Preserving the rights of indigenous tribes using global administrative law.

 Indigenous communities should form the fulcrum of sustainable development of a nation. Their culture and  forms of subsistence living are imminent to building low-carbon economies. Indigenous communities in Borneo have successfully protested the implementation of proposed palm oil plantations reemphasizing the need to restore their rights over ancient and  ancestral lands as a pertinent move  to address adverse impacts of climate change. The Mapuche community in the Araucanía region of Chile have, over decades, protested the invasion of their ancestral lands and conversion of  native forests into pine and eucalyptus plantations leading to civil insurgency against forestry companies and consequent  militarization of regions belonging to indigenous tribes as a deterrent to environmental activism. The Americas as such is witnessing the degradation of indigenous populations while jungles disappear due to illegal clearances for palm oil cultivation and unregulated cattle ranching. Solutions to mitigate climate change impacts can be found within the traditional knowledge of indigenous practices and tribal customs that have been neglected as retrograde and outdated.

Land-restitution and reparation programs across nations have not fully succeeded  owing to lack of investments in environment-friendly and sustainable projects in indigenous regions. The rejection of Chile’s new constitution is a glaring example of incorrect application of negotiation techniques and rules of engagement  with the indigenous tribes as is  evident in their lack of awareness of the advantages of new Constitution.

There is a need to provide a universal definition for indigenous communities based on domicile, culture and nativity  and preserve their  knowledge of agricultural and forestry practices.  Laws that mandate payment of a universal and life-time royalty to these tribes when  such practices are adopted by decision makers and stakeholders can help  nurture  lands in ways best known to them.

International community needs to place adequate emphasis on indigenous rights over land and practices.  It is requisite to  design legal regimes which improve governance of global resources not restrained by national  boundaries and claims of sovereignty.  Studies have demonstrated that indigenous-managed lands have prevented biodiversity loss  even better than those lands specifically identified for  conservation. New Zealand’s government has set an example  by integrating  indigenous knowledge of local landscapes into their decision making on infrastructure and  land-use changes  to adverse impacts of natural disasters. 

Giving back to the indigenous communities their rights over lands that was taken away from them  may not be just an act of kindness but one that can save our planet from moving towards the ‘highway to hell.'   This is a preamble to a paper that builds  a case to  endorse the application of global administrative law to harmonize governance modules for tribal regions within nations. Just as ocean management, regulating forests and forestry rights of indigenous tribes needs to take precedence over reckless land-use changes.

 

Personally, as an attorney I have  been overwhelmed by Law of Injunctions in environmental cases. On preliminary research I was surprised to read the volume of opinions and treatises on how injunctions relating to environment and natural resources management be decided by courts. This paper was published in the Atiner Journal of Law in January 2021.   I am now posting a version of the paper with recent updates on the topic of natural capital accounting which is essential as a concept that can serve jurists as an aid to decide injunction pleas  filed in public interest. 

Hypothesizing A New Standard for Environmental Injunctions.

 

F.Sherwood Rowland  while accepting the Nobel Prize in Chemistry in the year 1995 made a profound statement pointing out our complacency in tackling global warming and climate change impacts. He stated thus “What is the use of having developed a science well enough to make predictions if, in the end, all we’re willing to do is stand around and wait for them to come true?”  As early as 1979 the then President of United States Jimmy Carter was presented with a report by the National Academy of Sciences that investigated the contention whether human activities  might have an adverse impact on the climate of the world and predicted a doubling of CO₂ in the atmosphere that could  rise global temperatures to about 3 degrees Celsius. The report failed to have the necessary impact on international community to act decisively and wisely on the ways of nature reacting to callous human actions in commercial ventures. Business communities were more concerned about the decrease in profits if they were compelled to limit fossil fuel emissions in their business activities and the costs of changing their business-as-usual models to more sustainable ones. The denial by business and finance communities on climate change in the early 80s and 90s was the biggest obstacle to climate action. The communities ensured that their thoughts on climate change  reached  the public by using blatantly false campaigns and bought out expertise,  distracting them from gaining scientific awareness on the consequences of activities fueled by fossil-fuels. The markets that were indicators of the state of economy were not offered  the necessary incentives to absorb the cost of negative externalities  and change their business mechanisms. Instead the business and finance communities chose to look the other way when scientific consensus on climate change impact was gaining traction. This lack of oversight has led to increase in climate related poverty and environmental refugees. I am presenting here a working paper that calls for a paradigm shift in designing the business and human rights treaty, currently under negotiation, that aims to hold global Transnational corporations accountable for current state of our climate and weather patterns.

 

 

 A Climate Treaty under the regime of International Poverty Law.

Subsequent to my post on Climate-related Financial Disclosures dated 22nd March, 2019, I am updating the same with more information on recent publications. As mentioned earlier, since most of my writings on the blog and other papers were hacked, I have chosen to edit the same now while providing links to websites that can help readers gain access to updated and valuable information on the topic in discussion. 

Read on... 

The Concepts of Suspended Sovereignty and Responsibility to Protect

 

    The statutory regulation of  storage, handling and disposal of hazardous materials is related to occupational hazards and not really part of  environmental law. Most important statutes deal with handling of hazardous wastes, disposal and remediation.  When some materials turn hazardous due to prevailing  conditions owing to extended time of storage in an unregulated situation and in an  unsafe place and finally reacts with the atmospheric elements to turn into unstable and dangerous compounds can become ticking bombs and result in an environmental crisis causing severe pollution of air, water and soil. 

    The Beirut blast is clearly an environmental and ecological crisis that can affect the air quality, soil and water resources in and around the city. It is not clear if it will cause any disruption of air quality within the region.  The incident has exposed to the world the total ignorance, neglect and criminal negligence of the Lebanese government in handling hazardous materials. Ammonium Nitrate has many uses including the making of explosives. The port authorities have clearly ignored several warnings and neglected the storage of a reactive and flammable compound by leaving it unregulated for several years without putting in place requisite safety standards despite its proximity to general population. It simply  calls for strict liability on the part of the Government without none else to take the blame.  In the case of Lebanon, the storage of such volatile materials and exposing them to atmospheric elements for more than six years and thus endangering the lives of those living within the vicinity places the liability  directly on the port authorities.  Citizens have a right to sue the government and claim compensation for the damage incurred by them as several citizens were left homeless.  But, does the government have the wherewithal to compensate its citizens either monetarily or otherwise? It seems it is helpless as one follows the various news articles published on the internet and watching the recent interview of  Minister of Economy and Trade Mr. Raoul Nehme by  BBC’s Stephen Sackur.  It is more than evident that  only there is no one in the government willing to take responsibility for the act of   criminal negligence committed against its people of with every one of the Ministers passing the buck and claiming international monetary aid without accountability.  Given the state of economy in the country with poverty levels rising, and failure of the government to provide basic amenities including electricity and drinking water to its citizens, Lebanon can very well be declared a fragile and failed state calling for intervention by the international community to save the nation from complete breakdown. A fragile and failed state threatens public health care infrastructure, thus risking global healthcare systems considering the COVID -19 pandemic. It further  destabilizes regional security and requires humanitarian intervention by the UN and international community. 

    In this light, I wish to state here that the  paper in this post was written by me  in the year 2012 and published it while I was spending some time in the US.  I just noticed that  this paper was hacked to pieces and I had to edit the same for the purpose of this post. The print out that I normally store seems to have vanished and therefore, I do not have an earlier copy to compare and edit. In the event of any factual errors in the paper, it may have been due to my oversight in reviewing. I have not really updated the paper with any recent information.  The content of the paper reflects my thinking on the subject that prevailed at that point in time.  I am posting it here with the hope that there may be readers who think on the same lines as I do for the benefit of the helpless citizens of Lebanon and similar nations facing  serious environmental crisis. The international community needs to come together to set an example of how international monetary aid can demand absolute accountability and transparency from governments or nations receiving such aid and assistance.

 Working Paper on 'Making the United Nations work for Global Commons': Amending the UN Charter

Corrigendum to earlier blogpost titled "When Economic interests override Environmental Concerns"

The title “When economic interests override environmental concerns” in one of my blog posts is an objective claim referring to the exclusive issue of demanding a social impact assessment for the Chennai-Salem Corridor at a stage when the original project had been commissioned and was clearly underway. My title presumably does not endorse the view that environmental norms need to be diluted to attract investments.   In retrospect, I am now convinced that the apt title for the blogpost would have been “When political interests override environmental concerns”. The title and the blog post express the futility in reopening environmental and social assessment of a project, that has changed its targets and direction midway to suit political and vested interests. The phrase. ‘Economic interests” specifically refers to those investors who have been awarded contracts in the Bharatmala project and any reopening of assessments could lead to stoppage of work merely because a major route within the state of Tamil Nadu has been changed to suit political purposes.  Essentially, strategic environmental assessment needs to be completed before commission of the projects and contracts have been awarded. It would be legally incorrect to subject the original project whose EIA is completed, at least on paper, to large scale changes that can affect a different region that has not been assessed for environmental and social impacts in the original EIA report.

 

The blog post merely espouses the case of those investors who may face financial constraints if the contracts have been stalled for reasons that are political. It further believes the best option available to all stakeholders would be to proceed with the implementation of original project where environmental impact assessment and social impact assessment have been completed.  Yet, as on date, from details available on the internet, it appears that contracts have been awarded for only 27% of the project and the rest have been delayed for several reasons including COVID-19.

 

Despite all good intentions, the pandemic has brought to standstill many a project including large scale infrastructure projects. In the interregnum, it may be time to review the project and the EIA reports prepared in relation to the entire Bharatmala project with an inquiry into the shelving of Chennai-Madurai Economic Corridor and if the project is to be recommenced post-pandemic, it must follow the original project plan of creating the Chennai-Madurai Economic Corridor, instead of the Chennai-Salem Highway. In any case, acquisition of land for such large-scale infrastructure projects should follow after an extensive EIA report has been prepared since the report shall list out if any agricultural lands are being acquired for the purpose and if any ecologically sensitive areas are being threatened. Further, the EIA report needs to list out any mitigation and adaptation plans are in place subsequent to such acquisition. Acquisition of any land for such large-scale infrastructure projects should be within norms listed for land-use change and if such changes can be justified with a cost-benefit analysis.

 

 

 

 

 

Environmental Refugees and Internally Displaced Migrants

On the World Environment Day, I thought it befitting to write about the status of environmental refugees who are victims of apathy exhibited by governments across the world. A recent ruling by the United Nations Human Rights Committee that governments cannot refuse to accept those seeking refuge in other nations due to environmental factors and claiming to be victims of climate change.

UN Ruling on Environmental Refugees 

There can be no words to describe the humiliation faced by those who are forced to leave their homes, they wish they never had to leave and the feeling of disappointment and devastation when refused a place in the land they seek refuge. Even nations that are not parties to the refugee convention are bound by the principle of ‘non-refoulement’ under customary international law, but refugees who have lost their land and livelihood in their birth nation have no redressal under international law owing to the fact that there is no fixed and universal definition for the term “environmental refugees”. The UN’s ruling has rightly brought these categories of refugees within the purview of standard definition of “refugee” under international law and has granted legitimacy to claims for asylum based on environmental factors including loss of habitat due to sea level rise and loss of livelihoods due to climate change impacts and frequent incidents of natural disaster. As on date, there is no clear and legal definition for the term “environmental refugee” but it finds a place in the OECD Glossary of Statistical Terms as “a person displaced owing to environmental causes, notably land loss and degradation, and natural disaster.
 

It has taken a long time for institutions to recognize the growing problem of environmental refugees at a global level. The only solution to prevent exodus of environmental refugees from Small Island Nations, Pacific Islands and countries that are losing their habitable land to sea level rise is to curb greenhouse gas emissions and take serious steps to prevent a repeat of business-as-usual scenario in the immediate future after the pandemic recedes.


 On a similar note, but in a domestic scenario, the COVID-19 pandemic has highlighted the underlying weaknesses in publicly established systems such as primary health care infrastructure in developing nations and access to emergency services relating to health, food and shelter for the poor and underprivileged living in densely populated areas. The pandemic has brought to the forefront the government’s apathy towards the poor with total disregard to their housing comfort where social distancing, crucial to prevent the rapid spread of the corona virus has been impossible to implement. All claims by governments that PDS is a huge success need to be rejected considering the fact we witnessed scenes of huge population of migrant laborers walking hundreds of miles back to their hometowns to stave off hunger and starvation. The problems posed by migrant laborers in India during the pandemic clearly establishes the fact that they are ‘internally displaced persons’ (IDPs) with no provision to access the public distribution system for food and essential commodities in the state where they have been contributing to the economy except in their registered hometowns. Although, their migration has been voluntary and in search of employment, treating them as IDPs under the current scenario is only appropriate that grants them rights for enforcement. International law mandates that the governments of those states where such IDPs are living and working are responsible for the welfare of such populations. By permitting them to leave one state with no guarantee of fulfillment of basic necessities is violation of human rights by the that state. It is a humanitarian crisis of severe nature that India is witnessing. With this understanding, I hope the governments endeavor to put in place a system that ensures the welfare of these migrant laborers within the state they seek employment is taken care of and these invisible citizens are accounted for.