Edited by

Sivaram Vemuri

Connected Accountabilities

Critical Issues

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

Edited by

Sivaram Vemuri

Inter-Disciplinary Press
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.

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, 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, 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, Ecological Survival, and Future Transcripts in the Historical Home-Based Health Narratives of Nova Scotia and West Virginia Deborah Stiles ix

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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 Andra Zhouri and Raquel Oliveira Mechanisms for Achieving Environmental Justice in Darfur Seisei Tatebe-Goddu

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Preface Sivaram Vemuri

The chapters of this book discuss a wide range of topics all related to environmental sustainability. These papers are all based on earlier versions presented and discussed at the Ecological Justice and Global citizenship conference in Mansfield College, Oxford in 2008. They provide an indication of the breadth of research and debate on environmental issues and provide a number of interesting perspectives. Case studies are taken from many and varied parts of the world, from European states such as the United Kingdom, Poland and Finland, to Africa including Darfur and Senegal, through to Brazil and also Atlantic Canada and Appalachia. All of the chapters, however, are also linked by two intertwining themes of accountability and connectedness. We are all accountable. A range of different accountabilities are identified and explored here. These include the responsibilities and rights of individuals, of groups, of societies, of governments, within countries and internationally. Accountabilities to each other and to the environment. In the same way, we are all connected. Or, increasingly, it seems, disconnected. While connectedness itself is explored in detail in a single chapter, the theme of connections inevitably runs through all of the chapters in the book. Connections between people: family, groups within society; connections between people and government; connections between investors and host states; connections between consumers and producers. Connections between people and the environment. And not least, connections between thought and action. A number of chapters describe instances where disconnections are evident. In todays world, there are many types and causes of disconnections. Between people - with immigration, breakdown of traditional family and social groupings; and between people and the environment. The two themes - accountability and connectedness - are obviously also intertwined. Where people become disconnected from society, from government, from family, from the environment, then they are not likely to recognise their accountability to society, to the environment. Linking the chapters of this book is the identification of so many connections that need to be in place, and working well, in order for environmental justice, for environmental sustainability to be achieved. The papers have been loosely grouped into three sets, which cover conceptual, legal and social/economic topics. The first four chapters grapple with concepts such as environmental ethics and the value of nature, environmental debt, conflicts within the environmental debate, and the importance of connectedness and participation.

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______________________________________________________________ The first chapter, in fact, looks at the concept of connectedness and disconnectedness - one of the key themes that run throughout this book. Siva Ram Vemuri examines a paradox. While globalisation has allowed the formation of new connections between individuals and groups across the world, there are also a growing number of disconnections - between individuals and groups, between groups and society, and also between thought and action. 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. The chapter argues for greater promotion of connectedness to improve social and environmental outcomes. Arvind Jasrotias chapter explores the philosophical issues involved in the environmental debate, proposing that, in order to build an environmental ethics, nature itself needs to be given a value: If something valuable is destroyed when nature is destroyed, then nature itself must have intrinsic value. Once an appropriate value is applied to nature, then the connection between people and nature, and therefore the accountability of people to the environment becomes more concrete. In the following chapter, Gert Goeminne and Erik Paredis provide an overview of the concept of ecological debt and its potential effect on the sustainability debate. Ecological debt assigns value to the networks of environmental and social links - sustainable or unsustainable, equitable or not - involved in producing a commodity. Ecological debt values the connections - and identifies the accountabilities - within and between communities as well as to the environment. 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. The chapter by Klemens Laschefski compares various streams of environmental thinking using the debate about alternative energy production - agrofuels in particular - to illustrate conflicts emerging between them. While ecological modernization promotes agrofuels as a viable alternative to fossil fuels and recommends regulation to control the agrofuel trade, 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. The next four chapters explore legal and participation issues. Two case studies explore participation and public consultation in environmental issues in Europe; one chapter discusses NGO participation in investment treaty arbitration in Brazil; and the other examines legal frameworks for community-based environmental initiatives. The chapter by Marko Ahteensuu looks at the public consultation process surrounding the release of GMOs, using Finland as a case study. The government is accountable to international laws as well as to the community. The findings highlight a democracy deficit in the three key areas of

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______________________________________________________________ availability of information, possibility of citizens affecting decisions and the transparency of the decision-making process. This type of deficit may have an effect on citizen participation in the consultation process. Similarly, 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. The case studies from Poland and from the UK relate to waste deposit sites that may be detrimental to the local environment. Tomoko Ishikawa investigates the ability of investment treaty arbitration tribunals to accept submissions of amicus curiae briefs by NGOs. These tribunals, investigating disputes between foreign investors and host states, now have the discretion to accept submissions from third parties, including NGOs. In a number of cases, such submissions highlight disconnections between government and local people, which can provide the tribunals with a broader perspective on issues involved in the dispute. 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. The discussion ranges from environmental justice to international human rights law and sustainable development. The last four chapters provide the reader with windows into some compelling case studies from around the world involving issues related to environmental sustainability. They also highlight the importance of connections to community and to the environment, and in particular local and/or traditional knowledge in natural resource management. The topics range from narratives of women from Nova Scotia and West Virginia, to the labelling of hand processed shellfish in Senegal, 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. Underdevelopment, unhealthy populations and ravaged landscapes in Atlantic Canada and Appalachia provide a backdrop for the paper by Deborah Stiles. 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. Omar Sarrs chapter examines the relevance and effects of a labelling initiative on traditional hand processed shellfish products from the Saloum delta in Senegal. Issues relating to quality and traceability, as well as economic efficiency and conservation of both biological and cultural diversity are discussed. Andrea Zhouri and Raquel Oliveira focus on the expansion of electric power generation in southeastern Brazil. They discuss the impact of the encroachment of large scale exploitation of natural resources on marginal

Preface

______________________________________________________________ economic areas occupied by ethnic minorities undertaking family-based agriculture. Using the case study of Darfur, Seisei Tatebe-Goddu looks at the issues of environmental crimes, including deliberate destruction of farmlands and contamination of drinking water sources, as well as the effects of a large displaced population. It highlights a deficiency in the current International Criminal Court legislation and proposes some possible alternatives. While the chapters in the book identify a number of difficult issues, they also provide hope and inspiration. Together they provide some background to the current situation. They show that there has been an increased awareness over the past thirty or so years, of the need to ensure environmental sustainability, and an increased recognition of the value of nature and the value of traditional and local knowledge. They deliver a number of important insights, not only into the pressing environmental issues of the present, but also, in many cases, related social issues that also need to be addressed. Some explore initiatives being undertaken; while others suggest ways forward. By promoting connectedness - and therefore participation - and accountability, on many levels, they indicate further steps that can be taken towards environmental and social justice and sustainability into the future. 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, InterDisciplinary.Net, Nancy Billias for bringing this to reality.

The Significance of Connectedness for Environmental Justice and Participation Sivaram Vemuri
Abstract Globalisation, especially through communicative channels and gadgets, has produced closer proximity between individuals and groups. The global connections and networks are closer than ever before. But environmental injustices prevail. Citizenship participation is also waning rapidly. This paper explores reasons for such continued prevalence of environmental injustices and lack of public consciousness. The concern of this paper is: Have individuals and societies become numb? Several forms of disconnections between the individual and the group, the group and society, as well as thought and action - will be examined. As connectivity affects genetic communication within a population, the paper calls for strategic involvement in significantly promoting connectedness. Key Words: Connectedness, globalisation, legal restrictions, strategic management. ***** 1. Introduction Connectedness is an essential prerequisite for effective provision of environmental justice. Although there is little disagreement with the significance of human connectedness, the gulf between what people say and do is increasing. Many blame the distancing between talk and action and its ramifications on globalisation. However, if anything, at one level, globalisation has joined people more so than ever before. But at another level individuals in the society feel a sense of despair. In the field of sustainable development many point to the increasing obsession governments have with the idea of global thought and local actions. 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 individuals pursuit of self-interest through efficient means. Moreover, workings of the two institutions of the twentieth century, markets and bureaucracies, became the focus of attention. These institutions are regarded as organisational skins that provide the necessary soul for promoting justice. Moreover, the nature of inquiry for sustainable futures was reduced from what needs to be done to what needs to be managed. Management is about getting things done in an appropriate manner.

The Significance of Connectedness

______________________________________________________________ People are at the very core of the management process. This paper is about the involvement of people. In particular, it is about how they are increasingly being managed to be involved and the effects this is having on environmental justice and public participation. The paper is organized as follows. The first section is devoted to connectedness. 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 - distributive, procedural and intergenerational, or what can be termed as temporal. The paper suggests the need for connectedness in simultaneously achieving justice on these fronts. In the third section, links between connectedness and global citizenship are explored. Connectedness is considered a necessary condition for empowering citizenship. Such an empowerment is essential for deliberating and achieving environmental justice. In the final section of the paper, a call is made for strategic inquiry to enhance connectedness in every field of inquiry. 2. Connectedness Connectedness: is a sense of being a part of something larger than oneself. It is a sense of belonging, or a sense of accompaniment. It is that feeling in your bones that you are not alone. It is a sense that, no matter how scary things may become, there is a hand for you in the dark. While ambition drives us to achieve, connectedness is my word for the force that urges us to ally, to affiliate, to enter into mutual relationships, to take strength and to grow through cooperative behaviour. 1 When one refers to connectedness there is simultaneity of focus about the individual and the group. Individualism and democracy have been the fundamental pillars of much of the global economic success. To this effect connectivity exists in two forms - connected and disconnected. Individuals need to be connected to achieve higher levels of development. Through formation of alliances there is greater efficiency in production. At the same time, they become disconnected to enjoy the fruits of growth. It is the dual focus on the individual utilities and societys welfare that is reflected in terms of aggregation and representation. Nowhere is this more explicit than in the fields of economics and politics. Although societies have experimented with several mechanisms and processes, there is overwhelming evidence that mechanisms based on selfregulating market processes, as well as streamlined public bureaucracies

Siva Ram Vemuri

______________________________________________________________ involving many levels of representations with a common purpose of pursuing rational economic behaviour became the clear winners. When markets failed to deliver envisioned economic betterment, it was acknowledged that the debate about plan vs. markets was futile and calls were made for creating policies to ensure markets function efficiently. At another level, identification of the issue of concern became the focus. Analysis of underlying forces became the focus of attention not only to help transmit individual needs to societal concerns at large, but also in creating scientifically rigorous and universally applicable mechanisms and processes. A transformation of concepts took place without much change in the fundamental thought process. Roles of the markets and governments continued to remain the focus of attention of discussions. For example, economic development was promoted as growth plus fundamental changes in the structure of the economy.2 For many proponents of aggregate economic analysis, pursuing economic development through growth-promoting factors, such as increases in national income, national employment and reducing inflation, without any focus on micro-foundations, was costless. In prescribing policies towards pursuing developments, costs were never mentioned until such time as publications concerning costs of growth gained attention. The limiting factors to growth and development became foci of realities with publications such as Limits to Growth of the Club of Rome, Bauers Dissent on Development, Hirschs Social Limits to Growth. Many recognised the realities of incurring costs in pursuit of development and responded intellectually by bringing in other social, environmental and ecological disciplines and extending the economic development framework by re-examining the micro-foundations of macroeconomic analysis. Calls for sustaining development were made and in 1987 sustainable development as a concept was conceived. Initially it was construed as emphasising environmental costs, although later the concept has been re-jigged against the background of realism, and social and cultural as well as political costs have been incorporated into sustainable development. A commonly recognised definition of sustainable development emerged from the Brundtland Commission report, as development that meets the needs of the present, without compromising the ability of future generations to meet their own needs. Representation and aggregation emerged as issues of concern once again in the context of sustainable development. It is now represented through three disciplines - the economic, social and the environmental - the so-called Triple Bottom Line. It is also aggregated differently. Not only is there an intergenerational time span incorporated into its notion, but also

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______________________________________________________________ boundaries represented through historical, political and geographical dimensions are transgressed. There are number of evidences that the political ramifications on resource allocation and distribution are increasingly being acknowledged in terms of environmental records. While the power of economics is not only recognised and indeed acknowledged as influencing political outcomes, the influence of economic forces are recognised to mould the character of humans,3 through use of money and monetary instruments. 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. The mix that has ultimately eventuated was the idea of unifying economics with environment. As a matter of fact, 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 power of a solution that bridges economic and environmental development, explains Jones, is that it has the potential to unite traditionally disparate factions of the progressive movement. For at least a generation, activists of all constituencies have believed they could fix their problems on their own, he says. But separatism wont work. On the environmental side, youll end up leaving so many people out that theyll be undoing all the good and undermining your efforts. On the social-justice side, says Jones, boosting wages with the same old dirty jobs inevitably ends up hurting the poor, accelerating problems like cancer and asthma.4 3. What Happened to Connectedness? Connectedness met the same fate as all other concepts in the fever that gripped the technocracy and bureaucracy. Actions and observations could not be converted into knowledge. Evidence-based decision-making was embraced for achieving efficiency of operations. However such actions had an influence on environmental justice. The mounting evidence of statistics concerning environmental crisis, injustices and above all unfairness could not be converted into thinking. Partly the reason was an obsession with exactness and partly a preoccupation with globalisation of issues related to environments. Although connectedness is one of the principal topological properties used to distinguish topologies, a sense of generality about these topological spaces prevails. One such topology is recurrence of themes about developing an understanding between businesses and environmentalists. Another relates to the creation of green jobs. A recurring theme in the sessions I attended was encouragement for entrepreneurs and activists to gain a

Siva Ram Vemuri

______________________________________________________________ deep understanding of how their communities work and how their governments spend, finding the cracks that could fund green jobs. It struck me that the organisations that had mastered this strategy (in one case, to the tune of half a million dollars) often grew out of a persons day-to-day experience with an environmentally hostile reality. Tied as much to environmental justice as conservation, if not more so, this conference offered stories of people like Bracken Hendricks, who decided to become a force for change after working with hazardous chemicals on a construction site, and La Donna Redmond, whose commitment to organic foods for her food-allergic son - bought at pricey health food stores - opened her eyes to the food desert that kept others in her community from having access to healthy foods. I also saw that the green jobs movement would depend on the same sort of reframing weve seen in the larger environmental movement. Many presenters were using green economy as a way to further the causes theyd championed for decades: issues like labour rights, ending poverty, and community revitalization. Supporters say that truly green jobs cant be outsourced, are available to the poor, provide living wages, and vitalise communities. The clear message was that the green jobs movement is like a speeding train on which everyone has a seat. In fact, several sectors of society must do just that if crucial highlevel policy change is to occur. The practical focus of green jobs was a shot in the arm for long-time environmentalists feeling the pressure to achieve rapid, massive change. Others whod never heard of green jobs found it an entre into a larger movement theyre only just beginning to approach. 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. Those include conservation, policy, technology, environmental justice, and racially divided subsets of each. Green collar jobs advocates throw economic justice into the

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______________________________________________________________ mix, asking us to look at environment through an economic lens and the economy through an environmental lens.5 These movements, 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. It is not having a very significant effect on knowledge. The core essential ingredient of knowledge creativity, namely imagination and experiences is confusing at best and being numbed deliberately. A disconnect has emerged between information and ideas. 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. It would indeed be impossible to fully come to grips with it totally, let alone prescribe comprehensive policies to influence it. At one time, real world complexity was therefore reduced in its dimensions into manageable parts. It is the imagination of the mind that allowed for such a phenomenon to occur. Indeed it was such imaginations that gave rise to the existence of disciplines. Nowadays imaginations and perceptions are considered real. The distinctions between imaginations and realities are blurred. A chasm is engulfing the mind. The connectedness is being redefined. It no longer has space and time constituents. It is becoming pragmatism as it has now more to do with ideas, beliefs and values. 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. It is therefore no surprise that knowledge is more effectively used today to justify wrong being done than to prevent it.6 Another form of disconnect is what can be termed disconnectedness arising from diaspora. This is mainly a result of globalisation of the human labour force and is a net effect of familial, historical and socio-cultural distancing. Globalisation has resulted in disconnecting knowledge and information from actions. The meaning of morality is no longer embedded in ideas but in recognising, reading, reviewing, relating to daily lives and transforming actions through reviewing and positioning ones own actions. It no longer is about acquiring knowledge as much as managing the knowledge one possesses. There is a level of consciousness to acquire, specify, pursue, maintain and rejuvenate connectedness in the event of globalisation. In place of real evidence, they are obliged to pile up over-whelming weights of documentation relating to human action - none of which is proof, little of it even illustration. This sort of material carries the forces of neither history nor creativity. What they are working with is circumstantial evidence.

Siva Ram Vemuri

______________________________________________________________ It is meant to create the impression of evidence by the force of weight. Whether this is credible or not, it becomes the basis of theoretically fixed measurements - a social truth has theoretically been established. This impression of knowledge leads to passivity in the social scientist. They claim to produce truths, but these are too fragile to produce anything other than passivity.7 Another form of disconnectedness is a result of organisational change. Organisations are increasingly responding to philosophical constructs and methodological underpinnings which advocate a dominant view that the current Western system of free markets, property rights, and the rule of law is in fact the best hope for environmentally sustainable development.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, wherein public choice transforms economic analysis into other realms of human action.9 Because of its popularity, this is considered a neutral framework and therefore universally just to pursue. Analysts at IMF and the World Bank often argue that crisis-hitnations need to introduce good governance into their societies. But the phrase is vague and vaguely understood. Good for whom and for what? Left unspoken is the fact that good governance often means good capitalist development. And that good governance is brought about by good politics and good culture.10 The existence of a value-neutral framework, along with its associated ramifications, supports advanced specification of policy prescriptions and enables the prospect of promoting uniformity of vision between global and local connectivity. It is in this context that the need for pursuing visions of thinking global and acting local came into existence. This view underpins every aspect of contemporary deliberation - including justice in general and environmental justice in particular - and is greatly reinforced through global and communication revolutions. 4. Justice Several theories of justice attempt to answer the question; what is justice? Aristotles attempted to define justice by identifying several categories of justice. He distinguished between distributive and corrective justice. Aristotle taught all things have a potential for development specific to their nature, the achievement of which is its particular good.11 Accordingly, the good of an acorn is to develop into a tree; anything

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______________________________________________________________ which assists this process is good for the acorn.12 He taught that human beings [too] have an inherent potential for good, the achievement of which it is the proper function of the State to facilitate.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.14 A good law is then one that enables its subjects, as social creatures, to achieve their maximum potential appropriate development.15 That is, a just law is one which enables individuals to achieve fullness in their nature in society.16 Further, a just law needs to be moulded in reason, unclouded by passion as well as intelligible.17 Aristotle defined two levels of justice - particular and universal.18 Universal justice is a morality higher than that embodied in good laws.19 Particular justice is embodied in particular provisions.20 Distributive justice is based on the principle that there has to be equal distribution among equals. Corrective justice seeks to restore equality when this has been disturbed which assumes that the situation that has been upset was distributively just.21 However, 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.22 Aristotles analyses arise from the political context in which they were advanced.23 The ancient Greek city-state were, by modern standards, extremely small political units and the politically enfranchised citizen body [constituted]a small proportion of the total population.24 Hence, 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. R W M Dias notes abstract philosophy played very little part in the practical outlook of the Roman lawyers, who were content for the most part to take over Greek philosophy.25 Cicero, a Roman orator, dwelt on Mans need for government and inquired into the basis of just government and the purpose and function of law.26 Cicero argued that law is the means of achieving just government, for the maximum liberty of action is best guaranteed by legal limitations; we are slaves of the law in order that we might be free.27 Further, he recognised the need for freedom from abuse of powerthat there are limits to the use of law as an instrument of power.28 R W M Dias writes that justice is not some thing, which can be captured in a formula once and for all; it is a process, a complex and shifting balance between many factors, including equality.29 Friedrich notes that justice is never given; it is always a task to be achieved.30 Laura Nader disagrees with the juxtaposition of discourse on law and order to discourse on social justice in America. She argues, It is possible to have order without justice.31 She notes that, for example, fascism may provide order without achieving individual or social justice.32

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______________________________________________________________ 5. Feudal Theories of Justice There were three social needs during the feudal period, which lasted from about the fifth century AD to the fifteenth century AD.33 The first was the need for order following a long period of chaos, need not for freedom, but for power to preserve the newly-won stability.34 Secondly, there was a need to establish the authority of the Church by reason and argument rather than force.35 In satisfying these two needs, Greek legal doctrines were unsuitable because to take over heathen doctrines would have been inconsistent with the authority of Christianity.36 Thirdly, the produce of the soil was the main source of subsistence, and men came to depend on landlords for land in return for specified services.37 Land was the source and measure of power.38 Accordingly, during the feudal period, Europe became divided into classes. Saint Thomas Aquinas developed a theory of law, known as the Thomist system that attempted to fulfil the social need for stability as well as retain the authority of the Church.39 Aquinas was influenced by Aristotelian theory. Under the Thomist system, the Church was the ultimate repository of authority and interpreter of divine law as revealed in the [(Christian)] Scriptures.40 Aquinas also preached that, although there is a duty to obey human laws in so far as they are reasonable, there is a concomitant need to avoid social disruption, which demands compliance with the occasional unjust law.41 That is, the moral obligation to obey fails in the case of a bad law unless greater scandal would result from disobedience.42 6. The Decline of Feudalism, the Emergence of the Merchant Class and Transformation of Feudalism During the feudal period, little trade was carried on because feudal estates produced everything that they needed.43 Feudal societies remained relatively self-enclosed.44 From the fifteenth century, enfiefed lands had steadily reverted to private property; they had become commodities valued more for their exchange value than for their use value.45 The merchant class began to gain power and emerged as a new middle class that owned much of the land.46 It used its power to transform the feudal legal system and its religious aristocracy into a capitalist state based on notions of contract, property, individual rights, equality, and constitutional democracy.47 Two freedoms were important to the development of capitalism and constitutional democracy:48 1. the freedom of individuals to enter into contracts and regulate relationships with others; and

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______________________________________________________________ 2. the freedom to regulate relations with things through property rights.

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.49 In their place, a new order was being constructed based upon notions of equality, freedom, growth and rational thought.50 Hobbes, 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.51 The social contract was conceived in terms of a surrender of the power of individuals to a State organisation, the sovereign.52 The social contract formed the basis of both the purpose and authority of the law.53 The idea that justice must not only be done, but also be seen to be done suggests both the ideological and material aspects of the rule of law.54 In his major work, Leviathan, Hobbes argued that the proper purpose of government and law was primarily to guarantee peace and order.55 Locke viewed the functions of the State to be slightly more complex. Locke conceived property to be land and personal rights. In the pre-contractual state, the even and effective protection of natural property rights would be uncertain and unsatisfactory.56 He concluded, The function of government and civil society is that of providing a sufficiently powerful way of protecting natural rights which existed independently of it.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; the contract was therefore with society and not government.58 Note that Hobbes, Locke and Rousseau devised their theories in different political contexts. Hobbes was responding to the troubled period in England of the reign of Charles I, the Civil War, the Cromwellian Commonwealth and, later, the Restoration; a time when the maintenance of peaceable order and the avoidance of civil collapse was crucial.59 John Lockes writings provided the theoretical accounting for the 1688/99 Glorious Revolution in which James II was overthrown and replaced, jointly, by William III and Mary II.60 Hence, Lockes concern was not with the perils of ungoverned anarchy but with what he considered to be the tyrannical government of James II.61 Rousseau was concerned only with the possibility of [formulating] any legitimate and sure principle of government, taking men as they are and laws as they might be.62 The difference in their socio-political setting may account for the differences of the three social contract theorists.

7.

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______________________________________________________________ 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.63 The Peace of Westphalia gave autonomous international status to more than three hundred Holy Roman Empire members.64 It also contained elements of the modern international legal order including peaceful settlement of international disputes, respect for religious freedoms and the rights of sovereigns of respective states to govern their internal affairs. After the end of the Thirty Years War, Hugo Grotius wrote his treatise, The Rights of War and Peace. It established secularised, geopolitical relationships between nations.65 It stated, Territory and its acquisition and control would be the basis of international law, as opposed to religious influence or doctrine.66 Grotius claimed that the natural (or inherent) law was that of social contract, freedom of seas to commercial maritime nations and the principles of free commerce.67 International law developed in the context of the development of capitalism, particularly through colonialism and long-distance trade. It also emerged largely to regulate the colonial efforts of western European nations in other parts of the world.68 International law would try to ensure that the pursuit of wealth, commerce, trade, and property in the race to colonize the world would be carried out by nations competing as legal equals in the emerging world order.69 Since World War II, the major efforts to establish the rule of law among nations have been made through the United Nations.70 International law and more particularly, the international human rights regime has also served as an external standard by which a States laws and political acts are evaluated. In 1973, John Rawls published his major thesis, A Theory of Justice which set out principles of justice and revived the socialcontractarian thinking of the seventeenth century.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, not what their particular interests and inclinations will be.73 Conducting this experiment, he formulated two principles of justice, the first being primary to the second:74 1. 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; Social and economic inequalities are to be arranged so that they are both a. to the greatest benefit of the least advantage, consistent with the just savings principle, and 8.

2.

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______________________________________________________________ b. attached to offices and positions open to all under conditions of fair equality of opportunity.

Theories of rights developed during the 1960s and 1970s. Ronald Dworkin published his thesis, Taking Rights Seriously, in 1977. Dworkin argued the majority should not be able to ride roughshod over the minoritys legal rights.75 Further, judges act as the protectors of individual rights against the State as well as between individuals.76 The idea of intergenerational justice also developed during the twentieth century. Rawlss just savings principle is reflected in contemporary writings on intergenerational justice.77 Particularly, in the context of the concerns of the late twentieth century, energy policy serves as an obvious instance for the operation [and expression] of the just savings principles.78 Rawlss just savings principle refers to the human concern for at least the generation next following, which may impose limits upon the use of resources by any given generation.79 Intergenerational justice has been referred to in debates concerning apologies to the Stolen Generation in Australia, as well as punishing crimes against humanity and genocide. 9. Environmental Justice Note that land and more importantly, ownership of land has been both a social, legal and economic concept throughout history. As such, environmental law is influenced significantly by the way in which society, law and economics deals with land ownership. Under the feudal system, land was not considered something to be bought or sold, but something to be used.80 The value of land lay [only] in the uses it could be put to, such as agriculture and recreation.81 Under the capitalist system, land became privately owned and the property owner could use it as he wished.82 This capitalist conceptualisation of private property forms the basis for much of environmental law.83 The Green Revolution and Legal Responses The Green Revolution was a social movement that gained prominence in the 1980s.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.85 T C Caputo et al consider three possible legal vehicles to achieve environmental justice; rights such as water rights, common law remedies and environmental protection legislation.86 Considering the period from 1920 to 1989 in Canada and North America, they explain that all of these vehicles are limited. For instance, much of the focus of common law remedies to environmental disputes is on land and the rights of landowners, as opposed to the rights of the public, who are often directly affected by environmental 10.

Siva Ram Vemuri

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______________________________________________________________ problems before the courts.87 Marie Fox also notes the advantages of and problems with using tort, planning law and public law to tackle environmental problems.88 Assessing the United States experience, Ted Schrecker notes the practical limitations of legal solutions to environmental problems in his essay, The Political Context and Content of Environmental Law.89 11. Contemporary Views of What Environmental Justice Is Ideas concerning environmental justice have developed since the 1990s. David N Pellow provides a modern definition of environmental justice: Environmental justice (EJ) refers to those cultural norms, values, rules, regulations, behaviours, policies, and decisions to support sustainable communities where people can interact with confidence that the environment is safe, nurturing and productive. Environmental justice is served where people realize their highest potential.90 He draws on Rawlss language stating environmental justice seeks both justice as fairness and justice as mutual respect owed to human beings as moral persons.91 Pellow argues that environmental inequality and environmental racism are forms of environmental injustice. His paper, Environmental Inequality Formation, defines and explains these concepts further.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 environmentalsociety relationships and provides a theoretical foundation for understanding why people are struggling for environmental justice.93 Environmental justice relates simultaneously to three forms - the distributive, procedural and temporal aspects. Ideas concerning environmental justice have developed since the 1990s. Disconnectedness therefore is the common platform whereby individuals, families, histories, societies, institutions, organisations, information and knowledge, as well as philosophical and religious values, are contributing to the intellectual vacuum for addressing environmental injustices. Creation of such universally rationalistic base-line frameworks pose challenges for prescribing policies that have real world significance. 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. Globalisation is further

14

The Significance of Connectedness

______________________________________________________________ assisting in popularising the notion of adopting a value-neutral framework throughout the world economies. Continuous interactions of influential interpretations resulted in a global synthesis of economic prescription. Policies are prescribed based on assumptions of modern day economic analysis, namely, that motivations propagated through self-interest dominate micro analysis, whereas macro level interactions are results of pursuing prescriptions based on public-choice theory. It is assumed that economic opportunity and freedom to choose are the building blocks for achieving environmental justice. High priority is placed on promoting opportunity, facilitating empowerment, and enhancing security in a vacuous environment devoid of socio-political-economic-cultural differences. Many developmental advocates even actively promote the destruction or at least the weakening of social and political groups, especially indigenously rooted and corporate ones like the village, intermediate between the State and the individual or family.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). They consider these to obstruct development: enclaves, segmented markets, villages and tribes, strong provinces and sub-regions under local control, religious institutions that affect their members important decisions, minority groups that preserve their own languages, and so on. The more effectively organized these are by their members, the more antithetical to development. These modernizers argue that in its drive toward development, the State must liberate individuals from their traditional social context so that, economically, they can seek out and make more productive links with complementary resources throughout the economy.95 These are counterbalanced by a view that actively promotes connectedness to everything that individuals pursue. 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, is a secondary or tertiary business, well behind policy and purpose and, for that matter, effectiveness.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. In the words of Saul it is our current obsession with the invisible hand of the marketplace that we look towards connectedness. 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. Perhaps this is what the Indigenous elder from Northern Australia was trying to teach me when he said we must begin, end and deal with only reality in a

Siva Ram Vemuri

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______________________________________________________________ conscious way if we are to achieve environmental participation. justice and public

Notes
E M Hallowell, Finding the Heart of the Child, Association of Independent Schools in New England, Inc., 1993, p. 196. 2 M Gills, D H Perkins, M Roemar and D R Snodgrass, Economics of Development, W W Norton, New York, 1983, p. 68. 3 J Mulberg, Social Limits to Economic Theory, Routledge, London, 1995, p. 51. 4 http://gristmill.grist.org/story/2008/4/9/94049/58299 5 http://gristmill.grist.org/story/2008/4/10/8346/44842 6 J R Saul, The Unconscious Civilization, Penguin Books, Victoria, Australia, 1987, p. 46. 7 ibid, pp. 71-72. 8 J Taylor, Sustainable Development: A Dubious Solution in Search of a Problem, Policy Analysis, vol. 449, 2002, pp. 1-49. 9 R Ekelund & Herbert, A History of Economic Theory and Method, Waveland Press, London, 2004, p. 548. 10 T Larsson, The Race to the Top: The Real Story of Globalisation, Cato Institute, Washington, 2002, p. 101. 11 ibid, p. 63. 12 ibid. 13 ibid. 14 ibid. 15 ibid. 16 ibid, p. 75. 17 ibid. 18 ibid, p. 63. 19 ibid. 20 ibid. 21 ibid, p. 65. 22 ibid, p. 64. 23 ibid. 24 ibid. 25 ibid, p. 76. 26 ibid. 27 ibid. 28 ibid. 29 R M W Dias, Tort Law, Oxford University Press, Oxford, 1999, 4th edition, op. cit., p. 66.
1

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______________________________________________________________ ibid. L Nader, The Origin of Order and the Dynamics of Justice in New Directions in the Study of Justice, Law and Social Control, M J Lerner (ed), Plenum Press, New York, 1990, p. 189. 32 ibid, p. 191. 33 ibid, p. 77; Law and Society: A Critical Perspective. Canada, Harcourt Brace Jovanovich, 1989, p. 25. 34 Dias, op. cit., p. 77. 35 ibid. 36 ibid. 37 ibid, p. 78. 38 ibid. 39 ibid. 40 ibid. 41 ibid; ibid, pp. 65-71. 42 J Penner, McCoubrey & White's Textbook on Jurisprudence, Oxford University Press, Oxford, 2008, 4th edition, p. 70. 43 Law and Society: A Critical Perspective. Edited by T C Caputo et al, Canada, Harcourt Brace Jovanovich, 1989, p. 26. 44 ibid. 45 ibid. 46 ibid. 47 ibid, p. 27. 48 ibid. 49 Penner, op. cit., p. 72. 50 Caputo et al, op. cit., p. 296. 51 ibid. 52 Penner, op. cit., p. 72. 53 ibid. 54 Caputo et al, op. cit., p. 296. 55 Penner, op. cit., p. 73. See also pp. 73-74 for more detailed information on Hobbes. 56 ibid, p. 75. 57 Penner, op. cit., p. 75. 58 ibid, p. 77. 59 ibid, p. 73. 60 ibid, p. 75. 61 ibid. 62 ibid, p. 77. 63 Caputo et al, op. cit., p. 77. 64 ibid.
31 30

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______________________________________________________________ ibid. ibid. 67 ibid. 68 ibid. 69 ibid. 70 ibid, p. 78. 71 Penner, op. cit., p. 235. 72 ibid. 73 ibid. 74 ibid, pp. 237-239. 75 ibid, p. 142. 76 ibid. 77 See B Barry, Justice Between Generations in Law, Morality and Society. P M S Hacker and J Raz, Clarendon Press, Oxford, 1977. 78 Penner, op. cit., p239. 79 ibid. 80 ibid. 81 ibid. 82 ibid. 83 ibid. 84 M Fox. Earth Matters? Legal Regulation and Environmental Control, in Law, Society and Change. S Livingstone and J Morison, Dartmouth Publishing, Vermont, 1990, p. 71. 85 ibid. 86 Caputo et al, op. cit., pp. 166-171. 87 ibid, p. 166. 88 M Fox, op. cit., p. 80. 89 T Schrecker, The Political Context and Content of Environmental Law, in Law and Society: A Critical Perspective. T C Caputo et al, Harcourt Brace Jovanovich, Canada, 1989, pp. 173-198. 90 D N Pellow, Environmental Inequality Formation: Toward a Theory of Environmental Justice. American Behavioral Scientist, vol. 43(4), Jan. 2000, pp.581-601, p. 582. 91 ibid. 92 ibid, pp. 581-601. 93 ibid, p. 587. 94 G E Goodell, The Elementary Structures of Political Life; Rural Development in Pahlevi Iran, Oxford University Press, New York, 1986, p. 124. 95 John Ralston Saul, The Unconscious Civilization, 1987, Penguin books, Victoria, Australia, p. 100.
66 65

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______________________________________________________________

Bibliography
Barry, B., Justice Between Generations, in Law, Morality and Society. P. M. S. Hacker and J. Raz (eds), Clarendon Press, Oxford, 1977. Caputo, T.C. et al. (eds), Law and Society: A Critical Perspective. Harcourt Brace Jovanovich, Canada, 1989, p. 26. Dias, R M W, Tort Law, Oxford University Press, Oxford, 1999, 4th edition. Ekelund, R., and Herbert, R., A History of Economic Theory and Method, Waveland Press, London, 2004. Fox, M., Earth Matters? Legal Regulation and Environmental Control, in Law, Society and Change. S. Livingstone and J. Morison (eds), Dartmouth Publishing, Vermont, 1990, p. 71. , M., D. H., M.nd, D. R..., G. E. ,, p., E. M. http://gristmill.grist.org/story/2008/4/10/8346/44842 http://gristmill.grist.org/story/2008/4/9/94049/58299 T.Mulberg, J., Social Limits to Economic Theory, Routledge, London, 1995.Nader, L., The Origin of Order and the Dynamics of Justice in New Directions in the Study of Justice, Law and Social Control. M. J. Lerner (ed), Plenum Press, New York, 1990, p. 189. Pellow, D. N., Environmental Inequality Formation: Toward a Theory of Environmental Justice. American Behavioral Scientist, vol. 43(4), Jan 2000, pp. 581-601. Penner, J., McCoubrey & White's Textbook on Jurisprudence, Oxford University Press, Oxford, 2008, 4th edition. J. R. Schrecker, T., The Political Context and Content of Environmental Law, in Law and Society: A Critical Perspective. T. C. Caputo et al, Harcourt Brace Jovanovich, Canada, 1989, pp. 173-198. Siva Ram Vemuri is an Associate Professor of Economics at Charles Darwin University, Darwin, NT, Australia. His current research is in the area of sustainable use of resources available in environments.

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, we have no reason to value nature for itself. How can a purely secular ethic, their argument goes, 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, we can show the undesirability of environmental degradation only to an extent, we cannot show it to be undesirable in general.2 The endeavour of environmental ethics remains fundamentally incomplete without the clarification of intrinsic value. After all, the initial philosophical problem sparked by the environmental crisis concerns this question directly: something is wrong with the destruction of nature, something valuable is destroyed, how can we make theoretical sense of the value apparently contained in nature? Hence, the question of natures value is not peripheral or supplementary to the task of environmental ethics. It lies at the very heart of the philosophical endeavour. Key Words: Biocentrism, ecocentrism, environmental ethics, green thinking, intrinsic value. ***** 1. Introduction The Planet Earth appears restive. 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. Mans greed attacks nature, and wounded nature backlashes on the human future. The environment has clearly emerged as one of vital contemporary issues, we face. The foundations of global security are threatened. These trends are perilous - but not inevitable.1 Earths resources are finite and there are ecological limits to growth, which, unless we alter our ways, will be exceeded sooner rather than later. The environmental crisis involves social, political and economic aspects, but it also poses a philosophical problem - to build an environmental ethics that constructs an adequate theory of intrinsic value of nature as a whole. Environmentalists fear that without a belief in a whole that is greater than

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The Value of Nature

______________________________________________________________ us, we have no reason to value nature for itself. How can a purely secular ethic, their argument goes, 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, we can show the undesirability of environmental degradation only to an extent, we cannot show it to be undesirable in general.2 The endeavour of environmental ethics remains fundamentally incomplete without the clarification of intrinsic value. After all, the initial philosophical problem sparked by the environmental crisis concerns this question directly: something is wrong with the destruction of nature, something valuable is destroyed, how can we make theoretical sense of the value apparently contained in nature? Hence, the question of natures value is not peripheral or supplementary to the task of environmental ethics. It lies at the very heart of the philosophical endeavour.3 Environmental Ethics Ethical dilemmas abound in environmental politics. Environmental ethics, by examining questions about how humans ought to think about and act towards nature, provides a link between theory and practice. Environmental philosophy envisages strong normative element, which is primarily concerned with values. Does nature have value separate from its role in meeting human needs? Indeed, how to discover intrinsic value in nature is the defining problem for environmental ethics. For, if no intrinsic value can be attributed to nature, then environmental ethics is nothing distinct. If nature lacks intrinsic value, then environmental ethics is but a particular application of human-to-human ethics. In other words, if nature lacks intrinsic value, then non-anthropocentric environmental ethics is ruled out. 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. 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, perhaps exclusive, significance - humans are placed at the centre of the universe, separated from nature, and endowed with unique values.4 Anthropocentrism regards only humans as having intrinsic value, a claim usually based on their capacity either to experience pleasure and pain or to reason; and furthermore, that only humans have interests. The rest of nature is of instrumental value; it has value and deserves moral consideration in so far as it enhances human well-being. On this account, environmentalism is just an expression of enlightened self-interest.5 Contrary to this view is the biocentric or ecocentric vision. Ecocentrism rejects the human chauvinism of anthropocentrism and argues that all of nature has intrinsic value. Ecocentrics object to human chauvinism, not to humans; they want human and human culture to blossom and flourish, 2.

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______________________________________________________________ just as they do other species. Their emphasis on the welfare of the non-human world is an attempt to correct an imbalance in philosophical and social science theory. Granting intrinsic value to nature would make a huge practical difference. It will encourage civil society to change its behaviour towards nature. 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, and that value existing independently of humans. Many leading contributors are also committed activists whose main objective is to develop a robust environmental activist theory to underpin green activism. Radical perspectives, such as deep ecology, 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. For example, the Deep Ecology championed by the Norwegian Arne Naess and others is a modern ecological version of traditional mysticism. It promises self-realisation through communion with Nature understood as a seamless whole. 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, thereby averting ecological catastrophe. As a philosophy and as a movement, 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, though it has had its share of criticism also.6 In common parlance, the characterisation of the deep ecology platform is based upon the following eight points: 1. 2. 3. 4. 5. Human and non-human life alike has intrinsic or inherent value. Richness and diversity of life contribute to realizing these values, and are themselves valuable. Humans have no right to reduce richness and diversity except to satisfy vital needs in a responsible manner. Present human interference with the non-human world is excessive and rapidly getting worse. Human lifestyles and populations are key elements of this impact. The diversity of life, including cultures, can flourish only with reduced human impact. Economic, technological and ideological policies must be changed, in a way that leads to state of affairs deeply different from the present. The ideological change must involve appreciating the inherent value of all life, rather than continually increasing the material living standard.

6.

7.

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______________________________________________________________ 8. Those who subscribe to the foregoing points have an obligation to participate in implementing the necessary changes in a peaceful and democratic way.7

The deep ecology perspective is informed by the idea of symbiosis. It intuits for a closer identification of the human self with nature that could provide a rationale for nurturing higher ecological consciousness. By seeing ourselves as part of nature and by identifying more closely with it, to the extent that the other (nature) becomes part of our self, a self-realisation dawns, upon which we can develop obligations to non-human nature. Only by changing the way we perceive and think about nature can we overcome the current ecological crisis. The continuity of self and nature means that, if the individual self is intrinsically valuable, then nature must also be intrinsically valuable. 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. 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. 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. 3. Indian Philosophy and Mysticism India is a land of varied religions living together in harmony. The cultural and spiritual heritage of India is both vast as well as rich. But there is nothing sectarian or regional about it. It is so universal in its appeal and so catholic in its approach that it belongs to the whole world. Its setting is no doubt Indian, but its content is such as to cover all aspects of human life, irrespective of geographical units and historical expressions. It is both universal and timeless and, as such, applies to peoples of all ages and of all countries. A good environmental sense has been one of the fundamental features of Indias ancient philosophy. The civilisation of India had grown up in close association with nature. There has always been a compassionate concern for every form of life in the Indian mind. This concern is projected through the doctrine of Dharma, the concept of righteousness, (which includes justice) preached by every religious school that flowered in our land. The Hindu Rishis of the Vedic era perceived the value of maintaining a

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______________________________________________________________ harmonious relationship between the needs of man and spectacular diversity of the Universe. To them, nature was not only the mother that sustained their life; it was the abode of divinity. Sanctity of life, to them, included not only efforts to seek salvation, but seeking it by developing a sacred attitude towards spiritual significance of nature. Man, in Hindu culture, was instructed to maintain harmony with nature and to show reverence to the presence of divinity in nature.8 The Vedic Hymn to the Mother Earth, the Prithvi Sukta in Athravaveda is indisputably the oldest and the most evocative environmental invocation. The Hymn is redolent with ecological and environmental values: Earth, in which lie the sea, the river and other waters, In which food and cornfields have come to be, In which lives all that breathes and moves, May she confer on us the finest of her yield. Earth, in which the waters, common to all, Moving on all sides, flow unfailingly, day and night, May she pour on us milk in many streams, And endow us with lustre. May those born of thee, O Earth, Be for our welfare, free from sickness and disease, Wakeful through a long life, we shall become, Bearers of tribute to thee, Earth, my Mother, set me securely with bliss, In full accord with heaven, O wise one, Uphold me in grace and splendour.9 The idea of Divine Being as the one underlying power of unity is beautifully expressed in Yajurveda: The loving sage beholds that Being, hidden in mystery, Wherein the universe comes to have one home; Therein unites and there from emanates the Whole; The omnipresent one pervades souls and matter, Like warp and woof in created beings.10 An analogous interpretation of holistic perception is given in the traditional system of Advaita Vedanta in India, as the acme of spiritual realization, in which the entire physical world appears identical with oneself and Brahman, the ultimate reality. If, as the cosmology of the Upanishads tells us, everything has come out of Brahman and is non-different from Brahman, and if Brahman has entered into all things as it has entered into all

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______________________________________________________________ human beings, and has stayed there as the antrayamin (the inner dweller) of all, then it will be no wonder that all this should verily be Brahman. This is the highest knowledge. 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 cosmic vision of our planet Earth is based on the fundamental concept of Vasudev Kutumbakam (all indeed is Vasudeva, the Eternal Reality). The way forward will require a turn towards restoration and renewal. Vedic profundity reaffirms the importance of justice, prudence, humility and reverence for life and nature. 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. The affirmation of the intrinsic worth and something like rights of (or duties towards) each individual person and all animal and plant species, and in some ways nature and ecosystems, carries the correlate of recognising our own limits in claiming the fruits of the earth and in managing and manipulating nature.11 The invocation to the Isavasya Upanishad, while stressing the intrinsic value of nature, emphatically declares: That is Whole; This is Whole, The Whole comes out of the Whole, Taking the Whole from the Whole, The Whole remains.12 The invocation obviously speaks of the intrinsic quality of things. The Whole resides even in the part - that indeed is the very nature of quality. The one central theme underlying all the Upanishads is that Brahman and Atman are identical. The nature of Brahman resides in the Atman. There can be no qualitative difference between the two. Reality must be present in its qualitative aspect even in the lowliest of its expressions. It is to this that the Bhagvad Gita refers when it speaks of Avibhaktam ca bhutesu - Undivided even in the midst of division.13 In the background of this invocation, that first verse of the Upanishad assumes a significant meaning. By Isa (the Lord) enveloped must this all be, Whatever moving thing there is in the moving world. With this renounced, thou mayest enjoy, Covet not the wealth of another.14 The above verse says that Reality pervades everything. The part that is assigned to one can alone be the source of ones joy. 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. The injunction is to develop

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______________________________________________________________ harmony with nature and not to exploit the resources of nature for ones own selfish purpose. The idea of inter-generational justice, one of the salient features of sustainable development, is most graphically brought out in the following verse in Srimad Bagvad Gita. The righteous who eat the remains of sacrifice Are freed from all sins, But the impious who prepare food for their own sake Verily they eat sin.15 According to Gita, he who prepares food for himself, he who seeks nourishment from his own selfhood - he verily eats sin. Such is the beautiful exhortation of Sri Krishna to Arjuna. According to Krishna, it is the sacrifice, which is the sustaining force of all creation - a fact that was forsaken by the developed nations in the mindless pursuit of development, thereby leading to global environmental degradation. 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. Agni Puran says: Equal to ten wells is a tank, Equal to ten tanks is a son, Equal to ten sons is a tree.16 In India, 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, which is interdependent and indivisible. If the deterioration is for a short term and the life support system has enough resistance, it repairs itself and reverts to its original state. However, if the deterioration continues, the whole system is thrown out of gear.17 For our survival, we have to be vitally savage and mentally civilised. We have to be natural with nature and humane with human society. Redemption lies in striving for a balance. The poet Rabindranath Tagore gives expression to this idea in the following passage. The progress of our soul is like a perfect poem. It has an infinite idea, which once realized makes, all movements full of meaning and joy. But if we detach its movements from the ultimate idea, if we do not see the Infinite Rest and only see the Infinite Motion, then existence appears to us a monstrous evil, impetuously rushing towards an unending aimlessness.18

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______________________________________________________________ As man occupied the highest and the noblest place among the animals, in the same way the tree is regarded as the highest and noblest production of the vegetable kingdom. The trees and their grandeur as forests, and their mysterious forms, suggest that they are the abodes of the existing agencies of the Creator and are vital component in the beauty of a landscape. The Upanishadic tradition of imparting education was performed in the Gurukals situated in the dense forests, thereby affording an opportunity to the disciples to commune with the nature. The tree occupies a venerable place in Buddhism. Siddhartha, after long days of penance, attained enlightenment under a Bodhi tree. 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, affords protection to all beings and offers shade even to a woodsman who destroys it.19 Jainism also lays stress upon the indisputable principle of cultural environment; that one should refrain from easily avoidable acts, harmful to self or to other. Ahimsa, which is the fundamental postulate of the Jaina way of life, touches the deepest and noblest aspects of human nature maintaining that truth, harmony and compassion, based on spiritual and physical symbiosis must be the foundation for any civilised community.20 Sikh religion and philosophy are also deeply related to nature. In the Mul-Mantra (the seminal formula), while discussing the basic attributes of God, Guru Nanak calls Him the Karta Purukh (Creating power of the Universe). He perceives Him as the inner self of all living beings. He Himself is the Creator and the Created including the act of Creation. Guru Granth Sahib states: Thou the Primal Being, all-pervasive beyond extent, Creator unknowable Thy limit, And Thou art immanent too, pervading all, Merged in One.21 The beauty of His creation is another incomparable characteristic. The physical world is full of wonderful specimens of His creation, as has been beautifully depicted in Guru Granth Sahib. From among the major tenets of Sikhism is Vand Ke Chakko (eat after sharing). Man does not exercise absolute control over nature. Sikh Gurus strongly warn mankind against any attempt to control nature of the world. Upset the balance and out of order will come chaos. Out of Gods perfect ecological balance will come ecological upheaval. Vedic profundity reverberates in the writings of modern philosophers and scholars from the East. In Sri Aurobindos Savitri, the saintcum-scientist tells us:

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______________________________________________________________ A death bound littleness is not all we are; Immortal our forgotten vastness; Await discovery in our summit selves; Unmeasured breadths and depths of being are ours.22 The renaissant India finds in Gandhi, Tagore, Nehru and other eminent thinkers, an attempt to reinforce the philosophy of human-nature unity within a holistic civilisational framework. Gandhijis Sabarmati and Tagores Santiniketan are instances of both protest and innovation. Swami Vivekananda, a philosopher and seer of India, 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, philosophy, arts and sciences. Spirituality is a still higher plane.23 Thus, Vedic traditions established the principles of ecological harmony centuries ago - not because the world was perceived as heading for an imminent environmental disaster or because of any immediate utilitarian exigency, but through its quest for spiritual and physical symbiosis, synthesised in a system of ethical awareness and moral responsibility. 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. The Vedic profundity tends to develop a non-anthropocentric or ecocentric ethic. 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, human development is primarily about being more, not having more. Let us be natures patriots. The life will survive only if the biosphere is safe. 4. In Search of a Convergence Paradigm Successful environmental policies require many things, the most vital being the support of the common masses - and that happens only if there is an ethical commitment to environmental values and the moral passion to realise them, which is lacking in large sections of the human population. Since effective policies require that the civil society be sensitised, so to speak, the question is: what kind of ethic will suffice for them? Holistic arguments attempt to derive an ought from an is, i.e. they shift from a description of the way nature works to a prescription for an ethical system

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The Value of Nature

______________________________________________________________ thereby reappraising the human-nature relationship and to think seriously about the duties we owe to the natural world. However, an ideology also needs a coherent political dimension, including a strategy for political change and a policy programme. Ecocentrics have been criticised for being more concerned with getting the philosophy right, for example elevating the anthropocentric-ecocentric debate into a litmus test for greenness, rather than developing practical political programme for change.24 Consequently, as environmental politics has become more mainstream, so environmental activism has become increasingly reconciled to reformist strategies, which work within the legislative process and the boundaries of civil society. How should we assess this development? Not surprisingly, since the late 1980s, sustainable development has become the dominant policy discourse, not just for governments, international organisations and businesses, but also for the environmental movement itself. Even the 1992 Rio Declaration refers to the further development of international law in the field of sustainable development. The UN Environment Programme adopted a more nuanced approach, where the 1997 Nairobi Declaration refers to international environmental law aiming at sustainable development.25 According to the Brundtland Report, sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs.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; in particular, the essential needs of the worlds poor, to which overriding priority should be given. The idea of limitations imposed by the state of technology and social organisation on the environments ability to meet present and future needs.

Over the years, sustainable development has rapidly become part of popular language, a range of intellectual disciplines and the basis for balancing ecological imperatives with developmental goals. However, there are substantial controversies as to how to translate it into practice and develop standards and indicators to assess whether it is being achieved. The core of mainstream sustainability thinking has become the idea of three dimensions, environmental, social and economic sustainability. These have been drawn in a variety of ways, as pillars, concentric circles, or interlocking circles. The IUCN Programme 2005 - 2008, adopted in 2005, used the interlocking circles model to demonstrate that the three objectives need to be

Arvind Jasrotia

29

______________________________________________________________ better integrated, with action to redress the balance between dimensions of sustainability.27 An examination of international law, policy and ethics reveals that the central basis of international environmental law remains anthropocentric, based on a mlange of self-interest and economic advantage as well as some religious, aesthetic, and cultural practices. Nonetheless, the new nonanthropocentric developments reveal a growing recognition of intrinsic values, ecological interdependence, and the need for a holistic approach as is evident from UN-adopted World Charter for Nature, which proclaimed the holistic principles of conservation by which all human conduct affecting nature is to be guided and judged. Also, 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, a recognition of the interdependence of humanity and the entire natural world, expressed most characteristically in the notion of the world as a biosphere, and implicit in both the Convention on Biological Diversity and Climate Change. 5. Epilogue: A Shared Vision of Basic Values We stand at a critical moment in Earths history, a time when humanity must choose its future. 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, degradation and pollution. As the world becomes increasingly interdependent and fragile, the future at once holds great peril and promise. We must join together to bring forth a sustainable global society founded on respect for nature, universal human rights, economic justice and a culture of peace. 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. The following interdependent principles form a sustainable way of life as a common standard by which the conduct of all individuals, organisations, businesses, governments, and transnational institutions is to be guided and assessed. A. Respect and Care for the Community of Life 1. 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.

30

The Value of Nature

______________________________________________________________ Affirm faith in the inherent dignity of all human beings and in the intellectual, artistic, ethical, and spiritual potential of humanity.

2.

Care for the community of life with understanding, compassion, and love Accept that with the right to own, manage, and use natural resources comes the duty to prevent environmental harm and to protect the rights of people. Affirm that with increased freedom, knowledge, and power comes increased responsibility to promote the common good.

3.

Build democratic societies that are just, participatory, sustainable, 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. Promote social and economic justice, enabling all to achieve a secure and meaningful livelihood that is ecologically responsible.

4.

Secure Earths 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, traditions, and institutions that support the long-term flourishing of Earths human and ecological communities. 28

B. Ecological Integrity Protect and restore the integrity of Earths ecological systems, with special concern for biological diversity and the natural processes that sustain life.

Arvind Jasrotia

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______________________________________________________________ Prevent harm as the best method of environmental protection and, when knowledge is limited, apply a precautionary approach. Adopt patterns of production, consumption, and reproduction that safeguard Earths regenerative capacities, human rights, and community wellbeing. Advance the study of ecological sustainability and promote the open exchange and wide application of the knowledge acquired.

C. Social and Economic Justice Eradicate poverty as an ethical, social, and environmental imperative. Ensure that economic activities and institutions at all levels promote human development in an equitable and sustainable manner. Affirm gender equality and equity as prerequisites to sustainable development and ensure universal access to education, health care, and economic opportunity. Uphold the right of all, without discrimination, to a natural and social environment supportive of human dignity, bodily health, and spiritual wellbeing, with special attention to the rights of indigenous peoples and minorities.

D. Democracy, Non-Violence, and Peace Strengthen democratic institutions at all levels, and provide transparency and accountability in governance, inclusive participation in decision making, and access to justice. Integrate into formal education and life-long learning the knowledge, values, and skills needed for a sustainable way of life. Treat all living beings with respect and consideration. Promote a culture of tolerance, nonviolence, and peace.

32

The Value of Nature

______________________________________________________________ Our common destiny beckons us to seek a new beginning. It requires a new sense of global interdependence and universal responsibility. We must imaginatively develop and apply the vision of a sustainable way of life locally, nationally, regionally, and globally. The future of the planet faces us today; there is no scope for nation-states to address themselves individually to the challenge. Rather, 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. The purpose of development should not be to develop things but to develop humanity.29

Notes
A Jasrotia, Environmental Protection and Sustainable Development: Exploring the Dynamics of Ethics and Law, Journal of Indian Law Institute, vol. 49, no.1, 2007, pp. 30-59. 2 M Schonfield, Justifying Value in Nature, http:/ejap.lousiana.edu/EJAP/1995.spring/schonfield.1995.spring.html, viewed on 2 May 2008. 3 J B Callicott, Intrinsic Value in Nature: A Metaethical Analysis, http:/ejap.lousiana.edu/EJAP/1995.spring/callicot.1995.spring.html, viewed on 6 May 2008. 4 N Carter, The Politics of the Environment: Ideas, Activism, Policy. Cambridge University Press, Cambridge, 2007, 2nd edition, 2001, p.15. See also, Principle 1 of the Rio Declaration: Human beings are at the center of concern for sustainable development. 5 See note 3, above; see also J ONeill, Ecology, Policy and Practice, Routledge, London, 1993, p. 9 and R Eckersley, Environmentalism and Political Theory, SUNY Press, New York, 1992, pp. 6-57. 6. Bron Tayler (eds), Encyclopedia of Religion and Nature, Continuum, London and New York, 2005, p.456. 7. A. Naess, The Shallow and the Deep, Long Range Ecology Movement, Inquiry, vol. 16, 1973, pp. 95-100, and Ecology, Community and Lifestyle. D Rothenberg (ed., tr.), Cambridge University Press, Cambridge, 1989 p. 29; See also B Devall and G Sessions, Deep Ecology: Living as if Nature Mattered. Peregrine Smith, Salt Lake City, UT, 1985, p. 70. 8 R Mehta, The Call of the Upanishads, Bharatiya Vidya Bhavan, Bombay, 1970, p. 10. 9 Atharvaveda, 12.1.3. 10 Shukla Yajurveda, 32.8. 11 See The Upanishads, Published by Gita Press (in Hindi). 12 Isavasya Upanishad, The Invocation.
1

Arvind Jasrotia

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______________________________________________________________ Srimad Bhagvad Gita, 3.16. Isavasya Upanishad, Hymn 1. 15 Srimad Bhagvad Gita, 3.13. 16 J L Shastri and G P Bhatt (eds), Mahapurans, vol. 27, Rector Press/Indea Books, Bombay, 1992. 17 O P Dwivedi and B N Tiwari, Environmental Protection in the Hindu Religion, in World Religions and the Environment, O P Dwivedi and B N Tiwari (eds), Gitanjali Publishing House, New Delhi, 1989, p. 182. 18 R Tagore, Sadhna,The way of Life, Filiquarian Publishing, London, 2006. 19 S S Tripathi, Buddhism and Ecological Crisis, in op. cit., O P Dwivedi and B N Tiwari (eds), p. 192. 20 G L Amar, Jainism and the Environmental Harmony, in op. cit., O P Dwivedi and B N Tiwari (eds.), p. 215. 21 Guru Granth Sahib, p. 448. 22 Sri Aurobindo, Savitri. 23 The Complete Works of Swami Vivekananda, vol. 11, 1968, p. 66. 24 N Carter, op. cit., p. 38; See also, B Norton, Toward Unity among Environmentalists, Oxford University Press, Oxford, 1991. 25 P Birnie and A Boyle, nternational Environmental Law, Oxford Publication, 2, 2002. 26 World Commission on Environment and Development, UNESCO, New York, 1987, p. 43. 27 www.iucn.org. 28 The Earth Charter; visit, www.earthcharter.org; See also, N Dower, Earth Charter as Global Ethic, 7(2004) at www.iucn.org. 29. The Cocoyoc Declaration.
14. 13.

Bibliography
Amar, G. L., Jainism and the Environmental Harmony, in World Religions and the Environment. O. P. Dwivedi and B.N. Tiwari (eds), Gitanjali Publishing House, New Delhi, 1989.

Barnhill, D. and Gottlieb, R., Deep Ecology and World Religions. SUNY Press, Albany, 2001. Birnie, P. W., and Boyle, A. E., International Environmental Law, Oxford University Press, Oxford, 2002, 2nd edition. Bose, A. C., Hymns from the Vedas. Asia Publishers, New Delhi, 1996.

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The Value of Nature

______________________________________________________________ Bron Tayler (ed), Encyclopedia of Religion and Nature, Continuum, London and New York, 2005, p. 456. Callicott, J. B., Holistic Environmental Ethics and the Problem of Ecofascism, in Beyond the Land Ethic: More Essays in Environmental Philosophy. SUNY Press, Albany, NY, 1999. Callicott, J. B., Intrinsic Value in Nature: A Metaethical Analysis, http:/ejap.lousiana.edu/EJAP/1995.spring/callicot.1995.spring.html, viewed on 6 May 2008. Carter, N., The Politics of the Environment: Ideas, Activism, Policy. Cambridge University Press, Cambridge, 2007, 2nd edition, 2001, p.15. Devall, B. and Sessions, G., Deep Ecology: Living as if Nature Mattered. Peregrine Smith: Salt Lake City, UT, 1985. Dower, N., Earth Charter as Global Ethic, 7, 2004 at www.iucn.org. Dwivedi, O. P. and Tiwari, B. N. (eds), World Religions and the Environment, Gitanjali Publishing House, New Delhi, 1989. Divan, Sham and Roscencranj, Armin, Environmental Law and Policy in India, Oxford Publications, New Delhi, 2002. Dwivedi, O. P. and Tiwari, B.N., Environmental Protection in the Hindu Religion, in World Religions and the Environment, O. P. Dwivedi and B. N. Tiwari (eds), Gitanjali Publishing House, New Delhi, 1989, p. 182. Eckersley, R., Environmentalism and Political Theory, SUNY Press, New York, 1992, pp. 56-57. Fox, Warwick, Towards a Transpersonal Ecology, Shambhala, Boston, 1990. Jasrotia, A., Environmental Protection and Sustainable Development: Exploring the Dynamics of Ethics and Law. Journal of Indian Law Institute, vol. 49, no. 1, 2007, pp. 30-59. Kiss, A. C., and Shelton, D., International Environmental Law, Doubleday, New York, 1991.

Arvind Jasrotia

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______________________________________________________________ Mehta, R., The Call of the Upanishads, Bharatiya Vidya Bhavan, Bombay, 1970, p. 10. Naess, A., Ecology, Community and Lifestyle. D. Rothenberg (ed., tr.), Cambridge University Press, Cambridge, 1993. Naess, A. The Shallow and the Deep, Long Range Ecology Movement, Inquiry, vol. 16, 1973, pp. 95-100. Norton, B., Toward Unity among Environmentalists. Oxford University Press, Oxford, 1991. ONeill, J., Ecology, Policy and Practice, Routledge, London, 1993, p. 9. Sessions, G., (ed)., Deep Ecology for the Twenty-first Century. Shambhala Publications, Boston, 1995. Sands, P., Principles of International Environmental Law, Cambridge University Press, Cambridge, 1992. Schonfield, M. Justifying Value in Nature, http:/ejap.lousiana.edu/EJAP/1995.spring/schonfield.1995.spring.html, viewed on 2 May 2008. Shastri, J. L. and Bhatt, G. P. (eds.), Mahapurans, vol. 27, Rector Press/India Books, Bombay, 1992. Tagore, R., Sadhna,The Way of Life. Filiquarian Publishing, London, 2006. The Complete Works of Swami Vivekananda, vol. 11, Vedanta Press, Bombay, 1968, p. 66. Tripathi, S. S., Buddhism and Ecological Crisis, in World Religions and the Environment. O. P. Dwivedi and B.N. Tiwari (eds), Gitanjali Publishing House, New Delhi, 1989. World Commission on Environment and Development, UNESCO, New York, 1987, p. 43. Zimmerman, M. E., Contesting Earths Future: Radical Ecology and Post Modernity. University of California Press, Berkeley and Los Angeles, 1994.

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The Value of Nature

______________________________________________________________ Arvind Jasrotia is an Associate Professor at the Department of Law, University of Jammu -INDIA. His research interests focus on the ethical and legal dimensions of climate Change and Sustainability discourse in the backdrop of North-South disparities.

The Concept of Ecological Debt: An Environmental Justice Approach to 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, a commodity can no longer be seen without simultaneously realising the network of environmental and social links, often non-sustainable and non-equitable, that were needed to produce it. It thus reinforces the recent calls for radical transitions and system innovations in industrialised countries. Furthermore, its origins as a grassroots concept position it on the interface between politics and science, in that way providing an example of the need for more reflexivity and openness towards the political dimension in sustainability science. Key Words: Developing countries, ecological debt, environmental justice, paradigm shifts, post-normal science, science-policy interfaces, sustainability, system innovation, transition management. ***** 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, it slowly finds its way in the discourse in international circles, in particular of South American countries. Furthermore, it remains a powerful instrument for analysing NorthSouth relations and for enriching the sustainability debate, and it is quite unique in the sense that it is a grassroots concept, mainly developed through NGO campaigning. In their seminal book on the potentials of integration between the discourses and practices of environmental justice and sustainability, Ageyman et al. see an important role for ecological debt1. While sustainable development and concepts such as the ecological footprint or environmental space mainly focus on (forwardlooking) intergenerational equity, environmental justice and ecological debt put more stress on (historically grown) intra-generational equity issues. 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.2 Ecological debt can thus provide an

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The Concept of Ecological Debt

______________________________________________________________ additional element in the recent framing of sustainable development in industrialised countries as needing radical transitions and system innovations. This paper first discusses the concept of ecological debt and its implications (in sections 1 and 2), 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), and finally links ecological debt with the calls for radical transitions and system innovations in industrialised countries (in section 5). The Birth of a Concept During the 1992 UNCED conference in Rio de Janeiro, civil society and grassroots groups gathered outside the official negotiation process in a parallel gathering, called the Global Forum, to negotiate their own Alternative Treaties for a more sustainable world.3 The Debt Treaty, states, the foreign debt is the most recent mechanism of the exploitation of Southern peoples and the environment by the North. It further points out the existence of a planetary ecological debt of the North; this is essentially constituted by economic and trade relations based on the indiscriminate exploitation of resources, and its ecological impacts, including global environmental deterioration, most of which is the responsibility of the North. 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). The Global Forum was the first time ecological debt was mentioned in an international context. 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).4 IEP observed that as a consequence of the depletion of the ozone layer, health problems such as skin diseases and cancer were on the rise in Southern Chile. While the problem of the ozone layer was entirely caused by Northern, industrialised economies, a developing economy such as Chile bore the consequences. IEP labelled this an ecological debt of the North towards the South, as opposed to the external financial debt of the South towards the North. If the North demanded the payment of the financial debt, then, according to IEP, the South could claim the ecological debt. Thus, from a historical point of view, the ecological debt must be seen as a counterargument to the financial debt weighing upon a lot of developing countries. The concept of ecological debt lay dormant for some years, but around 1997 it was picked up again by several Southern NGOs, most prominently by the militant Ecuadorian Accin Ecolgica. Accin Ecolgica became one of the chief organisers of a broader campaign on ecological debt, 1.

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______________________________________________________________ often in the context of campaigns against the external, financial debt. In 1999, during the annual assembly of Friends of the Earth International in Quito, it was decided to launch a campaign on ecological debt. Around the same time, Jubilee South incorporated the concept in its global campaigns for debt cancellation. Joint efforts by Friends of the Earth International and Accin Ecolgica led in 2000 to the launch of the Southern Peoples Ecological Debt Creditors Alliance (SPEDCA). SPEDCA asks for an international recognition of the ecological debt, historical and current; secondly, they want a recognition of the illegitimacy of external debt as made evident by ecological debt; and thirdly, they formulate a manifold of demands aimed at reparation for the historical ecological debt and at avoiding ecological debt from increasing in the future. By 2005, three NGO networks had adopted ecological debt as their main campaigning theme. Apart from SPEDCA, which grouped NGOs from Southern countries (the creditors), there was also the European Network for the Recognition of the Ecological Debt (ENRED), which grouped European NGOs and individuals (the European debtors), and Justicia Ambiental, Deuda Ecolgica y Sustentabilidad (JADES), which was a discussion group between creditors and debtors. Three NGO networks campaigning around the same theme may seem somewhat cumbersome, but SPEDCA explicitly chose to keep its doors closed for Northern NGOs in order not to let its discussions, topics and strategies be dominated by often better financed and organised Northern NGOs. Over the last 2 to 3 years, the campaign on ecological debt has halted somewhat, but the concept itself seems to be slowly finding its way. During the 2008 high-level segment of the UN Commission on Sustainable Development, 5 South American countries mentioned ecological debt in their public address, namely Argentina, Bolivia, Ecuador, El Salvador, Nicaragua. Perhaps the most interesting development is the setting up of an Ecuadorian audit commission to investigate the legitimacy of Ecuadors external debt. Accon Ecolgica is also part of this commission, with the task of evaluating dossiers on aspects of ecological debt. During the years of the campaigns, the concept of ecological debt showed an organic growth, as it was formulated and reformulated in discussions and exchanges within the NGO networks and new interpretations or applications were developed. To give one example: while ecological debt was originally mostly defined as a problem of industrialised versus developing countries, case studies often focused on ecological debt caused by corporations and multinationals. This led to a proposal to draw a distinction between public and private ecological debt. Two remarks should be added to this short history of ecological debt. First, between the moment IEP coined the concept (around 1990) and the start of the NGO campaigns at the end of the nineties, a few scientific articles appeared that use a comparable approach and terminology to describe

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The Concept of Ecological Debt

______________________________________________________________ the ecological relations between industrialised and developing countries and the environment. Azar and Holmberg formulate a generational and foreign environmental debt, Jenkins defines a concept of ecological debt between countries, and Smith defines a natural debt.5 To the best of our knowledge, however, there has been no fertilisation in either direction between the NGO campaigns and this scientific work. Second, it is interesting to compare the development of the concept of ecological debt with that of other concepts in the sustainability debate, such as the ecological footprint. The ecological footprint has been developed by scientists, then enthusiastically adopted by NGOs, and later on further refined in close interaction between scientists and some NGOs.6 With ecological debt, the development of the concept has almost been the other way round: the concept has primarily been developed through NGO campaigning, while systematic scientific support for these campaigns has been almost non-existent. The only exception is the work of the Spanish ecological economist Joan Martinez-Alier, who has published several articles on the concept and is also personally engaged in some of the NGO campaigns,7 and the work done in 20032004 by the authors and some colleagues of the present paper.8 The role of science is discussed further under point 3 and 4. We first turn to the definition of ecological debt and the implications it has for the sustainability debate. 2. Opening Up New Perspectives on Sustainability As mentioned, several definitions exist of ecological debt. Bravo and Yanez edited is a collection of essays after several years of campaign, and here ecological debt is defined as the accumulated, historical and current debt, which industrialised Northern countries, 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, and systematically destroyed, devastated and contaminated their natural heritage and sources of sustenance.9 According to SPEDCA the ecological debt includes amongst other things: the historical debt from plundering, destruction, devastation, slave labour and cultural annihilation in the South during the colonial era; debt from the social, environmental, economic and cultural impact of the extraction of natural resources (oil, gas, minerals, marine and forest life); debt from the intellectual appropriation and use of traditional knowledge through biotechnology by agro-business, first in the Green and now in the GMO revolution; debt from the degradation of land, water and air through monocultures, putting the food and cultural sovereignty of communities at risk; debt through pollution of the atmosphere and the appropriation of carbon absorption capacity of oceans, vegetation and forests; debt for the damage caused by chemical, nuclear and biological arms production and depositing of toxic substances. Ecological debt is thus a

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______________________________________________________________ demand for justice, for understanding the causes of wealth and poverty, for identifying responsibilities and fighting against impunity, for stopping the destruction of Southern lives.10 A look at this definition reveals that it covers a broad field of injustices between North and South, often starting from ecological themes, but spreading out to cover social, cultural and economic impacts. 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. Three characteristics are briefly discussed here: uniting of comparable experiences of Southern peoples; bringing a historical perspective to the sustainability debate; opening a new perspective on debtorcreditor relations in contemporary international politics. First, 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. The term ecological debt seems to be able to articulate the common concerns visible in, for example, protest against shrimp farming, mining, oil and gas exploitation or the overuse of the absorption capacity of the atmosphere. Whether the cases are well-known or not - from Texaco in Ecuador, Union Carbide in Bhopal, Shell in Nigeria over mine exploitations in Peru, South Africa and the Philippines, to shrimp farming in Thailand, biopiracy in Costa Rica, or dumping of toxic waste in India - the pattern is often identical: multinational companies (and often conspiring governments) leave a ravaged land behind, with all its consequences for the local population. 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.11 The testimonies and case studies that have been collected during the campaigns, show that on the different continents around the world, comparable experiences of local communities exist. 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.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. Second, ecological debt adds a historical dimension to the sustainability debate. 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,13 sustainable development indeed seems characterized by the absence of a historical perspective. This lack of historical sensitivity can be observed in all major sustainability debates, ranging from fishing over agriculture and deforestation to climate change. Indeed, looking at climate

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The Concept of Ecological Debt

______________________________________________________________ change as one of the foremost and encompassing sustainability issues of contemporary society, the lack of a genuine historical perspective becomes clear. Whereas the future-oriented focus is of course clearly present in global climate negotiations, leading amongst other things to an immense amount of research regarding necessary emission reductions, a historical perspective is only marginally present, the so-called Brazilian Proposal being one of the exceptions that tries to deal with historical responsibility in distributing emission reductions. It is not a coincidence that developing countries try to push this perspective: historically, developing countries are responsible for a minor part of global emissions, but it is becoming clear that they will suffer most from climate change impacts. Ecological debt draws attention to how the present situation has grown out of the - often violent and unjust - past. 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, in particular in the South. This historical perspective thus adds a particular ethical dimension to sustainable development, because it corresponds with a reality being faced by human beings in oppressed situations. Third, as a consequence of the link made in the campaigns between external financial debt and ecological debt, a new political perspective is brought to international relations, i.e. a reversal of the creditor-debtor relations. From an industrialised country perspective, people are used to thinking in terms of developing countries as debtors of a huge financial debt. The concept of ecological debt shows that countries can be in a creditordebtor relationship on the basis of physical-ecological relations. Through the concept of ecological debt, industrialised and developing countries stand in another relationship: the North as debtor, the South as creditor. In particular, when ecological debt is quantified, it becomes obvious that the ecological damage and overexploitation of resources in the South by Northern economies easily outweighs the financial debt. This is eloquently expressed in one of the slogans of the NGO campaigns, Who owes whom? which expresses the central idea in the argumentation of ecological versus external debt. Ecological debt thus provides a different look not only at the legacy of the colonial period, but also at the era of development after World War II: a lot of this development has been debt-driven, not only in financial terms (South-North) but certainly in ecological terms as well (North-South). It further testifies that international trade, generally considered to be one of the driving forces behind development, has often not been mutually beneficial, neither in monetary terms, nor in ecological terms. This in turn points to the need for different analyses and perspectives on trade, which are not found in neo-classical trade theories or in current trade policies. The new way of looking at past and present relations between countries is one of the important eye-openers of ecological debt. Southern movements sometimes

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______________________________________________________________ formulate this as empowerment of the South and Southern peoples in international relations. All these characteristics of the concept (bringing historical perspective to the sustainability debate; formulating a new perspective on debtors-creditors in international politics; uniting comparable experiences of Southern peoples) can be seen as an example of what theories on social movements term cognitive praxis. Eyerman and Jamison state that one of the most important characteristics of social movements is their ability to produce knowledge.14 All (scientific) knowledge is socially embedded, which implies that new perspectives on reality can grow out of the knowledge interests of social movements. Through the use of the concept of ecological debt, social movements (from the South) are opening up a context for re-interpretation of knowledge. The new perspectives, the new frame for looking at the world, open up a possibility - and, when recognised, a need - to rethink sustainable development policies at different levels. Through ecological debt, 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, with questions such as who gets what, how much and why? a rights discourse is added, where the right to a clean and safe environment is defined as a human right; 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.16 3. 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. However, translating a potential into actual power to change policies, may demand more than a good idea. 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.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, as well as an attempt at quantifying part of Belgiums ecological debt for the energy/climate theme and the agriculture/food supply theme. During the first months of the projects, it became clear that ecological debt indeed had a huge policy potential, but that it also showed some weak points, at least from the point of view of quantification and developing policy guidelines. Amongst the NGOs involved, there appeared to be a general understanding of what ecological debt was, but there was no univocal definition: definitions differed between texts and actors, definitions

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The Concept of Ecological Debt

______________________________________________________________ changed over time, terms were interpreted in different ways. Furthermore, no methodology to calculate ecological debt had been agreed upon, either in physical or in monetary terms. Calculations were always limited in time; they went back at most 15 years (for carbon debt), and often just 1 year. 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. 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. Political interpretations of the concept usually only referred to the external debt context or to climate negotiations (the so-called carbon debt). Important questions remained unanswered, such as how the concept could be introduced at different political levels, who should initiate it and how it should be interpreted in different contexts. The operationalisation of ecological debt in the research project in terms of policy guidelines and quantification, tried to stay as close as possible to the original meanings and interpretations of ecological debt, such as had been developed in the campaigns. 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, were meant to ensure this. The research distilled two core elements in the meaning of ecological debt, i.e. causing ecological damage elsewhere and using ecosystem goods and services at the expense of equitable rights of others. These two core elements lay the foundation for a definition of ecological debt, primarily meant to be suitable in international negotiations in a UN context, as well as for a methodology for calculating ecological debt in physical or monetary terms. 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, and/or the ecological damage caused over time by country A to ecosystems beyond national jurisdiction through its consumption and production patterns, 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.

1.

2.

3.

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______________________________________________________________ This phrasing was carefully chosen through discussions with experts in international law that were part of the research team. For instance, country is not further defined so that in principle all countries can be ecological debtor or creditor (which is presently gaining in importance, considering, for example, the relations between China and some African countries). An area under jurisdiction of another country means an area in which a country can legally exercise sovereignty or sovereign rights, such as the territorial sea and the exclusive economic zone. Beyond national jurisdiction refers to those areas in which no state can exercise sovereignty or sovereign rights, such as the high seas and space. Ecological damage is caused over time: this explicitly adds the historical dimension. The terminology ecological damage is preferred over environmental damage because in judicial interpretations of the majority of environmental liability conventions and subsequent case law, where possible the content of environmental damage is restricted to compensation and restoration of traded natural goods (for example, fish for consumption). This would imply that compensation for damage to non-economic, non-traded goods based on economic techniques to assess the value of goods or services that have no market value, is not feasible within the concept of environmental damage. The definition allows for several refinements, including what is meant by ecological damage, spatial scales of damage, equitable rights to ecosystem goods and services, debtors and creditors and timescales. Based on the definition, definitions for actors other than countries are possible. Table 1 gives a concise overview of possible refinements. The two main elements of the working definition (ecological damage, use at the expense of equitable rights) also lay the foundation for a quantification methodology. The proposed methodology is schematically represented in Figure 1. Ecological damage can be measured by a combination of indicators, which may be organised in a DPSIR-framework, if so desired. Use at the expense of can be measured by, 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, since the methodology has to be able to trace ecological damage or use elsewhere. Information needed from MFA includes material requirement, the composition of this material requirement, the country of origin of the flows and their evolution over time. All these instruments calculate ecological debt in physical terms. A possible next step is a monetary valuation of this physical ecological debt, for which several techniques from neoclassical environmental economics are available. Monetary valuations dominate the current debate on ecological debt. The research project evaluates physical and monetary calculations as being complementary. Monetary valuation is sometimes necessary (as in the debate on external debt) and attracts a lot of attention, but it is not an absolute

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The Concept of Ecological Debt

______________________________________________________________ necessity, since recognition of ecological debt or policy conclusions can also be based on physical quantifications, such as emissions of carbon dioxide (CO2)or figures on land use abroad and related pollution (through fertiliser and pesticide use for example). Table 1. 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 (2) the ecological damage caused over time by country A to ecosystems beyond national jurisdiction through its consumption and production patterns, and/or (3) 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. Refinement for ecological damage: According to type of interference: pollution, depletion, degradation According to spatial scale of ecological damage: global, continental, fluvial, regional, 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.g. globalised rich, 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. Belgiums total carbon debt, accounted over the period 19002003, amounts to 4234 million tons of CO2 according to one model, 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). 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, market prices, etcetera, leading to a value ranging from 1 to

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______________________________________________________________ 100 per ton of CO2 emitted. Applying market prices of 20 per ton of CO2 by way of example,19 gives a total Belgian carbon debt of 84 or 116 billion (depending on the model used). Using the same calculation methods, but with figures from 19502000, it becomes possible to calculate carbon debts/credits for other countries, resulting in a carbon credit between 1010 and 1452 billion for India and between 54 and 76 billion for DR Congo.

Figure 1. Methodology for calculating ecological debt in its physical and/or monetary form. Biophysical accounting systems form the basis, monetary valuation is an optional next step. Discussion Part 1: The Intervention of Science As discussed above, ecological debt presents a new paradigm for interpreting the world. 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.20 Contrary to many Kuhn-interpretations, 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. In a transcendental interpretation explored in more detail by Goeminne, we take this one step further and regard a paradigm as a necessary condition of possibility for observing facts.21 In our view, a paradigm is what makes it possible to see facts; it co-constitutes the facts and as such it shapes the content of the resulting scientific knowledge. In this interpretation, a paradigm shift provokes a new way of observing and interpreting the world; a new paradigm reveals the world in a new way. And this is exactly the case with the concept of ecological debt. 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.

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The Concept of Ecological Debt

______________________________________________________________ were needed to produce it. When I am sitting at my desk behind my laptop and adopt the ecological debt paradigm, my thoughts wander from the hazardous uranium mine where the ore is found that eventually fuels my laptop, over the computer assembly factories in China to the nuclear waste dumping sites in Africa. I see that my well-being, here and now, is connected to many instances in space and time and lots of these connections can be questioned in terms of equity and sustainability. As such, ecological debt opens up a space in which certain unsustainable realities, previously hidden from the Western eye, can be revealed and discussed. 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. In the latter paragraph we have shown how we have elaborated on a broad conceptualisation as well as a quantification methodology. 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, disinterestedness and numbers? An important starting point for discussing this is to see how science, like every paradigm, frames questions and how this is often not realised in our Western world. In contemporary Western culture, science fills our entire horizon. 2500 years of Western history have turned the scientific attitude into the only possible and legitimate way of thinking about societal problems and solutions. Environmental problems generated by the products of science are indifferently framed in scientific terms (CO2 concentrations, Sv dose equivalents,) which inevitably gives rise to a quest for scientific solutions (carbon tax, dose limits,). Whether the issue is climate change or nuclear energy, the resolution is sought in ever more science. This not only leads to the raging environmental controversies we are experiencing today regarding the validity, objectivity and correctness of the answers science provides. More fundamental, this one-dimensional discussion leaves the scientific questions, i.e. the way the scientific paradigm frames environmental problems and solutions, unquestioned. In such a scientifically conditioned context, there is no legitimate place to stand outside of science: what cannot be incorporated into the scientific paradigm does not have a reality. 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, with its richness of nonscientific perspectives mentioned above, into a merely scientific one. In the best of scientific traditions, thrusting aside a reflexive conceptual discussion,

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______________________________________________________________ these elaborations rush forward to objectification: ecological debt is provided with a uniform definition that allows for a uniform calculation and valuation method. A clear example of this can be found in a recent paper by Srinivasan et al.23 Here ecological debt is straightforwardly defined in quantitative terms as the environmental costs of human activities over 1961-2000 in six major categories. Although it is briefly admitted that valuing environmental and human health impacts is conceptually, ethically and empirically fraught, the whole paper nevertheless deals with the quantification method, thrusting aside all these conceptual, ethical and empirical aspects which make out the heart of the concept of ecological debt. 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, 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. 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.24 It is indeed hard to see how a certain amount of dollars, i.e. the essence of ecological debt according to a scientific (i.e. environmental economics) paradigm, relates to what is at stake in the ecological debt discourse originally developed by Southern NGOs. 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. 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, others radically oppose it fearing that the ecological debt issue, once it is transformed into a monetary number, would be reduced to demands for monetary compensation alone. A framing in monetary terms would provoke a search for a solution in monetary terms: nothing structural would happen. Instead, the Southern activists usually demand measures of a fundamentally different nature, almost always related to a shift in power relations, such as a withdrawal of multinational companies from developing countries resource industry, a radical reorientation of international trade policy, a moratorium on oil exploitation, an unconditional cancellation of foreign debt.25 This brings us to our own approach.26 Compared to the examples mentioned above, we are convinced that we adhered at least to a certain degree of reflexivity. Not only did we have the Flemish NGO VODO in our research team, which ensured relations with all the networks mentioned, we also organized face-to-face discussions with Southern NGO-representatives. Compared to the appropriation and transformation approach mentioned above, the way our project progressed can be nicely described in terms of resistance and accommodation. In our search for a working definition we

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The Concept of Ecological Debt

______________________________________________________________ would come up with a preliminary version, which typically provoked some resistance from the NGO-voices involved in the project. From this, we tried to accommodate their concerns and reactions and would come up with a revised definition. And this went back and forth a few times. In this way we were constantly forced to rethink our own approach, guaranteeing a more reflexive way of applying a scientific framework. One example deals with the notion of equitable rights we used in our definition of ecological debt. 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. To begin with, it is important to stress that equitable differs from equal. If the term equal had been used, this would imply that every individual has an equal right to all ecosystems and ecosystem services. This is highly controversial, since it clashes, for example, with the sovereign rights of states to use their territory. Usage of the term equitable allows for different interpretations, with one of the interpretations being equal. 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. This egalitarian approach might also be used for other ecosystems and services. The Friends of the Earth campaign on environmental space explicitly stated, energy and non-renewable raw materials are seen as global commodities, with globally accessible resources, global sinks and causing environmental problems on a global scale.27 Consequently, these are divided on a per capita basis on a global scale. Wood and agricultural products are regarded as continental resources, so that each continent should have a balanced production and consumption, not occupying fertile land in foreign countries on a permanent basis.28 The per capita calculation is done on a continental basis. Finally, water is considered a regional resource so the availability and the permitted use will be calculated on a regional basis.29 Apart from the equal interpretation of equitable, others are possible. For example, in the case of information and knowledge on genetic resources, it is sometimes argued that traditional farmers or indigenous peoples are the owners of the knowledge, implying that there is no equal access for all inhabitants of the planet. In the case of raw materials, different interpretations exist. According to international law, countries have the sovereign right to the resources on their territory, but in debates on sustainable development a per capita approach is sometimes advocated (see FoE argument above). Still another form of equitable might be an interpretation of equity as subsistence rights, which encompass what individuals need to develop as living beings: clean air and drinkable water, elementary health provision, adequate nourishment and clothing, and a roof over ones head.30 Access to these services is a minimum requisite of the use of equitable development.

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______________________________________________________________ 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. In this way, we deliberately did not settle the ecological debt issue once and for all, leaving room for politics to make real decisions. The same goes for the monetisation issue. Although we did calculate monetary values based on our definition and certain normative interpretations (for example, equal for equitable in the case of climate change; see above), we now think that this quantification and monetisation should be regarded as an enrichment of the ecological debt language. As mentioned, the concept of ecological debt offers a discourse that allows local groups to speak up and voice their concerns. If we present a methodology to quantify ecological debt, we view this as an attempt to broaden this language with a numeraire, not as a clear-cut scientific theory nailing down complex lifeworld problems to bare numbers. It must be recognized that during the research project, we did focus on a calculation methodology and numerical results. Looking back from our present stance, we could even say that we put too much focus on it. Already then, however, whenever we performed calculations, we did explicitly point to the normative decisions to be made before one can arrive at a scientifically objectified number. Although we still saw the numbers as essential to the concept at that time, we have now moved to what could be called a post-normal attitude, away from deterministic rational decision-making and leaving space for political decisions and action.31 Indeed, up till recently the politics of sustainability have been governed by an ever-present claim for rational decision-making. In our Western world, science claims the monopoly over rationality, which has resulted in a complete scientisation of politics: political questions no longer deal with the foundation of a decision, but are rather an application of the scientific results. Science, as it were, dismisses politics in making choices. 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. When demanding the withdrawal of multinational companies from developing countries resource industry, a radical reorientation of international trade policy, a moratorium on oil exploitation or an unconditional cancellation of foreign debt, they plea for structural change rather than a purely monetary compensation of a purely scientifically framed ecological debt. This implies that radically different choices have to be made on a political level. So, besides a plea for more reflexivity in sustainability science, this discussion also contains a plea for a new approach to sustainability politics, putting more emphasis on political acting and decision taking. System innovation and transition management, which will be briefly discussed in the next section, are attempts to explore such new ways of

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The Concept of Ecological Debt

______________________________________________________________ dealing with radical choices and structural changes at the interface of science and politics. 5. 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, this last part of the paper takes a reflexive look at the concept from a political point of view. Restitution, reparation, repayment or other forms of recognition of ecological debt will, in the current world order, only come about when the theme is put in the agenda of international negotiations and is championed by Southern governments. However, so far, 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. Still, this situation does not relieve or excuse industrialised countries and their companies from taking responsibility for the consequences of their actions. As has been stressed above, ecological debt is not just relevant from a historical perspective, but it is accumulated daily through two mechanisms: by causing ecological damage elsewhere, and by using ecological goods and services at the expense of equitable rights of others. Day after day, the consumption and production patterns of industrialised countries are responsible for the accumulation of ecological debt. In fact, burden-shifting (environmental, social, economic) might be considered as a central feature of wealth accumulation in industrialised countries. In the past, scant attention has been paid to these negative impacts of industrialised countries policies abroad and on global ecosystems. Henceforth, 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, and thus without burden shifting either geographically or in time. In that quest, 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. Even though we are by now more than 20 years after the Brundtland report and more than 15 years after the UNCED conference, there are hardly any signs of a profound restructuring of developed countries economies towards more equity and sustainability. A lot of countries have some form of sustainable development plan, but these cannot make the difference. NGOs and scientists have been promoting concept such as the ecological footprint, environmental space or factor 10, but while in particular the first two are able to frame the discussion in terms of equity and sustainability, they have so far not been able to yield significant policy shifts.

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______________________________________________________________ An approach that may be promising for initiating a learning process in policy-making towards better choices for sustainable development, more in line with the in-depth restructuring demanded by ecological debt insights, is the approach of radical system innovations and transitions. This approach, which is currently rapidly gaining attention in Europe, was developed by Dutch scientists and has been implemented, at least partly, by the Dutch government since 2001.32 In the transition perspective, current industrialised societies are analysed as societies wrestling with complex, persistent problems in the systems that are central for their welfare creation, such as the food system, the energy system, the mobility system and the health system. Radical innovations at the level of these systems are deemed a prerequisite for changes towards more sustainable development in industrialised countries. A transition then is a transformation process in which existing structures, institutions, culture and practices are broken down and new ones are established.33 From studying historic transitions, it has become clear that transitions usually take a long time to develop (25 to 50 years) and go through different stages, that they take place through interactions between different levels of a system (niche, regime, landscape), that they are not caused by a single factor but by an interplay of many factors that influence each other (technological, economical, ecological, socio-cultural), and that they are the result of interaction between networks of actors. In other words, they are multi-actor, multi-factor, multi-level and stretching over a long period of time.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. The first reason is that the problems we are struggling with are deeply rooted in our institutions, structures, practices, patterns of thinking and value systems. Traditional policy and science approaches merely perpetuate these structures and modes of thinking. Secondly, the problems are perceived differently by different actors, so that problem definitions as well as favoured solutions differ. This undermines the idea that one rational scientific explanation can be found that can unambiguously advise policy. Third, persistent problems are highly uncertain in terms of future developments, also opposing the idea of uncontradictory policy guidelines based on sound science. In order to properly address the complexity of the processes of change needed in these sectors, new policy- or governance-approaches need to be developed which take into account the inherent conflict of interest, opinion and value. These new governance approaches will have to start from the complexity, interdependency and uncertainty that are characteristic of our society.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. However, these cannot be unequivocally defined and the transitions approach therefore

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The Concept of Ecological Debt

______________________________________________________________ advises not only to focus on an end goal, but in particular to pay more attention to the processes leading to this goal. Grin borrows a concept from Charles Lindblom to plead for a mode of knowledge generation called inquiry or probing.36 This is a process in which experts and other actors, based on different kinds of knowledge (scientific, experiential, local, tacit) try cooperatively to define a problem and find solutions, in the process also discovering values, preferences, power issues. Inquiry does not aim at some form of objective, universal truth, but is strongly action-oriented, and therefore contextual in nature, or in the words of Lindblom, 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.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, called a transition arena, pro-active members form the stakeholders in the system under discussion, first try to develop an analysis of the problem at hand and then try to develop a sustainability vision for that problem. The hope is that in this way a common understanding and discourse is developed, plus a shared vision of what a long-term structural change for that system might be. In later stages, potential transition paths leading towards the vision are identified, and projects and experiments are set up to initiate a process of learning-by-doing and doing-by-learning. Crucial in the whole model is that it should lead to social learning amongst the actors involved, changing their perspectives on the problems in the system and leading to a common longterm outlook. This social learning is exactly what is needed for ecological debt insights to be incorporated in sustainability visions and policies. The new perspectives that ecological debt brings to the sustainability debate (bringing historical perspective to the sustainability debate; formulating a new perspective on debtors-creditors in international politics; uniting comparable experiences of Southern peoples) have to get internalised somehow and become a normal way of thinking, in that way opening up a window for policies aimed at a radical restructuring of industrialised countries economies. An important breakthrough for the transitions approach was the recognition of the necessity of transitions and the inclusion of transition policy - or transition management, as it is often called - in the Dutch Fourth National Environment Plan (NMP4).39 NMP4 formulated the ambition of realising fundamental changes (transition) in four policy fields: the transition to sustainable energy, sustainable mobility, sustainable agriculture, and the transition in biodiversity and natural resource use. It is important that the systems as a whole were seen an unsustainable and in need of structural change, which goes much further than system improvement.40 More than five

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______________________________________________________________ years later, transition policy and transition research have gained solid ground in the Netherlands, and some experiments have started in other European countries.41 While it does not replace regular policy, different policy fields such as the ones mentioned above are experimenting with transition approaches and trying to learn from it. Of course, this does not mean that as if by magic all policy choices become sustainable. System innovation and its translation into transition policy are still very young and wrestle with typical problems, such as the power structures and conflicts of interests that are encountered when probing for radical transformations in the food system, the energy system, the mobility system or the health system. Other problems include questions of legitimacy, participation and representation, and the influence of transition policy on the renewal of regular policy. There lies a long road between theoretical insights and practical, politically implementable answers. 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, as well as a new governance approach that opts for problem definition, long-term envisioning and practical experiments under the form of a broad and participatory social learning process. 6. 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. First of all, 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. 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, ecological debt moreover provides a framework for radically rethinking sustainable development policies. Secondly, we have analysed ecological debt as a concept that is positioned on the interface between science and politics. One could say that on the one hand it is a grassroots, political concept that has been given shape by scientists; on the other hand it can be viewed as a scientific concept giving shape to political action. Such a double-sided view however goes beyond the fact that a strict demarcation line between science and politics is impossible to draw. Moreover, as we have tried to show from a reflexive analysis of how we dealt with the concept in our research, 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. Our analysis of appropriation and transformation

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______________________________________________________________ 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. Starting from our own resistance and accommodation approach towards ecological debt, this paper develops a plea for more reflexivity and openness towards the political dimension in sustainability science. Inherently contained, as science and politics are viewed as inseparable in our post-normal perspective, is a plea for a more action and choice-oriented politics of sustainability. Finally, 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.

Notes
J Ageyman, R D Bullard and B Evans, Just Sustainabilities: Development in an Unequal World, Earthscan, London, 2003. 2 ibid., p. 326. 3 The Alternative Treaties were published in R Pollard, R West, W Sutherland (eds.), Alternative Treaties: Synergistic Processes for Sustainable Communities and Global Responsibility, Ideas for Tomorrow Today and International Synergy Institute, New York, 1993. 4 M L Robleto and W Marcelo, Deuda ecolgica, Instituto de Ecologia Politica, Santiago, Chile, 1992. 5 C Azar and J Holmberg, Defining the Generational Environmental Debt. Ecological Economics, vol. 14, 1995, pp. 7-19; J Jenkins, Democratising the Global Economy by Ecologicalising Economics: The Example of Global Warming. Ecological Economics, vol. 16, 1996, pp. 227-238; K R Smith, Allocating Responsibility for Global Warming: The Natural Debt Index. Ambio, vol. 20, 1991, pp. 95-96. 6 M Wackernagel and W Rees, Our Ecological Footprint: Reducing Human Impact on the Earth, New Society Publishers, Gabriola Island, BC and Philadelphia, PA, 1996. 7 J Martinez-Alier, The Environmentalism of the Poor: A Study of Ecological Conflicts and Valuation, Edward Elgar Publishing, Cheltenham, 2002. 8 E Paredis, J Lambrecht, G Goeminne and W Vanhove, Elaboration of the Concept of Ecological Debt. Final Report, Centrum voor Duurzame Ontwikkeling, Universiteit Gent, 2004.
1

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______________________________________________________________ A Donoso, We are not Debtors, We are Creditor, in No More Looting and Destruction! We the Peoples of the South are Ecological Creditors, E Bravo and I Ynez (eds.), SPEDCA, Quito, 2003. 10 ibid., p. 14. 11 Martinez-Alier, op. cit. 12 Some of these cases can be found in Bravo and Ynez, op cit, others are presented during workshops at international forums such as the World Social Forum. 13 World Commission on Environment and Development, Our Common Future, Oxford University Press, New York/London, 1987. 14 R Eyerman and A Jamison, Social Movements. A Cognitive Approach, Polity Press, Cambridge, 1991. 15 E Paredis, Geprangd Tussen Olie, Reuzegarnalen en Stortplaatsen: De Wereldwijde Strijd voor Ecologische Rechtvaardigheid. De Gids op Maatschappelijk Gebied, May 2005, pp. 30-41. 16 A Blowers, Inequality and Community and the Challenge to Modernization: Evidence from the Nuclear Oases, in Ageyman et al., op. cit., 64-80. 17 For the full report of the project, see Paredis et al., op.cit. The institutional logic behind the project was one sentence in the first Federal Plan for Sustainable Development 2001-2004, which stated that Belgium will study the concept of ecological debt and its practical applicability in policy, 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, in that way hoping to gather information that could contribute to his development policy. 18 ibid., p. 50. 19 The market price for one ton of CO2 in the EU-ETS was between 25 and 27 in May 2008. 20 T S Kuhn, The Structure of Scientific Revolutions, University of Chicago Press, Chicago, 1962. 21 G Goeminne, Questioning the Questions of Science: Is the Environment in Need of a New Science?, Annual Meeting of the International Association for Environmental Philosophy, Pittsburgh, 2008. 22 Azar and Holmberg, op.cit.; Jenkins, op.cit.; Smith, op.cit.; M Torras, An Ecological Footprint Approach to External Debt Relief. World Development, vol. 31, 2003, pp. 2161-2171; U T Srinivasan 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. 17861773.
9

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______________________________________________________________ Srinivasan, op. cit. Kuhn, op. cit. 25 See the articles in Bravo and Ynez (ed.), op.cit. 26 Paredis et al, op. cit. 27 J H Spangenberg (ed.), Towards Sustainable Europe. A Friends of the Earth Europe Campaign. The Handbook, Friends of the Earth, London, 1995. 28 ibid., p. 6. 29 ibid., p. 6. 30 W Sachs, Environment and Human Rights, Wuppertal Papers No. 137, Wuppertal Institute for Climate, Environment, Energy, November 2003. 31 S Funtowicz and J Ravetz, Science for the Post-Normal Age. Futures, vol. 25, 1993, pp. 735-755. 32 See, for example, J Rotmans, R Kemp, M Van Asselt, F W Geels, G Verbong and K Molendijk, Transition and Transition Management: The Case for a Low Emission Energy Supply, ICIS, Maastricht, 2001; B Elzen, F W Geels and K Green (eds.), System Innovation and the Transition to Sustainability: Theory, Evidence and Policy, Edward Elgar Publishing, Cheltenham, 2004; F W Geels, Technological Transition and System Innovations: A Co-Evolutionary and Socio-Technical Analysis, Edward Elgar Publishing, Cheltenham, 2005; D Loorbach, Transition Management: New Mode of Governance for Sustainable Development, International Books, Utrecht, 2007. 33 Loorbach, op. cit., p. 17. 34 Elzen et al., op. cit. 35 Loorbach, op. cit., 14. 36 J Grin, The Multilevel Perspective and Design of System Innovations, in Managing the Transition to Renewable Energy, J Van den Bergh and F Bruinsma (eds.), Edward Elgar Publishing, Cheltenham, 2007. 37 ibid., p. 59. 38 A Tukker and M Butter, Governance of Sustainable Transitions: About the 4(0) Ways to Change the World. Journal of Cleaner Production, vol. 15, 2007, pp. 94-103. 39 VROM, Nationaal Milieubeleidsplan 4: Een Wereld en Wen Wil, Ministerie van Volkshuisvesting, Ruimtelijke Ordening en Milieu, Den Haag, 2001. 40 Loorbach, op. cit. 41 For Flanders, see E Paredis, Transition Management in Flanders: Policy Context, First Results, Surfacing Tensions, CDO/UGent, Gent, 2008.
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Bibliography
Ageyman, J., Bullard, R. D. and Evans, B., Just Sustainabilities: Development in an Unequal World. Earthscan, London, 2003. Azar, C. and Holmberg, J., Defining the Generational Environmental Debt. Ecological Economics, vol. 14, 1995, pp. 7-19. Blowers, A., Inequality and Community and the Challenge to Modernization: Evidence from the Nuclear Oases, in Just Sustainabilities: Development in an Unequal World. J. Ageyman, R. D. Bullard and B. Evans (eds.), Earthscan, London, 2003, pp. 64-80. Bravo, E. and Ynez, I. (ed.), No More Looting and Destruction! We the Peoples of the South are Ecological Creditors. SPEDCA, Quito, 2003. Donoso, A., We are not Debtors, We are Creditor, in No More Looting and Destruction! We the Peoples of the South are Ecological Creditors. E. Bravo and I. Ynez (eds.), SPEDCA, Quito, 2003. Elzen, B., Geels, F.W. and Green, K. (ed.), System Innovation and the Transition to Sustainability: Theory, Evidence and Policy. Edward Elgar Publishing, Cheltenham, 2004. Eyerman, R. and Jamison A., Social Movements: A Cognitive Approach. Polity Press, Cambridge, 1991. Funtowicz, S. and Ravetz, J., Science for the Post-Normal Age. Futures, vol. 25, 1993, pp. 735-755. Geels, F.W., Technological Transition and System Innovations: A CoEvolutionary and Socio-Technical Analysis. Edward Elgar Publishing, Cheltenham, 2005. Goeminne, G., Questioning the Questions of Science: Is the Environment in Need of a New Science?. Annual Meeting of the International Association for Environmental Philosophy, Pittsburgh, 2008. Grin, J., The Multilevel Perspective and Design of System Innovations, in Managing the Transition to Renewable Energy. Van den Bergh, J. and Bruinsma, F. (eds.), Edward Elgar Publishing, Cheltenham, 2007.

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______________________________________________________________ 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 Ecolgica. 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.

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______________________________________________________________ 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 NorthSouth 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.

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______________________________________________________________ when he claimed let me start first by telling you that America has got to change its habits. Weve 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 humannature relations - or, as Lefbvre 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.

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______________________________________________________________ Consequently, the solutions discussed within the environmental regime, in accordance with the neoliberal tendencies of the 1990s, are rather based on market instruments than state interventionism, as, for instance, the creation of the carbon trade within the Kyoto Protocol, in 1997. Environmental problems should be faced through win-win solutions, like investments in energy efficiency, which amortize themselves through the reduction of the energy bills, while contributing to the reduction of green house gases. Social conflicts are thought to be addressed through the promotion of dialogue structures between economic, social and environmental interests, as seen in round tables, stakeholder processes and other participative strategies to implement sustainable policies. 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. Ecological modernists do not question the ideology of unlimited accumulation of capital and material goods in modern societies, which is, according to Sachs, the Achilles heel of globalisation - 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.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. The Reconstruction of the Urban-Industrial-Capitalist Society Within this approach, we subsume groups, which question the industrial society of consumption or affluent society, and are sometimes linked with a critique of capitalism. An example is the programme of reconstruction of industrial society presented in the early 1980s by the Green Party in Germany. In the 1990s, these ideas reappeared in a modernised form within proposals for a sustainable or futureable society - in contrast to sustainable development - elaborated by several groups of Friends of the Earth in Europe. They stated that sustainability could not be achieved by efficiency revolution alone, as proposed by ecological modernists. Further a sufficiency revolution is necessary, a modified critique on the society of consumption, promoted by the motto well-being over well-having.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.14 The extrapolation of environmental space is called an ecological debt as a counterpart to the economic debt of development countries - an inverted allegory to the dependency approach in development theory: industrialized countries are ecologically dependent on the Third Worlds resources. 3.

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______________________________________________________________ This approach represents a critique to urban-industrial societies as a whole and is therefore not as restricted as the Marxist critique of capitalism. As Sachs put it, a new politics of sufficiency and equity, supported (not dominated) by modest appropriate lean technology.15 The spatiality of this current is - contrary to the actual globalised corporate structures characterised by strategies to decentralise and localise production processes, which should be adapted to the ecological conditions in its referred territories (like organic farming, permaculture). In summary, following the terminology of Lefbvre, 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. 4. 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, which is imposed on non-industrialised societies.16 According to them, the heterogeneity of numerous cultures throughout the world is subsumed under the notion of underdeveloped countries, turning these cultures not only invisible but also into objects of paternalistic policies by the selfdenominated First World. Martinez-Allier called the resistance of local communities against the destructive expansion of the hegemonic model (for example, the burning Amazon) the environmentalism of the poor.17 In the 1980s and 1990s these cultures had even been seen as models for sustainable modes of living, as new research fields of social ecology or ethnoconservation suggest,18 from which the Western world could learn to correct failures of their development model. But these claims had never left the rhetorical level. Instead, the recent strategies to modernise these populations are based on the same perspective of development, concealed by the adjective sustainable. But as Wolfgang Sachs put it, ...many rural communities in the Third World do not need to wait until specialists... from research institutes on sustainable agriculture swarm out to deliver their recipes against, say, soil erosion.19 There might be the risk that centrally designed schemes for the management of environmental resources collide with the locally based knowledge about conservation. It is possible to identify some parallels to the approach that promotes the restructuring of urban-industrial-capitalist societies. This refers to notions like community, locality, place, proximity to nature, solidarity, decentralization and the questioning of the efficiency of state power. 5. 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

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______________________________________________________________ numerous localised struggles about sewage treatment, industrial pollution, toxic waste, incinerators, but also unhealthy working conditions, conflicts in which the involved felt themselves to be withheld from their legal rights. The activities causing environmental impacts are often placed in areas where the most vulnerable segments of society live, such as low-income groups, AfroAmerican, Amerindian and Asiatic-American communities. Consequently, environmental issues are associated with social and racial questions.20 The common axis of these groups is the denouncing of environmental injustice and inequality. However, David Harvey states that this movement - given the diversity of the local struggles - has still to go further than symbolic political action to achieve a coherent revolutionary praxis.21 In any case, within the context of this article, we need to stress a fundamental contribution of the environmental justice movement: the challenge of the hegemonic idea that there is only one environment. There are different, and even contradictory, perceptions and conceptions about environment - or better - space, which, when materialised in the living space, are causing social conflicts, as we shall see in the example presented here. 6. The Environmentalisms and Agrofuels The scenarios of massive expansion of agricultural areas designed for the production of agrofuels has put environmentalists in a dilemma. On the one hand, they are confronted with a pessimistic outlook concerning climate change, urging for immediate action; on the other hand, given the actual demand for fossil fuels, there is no prospect that agrofuels could be produced on the basis of organic farming. This situation creates a dilemma for the different environmentalisms. Either they try to act in between the structural frame of the global environmental regime mentioned above, trying to convince the actual economic forces to turn to environmentally sound behaviour, or they call for more radical solutions to target the contradictions of the actual unsustainable development model. What can be observed is that mainstream NGOs acting on an international level are opting for the first path, promoting solutions within the approach of ecological modernisation, which increasingly faces the resistance of the environmentalists who follow the other approaches. This tension can be seen within the debate about a certification scheme for sustainably produced agrofuels, promoted primarily by the WWF (Worldwide Fund for Nature). A Round Table on Sustainable Biofuels has already been established to elaborate standards for certification. The participants include NGOs like the WWF itself, OXFAM, transnational corporations like Shell, British Petroleum, Petrobras, Toyota, DuPont, Genencor, Bunge, and international organisations like the World Economic Forum and the International Energy Agency.22 It is evident that the

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______________________________________________________________ certification scheme is designed for the big global players in the energy business, which are interested in engagement with this new market. The reference for the group is the FSC (Forest Stewardship Council), a certification scheme developed by the forestry sector, also founded by WWF. The difference from common certification schemes is the so-called stakeholder-process, which aims to guarantee the participation of all interested parties and consideration of formal and informal rights of local people. However, there are already experiences showing that certification is facing difficulties in practice.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. 7. Conflicts over Different Conceptions of Space The conception of space of the urban-industrial-capitalist system can be characterised, beyond the limits of the constructed urban space, as a mosaic of uniform landscapes, each one destined to produce a certain market product or commodity, like mechanised large-scale agricultural plantations, production forests, mines, hydroenergy. The production is based on technical inputs (agro-chemicals, machinery), which allow a certain independence from the rhythm of natural regeneration cycles. The result is the environmental and the social monoculturisation of space. Ecological modernists do not question this mode of spatial production. The monocultures for the production of agrofuels are considered as necessary to satisfy the demand on the world market, which is seen as something unchangeable, absolute, beyond the reach of political action. Given the actual demand for fuels, they accept a hierarchisation of environmental problems in which climate change, as a global issue, is placed above environmental questions on the local level. Therefore, former preoccupations, like the ecologisation of agriculture, are considered less important. Accordingly, sustainability can be achieved through the mitigation of environmental impacts (biological control of pests, measures against contamination of water and soils, etc.) and adequate social criteria designed for modern companies (respect of workers rights, programs of recreation, capacitating, etc.). In general, the capitalist mode of production is not questioned, except in areas that are scientifically proven to be important for the maintenance of biodiversity or the regeneration of degraded areas. With respect to social benefits, 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. But even if we assume that the transformation of the rural population into active actors in the monetary economy would be successful, we have to remember the question of the illusory perception of

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______________________________________________________________ markets as provider of all desired, or necessary, goods. In theory, food crops substituted by agrofuel crops can be obtained through the market. But we have also to take in account that the concrete space is limited. If the actual demand for fuels is to be maintained, new agricultural frontiers are inevitable. The limits of the expansion are reflected in socio-spatial conflicts - for example, the local struggles between latifundios and local communities in Brazil. Traditional land use systems are adapted to the natural rhythms of regeneration. Care about the maintenance of natures capacity to reproduce is essential to guarantee the survival of future generation. To some extent, 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, which should even be applied in urban space. Given the contradictions within the conception of ecological modernisation, these groups are intensifying their campaigns in industrialised countries, articulating their discourse with groups in development countries defending their cultures under the umbrella of environmental justice. 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, Brazil. In February 2007, the private militia of the company had murdered a peasant while he was collecting fuel wood. The incident marks the sad escalation of a long history of conflicts between the company and the rural communities in its neighbourhood. The company received concessions for the plantations in the 1970s from the state government of Minas Gerais, 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, Belo Horizonte. As a result, nearly two million hectares have been covered, considered the largest continuous area of monocultures worldwide. The rural population of the area - which could not present land titles - had been neglected by these policies. However, after the substitution of the natural savannah vegetation by the monocultures, the communities continued to collect fuel wood within the plantations, following their customs based on collective forms of extractivism. Nevertheless, the companies consider the collection of fuel wood as theft, as the trees in the plantation are understood as private property. A representative of the local rural workers trade union described the underlying causes of the conflicts in an impressive manner, pointing out that his father and grandfather, in the past, could go wherever they wanted. He used the term territoriality as a synonym for liberty, which has been robbed by the eucalyptus planters.24 This understanding of territoriality is directly linked with the flexible modes of production of these communities

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______________________________________________________________ adapted to the fragile ecosystem of the savannah and its climatic instability. Therefore, there is a tension between the territoriality of 1) the capitalist society, in which the territories are defined through private property, or as in the case presented here, through private use, fixable in concrete limits to be represented in maps, which turned out to be incompatible with 2) the flexible territorialities of traditional groups, in the majority used collectively. These distinct territorialities show that strategies to conciliate conflicts between corporate capital and local communities by dialogue, as idealised from the defenders of certification, are limited. 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, but also their social and cultural constitution. 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. They presented a detailed proposal for the agroextractive re-conversion of the area, to benefit local people by production systems based on agroecological principles.25 This concept has many aspects in common with proposals for the restructuring of agriculture in urban-industrialised societies. Unfortunately, the struggle for social re-appropriation has been weakened as the plantation growers could present a sustainability discourse themselves, based on FSC certification and ecological modernisation. The problem has been denounced by northern groups, within an internal re-evaluation process of the plantation principles of the FSC. The attempt was not successful as interests of the plantation growers are dominating the organisation. Certification is driven by the rules of the market, and, therefore, it is not able to conciliate with claims to reduce consumption patterns of the wealthier with respect to their ecological (territorial) debt. In summary, given the contradictions and failures, in practice, of such an approach, 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, which have not yet been affected by modernisation. Within this context, these two currents are aligning themselves through the discourse of environmental justice as a general critique of the production of space, based on the hegemonic development model.

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Notes
IPCC, Climate Change 2007, Synthesis Report (AR4), 2007, www.ipcc.ch/. World Economic Forum (WEF), The New Energy Security Paradigm, Geneva, www.weforum.org/pdf/Energy.pdf, 2006, p. 27. 3 The White House, President Bush Attends Washington International Renewable Energy Conference 2008, Press Release, 5 March 2008, http://www.whitehouse.gov/news/releases/2008/03/20080305.html, 22 March 2008. 4 ibid. 5 J Halley, FAO Fears Long-term Food Price Hike due to Biofuels. 7 July 2007, http://www.foodnavigator.com/news/ng.asp?n=78029-fao-biofuelsfoodprices, accessed 22 March 2008. 6 G Monbiot, Heat: How to Stop the Planet from Burning, Penguin, London, 2007. 7 D Harvey, Justice, Nature and the Geography of Difference, Blackwell, Oxford, 1996; A Dobson and P Lucardie (eds), The Politics of NatureExplorations in Green Political Theory, Routledge, London, 1995; A C Diegues, Etnoconservao da Natureza: Enfoques Alternativos, in Etnoconservao: novos rumos para a proteo da natureza nos trpicos, A C Diegues (ed), Hucitec, So Paulo, 2000. 8 H Lefbvre, The Production of Space, Blackwell, Oxford, 1991. 9 D Harvey, op. cit. 10 World Commission on Environment and Development (WCED), Our Common Future, Oxford University Press, Oxford, 1987; I Sachs, Estratgias de transio para o sculo XXI: desenvolvimento e meio ambiente. Studio Nobel, Fundao do Desenvolvimento Administrativo, So Paulo, 1993. 11 W Sachs, Planet Dialectics: Explorations in Environment and Development, Zed Books, London, 2000, p. 153f. 12 ibid, p. 136. 13 R Loske and R Bleischwitz, Zukunftsfhiges Deutschland: Eine Studie des Wuppertal-Institut im Auftrag von BUND und Misereor, Basel, 1996. 14 J Opschoor, Environment, Economics and Sustainable Development, Wolters Noordhof Publishers, Groningen, 1992; M Wackernagel and W Rees, Our Ecological Footprint: Reducing Human Impact on the Earth, New Society Publishers, Gabriola Island, BC and Philadelphia, PA, 1995. 15 Sachs, Planet Dialectics, op. cit. 16 See contributions in W Sachs (ed.), The Development Dictionary: A Guide to Knowledge as Power (5th ed), Zed Books, London, 1999.
2 1

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______________________________________________________________ J Martinez-Alier, Justia Ambiental (Local e Global), in Meio Ambiente: Desenvolvimento Sustentvel e Polticas Pblicas, C Calvacanti (ed), Cortez, Recife, 1999, pp. 215-231. 18 A C Diegues, op. cit. 19 W Sachs, Environment, in The Development Dictionary. A Guide to Knowledge as Power (5th ed), W Sachs (ed.), Zed Books, London, 1999, p. 33. 20 H Acselrad, Justia Ambiental: ao coletiva e estratgias argumentativas, in Justia Ambiental e Cidadania, H Acselrad et al., Relume, Rio de Janeiro, p. 24. 21 D Harvey, op. cit. 22 T Fritz, Das Grne Gold. Welthandel mit Bioenergie - Mrkte, Macht und Monopole, FDCL, Berlin, 2007. In March 2008, some groups including Via Campesina in Latin America launched a campaign Stop Round Table on Soy. This round table, initiated by the WWF, has a similar structure as the already mentioned Round Table on Biofuel. The social movements claim: Donde hay monocultivo no puede existir sustentabilid Donde hay agro negocios no pueden existir campesinos! 23 K Laschefski, O omercio de Carbono, as Plantaes de Eucalipto e a Sustentabilidade de Polticas Pblicas: uma Anlise Geogrfica, in A Insustentvel Leveza da Poltica Ambiental: Desenvolvimento e Conflitos Socioambientais, A Zhouri, K Laschefski, D P Barros (eds), Autntica, Belo Horizonte, 2005. 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, Montes Claros, Minas Gerais, 30 May 2007. 25 STR, Rio Pardo de Minas, Reconverso Agroextrativista: da Monocultura do Euclipto para Sistemas Agrosilvopastoris: Proposta em Discusso das Comunidades dos Gerais de Rio Pardo de Minas aos Poderes Pblicos Municipal, Estadual e Federal. According the proposal every family should receive a plot of 100 ha, in which 20 ha are destined to preservation, 40 ha to re-establish natural Cerrado (savannah) for extractivist activities and 40 ha for agricultural production.
17

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______________________________________________________________ Altvater, E., Vom Erdl Weg: Aber Wohin?, Z. Marxistiche Erneuerung, vol. 71, 2007, pp. 25-40. Dehue, B., Meyer, S. and Hamelinck, C., Towards a Harmonised Sustainable Biomass Certification Scheme. WWF/Ecofys Netherlands BV, Utrecht, 2007. Diegues, A. C., Etnoconservao da Natureza: Enfoques Alternativos, in Etnoconservao: novos rumos para a proteo da natureza nos trpicos. A. C. Diegues (ed), Hucitec, So Paulo, 2000. Dobson, A. and Lucardie, P. (eds), The Politics of Nature- Explorations in Green Political Theory. Routledge, London, 1995. Fritz, T., Das Grne Gold. Welthandel mit Bioenergie - Mrkte, Macht und Monopole. FDCL, Berlin, 2007. Halley, J., FAO Fears Long-term Food Price Hike due to Biofuels. 7 July 2007, http://www.foodnavigator.com/news/ng.asp?n=78029-fao-biofuelsfoodprices, accessed 22 March 2008. Harvey, D., Justice, Nature and the Geography of Difference. Oxford University Press, Oxford, 1996. IPCC, Climate Change 2007, Synthesis Report (AR4), 2007, www.ipcc.ch/. Laschefski, K., O Comercio de Carbono, as Plantaes de Eucalipto e a Sustentabilidade de Polticas Pblicas: uma Anlise Geogrfica, in A Insustentvel Leveza da Poltica Ambiental: Desenvolvimento e Conflitos Socioambientais. A. Zhouri, K. Laschefski, D. P. Barros (eds), Autntica, Belo Horizonte, 2005. Lefbvre, H., The Production of Space. Blackwell, Oxford, 1991. Loske, R. and Bleischwitz R., Zukunftsfhiges Deutschland: Eine Studie des Wuppertal-Institut im Auftrag von BUND und Misereor. Basel, 1996. Martinez-Alier, J., Justia Ambiental (Local e Global) in Meio Ambiente, Desenvolvimento Sustentvel e Polticas Pblicas (2nd ed). C. Calvacanti (ed), Cortez, Recife, pp. 215-231. Monbiot, G. Heat: How to Stop the Planet from Burning, Penguin, London, 2007.

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______________________________________________________________ Opschoor, J. B., Environment, Economics and Sustainable Development. Wolters Noordhof Publishers, Groningen, 1992. Sachs, I., Estratgias de Transio para o Sculo XXI: Desenvolvimento e Meio Ambiente. Studio Nobel, Fundao do Desenvolvimento Administrativo, So Paulo, 1993. Sachs, W., Planet Dialectics: Explorations in Environment and Development, Zed Books, London, 1999. Sachs, W. Environment, in The Development Dictionary. A Guide to Knowledge as Power (5th ed). W. Sachs (ed.), Zed Books, London, 1999, pp 26-37. Shiva, V. Resources, in The Development Dictionary. A Guide to Knowledge as Power (5th ed). W. Sachs (ed.), Zed Books, London, 1999, pp. 206-218. STR, Rio Pardo De Minas, Reconverso agroextrativista: da monoculture do euclipto para sistemas agrosilvopastoris: Proposta em discusso das comunidades dos Gerais de Rio Pardo de Minas aos poderes pblicos municipal, estadual e federal, (unpublished), 2002. Wackernagel, M. and Rees, W., Our Ecological Footprint: Reducing Human Impact on the Earth. New Society Publishers, Philadelphia, 1995. World Commission on Environment and Development (WCED), Our Common Future. Oxford University Press, Oxford, 1987. World Economic Forum (WEF), The New Energy Security Paradigm, Geneva, www.weforum.org/pdf/Energy.pdf, 2006, p. 27. WWF, (Worldwide Fund For Nature) and the EU Biofuels Communication. February 2006. http://assets.panda.org/downloads/wwf_on_biofuels_comm_q_a_2006___fin al_080206.pdf Zhouri, A., Laschefski, K. and Barros, D. P., Introduo: Desenvolvimento, Sustentabilidade e Conflitos Socioambientais, in A Insustentvel Leveza da Poltica Ambiental: Desenvolvimento e Conflitos Socioambientais. A. Zhouri, K. Laschefski and D. P. Barros (eds), Autntica, Belo Horizonte, 2005, pp. 11-26.

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______________________________________________________________ Klemens Laschefski holds a PhD in Geography. He is a researcher at the Post-Graduate Programme for Social Sciences, Catholic University of Minas Gerais, Brazil.

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.1 In particular, GMO consultation practices are assessed in regard to three prerequisites for a democratic decision-making procedure: availability of information, possibility to affect decisions, and transparency of the decision-making process. It is argued that, in its current form, GMO consultation fails to meet these basic requirements. Key Words: Public consultations, GMOs, democracy, European Union, 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.2 Moreover, requirements for engaging the public in modern biotechnology decision-making have been incorporated into several national environmental and biotechnology laws, 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. First, 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, a considerable number of European citizens believe that this kind of change is happening. As reported in the Eurobarometer 64.3., 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.4 Third, the changes which new technologies are likely to cause concern issues that many people conceive as fundamental to their lifestyles, specifically those of food and healthcare. In a democracy people should have especially good opportunities for participation on matters that (will) have a great influence on their lives, that they believe to have a great influence on their lives (whatever the truth), and/or that concern their fundamental values and are thus central to their 1.

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______________________________________________________________ lives. Consequently, people should retain the possibility of affecting matters concerning GMOsat least as long as the ideals of democracy are accepted. 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. Specifically, the case of Finland is considered. 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, and on the related scientific information. In what follows, the consultations are assessed in regard to three prerequisites for a democratic decision-making procedure: availability of information, possibility to affect decisions, and transparency of the decision-making process. It should be borne in mind, however, that consultation practices alone are not intended to ensure the realisation of democracy in the full sense of the term. They rather form part ofor a supplement toa general democratic decision-making framework. At its best, a consultation can work as a tool (or a medium) for informing the general public and stakeholders about an issue (e.g. GMOs) and decisions, as well as provide them with a possibility to affect these decisions. 2. Public Engagement and Democratic Decision-Making The most general argument for public engagementand for public consultation as an instance of it(in the context of GMOs) is that it serves democracy, i.e. the democratic ideals.5,6 Public deliberation is essential to democracy.7 If it is appropriately empathetic, egalitarian, open-minded and reasoncentred, deliberation is expected to produce a variety of positive democratic outcomes.8 []desirable for democratic reasons.9 [I]t is the right way for democratic and ethical decisions to be made.10 Serving democracy is commonly understood to imply that people are given opportunities to rule on issues belonging to the public sphere. What this means in practice can beand indeed has beeninterpreted in different ways. In the traditional (aggregative) understanding of democracy, preferences are aggregated and decisions are made according to a decision rule (for example, majority rule). Elections provide its paradigm example.

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______________________________________________________________ The requirement for peoples 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. The deliberative democracy theory, in its turn, emphasises debate and discussion aimed at producing reasonable, well-informed opinions in which participants are willing to revise preferences in light of discussion, new information, and claims made by fellow participants.11 Deliberation includes both internal reflection and communicative interaction,12 and preferences should be reflected on in a non-coercive manner.13 In ideal cases of deliberative democracy, solutions are found by rational discussion and deliberation, and no decision rule (voting) is necessary at all. Nevertheless, deliberative democracy is often regarded as being only an expansion of (or an improvement to) representative democracy, not its alternative or replacement.14 3. GMO Consultation in the EU In the EU, Directive 2001/18/EC, which is concerned with the deliberate release into the environment of GMOs, states that: Member States shall () consult the public and, where appropriate, groups on the proposed deliberate release. In doing so, Member States shall lay down arrangements for this consultation, including a reasonable time-period, in order to give the public or groups the opportunity to express an opinion.15 Concretely, public consultation takes place in two different ways. First, when an application (i.e. notification) is made in order to release GMOs for non-market purposes, the consultation is organised by the single member state in which the release is proposed to take place. In practice, national consultations are about scientific field trials. Second, when an application is made in order to release GMOs for market purposesi.e. for the purposes of using them in food or for cultivating themthe consultation is carried out by the European Commission. In Finland, Directive 2001/18/EC is implemented in the reformed Gene Technology Act.16 Although the total number of field trials on GMOs in Finland is over twenty, there have lately been only three of themone with potato (Jokioinen -2005), another with birch (Punkaharju -2004) and the third one with birch (Joensuu 2005-).17 The two first-mentioned field trials gave rise to a lively public debate; and both of them were destroyed by activists. The responsible authority (i.e. the Competent Authority, CA) on consultation concerning the deliberate releases of GMOs for non-market

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______________________________________________________________ purposes is the Finnish Board for Gene Technology.18 It publishes information about the planned field trials in the Official Journal (Virallinen lehti) of Finland and on the Boards internet pages (<http://www.geenitekniikanlautakunta.fi/>). All files, except the ones which contain business secrets, are open to the public. They can be seen on the website of the Board as well as in the library of Ministry of Social Affairs and Health. Copies of the files are also available on request. Furthermore, the applicant of a field trial may organise public meetings or inform the public on their planned field trial in other ways. The public has 60 days available for giving their comments. The comments should be provided in written form and be sent to the Board by post or email.19 In regard to the European Commissions consultation, the information on dossiers can be found on internet pages (<http://gmoinfo.jrc.it/>) that are managed by the Joint Research Centre and the Commission. The information provided to the public includes a summary notification information format (SNIF) and an assessment report. Commenting consists of two 30-day periods, 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. Comments can be submitted online as well as in standard written format.20 4. Assessment Three prerequisites for a democratic decision-making procedure are (1) availability of information, (2) possibility to affect decisions, and (3) the transparency of the decision-making process. It is not claimed that these necessary conditions constitute a sufficient condition for a procedure to be called democratic. However, they are meant to capture general criteria concerning the very basic intuitions about democratic (good or right kind of societal) decision-making. Below I try to show that GMO consultation does not fulfil these basic requirements. 4.1. Availability of Information Democracy can take place only if people know about their possibility to participate and thus to influence societal decision-making. Conversely, if citizens are unaware of the consultation practices and if the information concerning them is relatively difficult to reach, the minimum requirements of democracy have not been met. At least in Finland, the latter seems to holdespecially with respect to the consultation practice concerning market purposes. Information about it is both scarce and not easily found. 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. A link to the web pages managed by the Joint Research Centre and the European Commission is also

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______________________________________________________________ provided. However, the information on the practice of consultation given on that website is exiguous and is only available in English. 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. Moreover, the information provided is written in scientific jargon, which, in practice, eliminates some people from the consultation practice altogether. However, once one has familiarised oneself with the consultation practice, information on different particular consultations is easy to obtain. An e-mail posting list on the matter can be joined. What one might be critical about is lay peoples possibility of becoming aware of the consultation practice as such. Moreover, even if people were cognizant of their opportunities to comment, it may be impossible in practice. Citizens without English language skills, for example, can neither understand the relevant information (about the consultation practice in general and about specific consultations in particular) nor write comments in English.21 The issue is a bit less problematic in regard to the Finnish national consultation practice. 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 Technologyand it is in Finnish.22 Moreover, the consultation practice is clearly and quite thoroughly explained. Becoming aware of the consultation practice may still be somewhat improbable, especially if one is unaware of the existence of the Board, of the existence of consultation practices in general, and/or of the role of the Board in particular GMO consultations. In practice, lay persons cannot be expected to have such knowledge. These problems can, of course, be solved fairly easilyalbeit not without incurring extra costsby increased communication through different media channels and by clarifying the information within the current channels employed. The critical question can, then, be stated as follows: what informing practices are sufficient for a genuine democracy (in this context) and the real opportunity to express ones views? Insufficient and inadequate informing leads to a situation in which citizens do not, in practice, have the possibility to participate. On the other hand, ethics also sets upper limits for informing, because too aggressive informing may be considered an invasion of privacy. Moreover, the costs of providing information form practical, as well as ethical, obstacles since the use of public funds always raises moral questions. Demanding that each citizen should be individually and actively informed about her/his participation possibilities on the GMO-matter is not sensible. In summary, it is relatively difficult to find information on the consultation practice and particular consultations organised by the

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______________________________________________________________ Commission. 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 practicenot least because it is only provided in English. Although the information on the Finnish national consultation practice is more extensive and provided in Finnish, information about particular consultations can only be understood if one posseses specific scientific knowledge about the GMOs. Thus, the consultation practice does not work as a general tool (or a medium) for informing the masses about GMOs. Nevertheless, 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. For them, the system provides specific knowledge about planned field trials and about the placing on the market of GM products. 4.2. Possibility to Affect Decisions Democracy implies that citizens have a possibility to affect decisionmaking in practice. In other words, it is an integral part of democracy that the people can influence decisions made. Thus, the way and extent to which citizens comments can affect final decisions largely determines how well the consultation practices fulfil the ideals of democracy. Interestingly, 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.23 This policy is also clearly visible in decisions, and it is in accordance with the recommendation which the Finnish National Advisory Board on Biotechnology has put forward concerning the public consultation.24 The Commission, in its turn, does not provide any information about the kinds of comments that can affect final decisions. 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, it is reasonable to ask whether current GMO consultation practices present a quasi-democracyan illusion of democracy. This problem arises at least with respect to the national consultation practice in Finland, where the restriction regarding effective comments (i.e. comments which can have an effect on final decisions) is stated explicitly. Nevertheless, since the whole (un)acceptance process of GMOsas well as all legislation concerning themrelies heavily on scientific risk assessment, it is sensible to assume that the restriction is the same in the Commissions consultation practice. Citizens are just not informed that this is the case. 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. In

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______________________________________________________________ consultations carried out by the Commission, only the SNIFs and assessment reports are open to the public. The raw data necessary for risk assessment are not public (nor accessible to the decision-makers).25 Thus, the possible effective comments are, 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. However, even these types of comments require expert knowledge about GMOs. The room left for effective comments is thus highly limited, if not totally absent in practice, and it is unlikely to correspond to the real concerns expressed by citizens.26 In summary, current GMO consultation practices do not fulfil the basic requirement of democracythat of providing a genuine possibility to influence decisions. Rather, they only give an impression of such a possibility. Furthermoreat least from the ethical perspectiveit is unclear why comments that do not concern scientific risk assessment should be irrelevant in respect to final decisions. Robert Streiffer and Thomas Hedemann as well as Jan Deckers, for example, have argued for the view that, in a democracy, intrinsic concerns (basically, concerns other than risks27) related to GMOs should be taken into account.28,29 This is, of course, a broad issue that is not restricted to the consultation practices but concerns the whole legislation and (un)acceptance process of GMOs. 4.3. Transparency of Decision-Making Process Democracy presupposes not only the possibility to influence decision-making but, in many contexts, also transparency in regard to how ones activities (have) influence(d) decisions. In voting situations, for example, it should be transparent as to whether some voters have more votes to give than do the others, or whether proportional representation is in use. Accordingly, 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. In the Commissions consultation practice, the comments submitted are listed on the consultation website. Nevertheless, 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; nor is this information available from any other source. In consequence, the Commissions practice fails to meet the requirements of democracy in this respect as well. The Finnish national consultation practice seems to fare slightly better. Comments submitted are not made public, but their contributors (i.e. non-governmental organisations, NGOs) are listed on the decision forms and the influence the comments had (or did not have) on the final decision is briefly mentioned. In practice, however, this merely amounts to a statement that the public consultation did not bring in new information on risk assessment.

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______________________________________________________________ Discussion Public engagement mechanisms, such as public consultations, are typically considered to contribute to the realisation of the ideals of deliberative democracy. However, as pointed out above, in its current form GMO consultation does not fulfil the very prerequisites for a democratic decision-making procedure. In other words, it seems that at least some particular ways of public involvement do not only fail to result in the outcomes usually associated with themsuch as consensus, better decisions, trustbut also fall short from the procedural point of view. This might be considered a worrying result as the possibilities for the public to participate and affect the GMO decision-making are rather limited. The current (un)acceptance process in the EU is highly science-based and expert-driven, and it is implemented by the Commission, national CAs, and the European Food Safety Authority (EFSA).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. It is concluded that these shortcomings do not imply the abandonment of GMO consultation altogether. They only point out a clear need for its active development. 5.

Notes
This paper is based on a larger article, entitled A Critical Assessment of Public Consultations on GMOs in the European Union (co-authored with Helena Siipi), which will be published in Environmental Values in 2009. It was originally presented in the 7th Global Conference: Environmental Justice and Global Citizenship, Mansfield College, Oxford, 9-12 July 2008. 2 For example, Advisory Board on Biotechnology, Finland [Biotekniikan neuvottelukunta], Kansalaisten kuuleminen direktiivin 2001/18/EY mukaisesti kun geneettisesti muunneltuja organismeja levitetn tarkoituksellisesti muussa kuin markkinoille saattamisen yhteydess, 2003, in www.biotekniikanneuvottelukunta.fi/muistiot/kuuleminen.pdf; K Jensen, Conflict over Risks in Food Production: A Challenge for Democracy. Journal of Agricultural and Environmental Ethics, vol. 19, 2006; M Rask, The Problem of Citizens Participation in Finnish Biotechnology Policy. Science and Public Policy, vol. 30, 2003; Y Rydin, Public Participation: Different Rationales; Different Strategies, 2006, in www.environment.fi/download.asp?contentid=60431&lan=en; S Sterckx and T Macmillan, Taking Citizens Seriously. Journal of Agricultural and Environmental Ethics, vol. 19, 2006; T Webler, S Tuler and R Krueger,
1

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______________________________________________________________ What is Good Public Participation Process? Five Perspectives from the Public. Environmental Management, vol. 27, 2001. 3 For example, Aarhus Convention=Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, Aarhus, 25 June 1998; CPB=Secretariat of the Convention on Biological Diversity, Cartagena Protocol on Biosafety to the Convention on Biological Diversity: Text and Annexes, Montreal, 2000; 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; UNCED=Rio Declaration on Environment and Development (United Nations Conference on Environment and Development, Rio de Janeiro, 3-14 June 1992). 4 G Gaskell et al., Europeans and Biotechnology in 2005: Patterns and Trends: Eurobarometer 64.3., 2006, p. 10, in www.ec.europa.eu/research/press/2006/pdf/pr1906_eb_64_3_final_reportmay2006_en.pdf. 5 See, for example, V Beekman and F Brom, Ethical Tools to Support Systematic Public Deliberations about the Ethical Aspects of Agricultural Biotechnologies. Journal of Agricultural and Environmental Ethics, vol. 20, 2007, p. 7; M Harvey, Perspectives on Public Engagement. Genomics Network, vol. 4, 2006, p. 13; L Pratchett, New Fashions in Public Participation: Toward Greater Democracy?. Parliamentary Affairs, vol. 52, 1999, pp. 616, 628; Y Rydin, op. cit., 2006, p. 2; A Stirling, Participatory Processes and Scientific Expertise: Precaution, Diversity and Transparency in the Governance of Risk. Participatory Learning and Action, vol. 40, 2001; S Weldon, Public Engagement in Genetics: A Review of Current Practice in the UK, 2004, p. 10, in www.cesagen.lancs.ac.uk/resources/papers.htm. 6 Besides serving democracy, less general objectives have been set for public engagement in general and GMO consultation in particular. They have been stated to inform and educate the public, increase consensus within a society, enable better decisions to be made, and establish trust in decision-makers and experts. Most of these objectives are not distinct from democracy but rather may be considered essential constituents of a democratic system. Nevertheless, these objectives have also been presented as independent reasons for engaging citizens in GMO decision-making. 7 B Page, Who Deliberates? Mass Media in Modern Democracy, University Chicago Press, Chicago, 1996. 8 T Mendelberg, The Deliberative Citizen: Theory and Evidence, in Research in Micropolitics: Political Decisionmaking, Deliberation and

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______________________________________________________________ Participation. M X Delli Carpini, L Huddy and R. Shapiro (eds.), JAI Press, Greenwich, 2002, pp. 153-154. 9 K Jensen, op. cit., p. 269. 10 S Sterckx and T Macmillan, op. cit., p. 219. 11 Chambers, op. cit., p. 309. 12 R E Goodin and S J Niemeyer, When Does Deliberation Begin? Internal Reflection versus Public Discussion in Deliberative Democracy. Political Studies, vol. 51, 2003. 13 J S Dryzek, Deliberative Democracy and Beyond: Liberals, Critics, Contestations, Oxford University Press, Oxford, 2000, pp. 1-2. 14 S Chambers, Deliberative Democratic Theory. Annual Review of Political Science, vol. 6, 2003, p. 308; Delli Carpini et al., op. cit.. 15 Directive 2001/18/EC, Article 9. 16 GTA, 36b . 17 Board for Gene Technology, Finland [Geenitekniikan lautakunta], Kenttkokeet Suomessa, 2007b, in www.geenitekniikanlautakunta.fi/kenttakokeet.html. 18 GTA, 36b . 19 Board for Gene Technology, Finland [Geenitekniikan lautakunta], Yleisn kuuleminen, 2007a, in www.geenitekniikanlautakunta.fi/kuuleminen.html; I Salovuori, Uusi geenitekniikkalaki edellytt kansalaisten kuulemista kenttkokeiden yhteydess. Miten kuuleminen kytnnss toteutetaan/on toteutettu?, 2007, in www.bioteknologia.info/FAQ/lainsaadanto/fi_FI/faq_lainsaadanto_1_1_1_2/ 20 Joint Research Centre and European Commission, Deliberate Releases and Placing on the EU Market of Genetically Modified Organisms (GMOs), p. 2, viewed on 12 April 2007, in http://gmoinfo.jrc.it/. 21 Admittedly, the Your Voice in Europe website includes some brief Finnish translations concerning public consultations (http://ec.europa.eu/yourvoice/). However, English language ability and patience is needed when one familiarises her/himself with the web pages. 22 However, this information is only provided in Finnish, which may form a considerable obstacle for citizens without skills in Finnish. This is noteworthy since, although the majority of Finns do speak Finnish as their native language, Swedish is also an official language of Finland. Moreover, there is a small Sami speaking minority, and although the number of nonnative Finns is small, it is growing. (Virtual Finland, Fact Sheet Finland, viewed in 2007, in http://virtual.finland.fi/netcomm/news/showarticle.asp?intNWSAID=27443# peop).

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______________________________________________________________ I Salovuori, Uusi geenitekniikkalaki edellytt kansalaisten kuulemista kenttkokeiden yhteydess. Miten kuuleminen kytnnss toteutetaan/on toteutettu?, 2007, in www.bioteknologia.info/FAQ/lainsaadanto/fi_FI/faq_lainsaadanto_1_1_1_2/ ; Board for Gene Technology, Finland [Geenitekniikan lautakunta], Pts, 2005, in www.geenitekniikanlautakunta.fi/dokumentit/001MB2005pts.pdf; ibid., 2007a. 24 Advisory Board on Biotechnology, 2003, p. 13. 25 The case of national consultations is a bit different as scientific field trials are often carried out to assess environmental risks. 26 This is acknowledged in a report of Finnish Advisory Board on Biotechnology (op. cit., p. 13). 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. Nevertheless, this does not solve the original problem, that is, the lack of a genuine possibility to affect the decision-making. 27 More specifically, intrinsic concerns refer to those worries which are not related to the actual (known) or possible (presumed) consequences of an action. 28 R Streiffer and T Hedemann, The Political Import of Intrinsic Objections to Genetically Engineered Food. Journal of Agricultural and Environmental Ethics, vol. 1, 2005, pp. 191-210; J Deckers, Are Scientists Right and NonScientists Wrong? Reflections on Discussions of GM. Journal of Agricultural and Environmental Ethics, vol. 18, 2005. 29 For similar views, see also V Beekman and F Brom, 2007, pp. 4, 6; S Sterckx and T Macmillan, op. cit; B K Myskja, The Moral Difference Between Intragenic and Transgenic Modification of Plants. Journal of Agricultural and Environmental Ethics, vol. 19, 2006, pp. 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.
23

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Aarhus Convention=Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, Aarhus, 25 June 1998. Advisory Board on Biotechnology, Finland [Biotekniikan neuvottelukunta], Kansalaisten kuuleminen direktiivin 2001/18/EY mukaisesti kun geneettisesti muunneltuja organismeja levitetn tarkoituksellisesti muussa kuin

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______________________________________________________________ markkinoille saattamisen yhteydess, 2003, www.biotekniikanneuvottelukunta.fi/muistiot/kuuleminen.pdf. in

Beekman, V. and Brom, F., Ethical Tools to Support Systematic Public Deliberations about the Ethical Aspects of Agricultural Biotechnologies. Journal of Agricultural and Environmental Ethics, vol. 20, 2007, pp. 3-12. Board for Gene Technology, Finland [Geenitekniikan lautakunta], Pts, 2005, in www.geenitekniikanlautakunta.fi/dokumentit/001MB2005pts.pdf. Board for Gene Technology, Finland [Geenitekniikan lautakunta], Yleisn kuuleminen, 2007a, in <http://www.geenitekniikanlautakunta.fi/kuuleminen.html>. Board for Gene Technology, Finland [Geenitekniikan Kenttkokeet Suomessa, 2007b, www.geenitekniikanlautakunta.fi/kenttakokeet.html. lautakunta], in

Chambers, S., Deliberative Democratic Theory. Annual Review of Political Science, vol. 6, 2003, pp. 307-326. CPB=Secretariat of the Convention on Biological Diversity, Cartagena Protocol on Biosafety to the Convention on Biological Diversity: Text and Annexes, Montreal, 2000. Deckers, J., Are Scientists Right and Non-scientists Wrong? Reflections on Discussions of GM. Journal of Agricultural and Environmental Ethics, vol. 18, 2005, pp. 451-478. Delli Carpini, M. X., Cook, F. L. and Jacobs, L. R., Public Deliberation, Discursive Participation, and Citizen Engagement: A Review of the Empirical Literature. Annual Review of Political Science, vol. 7, 2004, pp. 315-344. Department for Environment, Food and Rural Affairs, The United Kingdom, 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, in www.unece.org/env/pp/gmo/expuk.doc. Dryzek, J. S., Deliberative Democracy and Beyond: Liberals, Critics, Contestations. Oxford University Press, Oxford, 2000.

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______________________________________________________________ Gaskell, G. et al., Europeans and Biotechnology in 2005: Patterns and Trends: Eurobarometer 64.3., 2006, in www.ec.europa.eu/research/press/2006/pdf/pr1906_eb_64_3_final_reportmay2006_en.pdf. GTA=Finnish [1995/377]. Gene Technology Act (Geenitekniikkalaki), 2004/847

Goodin, R. E. and Niemeyer, S. J., When Does Deliberation Begin? Internal Reflection versus Public Discussion in Deliberative Democracy. Political Studies, vol. 51, 2003, pp. 627-649. Harvey, M., Perspectives on Public Engagement. Genomics Network, vol. 4, 2006, p. 13. Jensen, K., Conflict over Risks in Food Production: A Challenge for Democracy. Journal of Agricultural and Environmental Ethics, vol. 19, 2006, pp. 269-283. Joint Research Centre and European Commission, Deliberate Releases and Placing on the EU Market of Genetically Modified Organisms (GMOs). In http://gmoinfo.jrc.it/ (viewed on 12 April 2007). Mendelberg, T., The Deliberative Citizen: Theory and Evidence, in Research in Micropolitics: Political Decisionmaking, Deliberation and Participation. M. X. Delli Carpini, L. Huddy and R. Shapiro (eds.), JAI Press, Greenwich, 2002. Myskja, B. K., The Moral Difference Between Intragenic and Transgenic Modification of Plants. Journal of Agricultural and Environmental Ethics, vol. 19, 2006, pp. 225-238. Page, B., 1996. Who Deliberates? Mass Media in Modern Democracy. University Chicago Press, Chicago, 1996. Pratchett, L., New Fashions in Public Participation: Toward Greater Democracy?. Parliamentary Affairs, vol. 52, 1999, pp. 616-633. Rask, M., The Problem of Citizens Participation in Finnish Biotechnology Policy. Science and Public Policy, vol. 30, 2003, pp. 441-454.

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______________________________________________________________ Rydin, Y., Public Participation: Different Rationales; Different Strategies, 2006, in www.environment.fi/download.asp?contentid=60431&lan=en. Salovuori, I., Uusi geenitekniikkalaki edellytt kansalaisten kuulemista kenttkokeiden yhteydess. Miten kuuleminen kytnnss toteutetaan/on toteutettu?, 2007, in www.bioteknologia.info/FAQ/lainsaadanto/fi_FI/faq_lainsaadanto_1_1_1_2/. Sterckx, S. and Macmillan, T., Taking Citizens Seriously. Journal of Agricultural and Environmental Ethics, vol. 19, 2006, pp. 219-223. Stirling, A. Participatory Processes and Scientific Expertise: Precaution, Diversity and Trasparency in the Governance of Risk. Participatory Learning and Action, vol. 40, 2001, pp. 66-71. Streiffer, R. and Hedemann, T., The Political Import of Intrinsic Objections to Genetically Engineered Food. Journal of Agricultural and Environmental Ethics, vol. 1, 2005, pp. 191-210. UNCED=Rio Declaration on Environment and Development (United Nations Conference on Environment and Development, Rio de Janeiro, 3-14 June 1992). Virtual Finland, Fact Sheet Finland, 2007, in http://virtual.finland.fi/netcomm/news/showarticle.asp?intNWSAID=27443# peop. Webler, T., Tuler, S. and Krueger, R., What is Good Public Participation Process? Five Perspectives from the Public. Environmental Management, vol. 27, 2001, pp. 435-450. Weldon, S., Public Engagement in Genetics: A Review of Current Practice in the UK, 2004, in www.cesagen.lancs.ac.uk/resources/papers.htm. 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. 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.

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______________________________________________________________ Marko Ahteensuu is a Postdoctoral Fellow at the Public Choice Research Centre (PCRC), University of Turku, Finland. His research interests include philosophical issues related to environmental risk governance, esp. precautionary decision-making, mechanisms of public engagement, and ethics councils.

Environmental 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, namely access to information, participation in decision-making and access to justice in environmental matters. It promotes environmental justice, transparency and citizenship. It sets minimum standards for the signatories and countries can provide a broader catalogue of rights within the framework of the Convention. This paper is aimed at presenting results of two case studies based in Poland and the UK. Both cases involve sites of deposited waste that give rise to environmental problems. 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. Key Words: Aarhus Convention, access to information, case studies, public participation, trust. ***** 1. Introduction The Aarhus Convention is a United Nations Regional Convention signed by the European Union, which rests upon three pillars, namely access to information, participation in decision-making and access to justice in environmental matters1. It promotes environmental justice, transparency and citizenship. It sets minimum standards for the signatories and countries can provide a broader catalogue of rights within the framework of the Convention. This paper provides a report form my research conducted at a local level in Poland, my country of origin and the UK, the country where I am currently studying. 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 citizens2 satisfaction and expectations stemming from their experiences. It finds that despite significantly different levels of compliance, much better in the UK than in Poland, citizens in both countries are similarly dissatisfied. Distrust in local authorities is identified as an important factor that explains citizens disappointment. 2. Method I was looking for a common scenario based on local activists objecting to sites of deposited waste that now give rise to environmental

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______________________________________________________________ problems. I chose the case of Wilinka, near Gdansk in Poland, where a site of phosphate industry waste is located, and the case of Welbeck, a site near Wakefield, UK, where industrial, commercial and household waste is deposited. In both instances, there are citizens affiliated with local action groups, NGI Fosfi and WKO3 in Poland and RATS in the UK. The Polish site is currently being closed; however, 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. The British site is currently operating, but a company has been prohibited from disposing of industrial waste. I chose both cases after preliminary research, when I understood that both groups were complaining in a similar manner about their experiences with access to information and participation. In May 2008 I conducted five interviews in Poland, mostly with the members of NGI Fosfi on which group experience I shall focus in this paper. I also conducted five interviews with citizens from RATS. In addition, I asked both NGOs to provide me with documentation, which could complement my interviews. The latter consisted of questions asking about citizens experiences with collecting freely available information,4 accessing data through requests5 and participation in decision-making or early consultations.6 Having collected the documentation, I could analyse my interviews by taking a realistic approach7 and compare citizens experiences with provisions of the Aarhus Convention. As to the first pillar, Article 5 requires public authorities to collect and effectively disseminate, free of charge, environmental information appropriate to their functions, through publicly accessible registers, files and electronic databases. Moreover, Article 4 requires public authorities to respond to requests for information as soon as possible, within one month at the latest. This period of time may be extended up to two months if needed, but the public should be informed of the rationale behind the extension. The disclosure of information may be refused in order to protect, for example, corporate confidentiality. As to the second pillar, Article 6 requires public authorities to identify the public concerned and inform them of forthcoming decisionmaking procedures and possibilities of participation. Crucially, officials should enter into early discussions with the public, when all alternatives can be analysed. Thanks to interviews I could also compare citizens levels of satisfaction and expectations. 3. Technical Compliance with the Aarhus Convention A. Polish Case Firstly, 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. However, they normally have to pay for the search and preparation of

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______________________________________________________________ information and the production of photocopies. In addition, some information is disseminated through local newspapers. In 2006, 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. However, a few months after articles publication, the offices had to disclose research analyses showing a potential harmful impact of the waste site on the environment. Secondly, local authorities reply to respondents requests for information by taking as much time as possible in many cases, which is contrary to Article 4 of the Convention. Crucial sought-after data included a project concerning a method of closing down the waste site. Initially, NGI Fosfi could have accessed a summary of this document, which would not provide them with sufficient background to form their opinion. After this they have insisted on full access to the document, which was finally granted after few months of sending requests. Interestingly, one of their letters was passed by the relevant office to the company. The latter, instead of the local authority, replied to the local group by instructing them about their poor qualifications to engage in consultations and social dialogue. Thus, the company took over the competences of the local authority and the latter breached Art. 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, information is helpful and complete to some extent. There are some instances when respondents are not fully informed what data have been collected by public authorities. Respondents say that they understand information because they have much environmental experience and wastesite-related knowledge background. However, the lack of a photocopying machine which would allow production of colour duplicates impairs their analysis of documentation outside public authorities headquarters. A few documents must be seen in full colour since some environmental details can only be recognized through an analysis of coloration. Respondents produce their own information, which is freely disseminated through their website. This also includes some documents that have been obtained from public authorities records. Fourthly, respondents have had very limited opportunities to participate in consultations and decision-making regarding the waste site. They were not properly informed about and given time to prepare for forthcoming consultations, which were normally reserved for civil servants and company representatives. Most of their efforts to meet with the former have been quashed. In one instance, in September 2007, respondents were invited to a meeting in the Voivodeship office just after a public demonstration. They were, however, surprised to discover that

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______________________________________________________________ representatives of the company were also invited and the consultation took a chaotic turn. Moreover, the aforementioned office promised them the organization of a commission of social dialogue, which has never been established. From 2008 environmental competences were transferred to the Marshalls office, 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, namely a method of closure of the waste site. Nevertheless, the Marshalls office has recently offered more regular meetings with the group. There has already been one substantial and properly organized consultation. B. British Case Firstly, the availability of waste site-related information is also limited. Nevertheless, respondents have access to documents held in a publicly accessible regional office in Leeds, which is about 12 miles from RATS permanent residence. One has to make an appointment to view information and can have documents printed or photocopied free of charge. However, respondents claim that they are not informed about the scope of available data and have to discover the documents themselves. The Environment Agencys (hereafter EA) compliance assessment reports, which are prepared after monthly visits to the waste site, are crucial sought-after documents. Reports contain complex information about elements of the environment related to the landfill site and breaches of a permit contract. The documents are accessible from Leeds office but can also be directly posted to RATS. Secondly, respondents requests for environmental information are being dealt promptly, mostly within few days. Institutions, in line with the Convention, may also reply by saying that a request was either formulated in a general manner to be answered or has been previously considered. However, the process of obtaining information is claimed to be very expensive, especially when it comes to photocopying large-size documents as license permits or spending money on postage stamps. Moreover, respondents have had limited access, on the basis of corporate confidentiality to sought-after information, which was a waste site lease issued for the company by the Wakefield District Council. This document might contain some information regarding future developments of the site as even the possibility of building an incinerator, which is strongly opposed by RATS. Interestingly, 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. A court injunction prevented him from discussing this information. Thirdly, respondents admit that information that they have access to is helpful, but often incomplete. Crucially, they understand its content thanks to their experience with the issue. They claim that ordinary citizens would not

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______________________________________________________________ be able to comprehend most of the data that is provided by local authorities. In effect and in addition to technical information, they produce their own data, mostly in the form of photographs showing breaches of permits. They regret that most of their documentation is either ignored or played down by local authorities. Fourthly, RATS do not attend a liaison committee, which provides an opportunity, every three months, for interaction between representatives of the company, local and regional authorities and citizens. The liaison committee is attended independently by one of my respondents, who claims that the whole procedure and substantive discussion is led by the company rather than by representatives of public authorities. RATS is also offered possibilities of issuing opinions, even through local authorities website, in relation to forthcoming decisions Moreover, RATS is often invited to early and informal meetings with local representatives aimed at explaining pressing issues and future waste site-related developments. 4. Satisfaction and Expectations A. Polish Case Respondents are not satisfied with procedures of accessing information and participation in waste site-related matters. They suspect that public authorities are biased and not prepared to work with them. Moreover, public authorities representatives are perceived as incompetent, secretive and superficially familiar with waste site-related issues. NGI Fosfi expects public authorities to provide them with better and smoother access to information and participation procedures. They admit that some aspects of public authorities attitudes have been improved over time. It was reflected by a recent meeting, in April 2008 in Marshalls office, where they could present their opinions through an independent research institution. However, they are sceptical as to opportunities for more such meetings because of their earlier experiences. The dissatisfaction stems also from the fact that there have been blurred interactions between private, public and academic actors. As a result respondents do not know whom they can trust and try to establish contacts with national authorities such as the Ombudsman, and European institutions by sending a petition to the European Parliament8 and independent research or specialist institutions working outside their region. B. British Case Respondents are similarly dissatisfied with procedures of accessing information and participation in consultations or decision-making process. They claim that such information, as EAs 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

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______________________________________________________________ classified as the most serious breach of permit contracts. 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. RATS claim to have better understanding of the waste-site related issues because they live nearby and notice many inaccuracies and breaches of contract. They are blaming local authorities representatives for being unreliable, incompetent and having a passing acquaintance with Welbecks environment. 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 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. RATS satisfaction and expectation levels are significantly affected by the prior experience. Before the waste site was established, 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. In the end, some industrial waste that is currently seen as toxic has been deposited in Welbeck site. 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. As a result, just as the Polish respondents, they seek assistance in both the European Parliament and other national institutions. 5. 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. The former are in constant contact with public authorities, have good opportunities to access information and attend formalized consultations such as liaison committee and informal meetings with representatives of authorities. The latter struggle for access to information, which requires substantial financial resources for photocopying or preparation. They have no possibility of attending any formalized liaison committee or a social dialogue commission despite promises and limited possibilities of attending informal consultations. As a result of this, there is a broad technical compliance with the Aarhus Convention in relation to the British case, which is not matched with regard to the Polish case, where the standards of the Convention are often overlooked. 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. This struggle means that they are wasting

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______________________________________________________________ efforts and resources that should be devoted for substantive analysis of documents and preparations for meetings. Interestingly, the level of (dis)satisfaction is similar in both cases. Respondents use similar language to explain their disappointment. It is fully understandable in relation to the Polish case, where technical compliance with the Convention is weak. The broad compliance at the UK local level does not lead to greater contentment; and even an exercise of some provisions of the Aarhus procedures are rejected by RATS. The latters attitude is inseparable form past experiences during which local authorities managed to lose their trust and are now seen by the group as incompetent, secret and detached from needs of ordinary citizens and local groups. An underlying factor of distrust explains RATS behaviour that becomes fully comprehensible. 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. Residents can develop much higher expectations that cannot be satisfied by mere compliance with the provisions of the Aarhus Convention. This can be seen in the UK local case. Polish respondents are still fighting for Aarhus rights to be put in place. Yet, it is questionable whether their satisfaction will be higher if and when civil servants in Poland start adhering fully to the Aarhus provisions. This is because, if the experience of the British study is correct, by the time that compliance with informational and participatory rights is won, trust will already have been lost.

Notes
UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (adopted 25 June 1998, entered into force 30 October 2001) (Aarhus Convention). 2 The term citizen is used here to refer to a person who does not have a formal role within government institutions, and is not related to citizenship status. 3 Crucial initiative and work is done by NGI Fosfi, which at the time of this research was an informal group closely associated with a formalised local NGO, namely WKO. All interviewed respondents, if not members, are closely associated with the NGI Fosfi. 4 Aarhus Convention, art. 5. 5 ibid, art. 4. 6 ibid, art. 6. 7 David Silverman, Doing Qualitative Research. A Practical Handbook, Sage, London, 2000, p, 422.
1

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______________________________________________________________ The Committee of Petitions decided to conduct further research regarding the petition, which raised some issues of civil servants incompetence. The Committee also asked the European Commission to conduct a preliminary investigation and provide information regarding compliance with relevant Community legislation. The case is now (October 2008) in the EU Commission.
8

Bibliography
UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (adopted 25 June 1998, entered into force 30 October 2001) (Aarhus Convention). Fukuyama, F. Trust: The Social Virtues and the Creation of Prosperity. Penguin Books, London, 2005. Silverman, S. Doing Qualitative Research: A Practical Handbook. Sage, London, 2000. Radoslaw Stech is a Doctoral Researcher at The ESRC Centre for Business Relationships, Accountability, Sustainability and Society and a Research Assistant at the Cardiff Law School.

NGO Participation in Investment Treaty Arbitration Tomoko Ishikawa

Abstract This chapter examines the role of NGOs in investment treaty arbitration, one of the areas of international law which has developed rapidly in recent years. Although NGOs have increasingly become influential in the international law sphere, there are areas where they are yet to play any significant role. Until recently, 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. However, 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. This change was brought by the increasing recognition of the public nature of investment treaty arbitration. Being a dispute between two parties, i.e. a foreign investor and the host state, an investorstate dispute may however have an impact beyond the disputing parties, in particular, the public policy of the host state. This is particularly the case where investors challenge the host states measures that (arguably) intend to protect public interests of the host state. 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. Key Words: International treaty arbitration, NAFTA, ICSID, NGO participation, amicus curiae briefs. ***** Introduction Non-state entities, in particular non-governmental organizations (NGOs), have become increasingly influential in various areas of international law. 1 Although it is argued that NGOs were visible in international law making since (at least) the early twentieth century,2 their role and influence expanded considerably in the 1990s, particularly in the context of issues such as the environment and human rights. For example, in the field of international environmental law, the 1992 UN Conference on Environment and Development (UNCED) marked a significant step towards NGO participation in the international policymaking process. 3 More than 2,400 representatives of NGOs attended the Conference that adopted Agenda 21,4 which explicitly affirms the important 1.

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______________________________________________________________ role of NGOs in international policy-making.5 In the field of human rights law, the 1993 UN World Conference on Human Rights6 also attracted the wide participation of NGOs.7 Moreover, it is observed that NGOs did have an actual impact on the Conference, 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.9 The declaration also explicitly recognised the role of NGOs to elaborate, implement and protect human rights. 10 A similar endorsement of the role of NGOs is found in the declaration on rights and responsibilities, which was adopted by the UN General Assembly in December 1998.11 Despite these developments, there are areas of international law in which NGOs are yet to play any significant role, an example of which is international commercial arbitration. The little influence of NGOs on this area may be explained by the following two features of international commercial arbitration. First, international commercial arbitration deals with disputes between private entities/State entities acting in a private capacity that, at least in principle, do not have significant impact on public interests. Secondly, the principle of party autonomy, 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, is the fundamental principle of 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, 12 and reflected in Article 19(1) of the 1985 UNCITRAL Model Law: 13 [s]ubject to the provisions of this Law, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings. Among these, the principle of party autonomy also lies at the heart of investment treaty arbitration procedure, because it incorporates the procedural design of international commercial arbitration. 14 That is, the structure and key contents (e.g. 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, such as the UNCITRAL Rules 15 or ICC Rules.16 Moreover, investment treaty disputes are often brought to non-ICSID arbitration, which is governed by, for example, the UNCITRAL Rules.17 On the other hand, investment treaty arbitration usually has public aspects, which distinguish it from international commercial arbitration. First, investment treaty arbitration is governed not only by the law of the host state but also by public international law. This is because the substantive rights and obligations at issue are set by treaties, and general international law is also applicable to investment treaty arbitration. 18 As a result, the pronouncements of law made by arbitral tribunals have ramifications in the

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______________________________________________________________ development of public international law. 19 Secondly, arbitral awards have significant effects on the general public of the host state. Many investorstate disputes involve conflicts arising out of regulatory interferences with various aspects of the investment. 20 Indeed, it is increasingly recognised that they should be characterised as regulatory disputes within the public law sphere. 21 Considering that governmental regulations and measures challenged by investors are based on public policy, 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. 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. For example, 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. In such circumstances, 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.22 Despite these public aspects of investment treaty arbitration, NGOs had not played any substantial role in it until recently. However, reflecting the concern that the procedural rules designed for international commercial arbitration do not actually fit for investment treaty arbitration, significant procedural change concerning NGO participation has taken place in investment treaty arbitration.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, the ICSID Arbitration Rules were amended to authorise tribunals to do so. This opens the possibility for NGOs to participate in investment treaty arbitration. This chapter examines this change concerning NGOs participation in investment treaty arbitration through amicus curiae submissions. It starts by examining case law and practice in both the NAFTA and ICSID arbitration regime (Section 2). It then addresses the concerns raised over this shift, and demonstrates that these concerns are either misplaced or avoidable (Section 3). This is followed by the examination of the purposes and benefits of receiving amicus curiae submissions (Section 4). It concludes by proposing the need to make effective use of amicus curiae submissions. 2. Case Law and Practice on NGO Participation The development concerning third party participation in the arbitral process, in particular, the submissions of amicus curiae briefs, has occurred in two major venues of investment treaty arbitration, namely, NAFTA/UNCITRAL arbitration and ICSID arbitration.

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______________________________________________________________ NAFTA/UNCITRAL Arbitration Methanex Corporation v. United States This is the first investorstate arbitration case where the tribunal had authority to accept written amicus curiae submissions. The dispute arose out of a Californian ban of a gasoline additive called MTBE. Methanex was the largest producer of methanol, which is the essential oxygenating element of MTBE. The case was brought before an UNCITRAL arbitration tribunal under Chapter 11 of the NAFTA. During the proceedings, 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. In response, the tribunal issued the Decision on Authority to Accept Amicus Submissions in January 2001.25 In the absence of an express provision in the UNCITRAL Arbitration Rules and NAFTA Chapter 11 admitting or denying the tribunals power to accept amicus submissions,26 the first question before the tribunal was whether the tribunals acceptance of amicus submissions fell within the general scope of Article 15(1) of the UNCITRAL Arbitration Rules. The tribunal answered in the affirmative, but since it considered the matter to be premature, declined to articulate detailed criteria to do so. On the other hand, 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. The tribunal then held that it could be appropriate to allow written amicus submissions from the IISD and Earth-Justice, but it would make a final decision at a later stage of the proceedings. It should however be noted that the request to present amicus curiae briefs orally was rejected, on the ground that Article 25(4) of the UNCITRAL Arbitration Rules requires hearings to be held in camera unless both parties consent otherwise, and there was no such consent in this case.28 In reaching this conclusion, the tribunal explicitly recognised the public nature of the dispute, stating: there is an undoubtedly public interest in this arbitration. 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; or conversely be harmed if seen as unduly secretive. In this regard, the Tribunals willingness to receive amicus submissions might support the process in general and this arbitration in particular, whereas a blanket refusal could do positive harm.29 In 2003, while the Methanex case was still in progress, the NAFTA Free Trade Commission (FTC) issued a statement on third party participation in NAFTA Chapter 11 proceedings (FTC Statement on Third Party Participation). 30 The statement explicitly acknowledges that non2.1 2.1.1

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______________________________________________________________ disputing parties may apply for leave to file a submission. It also outlines guidelines for the acceptance of such submissions. In 2004, in accordance with the procedures set out in the FTC Statement on Third Party Participation, the Methanex tribunal accepted the submissions made by the IISD (IISD submission) and Earth-Justice (made on behalf of Bluewater Network, Communities for a Better Environment and Center for International Environmental Law (Bluewater submission)).31 United Parcel Service v. Canada In this case, the claimant challenged Canadian measures concerning its postal services market. The Canadian Union of Postal Workers (CUPE) and the Council of Canadians made amicus requests to the tribunal, including the request to submit amicus curiae briefs. The tribunal followed the approach taken by the Methanex tribunal. That is, 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, while emphasising that it is a matter of its power rather than of third party right.32 In 2005, the UPS tribunal received the amicus curiae submissions from the CUPE/ Council of Canadians (joint submission) and the US Chamber of Commerce.33 Glamis Gold Ltd. v. United States This dispute concerned Glamiss mining project in the California desert. Glamis challenged two measures adopted by California that required, inter alia, backfilling of all open pits and recontouring of the land after cessation of metallic mining activities, arguing that they amount to expropriation and are in breach of the obligation to provide fair and equitable standard of treatment. 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; and (ii) provide protection to Native American sacred sites. Amicus curiae submissions have been filed by the Quechan Indian Nation, Friends of the Earth Canada/Friends of the Earth United States (joint submission), the National Mining Association, and the Sierra Club/Earthworks (joint submission). The power of the Tribunal to accept amicus curiae submissions was never questioned in subsequent procedural orders, 34 because the proceedings began after the release of the FTC Statement on Third Party Participation.35 The case is still pending as of the date of writing. 2.1.3 2.1.2

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______________________________________________________________ ICSID Arbitration Aguas del Tunari, S.A. v. Republic of Bolivia The dispute arose out of Bolivias privatisation of water and sewage services, the concession for which was awarded to the claimant. The claimant commenced the project, but soon faced strong opposition and protests by citizens and eventually abandoned the project. The claimant then filed the claim arguing that, inter alia, the Bolivian government breached its obligation under the concession in responding to the opposition. In August 2002, several environmental NGOs and individuals filed petitions for status as amicus curiae, 36 including the request to submit amicus curiae briefs. However, the tribunal rejected all of these requests. In the letter from the president of the tribunal,37 he stated that the tribunal unanimously decided that the requests were beyond the power or the authority of the Tribunal to grant. According to the tribunal, 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. As to the request for the amicus curiae submission, 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. The proceedings of this case were discontinued in March 2006 at the request of both parties, following the settlement of the dispute by the parties. 2.2.2 Suez, Sociedad General de Aguas de Barcelona S.A., and Vivendi Universal S.A. v. Argentine (Suez/Vivendi case, first petition) The dispute related to the privatisation of the public service of water provision. The claimants argued that certain measures the Argentina government adopted in response to Argentinas economic and financial crisis injured their investments. Five NGOs filed a Petition for Transparency and Participation as Amicus Curiae, in which they made several requests to the tribunal including an opportunity to submit amicus curiae briefs. In response, the tribunal issued an order on 19 May 2005 (Suez/Vivendi First Order on Amici). 38 Having confirmed that the ICSID Convention and ICSID Arbitration Rules neither specifically authorise nor specifically prohibit the amicus curiae submission, the tribunal decided that it has the powers to accept amicus curiae submissions under Article 44 of the ICSID Convention.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 investorstate arbitration. Public acceptance of the legitimacy of international arbitral processes, particularly when they involve states and matters of public interest, is strengthened by increased openness and increased knowledge as to how these processes function...[t]hrough the participation of appropriate 2.2 2.2.1

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______________________________________________________________ representatives of civil society in appropriate cases, the public will gain increased understanding of ICSID processes.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); (b) the suitability of a given non-party to act as amicus curiae in that case (that the petitioners have the expertise, experience, and independence to be of assistance); 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). 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.42 2.2.3 Suez, Sociedad General de Aguas de Barcelona S.A., and InterAguas Servicios Integrales del Agua S.A. v. Argentina (Suez/InterAguas case) The tribunal in this case comprised the same arbitrators as the Suez/Vivendi tribunal. 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. 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, and therefore a variety of public and international law questions, including human rights considerations, may be raised.45 However, 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, the tribunal concluded that the petitioners have not provided sufficient specific information and reasons to be admitted as amici curiae in this case.46 At the same time, however, the tribunal left the door open for them to provide the tribunal with further information in order to do so, 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.47

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______________________________________________________________ Amendment of the ICSID Arbitration Rules These inconsistent three decisions led to the amendments of ICSID Arbitration Rules 32 and 37 in April 2006.48 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, although certain considerations specified by the rule will have to be taken into account in the decision making. The following second paragraph was added to Rule 37: After consulting both parties, 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. In determining whether to allow such a filing, the Tribunal shall consider, among other things, 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, particular knowledge or insight that is different from that of the disputing parties; the non-disputing party submission would address a matter within the scope of the dispute; the non-disputing party has a significant interest in the proceeding. 2.2.4

(b) (c)

The Tribunal shall ensure that the non-disputing party submission does not disrupt the proceeding or unduly burden or unfairly prejudice either party, and that both parties are given an opportunity to present their observations on the non-disputing party submission. 2.2.5 Suez, Sociedad General de Aguas de Barcelona S.A., and Vivendi Universal S.A. v. Argentine (second petition) In December 2006, five NGOs made the second, joint amicus curiae submission to the tribunal, requesting, inter alia, the opportunity to make written amicus curiae submissions. The tribunal issued its second order on amici on 12 February 2007 (Suez/Vivendi Second Order on Amici).49 As to the request for the written amicus curiae submission, the tribunal first noted that the amended ICSID Arbitration Rules themselves do not apply to this case.50 Nevertheless, it held that the amended Rule 37 is in accord with the three criteria set out in the Suez/Vivendi First Order on Amici. The tribunal then decided that the petition made by these NGOs met these

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______________________________________________________________ criteria, and concluded that they may file an amicus curiae submission in accordance with certain procedure specified in the Order. Biwater Gauff Ltd v. 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. In March 2006, five NGOs including the IISD and CIEL (Petitioners) filed a petition for amicus curiae status, and the tribunals issued the Procedural Order No. 5 in response.51 Not surprisingly, 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, but two specific and delimited types of participation by non-parties, i.e. (a) the filing of a written submission (Rule 37(2)) and (b) attendance at hearings (Rule 32(2)).52 This is in line with the decisions of earlier tribunals that amicus curiae submissions do not give third parties any rights, status or privileges in the proceedings. The Petitioners filed their joint amicus curiae submission on 26 March 2007.53 2.3 Summary These NAFTA/UNCITRAL and ICSID cases show fairly consistent attitudes by investment treaty arbitration tribunals, that is, all the tribunals except for Aguas del Tunari acknowledged the power of the tribunals to accept written amicus curiae submissions. This was so even before the release of the FTC statement on third party participation or the amendment of the ICSID Arbitration Rules. Yet at the same time, 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, third parties do not have any rights or privileges in the arbitral proceedings. Concerns Over This Development As noted in the introduction, NGOs have increasingly become influential in the international law sphere, in particular in the fields of international environmental law and human rights law since the 1990s. 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,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. 3. 2.2.6

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______________________________________________________________ However, this new trend has not necessarily received full endorsement. Several concerns are raised over amici, their roles and the impact of amicus curiae participation on investment treaty arbitration. The next subsections demonstrate that these concerns are either misplaced or avoidable, and therefore do not constitute valid objections to the acceptance of amicus curiae submissions. 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 amicus curiae submissions interfere with the self-determination of the disputing parties, more concretely, the parties carefully constructed strategy for victory.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,58 the former covers the substantive aspects of arbitration as well. 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. In other words, the written submissions in ICSID cases are generally the most influential part of the record for the arbitrators.59 In such a system, the parties carefully structure their arguments, select the legal and factual issues to be presented, as well as gather and select evidence to support their case. The acceptance of amicus curiae submissions introduces a change to this structure. As an independent third party, an amicus will, and is supposed to, 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. Indeed, in the WTO context, it is argued that for many private actors seeking to participate in a WTO dispute, the primary purpose is to present factual information or express an argument left ignored by the governments.61 If such arguments of amici affect the tribunals decision on substantive issues, it may surprise the disputing parties. Such a consequence not only is an interference with the parties strategy to win, but also brings a substantial change to the arbitration system designed by the parties. That the tribunals have confirmed that the acceptance of written amicus curiae submission is a procedural matter is not relevant in this context.62 Without doubt, procedural aspects of arbitration such as rules of evidence do affect the substantive outcome of disputes. Arguments of third parties, brought into the procedure through the procedural door of amicus curiae submissions, may well also influence the outcome of the dispute.63 3.1

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______________________________________________________________ If this was a case of purely commercial disputes, it would indeed be inappropriate to introduce such a change. Where the impact of an arbitral award is limited to the disputing parties, as is often the case with international commercial arbitration, placing the responsibility of arguing and proving its case on each disputing party serves the principle of self-determination, as well as the effectiveness of the arbitration process. However, 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.64 Investorstate disputes often involve issues that touch upon matters of public policy, 65 and therefore arbitral awards may have a significant impact on the welfare of the citizens of the host state.66 This does not just mean the implication for the public purse (i.e. awards against the host state or state entity are funded through taxes levied on citizens),67 which may also be affected by a purely commercial dispute when, for example, it involves a state-owned company. Investment treaty arbitration involves other important public interests, 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, oil and gas, electricity, waste disposal and so on;69 (b) investorstate arbitrations may challenge regulatory measures intended by states to protect the public welfare, if the measure directly or indirectly affects the value of the investment; (c) the threat of investor-state arbitration may have a chilling effect on states adopting public welfare regulations; (d) as investorstate case law is now central to the future direction of international investment law, the arbitration process is important to the development of international investment law (as noted in the Introduction). In fact, the investment arbitration tribunals that have accepted amicus curiae submissions never fail to mention the public nature of the disputes (Methanex; 70 UPS; 71 Suez/Vivendi;72 Suez/InterAguas;73 Biwater74). With this regard, it should be noted that investment treaty arbitration cases such as Ethyl, 75 S.D. Myers, 76 Metalclad, 77 Methanex, 78 Tecmed, 79 MTD, 80 Santa Elena, 81 and Parkerings 82 indicate that investment treaty arbitration has now become an important international forum in which environmental issues are discussed. In the environmental context, the chilling effect on environmental policy of the host state should never be underestimated.83 There is the possibility that an award effectively forces the host state governments to repeal the challenged environmental measure(s), and such a possibility is not merely theoretical. An example is Ethyl, 84 in which the Canadian government had to overturn a ban on the sale of Ethyls gasoline additive MMT, together with the payment of $13 million (US dollars) in order to settle the dispute brought by Ethyl to a NAFTA tribunal. Moreover, 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

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______________________________________________________________ meaningful manner. 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 states86 may well discourage the host state from raising its environmental standards. 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.D. Myers.87 Nevertheless, arbitrators, who act in the capacity of private lawyers, lack the mandate of the people affected by the award they make. Also, arbitrators are not tenured but appointed in each case, and their decisions are free from the possibility of appeal. Although these circumstances are almost axiomatic to international commercial arbitration, they do not necessarily sit well with the public aspects of investment treaty arbitration. This dissonance is highlighted when considering that other public international courts and tribunals that have either a tenure system (e.g. the European Court of Human Rights and the WTO Appellate Body) or an appeal mechanism (e.g. the WTO panels).88 Furthermore, 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, given the confidentiality that surrounds the system.89 These considerations give rise to the concern that the dispute might be resolved in a way that impairs the citizens rights. It is these concerns that lie at the heart of the argument for the change of investment treaty arbitration proceedings. In this context, it should be noted that Van Harten, 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.90 Van Harten argues that the approach focusing on the consequences of investment treaties is less compelling, because: while commercial disputes may also raise issues of public interest,91 the fact that the states 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.92 However, whereas it may be true that the generality of the states consent is suffice to constitute an adjudication based on that consent as public law,93 it does not provide much guidance as to whether to allow third party participation to arbitral proceedings.94 Rather, what is crucial in this context is that the regulatory conduct and measures of host states are challenged and judged by arbitrators, and it is the resultant ramifications for the general public that necessitate more open and inclusive arbitration proceedings. Contract-based ICSID arbitration, in which the host states

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______________________________________________________________ consent to arbitration is specific, may also be distinguished from commercial arbitration in this regard, depending on the factual and legal circumstances of the case. For example, if a contract between an investor and a host state contains stabilization clauses, the breach of which may entail compensation and result in capital flight, a dispute based on the contract may well also have a chilling effect on public policy development. 95 Indeed, although all the arbitration cases that have accepted amicus curiae submissions are treatybased (and therefore this chapter focuses on investment treaty arbitration), the amended ICSID Arbitration Rules do not distinguish between treatybased arbitration and contract-based arbitration. Amicus curiae briefs may also be accepted in contract-based arbitration under Rule 37, subject to the same criteria including the public nature of the dispute. Therefore, 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. The tribunals openness towards written amicus curiae submissions on the one hand, 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, appear to be the result of such a careful balancing. In addition, the disputing parties are always given the right and opportunity to respond to the amicus curiae briefs submitted.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; (b) that it may cause the politicisation of investorstate disputes, which not only distorts the proceedings but also reduces the chances of settlement between parties;97 and (c) that it is doubtful whether meaningful and effective amicus curiae submissions can be made in the absence of complete transparency.98 The following subsections demonstrate that these concerns are either misplaced or avoidable. Cost Increase and Delay The tribunals themselves were concerned about the increase in cost and time caused by amicus curiae submissions,99 and this concern is reflected in Rule 37(2) of the ICSID Arbitration Rules.100 If the acceptance of written amicus curiae submissions is not the right of third parties but the discretion of tribunals (see Section 2), a number of options to mitigate this problem are available to tribunals. For example, a tribunal is free to reject the submissions that merely duplicate the arguments made by the parties.101 When the tribunal accepts such submissions, it may limit the issues to be addressed to legal issues, or specify the form of the submission (e.g. to limit the length of the 3.2.1 3.2

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______________________________________________________________ submission). 102 After all, it is for tribunals to strike a balance between receiving excessive information and being as fully informed as possible on all points.103 Politicisation of the Dispute within the Arbitral Forum The politicisation concern is misplaced, because in the case of a dispute which involves important public issues, the risk of politicisation always exists regardless of third party participation in the arbitration proceedings. Any information on such a case will potentially cause strong public reactions. In addition, the materials of the case may be released by the parties.104 Related to the politicisation concern is the concern over the credibility of non-state actors, in particular NGOs. 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); 105 that NGOs may sometimes be manipulated by states or private corporations through subsidy or funding; 106 and that their legitimacy is questionable as their internal decision-making processes are often neither democratic nor transparent. 107 The general examination of the appropriateness of NGO participation in international law making is beyond the purpose of this chapter, 108 but in the context of investment treaty arbitration, these concerns are largely misplaced. First, there is nothing wrong with accepting submissions from various types of amici including industrial NGOs or business corporations in investment treaty arbitration. In fact, the UPS tribunal accepted a submission from the US Chamber of Commerce. Similarly, the Glamis tribunal accepted the submission from the National Mining Association, which is comprised of corporations from the American mining sector. By accepting arguments from amici that have different purposes and perspectives, tribunals may furnish themselves with a wider range of grounds for the decisions. 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.109 In addition, 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, excluding submissions from commercial NGOs would be contrary to the equality of parties. 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, 111 commercial NGOs, as the example of the Chamber of Commerce in UPS shows, often support the position of foreign investors. Above all, tribunals retain full power to decide whether it will allow the litigation to be extended in the ways suggested by an amicus.112 3.2.2

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______________________________________________________________ Secondly, 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. To put it another way, NGOs, as potential amici, always have to convince a tribunal that they meet the criteria set out in these guidelines.113 The tribunal has the discretion to reject submissions from applicants that failed to do so,114 such as where there are doubts about the submitters transparency and the source of funding.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. However, even assuming that some of the risks cannot be completely eliminated, they are overridden by the benefits brought by amicus curiae submissions from wellqualified NGOs. First, amicus curiae submissions may address certain factors the parties are unable to116 or unwilling to address, without being bound by the issues presented to the tribunals by the parties. 117 For example, in Methanex, while the US perceived the Californian ban on MTBE as a measure to protect public health, 118 the IISD and Bluewater submissions placed it in a wider context of environmental protection and raised the issue of the host states right to protect the environment and promote sustainable development. Similarly, in UPS, submissions from the CUPE and Council of Canadians addressed the issue that neither Canada nor UPS raised, i.e. the possible ramification of the tribunals decision on Canadian postal workers and consumers. 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. It is argued that in some cases, 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.119 It is further argued that international NGOs, which are free from any mandate to promote national goals, are more at liberty than the national governments to represent global interests.120 Second, they may supply the tribunals with more comprehensive legal arguments than the parties, for example, by citing authority not contained in the parties arguments 121 or conducting detailed comparative legal studies.122 Considering that investment treaty arbitration tribunals have limited capacity to conduct their own research,123 such comprehensive studies by amici may well broaden the basis of the tribunals analysis and help the tribunal to reach good quality decisions.124 This will be particularly so when the relevant issues are outside of the arbitrators areas of expertise. 4.

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______________________________________________________________ Third, they may provide expert scientific or technical knowledge, or provide an extra layer of factual information specific to the dispute. For example, environmental policy is normally based on a careful problem identification, fate and transport analysis, epidemiological and ecological studies, risk assessment, policy design and options development, and costbenefit analysis.125 When a tribunal is required to assess the appropriateness of environmental measures as an application of such environmental policy, the comprehensive analysis made by expert NGOs (e.g. international and local NGOs may combine their expertise and knowledge and make a joint submission) will be particularly valuable. In the area of human rights law, it is pointed out that NGOs are best placed to propose good practice with their grassroots experience.126 Fourth, they may inform the tribunals of the broader implications of a decision beyond the particular interests of the parties. 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. 129 Rather, the primary contribution of these submissions is to the content of such decisions. That is, as friends of the court, the primary purpose of amici should be to assist tribunals by providing additional information and arguments.130 At any event (whatever the real purpose of each amici is),131 the reason for tribunals to accept amicus curiae submissions should be to enhance the quality and credibility of their own decisions.132 5. Conclusion This chapter has demonstrated that the law and practice of investment treaty arbitration has opened the door for NGOs to participate, however in a limited way, through amicus curiae submissions. Although concerns have been raised over such participation by NGOs, they are largely misplaced or avoidable, and outweighed by the benefits amicus curiae briefs may bring to the investorstate dispute settlement process. Amicus curiae briefs, if they have gone through a proper screening process, will actually contribute to the better quality of an investment arbitration award by providing tribunals a broader perspective, comprehensive factual/legal arguments and expert knowledge, etc. Moreover, they bridge the gap between (public) substantive aspects and (private) procedural aspects of investment treaty arbitration. While incorporating rules and practice that govern international commercial arbitration, investment treaty arbitration is a forum to adjudicate the legality of the exercise of sovereign power of the host state, including its regulatory measures. As a

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______________________________________________________________ consequence, investment treaty awards often have significant impact on public interests. Amicus curiae briefs will mitigate this discrepancy between substance and procedure, because they assist investment arbitration tribunals realise public issues surrounding the relevant dispute, and better understand the actual impact of their decisions on the public. In other words, this discrepancy makes it necessary for investment treaty arbitration to depart from procedural rules of international commercial arbitration. Although there are other important issues remaining to be solved such as the issue of confidentiality of the proceedings,133 the change concerning amicus curiae submissions is one step towards such a departure. On the other hand, under the current rules and practice, whether or not a tribunal receives an amicus curiae submission is a matter of discretion of the tribunal. Taken to its logical extension, therefore, 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. For this framework change to serve its purposes described above, amicus curiae briefs should have a substantial, rather than nominal, role to playthey should not be lightly disregarded. What is required of the tribunals is to make careful and proper selection of each amicus curiae submission, and once they received the submission, to make effective use of it.

Notes
An NGO is an elusive concept that lacks any generally accepted definition; Willetts, What is a Non-Governmental Organization?, 2002, www.staff.city.ac.uk/p.willetts/CS-NTWKS/NGO-ART.HTM, accessed 8 October 2008. However, 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; A Boyle and C Chinkin, The Making of International Law, OUP, Oxford, 2006, pp. 66-90. 2 S Charnovitz, Two Centuries of Participation: NGOs and International Governance. Michigan J of Intl L, vol. 18, 1997, p. 183; P Sands, Principles of International Environmental Law (2nd edn), CUP, Cambridge, 2003, p. 112. In the context of the human rights issues, Donnelly observes that NGO lobbying helped to assure that human rights language was included in the United Nations Charter, and since then NGOs have become regular participants in the human rights work of the UN; J Donnelley, International Human Rights (3rd edn), Westview Press, 2007, p. 142. See also, A Iriye, Global Community: The Role of International Organizations in the Making of the Contemporary World, University of California Press, Berkeley, CA, 2002, p. 52.
1

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______________________________________________________________ H French, The Role of Non-State Actors, in Greening International Institutions, J Werksman (ed), Earthscan, London, 1996, p. 254. 4 The texts of Agenda 21 are available at the website of the UN Division for Sustainable Development www.un.org/esa/sustdev/documents/agenda21/english/agenda21toc.htm, accessed 5 October 2008. 5 Agenda 21 paras 27.9, 38.5, 38.8 (d), 38.11, 38.13, 38.14. In particular, para 27.9 states that [t]he United Nations system, including international finance and development agencies, and all intergovernmental organizations and forums should, in consultation with non-governmental organizations, take measures to:. 6 14-25 June 1993, Vienna, Austria. 7 More than 800 NGOs attended the Conference. UN Office of the High Commissioner for Human Rights, World Conference on Human Rights www.unhchr.ch/html/menu5/wchr.htm, accessed 10 October 2008. 8 Vienna Declaration and Programme of Action (adopted by the World Conference on Human Rights on 25 June 1993). 9 It is also observed that NGO lobbying increased the official conference statements emphasis on womens rights; S Sinnar, Mixed Blessings: The Growing Influence of NGOs, Harvard Intl Rev, vol. 18(1), 1995, pp. 54, 55. 10 For example, 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, regional and international levels; 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, in particular, the Convention on the Rights of the Child. See also, Articles 13, 15, 18, 73, 82, 100. 11 Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, GA Res. 53/144 (1998). For example, Article 18(3) states that: [i]ndividuals, groups, institutions and nongovernmental organizations also have an important role and a responsibility in contributing, as appropriate, 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. See also, Articles 16, 18(2). 12 A Redfern and M Hunter, Law and Practice of International Commercial Arbitration (4th edn), Sweet & Maxwell, London, 2004, p. 265. 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
3

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______________________________________________________________ insulated from oversight by domestic courts; G Van Harten, Investment Treaty Arbitration and Public Law, OUP, Oxford, 2007, p. 60. The principle of party autonomy is reflected in Rule 20(1)(2) of the ICSID Arbitration Rules. 13 UNCITRAL, UNCITRAL Model Law on International Commercial Arbitration, the Texts with Amendments as Adopted in 2006 www.uncitral.org/uncitral/en/uncitral_texts/arbitration/1985Model_arbitratio n.html, accessed 5 October 2008. 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; G Van Harten and M Loughlin, Investment Treaty Arbitration as a Species of Global Administrative Law EJIL, vol. 17 (1), 2006, pp. 121(n10), 126). See also, G Van Harten, The Public-private Distinction in the International Arbitration of Individual Claims against the State, ICLQ, vol. 56, 2007, pp. 371, 377. 15 UNCITRAL, UNCITRAL Arbitration Rules of 1976 www.uncitral.org/pdf/english/texts/arbitration/arb-rules/arb-rules.pdf, accessed 10 October 2008. 16 ICC, ICC Arbitration Rules of 1998 http://www.iccwbo.org/uploadedFiles/Court/Arbitration/other/rules_arb_engl ish.pdf, accessed 10 October 2008. 17 As of 2007, while 182 out of 290 investor-state disputes have been filed with ICSID or ICSID Additional Facility, 80 are filed under the UNCITRAL Rules, 14 are filed under the arbitration rules of the Stockholm Chamber of Commerce, and 5 are filed under the ICC Rules. UNCTAD, Latest Developments in InvestorState Dispute Settlement, 2008, www.unctad.org/en/docs/iteiia20083_en.pdf, accessed 10 October 2008. See also R Dolzer and C Schreuer, Principles of International Investment Law, OUP, Oxford, 2008, p. 226. 18 Article 42(1) of the ICSID Convention; Article 1131 of the NAFTA; AAPL v. Sri Lanka (Asian Agricultural Products Ltd v. Sri Lanka (Award of 27 June 1990) ICSID Case No ARB/87/3 para 21); LG&E Energy Corp., LG&E Capital Corp. and LG&E International Inc. v. Argentine Republic (Decision on Liability of 3 October 2006) ICSID Case No ARB/02/1 para 97); Redfern and Hunter, op. cit., p. 486; A R Parra, Applicable Substantive Law in ICSID Arbitrations Initiated Under Investment Treaties, ICSID Rev, vol. 16, 2001, p. 21; C Schreuer, The ICSID Convention: A Commentary; A Commentary on the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, CUP, Cambridge, 2001, pp. 562, 612.

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______________________________________________________________ For example, the commentaries to ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts refer to several ICSID awards. ILC, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries untreaty.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf, accessed 15 October 2008. For the examination of how practices of investment treaty arbitration contribute to the development of general international law, see, C McLachlan, Investment Treaties and General International Law, ICLQ, vol. 57 (2), 2008, pp. 391-401. 20 M Sornarajah, The Settlement of Foreign Investment Disputes, Kluwer Law International, The Hague, 2000, p. 62. 21 B Kingsbury, N Krisch and R B Stewart, The Emergence of Global Administrative Law. Law & Contemporary Problems vol. 68, 2005, pp. 3637; Van Harten, op. cit., Chapter I; Van Harten and Loughlin, op.cit.; Dolzer and Schreuer, op cit., p. 3; Sornarajah, op. cit., pp. 61-77; S W Schill, International Investment Law and the Host States Power to Handle Economic Crises: Comment on the ICSID Decision in LG&E v. Argentina. Journal of International Arbitration, vol. 24(3), 2007, p. 265, etc. Van Harten observes that the system of investment treaty arbitration resembles to domestic systems of constitutional or administrative law, as it reviews and disciplines legislators, judges and other public officials in order to protect the business; G Van Harten, Commentary: A Case for an International Investment Court, Investment Treaty News, 1 September 2008, www.investmenttreatynews.org/content/archives.aspx, accessed 10 October 2008. 22 A Cosbey, The Road to Hell? Investor Protections in NAFTAs Chapter 11, in International Investment for Sustainable Development: Balancing Rights and Rewards, L Zarsky (ed), *, *, 2005; Dolzer and Schreuer, op. cit. 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. Although this chapter focuses on the latter, the former has also developed recently. For example, since Methanex Corporation v. United States (documents of NAFTA cases, including Methanex, are available at www.naftaclaims.com, accessed 10 October 2008), it is a regular practice of NAFTA tribunals to make the hearings open to the public; C Yannaca-Small, Transparency and Third Party Participation in Investorstate Dispute Settlement Procedures, in International Investment Law: A Changing Landscape - A Companion Volume to International Investment Perspectives, OECD (ed), OECD Publishing, Paris, 2005, pp. 17-24. See also, K Tienhaara, Unilateral Commitments to Investment Protection: Does the Promise of Stability
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______________________________________________________________ Restrict Environmental Policy Development?. Ybk Intl Envtl L, vol. 17, 2008, p. 165. 24 Amicus curiae is defined as [a] friend of the court. A term applied to a bystander, who without having an interest in the cause, of his own knowledge makes suggestion on a point of law or of fact for the information of the presiding judge; S Krislov, The Amicus Curiae Brief: From Friendship to Advocacy. Yale L J, vol. 72(4), 1963, p. 694, citing B Abbott, Dictionary of Terms and Phrases used in American or English Jurisprudence, 1879. 25 Methanex Corporation v. United States (Decision of the Tribunal on Petitions from Third Persons to Intervene as Amici Curiae of 15 January 2001).. 26 ibid., para 24. 27 ibid., paras 29 and 47. 28 ibid., para 41. 29 ibid., para 49. 30 FTC, Statement of the Free Trade Commission on non-disputing party participation, www.ustr.gov/assets/Trade_Agreements/Regional/NAFTA/asset_upload_file 45_3600.pdf (unofficial text, subject to verification in all three NAFTA languages), accessed 10 October 2008. 31 See, Tribunal Communication re: Amicus Participation of April 6, 2004; Methanex Corporation v. The United States of America (Final Award of 9 August 2005) Part II, Chapter C, para 28. On the other hand, 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., Part II, Chapter C, para 44). 32 United Parcel Service v. Canada (Decision on Petitions for Intervention and Participation as Amici Curiae of 17 October 2001), para 61. 33 United Parcel Service v. Canada (Final Award of 11 June 2007), para 3. 34 Glamis Gold Ltd. v. United States (Procedural Orders No 9-12). 35 K Tienhaara, Third Party Participation in Investment-Environment Disputes: Recent Developments, RECIEL, vol. 16(2), 2007, p. 239. 36 Petition of La Coordinadora Para la Defensa del Agua y Vida, La Federacion Departmental Cochabamba de Organizaciones Regantes, Sempa Sur, Friends of the Earth Netherlands, Oscar Olivera, Omar Ferdandez, Father Luis Sanchez, and Congressman Jorge Alvarado to the Arbitral Tribunal in Aguas del Tunari, S.A. v. Republic of Bolivia, 29 August 2002. 37 Letter from President of Tribunal Responding to Petition, 29 January 2003. 38 Suez, Sociedad General de Aguas de Barcelona S.A., and Vivendi Universal S.A. v. Argentine (Order in Response to a Petition for

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______________________________________________________________ Transparency and Participation as Amicus Curiae of 19 May 2005) ICSID Case No ARB/03/19. 39 In particular, 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, the Tribunal shall decide the question.) to be a grant of residual power to the tribunal to decide procedural questions. The tribunal also pointed out that Article 44 is substantially similar to Article 15(1) of the UNCITRAL Arbitration Rules, on which the Methanex tribunal based its decision to grant the submission of amicus curiae briefs (ibid., para 14). 40 ibid., para 22. 41 ibid., para 17. 42 ibid., para 14. 43 Suez, Sociedad General de Aguas de Barcelona S.A., and InterAguas Servicios Integrales del Agua S.A. v. Argentina (Order in response to a Petition for Participation as Amicus Curiae of 17 March 2006) ICSID Case No ARB/03/1. 44 ibid., para 18. 45 ibid.. 46 ibid., para 34. 47 ibid., para 38. 48 ICSID Senior Counsel, Introductory note to the Aguas del Tunari S.A. v. Republic of Bolivia case available at www.worldbank.org/ICSID, accessed 10 October 2008. 49 Suez, Sociedad General de Aguas de Barcelona S.A. and Vivendi Universal S.A. v. 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. 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. 51 Biwater Gauff (Tanzania) Limited v. United Republic of Tanzania (Procedural Order No 5 of 2 Feb 2007) ICSID Case No ARB/05/22. It should however be noted that the request for arbitration was filed before the amended Rules came into force, whereas, according to Article 44 of the ICSID Convention, the amended Arbitration Rules apply to the initiated under investment treaties after the adoption of amendments (A R Parra, The Development of the Regulations and Rules of the International Centre for Settlement of Investment Disputes, The Intl Lawyer, vol. 41(1), 2007, p. 47(n59), 58. In addition, there is nothing on the ICSID website indicating that the disputing parties agreed to apply the amended Rules. This leaves uncertainty as to the application of the amended Rules, but the procedural

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______________________________________________________________ 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; J Chalker, Filing Amicus-curiae Petitions in InvestorState Arbitrations, 2007, sdlanpo.org/pub/2007_Filing_Amicus_Curiae_Petitionsin_Investor.pdf, accessed 5 October 2008. 52 Procedural Order No. 5 (ibid.) para 46. 53 Biwater Gauff (Tanzania) Limited v. United Republic of Tanzania (Award of 18 July 2008) ICSID Case No ARB/05/22 para 68. The amicus curiae submission is available at the CIELs website 10 www.ciel.org/Publications/Biwater_Amicus_26March.pdf, accessed October 2008. 54 Save UPS, all the cases examined in section I involve either environmental or human rights issue. 55 Sands, op. cit., p. 199. For example, 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, in particular NGOs; G Handl, Environmental Security and Global Change: The Challenge to International Law, in Environmental Protection and International Law, W Lang, H Neuhold and K Zemanek (eds), Graham & Trotman, London, 1991, pp. 59, 73. 56 N Rubins, Opening the Investment Arbitration Process: At What Cost, for What Benefit?, Transnational Dispute Management, vol. 3(3), 2006, p. 4. 57 It is argued that the principle of party autonomy is part of the principle of self-determination of the disputing parties; D Coester, Constitutional Aspects of Party Autonomy and its Limits: the Prospective of Law www.kcl.ac.uk/schools/law, accessed 5 October 2008. 58 More specifically, 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; E Gaillard and J Savage (eds), Fouchard, Gaillard, Goldman on International Commercial Arbitration, Kluwer Law International, The Hague, 1999, pp. 31-32. See also, M Pryles, Limits to Party Autonomy in Arbitral Procedure. J of Intl Arb, vol. 24(3), 2007, pp. 327-328. 59 L Reed, J Paulsson and N Blackaby, Guide to ICSID Arbitration, Kluwer Law International, The Hague, 2004, p. 83. This does not mean that the tribunals exclusively rely on evidence submitted by the parties. Under the ICSID Convention (Article 43(2)) and ICSID Arbitration Rules (Rules 3436), a tribunal has power to investigate the case on its own initiative. Tribunals asked the parties to provide answers to specific questions (Benvenuti & Bonfant v. Congo (Award of 15 Aug 1980) ICSID Case No

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______________________________________________________________ ARB/77/2; Klockner v. Cameroon (Award of 21 October 1983) ICSID Case NoARB/81/2), to produce specific documents (Amco v. Indonesia (Decision on Annulment of 16 May 1986) ICSID Case NoARB/81/1); Klockner v. Cameroon (Decision on Annulment of 3 May 1985) ICSID Case NoARB/81/2). Tribunals also appointed experts on their own motion (Benvenuti & Bonfant v. Congo (ibid.)). See, Schreuer, op. cit., pp. 652 and 655. For the use of experts, 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; Redfern and Hunter, op. cit., p. 309. See also, Article 27 of the UNCITRAL Arbitration Rules and Article 20(4) of the ICC Arbitration Rules. 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; it may feel that raising certain sensitive issues will exacerbate the dispute or be counterproductive; D Shelton, The Participation of Nongovernmental Organizations in International Judicial Proceedings, AJIL, vol. 88(4), 1994, pp. 611 (n24), 615. 61 J Durling and D Hardin, Amicus Curiae participation in WTO dispute settlement: reflections on the past decade, in Key Issues in WTO Dispute Settlement, R Yerxa and B Wilson (eds), CUP, Cambridge, 2005, p. 229. 62 In Suez/InterAguas, op. cit., 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). 63 G Marceau and M Stilwell, Practical Suggestions for Amicus Curiae Briefs before WTO Adjudicating Bodies, J of Intl Economic L, 2001, pp. 155, 158: (amicus curiae briefs) became a source of ideas and arguments that may affect the outcome of the dispute. 64 Van Harten, Investment Treaty Arbitration and Public Law, op. cit., p. 45. 65 A Palacio, Recent Institutional Developments, ICSID News, 24(2), 2007, pp. 20, 21. Palacio was the Secretary-General of the ICSID. 66 Yannaca-Small, op. cit., p. 24. 67 H Seriki, Confidentiality in arbitration proceedings: recent trends and developments, J of Business L, May, 2006, pp. 300, 310. 68 F Marshall and H Mann, Revision of the UNCITRAL Arbitration Rules, Good Governance and the Rule of Law: Express Rules for InvestorState Arbitrations Required (International Institute for Sustainable Development),

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______________________________________________________________ 2006, www.iisd.org/pdf/2006/investment_uncitral_rules_rrevision.pdf, accessed 1 October 2008. 69 Mistelis also stresses this point; L Mistelis, Confidentiality and Third Party Participation, Arb Intl, vol. 21(2), 2005, p. 230. 70 Methanex Corporation v. United States, op. cit., para 49. 71 United Parcel Service v. Canada (Final award, op. cit.) para 65. 72 Suez, Sociedad General de Aguas de Barcelona S.A., and Vivendi Universal S.A. v. Argentine, op. cit., para 19. 73 Suez, Sociedad General de Aguas de Barcelona S.A., and InterAguas Servicios Integrales del Agua S.A. v. Argentina, op. cit., para 18. 74 Biwater Gauff (Tanzania) Limited v. United Republic of Tanzania, op. cit., para 53. 75 Ethyl Corporation v. The Government of Canada, www.naftaclaims.com. 76 S D Myers v. The Government of Canada, www.naftaclaims.com. 77 Metalclad Corporation v. United Mexican States, www.naftaclaims.com. 78 See note 23. 79 Tecnicas Medioambientales TECMED S.A. v. Mexico (Award of 29 May 2003) ICSID Case No ARB (AF)/00/2. 80 MTD Equity Sdn. Bhd. and MTD Chile S.A. v. Republic of Chile (Award of 24 May 2004) ICSID Case No ARB/01/7. 81 Compaa del Desarrollo de Santa Elena, S.A. v. Republic of Costa Rica (Award of 17 Febrary 2000) ICSID Case No ARB/96/1. 82 Parkerings-Compagniet AS v. Republic of Lithuania (Award of 11 September 2007) ICSID Case No ARB/05/8. 83 For the contrary view, see A Newcombe, Book review, Gus Van Harten, Investment Treaty Arbitration and Public Law, Modern Law Review, vol. 71, 2008, p. 150. 84 See note 76. 85 L J Dhooge, The North American Free Trade Agreement and the Environment: The Lessons of Metalclad Corporation v. United Mexican States, Minnesota J of Global Trade, vol. 10, 2001, pp. 273-274. Marshall and Mann, op. cit., 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, as a result of which the regulations proposed were never adopted. 86 O K Fauchald, International Investment Law and Environmental Protection, Ybk Intl Envtl L, vol. 173, 2008, p. 19. 87 Separate opinion of Bryan Schwartz in S D Myers v. The Government of Canada (Partial Awards on the Merits of 13 November 2000) para 203.

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______________________________________________________________ To be sure, investment treaty arbitration is distinguished from these public dispute settlement bodies in many respects, but the potentially significant impact of the decisions on the general public is in common between them. 89 Van Harten, Investment Treaty Arbitration and Public Law, , op. cit., p. 66. 90 Van Harten and Loughlin, op. cit., p. 145; C Tollefson, Metalclad v. United Mexican States Revisited: Judicial Oversight of NAFTAs Chapter Eleven Investor-State Claim Process, Minnesota J of Global Trade, vol. 11, 2002, pp. 203-204. For the issue of the state consent to investment treaty arbitration, see J Paulsson, Arbitration Without Privity, ICSID Rev, vol. 10, 1995, p. 232. 91 Van Harten, Investment Treaty Arbitration and Public Law, op. cit., p. 68. 92 Van Harten, The Public-private Distinction in the International Arbitration of Individual Claims against the State, op. cit., p. 387. 93 ibid., p. 391. 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; See, Van Harten, Investment Treaty Arbitration and Public Law, op. cit., pp. 175183. 95 Tienhaara, Unilateral Commitments to Investment Protection: Does the Promise of Stability Restrict Environmental Policy Development?, op. cit., pp. 159-163. 96 For example, the FTC Statement on Third Party Participation, op. cit., B(8) 97 Rubins, op. cit., p. 8. 98 ibid., p. 5. 99 For example, Methanex Corporation v. United States (Final award, op. cit., para 50; United Parcel Service v. Canada (Final award, op. cit.) para 69. 100 The Tribunal shall ensure that the non-disputing party submission does not disrupt the proceeding or unduly burden or unfairly prejudice either party. 101 For example, United StatesSection 110(5) of US Copyright Act - Report of the panel (15 June 2000) WT/DS160/R para 6.8. 102 The FTC Statement on Third Party Participation, op. cit., 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. The Biwater tribunal similarly limited the number of pages of the amicus curiae submission (Biwater Gauff (Tanzania) Limited v. United Republic of Tanzania (Procedural Orer No.5 (n52)) para 60). 103 C Chinkin and R Mackenzie, Intergovernmental Organizations as Friends of the Court, in International Organizations and International Dispute Settlement: Trends and Prospects, Chazournes, C Romano and R Mackenzie (eds), Transnational Publishers, New York, 2002, p. 155.
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______________________________________________________________ The question of whether the parties may unilaterally release the materials introduced during the proceedings of investment treaty arbitration remains unclear. None of the ICSID Arbitration Rules, the UNCITRAL Arbitration Rules or NAFTA Chapter 11 provisions explicitly addresses the issue of the confidentiality obligations between parties, and the case law on this issue is inconsistent. In Amco v. Indonesia, op. cit., the tribunal confirmed that neither the ICSID Convention nor the Rules prevents the parties from revealing their case (para 4). It is observed that [i]n fact, 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, Transparency versus Confidentiality in International Investment Arbitration - The Biwater Gauff Compromise, The L & Practice of Intl Courts and Tribunals, vol. 6(1), 2007, pp. 97, 100 and 103). See also, Loewen Group v. United States (Award on Jurisdiction of 5 January 2001); and Biwater Gauff (Tanzania) Limited v. United Republic of Tanzania (Procedural Order No3 (on confidentiality/procedural integrity) of 29 September 2006) (Procedural Order No.3 (n65)). 105 M T Kamminga, The Evolving Status of NGOs under International Law: A Threat to the Inter-State System?, in Non-State Actors and Human Rights, P Alston (ed), OUP, Oxford, 2005, n. 90, p. 110. It is argued that the participation of private actors, at its extreme, may unfairly displace the interests of the masses by those of a few; Durling and Hardin, op. cit., pp. 227-228. 106 Kamminga, op. cit., p. 111; J E Viuales, Amicus Intervention in Investor-State Arbitration, Dispute Resolution J Nov 2006-Jan 2007, findarticlescom/p/articles/mi_qa3923/is_/ai_n17194789. 107 C H Brower, Legitimacy, and NAFTAs Investment Chapter, Vanderbilt J of Transnational L, vol. 36(1), 2003, p. 73; Boyle and Chinkin, op. cit., p. 58. 108 For such examinations, see S Charnovitz, Nongovernmental Organizations and International Law, AJIL, vol. 100(2), 2006, p. 348; S Charnovitz, Participation of Nongovernmental Organizations in the World Trade Organization, U of Pennsylvania J of Intl Economic L, vol. 17, 1996, p. 331. 109 D C Esty, Non-Governmental Organizations at the World Trade Organization: Cooperation, Competition, or Exclusion, J of Intl Economic L, vol. 1, 1998, p. 123. 110 R P Buckley and P Blyschak, Guarding the Open Door: Non-Party Participation Before the International Centre for Settlement of Investment Disputes, U of New South Wales Faculty of L Research Series 33, 2007,
104

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______________________________________________________________ austlii.law.uts.edu.au/au/journals/UNSWLRS/2007/33.html, accessed 8 October 2008. 111 Shelton, op. cit., p. 626, 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. 112 Chinkin and Mackenzie, op. cit., p. 154. 113 Buckley and Blyschak, op. cit. 114 This discretional power, together with the ambiguity of the term significant interest (in the arbitration proceedings) (Paragraph 6(c) of the FTC Statement on Third Party Participation, op. cit.; Rule 37(2) of ICSID Arbitration Rules), raises the concern of the impossibly high threshold for granting leave, but this is a separate issue. 115 Buckley and Blyschak, op. cit. For example, 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. It should be noted that, however, the tribunal in UPS received the amicus curiae brief from the Chamber of Commerce, despite the fact that the Chamber had received $100,000 (US dollars, which represented 12% of its annual budget) from the UPS before its submission of amicus curiae briefs. Amicus curiae brief of the Chamber of Commerce dated 10 October 2005 (para 9). 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.A. v. Peoples Republic of the Congo (Award of 30 Novembe 1979) ICSID Case No ARB/77/1; see, Buckley and Blyschak, op. cit. 117 Chinkin and Mackenzie, op. cit., p. 137. 118 US Rejoinder on the Merits of 20 April 2004 para 195. 119 G Van Harten, Investment Treaty Arbitration and Public Law, p. 159. 120 French, op. cit., p. 256; Donnelley, op. cit., p. 142. 121 Shelton, op. cit., p. 618. 122 L Bartholomeusz, The Amicus Curiae before International Courts and Tribunals, Non-State Actors & Intl L, vol. 5 (3), 2005, p. 241. 123 As examined above, they have legal authority to investigate the case on their own motion, but their resources to do so are limited, primarily, to the parties, appointed experts and the ICSID Secretariat; Schreuer, op. cit., p. 660. It should also be noted that, for ICSID arbitration, the Secretary General of the ICSID appoints a secretary of tribunals who assists arbitrators in each proceeding, but his/her assistance is limited to matters of procedure and the management of the proceedings; A Broches, Selected Essays: World Bank,

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______________________________________________________________ ICSID, and Other Subjects of Public and Private International Law, Martinus Nijhoff, The Hague, 1995, p. 276. 124 Here, the term good quality refers to factors such as based on enough consideration from all relevant perspectives, free from legal and factual errors, and well-balanced etc. Although it is argued that amicus curiae submissions will contribute to reduce the likelihood of erroneous conclusions; D A Wirth, Reexamining Decision-Making Processes in International Environmental Law, Iowa L Rev, vol. 79, 1994, p. 790. The term a right (or correct) decision should be avoided, because there is no set answer to the question of what is a right decision. For example, the best decision for the parties in a particular case may not be the best for the public, or for the overall arbitration regime. See also, Viuales, op. cit. 125 Esty, op. cit., p. 136. 126 E Decaux,Human Rights and Civil Society, in The EU and Human Rights, P Alston (ed), OUP, Oxford, 1999, p. 917. 127 Shelton, op. cit., p. 618. 128 Bartholomeusz, op. cit., p. 279. 129 This is not to deny such a possibility, which is recognised by Chinkin and Mackenzie, op. cit., p. 137: perhaps the amicus can, potentially at least, 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. 130 Marceau and Stilwell, op. cit., p. 180. 131 For example, they may have interests in the outcome of the dispute (e.g. the CUPE in UPS); they may have specific reasons to support one party (e.g. the Chamber of Commerce in UPS, op. cit.); 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, see, Charnovitz, Nongovernmental Organizations and International Law, op. cit., p. 348. 132 Bartholomeusz, op. cit., p. 285. 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)). 133 For the examination of the issue of confidentiality, see, Knahr and Reinisch, op. cit.; J Chalker, Bricks without Straw: the Confidentiality Order in Biwater Gauff (Tanzania) v. United Republic of Tanzania (Biwater), www.sdla-npo.org/pub/2007_Bricks_Without_Straw_Emailed_0325.pdf; M I Egonu, Investor-State Arbitration Under ICSID: A Case for Presumption Against Confidentiality?, J of Intl Arb, vol. 24(5) 2007, p. 479; Seriki, op. cit.; J Misra and R Jordans, Confidentiality in International Arbitration: An Introspection of the Public Interest Exception, J of Intl Arb, vol. 23(1), 2006; etc.

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______________________________________________________________ Willetts, What is a Non-Governmental Organization?, 2002, www.staff.city.ac.uk/p.willetts/CS-NTWKS/NGO-ART.HTM, accessed 8 October 2008. Yannaca-Small, C., Transparency and Third Party Participation in Investorstate Dispute Settlement Procedures, in International Investment Law: A Changing Landscape - A Companion Volume to International Investment Perspectives. OECD Publishing, Paris, 2005. Tomoko Ishikawa is a former judge at the Tokyo District Court (civil division). She is currently a member of the Tokyo Bar Association and practices in the field of private international law. She is preparing her PhD thesis on the law of foreign investment and international environmental law at University College London. Her current research examines the tension between the international law on foreign investment and the host states environmental policy, and the role international environmental law may play in investment arbitration to address the tension.

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. Whereas in the past positivist legal approaches have been taken to environmental regulation, increasingly attention is turning towards more decentralised and community-based practices. Initiatives that involve the participation of all stakeholders are clearly morally persuasive and socially responsible. Furthermore, from a practical perspective many such projects have had positive social and environmental outcomes. However, there is relatively little literature devoted to identifying the legal frameworks that could be used to support community-based environmental management. This paper seeks to fill that gap by providing an introduction to the legal theories, principles and concepts that may be used as a foundation for legal frameworks that support communities taking control of their own environment. In particular, 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. Key Words: Environmental law, customary law, sustainable development, environmental justice, community based natural resource management, community based environmental management, human rights, indigenous rights, sustainable livelihoods. ***** 1. Introduction The small island developing states of the South Pacific are post colonial societies composed largely of Indigenous peoples. In many other areas of the world the most pressing problem facing similar nations is poverty, which in turn has been said to be the primary cause of environmental degradation. But the Pacific Island States have not traditionally suffered from abject poverty, which has been avoided due to the predominance of subsistence livelihoods. These livelihoods are based largely upon the use of marine resources for subsistence. Whilst these people no longer live an entirely traditional lifestyle, 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. Furthermore, it is likely that it will continue to do so in the future. The people of this region have a rich history of customary

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______________________________________________________________ laws and traditional knowledge associated with marine areas, not only because of their physical reliance upon the ocean, but also their spiritual connection with it. But globalisation, urbanisation and population growth have put increasing pressure on both the traditional way of life and the marine environment upon which it depends. Nevertheless communities with customary fishing grounds have tried to reinvigorate traditional laws and practices to maintain marine biodiversity, which is so essential to their way of life. In many cases communities work with NGOs and other entities in this regard. One particular example of this is the Locally Managed Marine Area (LMMA) Network, which operates throughout the South Pacific Region. This system combines western science (biological and ecological management and applied science research) with traditional ecological knowledge and practices. The next stage is to look at whether a similar approach can be taken in relation to the law, through the synthesis of customary law and western legal systems. In designing new laws, legal frameworks are needed in order to convert what local communities see as duties (such as marine custodianship), into enforceable rights. 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. 2. Background Since worldwide attention was drawn to environmental issues at the UN Conference on the Human Environment in 1972, top-down centralised approaches to environmental management have dominated. At the global level this has involved the adoption of international treaties, which are implemented at the domestic level by national governments. Central to this positivist approach is the concept of law as unified, state-based and institutionalised.1 This perspective of law has been the orthodox view since the eighteenth century and to a great extent prevails today. In the area of natural resource management, environmental problems were seen as global issues best addressed at the international level. However, while some environmental problems are global in their impact, international law alone has been unable to resolve them and environmental degradation persists. It is in this context that community-based environmental management (CBEM) has received renewed attention. Decentralising management and control of natural resources has significant potential for improved outcomes. Many environmental issues may have global impacts but are local in origin and are best understood by the local community. Similarly, local people often have the greatest information in relation to their natural resources and the impacts upon them. Their involvement can result in solutions that address all of the, often competing, interests. Furthermore where local communities own these solutions greater compliance can be expected and therefore there are greater prospects for successful outcomes.

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______________________________________________________________ By its very nature community-based management offers the best opportunities for democratic participation.2 Community groups have a greater voice at the local level, providing more opportunities for true participation and local government is often more responsive to grassroots activism. This is particularly important in developing countries where democratic participation at other levels of government is less assured.3 In any event, international law, however efficacious, must be implemented nationally. In the South Pacific, the Eurocentric legal systems were not displaced upon independence. Thus there has been a tendency to legislate for new areas of law such as environmental issues and natural resource management following western models. However, this approach has largely been unsuccessful, as it is not relevant to the local people, particularly where it runs counter to customary law. Therefore, the difficulty remains of how to design better laws that address multiple aims including conservation of biodiversity, establishment of sustainable livelihoods, fisheries management and economic development. There are a number of examples of successful CBEM initiatives many of which are voluntary projects.4 However, increasingly it is being recognised that legal support is necessary to strengthen customary approaches to marine management by providing legitimacy and longevity. 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. It has been said that law is societys architecture for achieving common purposes and common aspirations5 and in the context of CBEM legal regulation is needed to provide for their formal recognition and enforcement mechanisms. This is particularly the case for Indigenous communities, managing traditional land and resources, which face challenges from neighbouring villages and outsiders. 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. This paper will focus upon three key areas of environmental justice, international human rights laws and sustainable development law. Environmental Justice Environmental justice lies at the intersection of two major social movements: civil rights and environmental protection.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.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.9 In this context much attention has been given to the inequitable distribution of problems such as pollution and 3.

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______________________________________________________________ waste, and the deliberate targeting of minority communities for environmentally damaging facilities.10 Environmental justice also requires the promotion of equality of environmental benefits and effective environmental management for all members of a society.11 Environmental justice essentially incorporates a set of ethical principles.12 For it to be achieved environmental hazards and benefits must be equally distributed. Specifically, environmental injustice occurs where communities are disempowered, in situations where they are denied the right to public participation, information, access to resources and justice in environmental matters.13 These elements are particularly critical to many Indigenous communities, in circumstances where they are heavily reliant on natural resources. Therefore, community-based environmental justice is achieved when natural resources are managed for the well-being of everyone, equally and in a non-discriminatory fashion.14 For Indigenous communities, 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.15 Therefore, 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. Whilst some of these elements may be achieved through an ordinary democratic process, this is not assured where those in power represent the majority as against a minority culture.16 In the context of Indigenous peoples and natural resource management, environmental justice and the recognition of customary law must be guaranteed in some other manner. The challenge that faces Indigenous peoples in securing access to use and management of natural resources is a struggle for environmental justice.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.18 However, environmental justice is a relatively narrow concept requiring that social equity and environmental quality be elevated above all other considerations.19 The focus on the social may be considered morally right but it is also restricted in its ambit. As an alternative, the concept of sustainable development requires the balancing of triple bottom line goals. It is this broader concept, which has been almost universally accepted as the paradigm of choice dominating international legal discourse surrounding social and economic development and environmental protection.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.22

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______________________________________________________________ International Human Rights Law Human rights norms and international environmental law concepts, such as sustainable development, overlap and are interconnected.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, environmental quality, peace and sustainable development.25 Just as human rights cannot be secured in a degraded or polluted environment26 a breach of human rights can result in damage to the environment itself when those whose practices best protect the environment are disempowered. The starting point for any consideration of human rights is the United Nations Charter27 and its core concepts of equality and nondiscrimination.28 Whilst intra- and intergenerational equity are articulated in the Rio Declaration, the broad principle of eradication of poverty emerged much earlier in the Charter of the United Nations.29 Intra-generational equity in terms of equality and freedom from discrimination was also dealt with early in the various human rights treaties. The International Covenant on Civil and Political Rights (ICCPR)30 and International Covenant on Economic, 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.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. 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. The ICESCR states that [a]ll peoples have the right to self-determination and freedom to determine their political status and pursue economic, social and cultural development.33 In addition ICESCR provides that [a]ll peoples may, for their own ends, freely dispose of their natural wealth and resources and in no case may a people be deprived of its own means of subsistence.34 Clearly this provides a basis for communities having control over and full management of their local environment. 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.36 But precisely what selfdetermination encompasses is a matter of controversy. The literature on this topic refers both to external and internal self-determination. The former includes the rights to determination of international status, political independence and secession.37 The latter involves the right for people to determine their own destinies including the right to self-government and to 4.

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______________________________________________________________ pursue development without interference.38 Whilst existing human rights might assist Indigenous peoples in obtaining ownership of traditional lands, 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.39 Self-government would appear to also include control over the legal regulation of Indigenous peoples lives40 and therefore the recognition of customary law, which has been considered one of the fundamental features of Indigenous culture and claims for sovereignty.41 Principle 2 of the Rio Declaration, relating to equity makes specific reference to the right to development, which is also supported by human rights law.42 Public participation in environmental decision-making includes human rights elements of the right to hold and express an opinion, the right of access to information and issues of privacy. In addition to broad human rights laws, there is an emerging area of collective Indigenous rights. 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, development and control.43 In addition, they have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources.44 Furthermore, it is recognised that respect for indigenous knowledge, cultures and traditional practices contributes to sustainable and equitable development and proper management of the environment.45 In addition the Draft Declaration of Principles on Human Rights and the Environment provides that Indigenous have the right to control their lands, territories and natural resources and to maintain their traditional way of life.46 Therefore, international law in the context of fundamental human rights relating to equality, non-discrimination and self-determination, as well as Indigenous collective rights, provides a further framework for legal support of CBEM. 5. 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.48 Yet it is a nebulous phrase49 which has proven difficult to define.50 Is it a tool or policy, 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.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.

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______________________________________________________________ In essence sustainable development requires the balancing of environmental protection, social and economic development concerns. It includes both a collection of normative principles and the processes by which it might be achieved. Whilst there is no agreed definition of sustainable development, broad principles have emerged through soft law instruments such as the Stockholm Declaration,53 Rio Declaration,54 Agenda 21,55 Millennium Declaration56 and the New Delhi Declaration.57 A detailed consideration of those principles is beyond the scope of this paper but in summary they include integration,58 the precautionary principle,59 common but differentiated responsibilities,60 sustainable management and use of natural resources,61 inter- and intra-generational equity and the eradication of poverty,62 public participation and access to information and justice63 and good governance.64 It is the latter three of these principles that are particularly relevant to CBEM. Whilst the principle of poverty eradication is fairly straightforward, inter- and intra-generational equity are more complex. Equity incorporates fairness and equality to both this and future generations. Intra-generational equity would appear easier to achieve, however, there is little doubt that it remains elusive. Nonetheless, CBEM facilitates equity where communities are empowered and engaged in management issues such as economic development, environmental quality and the provision of human needs. People must be given access to and control over their land and natural resources in order to facilitate this. The eradication of poverty is also advanced by CBEM where this involves the establishment of sustainable livelihoods in association with resource management. Access to information, public participation in environmental decision-making and access to justice are essentially procedural elements associated with sustainable development. 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.66 By empowering communities to manage their local environment and engaging with them, best practice approaches to sustainable development may be identified. Therefore, public participation, access to information, education and justice all support CBEM. Lastly, good governance also involves effective environmental management as an outcome as well as the processes by which it might be achieved.67 This includes legal and policy frameworks, institutions, standards and guidelines, which support effective environmental regulation.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.69 Local approaches to sustainable development therefore gain support through this Principle, which is clearly of considerable importance to Indigenous peoples arguing for a greater governance role.

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______________________________________________________________ Whilst it could be said that the principles of sustainable development have gone some way to elucidating its meaning, they are not standardised and are often articulated in different forms. This makes it difficult to rely upon them as the legal foundation for CBEM. But increasingly there are commentators who believe that sustainable development law has emerged as a new area. Progressively key principles such as natural resource use, the precautionary principle and rights to public participation are being accepted as customary international law.70 Furthermore, they are being incorporated into binding legal instruments implemented in domestic legislation, which adds to their status. Despite the international focus of sustainable development and the recognised global problems it addresses, it was acknowledged early on that local action was necessary.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.72 In particular, Agenda 21 places great emphasis on the role of women,73 children74 and Indigenous peoples and their communities75 as well as NGOs.76 In 2002 the Johannesburg Plan of Implementation also emphasised the role of local government in a number of contexts.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, social and economic policies and laws.78 Whilst international instruments draw attention to sustainable development and provide implementation tools, they do this in an abstract manner without addressing community specific problems.79 It is local governance, policies and action that are needed to actually achieve sustainable development. This is supported by the literature in which local action has been said to be the lynch pin of global sustainable development.80 The concept and principles of sustainable development support CBEM but do not stand alone. Sustainable development may have emerged as a new field of law, but it is clear that the principles are informed by other areas of international law, particularly human rights laws. 6. Conclusion Conventional top-down environmental approaches have not delivered positive environmental outcomes and have failed to assist Indigenous Peoples. CBEM represents the interconnectedness of human and environmental rights and facilitates sustainable development. Nonetheless the tension between the environmental and Indigenous rights movements raises fundamental ethical, legal and moral issues and further research remains to be

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______________________________________________________________ done in understanding human, environmental and development rights as they relate to local communities. Whilst localised approaches to environmental management have many benefits it is certainly not the case that domestic laws and policies should supplant international ones. International law has a clear standard setting role to play as well as providing for the sharing of information and best practice. It has also been suggested that international legal instruments provide a backstop; 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.81 However, CBEM has the benefits of incorporating local knowledge, strengthening communities and providing sustainable livelihoods. This paper has shown that there is ample legal support for CBEM approaches which take global standards and translate them into local action. International law provides us with a toolbox however ultimately sustainable development law has been chosen as the most appropriate framework. Whilst it may have definitional issues and its international normative status remains in issue, this may not be as problematic as first thought. Ultimately sustainable development cannot be achieved at the global level without local implementation. Therefore, any ambiguity at the international level can be translated into flexibility at the local level. CBEM approaches take these global standards and translate them into local action. But it can also be seen that the local feeds back into the global. Successful examples of CBEM illustrate the realisation of sustainable development, which truly achieves social, environmental and developmental outcomes for communities.

Notes
M Davies, 'Race and Colonialism: Legal Theory as White Mythology', in Asking the Law Question: The Dissolution of Legal Theory (2nd ed.), 2005, p. 270. 2 R R M Verchick, 'Can Local Government Save the Global Commons? Lessons from the Johannesburg Summit'. Leland Stanford Junior University Stanford Agora, vol. 4, 2003, p. 4. 3 ibid., p. 5. 4 For example, see the Locally Managed Marine Areas (LMMA) network in the South Pacific. 5 D Hunter, J Salzman and D Zaelke, International Environmental Law and Policy (3rd ed), 2007, p. 273. 6 D Monsma, 'Equal Rights, Governance and the Environment: Integrating Environmental Justice Principles in Corporate Social Responsibility'. Ecology Law Quarterly, vol. 33, 2006, p. 450.
1

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______________________________________________________________ Centre for Sustainable Development, University of Westminster and Law School, University of Strathclyde, Sustainable Development: A Review of International Literature: Chapter 11: Environmental Justice, 2006, www.scotland.gov.uk/Publications/2006/05/23091323/12 at 6 April 2008. 8 J M Cha, 'Environmental Justice in Rural South Asia: Applying Lessons Learned from the United States in Fighting for Indigenous Communities' Rights and Access to Common Resources'. Georgetown International Environmental Law Review, vol. 19, 2007, p. 186. 9 B A Weintraub, 'Environmental Security, Environmental Management and Environmental Justice'. Pace Environmental Law Review, vol. 12, 1995, p. 571. 10 Monsma, op cit, p. 453. 11 Weintraub, op cit, p. 572. 12 Monsma, op cit, p.469. 13 See also R D Bullard, Environmental Justice in the Twenty-first Century, Environmental Justice Resource Center <http://www.ejrc.cau.edu/ejinthe21century.htm> at 10 February 2008. 14 Weintraub, op cit, p. 585. 15 See also the First National People of Colour Environmental Leadership Summit, Principles of Environmental Justice (Adopted 27 October 1991) www.ejrc.cau.edu/princej.html at 10 February 2008. 16 J Firestone, J Lilley and I Torres de Noronha, 'Cultural Diversity, Human Rights and the Emergence of Indigenous Peoples in International and Comparative Environmental Law'. American University International Law Review, vol. 20, 2005, p. 223. 17 Cha, op cit, p. 187. 18 ibid., p. 186. 19 J B Ruhl, 'The Co-Evolution of Sustainable Development and Environmental Justice: Cooperation, then Competition then Conflict'. Duke Environmental Law & Policy Forum, vol. 9, 1998, p. 178. 20 M-C Segger and A Khalfan, Sustainable Development Law: Principles, Practices & Prospects, 2004, p. 2. 21 Ruhl, op cit, p. 162. 22 ibid., p.185. 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, 'The Search for Environmental Rights'. Journal of Land Use and Environmental Law, vol. 6(1), 1990, pp. 94-95. 24 Draft Declaration of Principles on Human Rights and the Environment, 1994, http://fletcher.tufts.edu/multi/www/1994-decl.html at 4 April 2008.
7

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______________________________________________________________ ibid. Principle 1. See also M I Jeffery, 'Environmental Ethics and Sustainable Development: Ethical and Human Rights Issues in Implementing Indigenous Rights'. Macquarie Journal of International and Comparative Environmental Law, vol. 2(1), 2005, p. 117. 26 D Craig, Interconnectedness between human rights, the environment and indigenous peoples. Materials prepared for the Diplomacy Training Course, University of NSW, held at Batchelor College, Batchelor, Northern Territory, June 2005, p. 4. 27 Charter of the United Nations. 26 June 1945, UNTS 993, entered into force 24 October, 1945. 28 S J Anaya, 'International Human Rights and Indigenous Peoples: The move toward the multicultural state'. Arizona Journal of International and Comparative Law, vol. 21(1), 2004, p. 16. 29 Charter of the United Nations. 26 June 1945, UNTS 993, entered into force 24 October, 1945. Articles 55 provides that based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote: a. higher standards of living, full employment, and conditions of economic and social progress and development. Article 56 calls upon all members to take joint and separate action to achieve this. 30 International Covenant on Civil and Political Rights. 16 December 1966, Annex to UNGA Res. 2200 (XXI), 6 ILM 368 (1967) (entered into force 23 March 1976). 31 International Covenant on Economic, Social and Cultural Rights. 16 December 1966, Annex to UNGA Res. 2200 (XXI); 6 ILM 360 (1967); (in force 3 January 1976). 32 See further, Convention on the Rights of the Child. 20 November 1989, 1577 UNTS 3 (entered into force 2 Sepember 1990); International Covenant on Civil and Political Rights. 16 December 1966, Annex to UNGA Res. 2200 (XXI), 6 ILM 368 (1967) (entered into force 23 March 1976); International Covenant on Economic, Social and Cultural Rights. 16 December 1966, Annex to UNGA Res. 2200 (XXI); 6 ILM 360 (1967); (in force 3 January 1976); Universal Declaration of Human Rights. 10 December 1948, GA Res 217 A, UN GAOR, 3rd Sess., UN Doc. A/810 (1948). International Convention on the Elimination of All Forms of Racial Discrimination. 21 December 1965, 660 UNTS 195, (entered into force 4 January 1969) American Convention on Human Rights. 22 November, 1969, 1144 UNTS 123 (entered into force 18 July 1978). African Charter on Human and Peoples Rights 27 June, 1981, 21 ILM 59 (1981) (entered into force 21 October 1986). Universal Declaration of Human Rights. 10 December 1948, GA Res 217 A, UN GAOR, 3rd Sess., UN Doc. A/810 (1948).
25

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______________________________________________________________ International Covenant on Economic, Social and Cultural Rights. 16 December 1966, Annex to UNGA Res. 2200 (XXI); 6 ILM 360 (1967); (in force 3 January 1976). Article 1(1). 34 ibid., Article 1(2). 35 Declaration on the Right to Development. 4 December 1986. UN GA Resolution 41/128, UN GAOR, 1986 Supp. No 53, UN Doc A/41/53, 186 (1986). 36 Vienna Declaration and Programme of Action, adopted at the World Conference on Human Rights. 12 July 1993. UN Doc A/CONF.157/23. 37 S Wiessner, 'Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis', Harvard Human Rights Journal, vol. 12, 1999, p. 116. 38 C Charters, 'Indigenous peoples and international law and policy', Public Law Review, vol. 18, 2007, pp. 25 and 40. 39 M F Jaksa, 'Putting the Sustainable Back in Sustainable Development: Recognizing and Enforcing Indigenous Property Rights as a Pathway to Global Environmental Sustainability'. Journal of Environmental Law and Litigation, vol. 21, 2006, p. 163. Jaksa calls for the adoption of binding international agreements directly addressing Indigenous property rights. 40 NSW Law Reform Commission, 'Aboriginal Customary Law'. (2000) Sentencing: Aboriginal offenders. Report No 96. www.lawlink.nsw.gov.au/lrc.nsf/pages/r96chp3 at 9 February 2008. 41 F v Benda-Beckmann, 'Folk, Indigenous and Customary Law', in International Encyclopaedia of the Social & Behavioral Sciences, *, *, 2001, p. 5705. 42 Declaration on the Right to Development. 4 December 1986. UN GA Resolution 41/128, UN GAOR, 1986 Supp. No 53, UN Doc A/41/53, 186 (1986). 43 Articles 25, 26 and 32. 44 Article 29. 45 Declaration on the Rights of Indigenous Peoples. 14 September 2007, UN GA Resolution A/61/L.67. Preamble. 46 Article 14. 47 World Commission on Environment and Development, Our Common Future, (1987). 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. 48 An increasing number of international law instruments include sustainable development as an objective or purpose. For example: United Nations Framework Convention on Climate Change. 9 May 1992, 1771 UNTS 107, 31 ILM 849 (entered into force 21 March 1994). United Nations Convention
33

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______________________________________________________________ on Biological Diversity. 5 June 1992, 1760 UNTS 79, 31 ILM 822 (entered into force 29 December 1993). See Segger and Khalfan, op cit, p. 95, footnote 2. 49 Jaksa, op cit, p. 179. 50 P M DeChristopher, 'Flexibility, Efficiency, Integration: Local Lessons in Sustainable Development'. Colorado Journal of International Environmental Law and Policy, vol. 16, 2005, p. 157. For a detailed discussion of the definitional issues see L A R Osorio, M O Lobato and X A D Castillo, 'Debates on Sustainable Development: Towards a Holistic View of Reality'. Environment, Development and Sustainability, vol. 7, 2005, pp. 501-518. 51 Sumudu Atapattu, 'Sustainable Development, Myth or Reality?: A Survey of Sustainable Development Under International Law and Sri Lankan Law'. Georgetown International Environmental Law Review, vol. 14, 2001, p. 267. 52 S Dresner, The Principles of Sustainability, *, *, 2002, p. 2. 53 'Stockholm Declaration on the Human Environment'. 16 June 1972, UN Doc. A/CONF.48/14, 11 ILM 1461 (1972). 54 'Rio Declaration on Environment and Development, Report of the United Nations Conference on Environment and Development'. UN Doc. A/CONF.151/6/Rev.1 (1992), ILM 874 (1992). 55 'Agenda 21, Report of the UNCED, I '. Programme of Action for Sustainable Development, 1992, UN Doc. A/CONF.151/26/Rev.1, (1992) 31 ILM 874. 56 'Millennium Declaration'. GA Res. 55/2, UN GAOR, 55th Sess., UN Doc. A/Res/55/2 (2000). 57 International Law Association, New Delhi Declaration on Principles of International Law Relating to Sustainable Development, 2002. 58 See Principle 4 of the Rio Declaration. 59 See Principle 15 of the Rio Declaration. 60 See Principles 6, 7, 11 and 16 of the Rio Declaration. 61 See Principle 2 of the Rio Declaration. 62 See Principles 3 and 5 of the Rio Declaration. 63 See Principle 10 of the Rio Declaration. 64 This principle does not directly appear in the Rio Declaration. It is articulated in paragraph 6.1 of the New Delhi Declaration and principle 13 of the Millennium Declaration 65 Aarhus Convention on Access to Information, Public Participation and Access to Justice in Environmental Matters. 25 June 1998, 38 ILM 517 (in force 30 October 2001). 66 Whilst the Aarhus Convention originated in the European Union its principles have now been widely accepted. The Aarhus Regulation requires the principles of the Convention to be implemented in each member nation:

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______________________________________________________________ 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, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies. 2006. 67 D Craig and M Jeffery, 'Global Environmental Governance and the United Nations in the Twenty-first Century'. (Paper presented at the European Union Forum Strengthening International Environmental Governance, Sydney Opera House, 24 November 2006), p. 5. 68 ibid. 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, J Salzman and D Zaelke, op. cit., p. 521. 70 Segger and Khalfan, op cit, p. 46. 71 This is exemplified in the slogan think globally, act locally said to have been coined by David Brower the founder of Friends of the Earth: Friends of the Earth, Press Release. 2000, www.foe.co.uk/resource/press_releases/20001107132336.html at 3 June 2008. 72 'Agenda 21, Report of the UNCED, I', (1992) Programme of Action for Sustainable Development. (1992) UN Doc. A/CONF.151/26/Rev.1, (1992) 31 ILM 874. Chapter 28.1. 73 ibid. Chapter 24. 74 ibid. Chapter 25. 75 ibid. Chapter 26. 76 ibid. Chapter 27. 77 R R M Verchick, 'Can Local Government Save the Global Commons? Lessons from the Johannesburg Summit'. Leland Stanford Junior University, Stanford Agora, vol. 4, 2003, p. 1. 78 'Johannesburg Plan of Implementation, Report of the World Summit on Sustainable Development', 4 September 2002, UN Doc. A/CONF. 199/20. Paragraph 4. 79 DeChristopher, op cit, p. 182. 80 Verchick, op cit, p. 3. 81 Jaksa, op cit, p. 191.

Bibliography
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______________________________________________________________ African Charter on Human and Peoples Rights. 27 June 1981, 21 ILM 59 (1981) (entered into force 21 October 1986). 'Agenda 21, Report of the UNCED, I ' (1992) Programme of Action for Sustainable Development (1992) UN Doc. A/CONF.151/26/Rev.1, (1992) 31 ILM 874. American Convention on Human Rights. 22 November 1969, 1144 UNTS 123 (entered into force 18 July 1978). Anaya, S. J., 'International Human Rights and Indigenous Peoples: The move toward the multicultural state'. Arizona Journal of International and Comparative Law, vol. 21(1), 2004, pp. 13-. Sumudu Atapattu, 'Sustainable Development, Myth or Reality?: A Survey of Sustainable Development Under International Law and Sri Lankan Law'. Georgetown International Environmental Law Review, vol. 14, 2001, pp. 265-. Benda-Beckmann, F. v., 'Folk, Indigenous and Customary Law', in International Encyclopaedia of the Social and Behavioral Sciences,2001, p. 5705. Bullard, R. D., Environmental Justice in the Twenty-first Century, Environmental Justice Resource Center <http://www.ejrc.cau.edu/ejinthe21century.htm> at 10 February 2008. Centre for Sustainable Development, University of Westminster and Law School, University of Strathclyde, Sustainable Development: A Review of International Literature: Chapter 11: Environmental Justice, 2006, <www.scotland.gov.uk/Publications/2006/05/23091323/12> at 6 April 2008 Cha, J. M., 'Environmental Justice in Rural South Asia: Applying Lessons Learned from the United States in Fighting for Indigenous Communities' Rights and Access to Common Resources'. Georgetown International Environmental Law Review, vol. 19, 2007, pp. 185-. Charter of the United Nations. 26 June 1945, UNTS 993, (entered into force 24 October 1945).

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______________________________________________________________ Charters, C., 'Indigenous peoples and international law and policy'. Public Law Review vol. 18, 2007, pp. 22-. Convention on the Rights of the Child. 20 November 1989, 1577 UNTS 3 (entered into force 2 Sepember 1990). Craig, D., Interconnectedness between human rights, the environment and indigenous peoples. Materials prepared for the Diplomacy Training Course, University of NSW, held at Batchelor College, Batchelor, Northern Territory, June 2005. Craig, D. and Jeffery, M., 'Global Environmental Governance and the United Nations in the 21st Century'. Paper presented at the European Union Forum Strengthening International Environmental Governance, Sydney Opera House, 24 November 2006. Davies, M., 'Race and Colonialism: Legal Theory as White Mythology', in Asking the Law Question: The Dissolution of Legal Theory (2nd ed.). 2005, pp. 257-294. DeChristopher, P. M., 'Flexibility, Efficiency, Integration: Local Lessons in Sustainable Development'. Colorado Journal of International Environmental Law and Policy, vol. 16, 2005, pp. 157-188. Declaration on the Right to Development. 4 December 1986. UN GA Resolution 41/128, UN GAOR, 1986 Supp. No 53, UN Doc A/41/53, 186 (1986). Declaration on the Rights of Indigenous Peoples. 14 September 2007, UN GA Resolution A/61/L.67. (2007). Preamble. Draft Declaration of Principles on Human Rights and the Environment (1994) <http://fletcher.tufts.edu/multi/www/1994-decl.html> at 4 April 2008. Dresner, S., The Principles of Sustainability, 2002. First National People of Colour Environmental Leadership Summit, Principles of Environmental Justice (Adopted 27 October 1991) <http://www.ejrc.cau.edu/princej.html> at 10 February 2008.

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______________________________________________________________ Firestone, J.; Lilley, J. and Torres de Noronha, I., 'Cultural Diversity, Human Rights and the Emergence of Indigenous Peoples in International and Comparative Environmental Law'. American University International Law Review, vol. 20, 2005, pp. 219-. Friends of the Earth, Press Release. (2000) <http://www.foe.co.uk/resource/press_releases/20001107132336.html> at 3 June 2008. Hunter, D.; Salzman, J., and Zaelke, D., International Environmental Law and Policy (3rd ed), *, *, 2007, p. 273. International Covenant on Civil and Political Rights. 16 December 1966, Annex to UNGA Res. 2200 (XXI), 6 ILM 368 (1967) (entered into force 23 March 1976). International Covenant on Economic, Social and Cultural Rights. 16 December 1966, Annex to UNGA Res. 2200 (XXI); 6 ILM 360 (1967); (in force 3 January 1976). International Convention on the Elimination of All Forms of Racial Discrimination. 21 December 1965, 660 UNTS 195, (entered into force 4 January 1969). International Law Association, New Delhi Declaration on Principles of International Law Relating to Sustainable Development, 2002. Jaksa, M. F., 'Putting the Sustainable Back in Sustainable Development: Recognizing and Enforcing Indigenous Property Rights as a Pathway to Global Environmental Sustainability'. Journal of Environmental Law and Litigation, vol. 21, 2006, pp. 157-205. Jeffery, M. I., 'Environmental Ethics and Sustainable Development: Ethical and Human Rights Issues in Implementing Indigenous Rights', Macquarie Journal of International and Comparative Environmental Law, vol. 2(1), 2005, pp. 105-120. 'Johannesburg Plan of Implementation, Report of the World Summit on Sustainable Development', 4 September 2002, UN Doc. A/CONF. 199/20. Paragraph 4.

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______________________________________________________________ 'Millennium Declaration' (2000) GA Res. 55/2, UN GAOR, 55th Sess., UN Doc. A/Res/55/2 (2000). Monsma, D., 'Equal Rights, Governance and the Environment: Integrating Environmental Justice Principles in Corporate Social Responsibility'. Ecology Law Quarterly, vol. 33(1), 2006, p. 450. NSW Law Reform Commission, 'Aboriginal Customary Law', Sentencing: Aboriginal offenders. Report No 96. 2000, <http://www.lawlink.nsw.gov.au/lrc.nsf/pages/r96chp3 > at 9 February 2008. Osorio, L. A. R.; Lobato, M. O. and Castillo, X. A. D., 'Debates on Sustainable Development: Towards a Holistic View of Reality'. Environment, Development and Sustainability, vol. 7, 2005, pp. 501-518. 'Rio Declaration on Environment and Development, Report of the United Nations Conference on Environment and Development' (1992) U.N. Doc. A/CONF.151/6/Rev.1 (1992), ILM 874 (1992). Ruhl, J. B., 'The Co-Evolution of Sustainable Development and Environmental Justice: Cooperation, then Competition then Conflict'. Duke Environmental Law & Policy Forum, vol. 9, 1998, pp. 161-185. Sax, J. L., 'The Search for Environmental Rights'. Journal of Land Use and Environmental Law, vol. 6(1), 1990, pp. 93-. Segger, M.-C. C. and Khalfan, A., Sustainable Development Law: Principles, Practices & Prospects, 2004. 'Stockholm Declaration on the Human Environment.' 16 June 1972, U.N. Doc. A/CONF.48/14, 11 ILM 1461 (1972). United Nations Convention on Biological Diversity. 5 June 1992, 1760 UNTS 79, 31 ILM 822 (entered into force 29 December 1993). United Nations Framework Convention on Climate Change. 9 May 1992, 1771 UNTS 107, 31 ILM 849 (entered into force 21 March 1994). Universal Declaration of Human Rights. 10 December 1948, GA Res 217 A, UN GAOR, 3rd Sess., UN Doc. A/810 (1948).

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______________________________________________________________ Verchick, R. R. M., 'Can Local Government Save the Global Commons? Lessons from the Johannesburg Summit', Leland Stanford Junior University, Stanford Agora, vol. 1, 2003, pp. 4-. Vienna Declaration and Programme of Action, adopted at the World Conference on Human Rights. 12 July 1993. UN Doc A/CONF.157/23. Weintraub, B. A., 'Environmental Security, Environmental Management and Environmental Justice'. Pace Environmental Law Review, vol. 12, 1995, pp. 533-. Wiessner, S., 'Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis'. Harvard Human Rights Journal, vol. 12, 1999, pp 58-. World Commission on Environment and Development, Our Common Future, 1987. Erika Techera LLB (Hons) (UTS), GDLP (UTS), M Env Law (Macq), LLM (Macq). Associate Lecturer and PhD Candidate at the Centre for Environmental Law, Macquarie Law School, Macquarie University, Australia. Erikas previous experience includes seven years practice as a Barrister in Sydney.

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 centurys 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

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______________________________________________________________ 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 Americas 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 Appalachiawhich, ironically, were not wholly recognized as regions until the twentieth centuryprovided 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 regions 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 3648 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

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______________________________________________________________ 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 argumentone 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 Scotias 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 Scotias 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

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______________________________________________________________ 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 Scotiaand this region as a wholeplayed 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 countriesinto 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 womens 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 knowledgehousehold 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

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______________________________________________________________ The oral history interviews consisted of twelve, sometimes multifaceted questions, in an interview of 3045 minutes duration. Review and approval of the project was given by the Research Ethics Board of the Nova Scotia Agricultural College, the authors 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 Womens Institutes of Nova Scotia (WINS), and the West Virginia Community Educational Outreach Service (WVCEOS), formerly known as Farm Womens 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 womens 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 womens population accessed via these two organizations, some important populations of rural women have been missed. In Nova Scotia, African-Nova Scotian, Mikmaq, and Acadian women have comprised and currently comprise a very small percentage of the Womens Institutes organization membership, and thus, their health knowledge and historical understandings are unfortunately absent from this analysis. Similarly, West Virginias population since 1980 has been about 3% African-American (and was higher in earlier decades). Prior to the integration of the Farm Womens 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

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______________________________________________________________ Despite these limitations, the interviews have nonetheless been an engaging source with which to examine a segment of rural womens homebased (as opposed to medical institution-rooted or more public-health oriented) health knowledge, perceptions, and practices. These narratives have provided a means to understand how such knowledge was put into use and transmitted in the home, family, and/or community, both in the past and the present. Home-based health knowledge and its human practitioners should be viewed, however, within the context of the ecosystem in which these women and their families and neighbours lived. Helping to heal (keeping healthy) connected to household, community, and the natural world, and as both regions, as indeed the world contends yet again with growing health and food insecurity, healthcare inequalities and mis-matches, as we all come to grip with environmental limits elsewhere and everywhere, these narratives also suggest something more. There are stories that suggest how a more environmentally sound and healthy future might be had for all, from those who have been at the (perceived) margins before. 2. Cultural Integrity Cultural integrity here refers to the capacity of an identified culturebearing in mind the problematic notion that culture is14to maintain itself over time in identifying (and identifiable) characteristics of human language/idiom, behaviours, traditions, and relationship to a particular place as well as perhaps to a place of origins. Both Appalachia and Atlantic Canada have cultures that can be characterized as the sum of a combination of influential landscapes (seascapes as well, in the case of Atlantic Canada), aboriginal and immigrant peoples, and the resultant relationships. Too, Nova Scotians are Nova Scotians, but they are also Maritimers and Atlantic Canadians, though the latter term sees less use except to refer to Atlantic Canada as a region as compared to the West, Ontario, or Quebec, in light of federal initiatives within Confederation. West Virginians, similarly, are West Virginians, but also have, in the American context, the closest association of any state with the federally defined region of Appalachia, because it is the only state, in fact, whose counties all fall within the official boundaries of the region set via establishment of the Appalachian Regional Commission (ARC) in 1965. It bears repeating that, as Williams notes, outside of the multi-state set of counties identified as Appalachia for the purposes of funding under the ARC, Appalachia has no agreed-upon boundaries. Most of Atlantic Canada, technically, falls within the northern geographic boundary of the Appalachian Mountains, but in the US, the Canadian part of this mountain and valley range tends to be overlooked.15 If the two nationally oriented appellations of region are used, and Atlantic Canada and Appalachia are treated as different regionsas they are

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______________________________________________________________ viewed politicallyit is possible to see that, aside from certain social realities (like national healthcare), the two places are similar in many respects. Appalachia and Atlantic Canada echo to a degree plant species, climate, the timing and trajectories of aboriginal-European encounter, development of raw resource extraction political economies, and the occupational plurality, both past and present, of their respective rural inhabitants. Each saw rural industrialization in the mid- to late nineteenth century, and each experienced (and continues, in some sense, to experience) significant out-migration and economic distress.16 The issues of out-migration, dependency, and underdevelopment, as outlined in Salstrom, in Appalachias Path to Dependency, are a useful beginning point in illuminating the economic context of what were environmental, ecological, and social upheavals as well as economic conditions in both regions. To begin with Appalachia: in the colonial and early national periods, up to 1840, Appalachia was marked by both subsistence and profit-oriented inhabitants and settlements, but in this period agriculture did provide self-sufficiency. The region grew enough to feed itself, and then some. Between 1840 and 1880, however, while both population and agricultural production increased, per capita production declined steeply, leading Salstrom to conclude that the loss in agricultural self-sufficiency, the lack of capital within the region, and the capacity of outside capitalists to be able to utilize post-Civil War technologies and the necessary capital to exploit West Virginias coal fields and timber resources better than locals could, led to the beginnings of economic dependency. By the turn of the century the dependency led to wholesale environmental and economic disaster.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. Part of a regional economy that contained ship-building, and exports of fish, timber and agricultural produce, the region appeared to be selfsufficient. Yet, as Acheson has demonstrated, and as with the case Salstrom makes for Appalachia, there developed no regional metropolis, no within-theregion financial centre with adequate capital. This led to outside capital coming in, and the development of underdevelopment after the American Civil War and Canadian Confederation. A national economy, built through a tariff wall and transportation policy, ultimately favoured central Canadian industrialism over anything going on in the East, where population decreases led to declining political power for the Maritimes within the new Dominion. Attracted by the booming economy of New Englands Boston States the trickle of Maritime migrants in the 1860s and 1870s turned into a flood by the turn of the century, and manufacturing within the Atlantic region, 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

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______________________________________________________________ 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. Appalachias 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

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______________________________________________________________ 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 doctors21 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 dont know what it would be, its not a cure, preventionfor 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

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______________________________________________________________ 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, howeverand recalling here John Alexander Williams and Ian McKays argumentsat 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, modernitys 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 lifeways of life ultimately more harmful to the health of the planet than those attached to those possessing anti-modern ways? Tourist escapesWest Virginia, on the license plate as Almost Heaven, and Nova Scotia, as Canadas Ocean Playgroundwere 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:

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______________________________________________________________ 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 modernitys 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 theyd 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 gazeand dollarsto 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 Labors Wars (1926)

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______________________________________________________________ Labours 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 tragedylike the victim of malnutrition, Newfoundlander, Eddie Crimmins, about whom Dawn Fraser wrote in his poemcould ensue. In contrast to the general view of the 1920s as the height of the Modern Erathe Jazz Agein 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

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______________________________________________________________ useful for its before and after perspective on the Canaan Valley area of Tucker County, where fires swept through during the timber boom: (before) There was a trail very rough into Canaan Valley. Wagons could get over it but it took them all day... and if you wanted to see the sky you had to lay on your back in the middle of the road and look up. 30 (after) It was a beautiful valley and that was all. The fire had burned about 3,000 acres. They called it the burning woods. 31 The turn of the century period was the pivotal period of change, but, in terms of strategies for ecological survival, and related health preservation and/or healing strategies, those growing up in the later period, the 1930s to 1950s, can be seen as the first generation to actually experience the effects of these changes in the economy and the eco-system. It was the forest environment, which suffered, through fires, floods, and the more intensive and destructive methods of harvest, restrictions on traditional uses, and management through the establishment of National Parks and Forests in West Virginia. In Nova Scotia the losses were more contained but nonetheless graphicthe Sydney Tar Ponds, presently the site of a massive clean up from a century of steel and coke productionis the most prominent example of how industrial capitals effects can be felt long after the jobs justifying it have disappeared. There was also one complete loss that was not directly related to industrialization, but rather through international trade, and it will be mentioned here as it links both regions just as labour history does, and suggests the extent to which the devastating consequences we face today, environmentally, have been faced before. It is the case of the American chestnut tree. Through introduction of a blight from Asia, the American chestnut tree at mid-century was all but made extinct. 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... a tree whose role in human, animal, and plant ecology was irreplaceable. The American chestnut has been found in Nova Scotia, incidentally, thought to have been brought in by United Empire Loyalist settlers at the end of the Revolution.32 And yet, and yetthe eco-system survived. And people persisted. These brief examples cannot completely paint the picture of ecological survival; but the overarching theme to take from them is one of resilience, and survival, and of human adaptation to environmental injustice at the hands of capital and its collaborators. Although, as the Nova Scotia example of

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______________________________________________________________ Eddie Crimmins recalls to us, there were many who did not survive, those interviewed for this study, who were growing up from the late 1910s through the mid-1950s did survive, and recalled, not a cutover landscape, but one that offered the next stage of growth/succession following a timber cut: acres and acres of blackberry and raspberry brambles. While Nova Scotia interviewees of farm backgrounds remember a lot of vegetables being consumed, especially in the moderately successful agricultural sub-region of the Annapolis Valley, West Virginia interviewees recalled most often the results of wild-gathering, which would include the high fibre, 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... We picked, we would can a hundred quarts of raspberries, maybe a hundred quart of blackberries, all kinds of wild berries....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. From the kitchen cupboard, both Nova Scotian and West Virginian women recalled the use of bread poultices, ginger for stomach or menstrual difficulties, onion poultices for colds, mustard plasters for aches, and the making of an onion and brown sugarbased cough syrup. How they differed in their recollections relates to their differences in the natural environment and farm practices; where both groups recalled people raising a hog for winters meat,34 in Nova Scotia the use of goose grease was much more common than the use of lard (a hogs rendered fat), as the base for salves and other medicaments. Lard was generally used much more in West Virginia than in Nova Scotia. Goose was not a Christmas favourite in West Virginia, as it was in Nova Scotia and it only took one, at Christmas, to provide the amount of fat needed for a familys use all year. Wild gathering was much more part of the farm and forest economy and eco-system of West Virginia than in Nova Scotia, but both groups of interviewees mentioned the annual ritual of gathering greens in the spring, 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.35 Dandelion greens (and, in the Nova Scotia case, dandelion wine) fell under the category of spring tonic by interviewees and in print sources.36 The only more frequently mentioned tonic (this in West Virginia only, as the tree is only common there) was sassafras tea, made from the bark of the root of the sassafras tree. As membership grew in the Womens Institutes in Nova Scotia and Farm Womens/Extension Homemaker Clubs in West Virginia, the groups in the twentieth century each played important roles in health related initiatives, initiatives that can be interpreted as part of an effort to modernize their respective rural societies. For example, the Womens Institutes were instrumental in providing cod liver oil for disbursement at schools, while the

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______________________________________________________________ West Virginia clubs were responsible for establishing many hot lunch programs throughout the state. Interestingly enough, however, the one interviewee who mentioned school-time lunch programs brought out the differences she perceived between the plenty observed at her rural, farmbased household, and what she saw once her country school was closed and she was bussed into town: I didnt realize until they closed that country school and brought us intoto wn and we rode home with other kids that their homes didnt function as well, probably with the food. The food was probably what impressed me the most, it was the... 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. Other people didnt live like that.37 Good nutrition connected to health and subsistence; these life patterns linked home agricultural production and wild gathering to household and community health. Access to the ecosystemaccess that was taken advantage ofreveals the extent to which the natural world, despite being damaged, was resilient and generous to humans in the ways that allowed humans to continue to sustain traditional and anti-modern practices within their cultures. 4. 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 marginsbut nevertheless privileged ones, by virtue of our Global North residence) might move toward a more environmentally sound and just future, at the same time as we put into practice some fairly simple lessons of the past about getting and staying healthy. To begin, some excerpts: NS Participant: ...No sitting at a desk doing computer or doing something else, you were out in the fresh air. Thats also to me one of the reasons why there wasnt so much obesity... they walked to school... and its what, three kilometres or something? And we walked it winter and summer. NS Participant: Yeah... 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. And people today dont do that, theyre home and they get this and they get that... the

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______________________________________________________________ kids today theyre always sick. Every one of the kids you ever see theres something wrong with them. NS Participant: I didnt grow up with any child... with a chronic disease, illness. There was nobody had asthma... you know, I cant remember any of them having chronic illness. Isnt that interesting? Perhaps I have a faulty memoryperhaps I just want to remember all the good thingsbut I think Id remember. WV Participant: I would say in the [19]80s a lot of the home remedies was, its... dont do that, its harmful to you. I think up until that time some did and some didnt, but it seemed like in the early 80s it started... But now I see it reverting back to the home remedies and some of these things really did work and really are good. Moderator: ... would you still use a bread poultice today? WV Participant: Sure I would... its much easier if you have an antibiotic cream... but if I needed to I probably would just continue to use those things because it worked.38 There is always the danger of nostalgia colouring memories when considering the expressions of oral history. 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, even enjoyable through recourse to and a healthy interaction with nature as well as community. These interactions involved physical activity (whether through outdoor play, walking to and from school/events, or through gathering of herbs, and other food/medicine items), use of what was available in cupboard, field and forest to heal or maintain health, sharing information both generationally and between friends at branch/club meetings or otherwise in the locality/community, and providing a boost to the households self-sufficiency through the provisioning of medicines, vegetables and fruits from farm or the wild. The healthful exercise through walking that was involved in all the provisioning and other activities should also not be downplayed or dismissed. 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 greensand before the days of consolidated schools, cheap fuel, more distant employers.39 It may take some time, despite the high cost of fuel and the clear signs that this kind of consumptive lifestyle

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______________________________________________________________ promoted by the champions of modernity is unsustainable over the long term (both in terms of human health as well as the environment), to move toward the re-localisation of rural (as well as urban) economies. Still, taking a cue from the home-based health knowledge shared by Nova Scotian and West Virginian rural women, perhaps it is time to recognize that the simplest remedy for non-acute health problems may also be the most efficacious. More and more people are realizing this and getting off the treadmill of multiple prescription drugs, which has its own dangerous environmental side effects, in terms of what makes its way into water supplies, but many have not yet reached the stage of critical reflection one respondent offered in her comment, below: I have worked in the medical field all my life, but as Ive gone along Ive realized that we have gone more and more in the direction of trying to look for instant answers, and pills and all sorts of things to solve every little ache and pain, and that there is very little healing going on....40 In closing, the intersection(s) of health, household-based practices and remedies with the rise more recently of functional foods and other food-nutrition-health connections, suggests that one of the editors of the volume, Food Nations, may not be far wrong when he argues that Food means power, power means food....How, in the context of great globalisation of trade and culture, do we protect the local and individual?41 The assertion, in this instance, should be amended to read food and knowledge of naturethough it should read power-to, rather than powerover, as it is the systems of dominance found within capitalism, within cultures and patriarchal legacies that are at stake here. It would need to be amended yet again, however, to recognize that the knowledge of nature must also include access, in some fashion, to nature. In the coming struggles to protect the local and individualand in the process fashion healthier, collective, communal futuresthese knowledge of nature and access to nature questions, including those related to keeping ourselves healthy, may be key. Here, then, is another question. Is the diffuse and image-twisting multinational corporation, which, in exploiting the eco-system yet again, tries to isolate and make money off of an active ingredient in a wild plantso that the same thing can be fed back to people who will pay for a pillany less of a robber baron than those who, in an earlier century, 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

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______________________________________________________________ environmentally just and healthy ways of living in the twenty-first century, avenues that, in part, 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; about just what we can and cannot do without.

Notes
1 P Salstrom, Appalachias Path to Dependency: Rethinking a Regions Economic History 1730-1940, The University Press of Kentucky, Lexington, 1994; J A Williams, Appalachia: A History, University of North Carolina Press, Chapel Hill, 2002; E R Forbes and D A Muise, The Atlantic Provinces in Confederation, University of Toronto/Acadiensis Press, Toronto/Fredericton, 1993. A key text formulating the anti-modern argument is T J Lears, No Place of Grace: Antimodernism and the Transformation of American Culture, 18801920, University of Chicago Press, Chicago, 1994. This argument is used by Ian McKay, in his argument concerning the commodification of Nova Scotian culture in I McKay, The Quest of the Folk: Antimodernism and Cultural Selection in TwentiethCentury Nova Scotia, Montreal & Kingston, McGill-Queen's University Press, 1994. This paper owes a great deal to the support at early stages of Dr. Peter Twohig, Saint Marys University, and funding from SSHRC, more recently the Womens Health in Rural Communities (WHIRC) project, funded by CIHR, and the Nova Scotia Agricultural Colleges Rural Research Centre. 2 The tourism industry in Nova Scotia, for example, meant the collecting of sea shanties and careful preservation/reconstruction of sites such as Peggys Cove; in Appalachia, through park developments, all traces of modernity, including numerous white frame farmhouses, were destroyed. I McKay, The Quest of the Folk, op. cit.; Williams, Appalachia, op. cit., p. 299. 3 Sydney Tar Ponds Agency, Homepage, www.tarpondscleanup.ca/. 4 Health statistics for Nova Scotia are found in Coastal Communities Network, Painting the Landscape of Rural Nova Scotia: Rural Communities Impacting Policy Project, October 2003; West Virginias ranking is cited in K J Williams et al, Cultural Perceptions of Healthy Weight in Rural Appalachian Youth, Rural and Remote Health, vol. 8:932, (Online), 2008, pp. 1-13. J A Williams, the author of Appalachia: A History, is also the author of West Virginia: A History, West Virginia University, Morgantown, 2001. I McKay, The Quest of the Folk, op. cit. 5 Others from diverse fields have tackled the idea of the intersection of modernity and knowledge, in terms of the concept of ecological survival; see, for example, V Lal, Modernity, Frameworks of Knowledge, and the

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______________________________________________________________ Ecological Survival of Plurality: An Introduction to the Multiversity Enterprise- United States Chapter, http://vlal.bol.ucla.edu/multiversity, accessed June 2008. 6 A typical 1970s-era study in Appalachia, that notes the necessity of using insidersnurses born and raised in the regionto effectively deliver health programs, is D H Looff, Rural Appalachians and Their Attitudes Toward Health, in Rural and Appalachian Health, R L Nolan and J L Schwartz (eds.), Charles C Thomas, Springfield, IL, 1973, pp. 3-15. Williams et al., op. cit., p.8, raises the issue of Appalachia as unique, but couches it in terms of the statement that the Appalachian region is predominately (sic) rural, and persons residing in these areas maintain values and practices somewhat different from those living in more urbanized locations. 7 I McKay, Quest of the Folk, op. cit., p. 27. 8 Williams et al, op. cit, p. 8., whose study took place in four high schools in rural West Virginia, identified the region as a whole, but via a rural-urban dichotomy: The Appalachian region is predominately (sic) rural, and persons residing in these areas maintain values and practices somewhat different from those living in more urbanized locations. J A Williams, Appalachia, op. cit., p. 18. 9 W Mitchinson, The Medical Treatment of Women, in Changing Patterns: Women in Canada (2nd ed.), S Burt, L Code and L Dorney (eds), McClelland & Stewart, Toronto, 1993, pp. 391-421. As Mitchinson notes, The impact of culture on medicine, the medicalization of society, and the interventionist nature of [conventional/mainstream/modern/allopathic] medical practice affect both women and men, although, as she notes, historically women have felt these effects more keenly (p. 393). But, without doubt, Since the midnineteenth century we have seen the increasing medicalization of our society and our lives (p. 402). 10 E A Howland, The American Economical Housekeeper and Family Receipt Book, 5th ed., S A Howland, Worcester, MA, 1841; Committee Recommendations, Standing Committee Recommendations, West Virginia State Farm Womens Bureau/Farm Womens Clubs/Extension Homemakers Clubs. 1926-1995, Morgantown, West Virginia; Oral Histories with women from West Virginia and Nova Scotia. Each interview is given a numerical value, with WV signifying West Virginia, and NS, Nova Scotia (WV1WV10; NS1-NS8). 11 M Kechnie, Organizing Rural Women: The Federated Womens Institute of Ontario, 1897-1919, McGill-Queens University Press, 2003; S Eagan, Womens Work, Never Done: West Virginia Farm Women, 1880s-1920s, West Virginia History , vol. 49, 1990, pp. 21-36; S Eagan, West Virginia Farm Womens Clubs (1914), in Missing chapters II: West Virginia

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______________________________________________________________ Women in History, F S Hensley (ed.), West Virginia Womens Commission, WV Womens Foundation, and Humanities Foundation of West Virginia, Charleston, WV, 1986, pp. 151-64. 12 S L Barney, Authorized to Heal: Gender, Class, and the Transformation of Medicine in Appalachia, 1880-1930, University of North Carolina Press, Chapel Hill, 2000. 13 Statistics from www.censusscope.org/us/s54/chart_race.html. 14 I McKay, Historians, Anthropology, and the Concept of Culture, Labour/Le Travailleur, vol. 8/9, 1981, pp.185-241. 15 There have been some international comparatives done before: see for example, Phillip J Obermiller and William W Philliber (eds), Appalachia in an International Context, Praeger, Westport, CT, 1994. 16 J A Williams, West Virginia, op. cit.; E R Forbes and D A Muise, op. cit. The outline of key issues in terms of rural modern society is provided in Daniel Samson, Introd., Afterword, Contested Countryside: Rural Workers and Modern Society in Atlantic Canada, 1800-1950, Acadiensis Press, Fredericton, 1994. 17 P Salstrom, Appalachias Path to Dependency: Rethinking a Regions Economic History, 1730-1940, The University Press of Kentucky, Lexington, 1994, pp. 122-138. 18 T W Acheson, The National Policy and the Industrialization of the Maritimes, 1880-1910, Acadiensis, vol. 1.2, Spring, 1972, pp. 3-28; Robert J Brym and R James Sacouman (eds), Underdevelopment and Social Movements in Atlantic Canada, New Hogtown Press, Toronto, 1979; Patricia A Thornton, The Problem of Out-Migration from Atlantic Canada, 18711921: A New Look, in The Acadiensis Reader: Volume Two, Atlantic Canada After Confederation (2nd ed.), P A Buckner and David Frank (eds), Acadiensis Press, Fredericton, 1988, pp. 34-65; Alan A Brookes, Family, Youth, and Leaving Home in Late Nineteenth-Century Rural Nova Scotia: Canning and the Exodus, 1868-1893, in Childhood and Family in Canadian History, Joy Parr (ed), McClelland & Stewart, Toronto, 1982, pp. 93-108; Alan A Brookes, The Golden Age and the Exodus: The Case of Canning, Kings County, Acadiensis, vol. 11.1, Autumn, 1981, pp. 57-82; Betsy Beattie, Obligation and Opportunity: Single Maritime Women in Boston, 1870-1930, McGill-Queens University Press, Montreal & Kingston, 2000. 19 Salstrom, Appalachias Path to Dependency, p. 125; Rusty Bittermann, Farm Households and Wage Labour in the Northeastern Maritimes in the Early Nineteenth Century, in Contested Countryside, Daniel Samson (ed), pp. 34-69; Williams, Appalachia: A History, p. 313. 20 NS-2,3,5,7,8; WV-1,2,3,4,6,10. 21 NS-2.

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______________________________________________________________ WV-4. Those from both Nova Scotia and West Virginia who remembered something other than being healthy, in response to the question, when you think about the health of your birth family, the family that you were a child in, what sticks out in your mind the most? recalled specifics of an ill (or dying) parent, and of the hardship that individual circumstance involved. NS4, WV 11, 12. 23 NS-5. 24 WV-2. 25 Williams, Appalachia: A History, pp. 321, 333-334; NS and WV interviews. A minor note expressed the gathering as something that was for tradition (and this in West Virginia) and not expressed in Nova Scotia; the major note sounded involved the belief that these things worked, and were used until more easily utilized (and affordable) products could be had by purchase. For example, one interviewee put it this way: After we got older and could afford to buy things at the store, then, we did, and just like aspirin. When we didnt have money to buy aspirin, we used willow bark and it works. WV-7. 26 J S Davis, A C Nelson, K J Dueker, The New Burbs: The Exurbs and their Implications for Planning Policy, Journal of the American Planning Association, vol. 60(1), 1994, pp. 45-59; S Doyle, A Kelly-Schwartz, M Schlossberg and J Stockard, Active Community Environments and Health: The Relationship of Walkable and Safe Communities to Individual Health, Journal of the American Planning Association, vol. 72.1, Winter, 2006, p. 19; J Wakefield, Fighting Obesity through the Built Environment, Environmental Health Perspectives [serial on the Internet], vol. 112(11), 2004, pp. A616-A618. Available from: Academic Search Premier; C Weinert and M E Burman, Rural Health and Health-seeking Behaviors, Annual Review of Nursing Research, vol. 12, 1994, pp. 65-92. 27 I McKay, The Quest of the Folk, op. cit., p. 40. 28 M Neth, Preserving the Family Farm: Women, Community, and the Foundations of Agribusiness in the Midwest, 1900-1940, Johns Hopkins Press, Baltimore, 1995. 29 R L Lewis, Railroads, Deforestation, and the Transformation of Agriculture in the West Virginia Back Counties, 1880-1920, Research Paper 9402, (online) www.rri.wvu.edu/pdffiles/wp9402.pdf; P Salstrom, op. cit., p. 131. 30 George Thompson, Oral History, p. 3. 31 George Thompson, Oral History, p. 4. 32 Williams, Appalachia, op. cit., p. 298; www.uoguelph.ca/~chestnut/novascotia.htm. 33 WV-4.
22

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______________________________________________________________ NS-1. Dandelion (Taraxacum officinale) is widely recognized as a tonic and, according to the Doctrine of Signatures was virtually a cure-all and yellowthus good for the liver. William H Hylton (ed.), The Rodale Herb Book: How to Use, Grow, and Buy Natures Miracle Plants, Rodale Press, Emmaus, PA, 1974, pp. 88, 422-423. 36 Hylton, op. cit., pp. 422-23; Florence Hilchey, A Treasury of Nova Scotia Heirloom Recipes, Nova Scotia Department of Agriculture and Marketing, (no date), orig pub. date 1967; West Virginias Treasured Recipes: A Collection of Early West Virginia Food and Philosophy, West Virginia Extension Homemakers Council, General Publishing and Binding, Iowa Falls, Iowa, 1974, p. 126; interviews NS 3 & 6; WV-1,2,3,4,6,8, 9, 10. 37 The Womens Institutes efforts in this regard are WV-3. 38 Interview transcripts NS-5, NS-2, NS-8, WV-4, WV-5. 39 S Doyle et al, op. cit.; NIEHS Fights Fat, Environmental Health Perspectives [serial on the Internet], vol. 111(13), October, 2003, p. A698. 40 Interview transcripts NS-6. 41 W Belasco, Food Matters: Perspectives on an Emerging Field, in Food Nations: Selling Taste in Consumer Societies, W Belasco and P Scranton (eds), Routledge, New York, 2002, pp. 4, 19-20.
35 34

Bibliography
Primary Sources Beal, R.A., Dr. Chases Recipes: or Information for Everybody: An Invaluable Collection of About Eight Hundred Practical Recipes. Ann Arbor, MI, 1881. Committee Recommendations. File 1 of 1. Standing Committees Recommendations, West Virginia State Farm Womens Bureau/Farm Womens Clubs/Extension Homemakers Clubs. 19261995. Contains year by year recommendations made by the state health committee of organization. The following years are missing: 192731; 1934; 1941; 1969; 1974; 1991. Reports within the years that do exist may not be complete. Morgantown, WV. Used by permission. File is in possession of Shirley Eagan, Former WVU Extension Specialist, Morgantown, WV. Fraser, D., He Starved, He Starved, I Tell You. Echoes From Labors Wars: The Expanded Edition, Breton Books, Cape Breton, Nova Scotia, 1992.

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______________________________________________________________ Hilchey, F.M., A Treasury of Nova Scotia Heirloom Recipes. Nova Scotia Department of Agriculture and Marketing. Original publication date: 1967. Howland, E.A., The American Economical Housekeeper and Family Receipt Book, 5th ed., Worcester, MA: Published by S. A. Howland, 1841. Copyright held by SA Howland as well, 1845. This was lent to me by one of my HOBAHEK interviewees to examine; it was the grandmother (based in Annapolis Valley) of her husband. Inscription date 1852 on it by grandmother. Nightingale, M., Out of Old Nova Scotia Kitchens: A Collection of Traditional Recipes of Nova Scotia and the Stories of the People Who Cooked Them. Pagurian Press Limited, Toronto, 1971. Nova Scotia Source, Interviews in authors possession. NS1-NS8. Robertson, M., Old Settlers Remedies. Lancelot Press, Hantsport, Nova Scotia, 1960. The Peoples Home Library: A Library of Three Practical Books: The Peoples Home Medical Book, by T. J. Ritter, M.D.; The Peoples Home Recipe Book, by Mrs. Alice G. Kirk, and The Peoples Home Stock Book, by W. C. Fair, V.S. Published by The R. C. Barnum Co., CLEVELAND, OHIOMinneapolis, Boston, Lincoln, Seattle, also listed, but in smaller case than Cleveland; and then it also lists Imperial Publishing Co. Toronto, Canada, in as bold a type, and pub. Date of 1920. copyrighted in 1910. by RC Barnum Co. The Ritter volume first page says that he is graduate of both allopathic and homeopathic schools, and formerly assistant to the chair of the theory and practice of medicine, Michigan State University, Ann Arbour, Michigan. Thompson, G. Oral History. In authors possession. West Virginia Source, Interviews in authors possession, WV1-WV10. West Virginias Treasured Recipes: A Collection of Early West Virginia Food and Philosophy, West Virginia Extension Homemakers Council, Iowa Falls, Iowa: General Publishing and Binding, 1974. Cookbook in authors possession.

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______________________________________________________________ Wright, J.M., The Complete Home: An Encyclopaedia of Domestic Life and Affairs. THE HOUSEHOLD, in its Foundation, Order, Economy, Beauty, Healthfulness, Emergencies, Methods...(goes on) Bradford, Ontario: Bradley, Garretson & Co. Listed also: William Garretson & Co., Columbus, Chicago, Nashville, St. Louis, San Francisco, 1883. Given by the great grandmother to the grandmother of one of my Annapolis Valley HOBAHEK interviewees. Secondary Sources Acheson, T. W., The National Policy and the Industrialization of the Maritimes, 1880-1910, Acadiensis, vol. 1, no. 2, 1972, pp. 3-28. Barney, S. L., Authorized to Heal: Gender, Class, and the Transformation of Medicine in Appalachia, 1880-1930. University of North Carolina Press, Chapel Hill, 2000. Beattie, B., Obligation and Opportunity: Single Maritime Women in Boston, 1870-1930. McGill-Queens University Press, Montreal & Kingston, 2000. Belasco, W., Food Matters: Perspectives on an Emerging Field, Food Nations: Selling Taste in Consumer Societies. W. Belasco and P. Scranton (eds), Routledge, New York, 2002, p. 4. Bittermann, R., Farm Households and Wage Labour in the Northeastern Maritimes in the Early 19th Century, in Contested Countryside: Rural Workers and Modern Society in Atlantic Canada, 1800-1950. D. Samson (ed), Acadiensis Press, Fredericton, New Brunswick, 1994, pp. 34-69. Brookes, A. A., Family, Youth, and Leaving Home in Late Nineteenth Century Rural Nova Scotia: Canning and the Exodus, 1868-1893, in Childhood and Family in Canadian History, J Parr (ed.), McClelland & Stewart, Toronto, 1982, pp. 93-108. Brookes, A. A., The Golden Age and the Exodus: The Case of Canning, Kings County. Acadiensis , vol. 11, no. 1, 1981, pp. 57-82. Brym , R. J. & Sacouman, R. J., Underdevelopment and Social Movements in Atlantic Canada. New Hogtown Press, Toronto, 1979.

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______________________________________________________________ Burt, S., Code, L. and Dorney, L., Changing Patterns: Women in Canada. McClelland and Stewart Inc., Toronto, Ontario, 1993. CensusScope, West Virginia: Population by www.censusscope.org/us/s54/chart_race.html. Viewed June 2008. Race.

Coastal Communities Network, Rural Communities Impacting Policy Project, Painting the Landscape of Rural Nova Scotia, October, 2003. Davis, J. S., Nelson, A. C., Dueker, K. J., The New Burbs: The Exurbs and their Implications for Planning Policy. Journal of the American Planning Association, vol. 60(1), 1994, pp. 45-59. Doyle, S., Kelly-Schwartz, A., Schlossberg, M. and Stockard, J., Active Community Environments and Health: The Relationship of Walkable and Safe Communities to Individual Health. Journal of the American Planning Association, vol. 72(1), p. 19. Eagan, S. C., Womens Work, Never Done: West Virginia Farm Women, 1880s-1920s. West Virginia History, vol. 49, 1990, pp. 21-36. Eagan, S. C., West Virginia Farm Womens Clubs (1914- ), in Missing Chapters II: West Virginia Women in History. F. S. Hensley (ed.), West Virginia Womens Commission, Charleston, WV, 1986, pp. 151-64. Forbes, E. R. and D. A. Muise, The Atlantic Provinces in Confederation. University of Toronto/Acadiensis Press, Toronto/Fredericton, 1993. Hylton, W. H. (ed.), The Rodale Herb Book. Rodale Press, Emmaus, Pennsylvania, 1974. Kechnie, M., Organizing Rural Women: The Federated Womens Institutes of Ontario, 1897-1919. McGill-Queens University Press, 2003. Lal, V., Modernity, Frameworks of Knowledge, and the Ecological Survival of Plurality: An Introduction to the Multiversity Enterprise - United States Chapter. http://vlal.bol.ucla.edu/multiversity. Viewed June 2008. Lears, T. J., No Place of Grace: Antimodernism and the Transformation of American Culture,1880-1920. University Of Chicago Press, Chicago, 1994.

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______________________________________________________________ Lewis, R. L., Transforming the Appalachian Countryside: Railroads, Deforestation, and Social Change in West Virginia, 1880-1920. University of North Carolina Press, Chapel Hill, 1998. Lewis, R. L., Railroads, deforestation, and the transformation of agriculture in the West Virginia Back counties, 1880-1920, West Virginia University, Morgantown WV, www.rri.wvu.edu/pdffiles/wp9402.pdf. Viewed June 2008. Looff, D. H., Rural Appalachians and Their Attitudes Toward Health, in Rural and Appalachian Health. R. L. Nolan and J. L. Schwartz (eds.), Charles C. Thomas, Springfield, IL, 1973, pp. 3-15. McKay, I., The Quest of the Folk: Antimodernism and Cultural Selection in Twentieth-Century Nova Scotia. McGill-Queen's University Press, Montreal and Kingston, 1994. McKay, I., Historians, Anthropology, and the Concept of Culture. Labour/Le Travailleur, vol. 8/9, 1981, pp.185-241. Mitchinson, W., The Medical Treatment of Women, in Changing Patterns: Women in Canada (2nd ed.). S. Burt, L. Code and L. Dorney (eds.), McClelland & Stewart, Toronto, 1993, pp.391-421. N.A., NIEHS Fights Fat, Environmental Health Perspectives, vol. 111, no. 13, 2003, p. A698. www.ehponline.org/docs/2003/11113/EHP111pa696PDF.PDF. Viewed June 2008. Neth, M., Preserving the Family Farm: Women, Community, and the Foundations of Agribusiness in the Midwest, 1900-1940. Johns Hopkins Press, Baltimore,1995. Obermiller, P. J. and W. W. Philiber (eds.), Appalachia in an International Context. Praeger, Westport CT, 1994. Salstrom, P., Appalachias Path to Dependency: Rethinking a Regions Economic History 1730-1940. The University Press of Kentucky, Lexington, 1994.

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______________________________________________________________ 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 hutre de Marennes dOlron). 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 hutre de Marennes dOlron. 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

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______________________________________________________________ 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

186 Relevance of Labelling Localised Products in Southern Countries ______________________________________________________________ From an ecological point of view, 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. Other nonbiological resources associated with mangroves are also exploited. That is the case of mangrove salt and honey, which are also involved in the labelling moves, but not discussed here. The biological resources are essentially fish, shrimps and shells. Fishing is mainly a mans activity whereas shell harvesting is reserved for women. This reality might well change soon for, because of the scarcity of fish due to overexploitation, and with the lack of alternatives, men are more and more taking an interest in shell harvesting. At institutional level, the halieutic resources management system operates as if in a situation of free access despite its status as a protected area. However, the legislation environment, in terms of decentralisation, gives competences to the local communities as far as natural resources and environment protection are concerned. 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.6 The fisheries are not part of the transferred competences, but some moves that have been undertaken to enhance the value of shell in Saloum delta are included. Besides, shells hold an important place in Saloum delta for the populations from nutritional, socio-cultural, economic, trade, political and institutional perspectives. In fact, shells are one of the most important sources of animal protein for the local populations. This is even true for the populations of the rest of the country, particularly over these last years marked by food shortage due to the scarcity of cereals such as rice and millet, which are the traditional basic foods. In addition, young fish have become very rare due to overexploitation on the one hand, and the increase in demand from the foreign (European) market on the other. Thus, the demand for processed shells as substitute for fish and cereals has much increased at the local market. These products are used either as basic food or as ingredients for the cooking of many local recipes. They are particularly appreciated by Saloum delta populations, hence the nickname of shell eater. Within the frame of the enquiry we have conducted throughout restaurants in Dakar, we have listed 21 different recipes based on shell served in these restaurants. The same recipes are also well known in Senegalese households. Shells also hold an important place in the social system of Saloum islands at all stages of production (from collection to hand processing), of commercialisation and of consumption. For example, in Saloum delta, they constitute a strong link between members of a family, especially between those who stay in the village and those living in the city. That link is expressed through presents composed of shells sent from the village to the city. This assists in maintaining, strengthening and entertaining the family

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______________________________________________________________ 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. In addition, shells have very important cultural and ritual functions. They are at the centre of the cultural and ritual events and are the subjects of several myths and beliefs. Many kjokkenmodding (old shellfish piles) have been found in the region, some of them representing former kings tombstones. From an economic point of view, 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). 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, in addition to shells harvesting and processing, 69 per cent of women are also involved in agriculture, 47 per cent in trade and 38 per cent in processing of halieutic products other than shells (table 1).

Photo 1: Processed shellfish (mangrove oyster) of Saloum delta Processed shellfish of Saloum delta (Photo 1) are highly appreciated in the urban markets, especially those of big cities such as Dakar and Kaoloack, but also in weekly markets including rural ones. The national demand of, for example, Niominka Yeet, Touffa Betenty, Pagne Dionewar, is very high. The urban markets represent the main markets for up to 22 per cent of the female producers, compared to 11 per cent for the weekly markets. However, more than 55 per cent of female producers sell their products on the spot to intermediaries (table 3). The final consumers (households, restaurants) buy in directly from these markets. The results of

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. Sine Saloum is preferred by 35.3 per cent of restaurant managers and ranks second among preferred origins, for all species of shells, behind Casamance. However, it ranks first as the preferred origin for pagnes and Touffa (table 4). Table 1: Womens major economic activities in Saloum delta Major activity Nbr. Quotes Frequency (%) Shell collection and 68 91.9 processing Agriculture 5 6.8 Trade 1 1.4 Total Remarks 74 100 Table 2: Place of shells collection in Saloum delta womens incomes Importance of collection Nbr of Quotes Frequency (%) Sole source of income 5 6.8 Major source of income 56 75.7 Important source of income 9 12 Marginal source of income 1 1.5 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 55.4 Sales on weekly markets 8 10.8 Sales on urban markets 16 21.6 Export 1 1.4 No answers 8 10.8 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 35.3 25.7 of shell Preferred origin for pagnes 36.8 39.5 23.7 Preferred origin for oysters 48.5 36.5 15 Preferred origin for touffa 35.3 41.2 23.5 Preferred origin for yeet 35.5 22.6 41.9

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______________________________________________________________ Shells are at the centre of the political and institutional system in relation to natural resources management in Saloum delta, which is characterised by a multiplicity of actors and complexity of actors ways. The States role is pushed into the background, unlike NGOs whose influence on local authorities (local representative, traditional authorities, opinion leaders) as well as on the States institutions, is becoming more and more important. The intervention of these NGOs very often aims at establishing standard systems of principles and practices regardless of their adaptability to the local context. However, the intervention of the NGOs fits within the frame of public policies defined by the State. These, as far as natural resources and environment management are concerned, generally enter the framework of international conventions related to the same field. Thus, the Senegalese State, supported by other international partners including the World Bank, The IMF, the WTO, some institutions of the United Nations (FAO, CNUCED, UNEP, UNDP) and the NGOs, has defined three main public policies which officially support the moves for Saloum delta shell labelling. The first one is related to poverty reducing policy as defined in the Poverty Reducing Strategy Document (DSRP). The purpose of that policy is to strengthen the halieutic sectors role in the fight against poverty. The second one concerns the Accelerated Growth Strategy (SCA), which expects an increase of the fishing contribution to economic growth. The third policy is that of fishing which aims at sustainable development of halieutic sector.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, Femmes et Coquillages project of PRCM8), or within bilateral co-operation between Senegal and other countries (e.g.: PAGEMAS9 project of JICA10). Other moves have been initiated by producers organisations, including FENAGIE11 and its local entities (FELOGIE12). 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); the mangrove oyster (Crassostrea gasar) or Yokhos (Photo 3); the egg plant (Pugilina morio); and murex (Murex spp) called Touffa; and finally the volutes (Cymbium spp) or Yeet. The following four features characterize these moves: resource management measures, product transformation process, packaging and traceability. 3.

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, 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, the local populations, with the support of NGOs, establish their own management measures termed local conventions. They are texts that bear legal form, supposedly elaborated through participative approach. They deal with natural resources and environment management at the local level. Recommended measures within the scopes of these conventions generally dealt with the creation of communal marine reserves, establishment of biological rest, alternating exploitation or harvesting of fishing sites etc. Measures related to a transformation process aim at improving the healthiness of products and achieving hygienic and sanitary quality norms. On this basis, new procedures including several stages of bleach cleaning and washing and burning are adopted. The ultimate goal is to reach normalised quality level in order to help product get access to the upper class in Dakar. Apart from these hygienic and health measures, a packaging system is implemented to ensure better protection and conservation of products. Many types of packaging are used, including plastic sachets and glass boxes. Additionally, for product traceability, a marking system is used. The information delivered on the label varies, but it generally indicates the type of product, the origin, the weight and price (Photo 4). Resource management sustainability systems, as well as hygienic and sanitary processing is also often mentioned.

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______________________________________________________________

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, including biological and cultural diversity.13 The question is to study real or potential impacts on the global system, requirements (norms and constraints), resulting from the initiative. For biological diversity conservation, the management measures implemented in respect of local conventions seem relevant. Furthermore, actions undertaken to sensitise the populations about environment conservation remain positive. In many villages of the Saloum delta, people are beginning to change their relationship with environment with a tendency to return to the local traditional naturalist practices and know-how. Traditions and know-how have long been ignored and considered as an impediment to progress.14 Today they are not only taken into account, they are also considered to be useful for conserving biodiversity. Local communities with their traditional and local ecological knowledge are increasingly recognised as constituting a heritage to be preserved.15 Article 8j of the Convention on Biological Diversity (CDB) stipulates that each party of the convention must, with the exception of national legislation dispositions, respect, preserve and keep indigenous and local knowledge, 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. However, the legitimacy and legality of local conventions are often reconsidered in the maritime field with regard to national law corresponding to halieutic resource management. Their implementation arouses a few concerns. In fact, halieutic resource management falls within the competence of the State, whereas the elaboration of local conventions, as we have 4.

192 Relevance of Labelling Localised Products in Southern Countries ______________________________________________________________ indicated above, has been an initiative of the NGOs. The local conventions are not recognised by law. Further, the involvement of the population in the development of conventions and their implementation is unequal. The populations of villages which are not directly covered by the NGOs are generally excluded. In addition, in the villages that are covered by the NGOs, those who do not belong to a collaborating organisation do not feel involved. As for the processing of products, the idea of homogenisation of practices, which underlies the quality normalisation, does not hold well with traditional know-how enhancement. In fact, the products resulting from the new approach are perceived as new products different from the traditional ones. Hygiene and sanitary norms promoted within the labelling moves are also not the most important deciding factors in the Senegalese consumers choice of shells. The qualities they seek are the size of the individual shellfish, the colour and consistency of the processed product (which depends on the transformation and storage techniques) and, finally, tastewhich validates the three preceding criteria.16 According to women producers, the quality of the product is judged first by appearance, then by touch, and finally by taste. The product must be sufficiently dry and well preserved. Signs of poor quality are worms and other pests; broken and flaking fish; rotted and mouldy shellfish; strong odour of decomposition. Poor quality is due to insufficient cooking, a too short drying time, or bad storage.17 Producing quality shells becomes thus part of a traditional knowhow, which might be threatened by the introduction of new types of products. Besides, the consumers opinion on the relevance of the labelling systems implemented within the scopes of the labelling moves is much mitigated. In fact, 50 per cent of consumers think that it is useless to package products because of two major reasons: 35.7 per cent think that they appreciate the product better by touching and 14.3 per cent state that the weight of their usual purchases is far above the minimal package weight. Conversely, the other half of consumers think that packaging enables the product to keep longer and guarantees healthiness. The consumers opinion on labelling is bolder. In fact, 63 per cent of them think that it is useless, since most households, which are the main customers, are illiterate. The new products are slightly more expensive than the traditional products. However, few women are involved in the moves and they only yield a day contribution per week, devoting the other days to traditional products. Their production costs are also more expensive, even though for the current projects production costs are heavily supported by NGOs. These products are promoted only at the time of the International Fair in Dakar and are not well known or sought after. Generally, they are sold on an irregular basis to well-off urban middle- and upper-class customers, at the end of the working day when offices are closing. Sales volumes are low. Thus, their commercial achievement is very narrow at the local and national scale. In

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______________________________________________________________ addition, a lot of regulation constraints restrict the sale of these products in the Northern countries markets, even if they are sold in most of the big cities of Europe and North America as well. Thus, at present, the current moves to enhance value do not allow expectations of substantial improvements of the populations incomes, whereas those moves are based on the principle that when they earn a better living the populations will reduce their pressure on the resource.18 In addition, 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, even if their incomes increased considerably. The two main reasons they put forward are that they wish to earn more money to get out from poverty and vulnerability; they fear some stowaway behaviour. 5. Conclusion External actors such as NGOs, which work for environmental protection, have introduced shellfish labellisation initiatives in Saloum delta. They have the merit to mobilize the women around the stakes in resources and ecosystems conservation. From this point of view, they can contribute to preserve biological diversity even if the legality of local conventions is questioned. However, from a socio-economic and cultural point of view, these initiatives do not seem to be able to reach their objectives, among which are the improvement of market access for products, the increase of the producers incomes and cultural diversity conservation through the preservation of the local know-how. Indeed, 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, which is nevertheless targeted. In addition, 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. There is, however, another way that could be investigated. Indeed, processed shells of Saloum delta, already have a great fame and reputation on the Senegalese market. This fame and reputation are notably connected to the local traditional know-how, including a typical socio-cultural organization. Saloum delta is also a protected area, which expresses the will of the government and local authorities to insure the biodiversity conservation in this region. The population also showed availability to make commitment in the way of biodiversity conservation while aspiring to economic and social development. In such a context, creating a collective mark such as a mark of park or mark of biosphere reserve could be envisaged. 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.

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Notes
1 United Nations, World Summit on Sustainable Development. Johannesburg 26 August4 September 2002. 2 . Preamble, CDB. 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, Elaboration et Mise en Oeuvre dun Plan de Gestion Intgre: La Rserve de Biosphre du Delta du Saloum, Sngal, UICN, Gland, Suisse et Cambridge, Royaume-Uni, 2003. 5 DPN (Direction des Parcs Nationaux du Sngal), Plan de Gestion de la Rserve de Biosphre du delta du Saloum. vol 1., Etat des lieux, (s.d.). 6 Rpublique du Sngal, Loi n 96-07 du 22 mars 1996 portant transfert de comptences aux rgions, aux communes et aux communauts rurales, modifie par les lois n 2002-15 du 15 avril 2002 et n 2004-21 du 25 aot 2004, 1996. 7 Besides, 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. 8 Regional Program for Coastal and Marine Conservation in Western Africa. 9 Projet dAppui au Renforcement de la Gestion Durable de la Mangrove du Saloum delta. 10 Japan International Cooperation Agency. 11 Fdration Nationale des Groupements dIntrt Economique des Pcheurs. 12 Fdration Locale des Groupements dIntrt Economique des Pcheurs. 13 D. Barjolle and B Sylvander, Facteurs de Succs des Produits dOrigine Certifie dans les Filires Agro-alimentaires en Europe : March, Ressources et Institutions. INRA Prod. Anim., vol. 16(4), 2003, pp. 289-293; L Brard, and P Marchenay, Les Produits de Terroir entre Cultures et Rglements. CNRS Edition, Paris, 2004. 14 S B Brush and D Stabinsky (ed), Valuing Local Knowledge : Indigenous People and Intellectual Property Rights, Island Press, Washington, 1996. 15 M C Cormier-Salem and B Roussel, Patrimoines et Savoirs Naturalistes Locaux, in Dveloppement Durable? Doctrines, Pratiques, Evaluations, J Y Martin (ed), IRD Editions, Paris, 2002, pp. 126-142. 16 O Sarr and M C Cormier-Salem, Shells Valorisation Policy in Saloum (Senegal), in Promoting Local Specialities from Southern Countries. Originbased Products and Biodiversity : Heritage, Territories, Governance.

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______________________________________________________________ Contribution for the International Symposium, 23-28 April 2007, CFEE/EPA/IRD/IDDRI, Addis-Abeba (Ethiopia). 17 (Cormier-Salem et al. 2008) 18 E. Charles, Economie de la Valorisation. Revenus du Producteur et Stratgies dExploitation: Application au Cas de la Pche Artisanale. Thse de doctorat en conomie de lagriculture et des ressources. Ecole Nationale Suprieure Agronomique de Rennes, France, 2001.

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Agrawal, A., Environmentality: Technologies of Government and the Making of Subjects. coll New Ecology of the Twenty-First Century. Duke University Press, London, 2005. Barjolle, D. and Sylvander, B., Facteurs de Succs des Produits dOrigine Certifie dans les Filires Agro-alimentaires en Europe : March, Ressources et Institutions. INRA Prod. Anim., vol. 16(4), 2003, pp. 289-293. Brard, L. and Marchenay, P., Les Produits de Terroir entre Cultures et Rglements. CNRS Edition, Paris, 2004. Brush, S. B. and Stabinsky, D., (ed), Valuing Local Knowledge : Indigenous People and Intellectual Property Rights. Island Press, Washington, 1996. Charles, E., Economie de la Valorisation. Revenus du Producteur et Stratgies dExploitation: Application au Cas de la Pche Artisanale. Thse de doctorat en conomie de lagriculture et des ressources. Ecole Nationale Suprieure Agronomique de Rennes, France, 2001. Cormier-Salem, M. C. and Roussel, B., Patrimoines et Savoirs Naturalistes Locaux, in Dveloppement Durable? Doctrines, Pratiques, Evaluations. J. Y. Martin (ed), IRD Editions, Paris, 2002, pp. 126-142. Dia, I. M. M., Elaboration et Mise en Oeuvre dun Plan de Gestion Intgre: La Rserve de Biosphre du Delta du Saloum, Sngal. UICN, Gland, Suisse et Cambridge, Royaume-Uni, 2003. DPN (Direction des Parcs Nationaux du Sngal), Plan de Gestion de la Rserve de Biosphre du delta du Saloum. vol 1., Etat des lieux, (s.d.).

196 Relevance of Labelling Localised Products in Southern Countries ______________________________________________________________ Rpublique du Sngal, Loi n 96-07 du 22 mars 1996 portant transfert de comptences aux rgions, aux communes et aux communauts rurales, modifie par les lois n 2002-15 du 15 avril 2002 et n 2004-21 du 25 aot 2004. _____, Document de Stratgie pour la Croissance et la Rduction de la Pauvret, 2006-2010. Sarr, O. and Cormier-Salem, M. C., Shells Valorisation Policy in Saloum (Senegal), in Promoting Local Specialities from Southern Countries. Originbased Products and Biodiversity : Heritage, Territories, Governance. Contribution for the International Symposium, 23-28 April 2007, CFEE/EPA/IRD/IDDRI, Addis-Abeba (Ethiopia). United Nations, World Summit on Sustainable Development. Johannesburg 26 August4 September 2002. Omar Sarr is an economist, researcher at Institut de Recherche pour le Dveloppement (IRD, Sngal). He is in charge of the scientific secretariat and coordination of the Western African Littoral Team of Biodivalloc program.

Developmental Projects and Violence in Rural Brazil: The Case of Hydroelectric Dams Andra Zhouri and Raquel Oliveira
Abstract In Brazil, the process of mundialization has resulted in an intensive exploitation of natural resources, which aggravates the use of marginal economic areas and the expansion of the economic frontiers through territories occupied by family agriculture and ethnic minorities.1 Hence, one can observe the creation of conflict zones involving locals, State sectors and entrepreneurial segments. This process is evident in the policies for the expansion of electric power generation. Based on research about the environmental licensing processes of hydroelectric dams in southeastern Brazil, this paper focuses on conflicts, at times violent, involving local people and public policies which are market oriented. Key Words: Brazil, dams, developmental projects, violence. ***** 1. Introduction Establishing economic value requires the disvaluing of all other forms of social existence. Disvalue transmogrifies skills into lacks, commons into resources, men and women into commodified labour, tradition into burden, wisdom into ignorance, autonomy into dependency. Mundialization, understood as a new configuration of the mechanisms of capital accumulation from the concurrent processes of decentralization of the productive operations and capital centralization, results not only in the relocation of the productive activities and investments, but also in the 'polarization of wealth'. Therefore, far from producing a background of integration between the various regions of the globe, 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. Through the use of various political tools, money proves its efficacy when the issue is the transfer of the responsibility for degradation to the most vulnerable classes and countries, so that the effects of the ecological crisis(es) most effectively reach certain sectors of the population of the southern hemisphere. In Brazil, the effects of the transformation carried by the process of mundialization are shown mostly from the adoption of a conservative policy of economic adjustment, which has leveraged both environment and social justice to the status of impediment to development2, therefore risking the

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______________________________________________________________ crucial environmental advances obtained during the past three decades. The liberation of the market forces, itself so typical of mundialization, demands the dissemination of a deregulation policy capable of removing the obstacles to the movements of the large private capital groups. In fact, what we obtain is the systematic destitution of tools for environmental planning and decision, consequently bringing about large infrastructure projects. Confrontational events between locals, State sectors and entrepreneurial segments are then multiplied. This process is now evident in the policies of electric power generation expansion in Brazil. Based on extensive research about the processes involving the environmental licensing of hydroelectric dams in Minas Gerais, southeastern Brazil, 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. Two confronting rationalities are underlined: on the one hand, that of the riverside dwellers, who view the land as communal and family heritage defended by the collective memory and by the rules of resource use and sharing, and on the other, the belief of the Electric Sector, including the State, public and private entrepreneurs who, from a market perspective, view that land as property, therefore a valuable commodity. In this battlefield, where the different positions hold uneven forces, unsustainable social and environmental policies are perpetuated, 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. In this context, violence grows rapidly as the whole political apparatus is used to impose the economic interests that represent uneven and excluding development, a condition that reveals the fallacies of the now prevailing notion of sustainable development. 2. Sustainable Development and Energy Policy: Hydroelectric Companies and the Paradigm of Adequacy For the economists attending the World Economy Forum, selfnamed Global Leaders for Tomorrow Environment Task Force, the level of hydroelectric power production of a country is an indicator of its environmental sustainability. 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, once 70.5% of its installed capacity comes from hydraulic sources.3 However, 494 hydroelectric plant projects are to be implemented until 2015. In this context, the dams have already submerged 3.4 million hectare of productive soil and dislocated more than one million people all over the country. This condition tends to be aggravated with the privatization of the Brazilian electric sector, as the investments from large multinational groups are expanding both with the

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______________________________________________________________ acquisition of old state-run companies and with the creation of a number of joint ventures.4 These joint ventures, partially including electrointensive industry companies, more than double their investments in the field of electricity generation to meet their own needs.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. A meaningful example of this is the production of aluminum primer in Brazil. Around 60% of the aluminum produced in the country is aimed at exportation to large consumer markets, while 11.4% is exported as semi-finished products. This policy, which resulted in the construction of large hydroelectric projects in the Amazon, is now being duplicated with the dissemination of new enterprises aimed at the self-supply of energy of organizations like ALCAN Alumnios Brasil (Canada), ALCOA Alumnio (EUA), Billiton Metais (Reino Unido) and others. This new scenario, which results from the relocation of aluminium plants around the world, 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. 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. In this sense, 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. Against the organization of mobilized opposition groups, some sectors of the State have many times responded to local demands and criticism with repressive action. Based on an extremely uneven field of power, the implementation of large industrial sceneries (hydroelectric plants, monocultures such as soy, sugar cane and eucalypt trees) therefore gives rise to violent confrontation and various experiences concerning violation of human rights6, which can be exemplified by the process of compulsory expropriation for the construction of the Candonga hydroelectric plant in Minas Gerais.7 In such case, 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. 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. A similar situation occurred in the State of Esprito Santo, where the eviction process, under the command of the Federal Police, resulted in the destruction of two Indian villages located in an area occupied by the Aracruz Celulose Company8.

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______________________________________________________________ Nevertheless, the tensions created in this field of dispute have given rise to radical reactions from the social movements and local mobilizations9. On the other hand, the repression promoted by the companies creates violent confrontations and results in threats10, leaders and demonstrators being arrested, 11 injuries12 and even reports of missing persons.13 Such episodes are unveiled within the realm of the adequacy paradigm, far opposed to a sustainability prospect. 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, therefore generating social conflicts. Such an asymmetry in the social appropriation of nature generates a negative ecological distribution, 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. It is in this context that we insert the construction of hydroelectric dams, which, in general, basically tend to produce energy for a specific sector of the industrial economy, mainly the electro-intensive industry, as is the case of the aluminium sector.14 As a result, we understand that dams building have generated environmental injustice. In general, the projects are licensed, despite the inadequacy of the studies, the legal restrictions and the opposition of the affected populations. 15 The decision-making process relies on the prevailing environmental paradigm, which strongly believes in ecological modernization. In this sense, 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. We have called this prevailing model environmental adequacy paradigm by opposition to a sustainability paradigm. Within the adequacy paradigm, the project takes central stage, and is therefore unquestionable and merciless. According to this concept, the environment is viewed as an externality, a landscape that must be modified and adapted to comply with the objectives of the technical project. In fact, the need and the socio-environmental feasibility of the construction are not offered for discussion. In opposition to this model, the sustainability paradigm discusses the production and consumption standards that claim for that construction, the social interests and values involved in the construction and the actual beneficiaries. In this sense, the sustainability paradigm demands an effective analysis of the socio-environmental feasibility of a project, considering the potentiality of the environment where it is located and its relation with the use and meanings there attached to the territory. Supported by the belief in the technological capacity to preview and reduce risks and effects, the adequacy paradigm operates within the instrumental economic rationality. Hence, in opposition to this model, and

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______________________________________________________________ against the mere ecological modernization, which results in making people and environment invisible and devaluated, the resistance movement, which reclaims and proclaims the construction of the sustainability paradigm, get organized. Among those involved in such movements we find the population of the Jequitinhonha Valley. 3. Place Identity, 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 Jequitinhonha Valley stands as one of the poorest regions of the country. In this condition, the Valley has inspired messianic political initiatives and a long history of developmental projects taken as redemptionist. Since the 1970s a number of industrial proposals have been transforming the diverse landscapes of the ecosystems of the Cerrado, Caatinga and Mata Atlntica with the development of single-crop farming (eucalyptus) and the construction of hydroelectric dams. Within a general framework, we may say that, since the 17th century the regions of the Upper and Middle Jequitinhonha Valley, on the northeastern Minas Gerais state in Brazil, have shown big cattle raising farms, with their partners, aggregates and captives fighting for territory against small family properties led by independent agricultural workers. Based primarily on agriculture, cattle raising and mining, the economy of the region faced critical moments and prosperity. However, despite its importance as a food producer and a supplier for other regions within the state, 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. By the middle of the 1940s and 1950s, deep transformations were observed with the insertion of the regional economy in a broader capitalist market, where the new competitive conditions proved difficult for the traditional regional products to sell. 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, technological and urban parameters, which could only consolidate the image of poverty and misery already attached to the Valley. Therefore, identified as problem area or poverty pocket, the region felt the effects of three fronts of capital modernization: the expansion of cattle raising activities, the introduction of coffee plantations and the implementation of reforestation companies. Supported by policies of fiscal incentives and credit, these fronts promoted meaningful changes in the distribution and access to the land. Reforestation, for example, was implemented in areas of tableland, considered vacant land and offered to private companies by the State for

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______________________________________________________________ exploitation. However, those tableland areas had been traditionally meant for exploitation by local agricultural workers, who lost large bits of land where they practiced collective extractivism and cattle raising . Those policies persisted in the Valley until the 1980s, when a new expansion front was launched with the New Jequitinhonha Program. This program was aimed at disseminating dam construction projects, among those, the construction of the Irap dam, to irrigate the land and generate energy. Justified and legitimated by the image of stagnation and misery imposed on the Valley, the proposals for implementation of hydroelectric dams in the region are still sold as redemptionist. The Irap Hydroelectric Plant, for example, despite facing fifteen years of opposition is already built on the Jequitinhonha river. The dam is 207 meters high, the tallest in Brazil, with a reservoir covering 137,16 km2 in a region of unstable rain falls. The plant affects seven municipalities and have dislocated approximately 1,124 families, or 5,000 people. The license for construction was issued in 2002, against a technical report prepared by the Fundao Estadual de Meio Ambiente (FEAM), the State Environmental Agency, which listed 47 social and environmental conditions not fulfilled by the Companhia Energtica de Minas Gerais CEMIG, the Energy Company of Minas Gerais State. The Murta dam project, on the same river, Irap downstream, has a similar impact on the region, and affects 900 families. Both Murta and Irap 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, who re-elaborate identities and discourses in their fight for acknowledgment and defence of their territorial rights. Such confronting projects reveal the two rationalities in dispute: on the one hand, that of the riverside dwellers, who view the land as communal and family heritage defended by the collective memory and by the rules of resource use and sharing, and on the other, the belief of the Electric Sector, including the State, public and private entrepreneurs who, from a market perspective, view that land as property, therefore a valuable commodity. In this context, it is from the intertwining of the spaces through the power relationships that we understand such conflicts. We may say that the Jequitinhonha Valley has occupied a marginal position in the economic system of the country, as it does not present the material and symbolic conditions valued by the developmental and modernizing project. Its landscape, composed by biomes such as the Brazilian savannahs, Caatinga and Cerrado, has never attracted the same attention given to the Amazon and the Atlantic Forest. Therefore, 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

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______________________________________________________________ specific spot in the agenda of the State - a space to be transformed to attain the objectives of the economic model in force in the country. The image of the Jequitinhonha Valley historically produced by governments and entrepreneurial sectors is impressive. Its various aspects put together create a picture of poverty, misery and stagnation, therefore justifying the implementation of economic projects. The implementation of the UHE Irap, for example, displays a strong political support supplied by the traditional elites of Minas Gerais, revealed in their speeches published in the media, 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. The population of that region of Minas, in agreement with Governor Itamar Franco and Cemig, are prepared to react vigorously against this shameful lack of esteem and patriotism. 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, and the redemptionist character of the plants. Its title is equally meaningful: Guardians of Miser, an offensive against environmental technicians who pointed the social and environmental unfeasibility of the project for the progress of the region. Two opposing ideologies are put here: on the one hand the redemptionist development in the name of the Nation, and on the other, the concept of territorial rights as proposed by the local communities. In the various cases that we analysed, this was the struggle for the right to the environmental space traditionally occupied, for the material and symbolic appropriation of nature, for the definition and acknowledgement of the meanings attached to the territory where wealth and poverty stand face to face. In this matter we have collected a number of statements by the locals affected by the plants, for whom the concepts of wealth and poverty differ from those who argue in favour of an industrial model aimed at the export market. God takes care of the people and keeps a door opened for us. Despite our weakness, our poverty, we have an enormous amount of riches here: our access to rivers, farming, mines, diamond, gold, vegetables and many other things you can find around here. 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. On the other hand, there is the open attestation of wealth

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______________________________________________________________ connected to the environmental attributes of the place, crucial for their survival and the keeping of their way of life, which, in that region combines placer panning and family agriculture. This attestation of weakness, poverty and wealth are present in the statement of another dweller affected by the Irap plant. Because we are weak, just like the people of this area here, they likes to speak that is no important, right.() One of those days my boy talkin to me like that: Ma, you speak that that people of Cemig also says this Valley here is the Valley of Misery It is the Valley of Wealth, Ma! You want to see, Ma, you see from Diamantina up and you sees what is misery, Ma. Theres people under overpasses, theres people under those bridge all, theres people under canvas That is the suffering of misery! Like me myself, Ma, that I lived long in the streets, without possibility this in Braslia without possibility to come back, begging to come backThis is suffering, this is a misery, something saddest in the world. Now not here, here everybodyhas pumpkin, that Our Lady in Heavens, lady! Nobody sells, no, dont sell, theres no street market. You eat, raise pig, give to others, like that! Its corn, andu [beans], string beans, maxixe, peanut, its watermelon, manioc, everything we plant, right? Then its living there! Wealth in a place like that we do not expect of nobody, right? But it is also no misery. ()Like D. Maria... she raised her family everybody here in this place, and she want finish her life here, this is sign of misery? So she raised her childs here, everything here, and everything she raise easy! Only this, right? You see mine too, if want speak like that is poor, is poor, but my childs is all grown! And they raised here. Then to move, like us who is weak already, move to a place we have nothing there, know nothing nobody dont 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, modernity and progress, such as presented in the image of poverty promoted by the State. The position of the State is clearly stated in the final judgement of the Public Civil Action against the construction of the Irap dam proposed by the Public Attorneys Office. In favour of the dam, the Judge argues that:

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______________________________________________________________ As with all enterprises of this dimension, 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, but we cannot say that such dissatisfaction is significant enough to threat the public interest. On the contrary, the explicit lack of natural, 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. What is evident is that those communities will very much benefit from their relocation.19 Based on the adequacy paradigm - environmental damages , which must be alleviatedthe risk of losing crucial environmental space and communal life escapes the understanding of the Judge. The social problems caused by the dam are seen as dissatisfaction to some and is not enough to threat the public interest. Therefore, in the face of the economic and expansionist objectives of the State, the struggle of the communities affected by the plants embodies the rights to self-determination, that is, the right of the collectivity to determine the destination of their territories, and of the construction and confirmation of their own identity. For those communities affected by the hydroelectric enterprises of the Jequitinhonha Valley, the territory is conceived as heritage, while for the ideologies that view the State as guardian of the Nation a global zing entity, thought of as homogenousit represents the sovereignty of the State, therefore a strategic resource, or commodity embodied by the hegemonic developmental ideology. The meaning of heritage poses a challenge to the legal system of the State, as it claims not only the individual rights but also the acknowledgement of communal rights. After all, in the regions of the Upper and Middle Jequitinhonha Valley, the take over of land and resources, known as terra no bolo , includes areas of collective and family use, where inheritance does not imply division of the land therefore keeping it undivided for family use, as shown in statements obtained during interviews. I: We is nine brothers. Theres this one here, who is my brother, theres that one over there, in that first, near Fatinha, Manoel who has in that corner [of the street] who is my brother. Theres two sisters here: one widow and a single girl. And the others died already. (...) Q: After your fathers death, did the brothers take over separate parts of the Prachedes?

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______________________________________________________________ I: For everybody...work here, it was mixed up, never divided. But each one has his own payroll, pays documents [taxes]...any way...everybody works here. Q: Does the land belong to the family? I: It belongs to the family. And even kept the same name, Prachedes.20 This subject is also present in other interviews: Q: And the inheritance of each son, is it split? D: No. No. Those 30 ha were purchase. We, five brother, associate painfully working until late at night in So Paulo. I lived four year within a big city, that So Paulo, for example that we were together andjoining the strength increases, right? And we buy [a piece of land] close to my father. Its so that those who is in So Paulo,they works thereits painful too and they says: no, you pays tax, you can use. The day you can buys, you buy from me, I sell it only to you. I do not sell to others out of the family, I sell only to you, right? 21 In this sense we have observed that the sense of heritage goes beyond the hegemonic notion of property, as it involves subjects and collective rights as well as restrictions to regular sales transaction. In the struggle to keep their heritage, the community promotes its own reconstruction as a collective sphere of existence supported by their effort to occupy, use, keep and identify their territory. The dynamics of territory defence becomes a unifying element for the group who then creates a discourse, which portrays them as a community, therefore, us. This pronominal category was emphasized in some of the statements produced during the Public Hearing about the Murta dam, which witnessed a clash between the communities affected by the project and the companies in charge of the construction. Our lands are productive, our lowlands, our rivers, where we have our vegetable gardens. We cultivate everything, 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; we do not want to be invaded by a dam. Our community are fifty families and all of them live independent, we do not need to run away from here because of a dam. 22

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______________________________________________________________ We dont want this dam and we are sure that this lot of people here do not want it, because the best place in the world for us is here. Here we have our plantation, we cultivate corn, beans, we raise pigs.23 The conflicts created by the appropriation and signification of the territory lead to the emergence of the alterity. The place is self-defined diacritically in relation to the territorial ideologies held by the Electric Sector (State, entrepreneurs and consultants), and emerge as a sphere of spatial belonging and construction of political and social identities. As the group appears as a collective agent within the context of political dispute, grows a process of reconstruction and re-signification of the territory now presented as a place. In these contexts, the collective memory created and recreated through times is intensified and gains prominence reinventing the past. 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, capable of uniting the collectivities that acknowledge that space as a common place. It is as place that the territory becomes important and vital to the communities. 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, well stand and fight to stay in our place. I dont want the dam, we have to consider this land as our mother, because it raised us and is going to raise our kids and grandchildren. This is what we need, this is what we are interested in.24 Our great great grandparents, all of them lived together here at the Mutuca [local community] for a period of one hundred and thirty years, and never had to go anywhere else, never needed a dam and never heard of it. My mother is ninety years old, raised her children, my father died at the age or seventy-three, and lived quietly here without ever having to go anywhere. And us, who are the youngest, I am forty-nine years old, we are happy. 25

Developing along with the licensing process of hydroelectric enterprises, we find processes of socio-political construction of the concept of place opposed to the meanings produced by the State and the entrepreneurial sectors. Apart from the notion of place, the scenario that develops from the industrial

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______________________________________________________________ projects only bears the social and environmental costs of the projects. Through the flows of capital and technology demanded by those projects, the location is transformed into a space for transnational production, a true nonplace, that is, a homogeneous context that could be reproduced in any other space, having no real attachment with the location, thus losing whatever sense or significance to the groups. In such contexts, processes of individual or collective identification cannot be found anymore. The space of the nonplace does not create individual identities or relationships, but merely solitude and similitude. 4. The Fight for Territory Appropriation and the Use of Violence In this battlefield, where the different positions hold uneven forces, confrontation resulting in the use of repressive violent police force becomes common therefore promoting radical reactions from the locals. During the licensing process of the UHE Irap, for example, the non-compliance with the norms imposed by the environmental department concerning the relocation of the families affected by the construction of the dam, led those families to occupy the CEMIG headquarters in Belo Horizonte26. Although the demonstration was meant to be peaceful, besides the massive line of guards, the company requested the presence of a police squad, who blocked the entrance of the building and caused the demonstrators to confront them. Therefore, under great tension and after a round of negotiations, the families finally were allowed into the company headquarters while the police squad stayed in the area. Angry, the demonstrators demanded that the police be removed from the area before they started the meeting. 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, just like my friend Eduardo [FETAEMG] today. He was pushed by a colonel who says he is police of I dont-know-who. And, in reality, I would like to remind you that if those cops was a bit humane, they would read the writing on those strips of cloth. 27 [...] Out here there are policemen wearing protective vests and carrying rifles. Look at those people here [talking to CEMIG President], there are ladies older than sixty here, president. There are police cars there. Are there outlaws here? There are newborns here, Mr. President. Dont put us to shame because nobody here deserves this. [] Nobody is taking anything from this company, not a single plastic

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______________________________________________________________ glass, see?[] We wont start until you remove those policemen from out there. 28 When CEMIG comes to my place I offer them a glass of coffee. And when I come here, seeking my rights, they beat me on the head [a shame to beat a grey-haired lady shouted the demonstrators in the audience].That is not the way we people do it, we people have to treat the human well, not bad. Ya is treating us people as animal. I aint paying to leave. Its you that has to pay me. Seems ya is treating us this way like dumb. We aint dumb no. We are weak, but we are for the thing its our. We not depend on government to treat us no, because Im brave to work, ya look at my hand [showing his callous hands]. [...] I never came here in Belo Horizonte and today I came because I want to know of my right.29 However, in the context of the hegemonic project of sustainability defined under the adequacy paradigm, such claims made by the locals concerning the observance of their rights have been neglected to this moment. Therefore, despite the various instances of violation of deadlines and rules established in the Agreement, and against its historical action concerning the situation of the dwellers, 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 So Paulo Stock Exchange (BOVESPA). Besides, CEMIG was awarded the Prmio Furnas Ouro Azul31 in the category Utilities Company for the construction of the Irap Hydroelectric Plant. We observe, however, that while operating within the prevailing view of development, 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. For fear that the threats and pressures imposed on them, both implicitly and explicitly, may yield reactions involving physical violence, 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. Such a scenario is recurrent in other areas of the country, as shown in the actions of the military police and the Army during the demonstrations of March 14, 2005. On that International Day of Demonstrations against Dams, those actions included violent repression and imprisonment of leaders during the demonstrations held by the dwellers affected by the Jurumirim

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______________________________________________________________ Dam, in the Minas Gerais State, the operation led by the 23rd. Jungle Cavalry Squad of the Brazilian Army at the Tucuru Hydroelectric, in the State of Par, to hinder mobilization in the area, and the preventive imprisonment of 06 agriculturists affected by the Campos Novos Dam, in the State of Santa Catarina. In this sense, together with the continuous silencing of the local forms of signifying the territory, 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. Their exclusion in face of the licensing process, 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. Therefore, the incompatibility between those two confronting rationale yields actions and reactions marked for violence in contexts where fear, lack of support, silence, belief in radical strategies to ensure their rights and demands plus the uncertainty concerning threats of compulsory dislocation prevail among the dwellers. 5. Final Comments The specific way of insertion of the developing countries, of Brazil mainly, in the mundialization system, 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. This dynamics shows in the profile of the Brazilian development and indicates the aggravation of the inequalities concerning the distribution of economic advantages, environmental impacts and risks resulting from this type of capital organization. In this sense, the polarization of wealth is made pari passu the recurrence of the environmental injustice and the increase of the conflicts. 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. In this scenario, 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, therefore liable to private appropriation for the generation of wealth aimed at exportation. On the other hand, such forces face the local resistance and resignification movement made explicit in the discourse of the locals affected by the electric dams. The struggle between those two diverging viewpoints, however, ends up invariably in violent confrontation. However, against a hegemonic discourse on development, the concept of environmental justice is intended to overcome that of economic

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______________________________________________________________ rationality, thus introducing a sense of justice that does not comprehend the equal distribution of parts alone. The notion of equity does not concern monetary valuation, or resource commensurability, or even equivalence of needs, but offers for discussion the acknowledgement of the distinct cultural meanings attached to the territory, therefore being connected to the principles of diversity and democracy. In this perspective, the conflict created by the implementation of hydroelectric plants is an example of the struggle for environmental justice, and exposes the dispute around the social reappropriation of nature in search of acknowledgment of alternative social and productive projects, including the various meanings attached to wealth and development.

Notes
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, Brazil. We thank the support of the research agencies - FAPEMIG and CNPq during that period. 2 President Luis Incio 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 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 were having in dealing with issues related to environment, Public Prosecution Service, quilombolas, Indians and the Audit Court to design a package (Sources: Agncia Carta Maior and Ambiente Brasil). 3 Data supplied by the National Electric Power Agency (ANEEL). Available at <www.aneel.gov.br>. 4 A sample case is the one of the North American group AES (Allied Energy Systems Corporation). In Brazil, their investments include the acquisition of old state-run electric companies such as CEMIG and ELETROPAULO, and the creation of joint ventures with direct investments in the construction of new hydroelectric plants, as is the case of the AES Minas PCH Ltd.., and the AES Tiet S.A., the latter being the ninth largest group of installed capacity in the country. 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 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
1

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______________________________________________________________ services; (b) free trading or exclusive consumption in business and industrial installations belonging to the generator, granted the commercialization of the energy exceeding. 6 The public hearing organized by DHESC Human, Cultural, Social and Economic Rights Platform - at the Minas Gerais State House of Representatives on August 6, 2004 brought about several instances of human rights violation to the environment in a number of areas of the Minas Gerais State. 7 Dam built on the Rio Doce river, Minas Gerais State, by the Candonga Consortium aimed at generating electricity exclusively to meet the demands of the companies involved in the Consortium: ALCAN Alumnios do Brasil and Companhia Vale do Rio Doce. Refer to Barros & Sylvestre (2004). 8 Surprise eviction promoted by the Federal Police destroys two villages and leaves nine people injured in Aracruz. (Source: Catholic Indian Mission Council 01/20/2006 Available at <www.cimi.org.br>) 9 For more details refer to People affected by the UHE Fumaa 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. In Boletim MAB, September 2004. On 09/09/2004, around 250 people affected by the construction of the Fumaa and Candonga Hydroelectric plants occupied the yard of the Alcan Alumnios do Brasil in Ouro Preto, Minas Gerais. (Source: Boletim do Movimento dos Atingidos por Barragens). 10 Dweller affected by the construction of the Candonga Hydroelectric plant confirms he has been threatened, Boletim MAB, abril de 2004. 11 Refer to Arrests and violence against population affected by dam constructions, a campaign promoted by the Movement of People Affected by Dams in March 2005. Also refer to ENERCAM Consortium determines arrest of agriculturists affected by the construction of the Campos Novos Dam, a letter prepared by the Movement of People Affected by Dams on 03/13/2005. 12 Military Police violence against 6 women affected by dam construction on the International Womens Day.in the city of Rio Casca, Minas Gerais State. Two women were pregnant Bulletin distributed by the Land Pastoral Commission (CPT-MG) on 03/08/2005. 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 Joo Caetano dos Santos disappeared on February 09, 2003 in the construction site of the Candonga Hydroelectric plant located between the municipalities of Santa Cruz do Escalvado and Rio Doce, in the Minas Gerais State.

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______________________________________________________________ Refer to < www.global.org.br/portuguese/arquivos/joaocaetano.html>. There is an increasing demand for energy made by the electro-intensive sectors (aluminum, ferroalloy, steel, paper, cellulose among others). According to Bermann (2003), the electricity incorporated into those products represents 7,8% of the total consumption in the country (base year : 2000). 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, and for non compliance with the formal duration of the process. Such a report was included in the voting docket of the COPAM Conselho Estadual de Poltica Ambiental State Council of Environmental Policy meeting in February 2004, but was immediately removed following a decision of the State Secretary for Environment, Jos Carlos Carvalho, without any justification. To this moment (January 2007), that technical report has not been voted. For more on the relationship between COPAM/FEAM, refer to Zhouri, Laschefski & Paiva (2005), as well as Carneiro (2005). 16 Speech delivered by Murilo Badar, President of the Academy of Letters of Minas Gerais, published in the newspaper Estado de Minas, a few days before approval of the license for installation of the UHE Irap, on 04/25/02. mphasis ours. 17 Statement by a dweller affected by the UHE Murta during a Public Hearing, on 10/15/2002 emphasis ours 18 Statement collected by Ana Flvia Santos, anthropologist of the Federal Public Attorneys Office. The subject is a local woman, affected by the construction of the Irap dam in 2002 emphasis ours 19 Document issued by the Judge of the 21st Civil Court/MG, in 2002, p. 10. Emphasis ours 20 Interview with Mrs. I., in the Prachedes community, Municipality of Coronel Murta/MG 21 Interview with Mr. D., in the Mutuca de Cima community, affected by the UHE Murta 22 Statement produced by Mrs. M., affected by the UHE Murta, during the Public Hearing, on 10/15/2002. 23 Statement produced by Mrs. S., affected by the UHE Murta, during the Public Hearing, on 10/15/2002 24 Statement produced by Mr. J. L., dweller affected by the UHE Murta 25 Statement produced by Mrs. M., dweller affected by the UHE Murta. 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. 250 people affected by the dam together with their advisors were involved in the occupation (NGO Campo Vale
14

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______________________________________________________________ Advising Center for the Peoples Movement of the Jequitinhonha Valley), institutional partners (FETAEMG Minas Gerais State Agriculturists Federation, CPT Land Pastoral Commission, CEDEFES - Eloy Ferreira da Silva Data Center, GESTA/UFMG Environmental Issues Study Group of the Federal University of Minas Gerais, SINDIELETRO - Minas Gerais Electric Sector Workers Inter-municipal Union) Refer to Zucarelli (2006 27 Z Francisco, Commission of People Affected by Dams - community of So Miguel, 02/04/2004 Statement collected by Zucarelli - Refer to Zucarelli, 2006. 28 Richarles Caetano Rios, attorney for Campo Vale, 02/04/2004 Statement collected by Zucarelli Refer to Zucarelli, 2006. 29 D. Maria, who lives by the Jequitinhonha River, affected by the Irap dam Statement collected by Zucarelli Refer to Zucarelli, 2006. 30 The Dow Jones Sustainability Index intends to identify those companies that display acknowledgeable corporate sustainability, capable of creating value for their shareholders in the long term, as those companies seize the opportunities and manage the risks associated to economic, environmental and social factors. The selection considers not only the financial performance of the companies but mainly their quality and the continuous management improvement, which must integrate their environmental and social operation as a means to keep sustainability. (Source:<www.cemig.com.br>). 31 The award is sponsored by Furnas Centrais Eltricas (Furnas Hydroelectric Company), the newspapers: Estado de Minas, Correio Braziliense and Jornal do Comercio, to prize the best projects of preservation and rational sustainable use of the water by companies, communities, governments, citizens and students. (Source: <www.cemig.com.br)

Bibliography
Acselrad, H.,. Conflitos Ambientais no Brasil. Relume-Dumar, Rio de Janeiro. 2004. Acselrad, H; Padua, J.A. et Herculano, S., Justia Ambiental e Cidadania. Relume-Dumar, Rio de Janeiro. 2004. Acselrad, H. Justia Ambiental: ao coletiva e estratgias argumentativas. In. Anderson, B.. Imagined Communities. Reflections on the Origins and Spread of Nationalism. Revised Ed, Verso, London. 1991

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______________________________________________________________ Auge, M. ,No-Lugares: Introduo a Uma Supermodernidade Papirus Editora, Campinas, 2003. Antropologia Da

Barros, J. N. & Sylvestre, M.,. Atingidos e Barrados: as violaes de Direitos Humanos na Hidreltrica Candonga. Rio de Janeiro: Justia Global; Ponte Nova: MAB. 2004 Bermann, C., Energia no Brasil: Para Qu? Para Quem? Crise e Alternativas Para um Pas Sustentvel. Livraria da Fsica/FASE, So Paulo, 2002. Bourdieu, P. O Poder Simblico. TOMAZ, Fernando (Trad.) Bertrand Brasil, Rio de Janeiro. 2002. Chesnais, F. A Mundializao do Capital. FO, S. F. (Trad.) So Paulo: Xam. 1996. Chesnais, F. & Ser, C. Ecologia e Condies Fsicas da Reproduo Social: alguns fios condutores marxistas. In. Revista Crtica Marxista, n.16. Centro de Estudos Marxistas. Campinas, 2003, Disponvel em <www.unicamp.br/cemarx/criticamarxista.> Galizoni, F., A Terra Construda: famlia, trabalho, ambiente e migraes no Alto Jequitinhonha, Minas Gerais. Dissertao de Mestrado, USP/FFLCH, So Paulo. 2000. Gupta, A. et Ferguson, J. Mais Alm da Cultura: espao, identidade e poltica da diferena. In: Arantes, A. (dir.) O Espao da Diferena. Papirus, Campinas, 2000 pp. 30-49. Halbwachs, M. A Memria Coletiva. Vrtice, So Paulo. 1990. Little, P. Territrios Sociais e Povos Tradicionais no Brasil: por uma antropologia territorialidade. In. Simpsio Natureza e Sociedade: desafios epistemolgicos e metodolgicos para a antropologia, 23 Reunio Brasileira de Antropologia, Gramado, Rio Grande do Sul - Brasil. 2002 Lemos, C. F. Audincias Pblicas, participao social e conflitos ambientais nos empreendimentos hidroeltricos: os casos de Tijuco Alto e Irap. Instituto de Pesquisa e Planejamento Urbano e Regional (IPPUR/UFRJ), Rio de Janeiro. 1999.

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______________________________________________________________ Martinez-Alier, J. Justia Ambiental (local e global) In. CAVALCANTI, Clvis (dir.) Meio Ambiente, Desenvolvimento Sustentvel e Polticas Pblicas. Cortez, So Paulo, 1999, pp. 215-231. Opschoor, J.B. Ecospace and the Fall and the Rise of throughput Intensity. In: Ecological Economics, 15(2), 1995. pp.137-140. Ribiero, R., Campesinato: Resistncia e Mudana O caso dos atingidos por barragens do vale do Jequitinhonha. Dissertao de Mestrado. UFMG, Belo Horizonte. 1993 Santos, A. F. M. A Comunidade de Porto Cors e os aspectos socioeconmicos do processo de licenciamento da UHE Irap Vale do Jequitinhonha MG. Procuradoria Geral da Repblica MG, Belo Horizonte. 2001 Siguad, L.; Martins-Costa, A. L. et Daou, A.M. Expropriao do campesinato e concentrao de terras em Sobradinho: uma contribuio anlise dos efeitos da poltica energtica do Estado. In. Cincias Sociais Hoje. ANPOCS/ Vrtice/ Editora Revista dos Tribunais, So Paulo, 1987, pp.214-290. Sousa, R. S., Direitos Humanos atravs da histria recente em uma perspectiva antropolgica. In. Antropologia e Direitos Humanos. Editora da Universidade Federal Fluminense, Niteri/RJ, 2001, pp. 47-79. Zhouri, A. Laschefski, K. & Paiva, A. Uma Sociologia do Licenciamento Ambiental: o caso das hidreltricas em Minas Gerais. In. ZHOURI, A. LASCHEFSKI, K & PEREIRA, D (Orgs.). A Insustentvel Leveza da Poltica Ambiental: desenvolvimento e conflitos socioambientais. Belo Horizonte: Autntica, 2005, pp.89-116. Zhouri, A. Hidreltricas e Sustentabilidade. Anais do SeminrioTeutoBrasileiro de Energias Renovveis, Fundao Heinrich Boell, Berlim, 20032-3 de junho. www.boell.org.de Zucarelli, M. Estratgias de Viabilizao Poltica da Usina Hidreltrica de Irap: o (des)cumprimento de normas e o ocultamento de conflitos no licenciamento ambiental de hidreltricas. Dissertao de Mestrado em Sociologia., 2006 FAFICH/UFMG.

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______________________________________________________________ Andra 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.fafich.ufmg.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).

Mechanisms for Achieving Environmental Justice in Darfur Seisei Tatebe-Goddu

Abstract Environmental damage inflicted during armed conflict has lasting repercussions on a states economy, food security, and social cohesion. For these reasons and to ensure that the conflict does not continue or resume, addressing environmental crimes is an important part of pursuing justice in the post-conflict context. Environmental crimes perpetrated in Darfur are used as a case study to highlight the limitations of appealing to the International Criminal Court (ICC). In Darfur, environmental crimes include the deliberate destruction of arable land, contamination of potable water, and the effects of a significant displaced and refugee population. This paper analyses the International Criminal Courts jurisdiction over environmental crimes, 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. 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. The paper assesses whether the ICC is able to satisfactorily evaluate and judge environmental crimes. Alternatives are examined, ranging from the revision of current language and norms to the creation of a separate legal entity to deal with environmental crimes. Key Words: Environmental law, environmental justice, environmental crime, environmental damage, Darfur, human rights, conflict resolution, 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. 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.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. One example of this exists within the Rome Statute, the legal framework of the International Criminal Court (ICC). Article 8(2)(a)(iv) defines a war crime as the extensive destruction of 1.

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______________________________________________________________ property, not justified by military necessity and carried out unlawfully and wantonly.2 Another example lies in Article 8(2)(b)(ii), stating the intentional directing of attacks against civilian objects which are not military objectives.3 Under Article 6(c), which deals with genocide, the Rome Statute prohibits deliberately inflicting on those groups conditions of life calculated to bring about their physical destruction in part.4 While these articles do not specifically mention the word environment, they seem to offer protection of some elements of the environment that are considered property (i.e. land, wells, dams, 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, water resources, open seas, and the atmosphere.5 It is clear that even if current legal norms were used to pursue environmental justice, the current system would have to be substantially modified. Roberts presses for this modification of existing legal provisions and their improved implementation. He stops short of advocating a new convention, however, arguing that this would detract attention and resources from more pragmatic approaches. In his opinion, the environmental legal community should be focusing attention on negotiating issue-specific agreements (i.e. on the use of landmines), pushing wider adherence to existing treaties, and pursuing a better system of investigation of and assistance for environmental damage.6 By focusing only on what is feasible, however, he loses sight of the purpose of including the environment in legal provisions at all. In pursuing justice, we are not only pursuing the incarceration and punishment of wrongdoers who commit environmental crimes. Nor are we merely seeking the incidental protection of the environment. When we pursue environmental justice, we state that it is unacceptable for weaker members of a community to bear the brunt of environmental burden. 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. Ultimately, mechanisms such as the International Criminal Court are used as complementary tools to achieve peace. Under this wider goal, the international community should, as Falk states, consider that which seems necessary rather than content themselves with what they deem possible.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. Even if the Rome Statue was modified and definitions clarified, the likelihood that crimes in Darfur would trigger prosecution by the ICC on an environmental basis remains unlikely. It is not even clear if the ICC is the appropriate mechanism to use in pursuing environmental crimes. And yet the

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______________________________________________________________ environmental situation in Darfur could trigger long-term ecological collapse and is certainly severe enough to warrant a preliminary investigation. As we struggle with how to address environmental crimes, it is the violations in places like Darfurthe ones that fall within the gaps in the Rome Statute between international versus internal conflict, between what is widespread, severe, and long-term and what is not, between strict intentionality versus negligencethat will continue to be perpetrated with impunity. Darfur In order to understand why the ICC is not an adequate legal mechanism for addressing environmental damage in Darfur, one must understand the specific role that the environment plays in Sudan and specifically in the conflict in Darfur. Environmental resources form the foundation of peoples lives, livelihoods, and cultural identity in Darfur.8 This paper does not suggest that environmental factors were the only cause of the conflict in Darfur, or that it is the only issue to be resolved in seeking justice for Darfur. However, 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. Its failure is in part driven by the fact that it did not address many underlying issues, such as land tenure and use.9 Recent research has effectively argued that environmental resource scarcity by itself is not necessarily a trigger for violent conflict.10 While the Darfur conflict has its roots in a vulnerable resource environment and increasing climate change, there is an interaction of a wider and more complex set of environment-related issues: cultural identities defined by a land tenure system, the political manipulation and neglect of groups with competing resource needs, the breakdown of traditional environmental management systems, and deliberate environmental damage.11 3. Overview: 2003-2008 The beginning of the conflict is often attributed to the February 2003 Darfur Liberation Front (DLF, mainly comprised of members of the Fur, Massalit, and Zaghawa tribes) attack on Golo, the headquarters of Jebel Marra. Over the following months, the DLF (later becoming the Sudan Liberation Army/Movement (SLA/M)) intensified their approach with a successful string of attacks, including the April 25 attack on a government base in el-Fasher. Their main grievance was years of economic, political, and social marginalisation by the Government of Sudan (GoS). The response of the GoS was systematic. Not having the ability themselves to retrain the government military in desert operations, the GoS used the Janjaweed, an Arabic militia of nomadic camel-herders, as a 2.

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______________________________________________________________ paramilitary force. The Janjaweed, funded and armed by the GoS, quickly gained the upper hand. The effect of the Janjaweeds scorched earth tactics was devastating. Government and Janjaweed forces destroyed everything that made life possible.12 The Janjaweed systematically destroyed fields, contaminated shallow wells, cut down trees, and killed those who tried to protect their livestock or salvage food stores. By 2004, several thousand had died as a result of the war and an estimated one million had fled their homes.13 Three years later, UNHCR reported that the numbers had escalated to 200,000 deaths, 240,000 refugees living in 12 camps along the Chad-Sudan border, and 2.4 million internally displaced (IDPs).14 In May 2006, the GoS and one faction of the Sudanese Liberation Army (SLA), led by Minni Minnawi, signed the DPA. But the failure of the DPA to receive the support of the other rebel factions resulted in a further splintering of the rebel movement, and consequently of their demands, and has been called a failure, too limited in scope and signatories.15 Despite the signing of the DPA, violent conflict intensified in the second half of 2006.16 Attacks on IDP and civilian populations have continued throughout 2006, 2007, and the beginning of 2008. In December 2007, JEM took control of several key villages near El-Geneina in West Darfur. On 8 February 2008, the Janjaweed attacked the villages, burning the towns to the ground and scattering almost 44,000 IDPs.17 UNHCR estimated that 10,000 people have crossed the border into Chad in recent months and another 160,000 have been cut off from aid.18, 19 The refugee agency has been watching the situation deteriorate with growing concern, particularly after they were blocked by gunmen from moving 179 Darfurian families to safer formal refugee camps in eastern Chad.20 Most recently, an IDP camp sheltering 4,0005,000 people in West Darfur was bombed, forcing UN staff members to relocate.21 In early February, the UN Special Envoy, Jan Eliasson, reported that the situation is running out of control, implying that talks cannot continue within the current atmosphere of violence against civilians.22 4. Environmental Factors The origins of the Darfur conflict started well before 2003, the events of which were merely symptoms of a larger and deeply-rooted problem. While the scale of violent conflict was unprecedented, skirmishes and tension had been steadily growing for decades. Alex de Waal and Julie Flint date the escalation of rising tensions as far back as 1967 or 1968 (records are unclear) and which, unresolved, were at least indicative of the potential for steadily worsening relations between the two groups.23

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______________________________________________________________ The conflict between the Zaghawa and Arab herders started over a livestock theft and intensified into a three-day armed encounter. Eventually the government had to intervene and the case took two years to resolve. In the following years, traditional forms of cooperation came to an end, with the Zaghawa, Kaitinga, and Tunjur no longer entrusting their camels to the Arabs for the northsouth migration, and Zaghawa herders instead taking care of the camels from the villages.24 The evidence supporting the environment-based conflict theory is growing. In a recent statement, the United Nations Secretary-General stated that: almost invariably, we discuss Darfur in a convenient military and political shorthandan ethnic conflict pitting Arab militias against black rebels and farmers. Look to its roots, though, and you discover a more complex dynamic. Amid the diverse social and political causes, the Darfur conflict began as an ecological crisis, arising at least in part from climate change.25 The response to the Secretary-Generals comment was critical. Eric Reeves countered that it is essential to understand how badly Khartoum has failed areas on the geographic periphery, how badly it has managed its agricultural sector, and how brutally it has treated people in the marginalized areas.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.27 However, the truth lies somewhere between the two statements. It is clear that the conflict has evolved to include much more complex issues such as cultural identity, political power and representation, and distribution of wealthconflict over land is one of the major reasons for the war in Darfur.28 However, 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. A. Physical Environment Conflicts in this region have centred on ownership of and access to water and land. In order to understand the struggle over land and water, one must understand the physical environment and environmental management decisions that resulted in the region being so poor in natural resources. Darfurs environment is particularly vulnerable. The region has in recent years suffered from high natural variability and unpredictability.29 This is a dilemma for the majority of its people, who rely on environmental resources as the foundation of their subsistence economy.

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______________________________________________________________ The region straddles the edge of the Sahara and the Sahel, a semiarid tropical savannah, cuts through the centre of the region, forming a narrow transitional corridor of agricultural productivity. Even though the Sahel experiences 8-11 dry months of the year, the bulk of agriculture in Sudan is practiced within and to the south of the Sahel belt.30 Western Darfur is dominated by basement rock, which cannot be farmed but provides sporadic forest cover for grazing animals. To the north, the region straddles the edge of the Sahara, which has been steadily expanding southwards. The eastern half of Darfur is composed of plains and low hills of sandy soils. The area can only be inhabited only where there are water reservoirs or deep boreholes. 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.31 There is one rainy season, lasting from June to September. A significant drop in rainfall occurred in the late 1960s and early 1970s, and records show that rainfall has never recovered to the level before this period.32 Another severe drought occurred in the 1980s, with levels stabilizing in the 1990s, but it appears that rainfall during the early 2000s again decreased.33 In other words, average rainfall has decreased overall by one-third in the last 80 years.34 Meanwhile, Darfurs population has increased six fold over the past 40 years to 6.5 million.35 In a region as arid as Darfur, droughts have devastating consequences on local economies and on the people who try to make a living from the land. 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 deserts edge.36 Just a few percentage points of reduction in rainfall can translate into a loss of up to 20 percent of agricultural production.37 In addition to a decline in rainfall, the geology in Darfur is ill-suited for groundwater storage, increasing the populations vulnerability to any fluctuation in water availability.38 Essentially, geology makes it difficult if not impossible for aquifers to recharge quickly enough to meet demand. It is important to understand that in regions like Darfur, water cannot necessarily be considered a renewable resource. Over time, the aquifers may recharge. But it is possible, if not likely, that this would not occur over the lifetime of the current generation of Darfurians. For that generation, the resource is basically a non-renewable one. Droughts have been part of the history in Darfur for generations of people. The most severe drought occurred in 19801984 and was accompanied by mass displacement and localized famine. Less severe droughts were recorded in the 18801890s, 1913, 1960, 1967, 1990, 1991,

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______________________________________________________________ 1993 and 2000.39 It is a devastating cycle: drought can trigger conflict, as people search for scarce resources and are condensed into smaller areas, and conflict can trigger famine when people are deprived of coping mechanisms such as the fragmentation of social nets, physical displacement, and the destruction of crops and food stores. B. 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.40 Climate change models consistently indicate that climatic variability will increase and length of growing periods will decrease. The result will be a reduction in agricultural yields and an increase in crop failures. 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.41 Desertification has been singled out as Sudans biggest environmental problem, with the desert expanding southwards by 50 km to 200 km since the 1930s, or an average of 100 km in the last 40 years.42 This does not bode well for Darfur, on the edge of desert, and its ability to adapt to such drastic changes. While the last 40 years of nearly continuous drought and famine have shown the Darfur people to be resilient, the absence of infrastructure, investment, and environmental management will inevitably take a high toll. 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. Unfortunately, Darfurians have little control over the first type, even though they and other vulnerable populations will be the first to feel its effects, and disproportionately more than those who are at the heart of anthropogenic climate change. However, they do have some ability to mitigate the second and third types. UNEP found that virtually all areas inspected were moderately to severely degraded, principally because of deforestation, overgrazing, and erosion.43 These three activities, combined with cultivation of land, result in

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______________________________________________________________ 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. The southern and eastern parts, in contrast, are characterized by clay soil, which is more resistant.44 These areas must be managed better in order to minimize conflict and prevent further degradation. C. Land Tenure The harsh physical landscape of Darfur has formed the backdrop for a recurring theme: localized conflict over resources. In the seventeenth century, Sultan Musa Ibn Suleiman, the second ruler in the Keira dynasty, introduced a system of land management that allowed for some political stability. Suleimans concept of land tenure, frequently referred to as the hakura system, was used by the sultans to grant estates to office-holders and immigrant holy men.45 The hakura was divided into two types: an administrative hakura, giving limited rights of taxation over people occupying a certain territory, and a more exclusive hakura that gave the title holder all rights for taxes and religious dues. The first type was usually granted to tribal leaders and later became known as dars (tribal homeland). Administrative hakura confirmed communal ownership of land for a given group of people under the leadership of an individual. The individual could often be a tribal leader in which case he exercised jurisdiction on behalf of his people. Alternatively, people would congregate in his hakura and thereby identify themselves with the hakura.46 The second hakura was used to reward individuals for services. This type of hakura tended to be larger than the tribal 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.47 Nomadic tribes were able to negotiate the right to travel through corridors in land occupied by tribal groups. This was especially important for the northern Darfur nomads, primarily the Abbala, who were not granted their own dars. The British sought to formalize the hakura system by introducing Native Administration in 1916, where the authority of tribal leaders was recognized and they were allowed to continue their traditional roles. The system essentially divided the Darfur tribes into two groups: land holding and non-land holding. The former included the sedentary groups and the cattleherding tribes in southern Darfur. The latter included the Arab camel nomads in the north and immigrants from Chad who were driven by drought or political instability to Darfur.48 The history of indigenous administration allowed future administrators to mediate conflicts between agriculturalist and nomadic pastoralist groups.49 Before the 1967 clashes indicated by de Waal and Flint, livelihood and kinship were relatively fluid. If a Fur or Tunjur villager acquired many

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______________________________________________________________ animals and chose to migrate with them, he might call himself Zaghawa or even Arab, in line with his livelihood.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. The main challenge to traditional land tenure has come from migration, especially north to south migration because of the desertification in northern Darfur. This has led to widespread settlement of northern Darfurians in other parts of Darfur as well as the immigration of Chadians, including large numbers of nomads.51 In 2006, SLM negotiators insisted that many problems had arisen in recent years because certain nomadic groups had tried to open up new migration routes, cutting through farming areas and impinging on the land rights of other groups.52 There is a third group that has played a strong role in precipitating conflict in some statesthe mechanized farmers. While mechanized agriculture has not played a direct role in triggering the Darfur conflict, 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.53 D. Abolishment of Native Administration In 1971, Native Administration was abolished by President Jaafar Nimeiri. With it came new land legislation that dispossessed people of their land so that it could be used for mechanized farming.54 While Darfur was not subject to the mechanized agricultural schemes that many other states were, the land laws were designed to undermine local, traditional authority. At the same time, Khartoum denied the regional government the financial and political means to address famine and resource conflicts. In the 1990s, the decline of tribal authority continued when, in February 1994, the Minister of Federal Affairs reconstituted Native Administration, but also reorganized the administrative units of Darfur into three separate states: North, West, and South. This reshuffle effectively divided the Fur, Darfurs largest ethnic group, into a minority in each state, undermining their traditional ethnic administration system. New governors were appointed and the hereditary sultan of Dar Masalit replaced with Arab leaders who suddenly had the power to appropriate Masalit land.55 E. 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. The lack of dispute

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______________________________________________________________ resolution mechanisms coincided with a rise in the regional population growth rate of 12 per cent per year. The sudden rise in population growth is indicative of large-scale migration into Darfur from the north, which in the 1970s was experiencing the regions first significant drop in rainfall. Poor environmental management was being driven by a rising population which, at the same time, was trying to crowd into rapidly diminishing areas of arable land. As Darfurians from the north moved south into the more productive Sahel belt, tension between the farmers and pastoralists worsened. 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. As demand soared, supply began to diminish. The population soon felt the pressure from desertification and deforestation, brought about by the increase in population, agricultural expansion, and the rise in livestock populations. 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. They maximized herd size to provide a buffer against drought, moved into and grazed their livestock on cropland without consent, and reduced the competition by forcing other pastoralists and farmers off previously shared land.57 The lack of a coherent environmental management structure took its toll. A study conducted as part of UNEPs Post-Conflict Environmental Assessment concluded that there had been widespread deforestation, an increase in rain-fed agriculture, and a reduction in open rangeland since the 1970s.58 Current farming methods are rain-fed and poorly managed, leading to large-scale forest clearance, land degradation, and loss of wildlife. There has been a loss of nearly 12 percent of Sudans forest cover in only 15 years; in Darfur alone, the forest cover shrank by one-third in the last 30 years.59, 60 Livestock populations soared from 27 million in 1961 to 135 million today and contributed to the rapid deforestation. Attempts to work together exist, but they are not part of a formal system of environmental management and cooperation. Near Damrat Surmi, one of the nomad encampments, Arab chiefs have agreed to revive a peace committee to manage resources in conjunction with local leaders of African tribes. The Arabs had agreed to pay for damage done to crops by their cattle, saying that when the war ends, the government will leave us on our own. If we cant share this land... then no one can live.61 Recent claims that there might be an underground lake have been met with hope and scepticism. Assuming that the water is thereseveral

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______________________________________________________________ geologists have been doubtfulit is possible that a plentiful water source could minimize some of the tension between farmers and pastoralists. What is more likely to happen, however, is a repeat of the failed drilled wells and their disastrous consequences in the 1980s. The government dug deep wells to mitigate the drought that had swept through the region. The new water source attracted large numbers of pastoralists. Their animals could not be restrained and damaged the surrounding fields that farmers were dependent on for their survival. As their crops were destroyed, the farmers bred their remaining animals for food and milk, further decimating pastures and bringing them now into direct competition with pastoralists for water from the wells. The move was described as an ecological disaster and a political mistake.62 The need for collaborative environmental management practices is made obvious by Table 1 (Appendix). In the seventy-year span between 1930 and 2000, there were 41 reported tribal conflicts, mainly over grazing and water rights and land. Only three of the listed conflicts occurred before the Native Administration system was abolished in 1971; the majority occurred in the absence of a strong regional government and effective dispute resolution mechanisms. Environmental Damage The environmental impact of war is multi-dimensional. In terms of time and physical space, the environmental effects of war can often be felt well beyond the actual battle itself. Deliberate deforestation can drastically change the landscape. Soil erosion undermines agricultural productivity, perhaps for decades, before the land can sustain crops again. Long-term pollution of water resources can sometimes be mitigated by remediation efforts, but these are often expensive and/or technologically complex, and far beyond the reach of recently wartorn countries.63 Major constraints exist in terms of the assessment of long-term environmental impact. First, our own knowledge and capacity to conduct these assessments in the context of war is limited and under-researched. Second, the legal standard for a definitive cause-and-effect relationship is set extremely high. Third, the environment is notoriously variable, meaning that the analysis and prediction of non-linear complex systems is difficult, if not impossible, in cases where there is little pre-war data.64 In addition, the definition of damage is unclear. When a resource has a commercial value, such as a crop, and is damaged for a specific period of time, the analysis of damage is relatively straightforward. 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.65 The contamination of 5.

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______________________________________________________________ one shallow well in Canada, the fourth water-rich country in the world, will not have the same repercussions as the contamination of a similar well in Darfur. Pre-conflict environmental data is crucially important, not only to understand what the consequences of damage may be, but also to understand what the normal baseline is for the region and accordingly, recalibrate the definition of damage. DeWeerdt writes, Warfare is likely to have the most severe, longest-lasting effects on protected areas that harbour endangered species and slow-to-recover ecosystems such as deserts.66 This is especially true of Darfur and Sudan, which were recently described by Achim Steiner, UNEP Executive Director, as facing ecological collapse.67 A. Janjaweed Environmental dimensions of the attacks by Janjaweed include: Destroying the productivity of farmland (cutting down trees, razing crops, 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, UNEP stated that the deliberate targeting of vital natural resource-related infrastructure, such as rural water pumps, has been well documented by NGOs and inspection reports from the African Union Mission in Sudan (AMIS).68 The document also reported that civilians had stated that raiding militia had principally targeted trees, crops, and pastures. Deforestation is of particular concern because of the resulting decline in soil fertility. Loss of tree cover means a net deficit of biomass available to the soil, a loss of the trees ability to fix nitrogen, declining soil stability, soil erosion (especially of valuable top soil), and the loss of shade for crops. In other words, the area loses the ecological system that makes it possible for crops and other plants to grow in the immediate area. Some local communities reported that drinking water wells had been poisoned, but UNEP was unable to follow up with an investigation. 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.69 However, from what is known of Darfurs stressed environmental condition, it is difficult to conclude that deliberate environmental damage could not have long-term and severe consequences.

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______________________________________________________________ B. Refugees and Internally Displaced Persons The most significant environmental impact of the conflict is the result of the mass displacement of nearly 2.4 million people and 240,000 refugees. 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

UNHCRs environmental officer, Daniel Roger, voiced concern that the large concentration of people into very small areas creates a heavy strain on peoples resource base and worsens tensions with the host population. He pointed out that the area around Chads northern-most refugee camp originally supported fewer than 5,000 inhabitants; now it houses more than 30,000 Darfur refugees.70 His concern is echoed by Chad Mathew Conway, a UNHCR spokesperson, who said in a recent statement that the environmental impact from the influx of refugees [to Chad] has been pretty devastating. The already fragile environment has been pushed well beyond its carrying capacity.71 Particular concerns involve the heavy use of water and depletion of surrounding timber resources. 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.72 Jessica Hyba, assistant country director of CARE, stated that receiving 200,000 people has had a significant impact on the ability of the water tables to come back up to their regular level, meaning that populations in the northern Chad refugee camps barely have enough water to support both the refugee and host population.73 Refugees and IDPs can quickly turn an agricultural area into a wasteland. In a classic case, nearly 2 million Hutus fled Rwanda over the course of a few weeks to refugee camps in Tanzania and the DCR. 720,000 of those refugees settled into camps on the fringes of Virunga National Park, the first UN World Heritage site to be declared endangered due to an armed

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______________________________________________________________ conflict. The refugees proceeded to strip an estimated 35 km2 of forest for firewood and materials for shelter.74 In another example, Uduk refugees from the Upper Nile province now living in a refugee camp in western Ethiopia have, in the 13 years since the camp was established, seriously degraded an area of almost 400 km2 by clearing it for agriculture.75 Studies show that the impact of prolonged displacement is heavily degrading some of Darfurs most valuable agricultural land.76 IDP camps tend to be built around agricultural market towns, meaning that degradation affects prime farmland. 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. Environmental degradation that occurs here undermines the future food security and economic recovery of these towns and their host communities. UNEP fieldwork inspections revealed extensive deforestation extending as far as 10 km from the camps.77 Figure 1 shows the presence of UNHCR refugee and IDP camps within Chad and Darfur. UNHCR currently operates 12 camps for 240,000 refugees along the Chad-Sudan border. The potential damage that the refugees and IDPs could inflict on the surrounding host environments could be devastating for local and returning populations. 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. The final version of the definition of environmental crimes in the Rome Statute seems to be a compromise, allowing the ICC the ability to prosecute them in international cases, but excluding internal conflicts in the interest of national sovereignty.78 The crimes perpetrated in Darfur would not be eligible. Unfortunately, neither would the environmental crimes committed in the majority of conflicts today, which are internal and not international. The second problem lies with the definition of environmental crimes. Assuming that the political will existed to modify the Rome Statute to allow internal conflicts to encompass environmental crimes, the definition remains vague and sets stringent standards. 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, longterm and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.79 6.

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Figure 1: UNHCR Presence in Darfur, April 2007 (UNHCR, 2007)80

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______________________________________________________________ The language of widespread, 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.81 However, the Rome Statute does not give guidance as to what exactly these terms mean. A definition was provided by the Geneva Conference of the Committee on Disarmament (CCD) Understanding; however, 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.82 Without a better definition of these terms, it is possible that the only environmental crimes to be considered would be at the level of the detonation of a nuclear bomb. In this case, however, the human rights violations triggered by such an act would be more than sufficient to prosecute and environmental considerations would once again be incidental. The vagueness of the current definition makes it difficult to predict whether the damage in Darfur would trigger investigation by the ICC. In addition, 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. Article 8(2)(b)(iv) poses another difficulty in its requirement of strict intentionality. Even if widespread, long-term, and severe damage could be proved, it is possible that not knowing that the action would lead to widespread, long-term, and severe damage would be enough to absolve an individual.83 Given the technical complexity of environmental damage and its consequences, this could be almost impossible to proveindividuals who are ignorant of the consequences of their actions, and even those who choose not to inform themselves of the possible consequences, could possibly use their ignorance as a defence.84 Finally, even if the first two components are met, it must still be shown that the damage is clearly excessive in relation to the concrete and direct overall military advantage anticipated.85 This creates several problems. First, the specific language is itself vague and not well defined and the Rome Statute again does not offer much guidance. Second, the military advantage only needs to be anticipated. Following World War II, the Nuremberg Tribunal acquitted German General Lothar Rendulic of his scorched earth tactics, finding that he believed that they were necessary.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, then the defence could be widely available.87 The absence of objective standards that indicate when a military advantage may justify intentional, widespread, long-term, and severe damage to the

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______________________________________________________________ environment makes the possibility of prosecuting environmental crimes even more problematic. While the issue of adequate technical expertise is also a problem, this could be addressed by educating the magistrates and judges of the ICC. However, the transaction costsboth money and timewould most likely be significant.88 A separate tribunal that specialized in environmental issues would make additional training for ICC personnel unnecessary, but of course would come with its own significant costs. Finally, in pursuing environmental justice, we must ask ourselves what it is we are really trying to achieve. 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 damagethe 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. In the case of restitution and remediation, it does not appear that the Court has the ability to compel action in these areas. Drumbl states that as a result, there is cause for concern that environmental crimes will not only be poorly cognisable under the International Criminal Court, but also that the punishments for wrongdoing will not address the unique nature of these crimes.89 This is a serious consideration for scholars such as Roberts, who believe that the current legal norms are adequate as the basis for further work. In Darfur, there will be no peace if the current environmental conditions continue unaddressed. Even if the ICC were to prosecute and secure a conviction, it is unclear whether that would resolve any of Darfurs environmental injustices. 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, all of which involve working within the current legal regime.90 The first possibility is to promote the existing provisions, focus on revising language where necessary, and improve the implementation of existing law. Even with an extensive revision of the language within the Rome Statute, however, it is still unclear where environmental crimes would be explicitly addressed. As more pressure is exerted on the environment, 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.91 However, the problem remains how to centralize the implementation, monitoring, and enforcement of all of these various conventions, none of which are currently housed within one entity. 7.

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______________________________________________________________ At the other end of the spectrum lie Falk and Drumbl, 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, incidental, and negligent environmental harm in war.92 The push for a separate entity has lost ground in recent years; however, the need for an entity to coordinate the work of existing environmental conventions is clear. Scholars such as Bruch believe that under such an arrangement, it would be possible to accommodate a coordinated approach to domestic and international environmental law.93 The absence of a coordinated approach to environmental crimes hinders the progress that could be made within the international environmental law field. Conclusion Environmental justice cannot be achieved in Darfur using the International Criminal Court as the legal mechanism. 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. Legal scholars can continue to rely on the ICC for the most heinous environmental crimes, as long as it is understood that the environment will remain an ancillary consideration. 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. While people are gradually recognizing the need for a system of environmental management, the emphasis on environment within the human rights world is still weak. Environmental mitigation and recovery must be a priority in Darfur in order to achieve security and to minimize the potential for future conflict.94 Without a management system in place, there will be a significant increase in the amount of time needed for recovery. People and livestock will continue to concentrate on land that is reduced in total area, accessibility, and quality. This could mean both the loss of agricultural land, leading to entrenched poverty for farmers, 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.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.96 These lesser environmental crimes fall within a significant gap, the existence of which is a glaring flaw in our international legal system and calls us to be addressed. If not addressed, environmental justice in places like Darfur will never be achieved, and we will, as an international community, send the message to perpetrators that it is not important to pursue environmental justice. 8.

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Appendix
Table 1: Causes of local conflicts in Darfur from 1930 to 2000 (UNEP2005)1

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Notes
A Roberts, The Law of War and Environmental Damage, in The Environmental Consequences of War, J E Austin and C E Bruch (eds), Cambridge University Press, Cambridge, 2000, p. 47. 2 J Henckaerts, International Legal Mechanisms for Determining Liability for Environmental Damage under International Humanitarian Law, in The Environmental Consequences of War, J E Austin and C E Bruch (eds), Cambridge University Press, Cambridge, 2000, p. 615. 3 ibid. 4 Rome Statute of the International Criminal Court, Article 6(c), July 17, 1998, 2187 U.N.T.S. 3, [hereinafter Rome Statute] corrected through Jan. 16, 2002, at www.icc-cpi.int. 5 Roberts, op. cit., p. 57. 6 ibid., p. 59. 7 R Falk, The Inadequacy of the Existing Legal Approach to Environmental Protection in Wartime, in The Environmental Consequences of War, J E Austin and C E Bruch (eds), Cambridge University Press, Cambridge, UK, 2000, p. 137. 8 B Bromwich and A Abdalla Adam, Darfur: Relief in a Vulnerable Environment, Tearfund Reports, http://tilz.tearfund.org/Research/Disaster+Risk+Reduction+reports/Darfur+re lief+in+a+vulnerable+environment.htm, 2007 (accessed 7 March 2008), p. 7. 9 International Crisis Group (ICG), Darfurs New Security Reality, www.crisisgroup.org/home/index.cfm?id=5180, 2007 (last accessed 7 March 2008), p. 1. 10 T F Homer-Dixon, Environment, Scarcity, and Violence, Princeton University Press, Princeton, 2001, p. 5. 11 H Young and A M Osman, Challenges to Peace and Recovery in Darfur, Feinstein International Center, http://fic.tufts.edu/downloads/ChallengestoPeaceandRecoveryinDarfur.pdf, 2006, (last accessed 7 March 2008), p. 11. 12 J Flint and A de Waal, Darfur: A Short History of a Long War, Zed Books Ltd., London, 2005, p. 111. 13 ibid., p. 112. 14 The Office of the United Nations High Commissioner for Refugees (UNHCR), Chad/Darfur Emergency, www.unhcr.org/cgibin/texis/vtx/chad?page=camps, 2008 (last accessed 7 March 2008). 15 ICG, p. 1. 16 ibid., p. 3.
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______________________________________________________________ UN IRIN, Darfur Attack Leaves Thousands Needing Aid, IRIN Africa, 13 February 2008, p. 1. 18 UN News Centre, Worsening Situation in West Darfur Jeopardizes Aid Efforts, United Nations News Service, 20 February 2008. 19 UN IRIN, 13 February 2008, p. 1. 20 UN News Centre, UN Refugee Agency Alarmed after Armed Group Prevents Relocation of Darfurians, United Nations News Service, 15 February 2008, p. 1. 21 UN IRIN, UN Envoys Warn Darfur Getting Out of Control, IRIN Africa, 11 February 2008, p. 1. 22 ibid. 23 Flint and de Waal, op. cit., p. 7. 24 ibid. 25 B Ki-Moon, A Climate Culprit in Darfur, Washington Post, 16 June 2007, p. A15. 26 R Crilly, Darfur Conflict is Warning to World of Climate Change Peril, The Times Online, 23 June 2007, p. 1. 27 K Glassborow, International Court Urged to Consider Environmental Crimes in Darfur, Environment News Service, 30 August 2007, p. 1. 28 A de Waal, The Darfur Peace Agreement: Part 10: Land, Justice Africa Sudan Papers and Articles, www.justiceafrica.org/wpcontent/uploads/2006/07/DeWaal_Darfur_Peace_Agreement_10.pdf, 2006, (last accessed 7 March 2008), p. 1. 29 Bromwich and Abdalla Adam, op. cit., p. 7. 30 United Nations Environment Programme (UNEP), Sudan: Post-Conflict Environmental Assessment, Post Conflict and Disaster Management Reports, www.unep.org/sudan/, 2007, (last accessed 7 March 2008), p. 42. 31 Flint and de Waal, op. cit., p. 2. 32 Bromwich and Abdalla Adam, op. cit., p. 17. 33 UNEP, op. cit., p. 59. 34 ibid., p. 42. 35 Flint and de Waal, op. cit., p. 1. 36 Heather Lima, Environment the Key to Peace in Sudan, Africa UN, Deutsche Presse-Agentur, 22 Jun. 2007, p. 1. 37 Bromwich and Abdalla Adam, op. cit., p. 18. 38 UNEP, op. cit., p. 59. 39 ibid., p. 60. 40 ibid., p. 61. 41 ibid., p. 9. 42 ibid., p. 63.
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______________________________________________________________ ibid. ibid. 45 R. S. OFahey and Jerome Tubiana, Darfur: Historical and Contemporary Aspects, University of Bergen, Centre for Middle Eastern and Islamic Studies, www.smi.uib.no/darfur/A%20DARFUR%20WHOS%20WHO3.pdf, 2006, (last accessed 7 March 2008), p. 9. 46 de Waal, op. cit., p. 2. 47 OFahey and Tubiana, op. cit., p. 9. 48 de Waal, op. cit., p. 2. 49 D H Johnson, The Root Causes of Sudans Civil Wars, James Currey, Oxford, 2003, p. 139. 50 Flint and de Waal, op. cit., p. 5. 51 de Waal, op. cit., p. 3. 52 ibid., p. 3. 53 Johnson, op. cit., p. 83. 54 ibid., p. 132. 55 J M Burr and R O Collins, Darfur: The Long Road to Disaster, Markus Wiener Publishers, Princeton, 2006, p. 287. 56 UNEP, op. cit., p. 85. 57 ibid., p. 86. 58 ibid., p. 10. 59 S Cage, Sudan Must Improve Environment to Gain Peace, Reuters, 25 June 2007, p. 1. 60 UNEP, op. cit., p. 11. 61 A de Montesquiou, Darfur Conflict Worsens Environment, Associated Press, 21 June 2007. 62 Burr and Collins, op. cit., p. 66. 64 A K Biswas, Scientific Assessment of the Long-term Environmental Consequences of War, in The Environmental Consequences of War, J E Austin and C E Bruch (eds), Cambridge University Press, Cambridge, 2000, p. 303. 64 ibid. 65 World Watch Institute, Modern Warfare Causes Unprecedented Environmental Damage, www.worldwatch.org/node/5544, 2008 (last accessed 7 March 2008). 66 Frances William, Environmental Damage Blights Darfur, Says UN, Financial Times, 23 June 2007. 67 UNEP, op. cit., p. 93. 68 ibid., p. 92. 69 S Bauer, Ecology of Genocide, E/Magazine, 6 March 2007.
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______________________________________________________________ ibid. William, op. cit., p. 1. 72 Bauer, op. cit., p. 1. 73 World Watch Institute, op. cit., p. 1. 74 UNEP, op. cit., p. 115. 75 ibid., p. 80. 76 ibid., p. 108. 77 ibid. 78 M Drumbl, Waging War Against the World: the Need to Move from War Crimes to Environmental Crimes, in The Environmental Consequences of War, J E Austin and C E Bruch (eds), Cambridge University Press, Cambridge, 2000, p. 602. 79 Rome Statute, Art. 8(2)(b)(iv) 80 UNHCR, www.unhcr.org/publ/PUBL/467650372.pdf, 2007 (last accessed 7 March 2008). 81 Drumbl, op. cit., p. 624. 82 ibid., p. 624. 83 ibid., p. 626. 84 ibid., p. 628. 85 Rome Statute, Art. 8(2)(b)(ii) 86 C Bruch, Introduction, in The Environmental Consequences of War, J E Austin and C E Bruch (eds), Cambridge University Press, Cambridge, 2000, p. 13. 87 Drumbl, op. cit., p. 630. 88 ibid., p. 640. 89 ibid., p. 643. 90 ibid., p. 644. 91 Roberts, op. cit., p. 82. 92 ibid. 93 Falk, op. cit., p. 154. 94 Telephone interview with Carl Bruch, Senior Attorney and Co-Director of International Programs with Environmental Law Institute, Washington DC, on 3 September 2008. 95 Bromwich and Abdalla Adam, op. cit., p. 9. 96 UNEP, op. cit., p. 85.
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______________________________________________________________ Glassborow, K., International Court Urged to Consider Environmental Crimes in Darfur, Environment News Service, 30 August 2007. Henckaerts, J., International legal mechanisms for determining liability for environmental damage under international humanitarian law, in The Environmental Consequences of War. J. E. Austin and C. E. Bruch (eds), Cambridge University Press, Cambridge, 2000, pp. 602-619. Homer-Dixon, T. F., Environment, Scarcity, and Violence. Princeton University Press, Princeton, 2001. International Crisis Group (ICG), Darfurs New Security Reality, http://www.crisisgroup.org/home/index.cfm?id=5180, 2007 (last accessed 7 March 2008). Johnson, D. H., The Root Causes of Sudans Civil Wars. James Currey, Oxford, 2003. Ki-Moon, B., A Climate Culprit in Darfur, Washington Post, 16 June 2007, p. A15. Lima, H., Environment the key to peace in Sudan, Africa UN, Deutsche Presse-Agentur, 22 Jun. 2007. de Montesquiou, A., Darfur conflict worsens environment, Associated Press, 21 June 2007. OFahey, R. S. and Tubiana, J., Darfur: Historical and Contemporary Aspects, University of Bergen Centre for Middle Eastern and Islamic Studies, www.smi.uib.no/darfur/A%20DARFUR%20WHOS%20WHO3.pdf, 2006, (last accessed 7 March 2008). The Office of the United Nations High Commissioner for Refugees (UNHCR), Chad/Darfur Emergency, www.unhcr.org/cgibin/texis/vtx/chad?page=camps, 2008 (last accessed 7 March 2008).

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