognizing and Enforcing Indigenous Property Rights as a Pathway to Global Environmental Sustainability'. UN GA Resolution A/61/L. 35 Declaration on the Right to Development. adopted at the World Conference on Human Rights. 9 May 1992. UN GA Resolution 41/128. Article 1(2).146
Legal Frameworks to Support Community-based Management
______________________________________________________________ International Covenant on Economic. UN Doc A/41/53. 163. pp. 186 (1986). Article 1(1). vol. 4 December 1986. 34 ibid. 21. 46 Article 14. In which sustainable development is defined as ‘development that meets the needs of the present without compromising the ability of future generations to meet their own needs’. UN GA Resolution 41/128.au/lrc. vol. 31 ILM 849 (entered into force 21 March 1994). p.nsw. vol. 2006. 'Folk. 39 M F Jaksa. 38 C Charters. Journal of Environmental Law and Litigation. 186 (1986). 12 July 1993. 1999. For example: United Nations Framework Convention on Climate Change. 2200 (XXI). www. in International Encyclopaedia of the Social & Behavioral Sciences. 18. Our Common Future. Jaksa calls for the adoption of binding international agreements directly addressing Indigenous property rights. 25 and 40. 2001. 1986 Supp. Preamble. Indigenous and Customary Law'. *. Public Law Review. Harvard Human Rights Journal.157/23. UN Doc A/41/53. 'Aboriginal Customary Law'.
2005. The Principles of Sustainability. 2002. 2002. 95. *. Integration: Local Lessons in Sustainable Development'. 157. UN Doc. Report of the UNCED. 62 See Principles 3 and 5 of the Rio Declaration. 179. Georgetown International Environmental Law Review. Development and Sustainability. 'Sustainable Development. M O Lobato and X A D Castillo. 55th Sess. op cit. 63 See Principle 10 of the Rio Declaration. 31 ILM 822 (entered into force 29 December 1993). New Delhi Declaration on Principles of International Law Relating to Sustainable Development. A/CONF. 7. 501-518.151/26/Rev. 49 Jaksa. 51 Sumudu Atapattu. vol. 55/2. ILM 874 (1992).1. p. Myth or Reality?: A Survey of Sustainable Development Under International Law and Sri Lankan Law'. p.151/6/Rev. UN Doc. 56 'Millennium Declaration'. Efficiency. 59 See Principle 15 of the Rio Declaration. 53 'Stockholm Declaration on the Human Environment'. 1760 UNTS 79. 55 'Agenda 21. 64 This principle does not directly appear in the Rio Declaration. 52 S Dresner.1 (1992). 2005. vol. op cit. I '. pp. 5 June 1992.Erika J Techera
______________________________________________________________ on Biological Diversity. *. UN Doc. UN Doc. See Segger and Khalfan. 267. GA Res. Colorado Journal of International Environmental Law and Policy. 2. 'Debates on Sustainable Development: Towards a Holistic View of Reality'. Public Participation and Access to Justice in Environmental Matters. vol. 38 ILM 517 (in force 30 October 2001). 11 and 16 of the Rio Declaration. p. 61 See Principle 2 of the Rio Declaration. p. 7. A/CONF. footnote 2. 1992.. 25 June 1998. 14. Programme of Action for Sustainable Development. The Aarhus Regulation requires the principles of the Convention to be implemented in each member nation:
. UN GAOR. A/Res/55/2 (2000). 11 ILM 1461 (1972). Environment. 66 Whilst the Aarhus Convention originated in the European Union its principles have now been widely accepted. p. It is articulated in paragraph 6.48/14. 57 International Law Association. 16 June 1972. 58 See Principle 4 of the Rio Declaration. 2001. A/CONF. 54 'Rio Declaration on Environment and Development. 60 See Principles 6. 50 P M DeChristopher. 16. (1992) 31 ILM 874. 'Flexibility. Report of the United Nations Conference on Environment and Development'. For a detailed discussion of the definitional issues see L A R Osorio.1 of the New Delhi Declaration and principle 13 of the Millennium Declaration 65 Aarhus Convention on Access to Information.
Chapter 25. 2003. p. p. 38 ILM 517 (in force 30 October 2001). 182. 77 R R M Verchick. J Salzman and D Zaelke. p. vol.. 2006. cit. (Paper presented at the European Union Forum Strengthening International Environmental Governance. 46.
Aarhus Convention on Access to Information. Stanford Agora. 521.foe. p. 4.148
Legal Frameworks to Support Community-based Management
______________________________________________________________ Regulation (EC) N° 1367/2006 of the European Parliament and of the Council on the application of the provisions of the Aarhus Convention on Access to Information. 75 ibid. op cit. 79 DeChristopher. (1992) Programme of Action for Sustainable Development. 67 D Craig and M Jeffery. op cit. 74 ibid. www. A/CONF. (1992) UN Doc. 191. Press Release. Chapter 26. Paragraph 4. 78 'Johannesburg Plan of Implementation.co. I'. op. p. 24 November 2006). 3. 2000. Chapter 27. 72 'Agenda 21. 5. 69 The principle of subsidiarity provides that decisions should be made at the lowest level of government or organisation where it can be most effectively managed: D Hunter. Report of the World Summit on Sustainable Development'. act locally’ said to have been coined by David Brower the founder of Friends of the Earth: Friends of the Earth. p. 81 Jaksa. p.html at 3 June 2008.
. 'Global Environmental Governance and the United Nations in the Twenty-first Century'. Report of the UNCED. op cit. 73 ibid.uk/resource/press_releases/20001107132336.1. op cit. A/CONF. 76 ibid. 25 June 1998. 68 ibid. Chapter 24. Leland Stanford Junior University. (1992) 31 ILM 874. UN Doc. Sydney Opera House. 70 Segger and Khalfan. 80 Verchick. 4 September 2002. 71 This is exemplified in the slogan ‘think globally. 1. Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies. 'Can Local Government Save the Global Commons? Lessons from the Johannesburg Summit'. 199/20. Public Participation and Access to Justice in Environmental Matters. Chapter 28.151/26/Rev.1.
pp.cau. Arizona Journal of International and Comparative Law. A/CONF.. S. 2001. 21(1).1. Report of the UNCED.
. Georgetown International Environmental Law Review. vol. Bullard. 'Sustainable Development. J. 14.Erika J Techera
______________________________________________________________ African Charter on Human and Peoples’ Rights. Centre for Sustainable Development. 22 November 1969. v. 185-. I ' (1992) Programme of Action for Sustainable Development (1992) UN Doc. (entered into force 24 October 1945). D. vol. 2006. UNTS 993.htm> at 10 February 2008. 19. Anaya.. M. 'Agenda 21. Sustainable Development: A Review of International Literature: Chapter 11: Environmental Justice. vol. 265-. American Convention on Human Rights. F. Charter of the United Nations. University of Westminster and Law School. 'Environmental Justice in Rural South Asia: Applying Lessons Learned from the United States in Fighting for Indigenous Communities' Rights and Access to Common Resources'.2001. <www. Benda-Beckmann. Myth or Reality?: A Survey of Sustainable Development Under International Law and Sri Lankan Law'.151/26/Rev. Environmental Justice Resource Center <http://www.edu/ejinthe21century. 'International Human Rights and Indigenous Peoples: The move toward the multicultural state'.ejrc. 2004. in International Encyclopaedia of the Social and Behavioral Sciences. (1992) 31 ILM 874. Georgetown International Environmental Law Review. Environmental Justice in the Twenty-first Century. 13-.gov. J. 26 June 1945. p. R.scotland.uk/Publications/2006/05/23091323/12> at 6 April 2008 Cha. 21 ILM 59 (1981) (entered into force 21 October 1986). 2007. 1144 UNTS 123 (entered into force 18 July 1978). Sumudu Atapattu. Indigenous and Customary Law'. University of Strathclyde.. 'Folk. 27 June 1981. pp. pp.. 5705.
Craig. 1577 UNTS 3 (entered into force 2 Sepember 1990). 'Indigenous peoples and international law and policy'. Declaration on the Rights of Indigenous Peoples. UN GAOR... University of NSW. D.tufts. 1986 Supp. D. S. 'Global Environmental Governance and the United Nations in the 21st Century'. Declaration on the Right to Development. vol.edu/princej. M. 157-188. P. UN GA Resolution 41/128. and Jeffery. 'Flexibility.. DeChristopher. Paper presented at the European Union Forum Strengthening International Environmental Governance. M. Sydney Opera House. Principles of Environmental Justice (Adopted 27 October 1991) <http://www.). Public Law Review vol. 2005. Davies. 14 September 2007. 18. 257-294. No 53. Northern Territory. 2002. 20 November 1989. pp. Materials prepared for the Diplomacy Training Course. 2005. 22-. 'Race and Colonialism: Legal Theory as ‘White Mythology’'. UN Doc A/41/53. 4 December 1986. pp.html> at 4 April 2008. in Asking the Law Question: The Dissolution of Legal Theory (2nd ed. Batchelor. held at Batchelor College. First National People of Colour Environmental Leadership Summit. M. 24 November 2006.67. Draft Declaration of Principles on Human Rights and the Environment (1994) <http://fletcher.ejrc. the environment and indigenous peoples. pp. Colorado Journal of International Environmental Law and Policy.html> at 10 February 2008. 2007... Dresner.150
Legal Frameworks to Support Community-based Management
______________________________________________________________ Charters.edu/multi/www/1994-decl. 16. Interconnectedness between human rights. Craig. Efficiency. The Principles of Sustainability. 186 (1986).
. (2007). Preamble. C.. Convention on the Rights of the Child.cau. Integration: Local Lessons in Sustainable Development'. UN GA Resolution A/61/L. June 2005.
'Environmental Ethics and Sustainable Development: Ethical and Human Rights Issues in Implementing Indigenous Rights'.. Report of the World Summit on Sustainable Development'. New Delhi Declaration on Principles of International Law Relating to Sustainable Development. (in force 3 January 1976). I. 21 December 1965. Journal of Environmental Law and Litigation. International Convention on the Elimination of All Forms of Racial Discrimination. J.. Salzman. 'Cultural Diversity.. Paragraph 4. 105-120. Annex to UNGA Res. UN Doc.
. 2005. *.uk/resource/press_releases/20001107132336. 199/20. 16 December 1966. Social and Cultural Rights.Erika J Techera
______________________________________________________________ Firestone. 219-. and Zaelke. 20. 2002. I. International Covenant on Civil and Political Rights. 273. 2(1). (2000) <http://www. 2007. and Torres de Noronha. M.html> at 3 June 2008. Annex to UNGA Res. D. 'Johannesburg Plan of Implementation. 6 ILM 368 (1967) (entered into force 23 March 1976). Hunter. 4 September 2002. 2005.foe. Lilley. 'Putting the ‘Sustainable’ Back in Sustainable Development: Recognizing and Enforcing Indigenous Property Rights as a Pathway to Global Environmental Sustainability'. J. D. Press Release.. J.. American University International Law Review. 2200 (XXI). (entered into force 4 January 1969). vol. A/CONF. F. vol. p.. 2200 (XXI). pp. 660 UNTS 195. Macquarie Journal of International and Comparative Environmental Law. 6 ILM 360 (1967).co. 16 December 1966. Jeffery. 2006. Friends of the Earth. pp. International Covenant on Economic. *. Human Rights and the Emergence of Indigenous Peoples in International and Comparative Environmental Law'. 157-205. Jaksa. vol. International Environmental Law and Policy (3rd ed). pp. International Law Association. 21. M..
2004. C. 9.. 9 May 1992. Osorio. 2006. 11 ILM 1461 (1972). Duke Environmental Law & Policy Forum. GA Res 217 A. 1998. Governance and the Environment: Integrating Environmental Justice Principles in Corporate Social Responsibility'. J. vol. 501-518. UN Doc. U. 'The Search for Environmental Rights'. O. Journal of Land Use and Environmental Law. Environment..48/14. 31 ILM 849 (entered into force 21 March 1994). pp. L. United Nations Convention on Biological Diversity. Sustainable Development Law: Principles. Ecology Law Quarterly. Doc. 7. Doc. pp. 2005. 93-.-C. 1760 UNTS 79. Ruhl.. 'Rio Declaration on Environment and Development.lawlink. 'Debates on Sustainable Development: Towards a Holistic View of Reality'. R.N.. 1771 UNTS 107. 450. NSW Law Reform Commission. A/810 (1948).. 161-185. 31 ILM 822 (entered into force 29 December 1993). and Khalfan. Monsma. pp. 55th Sess. X.
. vol..' 16 June 1972. 10 December 1948. ILM 874 (1992). A. J. UN GAOR. 1990.au/lrc. Report No 96. Sax. 'The Co-Evolution of Sustainable Development and Environmental Justice: Cooperation. Development and Sustainability. 5 June 1992. p. Lobato.gov. 2000. vol. 'Stockholm Declaration on the Human Environment.1 (1992). and Castillo. A. then Competition then Conflict'. M. UN GAOR. 'Aboriginal Customary Law'. 'Equal Rights.nsw. B. 6(1).152
Legal Frameworks to Support Community-based Management
______________________________________________________________ 'Millennium Declaration' (2000) GA Res. D. L. Report of the United Nations Conference on Environment and Development' (1992) U. A/CONF. 3rd Sess. United Nations Framework Convention on Climate Change. A/Res/55/2 (2000). Universal Declaration of Human Rights. UN Doc. D. vol.151/6/Rev.. <http://www. M..nsf/pages/r96chp3 > at 9 February 2008.N. Segger. Practices & Prospects. 33(1). A/CONF. A. 55/2. Sentencing: Aboriginal offenders.
1999. Vienna Declaration and Programme of Action. M. B. Macquarie Law School.
. Environmental Management and Environmental Justice'. 12. 12.157/23. A. UN Doc A/CONF. 1987. Weintraub. Erika Techera LLB (Hons) (UTS). GDLP (UTS). 1995. Wiessner. 'Environmental Security. R... Harvard Human Rights Journal. Leland Stanford Junior University. 4-.Erika J Techera
______________________________________________________________ Verchick. 2003. Stanford Agora. pp. 1. vol. World Commission on Environment and Development. R. LLM (Macq).. Pace Environmental Law Review. 'Can Local Government Save the Global Commons? Lessons from the Johannesburg Summit'. adopted at the World Conference on Human Rights. pp. vol. S. Macquarie University. 12 July 1993. 'Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis'. Erika’s previous experience includes seven years practice as a Barrister in Sydney. M Env Law (Macq). vol. 533-. Our Common Future. Australia. pp 58-. Associate Lecturer and PhD Candidate at the Centre for Environmental Law.
From Margins to Margins: Cultural Integrity, Ecological Survival, and Future Transcripts in the Historical HomeBased Health Narratives of Nova Scotia and West Virginia Deborah Stiles
Abstract: The nineteenth century’s ‘industrialization, urbanization, and immigration’ helped birth a modernity with which most of North America grappled in the twentieth century. The pivotal word here, though, is ‘most’: while most of North America modernized, Atlantic Canada and Appalachia became identified in this same period as ‘backward’ and ‘underdeveloped.’ Persistent rurality, exploitation as resource ‘colonies,’ and geo-political placement at the margins meant that, in the last century, Appalachia and Atlantic Canada became more associated with ‘anti-modern’ than ‘modern’. Both regions have been identified with unhealthy populations, ravaged landscapes, and vulnerable economies, even as both have been marketed to tourists for their natural beauty/quaint inhabitants. Scholars have utilized numerous theoretical frameworks and evidence to explain the existence of ‘underdevelopment’ and unhealthy populations in Atlantic Canada and Appalachia; exploration of twentieth century sources yields a more complex view. As the world comes to grip with environmental limits elsewhere and everywhere, transcripts for an environmentally sound and healthy future may be found in the narratives of those who have been at the (perceived) margins before. This paper examines, comparatively, the lessons of cultural integrity, ecological survival and future transcripts found in the oral history narratives of rural Nova Scotia and West Virginia women. Key Words: Health knowledge; rural women; rurality; gender; modernity; Appalachia; Atlantic Canada; Nova Scotia; West Virginia; ecological survival. ***** 1. Introduction In the nineteenth century, the multiplicity of historical realities bound up in changes that can be shorthanded as ‘industrialization, urbanization, and immigration’ helped birth a twentieth century modernity, in all its attendant contingencies, ruptures, and continuities. If modernity is viewed as a series of transformations with which most of the world, including North America, grappled in the twentieth century, then the pivotal word here is ‘most’. While most of North America contended with change, and
From Margins to Margins
______________________________________________________________ embraced ideas and ideals of ‘progress’ and modernity championed in science, medicine, agriculture and technology, both the Maritimes (later Atlantic) Canada and Appalachia, key players in North America’s modernizing processes of industrialization, paradoxically came to be identified in this same period as ‘backward’ and ‘underdeveloped’. 1 Obviously, modernity did not mean a modern life for all or a complete embrace of one specific sensibility. But in the nineteenth and early twentieth centuries the regions of Atlantic Canada and Appalachia—which, ironically, were not wholly recognized as regions until the twentieth century—provided the necessary modernizing resources of timber, oil, natural gas, coal and human labour. They were the sites for steel and other major manufacturing. They helped make the dominant paradigm in North America one of modernity. Yet, both places’ persistent rurality, exploitation of their eco-systems as resource ‘colonies’, and what ultimately came to be defined as their ‘cultures’’ attachment to home and tradition resulted in their geo-political and economic placement at the margins of their respective American and Canadian societies. Whether they were in actuality, both places were perceived as being at the margins and in decline, both economically and culturally, more ‘anti-modern’ than ‘modern’. The use of the term ‘anti-modern’ as a means to explain each region’s culture has had, and continues to have, implications for the health, broadly conceived, of both Atlantic Canada and Appalachia. In the late nineteenth and twentieth centuries, the environmental destruction and human psychic damage wrought by coal mining, timber clear-cutting, and industrial polluting of diverse sorts were challenges bringing not economic prosperity, but rather economic hardship; perhaps it also made the scars on the landscapes even more difficult to bear. To add insult to injury, at the same time as both regions began to feel the brunt of their ‘underdevelopment’, the remaining unspoiled lands of both places were marketed to tourists for their natural beauty and quaint cultural features.2 More recently, while tourism is an economic mainstay in both regions, each has also been perceived as containing some of their respective nations’ most unhealthy populations, ravaged landscapes, and vulnerable economies. To look at just Nova Scotia and West Virginia: Nova Scotians, compared to Canadians as a whole, have high rates of cardiovascular disease, cancer and diabetes. All of rural Nova Scotia has a population between 36–48 per cent overweight, which exceeds the national average of 31.9 per cent. West Virginia is currently the forty-first least healthy state and ranks fortyeighth in obesity. The Sydney Tar Ponds in Cape Breton, Nova Scotia, the result of over a hundred years of steel and coke production, are currently the site of an ongoing major clean up.3 Numerous groups in West Virginia are fighting mountain top removal, the latest (and some might say, most
______________________________________________________________ devastating) means to extract coal. Small wonder that both regions continue to be sites of struggle over issues of environmental and social justice. The current crises in health and healthcare connect to the environment and environmental justice, however, in a way that I wish to put forward in an argument related to oral history narratives. The oral histories in question were collected, originally, to learn more about home-based health knowledge. While the narratives speak to the intersection (and interstices) of health and gender, in this paper they have sparked a line of inquiry fuelled originally by the work of John Alexander Williams, Appalachia: A History, and Ian McKay, author of Quest of the Folk: Antimodernism and Cultural Selection in Twentieth-Century Nova Scotia.4 Through comparative examination of oral histories gathered in Nova Scotia and West Virginia it becomes possible to look at a larger question, one having to do with twentieth century modernity, economic and ecological disorder, and the resulting longterm health effects (both individual and societal).5 Historians, geographers and others have utilized numerous theoretical frameworks and nineteenth and early twentieth century historical evidence to explain the existence of ‘underdevelopment’ in Atlantic Canada and Appalachia. Health care professionals, sociologists and others have noted the unhealthy populations in these two regions and in some cases pointed to the ‘uniqueness’ of the cultures to justify the need for interventions to solve the health problems besetting these regions’ inhabitants.6 Yet, an exploration of the nineteenth and twentieth century historiography, along with the twentieth century home-based health narratives produced in this project, yield a more complicated view: the first element of the argument—one of perspective, and of economics. While the three provinces (Nova Scotia, Prince Edward Island and New Brunswick) usually referred to as the Maritimes experienced, to different degrees and through various means, a form of marginalisation (as did Newfoundland, when it joined Confederation in 1949, and the four became known as Atlantic Canada), the reshaping of Nova Scotia’s ‘image’ in the early twentieth century is particularly apt, in comparison to West Virginia. Nova Scotia went from being part of the ‘modernizing force’ to a province with an obscured role (and class structure) in modern society. The tourism industry, which blossomed in the twentieth century, is exemplary of the marginalizing process. A means to promote an anti-modern picture of quaintness and simplicity, one that largely ignored both the historical picture and the contemporary realities, was found in the emphasis on the tourismindustry-fashioned notion of Nova Scotia’s past as one in which a ‘Folk’ society had lived simpler, non-modern lives (and where evidence could still be found of this life in the twentieth century). As Ian McKay makes brilliantly clear, ‘This is not the history of a settled, ordered Folk society, but
From Margins to Margins
______________________________________________________________ of a region that experienced many of the contradictions of capitalist modernity’.7 The re-fashioning of rural image effectively facilitated an erasure of the role Nova Scotia—and this region as a whole—played in a final, critical stage of modernity. This, too, was to be the fate of Appalachia. Yet, as John Alexander Williams cogently points out, in economic terms, regions like Appalachia and Atlantic Canada may have actually been leading, rather than lagging behind, their respective countries—’into a future whose outline is only now just coming into view. In the new terrain of globalised market capitalism, the combination of exploitation and per-/re-sistance, of crisis and renewal’. Williams argues, the message from the margins ‘may turn out to be instructive to every dweller in the postmodern world’.8 Beyond the difference in perspective found when one is looking from the ‘margins’, the following essay, using the tools of the historian and the herb gatherer, the knowledge of the literary/cultural critic and the cook, examines comparatively some of the lessons of cultural integrity and ecological survival to be found in the oral history narratives of Nova Scotian and West Virginian rural women. These narratives offer something, ‘from the margins’, so to speak, for rethinking just what it means to be at the margins. But in these homebased health narratives are also what I am calling, for want of a better term, ‘future transcripts’. By transcripts is meant a glimpse at a way forward, to the future, a future in which knowledge of nature, the environment, and health are connected to current and future health, environmental justice, and economic concerns. Within these narratives, which centre on how thinking about home remedies changed, about what was used before lexicalisation and modernization of society was complete,9 ideas expressed on reality, health, and the human relationship to natural and social environments collectively offer insights into contending with what is often characterized as crises (of different sorts) of environment and ecosystem, in health and health care. Arguably, these can only be minor hints toward a better understanding of what is a systemic failure of broader and deeper proportions, one having to do with modernity and the human-nature relationship. Still, I would argue, these are important lessons to consider. Following archival research in rural women’s diaries, letters, and transcripts of oral histories, thirteen oral history interviews with rural women aged 50 or older were conducted in each of West Virginia and Nova Scotia. The aim of the project was to better understand the pasts of home-based health knowledge—household based modes of healing, prevention, and thinking about health, as well as care giving. In addition to oral histories, archival sources such as cookbooks and books on ‘home remedies’ were examined, as was the historiography covering the industrial and environmental history of each region.10
______________________________________________________________ The oral history interviews consisted of twelve, sometimes multifaceted questions, in an interview of 30–45 minutes’ duration. Review and approval of the project was given by the Research Ethics Board of the Nova Scotia Agricultural College, the author’s home institution. Each interview was recorded on audiotape, if acceptable to the interviewee, and most were later transcribed if taped. For the interviews, the project recruited primarily, though not exclusively, members of the Women’s Institutes of Nova Scotia (WINS), and the West Virginia Community Educational Outreach Service (WVCEOS), formerly known as Farm Women’s Clubs and Extension Homemakers. Both of these organizations belong to the umbrella (and global) group, the Associated Countrywomen of the World. (The ACWW was also contacted when this project first began). WVCEOS members are organized into local (county and community) clubs, and WINS members are organized into local branches; both groups are fairly hierarchical in their structure and use the levels of district/area and provincial/state leadership to promote and concretise, through various projects, an ethic of service.11 Unlike the more urban/suburban-based and middle-class oriented ‘women’s clubs,’12 both the WVCEOS and WINS have longstanding (nearly a century) relationships to rural and agricultural institutions within their respective province/state and countries. Both groups also have long histories of volunteerism related to rural health in their respective places, and have been and continue to be educationally-focused on health and other volunteer and community service work in their communities. These organizations’ original, and, for the most part, still predominant, presence in the rural places of Nova Scotia and West Virginia provide a window into change related to health as viewed by members. However, in terms of the rural women’s population accessed via these two organizations, some important populations of rural women have been missed. In Nova Scotia, African-Nova Scotian, Mi’kmaq, and Acadian women have comprised and currently comprise a very small percentage of the Women’s Institutes organization membership, and thus, their health knowledge and historical understandings are unfortunately absent from this analysis. Similarly, West Virginia’s population since 1980 has been about 3% African-American (and was higher in earlier decades). Prior to the integration of the Farm Women’s organization in the mid-1960s there were several thriving clubs in southern West Virginia, whose memberships were (due to segregation) solely African-American, and their work and accomplishments, despite the racist context they had to contend with, resulted in considerable progressive initiatives. There also has been an increase in Hispanic population in recent years. Sadly, the current membership of the WVCEOS does not yet reflect much of this diversity, and no AfricanAmerican or Hispanic women could be recruited for an oral history interview.13
family. but in the US. in the American context. Helping to heal (keeping healthy) connected to household. community. similarly. and Atlantic Canada and Appalachia are treated as different regions—as they are
. and practices. Too. falls within the northern geographic boundary of the Appalachian Mountains. It bears repeating that. Both Appalachia and Atlantic Canada have ‘cultures’ that can be characterized as the sum of a combination of influential landscapes (seascapes as well. as indeed the world contends yet again with growing health and food insecurity. from those who have been at the (perceived) margins before. Ontario. perceptions. and relationship to a particular place as well as perhaps to a place of ‘origins’. but they are also ‘Maritimers’ and ‘Atlantic Canadians. within the context of the ecosystem in which these women and their families and neighbours lived. in light of federal initiatives within Confederation. These narratives have provided a means to understand how such knowledge was put into use and transmitted in the home. and the resultant relationships. and the natural world. Home-based health knowledge and its human practitioners should be viewed. technically. whose counties all fall within the ‘official boundaries’ of the region set via establishment of the Appalachian Regional Commission (ARC) in 1965. and as both regions. but also have. healthcare inequalities and mis-matches. however. both in the past and the present. West Virginians. and/or community. aboriginal and immigrant peoples. There are stories that suggest how a more environmentally sound and healthy future might be had for all. the closest association of any state with the federally defined region of Appalachia. or Quebec. are West Virginians.’ though the latter term sees less use except to refer to ‘Atlantic Canada’ as a region as compared to ‘the West’. the Canadian part of this mountain and valley range tends to be overlooked. in the case of Atlantic Canada). 2. because it is the only state. Cultural Integrity Cultural integrity here refers to the capacity of an identified ‘culture’—bearing in mind the problematic notion that ‘culture’ is14—to maintain itself over time in identifying (and identifiable) characteristics of human language/idiom. as we all come to grip with environmental limits elsewhere and everywhere. in fact. behaviours. as Williams notes. the interviews have nonetheless been an engaging source with which to examine a segment of rural women’s homebased (as opposed to medical institution-rooted or more public-health oriented) health knowledge. outside of the multi-state set of counties identified as ‘Appalachia’ for the purposes of funding under the ARC. traditions. ‘Appalachia has no agreed-upon boundaries’. these narratives also suggest something more.15 If the two ‘nationally’ oriented appellations of region are used.160
From Margins to Margins
______________________________________________________________ Despite these limitations. Most of Atlantic Canada. Nova Scotians are Nova Scotians.
and manufacturing within the Atlantic region. but in this period agriculture did provide self-sufficiency. where population decreases led to declining political power for the Maritimes within the new Dominion. timber and agricultural produce. and the capacity of outside capitalists to be able to utilize post-Civil War technologies and the necessary capital to exploit West Virginia’s coal fields and timber resources better than locals could. built through a tariff wall and transportation policy. By the turn of the century the dependency led to wholesale environmental and economic disaster. as outlined in Salstrom. to experience) significant out-migration and economic distress.16 The issues of out-migration. unable to compete with the scale of central Canadian manufacturing might (who could buy cheaper coal from the United States than from Nova Scotia in
. A national economy. Part of a regional economy that contained ship-building. and ‘underdevelopment’. and each experienced (and continues. in some sense. development of raw resource extraction political economies. climate. however. This led to outside capital coming in. and then some. and the development of ‘underdevelopment’ after the American Civil War and Canadian Confederation. are a useful beginning point in illuminating the economic context of what were environmental. both past and present. and exports of fish. led to the beginnings of economic dependency. Appalachia was marked by both subsistence and profit-oriented inhabitants and settlements. per capita production declined steeply.to late nineteenth century. ultimately favoured central Canadian industrialism over anything going on in the East. in Appalachia’s Path to Dependency. the region appeared to be selfsufficient. aside from certain social realities (like national healthcare). leading Salstrom to conclude that the loss in agricultural self-sufficiency. Each saw rural industrialization in the mid. the timing and trajectories of aboriginal-European encounter. there developed no regional metropolis. and as with the case Salstrom makes for Appalachia. ‘dependency’. and the occupational plurality. the two places are similar in many respects. Appalachia and Atlantic Canada echo to a degree plant species. up to 1840. as Acheson has demonstrated. of their respective rural inhabitants. The region grew enough to feed itself.17 Nova Scotia and the Maritime region appeared to have equally bright prospects in the wake of its achievement of self-government in the 1840s. no within-theregion financial centre with adequate capital.Deborah Stiles
______________________________________________________________ viewed politically—it is possible to see that. Yet. while both population and agricultural production increased. To begin with Appalachia: in the colonial and early national periods. Between 1840 and 1880. and social upheavals as well as economic conditions in both regions. Attracted by the booming economy of New England’s ‘Boston States’ the trickle of Maritime migrants in the 1860s and 1870s turned into a flood by the turn of the century. the lack of capital within the region. ecological.
From Margins to Margins
______________________________________________________________ order to build that might) began to wither away. Agricultural self-sufficiency was similarly undermined, though the process was a more protracted one.18 In the 1880s, out-migration from the Atlantic region became a mass ‘exodus’. Appalachia’s inhabitants, unlike those in the Maritimes, could elect to ‘stay put’ and engage, as best they could, in the kind of occupational plurality Rusty Bittermann characterized as typical in earlier decades in the northeastern Maritimes. Later decades, however, would see West Virginians heading off on their own exodus as well, to Akron and other cities in Ohio and elsewhere, while Nova Scotians also went ‘down the road’ in order to make a living. Both places saw their peoples returned to home when the Great Depression closed the border for Canadians, and jobs became harder to get for West Virginians in the cities. But out-migration began again in the WWII and post-War period, as deindustrialization accelerated and fewer and fewer decent jobs were to be had in both regions. The only difference has been that, since the 1930s, Atlantic Canadians have generally stayed in Canada, while West Virginians continued to leave for places fairly close and in many cases were able to do sufficiently well to be able to retire ‘back home’.19 This review of these two regions’ pasts is necessary in order that the period of the 1930s onward, where this story in specific is taken up, makes sense in view of the larger/longer questions of change over time in the environments and economies in these two places. Turning to the narratives of home-based health gathered for this project: the oldest of the interviewees were both born in 1916, three in the late 1920s, and the two youngest interviewees born 1953 and 1954. The rest, and thus the majority, of the interviewees were born in the mid to late 1930s through to the late 1940s, making their childhood/early adult experiences ones of Depression years into the seemingly more prosperous years of World War II, when jobs were to be had for Nova Scotians willing to leave the countryside and go to Halifax, Montreal, or Toronto, and West Virginians willing to go west to Ohio, or east to Baltimore or Washington or other seaboard cities. Several of the older interviewees recalled growing up years with only the father of the household engaging in part-time work, if any, and limited interaction with the consumer economy or established (such as they were) medical institutions. The interviewees were thus individuals growing up in the wake of the massive upheavals their parents and grandparents experienced in the turn of the century. The timbering, coal mining, steel and other manufacturing boom and bust realities were thus less a part of their lives than of their parents’ and grandparents’ generation, but they were the first generation to fully experience those effects. Some of the interviewees migrated out of the region, as adults, and returned; others had never left. Most had a growing up background of mixed farming and experienced occupational plurality (off-farm work) in their adult
______________________________________________________________ lives. Interviewees recalled that, in most cases, it was the mother or grandmother (where mother was not living) who was responsible for providing care. In some families mothers had the knowledge (prepared the remedies, diagnosed, etc), but fathers helped administer treatments and sometimes provided nurturing (rocking of sick child, for example). Whether in Nova Scotia or West Virginia, interviewees remembered the years of growing up as ‘healthy’ and their adult years of raising children similarly ‘healthy.’ This may be a matter of nostalgia, but it is interesting to note that this was the case whether they were among the few who had spent part of their adult lives away from their region, or had lived in rural West Virginia or Nova Scotia all of their lives.20 Another expressed sentiment was that ‘We never went out to the doctors’21 and ‘You never went to the doctor...Took care of yourself.’22 Those who recalled a past of health and well-being applied the ‘we were healthy’ assessment not only to themselves, but also everyone in the household and neighbourhood. And good health was connected to being ‘outdoors’: ‘…but I think that maybe we were healthy because we spent a lot of time outdoors! And I still believe to this day that the best, I don’t know what it would be, it’s not a cure, prevention—for a lot of illnesses is fresh air’.23 Country life on ‘mixed farms’ or other rural settings also meant much less interaction with people, and more with nature: ‘I grew upon a hillside farm, 30 acres, straight up... my dad was a farmer as all the other families... we just raised what we ate and that was it’.24 At the intersection of health, environment, and the economy, in these two groups of interviews can be found some broader understandings in terms of cultural integrity. There are economic and sociological interpretations for cultures being sustained over time, but the simplest interpretation for how these cultures have maintained a wholeness, an integrity about them, is that enough of place, people, and understood and valued ‘traditions’ remained for that culture to at least survive but also in some cases thrive, whether ‘at home’ in Nova Scotia/West Virginia, or elsewhere. Now, the recollection of being ‘healthy’ and associating health with outdoors activity cannot in isolation be deemed a part of culture. But the sum of activities recalled by interviewees, of helping to gather peppermint and spearmint, of using goldenseal, plantain, and other herbs for healing, of picking greens in the spring, suggest that the sustaining processes of ‘traditional’ cultures go far beyond the ‘modern/anti-modern’ dichotomy Parsons’ sociological model originally constructed. For the categories of people, places, and cultures holding on to ‘anti-modern’ attitudes, versus those who embraced modernity, it was not simply a matter of attributing a negative value to the ‘anti-modern,’ and a positive to the ‘modern’. Although with such a small sample of interviews it is impossible to generalize, it does appear that, notwithstanding outsiders’ or experts’ perception of ‘traditional’
From Margins to Margins
______________________________________________________________ cultures as containing such practices as wild-gathering and using home remedies and in effect constituting ‘anti-modern’ behaviour (behaviour interpreted by modernization theorists as ‘social maladjustment’) from the margins of Nova Scotia and West Virginia these practices appear to have been more about how access to the natural environment as well as health knowledge and practices passed down from older generations was a means of maintaining, over time, the health and well-being of the individual, the household, and the community, utilizing values within the culture connected to health, experiential knowledge, and making do with what one had to hand. In this sense, the integrity of culture can be seen as preserved in a very real physical sense: home-based health knowledge was a means to sustain health and well-being. Health and foodway practices can thus be seen as embedded within the culture, in the case of gathering and consuming dandelion and poke greens in the spring, for example, for need of a tonic, in order to gain strength for the spring season work (much more rigorous than that of late winter), or in employing home remedies to recover lost health. In both West Virginia and Nova Scotia, gathering and using home remedies, including those items collected from the farm, field and woods, were gathered and used because there was a belief in their validity and efficacy.25 These rural cultures may be characterized as final hold-outs against the relentless tide of progress and modernity. More recently, however—and recalling here John Alexander Williams’ and Ian McKay’s arguments—at least some of what were touted as the triumphs of modernity have ultimately been proven to be a societal and economic cul-de-sac. In terms of unbridled consumerism, suburban wasteland landscapes, and the environmental destruction and loss of civic community those so-called triumphs have wrought, modernity’s earlier triumphs have begun to be perceived as tragedies or travesties, corruptions of the human spirit in terms of their effects on the environment and on human health.26 This, then, raises another question. To what degree did those involved in the commodification of rural, so-called ‘traditional’ (or tradition-bound) cultures such as those of Atlantic Canada and Appalachia facilitate as well the non-critical proliferation of suburban, middle-class-aspirant ways of life—ways of life ultimately more harmful to the health of the planet than those attached to those possessing ‘anti-modern’ ways? Tourist escapes—West Virginia, on the license plate as ‘Almost Heaven’, and Nova Scotia, as ‘Canada’s Ocean Playground’—were escapes for some of the middle and upper class urbanites, who, as McKay points out in the Nova Scotia case, benefited from such re-imaging. Still, this re-imaging did not result in disintegration of authentic cultural traditions, but rather it allowed for a re-shaping of them, into what Ian McKay terms Innocence:
______________________________________________________________ I find in Innocence a systematic exclusion of those aspects of the past that would help people think historically about alternative outcomes, or about patterns of power and privilege in society, or about themselves as agents and victims of history. Innocence in particular, and tourism in general, is ethically troubling because it exemplifies the transformation of living people (and their customs and beliefs) into articles of exchange.27 In terms of societal health and well-being, the dis-connect from nature implied in much of modernity’s stress on urban, and later suburban living, has proven to be an exercise in wastefulness and unsustainability. The attributes of these so-called traditional, rural, ‘anti-modern’ cultures are alien to those who do not practice them, and not because they are dissimilar landscapes or spaces, but because rural cultures’ knowledge systems are based on knowledge of the eco-system and economic limits: the plants and animals, what is in season and useful, for healing or nutrition, values of frugality, and of ‘making do’, (or doing without).28 Those that possess this type of knowledge value it, at times highly, and hold on to it, despite ‘modern’ intimations that they’d be better off otherwise. It then becomes less a matter of being exploited by middle class cultural producers (who, in earlier decades, brought the tourist gaze—and dollars—to fall upon rural dwellers, forcing adaptation strategies in order to ensure, over the long term, the integrity of what was valued culturally), and more a case of survival. 3. Ecological Survival He Starved, He Starved, I Tell You His name was Eddie Crimmins And he came from Port aux Basques, Besides a chance to live and work He had nothing much to ask... And yet, he starved, he starved, I tell you, Back in nineteen twenty-four, And before he died he suffered As many have before. When the mines closed down that winter He had nothing left to eat, And he starved, he starved, I tell you, On your dirty, damned street. —Dawn Fraser, Echoes From Labor’s Wars (1926)
From Margins to Margins
______________________________________________________________ ‘Labour’s Wars’, as Nova Scotia poet Dawn Fraser put it, were indeed open warfare: and, as the late nineteenth and early twentieth century labour historiography reminds, this was sustained war waged by the coal companies against miners and their communities and families in both Nova Scotia and West Virginia. These wars produced victims of the bullet, but most often victims of the harsh economics imposed by the capitalists. When access to nature was cut off entirely and someone, without friend or family, did not ask for help, a tragedy—like the victim of malnutrition, Newfoundlander, Eddie Crimmins, about whom Dawn Fraser wrote in his poem—could ensue. In contrast to the general view of the 1920s as the height of the Modern Era—the Jazz Age—in both Nova Scotia and West Virginia the 1920s were a period of intense upheaval and hardship, followed by somewhat less troubling times that ushered in for good or ill a period of deindustrialization. But it is also worth remembering that the assaults on the rural working class were preceded, accompanied, and followed as well by assaults on the ecosystem. In terms of both Nova Scotia and West Virginia, ecological survival can be understood as being about modes of learning, behaviour, and systems of knowledge (such as experiential) that are employed by humans in the face of human activities fundamentally at odds with an implicit, ‘natural’, ecological order within which humans reside. The economic and social changes accompanying timber and coal exploitations also, to put it bluntly, involved ecological upheaval. Here, some examples from West Virginia provide the backdrop: Ronald Lewis points out how, for example, over the period 1870 to 1920, the number of farms in Randolph county, West Virginia increased from 575 to 1,774 but decreased in size from 360 acres in 1880 (size not available in 1870) to 170.4 acres by 1920. Changing from the ‘long fallowing’ and less intensive methods that had been the hallmark of both First Nations and medieval European agriculture (pasture systems) of production, ‘farmers reduced their total acreage by selling their woodlands and then using the money to shift over to the fenced-pasture commercial system’. In other words, they tried becoming ‘modern’. And as Salstrom notes, ‘the 1920s saw the worst ecological abuse yet inflicted on Appalachian farmland’.29 The huge cut-over that was West Virginia by the 1920s meant hillsides scraped nearly bare of their timber and subsequent years of sheep and cattle pastures, many on lands so steep they should have remained in woodland. Here the dangers of overgrazing were apparent. It meant scars on the landscape, floods, and fires. Devastating as these changes were, the realities of coping with them were factored in to activities related to daily life. One oral history collected, transcribed and placed in the West Virginia University archives several years ago, is of lumberman/farmer George Thompson recalling the 1890s. It is very
but the overarching theme to take from them is one of resilience. 30 (after) It was a beautiful valley and that was all. These brief examples cannot completely paint the picture of ecological survival. There was also one complete loss that was not directly related to industrialization. but. a tree whose role in human. those growing up in the later period. can be seen as the first generation to actually experience the effects of these changes in the economy and the eco-system. And people persisted. It was the forest environment.. restrictions on traditional uses. It is the case of the American chestnut tree. floods.. which suffered.. and plant ecology was irreplaceable’.000 acres. and suggests the extent to which the devastating consequences we face today. in terms of strategies for ecological survival. The fire had burned about 3. and it will be mentioned here as it links both regions just as labour history does. and management through the establishment of National Parks and Forests in West Virginia. thought to have been brought in by United Empire Loyalist settlers at the end of the Revolution. animal. but rather through international trade. The cost of the loss of the chestnut can be glimpsed in Williams’ observation that the ‘amazing biodiversity’ of Appalachia lost ‘one of [its] mainstays. have been faced before. through fires. incidentally. 31 The turn of the century period was the pivotal period of change. environmentally. and the more intensive and destructive methods of harvest. Through introduction of a blight from Asia. where fires swept through during the timber boom: (before) There was a trail very rough into Canaan Valley. and survival. They called it the burning woods. as the Nova Scotia example of
. and of human adaptation to environmental injustice at the hands of capital and its collaborators. and yet—the eco-system survived. the American chestnut tree at mid-century was all but made extinct.Deborah Stiles
______________________________________________________________ useful for its before and after perspective on the Canaan Valley area of Tucker County. Wagons could get over it but it took them all day. Although.. and related health preservation and/or healing strategies.32 And yet. presently the site of a massive clean up from a century of steel and coke production—is the most prominent example of how industrial capital’s effects can be felt long after the jobs justifying it have disappeared. the 1930s to 1950s. In Nova Scotia the losses were more contained but nonetheless graphic—the Sydney Tar Ponds. The American chestnut has been found in Nova Scotia. and if you wanted to see the sky you had to lay on your back in the middle of the road and look up.
most notably dandelion greens which are widely known to be an early and prized spring source of vitamins and also are said to be good for the liver. in the Nova Scotia case. the Women’s Institutes were instrumental in providing cod liver oil for disbursement at schools. but one that offered the next stage of growth/succession following a timber cut: acres and acres of blackberry and raspberry brambles.. made from the bark of the root of the sassafras tree. not a cutover landscape. both Nova Scotian and West Virginian women recalled the use of bread poultices.168
From Margins to Margins
______________________________________________________________ Eddie Crimmins recalls to us. As membership grew in the Women’s Institutes in Nova Scotia and Farm Women’s/Extension Homemaker Clubs in West Virginia. who were growing up from the late 1910s through the mid-1950s did survive.. Lard was generally used much more in West Virginia than in Nova Scotia. How they differed in their recollections relates to their differences in the natural environment and farm practices. the groups in the twentieth century each played important roles in health related initiatives. especially in the moderately successful agricultural sub-region of the Annapolis Valley. and recalled. while the
. all kinds of wild berries. those interviewed for this study. We picked. maybe a hundred quart of blackberries.35 Dandelion greens (and. dandelion wine) fell under the category of ‘spring tonic’ by interviewees and in print sources. onion poultices for colds.34 in Nova Scotia the use of goose grease was much more common than the use of lard (a hogs’ rendered fat).36 The only more frequently mentioned tonic (this in West Virginia only.. and the making of an onion and brown sugarbased cough syrup. ginger for stomach or menstrual difficulties. as the base for salves and other medicaments.’. as it was in Nova Scotia and it only took one. Wild gathering was much more part of the farm and forest economy and eco-system of West Virginia than in Nova Scotia. From the kitchen cupboard. initiatives that can be interpreted as part of an effort to modernize their respective rural societies. While Nova Scotia interviewees of farm backgrounds remember a lot of ‘vegetables’ being consumed. at Christmas. mustard plasters for aches.33 The kitchen as well as the garden and woodland was a source for ingredients for a number of home remedies whose aims were to deal with all but the most serious illnesses or injuries. we would can a hundred quarts of raspberries. West Virginia interviewees recalled most often the results of wild-gathering. Goose was not a Christmas favourite in West Virginia. For example. which would include the high fibre. as the tree is only common there) was sassafras tea. there were many who did not survive.. but both groups of interviewees mentioned the annual ritual of gathering greens in the spring. to provide the amount of fat needed for a family’s use all year. where both groups recalled people raising a hog ‘for winter’s meat’. rich in vitamin C (and other good things) berries that would be picked and eaten fresh as well as preserved for the winter: ‘oh gosh.
To begin.37 Good nutrition connected to health and subsistence. NS Participant: Yeah. probably with the food..No sitting at a desk doing computer or doing something else. Other people didn’t live like that. Interestingly enough.. was resilient and generous to humans in the ways that allowed humans to continue to sustain ‘traditional’ and ‘anti-modern’ practices within their cultures. and it’s what.. despite being damaged.. these life patterns linked home agricultural production and wild gathering to household and community health. you were out in the fresh air.. they walked to school. 4. by virtue of our Global North residence) might move toward a more environmentally sound and just future. That’s also to me one of the reasons why there wasn’t so much obesity.. Future Transcripts The final section of this paper examines the oral history narratives in view of what they provide in the way of clues as to how we (particularly those of us who live in rural cultures and places ‘at the margins’—but nevertheless privileged ones... some excerpts: NS Participant: . at the same time as we put into practice some fairly simple lessons of the past about getting and staying healthy. Access to the ecosystem—access that was taken advantage of—reveals the extent to which the natural world. well we had a big table like this and that had a lot of food on that table and the warm bread with every meal. and what she saw once her ‘country school’ was closed and she was bussed into town: I didn’t realize until they closed that country school and brought us intoto wn and we rode home with other kids that their homes didn’t function as well. the
. they’re home and they get this and they get that. however... And people today don’t do that. farmbased household.Deborah Stiles
______________________________________________________________ West Virginia clubs were responsible for establishing many hot lunch programs throughout the state. we never had a chance [to get sick] we were out in the field working our bellies off all the time while we were kids you know. it was the.. The food was probably what impressed me the most. three kilometres or something? And we walked it winter and summer.. the one interviewee who mentioned school-time lunch programs brought out the differences she perceived between the plenty observed at her rural.
.. but it seemed like in the early ‘80s it started... Every one of the kids you ever see there’s something wrong with them. even enjoyable through recourse to and a healthy interaction with nature as well as community.’ I think up until that time some did and some didn’t.. I can’t remember any of them having chronic illness.. vegetables and fruits from farm or the wild. more distant employers. These interactions involved physical activity (whether through outdoor play. or through gathering of herbs. you know.. The healthful exercise through walking that was involved in all the provisioning and other activities should also not be downplayed or dismissed. But now I see it reverting back to the home remedies and some of these things really did work and really are good.. would you still use a bread poultice today? WV Participant: Sure I would. Moderator: . cheap fuel.. it’s much easier if you have an antibiotic cream. use of what was available in cupboard. it’s.. with a chronic disease. sharing information both generationally and between friends at branch/club meetings or otherwise in the locality/community. ‘don’t do that. NS Participant: I didn’t grow up with any child. Yet. the historical record combined with the recollections of these rural women suggest that the historical picture of economic hardship in these ‘marginal’ regions was no less true than the truth that hardship in these marginalized places was also rendered habitable and endurable.38 There is always the danger of nostalgia colouring memories when considering the expressions of oral history. and other food/medicine items). and providing a boost to the household’s self-sufficiency through the provisioning of medicines. but if I needed to I probably would just continue to use those things because it worked. field and forest to heal or maintain health. walking to and from school/events. There was nobody had asthma.. illness. Isn’t that interesting? Perhaps I have a faulty memory—perhaps I just want to remember all the good things—but I think I’d remember.. it’s harmful to you... despite the high cost of fuel and the clear signs that this kind of consumptive lifestyle
. WV Participant: I would say in the 80s a lot of the home remedies was.170
From Margins to Margins
______________________________________________________________ kids today they’re always sick.39 It may take some time. Contemporary current unhealthy rural ‘lifestyles’ are unhealthy because they typically do not include the kinds of walking exercise that were everyday reality in the days of gathering greens—and before the days of consolidated schools.
More and more people are realizing this and getting off the treadmill of multiple prescription drugs. below: I have worked in the medical field all my life. in an earlier century. which. do we protect the local and individual?41 The assertion. Is the diffuse and image-twisting multinational corporation. In the coming struggles to ‘protect the local and individual’—and in the process fashion healthier. suggests that one of the editors of the volume.. maimed these regions and then induced the human inhabitants to adapt to the circumstances as best they could? These oral histories suggest alternative avenues for
. within cultures and patriarchal legacies that are at stake here.40 In closing.. tries to isolate and make money off of an active ingredient in a wild plant—so that the same thing can be fed back to people who will pay for a pill—any less of a robber baron than those who. but as I’ve gone along I’ve realized that we have gone more and more in the direction of trying to look for instant answers.. in terms of what makes its way into water supplies. collective. which has its own dangerous environmental side effects. perhaps it is time to recognize that the simplest remedy for non-acute health problems may also be the most efficacious. communal futures—these knowledge of nature and access to nature questions. should be amended to read ‘food and knowledge of nature’—though it should read power-to. but many have not yet reached the stage of critical reflection one respondent offered in her comment. power means food. to recognize that the knowledge of nature must also include access. Food Nations. in exploiting the eco-system yet again. in this instance. may be key. Still. to move toward the re-localisation of rural (as well as urban) economies. as it is the systems of dominance found within capitalism. taking a cue from the home-based health knowledge shared by Nova Scotian and West Virginian rural women... Here. may not be far wrong when he argues that Food means power. and that there is very little healing going on. and pills and all sorts of things to solve every little ache and pain. household-based practices and remedies with the rise more recently of ‘functional foods’ and other food-nutrition-health connections. the intersection(s) of health. in the context of great globalisation of trade and culture.. including those related to keeping ourselves healthy. however.How. is another question. It would need to be amended yet again. to nature. then. rather than powerover.Deborah Stiles
______________________________________________________________ promoted by the champions of modernity is unsustainable over the long term (both in terms of human health as well as the environment). in some fashion.
8:932. see. McGill-Queen's University Press.172
From Margins to Margins
______________________________________________________________ environmentally just and healthy ways of living in the twenty-first century. Montreal & Kingston. in terms of the concept of ‘ecological survival’. ‘Modernity. cit. more recently the Women’s Health in Rural Communities (WHIRC) project. Chicago. op. Saint Mary’s University. Toronto/Fredericton. The University Press of Kentucky. about just what we can and cannot do without. 2 The tourism ‘industry’ in Nova Scotia. cit. 5 Others from diverse fields have tackled the idea of the intersection of modernity and knowledge. J A Williams. including numerous white frame farmhouses. University of North Carolina Press. Chapel Hill. in part. (Online). Appalachia’s Path to Dependency: Rethinking a Region’s Economic History 1730-1940. The Atlantic Provinces in Confederation. This argument is used by Ian McKay. avenues that. 1994. 1-13. is also the author of West Virginia: A History. 3 Sydney Tar Ponds Agency. Rural and Remote Health. Morgantown. October 2003. West Virginia’s ranking is cited in K J Williams et al. Painting the Landscape of Rural Nova Scotia: Rural Communities Impacting Policy Project. Homepage. The Quest of the Folk: Antimodernism and Cultural Selection in TwentiethCentury Nova Scotia. cit. 299. The Quest of the Folk. Williams. West Virginia University. 1993. V Lal. ‘Cultural Perceptions of Healthy Weight in Rural Appalachian Youth’. I McKay. 4 Health statistics for Nova Scotia are found in Coastal Communities Network. No Place of Grace: Antimodernism and the Transformation of American Culture.ca/.tarpondscleanup. Frameworks of Knowledge. Appalachia: A History.
1 P Salstrom. meant the collecting of sea shanties and careful ‘preservation’/reconstruction of sites such as Peggy’s Cove. for example. E R Forbes and D A Muise. in Appalachia. ‘all traces of modernity. This paper owes a great deal to the support at early stages of Dr. in his argument concerning the commodification of Nova Scotian culture in I McKay. J A Williams. Peter Twohig. and funding from SSHRC. funded by CIHR. 1880–1920. www. involve a recognition of what modernity did and did not provide at the margins: and what those at the margins can teach all of us. University of Chicago Press. The Quest of the Folk. 1994. A key text formulating the ‘anti-modern argument’ is T J Lears. op. I McKay. 2002. Appalachia. 1994. op. were destroyed’. for example. and the Nova Scotia Agricultural College’s Rural Research Centre. vol. 2008. 2001. pp. and the
.. University of Toronto/Acadiensis Press. through park developments. p. Lexington.. the author of Appalachia: A History.
1841. ‘The impact of culture on medicine. as she notes.ucla.). raises the issue of Appalachia as unique. is D H Looff. Morgantown. ‘The Medical Treatment of Women’..). but via a rural-urban dichotomy: ‘The Appalachian region is predominately (sic) rural.bol. Charles C Thomas. historically women have felt these effects more keenly (p. The American Economical Housekeeper and Family Receipt Book. 2003. and the interventionist nature of [conventional/mainstream/modern/allopathic] medical practice affect both women and men’. As Mitchinson notes. Never Done’: West Virginia Farm Women. Committee Recommendations. Springfield. http://vlal. but couches it in terms of the statement that the ‘Appalachian region is predominately (sic) rural. pp. 1880s-1920s’. cit. Appalachia. pp.Deborah Stiles
______________________________________________________________ Ecological Survival of Plurality: An Introduction to the Multiversity Enterprise. McClelland & Stewart. op. cit. 8 Williams et al. in Rural and Appalachian Health. Standing Committee Recommendations. 1897-1919.. in Changing Patterns: Women in Canada (2nd ed.. that notes the necessity of using ‘insiders’—nurses born and raised in the region—to effectively deliver health programs. 11 M Kechnie. L Code and L Dorney (eds). 18. IL. 1926-1995. with WV signifying West Virginia. S A Howland. vol. although. 49. the medicalization of society. 10 E A Howland. op. Worcester. and persons residing in these areas maintain values and practices somewhat different from those living in more urbanized locations’. ‘Since the midnineteenth century we have seen the increasing medicalization of our society and our lives’ (p.United States Chapter’. 1993. 27. Nova Scotia (WV1WV10. 402).edu/multiversity. McGill-Queen’s University Press. p.. J A Williams. p. and NS. op. Organizing Rural Women: The Federated Women’s Institute of Ontario. S Eagan. NS1-NS8). West Virginia State Farm Women’s Bureau/Farm Women’s Clubs/Extension Homemakers Clubs. 3-15. 8. without doubt. in Missing chapters II: West Virginia
. 7 I McKay. ‘‘Women’s Work. cit. and persons residing in these areas maintain values and practices somewhat different from those living in more urbanized locations’. Williams et al. cit. 21-36. accessed June 2008. MA. 9 W Mitchinson. S Burt. S Eagan. Toronto. West Virginia. whose study took place in four high schools in rural West Virginia. p. Each interview is given a numerical value. 6 A typical 1970s-era study in Appalachia. 1973. Oral Histories with women from West Virginia and Nova Scotia. 1990.. Quest of the Folk. identified the region as a whole..8. 5th ed. p. op. R L Nolan and J L Schwartz (eds. 393). ‘Rural Appalachians and Their Attitudes Toward Health’. 391-421. West Virginia History . pp. ‘West Virginia Farm Women’s Clubs (1914–)’. But.
1994. 15 There have been some international comparatives done before: see for example.3. Obligation and Opportunity: Single Maritime Women in Boston. 313. 34-69. WV-1.1. vol. ‘Farm Households and Wage Labour in the Northeastern Maritimes in the Early Nineteenth Century’. Daniel Samson (ed). Fredericton. pp. Lexington..185-241. The outline of key issues in terms of rural modern society is provided in Daniel Samson. in Childhood and Family in Canadian History. Alan A Brookes. 1880-1910’. Labour/Le Travailleur. Appalachia: A History. West Virginia Women’s Commission. Chapel Hill. and Leaving Home in Late Nineteenth-Century Rural Nova Scotia: Canning and the Exodus.174
From Margins to Margins
______________________________________________________________ Women in History. 2000. Introd. 34-65. Charleston. Underdevelopment and Social Movements in Atlantic Canada. Kings County’. op. ‘Family. Appalachia’s Path to Dependency: Rethinking a Region’s Economic History. 1800-1950. and the Transformation of Medicine in Appalachia. Montreal & Kingston. 93-108. P A Buckner and David Frank (eds). Toronto. Youth. 1981. 19 Salstrom. 17 P Salstrom. 3-28. ‘The Problem of Out-Migration from Atlantic Canada.). Spring. 122-138.html.2. vol. 18 T W Acheson. pp. p.7.10. Williams. New Hogtown Press. p. and Humanities Foundation of West Virginia.3. Betsy Beattie. Appalachia in an International Context. op. West Virginia.6. McClelland & Stewart. 1868-1893’. Fredericton.censusscope. Rusty Bittermann. 1986. Acadiensis. Afterword. F S Hensley (ed. CT. 1730-1940. Toronto. Contested Countryside: Rural Workers and Modern Society in Atlantic Canada. Praeger. Alan A Brookes. Acadiensis Press. 11. E R Forbes and D A Muise. pp. pp. 18711921: A New Look’. 1979. McGill-Queen’s University Press. 20 NS-2. 1. Atlantic Canada After Confederation (2nd ed.2. WV. Anthropology. cit.5.. Westport. 1880-1930. 14 I McKay. 1988. 13 Statistics from www. Phillip J Obermiller and William W Philliber (eds). Authorized to Heal: Gender. 16 J A Williams. 8/9. in Contested Countryside. pp.
. 1994. WV Women’s Foundation. 1972. University of North Carolina Press. 125. 21 NS-2. pp. Robert J Brym and R James Sacouman (eds). The University Press of Kentucky. vol. Acadiensis. Class. 1981. 1982.4. cit. 151-64. Appalachia’s Path to Dependency.org/us/s54/chart_race. 2000. 1870-1930. Joy Parr (ed). Acadiensis Press. and the Concept of Culture’. ‘Historians. ‘The Golden Age and the Exodus: The Case of Canning. in The Acadiensis Reader: Volume Two.8. Patricia A Thornton.). pp. 57-82. 1994. pp. ‘The National Policy and the Industrialization of the Maritimes. Autumn. 12 S L Barney.
Winter. 60(1). 24 WV-2. M Schlossberg and J Stockard.wvu. op. p. 2004. (online) www. ‘Fighting Obesity through the Built Environment’. The Quest of the Folk. p. J Wakefield. ‘Active Community Environments and Health: The Relationship of Walkable and Safe Communities to Individual Health’.pdf. 298. ‘when you think about the health of your birth family. p. 72. 19. 32 Williams. and the Foundations of Agribusiness in the Midwest. 23 NS-5. 12. NS and WV interviews. Baltimore. 28 M Neth. S Doyle. pp. Oral History. Preserving the Family Farm: Women. pp. one interviewee put it this way: ‘After we got older and could afford to buy things at the store. A minor note expressed the gathering as something that was ‘for tradition’ (and this in West Virginia) and not expressed in Nova Scotia. For example. 45-59.’ WV-7. Oral History. p.Deborah Stiles
______________________________________________________________ WV-4. the family that you were a child in. the major note sounded involved the belief that these things ‘worked’. A616-A618.rri. K J Dueker. p. When we didn’t have money to buy aspirin... op. P Salstrom. C Weinert and M E Burman. and the Transformation of Agriculture in the West Virginia Back Counties. vol. 40. Those from both Nova Scotia and West Virginia who remembered something other than being ‘healthy’. 25 Williams. vol.. Community.
. and were used until more easily utilized (and affordable) products could be had by purchase. and of the hardship that individual circumstance involved. 31 George Thompson. pp. www. Available from: Academic Search Premier. 4. Appalachia: A History. what sticks out in your mind the most?’ recalled specifics of an ill (or dying) parent. then. 321. 33 WV-4. and just like aspirin. Journal of the American Planning Association.edu/pdffiles/wp9402. we did. 1880-1920’. 1994. ‘Rural Health and Health-seeking Behaviors’. 30 George Thompson. p.1. 27 I McKay. A Kelly-Schwartz. cit. 112(11). Environmental Health Perspectives [serial on the Internet].ca/~chestnut/novascotia. Research Paper 9402.uoguelph. ‘The New ‘Burbs: The Exurbs and their Implications for Planning Policy’. Appalachia. A C Nelson.htm. 3. NS4. Johns Hopkins Press. Deforestation. 2006. Annual Review of Nursing Research. 12. 65-92. 333-334. cit. in response to the question. WV 11. 26 J S Davis. vol. vol. pp. 1994. 29 R L Lewis. 1900-1940. op. ‘Railroads. Journal of the American Planning Association. 131. 1995. we used willow bark and it works. cit.
Emmaus. Cape Breton. Environmental Health Perspectives [serial on the Internet]. I Tell You’. WV. The Rodale Herb Book: How to Use. New York. 1941. p. Morgantown. Breton Books. R. West Virginia State Farm Women’s Bureau/Farm Women’s Clubs/Extension Homemakers Clubs. Morgantown.176
From Margins to Margins
______________________________________________________________ NS-1.. pp. W Belasco and P Scranton (eds). Grow. A698. 1926–1995. D. 4. 9. 10. Contains year by year recommendations made by the state health committee of organization. p. Dandelion (Taraxacum officinale) is widely recognized as a ‘tonic’ and. op. 37 The Women’s Institutes efforts in this regard are WV-3. NS-8. 19-20. cit. October. 126. Standing Committees Recommendations. (no date). Committee Recommendations. vol. 1991.. File 1 of 1.8. File is in possession of Shirley Eagan. op. 36 Hylton. pp. NS-2. ‘NIEHS Fights Fat’. Ann Arbor. MI. ‘He Starved. Former WVU Extension Specialist. Chase’s Recipes: or Information for Everybody: An Invaluable Collection of About Eight Hundred Practical Recipes. 38 Interview transcripts NS-5.2. orig pub.6. Routledge. A Treasury of Nova Scotia Heirloom Recipes. Iowa Falls. 111(13). 1969. date 1967. and Buy Nature’s Miracle Plants. WV-5. PA. Nova Scotia. West Virginia’s Treasured Recipes: A Collection of Early West Virginia Food and Philosophy. 1992. 1974. according to the ‘Doctrine of Signatures’ was virtually a ‘cure-all’ and yellow—thus good for the liver. 39 S Doyle et al.
. Used by permission. 88. He Starved.. Iowa. Echoes From Labor’s Wars: The Expanded Edition. ‘Food Matters: Perspectives on an Emerging Field’. cit. WV-4.A. 1934. The following years are missing: 1927–31. Dr. interviews NS 3 & 6.3. 2002. 41 W Belasco.). Rodale Press. 422-423. William H Hylton (ed. Fraser. 422-23. 2003. 40 Interview transcripts NS-6. Nova Scotia Department of Agriculture and Marketing..4. Florence Hilchey. pp. 1974. 1881. WV. West Virginia Extension Homemakers Council. WV-1. in Food Nations: Selling Taste in Consumer Societies. General Publishing and Binding. Reports within the years that do exist may not be complete.
Primary Sources Beal. 1974.
Published by The R. Old Settlers’ Remedies.. by W. copyrighted in 1910.’ Thompson. Cookbook in author’s possession. Seattle. WV1-WV10. The American Economical Housekeeper and Family Receipt Book. Lancelot Press.A. Oral History. Boston. in as bold a type. Date of 1920. Alice G. also listed.. 1974. Worcester. Barnum Co. Canada. Fair.D. West Virginia Source.Deborah Stiles
______________________________________________________________ Hilchey. F. Howland.. This was lent to me by one of my HOBAHEK interviewees to examine.
. and pub. V. Nightingale. 1845. Ann Arbour. by T. CLEVELAND. 1841. Toronto. M. by RC Barnum Co. Interviews in author’s possession. Michigan. NS1-NS8.. Interviews in author’s possession. but in smaller case than Cleveland. Nova Scotia Department of Agriculture and Marketing. Robertson. Iowa Falls. Lincoln. E. Hantsport.. 5th ed. M. 1960. 1971. Copyright held by SA Howland as well. G.S. Ritter. Michigan State University. A. Out of Old Nova Scotia Kitchens: A Collection of Traditional Recipes of Nova Scotia and the Stories of the People Who Cooked Them. Original publication date: 1967. Inscription date 1852 on it by grandmother. Nova Scotia. The People’s Home Library: A Library of Three Practical Books: The People’s Home Medical Book. The People’s Home Recipe Book. MA: Published by S. it was the grandmother (based in Annapolis Valley) of her husband. West Virginia’s Treasured Recipes: A Collection of Early West Virginia Food and Philosophy. Iowa: General Publishing and Binding. The Ritter volume first page says that he is graduate of both allopathic and homeopathic schools. West Virginia Extension Homemakers Council. and ‘formerly assistant to the chair of the theory and practice of medicine. Toronto. Howland. and then it also lists Imperial Publishing Co. Kirk. C.. Pagurian Press Limited. J.. Nova Scotia Source. M.M. C. by Mrs. In author’s possession. A Treasury of Nova Scotia Heirloom Recipes. OHIO—Minneapolis. and The People’s Home Stock Book.
1981. Chapel Hill. pp. 1. 2002. vol. Montreal & Kingston. Authorized to Heal: Gender. ‘The Golden Age and the Exodus: The Case of Canning. J Parr (ed. 1880-1910’. Toronto. A. 4.).. 1883. Secondary Sources Acheson.. 2. Columbus. ‘Food Matters: Perspectives on an Emerging Field’. Class. Ontario: Bradley. and Leaving Home in Late Nineteenth Century Rural Nova Scotia: Canning and the Exodus. San Francisco. 2000. 2000.
. vol. pp. Brym . R. Order. Healthfulness. no. Obligation and Opportunity: Single Maritime Women in Boston. A. 1868-1893’.. L. J. Fredericton. ‘Family. Acadiensis. pp. W. S. Methods. B. New York. Samson (ed). 1800-1950. ‘Farm Households and Wage Labour in the Northeastern Maritimes in the Early 19th Century. J. Acadiensis Press. The Complete Home: An Encyclopaedia of Domestic Life and Affairs. J. THE HOUSEHOLD.. A. Louis. Brookes. D. 1870-1930. Bittermann. Beauty. and the Transformation of Medicine in Appalachia. Nashville. Beattie. Listed also: William Garretson & Co.(goes on) Bradford. Kings County’. Acadiensis . R. St. McGill-Queen’s University Press. Economy. Toronto. 11. in its Foundation. pp. 1880-1930. Youth. 1972. McClelland & Stewart. Emergencies. Barney. University of North Carolina Press. Brookes. 1979.. in Childhood and Family in Canadian History.178
From Margins to Margins
______________________________________________________________ Wright. 1982. Routledge... Food Nations: Selling Taste in Consumer Societies. W.. Belasco. Scranton (eds). ‘The National Policy and the Industrialization of the Maritimes. Belasco and P... & Sacouman. Chicago. Given by the great grandmother to the grandmother of one of my Annapolis Valley HOBAHEK interviewees.M. 3-28. T. no. New Brunswick. A.. 93-108. 1. 1994.. 57-82. R. New Hogtown Press.’ in Contested Countryside: Rural Workers and Modern Society in Atlantic Canada. p. Underdevelopment and Social Movements in Atlantic Canada. Garretson & Co. W. 34-69.
151-64. The Rodale Herb Book. vol..ucla. A. Changing Patterns: Women in Canada. J. V. J. in Missing Chapters II: West Virginia Women in History. 72(1). West Virginia Women’s Commission. Organizing Rural Women: The Federated Women’s Institutes of Ontario. R. T. Dueker.edu/multiversity. K. and Stockard. Journal of the American Planning Association. Toronto. S. Nelson. Lears. Code. H.). pp. F. 19. C. 49. vol. Kelly-Schwartz. Frameworks of Knowledge. Toronto/Fredericton. S. Davis. 60(1). Charleston. http://vlal. 1993. W.. ‘The New ‘Burbs: The Exurbs and their Implications for Planning Policy’. L. C. Rodale Press. 1974. ‘Active Community Environments and Health: The Relationship of Walkable and Safe Communities to Individual Health’. L. and the Ecological Survival of Plurality: An Introduction to the Multiversity Enterprise . McGill-Queen’s University Press. and Dorney. Chicago.. J. E. McClelland and Stewart Inc. Forbes.censusscope.. pp. 1897-1919.United States Chapter’. Muise. The Atlantic Provinces in Confederation. C.1880-1920. M. Schlossberg. 1993. 21-36. p. Emmaus. Viewed June 2008. vol.. CensusScope. S. WV. S..html. pp. West Virginia History. 2003. Journal of the American Planning Association. J. Hensley (ed. Viewed June 2008. Lal.bol. Kechnie. Eagan..). (ed.. ‘West Virginia: Population by www. 45-59.. S. Eagan.. Hylton. A. A... No Place of Grace: Antimodernism and the Transformation of American Culture. Pennsylvania.. Painting the Landscape of Rural Nova Scotia.
Coastal Communities Network. 1880s-1920s’.Deborah Stiles
______________________________________________________________ Burt. Doyle. 1986.)’. Race’. October. 1990.org/us/s54/chart_race. 2003. ‘Modernity. M. ‘‘Women’s Work.. and D. 1994. University Of Chicago Press. University of Toronto/Acadiensis Press. ‘West Virginia Farm Women’s Clubs (1914. Ontario. Rural Communities Impacting Policy Project. Never Done’: West Virginia Farm Women. 1994.
1998. Appalachia’s Path to Dependency: Rethinking a Region’s Economic History 1730-1940. Neth. R.1995. Burt. Springfield. McGill-Queen's University Press. Praeger.wvu. L. L. Nolan and J.. 13. and the transformation of agriculture in the West Virginia Back counties. Mitchinson. M. P. in Changing Patterns: Women in Canada (2nd ed. 3-15. McClelland & Stewart. Viewed June 2008. Environmental Health Perspectives. McKay. ‘Historians. vol. A698. in Rural and Appalachian Health. The Quest of the Folk: Antimodernism and Cultural Selection in Twentieth-Century Nova Scotia. and W. 1994.).. 1900-1940. 1994. Anthropology. IL. Obermiller. University of North Carolina Press.rri. Philiber (eds.180
From Margins to Margins
______________________________________________________________ Lewis. I. Salstrom. Westport CT. Code and L. L. Baltimore. West Virginia University. Schwartz (eds. and the Concept of Culture’. 111.). Morgantown WV. no. 1880-1920’. Montreal and Kingston..PDF. Labour/Le Travailleur. L. Thomas. J.185-241. 1973. D. pp. N. Preserving the Family Farm: Women. and Social Change in West Virginia... H. and the Foundations of Agribusiness in the Midwest. deforestation. pp. 2003. Lexington. 8/9. Chapel Hill. L.A. Community. W. Looff. vol. 1993.. P.ehponline. The University Press of Kentucky. Lewis. Johns Hopkins Press. 1880-1920.). Deforestation.. I. R. W. ‘NIEHS Fights Fat’. ‘Rural Appalachians and Their Attitudes Toward Health’. www.org/docs/2003/11113/EHP111pa696PDF. pp. Transforming the Appalachian Countryside: Railroads. 1994.391-421. Charles C. R.edu/pdffiles/wp9402. Viewed June 2008. www.
. S. p.. Toronto..pdf. Appalachia in an International Context. ‘Railroads.). 1981. Dorney (eds. McKay. ‘The Medical Treatment of Women’.
______________________________________________________________ Samson, D. (ed.), Contested Countryside: Rural Workers and Modern Society in Atlantic Canada, 1800-1950. Acadiensis Press, Fredericton, New Brunswick, 1994. Sydney Tar Ponds Agency, Homepage. www.tarpondscleanup.ca. Viewed June 2008. Thornton, P. A., ‘The Problem of Out-Migration from Atlantic Canada, 1871-1921: A New Look’, in The Acadiensis Reader: Volume Two, Atlantic Canada After Confederation (2nd ed.). P. A. Buckner and D. Frank (eds.), Acadiensis Press, Fredericton, 1988, pp. 34-65. University of Ontario, Guelph, ‘American Chestnut in Nova Scotia’. www.uoguelph.ca/~chestnut/novascotia.htm. Viewed June 2008. Wakefield, J. (2004). Fighting Obesity through the Built Environment. Environmental Health Perspectives [serial on the Internet]. 112(11):A616A618. Available from: Academic Search Premier. Weinert, C., and Burman, M. E., ‘Rural Health and Health-seeking Behaviors’. Annual Review of Nursing Research, vol. 12, 1994, pp. 65-92. Williams, J.A., Appalachia: A History, University of North Carolina Press, Chapel Hill, 2002. Williams, J.A., West Virginia: A History, West Virginia University, Morgantown, 2001. Williams, K. J., Taylor, C.A., Wolf, K.N., Lawson, R.F. and Crespo, R., ‘Cultural Perceptions of Healthy Weight in Rural Appalachian Youth’, Rural and Remote Health, vol. 8, 2008, www.rrh.org.au. Viewed June 2008. Deborah Stiles, Associate Professor, Humanities, at the Nova Scotia Agricultural College, is a poet and historian.
Relevance of Labelling Localised Products in Southern Countries: A Case Study of Dried Shellfish in Saloum Delta Biosphere Reserve (Senegal) Omar Sarr
Abstract How to conserve a shellfish resource, traditional know-how and a profitable hand processing methods in Southern countries? To resolve such a difficult equation, a legal innovation can be proposed: labelling of products. This approach has been developed with success in Europe (for example, in France, ‘moules de bouchot’ or ‘huître de Marennes d’Oléron’). We question the suitability of those frameworks for southern countries through the example of Saloum delta (Senegal). Dried shellfish (cymbium, pagne, murex and oysters) are handcrafted products coming from a mangrove ecosystem. Most of the product is sold in the national market. In this study, we explore relevance of the initiative. Is labellisation economically rational? Is labellisation environmentally friendly? Is labellisation effective in protecting traditional know-how? We have investigated producers and labelling initiatives conducted in Senegal to understand both the expectations and the difficulties involved in meeting them. We analyse the constraints of this operation. To this end, we make use of recent results from a research program (Biodivalloc), involving traditional transformation of Mangrove shellfish in Saloum delta (Senegal). With a cross economic and legal point of view, we address the problems related to the definition of quality and traceability norms, and we analyse the potential economic efficiency of labelling (with special attention to the problem of access to new markets, especially exportation), as well as its potential impact on conservation of biological and cultural diversity. Key Words: Labellisation, biodiversity conservation, economic efficiency, traditional know-how, quality, traceability, Mangrove shellfish, Saloum delta. ***** 1. Introduction The state of the environment and renewable resources is an issue of concern all over the world. Many alternatives have been explored to ensure better use, through promotion of sustainable use, based on a compromise between, on the one hand conservation, and on the other hand socioeconomic and cultural development objectives. Realisation of such a compromise seems difficult for developing countries whose priorities are
184 Relevance of Labelling Localised Products in Southern Countries ______________________________________________________________ related to socio-economic development and alleviation of poverty as acknowledged by the international community.1 However, ‘a great number of local communities and indigenous populations depend both strictly and traditionally on biological resources on which their traditions are based…’.2 Are there any instruments capable to link those priority objectives of developing countries and the objectives of their biodiversity conservation? This question has been raised in the field of a programme entitled Biobivalloc,3 in the framework of which this study has been led. That programme takes place in Southern countries, some of which have defined policies aimed at enhancing the value of localised products through a socioeconomic development and biodiversity conservation perspective (biological diversity and cultural diversity). Those policies are generally based on the use of labelling tools. Such tools have been successfully tried in industrialised countries. Few labelling dispositions include halieutic products. However, some examples can be cited from the mussel-breeding and oyster-farming industry in France: ‘moules de Bouchot’ and ‘huître de Marennes d’Oléron’. At the international level, the Marine Stewardship Council labelled products from fisheries. Are those Northern models transferable to the South? The purpose of this contribution is to find an answer to all these questions on the basis of research we have conducted in Saloum Delta (Senegal). We are interested in the mangrove ecosystem products, which are characteristic of the area, shellfish in particular. The local communities ‘Niominka’ and ‘Soce’, supported by external partners, are attempting some moves for the labelling of hand-processed shellfishes. We will analyse the relevance of such moves. Beforehand, we will present the area of study (Saloum delta) as well as the ecological, institutional, legal, socio-economic and political context in which those moves take place. 2. Context Saloum delta hosts a national park created in 1976 and declared biosphere reserve by UNESCO in 1980. It covers 1930.5 square miles4 among which 293.436 square miles (15 per cent) represents the national park (see Map). Its population was estimated at 610,500 persons in 19975 with a demographic growth rate of 2.8 per cent. The population living out of the park is estimated at 120,000 persons, which corresponds to a density of 158 inhabitants per square meter. In total, 114 villages have been listed in Saloum delta. The indigenous population is composed of two major communities: the ‘Serer-Niominka’ and the ‘Soce’. However, Saloum delta has received foreign-born communities from other regions of Senegal or other neighbouring countries like Mali and Guinea. Fishing and mangrove product exploitation are the major economic activities, agriculture having much receded because of the effects of the drought that has been rife in the Sahel
______________________________________________________________ since the 1970s. However, tourism, wild fruits harvest, gardening and trade are extra sources of revenue for the populations. Fig.1. Map of Saloum Delta
Limit of the Saloum Delta Biosphere Reserve Approximate limit between the buffer zone and the transition area Limit of the Saloum Delta National Park (core area) Privatized area of Fathala forest in 1999 Push of the coastal tourism infrastructure Tourist encampment Mangrove
Other nonbiological resources associated with mangroves are also exploited. socio-cultural. This is even true for the populations of the rest of the country. They are particularly appreciated by Saloum delta populations. we have listed 21 different recipes based on shell served in these restaurants. strengthening and entertaining the family
. That link is expressed through ‘presents’ composed of shells sent from the village to the city. and the increase in demand from the foreign (European) market on the other. because of the scarcity of fish due to overexploitation. which are also involved in the labelling moves. Within the frame of the enquiry we have conducted throughout restaurants in Dakar. economic. This assists in maintaining. This reality might well change soon for. The same recipes are also well known in Senegalese households. shrimps and shells. Fishing is mainly a man’s activity whereas shell harvesting is reserved for women. and with the lack of alternatives. Thus. shells hold an important place in Saloum delta for the populations from nutritional. but not discussed here. in terms of decentralisation. gives competences to the local communities as far as natural resources and environment protection are concerned. of commercialisation and of consumption. hence the nickname of ‘shell eater’. These products are used either as basic food or as ingredients for the cooking of many local recipes. especially between those who stay in the village and those living in the city. shells are one of the most important sources of animal protein for the local populations. particularly over these last years marked by food shortage due to the scarcity of cereals such as rice and millet. Shells also hold an important place in the social system of Saloum islands at all stages of production (from collection to hand processing). political and institutional perspectives. in Saloum delta. the demand for processed shells as substitute for fish and cereals has much increased at the local market. which are the traditional basic foods. For example. the legislation environment. men are more and more taking an interest in shell harvesting. young fish have become very rare due to overexploitation on the one hand. The biological resources are essentially fish. At institutional level.186 Relevance of Labelling Localised Products in Southern Countries ______________________________________________________________ From an ecological point of view. In fact. the halieutic resources management system operates as if in a situation of free access despite its status as a protected area.6 The fisheries are not part of the transferred competences. they constitute a strong link between members of a family. In addition. but some moves that have been undertaken to enhance the value of shell in Saloum delta are included. However. That is the case of mangrove salt and honey. trade. Besides. Saloum delta is an estuary area characterised by a mangrove ecosystem which hosts a diversity of biological resources on which the survival of local populations depends. It grants the rural communities the possibility to put in place frames of dialogue and to design local projects and systems of action for natural resource management and environment protection.
The national demand of. ‘Touffa Betenty’. compared to 11 per cent for the weekly markets. In addition. but also in weekly markets including rural ones. The final consumers (households. shells have very important cultural and ritual functions. the results of the inquiry we have conducted in Saloum delta indicate that shell harvesting and processing represents the major activity of nearly 92 per cent of women of Saloum delta in terms of time allotted to that activity (table 1). The results of
. for example. It represents the major source of income for nearly 76 per cent of those women and the sole source of income for nearly 7 per cent of them (table 2). However. some of them representing former kings’ tombstones. especially those of big cities such as Dakar and Kaoloack. However. From an economic point of view. ‘Niominka Yeet’. 69 per cent of women are also involved in agriculture. They are at the centre of the cultural and ritual events and are the subjects of several myths and beliefs. ‘Pagne Dionewar’.Omar Sarr
______________________________________________________________ bonds often put to test by the phenomenon of rural exodus or immigration which obliges especially young girls and boys to be distant from family.
Photo 1: Processed shellfish (mangrove oyster) of Saloum delta Processed shellfish of Saloum delta (Photo 1) are highly appreciated in the urban markets. Many kjokkenmodding (old shellfish piles) have been found in the region. restaurants) buy in directly from these markets. in addition to shells harvesting and processing. The urban markets represent the main markets for up to 22 per cent of the female producers. is very high. more than 55 per cent of female producers sell their products on the spot to intermediaries (table 3). 47 per cent in trade and 38 per cent in processing of halieutic products other than shells (table 1).
it ranks first as the preferred origin for ‘pagnes’ and ‘Touffa’ (table 4).5 Preferred origin for ‘yeet’ 35. Table 1: Women’s major economic activities in Saloum delta Major activity Nbr.8 Sales on urban markets 16 21.8 Total Remarks 74 100 Table 4: Origins of shells preferred by restaurant managers Preference based on the Casamance Saloum Joal+Fadiouth species delta Preferred origin for all species 39 35.5 15 Preferred origin for ‘touffa’ 35. for all species of shells.188 Relevance of Labelling Localised Products in Southern Countries ______________________________________________________________ the inquiry we have conducted with restaurant managers reveal that 43 per cent of them have a preference about the origin of the products they buy.4 No answers 8 10.5 No answers 3 4 Total Remarks 74 100 Table 3: The different shell markets of Saloum delta Major markets Nbr of Quotes Frequency (%) Sales on the spot 41 55. behind Casamance.9
. However. Sine Saloum is preferred by 35.8 Major source of income 56 75.5 23.3 per cent of restaurant managers and ranks second among preferred origins.4 Total Remarks 74 100 Table 2: Place of shells collection in Saloum delta women’s incomes Importance of collection Nbr of Quotes Frequency (%) Sole source of income 5 6.6 41.2 23.3 41.8 39.6 Export 1 1.5 36.7 Important source of income 9 12 Marginal source of income 1 1.3 25. Quotes Frequency (%) Shell collection and 68 91.7 Preferred origin for oysters 48.9 processing Agriculture 5 6.7 of shell Preferred origin for ‘pagnes’ 36.4 Sales on weekly markets 8 10.5 22.8 Trade 1 1.
______________________________________________________________ Shells are at the centre of the political and institutional system in relation to natural resources management in Saloum delta. has defined three main public policies which officially support the moves for Saloum delta shell labelling. The State’s role is pushed into the background. generally enter the framework of international conventions related to the same field. including FENAGIE11 and its local entities (FELOGIE12). unlike NGOs whose influence on local authorities (local representative.
.7 Shell Labelling in Saloum Delta Moves for labelling Saloum Delta shells are undertaken in the field of projects implemented either by NGOs (for example. packaging and traceability. The first one is related to poverty reducing policy as defined in the Poverty Reducing Strategy Document (DSRP). supported by other international partners including the World Bank. the Senegalese State. the WTO. opinion leaders…) as well as on the State’s institutions. These. The intervention of these NGOs very often aims at establishing standard systems of principles and practices regardless of their adaptability to the local context. some institutions of the United Nations (FAO. Other moves have been initiated by producers’ organisations. CNUCED. However. which expects an increase of the fishing contribution to economic growth. as far as natural resources and environment management are concerned. the intervention of the NGOs fits within the frame of public policies defined by the State. ‘Femmes et Coquillages’ project of PRCM8). Those moves aim to promote both intrinsic and extrinsic quality of products resulting from hand processing of the following species: Cockles (Anadara senelis) locally called ‘Pagne’ (Photo 2). UNDP) and the NGOs. traditional authorities. 3. which is characterised by a multiplicity of actors and complexity of actors’ ways. UNEP. is becoming more and more important.g. or within bilateral co-operation between Senegal and other countries (e. The second one concerns the Accelerated Growth Strategy (SCA). The third policy is that of fishing which aims at sustainable development of halieutic sector. product transformation process. the egg plant (Pugilina morio). and finally the volutes (Cymbium spp) or ‘Yeet’. The purpose of that policy is to strengthen the halieutic sector’s role in the fight against poverty. The following four features characterize these moves: resource management measures. The IMF. Thus. and murex (Murex spp) called ‘Touffa’.: PAGEMAS9 project of JICA10). the mangrove oyster (Crassostrea gasar) or ‘Yokhos’ (Photo 3).
establish their own management measures termed local conventions. The ultimate goal is to reach normalised quality level in order to help product get access to the upper class in Dakar. Additionally. Resource management sustainability systems. emphasis is laid on the promotion of responsible harvesting practices as well as on measures capable of ensuring the conservation of resources and related ecosystems. On this basis. They are texts that bear legal form. Apart from these hygienic and health measures. but it generally indicates the type of product.190 Relevance of Labelling Localised Products in Southern Countries ______________________________________________________________
Photo 2: Cockles (Anadara senelis)
Photo 3: Mangrove oyster shelling
As far as management is concerned. establishment of ‘biological rest’. for product traceability. Measures related to a transformation process aim at improving the healthiness of products and achieving hygienic and sanitary quality norms. the origin. The information delivered on the label varies. They deal with natural resources and environment management at the local level. with the support of NGOs. the weight and price (Photo 4).
. the local populations. a packaging system is implemented to ensure better protection and conservation of products. alternating exploitation or harvesting of fishing sites etc. supposedly elaborated through participative approach. Recommended measures within the scopes of these conventions generally dealt with the creation of communal marine reserves. as well as hygienic and sanitary processing is also often mentioned. a marking system is used. including plastic sachets and glass boxes. On this basis. Many types of packaging are used. new procedures including several stages of bleach cleaning and washing and burning are adopted.
people are beginning to change their relationship with environment with a tendency to return to the local traditional naturalist practices and know-how. However. requirements (norms and constraints). actions undertaken to sensitise the populations about environment conservation remain positive. Traditions and know-how have long been ignored and considered as an impediment to progress. as we have 4. innovations and practices which embody traditional life styles presenting some interest for sustainable conservation and use of biological diversity and favouring thereby a large scale application…’ Some of these practices are based on sacralization of nature with very similar aspects between biological diversity and cultural diversity. with the exception of national legislation dispositions. resulting from the initiative. whereas the elaboration of local conventions.Omar Sarr
Photo 4: Examples of label used in Saloum Delta Relevance and Effectiveness of Shell Labelling The relevance of shell labelling in Saloum Delta is analysed with regard with the simultaneous capacity of this initiative to promote local development and biodiversity conservation. the legitimacy and legality of local conventions are often reconsidered in the maritime field with regard to national law corresponding to halieutic resource management.14 Today they are not only taken into account. preserve and keep ‘indigenous and local knowledge. they are also considered to be useful for conserving biodiversity. In many villages of the Saloum delta.15 Article 8j of the Convention on Biological Diversity (CDB) stipulates that each party of the convention must. Their implementation arouses a few concerns. Local communities with their traditional and local ecological knowledge are increasingly recognised as constituting a heritage to be preserved. In fact. For biological diversity conservation. including biological and cultural diversity. halieutic resource management falls within the competence of the State.
. the management measures implemented in respect of local conventions seem relevant.13 The question is to study real or potential impacts on the global system. respect. Furthermore.
the colour and consistency of the processed product (which depends on the transformation and storage techniques) and. a too short drying time.17 Producing quality shells becomes thus part of a traditional knowhow. which underlies the quality normalisation. rotted and mouldy shellfish. since most households. Their production costs are also more expensive.3 per cent state that the weight of their usual purchases is far above the minimal package weight. Besides. In fact. These products are promoted only at the time of the International Fair in Dakar and are not well known or sought after. their commercial achievement is very narrow at the local and national scale. Poor quality is due to insufficient cooking. the other half of consumers think that packaging enables the product to keep longer and guarantees healthiness. few women are involved in the moves and they only yield a day contribution per week. 63 per cent of them think that it is useless. Conversely. they are sold on an irregular basis to well-off urban middle. Generally. The populations of villages which are not directly covered by the NGOs are generally excluded. As for the processing of products. which might be threatened by the introduction of new types of products. are illiterate. Thus. devoting the other days to traditional products. In addition. or bad storage. Hygiene and sanitary norms promoted within the labelling moves are also not the most important deciding factors in the Senegalese consumers’ choice of shells.16 According to women producers. However. In fact. the involvement of the population in the development of conventions and their implementation is unequal. broken and flaking fish.and upper-class customers. which are the main customers. does not hold well with traditional know-how enhancement. the quality of the product is judged first by appearance. The qualities they seek are the size of the individual shellfish. finally. the consumers’ opinion on the relevance of the labelling systems implemented within the scopes of the labelling moves is much mitigated. at the end of the working day when offices are closing. The consumers’ opinion on labelling is bolder. Signs of ‘poor quality’ are worms and other pests. The new products are slightly more expensive than the traditional products. the idea of homogenisation of practices. 50 per cent of consumers think that it is useless to package products because of two major reasons: 35. those who do not belong to a collaborating organisation do not feel involved.7 per cent think that they appreciate the product better by touching and 14. even though for the current projects production costs are heavily supported by NGOs. in the villages that are covered by the NGOs. In fact. the products resulting from the new approach are perceived as new products different from the traditional ones. The product must be sufficiently dry and well preserved. taste—which validates the three preceding criteria.192 Relevance of Labelling Localised Products in Southern Countries ______________________________________________________________ indicated above. then by touch. In
. strong odour of decomposition. has been an initiative of the NGOs. and finally by taste. Sales volumes are low. The local conventions are not recognised by law. Further.
The two main reasons they put forward are that they wish to earn more money to get out from poverty and vulnerability. Saloum delta is also a protected area.Omar Sarr
______________________________________________________________ addition. Indeed. However. even if they are sold in most of the big cities of Europe and North America as well. according to an inquiry we have conducted of the female producers 70 per cent of them state that they would not agree to reduce their collection pressure. products from shellfish labellisation initiatives do not satisfy the local demand exigencies and their production system does not allow their sale in large scale on the western market. even if their incomes increased considerably. they fear some ‘stowaway’ behaviour. Conclusion External actors such as NGOs. In such a context. creating a collective mark such as a ‘mark of park’ or ‘mark of biosphere reserve’ could be envisaged. they can contribute to preserve biological diversity even if the legality of local conventions is questioned. the increase of the producers’ incomes and cultural diversity conservation through the preservation of the local know-how. already have a great fame and reputation on the Senegalese market. a lot of regulation constraints restrict the sale of these products in the Northern countries’ markets. processed shells of Saloum delta. which work for environmental protection. including a typical socio-cultural organization. The specifications of such a mark would be mainly based on the preservation of the already considered local know-how and the implementing of effective and efficient tools of biodiversity conservation. practices recommended for shellfish labellisation systems facilitate exclusion and the abandonment of the traditional system based on a local know-how and a typical social organization. Thus. at present. among which are the improvement of market access for products. another way that could be investigated. have introduced shellfish labellisation initiatives in Saloum delta. whereas those moves are based on the principle that when they earn a better living the populations will reduce their pressure on the resource. From this point of view. from a socio-economic and cultural point of view.18 In addition. In addition. the current moves to enhance value do not allow expectations of substantial improvements of the populations’ incomes. 5. however.
. The population also showed availability to make commitment in the way of biodiversity conservation while aspiring to economic and social development. which expresses the will of the government and local authorities to insure the biodiversity conservation in this region. these initiatives do not seem to be able to reach their objectives. There is. Indeed. which is nevertheless targeted. They have the merit to mobilize the women around the stakes in resources and ecosystems conservation. This fame and reputation are notably connected to the local traditional know-how.
1996. pp. vol 1. 13 D. Pratiques. Gland. Anim. 15 M C Cormier-Salem and B Roussel. Plan de Gestion de la Réserve de Biosphère du delta du Saloum. pp. 2003.. INRA Prod. Barjolle and B Sylvander. Paris. Ressources et Institutions’. Elaboration et Mise en Oeuvre d’un Plan de Gestion Intégrée: La Réserve de Biosphère du Delta du Saloum. 2003. Preamble. 126-142. the implementation of shell labelling moves in Saloum delta fills in other public policies related to environment conservation especially in the framework of the Convention on Biodiversity. 11 Fédération Nationale des Groupements d’Intérêt Economique des Pêcheurs. L Bérard. 6 République du Sénégal. UICN. J Y Martin (ed). 8 Regional Program for Coastal and Marine Conservation in Western Africa. Governance. 16(4). Island Press..
. 7 Besides. 2 . Valuing Local Knowledge : Indigenous People and Intellectual Property Rights. 289-293. Territories. CNRS Edition. 2002. Loi n° 96-07 du 22 mars 1996 portant transfert de compétences aux régions. 12 Fédération Locale des Groupements d’Intérêt Economique des Pêcheurs. ‘Patrimoines et Savoirs Naturalistes Locaux. Paris. 9 Projet d’Appui au Renforcement de la Gestion Durable de la Mangrove du Saloum delta. 5 DPN (Direction des Parcs Nationaux du Sénégal). vol. in Promoting Local Specialities from Southern Countries. 1996. (s. and P Marchenay. aux communes et aux communautés rurales. ‘Etat des lieux’. 14 S B Brush and D Stabinsky (ed). CDB. IRD Editions. Sénégal. 16 O Sarr and M C Cormier-Salem. in Développement Durable? Doctrines. 10 Japan International Cooperation Agency. 2004. Les Produits de Terroir entre Cultures et Règlements. Washington. World Summit on Sustainable Development.). Johannesburg 26 August–4 September 2002. Suisse et Cambridge. modifiée par les lois n° 2002-15 du 15 avril 2002 et n° 2004-21 du 25 août 2004. Evaluations. Royaume-Uni.d. Originbased Products and Biodiversity : Heritage. 3 BIODIVALLOC is funded by the French National Research Agency biodiversity programme entitled: ‘From localised products to geographical indications: which tools to manage biodiversity in mega-biodiverse countries?’ 4 I M M Dia.194 Relevance of Labelling Localised Products in Southern Countries ______________________________________________________________
1 United Nations. ‘Shell’s Valorisation Policy in Saloum (Senegal)’. ‘Facteurs de Succès des Produits d’Origine Certifiée dans les Filières Agro-alimentaires en Europe : Marché.
Island Press. B. 2008) 18 E. Evaluations. France. I. M. 2001. Washington. Revenus du Producteur et Stratégies d’Exploitation: Application au Cas de la Pêche Artisanale’. Martin (ed). D. coll New Ecology of the Twenty-First Century. France. Ressources et Institutions’. Bérard. Addis-Abeba (Ethiopia). D. ‘Facteurs de Succès des Produits d’Origine Certifiée dans les Filières Agro-alimentaires en Europe : Marché. S. vol. CNRS Edition. 2003.Omar Sarr
______________________________________________________________ Contribution for the International Symposium. 2005. Royaume-Uni. 2004. Environmentality: Technologies of Government and the Making of Subjects. Paris. Paris. Thèse de doctorat en économie de l’agriculture et des ressources. 16(4). Cormier-Salem. and Stabinsky. Suisse et Cambridge. IRD Editions.. pp.
Agrawal. Duke University Press. Revenus du Producteur et Stratégies d’Exploitation: Application au Cas de la Pêche Artisanale’.
. 289-293. ‘Economie de la Valorisation. Ecole Nationale Supérieure Agronomique de Rennes.. Charles. (ed). 17 (Cormier-Salem et al. ‘Economie de la Valorisation. and Sylvander.. M. Gland. Y. M.). INRA Prod. Sénégal. C. 23-28 April 2007. 2003. Anim.. Les Produits de Terroir entre Cultures et Règlements.. ‘Patrimoines et Savoirs Naturalistes Locaux. Elaboration et Mise en Oeuvre d’un Plan de Gestion Intégrée: La Réserve de Biosphère du Delta du Saloum. A. DPN (Direction des Parcs Nationaux du Sénégal). J. Pratiques. UICN. CFEE/EPA/IRD/IDDRI. P. B.d. Thèse de doctorat en économie de l’agriculture et des ressources. B. Ecole Nationale Supérieure Agronomique de Rennes. ‘Etat des lieux’. Barjolle. London. 2002.. E. Charles. and Marchenay. in Développement Durable? Doctrines. Plan de Gestion de la Réserve de Biosphère du delta du Saloum. Dia. vol 1.. 1996. pp. L. Valuing Local Knowledge : Indigenous People and Intellectual Property Rights.. Brush. and Roussel. 126-142.. 2001. (s.
Originbased Products and Biodiversity : Heritage. Contribution for the International Symposium. CFEE/EPA/IRD/IDDRI. researcher at ‘Institut de Recherche pour le Développement’ (IRD. Loi n° 96-07 du 22 mars 1996 portant transfert de compétences aux régions. M. _____. Omar Sarr is an economist. Sénégal). He is in charge of the scientific secretariat and coordination of the Western African Littoral Team of Biodivalloc program. C.
. ‘Document de Stratégie pour la Croissance et la Réduction de la Pauvreté. 23-28 April 2007. 2006-2010. modifiée par les lois n° 2002-15 du 15 avril 2002 et n° 2004-21 du 25 août 2004. World Summit on Sustainable Development. Addis-Abeba (Ethiopia). O. ‘Shell’s Valorisation Policy in Saloum (Senegal)’. Sarr. Governance. aux communes et aux communautés rurales. Territories. United Nations. in Promoting Local Specialities from Southern Countries.196 Relevance of Labelling Localised Products in Southern Countries ______________________________________________________________ République du Sénégal. and Cormier-Salem. Johannesburg 26 August–4 September 2002..
violence. money proves its efficacy when the issue is the transfer of the responsibility for degradation to the most vulnerable classes and countries. one can observe the creation of conflict zones involving locals. State sectors and entrepreneurial segments. In Brazil. Key Words: Brazil. this paper focuses on conflicts. This process is evident in the policies for the expansion of electric power generation.1 Hence. Therefore. dams. far from producing a background of integration between the various regions of the globe. which aggravates the use of marginal economic areas and the expansion of the economic frontiers through territories occupied by family agriculture and ethnic minorities. so that the effects of the ecological crisis(es) most effectively reach certain sectors of the population of the southern hemisphere. men and women into commodified labour. wisdom into ignorance. tradition into burden. the effects of the transformation carried by the process of mundialization are shown mostly from the adoption of a conservative policy of economic adjustment. results not only in the ‘relocation’ of the productive activities and investments. Mundialization. which has leveraged both environment and social justice to the status of ‘impediment to development’2. Disvalue transmogrifies skills into lacks. the selective logic of capital reaches specific regions and social strata differently thus having a diverse distribution of the impacts and risks emerging from the productive activities. autonomy into dependency. ***** 1. the process of mundialization has resulted in an intensive exploitation of natural resources.Developmental Projects and Violence in Rural Brazil: The Case of Hydroelectric Dams Andréa Zhouri and Raquel Oliveira
Abstract In Brazil. at times violent. but also in the 'polarization of wealth'. Through the use of various political tools. developmental projects. therefore risking the
. involving local people and public policies which are market oriented. Based on research about the environmental licensing processes of hydroelectric dams in southeastern Brazil. Introduction Establishing economic value requires the disvaluing of all other forms of social existence. understood as a new configuration of the mechanisms of capital accumulation from the concurrent processes of decentralization of the productive operations and capital centralization. commons into resources.
Confrontational events between locals. the dams have already submerged 3.198
Developmental Projects and Violence in Rural Brazil
______________________________________________________________ crucial environmental advances obtained during the past three decades. who view the land as communal and family heritage defended by the collective memory and by the rules of resource use and sharing. southeastern Brazil. the belief of the Electric Sector. 494 hydroelectric plant projects are to be implemented until 2015. from a market perspective. where the different positions hold uneven forces. once 70.5% of its installed capacity comes from hydraulic sources. consequently bringing about large infrastructure projects. The ‘liberation of the market forces’. In this battlefield. This process is now evident in the policies of electric power generation expansion in Brazil. while the riverside dwellers fight against a non-human rationale that transforms them in objects of the ‘natural’ landscape making them invisible as social subjects and political actors with rights and wishes. as the investments from large multinational groups are expanding both with the
. therefore a valuable commodity. This condition tends to be aggravated with the privatization of the Brazilian electric sector. unsustainable social and environmental policies are perpetuated. Sustainable Development and Energy Policy: Hydroelectric Companies and the Paradigm of Adequacy For the economists attending the World Economy Forum. violence grows rapidly as the whole political apparatus is used to impose the economic interests that represent uneven and excluding development. selfnamed Global Leaders for Tomorrow Environment Task Force. demands the dissemination of a deregulation policy capable of removing the obstacles to the movements of the large private capital groups. public and private entrepreneurs who.3 However. view that land as property. Such an affirmation in the context of the Brazilian society can only contribute to the belief that the country has taken the right path to sustainable development. In fact. including the State. itself so typical of mundialization. 2. Based on extensive research about the processes involving the environmental licensing of hydroelectric dams in Minas Gerais. what we obtain is the systematic destitution of tools for environmental planning and decision. that of the riverside dwellers. In this context. this paper focus on the existing conflict experience and evaluates the processes triggered locally by the choice of developmental policy perpetuated by the Brazilian government during the process of capital mundialization. and on the other.4 million hectare of productive soil and dislocated more than one million people all over the country. In this context. State sectors and entrepreneurial segments are then multiplied. Two confronting rationalities are underlined: on the one hand. the level of hydroelectric power production of a country is an indicator of its environmental sustainability. a condition that reveals the fallacies of the now prevailing notion of sustainable development.
5 This sort of dynamics allows for the duplication and the expansion of the activities that indicate an intensive exploitation of natural resources in the so-called ‘developing countries’. In this sense. sugar cane and eucalypt trees) therefore gives rise to violent confrontation and various experiences concerning violation of human rights6. A similar situation occurred in the State of Espírito Santo. Around 60% of the aluminum produced in the country is aimed at exportation to large consumer markets. Billiton Metais (Reino Unido) and others. ALCOA Alumínio (EUA). under the command of the Federal Police. Against the organization of mobilized opposition groups. This new scenario. This policy.4% is exported as semi-finished products. A group of around 190 policemen was deployed to make sure that 14 families remaining in the villages would abide to the court order of eviction.4 These joint ventures. only perpetuates the insertion of the mundialization processes in Brazil from the specific spot occupied by the countries that export raw materials and supplies or semi-finished products with a high level of energetic consumption and low added value. is now being duplicated with the dissemination of new enterprises aimed at the self-supply of energy of organizations like ALCAN Alumínios Brasil (Canada). which resulted in the construction of large hydroelectric projects in the Amazon. while 11. the implementation of large industrial sceneries (hydroelectric plants.Andréa Zhouri and Raquel Oliveira
______________________________________________________________ acquisition of old state-run companies and with the creation of a number of joint ventures.
. the dwellers who refused to leave their old villages due to pending questions involving the negotiation process were forced to leave their homes under pressure as they were threatened by impressive police force. where the eviction process. partially including electrointensive industry companies. more than double their investments in the field of electricity generation to meet their own needs. one can observe the creation of conflict zones where the asymmetry of power that crisscross the relations between the segments under dispute yields violent processes of expropriation of the local population. Based on an extremely uneven field of power. some sectors of the State have many times responded to local demands and criticism with repressive action. which results from the relocation of aluminium plants around the world. which can be exemplified by the process of compulsory expropriation for the construction of the Candonga hydroelectric plant in Minas Gerais. resulted in the destruction of two Indian villages located in an area occupied by the Aracruz Celulose Company8. monocultures such as soy. A meaningful example of this is the production of aluminum primer in Brazil. The result of this dynamics is the aggravation of the use of marginal economic areas and the expansion of the economic boundaries of the market through territories historically occupied by family agriculture and ethnic minorities.7 In such case.
basically tend to produce energy for a specific sector of the industrial economy. In general. the project takes central stage. the adequacy paradigm operates within the instrumental economic rationality. the tensions created in this field of dispute have given rise to radical reactions from the social movements and local mobilizations9. Supported by the belief in the technological capacity to preview and reduce risks and effects. the sustainability paradigm discusses the production and consumption standards that claim for that construction. despite the inadequacy of the studies. It is in this context that we insert the construction of hydroelectric dams. Within the ‘adequacy paradigm’.13 Such episodes are unveiled within the realm of the adequacy paradigm. In fact. which.200
Developmental Projects and Violence in Rural Brazil
______________________________________________________________ Nevertheless. considering the potentiality of the environment where it is located and its relation with the use and meanings there attached to the territory. the sustainability paradigm demands an effective analysis of the socio-environmental feasibility of a project. in opposition to this model. the social interests and values involved in the construction and the actual beneficiaries.14 As a result. and
. as is the case of the aluminium sector. we understand that dams building have generated environmental injustice. which strongly believes in ‘ecological modernization’. in general. the legal restrictions and the opposition of the affected populations. We have called this prevailing model ‘environmental adequacy paradigm’ by opposition to a ‘sustainability paradigm’. Such an asymmetry in the social appropriation of nature generates a negative ecological distribution. Hence. In this sense. the environment is viewed as an externality. This is so because industrial projects designed within the context of developmental policy aimed at the economic growth and focused on exportation are concentrators of ‘environmental space’. the repression promoted by the companies creates violent confrontations and results in threats10. far opposed to a sustainability prospect. the ‘need’ and the socio-environmental feasibility of the construction are not offered for discussion. On the other hand. therefore generating social conflicts. therefore producing environmental conflicts as the use of an environmental space is made detrimental to the use that other social groups would make of their territory. a landscape that must be modified and adapted to comply with the objectives of the technical project. In this sense. 11 injuries12 and even reports of missing persons. 15 The decision-making process relies on the prevailing environmental paradigm. and is therefore unquestionable and merciless. In opposition to this model. According to this concept. mainly the electro-intensive industry. leaders and demonstrators being arrested. the projects are licensed. they constitute themselves as political actions in the realm of the economic logic ‘ascribing to the market the institutional capacity to solve the environmental degradation’ through the application of compensatory and mitigating measures.
the Valley has inspired messianic political initiatives and a long history of developmental projects taken as ‘redemptionist’. the economy of the region faced critical moments and prosperity. which reclaims and proclaims the construction of the sustainability paradigm. identified as ‘problem area’ or ‘poverty pocket’. Supported by policies of fiscal incentives and credit. with their partners. considered vacant land and offered to private companies by the State for
.Andréa Zhouri and Raquel Oliveira
______________________________________________________________ against the mere ‘ecological modernization’. since the 17th century the regions of the Upper and Middle Jequitinhonha Valley. the region is well known for its isolation and economic stagnation forged by State policies that prioritised the industrial modernization of the country within urban moulds. for example. Place Identity. the region felt the effects of three fronts of capital modernization: the expansion of cattle raising activities. By the middle of the 1940s and 1950s. Based primarily on agriculture. Since the 1970s a number of industrial proposals have been transforming the diverse landscapes of the ecosystems of the Cerrado. However. these fronts promoted meaningful changes in the distribution and access to the land. aggregates and captives fighting for territory against small family properties led by independent agricultural workers. technological and urban parameters. 3. have shown big cattle raising farms. was implemented in areas of tableland. In this condition. Territory and the Struggle for the Meaning of the
Launch pad for the Hunger Zero Project in 2003. and termed ‘Misery Valley’ by Minas Gerais politicians and public authorities. the introduction of coffee plantations and the implementation of reforestation companies. Among those involved in such movements we find the population of the Jequitinhonha Valley. In the 1960s and 1970s this scenario would even worsen as a consequence of governmental programs and interventions guided by a developmental view framed by industrial. the resistance movement. on the northeastern Minas Gerais state in Brazil. where the new competitive conditions proved difficult for the traditional regional products to sell. cattle raising and mining. despite its importance as a food producer and a supplier for other regions within the state. Within a general framework. Therefore. which results in making people and environment invisible and devaluated. the Jequitinhonha Valley stands as one of the poorest regions of the country. deep transformations were observed with the insertion of the regional economy in a broader capitalist market. which could only consolidate the image of poverty and misery already attached to the Valley. we may say that. get organized. Reforestation. Caatinga and Mata Atlântica with the development of single-crop farming (eucalyptus) and the construction of hydroelectric dams.
public and private entrepreneurs who. who lost large bits of land where they practiced collective extractivism and cattle raising . that of the riverside dwellers. has a similar impact on the region. against a technical report prepared by the Fundação Estadual de Meio Ambiente (FEAM). However. the lack of material conditions for the production of strategic commodities as well as the lack of symbolic natural attributes valued as being typical of the country marked the region as a
. for example. who re-elaborate identities and discourses in their fight for acknowledgment and defence of their territorial rights. the belief of the Electric Sector. The license for construction was issued in 2002. Both Murta and Irapé plants point out to new conflicts developing from resistance to attempts at deterritorialisation and reterritorilisation promoted by both the State and large corporations at the same time as spare attempts for reterritorialization aimed at keeping the land in the hands of the locals. on the same river. The Irapé Hydroelectric Plant. the Energy Company of Minas Gerais State.16 km2 in a region of unstable rain falls. with a reservoir covering 137. Irapé downstream.202
Developmental Projects and Violence in Rural Brazil
______________________________________________________________ exploitation. or 5. Such confronting projects reveal the two rationalities in dispute: on the one hand. We may say that the Jequitinhonha Valley has occupied a marginal position in the economic system of the country. the proposals for implementation of hydroelectric dams in the region are still sold as redemptionist. the State Environmental Agency. The plant affects seven municipalities and have dislocated approximately 1. including the State. Those policies persisted in the Valley until the 1980s. This program was aimed at disseminating dam construction projects. Therefore. to irrigate the land and generate energy. from a market perspective. those tableland areas had been traditionally meant for exploitation by local agricultural workers. and affects 900 families. despite facing fifteen years of opposition is already built on the Jequitinhonha river. The dam is 207 meters high. the construction of the Irapé dam. it is from the intertwining of the spaces through the power relationships that we understand such conflicts.124 families. Justified and legitimated by the image of stagnation and misery imposed on the Valley. has never attracted the same attention given to the Amazon and the Atlantic Forest. among those. as it does not present the material and symbolic conditions valued by the developmental and modernizing project. Caatinga and Cerrado. Its landscape. composed by biomes such as the Brazilian savannahs. when a new expansion front was launched with the ‘New Jequitinhonha Program’. which listed 47 social and environmental conditions not fulfilled by the Companhia Energética de Minas Gerais –CEMIG.000 people. the tallest in Brazil. therefore a valuable commodity. The Murta dam project. and on the other. view that land as property. In this context. who view the land as communal and family heritage defended by the collective memory and by the rules of resource use and sharing.
for whom the concepts of wealth and poverty differ from those who argue in favour of an industrial model aimed at the export market. The population of that region of Minas. 16 This excerpt is a good sample of a speech that mobilizes elements like patriotism and the loyalty of the population with the State government. this was the struggle for the right to the environmental space traditionally occupied. an offensive against environmental technicians who pointed the social and environmental unfeasibility of the project for the progress of the region. In the various cases that we analysed. the concept of territorial rights as proposed by the local communities. therefore justifying the implementation of economic projects. Despite our weakness. for example.Andréa Zhouri and Raquel Oliveira
______________________________________________________________ specific spot in the agenda of the State . and the redemptionist character of the plants. The implementation of the UHE Irapé. are prepared to react vigorously against this shameful lack of esteem and patriotism. God takes care of the people and keeps a door opened for us. as seen in this excerpt: We are approaching the eve of a huge social and political tragedy if the beginning of this redemptive plant is delayed once more. and on the other. vegetables and many other things you can find around here. our poverty. there is the open attestation of wealth
. in agreement with Governor Itamar Franco and Cemig.a space to be transformed to attain the objectives of the economic model in force in the country. we have an enormous amount of riches here: our access to rivers. Its title is equally meaningful: Guardians of Miser. Two opposing ideologies are put here: on the one hand the redemptionist development in the name of the Nation. Its various aspects put together create a picture of poverty. In this matter we have collected a number of statements by the locals ‘affected’ by the plants. for the material and symbolic appropriation of nature. displays a strong political support supplied by the traditional elites of Minas Gerais. mines. diamond. misery and stagnation. for the definition and acknowledgement of the meanings attached to the territory where wealth and poverty stand face to face. On the other hand. gold. The image of the Jequitinhonha Valley historically produced by governments and entrepreneurial sectors is impressive. revealed in their speeches published in the media. 17 We can observe that the meanings of weakness and poverty are connected to the acknowledgement of their destitution in relation to the industrial development. farming.
know nothing …nobody don’t want this.18 Worth noting is this view of the Valley as a Valley of Wealth as opposed to its stigmatisation by the prevailing concept of development. she raised her family everybody here in this place. this is a misery. Ma.(…) One of those days my boy talkin to me like that: ‘Ma.204
Developmental Projects and Violence in Rural Brazil
______________________________________________________________ connected to the environmental attributes of the place.. without possibility –this in Brasília without possibility to come back. is poor’. This attestation of weakness. right? Then it’s living there! Wealth in a place like that we do not expect of nobody. and everything she raise easy! Only this. maxixe. you see from Diamantina up and you sees what is misery. in that region combines placer panning and family agriculture. crucial for their survival and the keeping of their way of life. Ma. right? You see mine too. The position of the State is clearly stated in the final judgement of the Public Civil Action against the construction of the Irapé dam proposed by the Public Attorney’s Office. such as presented in the image of poverty promoted by the State.. Ma. right. the Judge argues that:
. just like the people of this area here. that Our Lady in Heavens. manioc. move to a place we have nothing there. (…)Like D. give to others. Then to move. everything here. Ma! You want to see. lady! Nobody sells. like us who is weak already. you speak that that people of Cemig also says this Valley here is the Valley of Misery… It is the Valley of Wealth. and she want finish her life here. no. it’s watermelon. that I lived long in the streets. but my childs is all grown! And they raised here. there’s no street market. if want speak like that ‘is poor. right? But it is also no misery. there’s people under canvas… That is the suffering of misery! Like me myself. Because we are weak. There’s people under overpasses. Now not here. don’t sell. they likes to speak that is no important. like that! It’s corn. here everybody…has pumpkin. You eat. andu [beans]. something saddest in the world. modernity and progress. this is sign of misery? So she raised her childs here. poverty and wealth are present in the statement of another dweller affected by the Irapé plant. everything we plant. In favour of the dam. which. there´s people under those bridge all. string beans. Maria. peanut. begging to come back…This is suffering. raise pig.
Manoel who has in that corner [of the street] who is my brother. Therefore. I: We is nine brothers. did the brothers take over separate parts of the Prachedes?
. as shown in statements obtained during interviews. On the contrary. the right of the collectivity to determine the destination of their territories. includes areas of collective and family use. in the face of the economic and expansionist objectives of the State. thought of as homogenous–it represents the sovereignty of the State. the effective construction of the plant will certainly bring environmental damages – which must be alleviated – inconveniences and dissatisfaction to some of the dwellers in the region. human and industrial resources in the region affected by the enterprise – well known by the public in general – contradicts the argument that the local communities would be subjected to damages from the construction. the territory is conceived as heritage. but we cannot say that such dissatisfaction is significant enough to threat the public interest. There’s this one here. while for the ideologies that view the State as guardian of the Nation – a global zing entity. the struggle of the communities affected by the plants embodies the rights to self-determination. The meaning of heritage poses a challenge to the legal system of the State. which must be alleviated–the risk of losing crucial environmental space and communal life escapes the understanding of the Judge. in the regions of the Upper and Middle Jequitinhonha Valley. known as ‘terra no bolo’ . that is.19 Based on the adequacy paradigm . There’s two sisters here: one widow and a single girl. in that first.. (.) Q: After your father’s death. What is evident is that those communities will very much benefit from their relocation. therefore a strategic resource.. where inheritance does not imply division of the land therefore keeping it undivided for family use. After all. there’s that one over there.Andréa Zhouri and Raquel Oliveira
______________________________________________________________ As with all enterprises of this dimension. as it claims not only the individual rights but also the acknowledgement of communal rights. or commodity embodied by the hegemonic developmental ideology. the take over of land and resources. For those communities affected by the hydroelectric enterprises of the Jequitinhonha Valley. And the others died already. the explicit lack of natural. and of the construction and confirmation of their own identity. near Fatinha. who is my brother. The social problems caused by the dam are seen as ‘dissatisfaction to some’ and is not enough to threat ‘the public interest’.environmental damages –.
Prachedes. Those 30 ha were purchase. Our lands are productive. as it involves subjects and collective rights as well as restrictions to regular sales transaction.. where we have our vegetable gardens. I do not sell to others out of the family. right? 21 In this sense we have observed that the sense of heritage goes beyond the hegemonic notion of property.. is it split? D: No. therefore.everybody works here. associate painfully working until late at night in São Paulo. Q: Does the land belong to the family? I: It belongs to the family. you can use. you pays tax. This pronominal category was emphasized in some of the statements produced during the Public Hearing about the Murta dam. right? And we buy [a piece of land] close to my father.work here. our lowlands. for example that we were together and…joining the strength increases.they works there…it’s painful too and they says: ‘no.. Our community are fifty families and all of them live independent.. pays documents [taxes]. keep and identify their territory. We. we do not want to be invaded by a dam.206
Developmental Projects and Violence in Rural Brazil
______________________________________________________________ I: For everybody. that São Paulo. which witnessed a clash between the communities affected by the project and the companies in charge of the construction. No. I sell only to you’. we do not need to run away from here because of a dam. you buy from me. five brother. 22
..any way. We cultivate everything. which portrays them as a community. I sell it only to you. everything you see there [agricultural products displayed by the dwellers during the Public Hearing about the UHE Murta] our land produces and we never needed a dam. it was mixed up. I lived four year within a big city. The day you can buys. The dynamics of territory defence becomes a unifying element for the group who then creates a discourse. In the struggle to keep their heritage. ‘us’. never divided. use.. It’s so that those who is in São Paulo. But each one has his own payroll.20 This subject is also present in other interviews: Q: And the inheritance of each son. the community promotes its own reconstruction as a collective sphere of existence supported by their effort to occupy. our rivers. And even kept the same name.
who are the youngest. the scenario that develops from the industrial
. grows a process of reconstruction and re-signification of the territory now presented as a place. we cultivate corn. because it raised us and is going to raise our kids and grandchildren. And us. 25
Developing along with the licensing process of hydroelectric enterprises. This is what we need. we are happy. I am forty-nine years old.24 Our great great grandparents. and emerge as a sphere of spatial belonging and construction of political and social identities. Territorial valuation and acceptance as communal and family asset is recurrent in the statements provided by those affected by the UHE Murta: We are not going to lower our heads. raised her children. capable of uniting the collectivities that acknowledge that space as a ‘common place’.Andréa Zhouri and Raquel Oliveira
______________________________________________________________ We don’t want this dam and we are sure that this lot of people here do not want it. The place is self-defined diacritically in relation to the territorial ideologies held by the Electric Sector (State. we raise pigs. the collective memory created and recreated through times is intensified and gains prominence reinventing the past. I don’t want the dam. we find processes of socio-political construction of the concept of place opposed to the meanings produced by the State and the entrepreneurial sectors. It is as place that the territory becomes important and vital to the communities. Apart from the notion of place. The local production becomes concrete in the construction of a new sense for the territory now transformed into place: a space filled with memory and history.23 The conflicts created by the appropriation and signification of the territory lead to the ‘emergence of the alterity’. we have to consider this land as our mother. My mother is ninety years old. In these contexts. because the best place in the world for us is here. never needed a dam and never heard of it. all of them lived together here at the Mutuca [local community] for a period of one hundred and thirty years. and lived quietly here without ever having to go anywhere. my father died at the age or seventy-three. this is what we are interested in. Here we have our plantation. entrepreneurs and consultants). As the group appears as a collective agent within the context of political dispute. we’ll stand and fight to stay in our place. beans. and never had to go anywhere else.
for example. besides the massive line of guards. thus losing whatever sense or significance to the groups. president. who blocked the entrance of the building and caused the demonstrators to confront them. having no real attachment with the location. the location is transformed into a space for transnational production. Mr. 4. Don’t put us to shame because nobody here deserves this.208
Developmental Projects and Violence in Rural Brazil
______________________________________________________________ projects only bears the social and environmental costs of the projects. a homogeneous context that could be reproduced in any other space. there are ladies older than sixty here. The Fight for Territory Appropriation and the Use of Violence In this battlefield. they would read the writing on those strips of cloth. processes of individual or collective identification cannot be found anymore. […] Nobody is taking anything from this company. Although the demonstration was meant to be peaceful. just like my friend Eduardo [FETAEMG] today. but merely solitude and similitude’. the non-compliance with the norms imposed by the environmental department concerning the relocation of the families affected by the construction of the dam. Therefore. 27 [. led those families to occupy the CEMIG headquarters in Belo Horizonte26. And. a true nonplace. not a single plastic
.. that is. He was pushed by a colonel who says he is police of I don’t-know-who. where the different positions hold uneven forces. I would like to remind you that if those cops was a bit humane.] Out here there are policemen wearing protective vests and carrying rifles. under great tension and after a round of negotiations. Look at those people here [talking to CEMIG President]. The demonstrators and their advisors then openly condemned the level of violence they had been submitted to during the demonstration: When CEMIG did all the work it did for our region I was threatened at home so much by a colonel. Angry. Through the flows of capital and technology demanded by those projects.. Are there outlaws here? There are newborns here. During the licensing process of the UHE Irapé. There are police cars there. In such contexts. the demonstrators demanded that the police be removed from the area before they started the meeting. the company requested the presence of a police squad. President. in reality. the families finally were allowed into the company headquarters while the police squad stayed in the area. ‘The space of the nonplace does not create individual identities or relationships. confrontation resulting in the use of repressive violent police force becomes common therefore promoting radical reactions from the locals.
we people have to treat the human well. On that International Day of Demonstrations against Dams.. various leaders of the mobilization movement or involved in the creation of the Commission of People Affected by the Murta Dam construction have decided to quit.Andréa Zhouri and Raquel Oliveira
______________________________________________________________ glass. Therefore. Ya is treating us people as animal. those actions included violent repression and imprisonment of leaders during the demonstrations held by the dwellers affected by the Jurumirim
. they beat me on the head [a shame to beat a grey-haired lady shouted the demonstrators in the audience]. both implicitly and explicitly. not bad. because I´m brave to work. but we are for the thing it’s our.] I never came here in Belo Horizonte and today I came because I want to know of my right. and against its historical action concerning the situation of the dwellers. such claims made by the locals concerning the observance of their rights have been neglected to this moment. Seems ya is treating us this way like dumb. [. We ain’t dumb no. that while operating within the prevailing view of ‘development’. 2005.. And when I come here. 28 When CEMIG comes to my place I offer them a glass of coffee. We are weak. the action of the electric sector companies in Brazil during the licensing processes has yielded not only the perpetuation or the exacerbation of social inequalities but also an increase in tension that promote violent confrontation.That is not the way we people do it. We observe. in the context of the hegemonic project of sustainability defined under the ‘adequacy paradigm’. We not depend on government to treat us no. ya look at my hand [showing his callous hands]. CEMIG was awarded the Prêmio Furnas Ouro Azul31 in the category ‘Utilities Company’ for the construction of the Irapé Hydroelectric Plant.29 However. I ain’t paying to leave. may yield reactions involving physical violence. CEMIG has been given a number of titles and awards as it is still considered a ‘sustainable company’: seven times has it been included in the Dow Jones Sustainability Index30 and twice has it been included in the corporate Sustainability Index of the São Paulo Stock Exchange (BOVESPA). Besides. seeking my rights. as shown in the actions of the military police and the Army during the demonstrations of March 14. despite the various instances of violation of deadlines and rules established in the Agreement. Such a scenario is recurrent in other areas of the country. It’s you that has to pay me. however. see?[…] We won’t start until you remove those policemen from out there. For fear that the threats and pressures imposed on them.
the repressive police action demanded by the companies seeks the violent annihilation of the local mobilization and resistance thus promoting extreme reactions from their victims. and the ‘preventive’ imprisonment of 06 agriculturists affected by the Campos Novos Dam. However. On the other hand. occurs through the meeting of the growing demand made by central economies for the exploitation of natural resources and/or exportation of low value-added half-finished products for high energy consumption. the market forces made explicit in the hegemonic discourse of the companies and of some State sectors urged the transformation of the space and its resources into mere commodity. in the mundialization system. environmental impacts and risks resulting from this type of capital organization. against a hegemonic discourse on development. however. ends up invariably in violent confrontation. Their exclusion in face of the licensing process. the incompatibility between those two confronting rationale yields actions and reactions marked for violence in contexts where fear. Jungle Cavalry Squad of the Brazilian Army at the Tucuruí Hydroelectric. belief in radical strategies to ensure their rights and demands plus the uncertainty concerning threats of compulsory dislocation prevail among the dwellers. Therefore. in the Minas Gerais State. In this sense. In this sense. The struggle between those two diverging viewpoints. the operation led by the 23rd. the ‘polarization of wealth’ is made pari passu the recurrence of the environmental injustice and the increase of the conflicts. of Brazil mainly. silence. in the State of Pará. This dynamics shows in the profile of the Brazilian development and indicates the aggravation of the inequalities concerning the distribution of economic advantages. Final Comments The specific way of insertion of the developing countries. together with the continuous silencing of the local forms of signifying the territory. therefore liable to private appropriation for the generation of wealth aimed at exportation. such forces face the local resistance and resignification movement made explicit in the discourse of the locals affected by the electric dams. the concept of environmental justice is intended to overcome that of economic
. to hinder mobilization in the area. lack of support. In this scenario. the invisibility of their claims in the context of the decision authorities and the feeling of abandonment that afflict the families yield unexpected reactions from the local resistance movements. The spread of hydroelectric projects in the Jequitinhonha Valley is typical of this context and display the local effects produced by the new configuration of the world capitalism and its implications for those areas.210
Developmental Projects and Violence in Rural Brazil
______________________________________________________________ Dam. 5. in the State of Santa Catarina.
In this speech during the ceremony of inauguration of a biodiesel plant in the State of Mato Grosso the President said: ‘During the months of November and December I will be devoting a lot of time examining the difficulties we’re having in dealing with issues related to environment. Available at <www. but offers for discussion the acknowledgement of the distinct cultural meanings attached to the territory. quilombolas.br>. Public Prosecution Service.A. Indians and the Audit Court to design a package …’(Sources: Agência Carta Maior and Ambiente Brasil).aneel. their investments include the acquisition of old state-run electric companies such as CEMIG and ELETROPAULO. In Brazil.gov.. Brazil. therefore being connected to the principles of diversity and democracy. or resource commensurability.Andréa Zhouri and Raquel Oliveira
______________________________________________________________ rationality. the conflict created by the implementation of hydroelectric plants is an example of the struggle for environmental justice. thus introducing a sense of justice that does not comprehend the equal distribution of parts alone. and the AES Tietê S. or even equivalence of needs.
This text results from research performed between 2002 and 2006 in the rural communities affected by the hydroelectric dams built within the area covered by the environmental license issued by the Minas Gerais State. 2 President Luis Inácio Lula da Silva declared in November 2006 that the first priority of the Brazilian Government has been to reach an annual economic growth of 5%. In this perspective. The Decree establishes the beginning of the process of privatization of the electric sector and allows the electricity produced by a hydroelectric plant to be used for (a) public distribution
. 4 A sample case is the one of the North American group AES (Allied Energy Systems Corporation). and exposes the dispute around the social reappropriation of nature in search of acknowledgment of alternative social and productive projects. and the creation of joint ventures with direct investments in the construction of new hydroelectric plants.FAPEMIG and CNPq – during that period. We thank the support of the research agencies . The notion of equity does not concern monetary valuation.. as is the case of the AES Minas PCH Ltd. including the various meanings attached to wealth and development. 3 Data supplied by the National Electric Power Agency (ANEEL). 5 Governmental Decree 2655/1998 regulates the wholesale market of electricity and establishes the rules for the organization of the national operator of the electric system.. the latter being the ninth largest group of installed capacity in the country.
7 Dam built on the Rio Doce river. 10 ‘Dweller affected by the construction of the Candonga Hydroelectric plant confirms he has been threatened’. On 09/09/2004.cimi.’ (Source: Catholic Indian Mission Council – 01/20/2006 – Available at <www. in the Minas Gerais State. 11 Refer to ‘Arrests and violence against population affected by dam constructions’. Minas Gerais. Two women were pregnant’ Bulletin distributed by the Land Pastoral Commission (CPT-MG) on 03/08/2005. (Source: Boletim do Movimento dos Atingidos por Barragens).br>) 9 For more details refer to ‘People affected by the UHE Fumaça and UHE Candonga demonstrate against company’ and ‘Vale do Rio Doce and Alcan Irresponsibility and Non-compliance with the Law force people affected [by dam construction] to take serious action. abril de 2004.org. a campaign promoted by the Movement of People Affected by Dams in March 2005. 8 ‘Surprise eviction promoted by the Federal Police destroys two villages and leaves nine people injured in Aracruz. 6 The public hearing organized by DHESC – Human. Refer to Barros & Sylvestre (2004). 12 ‘Military Police violence against 6 women affected by dam construction on the International Women’s Day. 2004 brought about several instances of human rights violation to the environment in a number of areas of the Minas Gerais State. granted the commercialization of the energy exceeding. Minas Gerais State. by the Candonga Consortium aimed at generating electricity exclusively to meet the demands of the companies involved in the Consortium: ALCAN Alumínios do Brasil and Companhia Vale do Rio Doce. 13 The Movement of People Affected by the Construction of Dams (Ponte Nova Section) and the Land Pastoral Commission (Campo das Vertentes Section) have reported that João Caetano dos Santos disappeared on February 09. (b) free trading or exclusive consumption in business and industrial installations belonging to the generator.in the city of Rio Casca. Boletim MAB. September 2004. Cultural.212
Developmental Projects and Violence in Rural Brazil
______________________________________________________________ services. Minas Gerais State. 2003 in the construction site of the Candonga Hydroelectric plant located between the municipalities of Santa Cruz do Escalvado and Rio Doce. a letter prepared by the Movement of People Affected by Dams on 03/13/2005.’ In Boletim MAB.
. Also refer to ‘ENERCAM Consortium determines arrest of agriculturists affected by the construction of the Campos Novos Dam’. around 250 people affected by the construction of the Fumaça and Candonga Hydroelectric plants occupied the yard of the Alcan Alumínios do Brasil in Ouro Preto.at the Minas Gerais State House of Representatives on August 6. Social and Economic Rights Platform .
Laschefski & Paiva (2005). L. on 10/15/2002 – emphasis ours 18 Statement collected by Ana Flávia Santos.org.. during the Public Hearing. steel.. S. cellulose among others). 17 Statement by a dweller affected by the UHE Murta during a Public Hearing. affected by the UHE Murta. affected by the UHE Murta. According to Bermann (2003). 250 people affected by the dam together with their advisors were involved in the occupation (NGO Campo Vale –
. 23 Statement produced by Mrs.Andréa Zhouri and Raquel Oliveira
______________________________________________________________ Refer to < www. paper. ferroalloy. as well as Carneiro (2005). 26 This action took place on 02/04/2004 after a number of time extensions given by the Environmental Policy Council to CEMIG for a satisfactory conclusion of the relocation. To this moment (January 2007). in the Prachedes community. D. the electricity incorporated into those products represents 7. during the Public Hearing. on 10/15/2002 24 Statement produced by Mr. p. The subject is a local woman. Êmphasis ours. dweller affected by the UHE Murta. President of the Academy of Letters of Minas Gerais. that technical report has not been voted. Such a report was included in the voting docket of the COPAM – Conselho Estadual de Política Ambiental – State Council of Environmental Policy – meeting in February 2004.global... José Carlos Carvalho. on 04/25/02. 10. I. but was immediately removed following a decision of the State Secretary for Environment. affected by the UHE Murta 22 Statement produced by Mrs.8% of the total consumption in the country (base year : 2000). Emphasis ours 20 Interview with Mrs.. M. 15 A technical report supplied by FEAM – Minas Gerais State Environmental Foundation – which recommends the rejection and filing of the UHE Murta licensing process for insufficiency of information. anthropologist of the Federal Public Attorney’s Office.html>. dweller affected by the UHE Murta 25 Statement produced by Mrs. in the Mutuca de Cima community. M. For more on the relationship between COPAM/FEAM. on 10/15/2002. without any justification. J. and for non compliance with the formal duration of the process. Municipality of Coronel Murta/MG 21 Interview with Mr. There is an increasing demand for energy made by the electro-intensive sectors (aluminum. affected by the construction of the Irapé dam in 2002 – emphasis ours 19 Document issued by the Judge of the 21st Civil Court/MG. in 2002. published in the newspaper Estado de Minas. 16 Speech delivered by Murilo Badaró. refer to Zhouri. a few days before approval of the license for installation of the UHE Irapé.br/portuguese/arquivos/joaocaetano..
H. attorney for Campo Vale. institutional partners (FETAEMG – Minas Gerais State Agriculturists Federation.. Verso. Commission of People Affected by Dams .. Acselrad. communities. Relume-Dumará. In.com. 02/04/2004 – Statement collected by Zucarelli . H. 28 Richarles Caetano Rios. (Source: <www. J. Justiça Ambiental: ação coletiva e estratégias argumentativas. CPT – Land Pastoral Commission.214
Developmental Projects and Violence in Rural Brazil
______________________________________________________________ Advising Center for the People’s Movement of the Jequitinhonha Valley). S. 30 The Dow Jones Sustainability Index intends to identify those companies that display ‘acknowledgeable corporate sustainability. Revised Ed. Relume-Dumará. et Herculano. 2006.Eloy Ferreira da Silva Data Center.br)
Acselrad. Rio de Janeiro. 2004. 2006. Imagined Communities. Maria.. London. governments. H. the newspapers: Estado de Minas. Padua. citizens and students’. GESTA/UFMG – Environmental Issues Study Group of the Federal University of Minas Gerais.A. B. SINDIELETRO . affected by the Irapé dam – Statement collected by Zucarelli – Refer to Zucarelli. 29 D. Correio Braziliense and Jornal do Comercio.cemig. capable of creating value for their shareholders in the long term. (Source:<www. Acselrad.. CEDEFES . Anderson.Minas Gerais Electric Sector Workers Inter-municipal Union) Refer to Zucarelli (2006 27 Zé Francisco. environmental and social factors. which must integrate their environmental and social operation as a means to keep sustainability’. 02/04/2004 – Statement collected by Zucarelli – Refer to Zucarelli. 2006. as those companies seize the opportunities and manage the risks associated to economic. The selection considers not only the financial performance of the companies but mainly their quality and the continuous management improvement. who lives by the Jequitinhonha River. 31 The award is sponsored by Furnas Centrais Elétricas (Furnas Hydroelectric Company). to ‘prize the best projects of preservation and rational sustainable use of the water by companies.cemig. 2004. Justiça Ambiental e Cidadania.community of São Miguel.br>). Conflitos Ambientais no Brasil.Refer to Zucarelli.com. Reflections on the Origins and Spread of Nationalism. 1991
. Rio de Janeiro.
Gramado. C.. Campinas. Fernando (Trad. M. Antropologia Da
Barros. Mais Além da Cultura: espaço. 2000 pp.. In: Arantes. A. Audiências Públicas. Territórios Sociais e Povos Tradicionais no Brasil: por uma antropologia territorialidade. Little. F. P. 1990.. 30-49. 2003.
. O Poder Simbólico.unicamp. 1999. 2003. São Paulo. A. Ponte Nova: MAB. Rio de Janeiro.Não-Lugares: Introdução a Uma Supermodernidade Papirus Editora. S. (Trad. participação social e conflitos ambientais nos empreendimentos hidroelétricos: os casos de Tijuco Alto e Irapé. A Mundialização do Capital. F. Minas Gerais. 2004 Bermann. C. P. C. J. ‘Ecologia’ e Condições Físicas da Reprodução Social: alguns fios condutores marxistas. Bourdieu.) São Paulo: Xamã. Centro de Estudos Marxistas. trabalho. Vértice. et Ferguson. Rio de Janeiro. In. Simpósio Natureza e Sociedade: desafios epistemológicos e metodológicos para a antropologia. Rio Grande do Sul . .Brasil.16. FOÁ. Chesnais. Gupta. USP/FFLCH. Halbwachs. ambiente e migrações no Alto Jequitinhonha. 23ª Reunião Brasileira de Antropologia.br/cemarx/criticamarxista. A Memória Coletiva. 2002. Campinas. nº. Campinas. São Paulo. Livraria da Física/FASE. F. TOMAZ.) Bertrand Brasil. M. Chesnais. Energia no Brasil: Para Quê? Para Quem? Crise e Alternativas Para um País Sustentável. F.> Galizoni. São Paulo. Disponível em <www. Instituto de Pesquisa e Planejamento Urbano e Regional (IPPUR/UFRJ). & Sylvestre. & Ser. J. (dir. F. 2002. N.Andréa Zhouri and Raquel Oliveira
______________________________________________________________ Auge. 1996. Papirus. M.) O Espaço da Diferença.. In. Rio de Janeiro: Justiça Global. 2000. Atingidos e Barrados: as violações de Direitos Humanos na Hidrelétrica Candonga. A Terra Construída: família. 2002 Lemos. Revista Crítica Marxista. Dissertação de Mestrado. identidade e política da diferença.
L.) Meio Ambiente. In. UFMG. Opschoor. Niterói/RJ.org.137-140.. Campesinato: Resistência e Mudança – O caso dos atingidos por barragens do vale do Jequitinhonha. J.. J. Martins-Costa. Desenvolvimento Sustentável e Políticas Públicas. Direitos Humanos através da história recente em uma perspectiva antropológica. K. M.de Zucarelli. Ecospace and the Fall and the Rise of throughput Intensity. pp. Dissertação de Mestrado em Sociologia. 1999. Berlim. 2001. In.M. 2005. 15(2). & Paiva. Zhouri.214-290. pp. A. Belo Horizonte. Clóvis (dir. R.B. A Comunidade de Porto Corís e os aspectos socioeconômicos do processo de licenciamento da UHE Irapé – Vale do Jequitinhonha – MG. 20032-3 de junho. A. Fundação Heinrich Boell. Justiça Ambiental (local e global) In.). A Insustentável Leveza da Política Ambiental: desenvolvimento e conflitos socioambientais. L. R. A. Procuradoria Geral da República – MG. Laschefski. F. In: Ecological Economics. A. Uma Sociologia do Licenciamento Ambiental: o caso das hidrelétricas em Minas Gerais. CAVALCANTI. Zhouri. 1987. et Daou. Estratégias de Viabilização Política da Usina Hidrelétrica de Irapé: o (des)cumprimento de normas e o ocultamento de conflitos no licenciamento ambiental de hidrelétricas. Ciências Sociais Hoje. Editora da Universidade Federal Fluminense. pp.216
Developmental Projects and Violence in Rural Brazil
______________________________________________________________ Martinez-Alier. LASCHEFSKI.89-116. Belo Horizonte: Autêntica. 1995. Antropologia e Direitos Humanos. ANPOCS/ Vértice/ Editora Revista dos Tribunais. São Paulo. Sousa.. A.. K & PEREIRA. Anais do SeminárioTeutoBrasileiro de Energias Renováveis.boell. ZHOURI. Hidrelétricas e Sustentabilidade. A. Belo Horizonte. In. Ribiero. 215-231. www. Cortez. 2001 Siguad. 2006 FAFICH/UFMG. pp. São Paulo. S. M. D (Orgs. A.
. 1993 Santos. Dissertação de Mestrado. Expropriação do campesinato e concentração de terras em Sobradinho: uma contribuição à análise dos efeitos da política energética do Estado. 47-79. pp.
fafich.br/gesta Raquel Oliveira is a post-graduate candidate at the Federal University of Minas Gerais and researcher at GESTA with scholarships from the Foundation for Research Support in Minas Gerais (FAPEMIG). the National Council for Scientific and Technological Development (CNPq) and the Council for Research Training (CAPES).ufmg.Andréa Zhouri and Raquel Oliveira
______________________________________________________________ Andréa Zhouri is Associate Professor of the Department of Sociology and Anthropology at the Federal University of Minas Gerais (UFMG).
. Coordinator of GESTA – Group of Environmental Studies at UFMG .and researcher of the National Council for Scientific and Technological Development (CNPq). Homepage: www.
ranging from the revision of current language and norms to the creation of a separate legal entity to deal with environmental crimes. In Darfur. environmental crimes include the deliberate destruction of arable land. It examines ground that must be broken in order for the ICC to prosecute international environmental crimes or intra-state environmental crimes such as the ones committed in Darfur. Article 8(2)(a)(iv) defines a war crime as ‘the extensive destruction of 1. International Criminal Court ***** Introduction The debate is raging among environmental legal scholars as to how to deal with environmental violations of international conventions and humanitarian law.
. This paper analyses the International Criminal Court’s jurisdiction over environmental crimes.1 The basis for this argument is that critics focus so much on the few clauses that include the word ‘environment’ that they have ignored the clauses where environmental protection is not specifically mentioned but could be interpreted. Environmental crimes perpetrated in Darfur are used as a case study to highlight the limitations of appealing to the International Criminal Court (ICC). conflict resolution. contamination of potable water. environmental justice. human rights. The paper assesses whether the ICC is able to satisfactorily evaluate and judge environmental crimes. For these reasons and to ensure that the conflict does not continue or resume. Legal scholars such as Roberts argue that the current legal norms that exist to prosecute environmental crimes are not as inadequate as critics portray them to be. Alternatives are examined.Mechanisms for Achieving Environmental Justice in Darfur Seisei Tatebe-Goddu
Abstract Environmental damage inflicted during armed conflict has lasting repercussions on a state’s economy. and social cohesion. addressing environmental crimes is an important part of pursuing justice in the post-conflict context. One example of this exists within the Rome Statute. environmental crime. Darfur. Key Words: Environmental law. which is limited to Rome Statute Article 8(b)(2)(iv). A survey of the literature shows that the legal framework of the ICC is impeded by the absence of language that properly equips the ICC to consider the full impact of environmental damage. and the effects of a significant displaced and refugee population. food security. environmental damage. the legal framework of the International Criminal Court (ICC).
6 By focusing only on what is feasible. mechanisms such as the International Criminal Court are used as complementary tools to achieve peace.’4 While these articles do not specifically mention the word ‘environment’. however.’2 Another example lies in Article 8(2)(b)(ii). land. the current system would have to be substantially modified.e. consider ‘that which seems necessary rather than content themselves with what they deem possible’. Under this wider goal. Ultimately. In pursuing justice. Roberts presses for this modification of existing legal provisions and their improved implementation. stating ‘the intentional directing of attacks against civilian objects which are not military objectives. on the use of landmines). arguing that this would detract attention and resources from more pragmatic approaches. The deliberate targeting and destruction of resources that form the foundation for survival should be considered a form of environmental injustice and should be addressed in the interest of pursuing peace. the international community should. the environmental legal community should be focusing attention on negotiating issue-specific agreements (i.). however. we are not only pursuing the incarceration and punishment of wrongdoers who commit environmental crimes. and pursuing a better system of investigation of and assistance for environmental damage. we state that it is unacceptable for weaker members of a community to bear the brunt of environmental burden.220
Mechanisms For Achieving Environmental Justice in Darfur
______________________________________________________________ property. Even if the Rome Statue was modified and definitions clarified. not justified by military necessity and carried out unlawfully and wantonly. wells.e. and the atmosphere. dams. the Rome Statute prohibits ‘deliberately inflicting on those groups conditions of life calculated to bring about their physical destruction in part. etc. But Roberts himself points out that it is unclear whether ‘property’ can be interpreted broadly enough to include public goods such as common land. pushing wider adherence to existing treaties. And yet the
. It is not even clear if the ICC is the appropriate mechanism to use in pursuing environmental crimes. Nor are we merely seeking the incidental protection of the environment. he loses sight of the purpose of including the environment in legal provisions at all. When we pursue environmental justice. they seem to offer protection of some elements of the environment that are considered property (i. as Falk states. open seas. the likelihood that crimes in Darfur would trigger prosecution by the ICC on an environmental basis remains unlikely. In his opinion. water resources.7 The environmental damage perpetrated in Darfur is a chilling example of why we should do as Falk suggests and pursue all necessary legal avenues rather than only those that we short-sightedly may perceive as possible. which deals with genocide.5 It is clear that even if current legal norms were used to pursue environmental justice.’3 Under Article 6(c). He stops short of advocating a new convention.
Their main grievance was years of economic. it is the violations in places like Darfur—the ones that fall within the gaps in the Rome Statute between international versus internal conflict. and Zaghawa tribes) attack on Golo.Seisei Tatebe-Goddu
______________________________________________________________ environmental situation in Darfur could trigger long-term ecological collapse and is certainly severe enough to warrant a preliminary investigation. Over the following months. As we struggle with how to address environmental crimes. and deliberate environmental damage.8 This paper does not suggest that environmental factors were the only cause of the conflict in Darfur. Massalit. the breakdown of traditional environmental management systems. Darfur In order to understand why the ICC is not an adequate legal mechanism for addressing environmental damage in Darfur. mainly comprised of members of the Fur. or that it is the only issue to be resolved in seeking justice for Darfur. political. However. severe. the GoS used the Janjaweed. the political manipulation and neglect of groups with competing resource needs. the headquarters of Jebel Marra. The response of the GoS was systematic. an Arabic militia of nomadic camel-herders. Environmental resources form the foundation of people’s lives. including the April 25 attack on a government base in el-Fasher. between strict intentionality versus negligence—that will continue to be perpetrated with impunity.9 Recent research has effectively argued that environmental resource scarcity by itself is not necessarily a trigger for violent conflict.11 3.
. Overview: 2003-2008 The beginning of the conflict is often attributed to the February 2003 Darfur Liberation Front (DLF. the DLF (later becoming the Sudan Liberation Army/Movement (SLA/M)) intensified their approach with a successful string of attacks. Its failure is in part driven by the fact that it did not address many underlying issues.10 While the Darfur conflict has its roots in a vulnerable resource environment and increasing climate change. and cultural identity in Darfur. there is an interaction of a wider and more complex set of environment-related issues: cultural identities defined by a land tenure system. the Darfur Peace Agreement (DPA) signed in May 2006 by the government of Sudan and one rebel faction failed to resolve the conflict in Darfur. as a 2. and social marginalisation by the Government of Sudan (GoS). livelihoods. one must understand the specific role that the environment plays in Sudan and specifically in the conflict in Darfur. between what is widespread. such as land tenure and use. and long-term and what is not. Not having the ability themselves to retrain the government military in desert operations.
But the failure of the DPA to receive the support of the other rebel factions resulted in a further splintering of the rebel movement.16 Attacks on IDP and civilian populations have continued throughout 2006.14 In May 2006. were at least indicative of the potential for steadily worsening relations between the two groups. too limited in scope and signatories’. In December 2007. While the scale of violent conflict was unprecedented.000 refugees living in 12 camps along the Chad-Sudan border. Jan Eliasson.20 Most recently.000 have been cut off from aid. burning the towns to the ground and scattering almost 44. and has been called ‘a failure. the events of which were merely symptoms of a larger and deeply-rooted problem. the GoS and one faction of the Sudanese Liberation Army (SLA).222
Mechanisms For Achieving Environmental Justice in Darfur
______________________________________________________________ paramilitary force. and the beginning of 2008. unresolved. the UN Special Envoy. JEM took control of several key villages near El-Geneina in West Darfur. cut down trees. The Janjaweed.000 people in West Darfur was bombed. Alex de Waal and Julie Flint date the escalation of rising tensions as far back as 1967 or 1968 (records are unclear) and which. skirmishes and tension had been steadily growing for decades. implying that talks cannot continue within the current atmosphere of violence against civilians. 19 The refugee agency has been watching the situation deteriorate with growing concern. Environmental Factors The origins of the Darfur conflict started well before 2003. The effect of the Janjaweed’s scorched earth tactics was devastating. signed the DPA. the Janjaweed attacked the villages. quickly gained the upper hand.4 million internally displaced (IDPs). 2007. UNHCR reported that the numbers had escalated to 200.22 4. led by Minni Minnawi.18.000 people have crossed the border into Chad in recent months and another 160.13 Three years later. particularly after they were blocked by gunmen from moving 179 Darfurian families to safer formal refugee camps in eastern Chad. and 2. funded and armed by the GoS. and consequently of their demands. By 2004. and killed those who tried to protect their livestock or salvage food stores.23
. violent conflict intensified in the second half of 2006. forcing UN staff members to relocate.000–5. reported that ‘the situation is running out of control’.000 deaths. 240. several thousand had died as a result of the war and an estimated one million had fled their homes.21 In early February.17 UNHCR estimated that 10.000 IDPs.’12 The Janjaweed systematically destroyed fields. ‘Government and Janjaweed forces destroyed everything that made life possible.15 Despite the signing of the DPA. contaminated shallow wells. an IDP camp sheltering 4. On 8 February 2008.
29 This is a dilemma for the majority of its people.24 The evidence supporting the environment-based conflict theory is growing. In the following years. how badly it has managed its agricultural sector.27 However. Look to its roots. the Darfur conflict began as an ecological crisis. In order to understand the struggle over land and water. In a recent statement. with the Zaghawa.
. and distribution of wealth—conflict over land is one of the major reasons for the war in Darfur. traditional forms of cooperation came to an end. Physical Environment Conflicts in this region have centred on ownership of and access to water and land. climate change has and will continue to exacerbate the conflict between the parties involved. and it will continue to put pressure on refugees and IDP populations as well as their host communities. who rely on environmental resources as the foundation of their subsistence economy.25 The response to the Secretary-General’s comment was critical. Eventually the government had to intervene and the case took two years to resolve. one must understand the physical environment and environmental management decisions that resulted in the region being so poor in natural resources. Darfur’s environment is particularly vulnerable. Eric Reeves countered that ‘it is essential to understand how badly Khartoum has failed areas on the geographic periphery. Kaitinga. The region has in recent years suffered from high natural variability and unpredictability. the United Nations Secretary-General stated that: almost invariably.28 However.26 Victims’ groups claimed that a focus on environmental triggers would obscure the role that the government and the Janjaweed had played in the conflict. and Zaghawa herders instead taking care of the camels from the villages. political power and representation. Amid the diverse social and political causes. we discuss Darfur in a convenient military and political shorthand—an ethnic conflict pitting Arab militias against black rebels and farmers. though.Seisei Tatebe-Goddu
______________________________________________________________ The conflict between the Zaghawa and Arab herders started over a livestock theft and intensified into a three-day armed encounter. the truth lies somewhere between the two statements. and how brutally it has treated people in the marginalized areas’. A. arising at least in part from climate change. It is clear that the conflict has evolved to include much more complex issues such as cultural identity. and Tunjur no longer entrusting their camels to the Arabs for the north–south migration. and you discover a more complex dynamic.
38 Essentially. geology makes it difficult if not impossible for aquifers to recharge quickly enough to meet demand. with levels stabilizing in the 1990s. Over time. the resource is basically a non-renewable one. Less severe droughts were recorded in the 1880–1890s. 1913. the bulk of agriculture in Sudan is practiced within and to the south of the Sahel belt. but it appears that rainfall during the early 2000s again decreased.35 In a region as arid as Darfur. water cannot necessarily be considered a renewable resource. 1990. the region straddles the edge of the Sahara. Central Darfur is the most fertile because it receives significantly more rain than other areas of Darfur and contains the only major watershed between the Ethiopian border and the headwaters of the Niger close to the Atlantic Ocean. the geology in Darfur is ill-suited for groundwater storage.34 Meanwhile. forming a narrow transitional corridor of agricultural productivity. average rainfall has decreased overall by one-third in the last 80 years. 1991. a semiarid tropical savannah. Droughts have been part of the history in Darfur for generations of people.36 Just a few percentage points of reduction in rainfall can translate into a loss of up to 20 percent of agricultural production. The area can only be inhabited only where there are water reservoirs or deep boreholes.30 Western Darfur is dominated by basement rock. 1960. A significant drop in rainfall occurred in the late 1960s and early 1970s. that this would not occur over the lifetime of the current generation of Darfurians. and records show that rainfall has never recovered to the level before this period. which has been steadily expanding southwards. increasing the population’s vulnerability to any fluctuation in water availability.5 million. Darfur’s population has increased six fold over the past 40 years to 6.33 In other words. The area is so dry that a hand-dug well in a dry river bed can be the difference between life and death for a camel herd travelling from the central Darfur valleys to the pastures at the desert’s edge.37 In addition to a decline in rainfall.224
Mechanisms For Achieving Environmental Justice in Darfur
______________________________________________________________ The region straddles the edge of the Sahara and the Sahel. Even though the Sahel experiences 8-11 dry months of the year. For that generation. if not likely. which cannot be farmed but provides sporadic forest cover for grazing animals. To the north. It is important to understand that in regions like Darfur. But it is possible. cuts through the centre of the region.31 There is one rainy season. The most severe drought occurred in 1980–1984 and was accompanied by mass displacement and localized famine. the aquifers may recharge.32 Another severe drought occurred in the 1980s. 1967. lasting from June to September. droughts have devastating consequences on local economies and on the people who try to make a living from the land. The eastern half of Darfur is composed of plains and low hills of sandy soils.
physical displacement. investment. Unfortunately. A United Nations Environment Programme (UNEP) study in 2005 concluded that there could potentially be a drop of up to 70 per cent in crop yields in the most vulnerable areas of the Sahel and a significant 20 per cent reduction in food production overall.40 Climate change models consistently indicate that climatic variability will increase and length of growing periods will decrease. principally because of deforestation. as people search for scarce resources and are condensed into smaller areas. with the desert expanding southwards by 50 km to 200 km since the 1930s. overgrazing. Climate Change The scale of historical climate change as recorded in northern Darfur is almost unprecedented: the reduction in rainfall has turned millions of hectares of already marginal semi-desert grazing land into desert. Darfurians have little control over the first type. The result will be a reduction in agricultural yields and an increase in crop failures. UNEP found that virtually all areas inspected were moderately to severely degraded. the absence of infrastructure. result in
. While the last 40 years of nearly continuous drought and famine have shown the Darfur people to be resilient.42 This does not bode well for Darfur. they do have some ability to mitigate the second and third types. and the destruction of crops and food stores.39 It is a devastating cycle: drought can trigger conflict. or an average of 100 km in the last 40 years. and its ability to adapt to such drastic changes.41 Desertification has been singled out as Sudan’s biggest environmental problem. and conflict can trigger famine when people are deprived of coping mechanisms such as the fragmentation of social nets. and erosion. However. on the edge of desert. combined with cultivation of land.Seisei Tatebe-Goddu
______________________________________________________________ 1993 and 2000. and environmental management will inevitably take a high toll. B. and disproportionately more than those who are at the heart of anthropogenic climate change. even though they and other vulnerable populations will be the first to feel its effects. There are three types of desertification occurring in Darfur: Climate-based conversion of land types from semi-desert to desert Degradation of existing desert environments Conversion of land types from semi-desert to desert by human action
Each one has implications for future approaches to environmental management.43 These three activities.
The system essentially divided the Darfur tribes into two groups: land holding and non-land holding. Alternatively. who were not granted their own dars. The hakura system historically included a principle of hospitality— newcomers were allowed to settle on free land provided that they respected the customs of their hosts. Administrative hakura confirmed communal ownership of land for a given group of people under the leadership of an individual. Land Tenure The harsh physical landscape of Darfur has formed the backdrop for a recurring theme: localized conflict over resources. and a more exclusive hakura that gave the title holder all rights for taxes and religious dues. Sultan Musa Ibn Suleiman. The southern and eastern parts. The first type was usually granted to tribal leaders and later became known as dars (tribal homeland). If a Fur or Tunjur villager acquired many
. frequently referred to as the hakura system.46 The second hakura was used to reward individuals for services. was used by the sultans to grant estates to office-holders and immigrant holy men. where the authority of tribal leaders was recognized and they were allowed to continue their traditional roles. The former included the sedentary groups and the cattleherding tribes in southern Darfur.226
Mechanisms For Achieving Environmental Justice in Darfur
______________________________________________________________ habitat conversion to desert. The northern and western parts of Sudan are at higher risk because there the soil is sandy and prone to water and wind erosion. C. This type of hakura tended to be larger than the tribal dars. people would congregate in his hakura and thereby identify themselves with the hakura. are characterized by clay soil.47 Nomadic tribes were able to negotiate the right to travel through corridors in land occupied by tribal groups. in contrast. which is more resistant. livelihood and kinship were relatively fluid. the second ruler in the Keira dynasty. giving limited rights of taxation over people occupying a certain territory. The individual could often be a tribal leader in which case he exercised jurisdiction on behalf of his people. primarily the Abbala. The latter included the Arab camel nomads in the north and immigrants from Chad who were driven by drought or political instability to Darfur. Suleiman’s concept of land tenure. This was especially important for the northern Darfur nomads. The British sought to formalize the hakura system by introducing Native Administration in 1916. introduced a system of land management that allowed for some political stability.48 The history of indigenous administration allowed future administrators to mediate conflicts between agriculturalist and nomadic pastoralist groups. In the seventeenth century.45 The hakura was divided into two types: an administrative hakura.49 Before the 1967 clashes indicated by de Waal and Flint.44 These areas must be managed better in order to minimize conflict and prevent further degradation.
SLM negotiators insisted that many problems had arisen in recent years because certain nomadic groups had tried to open up new migration routes. In the 1990s.53 D. in line with his livelihood. West. but also reorganized the administrative units of Darfur into three separate states: North. undermining their traditional ethnic administration system. he might call himself Zaghawa or even Arab. it is possible that migration of Sudanese from the Nuba mountains and Blue Nile state (which have undergone extensive mechanized agriculture schemes in the 1970s in response to IMF policies) into Darfur may have further put pressure on land and water resources in Darfur and worsened local tension. and South. cutting through farming areas and impinging on the land rights of other groups. especially north to south migration because of the desertification in northern Darfur. including large numbers of nomads. At the same time. Darfur’s largest ethnic group.Seisei Tatebe-Goddu
______________________________________________________________ animals and chose to migrate with them. the land laws were designed to undermine local. The lack of dispute
. New governors were appointed and the hereditary sultan of Dar Masalit replaced with ‘Arab’ leaders who suddenly had the power to appropriate Masalit land. With it came new land legislation that dispossessed people of their land so that it could be used for mechanized farming. in February 1994.55 E. traditional authority. This reshuffle effectively divided the Fur.50 It was not until traditional relationships over land had disintegrated that the hakura system was used to reinforce and entrench bonds of kinship (ethnicity) and the Native Administration system was used to reinforce identifies based on livelihood. Khartoum denied the regional government the financial and political means to address famine and resource conflicts. the decline of tribal authority continued when. the Minister of Federal Affairs reconstituted Native Administration.54 While Darfur was not subject to the mechanized agricultural schemes that many other states were. This has led to widespread settlement of northern Darfurians in other parts of Darfur as well as the immigration of Chadians. Native Administration was abolished by President Jaafar Nimeiri. While mechanized agriculture has not played a direct role in triggering the Darfur conflict. Abolishment of Native Administration In 1971. The main challenge to traditional land tenure has come from migration. Environmental Management Systems The hakura and Native Administration systems offered some ability to mediate conflicts over resources in a context where coordinated environmental management simply did not exist. into a minority in each state.51 In 2006.52 There is a third group that has played a strong role in precipitating conflict in some states—the mechanized farmers.
Assuming that the water is there—several
. If we can’t share this land. one of the nomad encampments.57 The lack of a coherent environmental management structure took its toll. agricultural expansion. the government will leave us on our own.59. an increase in rain-fed agriculture. but they are not part of a formal system of environmental management and cooperation. Arab chiefs have agreed to revive a ‘peace committee’ to manage resources in conjunction with local leaders of African tribes. leading to large-scale forest clearance. Pastoralists lost grazing land and at the same time were being blocked from migratory routes between seasonal pastures and between herds and daily watering points by sedentary farmers who were raising their own livestock and less willing to give grazing rights to nomads in transit.56 Coping strategies adopted by pastoralists only made the problem worse. then no one can live’. The Arabs had agreed to pay for damage done to crops by their cattle. There has been a loss of nearly 12 percent of Sudan’s forest cover in only 15 years.58 Current farming methods are rain-fed and poorly managed. in Darfur alone. at the same time. and a reduction in open rangeland since the 1970s. brought about by the increase in population. and the rise in livestock populations.. As Darfurians from the north moved south into the more productive Sahel belt. land degradation. saying that ‘when the war ends. which in the 1970s was experiencing the region’s first significant drop in rainfall. Poor environmental management was being driven by a rising population which. and loss of wildlife. They maximized herd size to provide a buffer against drought. and reduced the competition by forcing other pastoralists and farmers off previously shared land. 60 Livestock populations soared from 27 million in 1961 to 135 million today and contributed to the rapid deforestation. The sudden rise in population growth is indicative of large-scale migration into Darfur from the north. supply began to diminish. The absence of Native Administration opened the door to escalating tension as people found themselves without protection from the regional government and without an effective way to resolve the arising conflicts. was trying to crowd into rapidly diminishing areas of arable land. A study conducted as part of UNEP’s Post-Conflict Environmental Assessment concluded that there had been widespread deforestation. Attempts to work together exist. the forest cover shrank by one-third in the last 30 years. tension between the farmers and pastoralists worsened. Near Damrat Surmi. The population soon felt the pressure from desertification and deforestation.61 Recent claims that there might be an underground lake have been met with hope and scepticism.228
Mechanisms For Achieving Environmental Justice in Darfur
______________________________________________________________ resolution mechanisms coincided with a rise in the regional population growth rate of 12 per cent per year. As demand soared. moved into and grazed their livestock on cropland without consent..
and is damaged for a specific period of time. In the seventy-year span between 1930 and 2000.Seisei Tatebe-Goddu
______________________________________________________________ geologists have been doubtful—it is possible that a plentiful water source could minimize some of the tension between farmers and pastoralists. the definition of ‘damage’ is unclear. perhaps for decades. The move was described as ‘an ecological disaster and a political mistake’. in cases where there is little pre-war data. In terms of time and physical space. mainly over grazing and water rights and land. there were 41 reported tribal conflicts. but these are often expensive and/or technologically complex. the legal standard for a definitive cause-and-effect relationship is set extremely high.65 The contamination of 5. the analysis of ‘damage’ is relatively straightforward. the majority occurred in the absence of a strong regional government and effective dispute resolution mechanisms. our own knowledge and capacity to conduct these assessments in the context of war is limited and under-researched.64 In addition. Their animals could not be restrained and damaged the surrounding fields that farmers were dependent on for their survival. Only three of the listed conflicts occurred before the Native Administration system was abolished in 1971. As their crops were destroyed. Long-term pollution of water resources can sometimes be mitigated by remediation efforts. meaning that the analysis and prediction of non-linear complex systems is difficult. The new water source attracted large numbers of pastoralists. First. before the land can sustain crops again. further decimating pastures and bringing them now into direct competition with pastoralists for water from the wells. the environmental effects of war can often be felt well beyond the actual battle itself. the environment is notoriously variable. Third. But damage that has no established market price as a baseline (such as biodiversity loss) or that takes decades to be recognized (such as cloud seeding or the use of Agent Orange in Vietnam) is much harder to assess. When a resource has a commercial value. and far beyond the reach of recently wartorn countries. Environmental Damage The environmental impact of war is multi-dimensional. such as a crop. is a repeat of the failed drilled wells and their disastrous consequences in the 1980s. Soil erosion undermines agricultural productivity.
. however. the farmers bred their remaining animals for food and milk. Second.63 Major constraints exist in terms of the assessment of long-term environmental impact. if not impossible. The government dug deep wells to mitigate the drought that had swept through the region. What is more likely to happen.62 The need for collaborative environmental management practices is made obvious by Table 1 (Appendix). Deliberate deforestation can drastically change the landscape.
Some local communities reported that drinking water wells had been poisoned. not only to understand what the consequences of damage may be. UNEP concluded that it was not possible to estimate the significance of this phenomenon given the lack of quantifiable data on field conditions in Darfur. it is difficult to conclude that deliberate environmental damage could not have long-term and severe consequences.68 The document also reported that civilians had stated that raiding militia had principally targeted trees. from what is known of Darfur’s stressed environmental condition. Deforestation is of particular concern because of the resulting decline in soil fertility. declining soil stability. a loss of the tree’s ability to fix nitrogen.69 However. UNEP stated that ‘the deliberate targeting of vital natural resource-related infrastructure. Janjaweed Environmental dimensions of the attacks by Janjaweed include: Destroying the productivity of farmland (cutting down trees. In other words. DeWeerdt writes. such as rural water pumps. the fourth water-rich country in the world. soil erosion (especially of valuable top soil). but also to understand what the ‘normal’ baseline is for the region and accordingly. the area loses the ecological system that makes it possible for crops and other plants to grow in the immediate area. Loss of tree cover means a net deficit of biomass available to the soil. and pastures. has been well documented by NGOs and inspection reports from the African Union Mission in Sudan (AMIS)’. will not have the same repercussions as the contamination of a similar well in Darfur. crops. as facing ‘ecological collapse’.230
Mechanisms For Achieving Environmental Justice in Darfur
______________________________________________________________ one shallow well in Canada. razing crops. recalibrate the definition of ‘damage’. UNEP Executive Director. but UNEP was unable to follow up with an investigation. Pre-conflict environmental data is crucially important. longest-lasting effects on protected areas that harbour endangered species and slow-to-recover ecosystems such as deserts’. deliberate overgrazing) Contaminating water sources Destroying access to water (hand pumps) Uncontrolled deforestation Continued displacement of civilians and IDPs and resulting environmental pressure
In a 2007 report. and the loss of shade for crops. ‘Warfare is likely to have the most severe.66 This is especially true of Darfur and Sudan.
. which were recently described by Achim Steiner.67 A.
He pointed out that the area around Chad’s northern-most refugee camp originally supported fewer than 5. voiced concern that the large concentration of people into very small areas creates a ‘heavy strain on people’s resource base and worsens tensions with the host population’. meaning that populations in the northern Chad refugee camps barely have enough water to support both the refugee and host population. In a classic case.000 Darfur refugees. nearly 2 million Hutus fled Rwanda over the course of a few weeks to refugee camps in Tanzania and the DCR. a UNHCR spokesperson. now it houses more than 30. The current rate of water abstraction is suspected to have caused significant local groundwater depletion. One of the worst areas is Abu Shouk camp in North Darfur where seven boreholes ran dry. UNICEF reported that these have not recovered even through the 2006 wet season.73 Refugees and IDPs can quickly turn an agricultural area into a wasteland. The already fragile environment has been pushed well beyond its carrying capacity’. 720.72 Jessica Hyba. Daniel Roger.Seisei Tatebe-Goddu
______________________________________________________________ B. Refugees and Internally Displaced Persons The most significant environmental impact of the conflict is the result of the mass displacement of nearly 2.000 people has had a significant impact on the ability of the water tables to come back up to their regular level’.71 Particular concerns involve the heavy use of water and depletion of surrounding timber resources.000 inhabitants.4 million people and 240. who said in a recent statement that ‘the environmental impact from the influx of refugees [to Chad] has been pretty devastating.000 of those refugees settled into camps on the fringes of Virunga National Park. Environmental damage associated with refugees and IDPs include: Deforestation in camp areas Devegetation in camp areas Unsustainable groundwater extraction in camps Water pollution in camp areas Uncontrolled urban slum growth Development of a relief economy which locally exacerbates demand for natural resources Fallow area regeneration and invasive weed expansion Deforestation by returning refugees
UNHCR’s environmental officer. assistant country director of CARE. stated that ‘receiving 200.000 refugees. the first UN World Heritage site to be declared endangered due to an armed
.70 His concern is echoed by Chad Mathew Conway.
which are internal and not international. UNHCR currently operates 12 camps for 240.75 Studies show that the impact of prolonged displacement is heavily degrading some of Darfur’s most valuable agricultural land. seriously degraded an area of almost 400 km2 by clearing it for agriculture. neither would the environmental crimes committed in the majority of conflicts today. Environmental degradation that occurs here undermines the future food security and economic recovery of these towns and their host communities.78 The crimes perpetrated in Darfur would not be eligible. The potential damage that the refugees and IDPs could inflict on the surrounding host environments could be devastating for local and returning populations.79 6. Uduk refugees from the Upper Nile province now living in a refugee camp in western Ethiopia have. longterm and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.232
Mechanisms For Achieving Environmental Justice in Darfur
______________________________________________________________ conflict. the definition remains vague and sets stringent standards.74 In another example. The second problem lies with the definition of environmental crimes. The displaced and host populations will be affected during the conflict but the recovery period will be prolonged because of the extent of the damage. Assuming that the political will existed to modify the Rome Statute to allow internal conflicts to encompass environmental crimes.
. allowing the ICC the ability to prosecute them in international cases. in the 13 years since the camp was established. but excluding internal conflicts in the interest of national sovereignty. UNEP fieldwork inspections revealed extensive deforestation extending as far as 10 km from the camps.000 refugees along the Chad-Sudan border. The final version of the definition of environmental crimes in the Rome Statute seems to be a compromise. International Criminal Court The limitations to using the International Criminal Court to address environmental crimes in Darfur are numerous and begin with the fact that the ICC does not have the jurisdiction to try environmental crimes in internal conflicts. meaning that degradation affects prime farmland. The refugees proceeded to strip an estimated 35 km2 of forest for firewood and materials for shelter.76 IDP camps tend to be built around agricultural market towns. Article 8(2)(b)(iv) prohibits: intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread.77 Figure 1 shows the presence of UNHCR refugee and IDP camps within Chad and Darfur. Unfortunately.
Figure 1: UNHCR Presence in Darfur. 2007)80
. April 2007 (UNHCR.
finding that he believed that they were necessary. the Nuremberg Tribunal acquitted German General Lothar Rendulic of his ‘scorched earth’ tactics. long-term. and even those who choose not to inform themselves of the possible consequences. Following World War II. long-term. could possibly use their ignorance as a defence. however.83 Given the technical complexity of environmental damage and its consequences. Article 8(2)(b)(iv) poses another difficulty in its requirement of strict intentionality.87 The absence of objective standards that indicate when a military advantage may justify intentional. the interpretation within the CCD Understanding was specifically limited to the ENMOD Convention and was not intended to influence the interpretation of similar terms in other international agreements. A definition was provided by the Geneva Conference of the Committee on Disarmament (CCD) Understanding. the human rights violations triggered by such an act would be more than sufficient to prosecute and environmental considerations would once again be incidental. then the defence could be widely available’. however. and severe damage to the
. even if the first two components are met. In addition. it is possible that not knowing that the action would lead to widespread. and severe damage could be proved. this could be almost impossible to prove—individuals who are ignorant of the consequences of their actions. long-term. the lack of data on both the pre-conflict and post-conflict environment in Darfur will make it difficult to link environmental degradation specifically and solely to the damage done by Janjaweed militias. long-term and severe’ is derived from other international agreements such as Article I of the 1977 United Nations Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD) and the 1977 Additional Protocol I to the 1949 Geneva Conventions. it must still be shown that the damage is ‘clearly excessive in relation to the concrete and direct overall military advantage anticipated’. First.234
Mechanisms For Achieving Environmental Justice in Darfur
______________________________________________________________ The language of ‘widespread. the specific language is itself vague and not well defined and the Rome Statute again does not offer much guidance. Second.82 Without a better definition of these terms.86 Drumbl argues that ‘if the notion of military advantage remains subjective in the mind of the military or political leader under the circumstances in which the tactical decision was made. the military advantage only needs to be anticipated. Even if widespread.85 This creates several problems. widespread. it is possible that the only environmental crimes to be considered would be at the level of the detonation of a nuclear bomb. the Rome Statute does not give guidance as to what exactly these terms mean.84 Finally. In this case.81 However. The vagueness of the current definition makes it difficult to predict whether the damage in Darfur would trigger investigation by the ICC. and severe damage would be enough to absolve an individual.
who believe that the current legal norms are adequate as the basis for further work.
. in pursuing environmental justice. 7. it does not appear that the Court has the ability to compel action in these areas. however. none of which are currently housed within one entity. and improve the implementation of existing law. Is it the incarceration of individuals who are found responsible for the crimes or the restitution of property? Is it the remediation of the damaged environment? Who do we hold responsible for environmental damage—the refugees inflicting the damage or those who deliberately created refugee populations? Only in the first case is it clear that the ICC has a role. Even with an extensive revision of the language within the Rome Statute. Drumbl states that ‘as a result. As more pressure is exerted on the environment. but also that the punishments for wrongdoing will not address the unique nature of these crimes’. all of which involve working within the current legal regime. the transaction costs—both money and time—would most likely be significant. However. the problem remains how to centralize the implementation. it is unclear whether that would resolve any of Darfur’s environmental injustices.Seisei Tatebe-Goddu
______________________________________________________________ environment makes the possibility of prosecuting environmental crimes even more problematic.88 A separate tribunal that specialized in environmental issues would make additional training for ICC personnel unnecessary. Even if the ICC were to prosecute and secure a conviction.91 However. we must ask ourselves what it is we are really trying to achieve. can we afford to ignore the perpetrators of crimes that do not trigger an ICC investigation? Another possibility is to secure agreement on issue-specific conventions. Roberts uses the agreements in the 1990s on landmines as an example. it is still unclear where environmental crimes would be explicitly addressed. Alternatives So what is to be done? How do we begin addressing those environmental crimes that have fallen through the gaps within our international legal system? Roberts analyses several possibilities. there will be no peace if the current environmental conditions continue unaddressed. this could be addressed by educating the magistrates and judges of the ICC. but of course would come with its own significant costs.89 This is a serious consideration for scholars such as Roberts. monitoring.90 The first possibility is to promote the existing provisions. While the issue of adequate technical expertise is also a problem. In Darfur. In the case of restitution and remediation. and enforcement of all of these various conventions. focus on revising language where necessary. Finally. there is cause for concern that environmental crimes will not only be poorly cognisable under the International Criminal Court.
This could mean both the loss of agricultural land. This will remain true particularly without education and training of magistrates and judges of the International Criminal Court and a shift in the political will of those setting the agenda of the ICC. The environmental crimes perpetrated in Darfur will not trigger prosecution under the Rome Statute in its current form and the lack of environmental expertise within the ICC makes it an unsuitable choice for prosecution.93 The absence of a coordinated approach to environmental crimes hinders the progress that could be made within the international environmental law field. both of whom argue that pursuing existing legal norms is inadequate and call for the creation of a separate entity to prevent and punish ‘deliberate.236
Mechanisms For Achieving Environmental Justice in Darfur
______________________________________________________________ At the other end of the spectrum lie Falk and Drumbl.92 The push for a separate entity has lost ground in recent years. the emphasis on environment within the human rights world is still weak. and we will. Scholars such as Bruch believe that under such an arrangement. and negligent environmental harm in war’. environmental justice in places like Darfur will never be achieved. send the message to perpetrators that it is not important to pursue environmental justice. accessibility. If not addressed. and quality.95 The signs that people will have to drastically alter their way of life are already apparent in an assessment of the environmental degradation of land and resources in Darfur that led the top environmental officials within UNEP to declare that it will be ‘impossible for many of the more than 2 million people uprooted by the conflict to return home’. incidental. Conclusion Environmental justice cannot be achieved in Darfur using the International Criminal Court as the legal mechanism. Legal scholars can continue to rely on the ICC for the most heinous environmental crimes. 8. People and livestock will continue to concentrate on land that is reduced in total area. as long as it is understood that the environment will remain an ancillary consideration.
. While people are gradually recognizing the need for a system of environmental management. it would be possible to accommodate a coordinated approach to domestic and international environmental law. there will be a significant increase in the amount of time needed for recovery. the existence of which is a glaring flaw in our international legal system and calls us to be addressed. Environmental mitigation and recovery must be a priority in Darfur in order to achieve security and to minimize the potential for future conflict. however. and a decline in the size and health of pastoralist societies as their animals are no longer able to find food or water on their annual migrations.94 Without a management system in place. leading to entrenched poverty for farmers. as an international community.96 These ‘lesser’ environmental crimes fall within a significant gap. the need for an entity to coordinate the work of existing environmental conventions is clear.
Table 1: Causes of local conflicts in Darfur from 1930 to 2000 (UNEP2005)1
org/Research/Disaster+Risk+Reduction+reports/Darfur+re lief+in+a+vulnerable+environment.T. 5 Roberts. Scarcity. p.pdf. 2001. ‘International Legal Mechanisms for Determining Liability for Environmental Damage under International Humanitarian Law’. 59. p. cit.org/home/index. ‘Darfur: Relief in a Vulnerable Environment’. 14 The Office of the United Nations High Commissioner for Refugees (UNHCR). ‘Challenges to Peace and Recovery in Darfur’. op. ‘The Inadequacy of the Existing Legal Approach to Environmental Protection in Wartime’. 112. 2000. p. 3. 2006. 2005. 1.edu/downloads/ChallengestoPeaceandRecoveryinDarfur. Zed Books Ltd. Cambridge University Press. 2007 (last accessed 7 March 2008). p. 7..
. p. UK. Environment. 2 J Henckaerts. 57.. in The Environmental Consequences of War. p. (last accessed 7 March 2008). Cambridge University Press. Cambridge. p. 2007 (accessed 7 March 2008). July 17.org/cgibin/texis/vtx/chad?page=camps. 3 ibid. J E Austin and C E Bruch (eds). 615. 6 ibid. in The Environmental Consequences of War. p. 1998. Princeton University Press. 2000. 2000. 1. p. 47. Cambridge. London. 11. Darfur: A Short History of a Long War. 7 R Falk. Cambridge. 9 International Crisis Group (ICG).238
Mechanisms For Achieving Environmental Justice in Darfur
A Roberts. Tearfund – Reports. p. 2002.crisisgroup.N. Feinstein International Center.icc-cpi. 8 B Bromwich and A Abdalla Adam. Princeton. 16 ibid. 4 Rome Statute of the International Criminal Court.tearfund. 10 T F Homer-Dixon.int. http://tilz.unhcr. 2187 U.S. p. and Violence. 2008 (last accessed 7 March 2008). Darfur’s New Security Reality.. [hereinafter Rome Statute] corrected through Jan. ‘Chad/Darfur Emergency’. 12 J Flint and A de Waal. 3. 13 ibid. Article 6(c). p.. www.cfm?id=5180. 111. 11 H Young and A M Osman. 15 ICG..htm. J E Austin and C E Bruch (eds). Cambridge University Press.tufts. 16. 5. www. ‘The Law of War and Environmental Damage’. 137. http://fic. in The Environmental Consequences of War. J E Austin and C E Bruch (eds). at www. p.
. 1. Washington Post. 2006. 32 Bromwich and Abdalla Adam. www. 19 UN IRIN. op.. ‘Darfur Attack Leaves Thousands Needing Aid’. p.pdf. 22 ibid.. ‘International Court Urged to Consider Environmental Crimes in Darfur’..
. 23 June 2007. ‘Sudan: Post-Conflict Environmental Assessment’. p. IRIN Africa. cit. p. 36 Heather Lima. p. op.. Environment News Service. 11 February 2008. (last accessed 7 March 2008). ‘UN Envoys Warn Darfur ‘Getting Out of Control’‘. 39 ibid. p.. p. 22 Jun. p. 37 Bromwich and Abdalla Adam. p. p. 9. 30 United Nations Environment Programme (UNEP). 1..org/sudan/. (last accessed 7 March 2008). cit. cit. p. 13 February 2008.Seisei Tatebe-Goddu
______________________________________________________________ UN IRIN. 18 UN News Centre. 20 UN News Centre. 59. 20 February 2008. 63.. ‘The Darfur Peace Agreement: Part 10: Land’... cit. 61. p. 17.unep. p. p. op.justiceafrica. 33 UNEP. 16 June 2007. 1. 2007. op. ‘Environment the Key to Peace in Sudan. p. United Nations News Service. ‘Worsening Situation in West Darfur Jeopardizes Aid Efforts’. 18. p. ‘UN Refugee Agency Alarmed after Armed Group Prevents Relocation of Darfurians’. 1. 1. 7. p. 2. p. op. 30 August 2007. p. cit. p. 26 R Crilly. 42 ibid. 2007. 35 Flint and de Waal. cit. 34 ibid. ‘A Climate Culprit in Darfur’. 60. United Nations News Service. op. The Times Online.. IRIN Africa. 21 UN IRIN. 24 ibid. 15 February 2008. p. 1. 41 ibid. 25 B Ki-Moon. 42. 23 Flint and de Waal. 1. p. 28 A de Waal. 40 ibid. A15. 38 UNEP. 29 Bromwich and Abdalla Adam. p. 31 Flint and de Waal. Africa – UN’. Justice Africa Sudan – Papers and Articles. 7. cit. www. op. op.. p. 59. 1. 42.org/wpcontent/uploads/2006/07/DeWaal_Darfur_Peace_Agreement_10. 27 K Glassborow. Deutsche Presse-Agentur. 1. Post Conflict and Disaster Management – Reports. ‘Darfur Conflict is ‘Warning to World’ of Climate Change Peril’.. 13 February 2008. cit.
p. E/Magazine. 48 de Waal.no/darfur/A%20DARFUR%20WHOS%20WHO3. p.org/node/5544. ‘Ecology of Genocide’. 25 June 2007. p. 67 UNEP. 45 R. J E Austin and C E Bruch (eds). ibid. 46 de Waal. ‘Environmental Damage Blights Darfur.. 6 March 2007.. 3... cit. 2. p.240
Mechanisms For Achieving Environmental Justice in Darfur
______________________________________________________________ ibid. Cambridge. op. www... ‘Darfur: Historical and Contemporary Aspects’. 53 Johnson. 59 S Cage. 2006. cit. University of Bergen. ‘Darfur Conflict Worsens Environment’. cit. (last accessed 7 March 2008). op. op. p. ‘Scientific Assessment of the Long-term Environmental Consequences of War’. p. 50 Flint and de Waal. 60 UNEP. 58 ibid. 49 D H Johnson. p. Cambridge University Press. 2003. 66 Frances William. cit... 47 O’Fahey and Tubiana.
. op.. 69 S Bauer. 9. cit. 10. cit. S. p. 66. Darfur: The Long Road to Disaster. 93. op. 132. p. 56 UNEP. 68 ibid. www. cit. Says UN’. p. p.. 55 J M Burr and R O Collins. op. cit.. 2000. Princeton. p. 62 Burr and Collins.pdf. 139. 92. ‘Sudan Must Improve Environment to Gain Peace’.smi. p. 2.. op. Associated Press. 61 A de Montesquiou. Markus Wiener Publishers. cit. p. 83. op. Financial Times. p.uib. 2006. 65 World Watch Institute. 64 A K Biswas. 54 ibid.. 1. 64 ibid. p. 11. 86. p. The Root Causes of Sudan’s Civil Wars. 57 ibid. ‘Modern Warfare Causes Unprecedented Environmental Damage’. 5. p... 23 June 2007. O’Fahey and Jerome Tubiana. Oxford. 287. 52 ibid. James Currey.worldwatch. 303. Reuters. 51 de Waal. 9. p. in The Environmental Consequences of War. 85. p. 2008 (last accessed 7 March 2008). 21 June 2007. op. op. 3. Centre for Middle Eastern and Islamic Studies. cit.
92 ibid.... op. 644. 2007 (last accessed 7 March 2008). p. 82 ibid. Senior Attorney and Co-Director of International Programs with Environmental Law Institute. cit. 80. 95 Bromwich and Abdalla Adam. Cambridge University Press. 74 UNEP. Cambridge.Seisei Tatebe-Goddu
______________________________________________________________ ibid. 154. 2000. cit. William. 108. 73 World Watch Institute. ‘Waging War Against the World: the Need to Move from War Crimes to Environmental Crimes’. cit. www. 96 UNEP. 89 ibid. p. p. p. op. cit. 8(2)(b)(ii) 86 C Bruch. Cambridge. 624. op. p. 91 Roberts. 76 ibid. 1.. 1. p. J E Austin and C E Bruch (eds). op. p. 85 ‘Rome Statute’. 94 Telephone interview with Carl Bruch.. p. 83 ibid.unhcr. 90 ibid. 85. p. 82. p. p. op. cit. 628. p. in The Environmental Consequences of War. p.
. 626. cit. op. cit. op. p. 93 Falk. 84 ibid. p. 115. Art. 88 ibid.. p. 602. p. 8(2)(b)(iv) 80 UNHCR. 72 Bauer.. Art. J E Austin and C E Bruch (eds)... cit.org/publ/PUBL/467650372. 75 ibid.. Washington DC.. 1.. 630. 2000. Cambridge University Press.. p.pdf.. op.. on 3 September 2008. 643. 87 Drumbl. 79 ‘Rome Statute’. 13.. p. cit. cit. 78 M Drumbl. 640. in The Environmental Consequences of War. op. 624. op. p. 81 Drumbl.. 77 ibid. ‘Introduction’.. 9.
Falk. Bromwich. ‘The inadequacy of the existing legal approach to environmental protection in wartime’.. J. E. Bruch. 2000. Flint. Cambridge. 6 March 2007. E/Magazine. 2000. Tearfund – Reports. London. http://tilz. 2000. A. S. and Collins.. Austin and C. ‘Darfur: Relief in a vulnerable environment’. pp.
. pp. Crilly. R. and de Waal. Darfur: A Short History of a Long War. 13-15. Cambridge. E. 25 June 2007. ‘Ecology of Genocide’.242
Mechanisms For Achieving Environmental Justice in Darfur
Bauer. E. ‘Introduction’.htm. A. The Times Online. Princeton. R. S. A. Cambridge University Press.tearfund.. ‘Scientific assessment of the long-term environmental consequences of war’ in The Environmental Consequences of War. Cambridge.. Austin and C.. E. J E Austin and C E Bruch (eds).. Bruch (eds).org/Research/Disaster+Risk+Reduction+reports/Darfur+re lief+in+a+vulnerable+environment. 2006. C. 137-155. O. Biswas. 2007 (accessed 7 March 2008). Drumbl. B. ‘Darfur conflict is ‘warning to world’ of climate change peril’. Markus Wiener Publishers. 23 June 2007. Cage. 2005. and Abdalla Adam. in The Environmental Consequences of War. in The Environmental Consequences of War. in The Environmental Consequences of War.. E. ‘Sudan Must Improve Environment to Gain Peace’. 303-315. Bruch (eds).. Austin and C. Cambridge University Press. M. J.K. Cambridge University Press. Cambridge.. J. Cambridge University Press. R. pp. Reuters. ‘Waging war against the world: the need to move from war crimes to environmental crimes’. Darfur: The Long Road to Disaster.. E. 620-646. J. J. M. pp. Burr. Bruch (eds). 2000. Zed Books Ltd..
A.. Africa – UN’.unhcr.cfm?id=5180. 2007. ‘Darfur: Historical and Contemporary Aspects’. Ki-Moon. B. Oxford.Seisei Tatebe-Goddu
______________________________________________________________ Glassborow. J. D. University of Bergen – Centre for Middle Eastern and Islamic Studies. Johnson. ‘Darfur conflict worsens environment’. James Currey. Austin and C. ‘A Climate Culprit in Darfur’. and Violence. p. ‘International Court Urged to Consider Environmental Crimes in Darfur’. Washington Post. 2001. 2000..crisisgroup.org/home/index. E. T. J.. 602-619. in The Environmental Consequences of War.smi. O’Fahey. Darfur’s New Security Reality. 16 June 2007.. Scarcity.pdf. International Crisis Group (ICG). Bruch (eds). H. Environment. 2003. R.. de Montesquiou. ‘Chad/Darfur Emergency’.
.. The Root Causes of Sudan’s Civil Wars. ‘Environment the key to peace in Sudan. www.org/cgibin/texis/vtx/chad?page=camps. Environment News Service. J. 22 Jun. S. 2006. The Office of the United Nations High Commissioner for Refugees (UNHCR). Cambridge University Press. http://www. pp. 2007 (last accessed 7 March 2008). Cambridge. 21 June 2007. H. K. (last accessed 7 March 2008). ‘International legal mechanisms for determining liability for environmental damage under international humanitarian law’.no/darfur/A%20DARFUR%20WHOS%20WHO3. 30 August 2007. Deutsche Presse-Agentur.uib. A15. Princeton University Press.. Princeton. Associated Press. www. Lima. Homer-Dixon. F. 2008 (last accessed 7 March 2008). E. and Tubiana.. Henckaerts.
Cambridge. J. E.S. William. in The Environmental Consequences of War. 2002. Austin and C. ‘The law of war and environmental damage’. United Nations News Service. IRIN Africa.worldwatch.T. corrected through Jan. at www.unep.icc-cpi. 23 June 2007.org/sudan/. ‘Modern Warfare Causes Unprecedented Environmental Damage’. A. 2007 (last accessed 7 March 2008). F. UN News Centre. United Nations News Service. 2007. July 17. United Nations Environment Programme (UNEP). www. Rome Statute of the International Criminal Court. E. Washington DC. IRIN Africa.org/wp-
. ‘Darfur attack leaves thousands needing aid’.justiceafrica. ‘Environmental damage blights Darfur. ‘UN refugee agency alarmed after armed group prevents relocation of Darfurians’.N. ‘Un envoys warn Darfur ‘getting out of control’‘. _____. ‘Sudan: Post-Conflict Environmental Assessment’.org/publ/PUBL/467650372. Senior Attorney and Co-Director of International Programs with Environmental Law Institute. ‘Worsening situation in West Darfur jeopardizes aid efforts’. on September 3 2008. 20 February 2008.unhcr. 11 February 2008.org/node/5544. _____. www. Financial Times. 2000. Telephone interview with Carl Bruch. 13 February 2008.244
Mechanisms For Achieving Environmental Justice in Darfur
______________________________________________________________ Roberts. 2187 U. Bruch (eds). 3.int. 16. 15 February 2008. ‘The Darfur Peace Agreement: Part 10: Land’. de Waal. Post Conflict and Disaster Management – Reports. Cambridge University Press. (last accessed 7 March 2008).. Justice Africa Sudan – Papers and Articles www. says UN’. 1998.pdf.. 2008 (last accessed 7 March 2008). UN IRIN. World Watch Institute. www.. A. UNHCR.
. http://fic. and the United States Environmental Protection Agency.tufts.Seisei Tatebe-Goddu
______________________________________________________________ content/uploads/2006/07/DeWaal_Darfur_Peace_Agreement_10. ‘Challenges to Peace and Recovery in Darfur’. H. Relief International.pdf. Conservation Law Foundation Ventures. (last accessed 7 March 2008). (last accessed 7 March 2008).M. and Osman.pdf.edu/downloads/ChallengestoPeaceandRecoveryinDarfur. 2006. Seisei Tatebe-Goddu BA (McGill) is a Conflict Resolution Fellow at Insight Collaborative..
Young. Seisei’s previous experience includes working for the United Nations. A. Feinstein International Center. 2006.