What ARE Human Rights, anyway? Table of Contents Letter from the Chair.......................................................... M. Taghi Farvar ..................... 3 Editorial: ‘Just’ conservation?............................................... Jessica Campese et al.............. 6 Section 1: What ARE human rights anyway? Jessica Campese and Human rights— a brief introduction to key concepts................. Armelle Guignier...................... 10 Human rights and the environment— a practical guide for environmental activists............................ Stefano Sensi......................... 27 Mario Peña Chacon y Derechos humanos y medio ambiente.................................... Ingread Cruz.......................... 40 Human rights— a new “territory” for nature conservation organizations...................................................................... Yves Lador.............................. 53 Section 2: Conservation can undermine human rights… Conservation and human rights— the ‡Khomani San and Kgalagadi Transfrontier Park, South Africa Phillipa Holden........................ 57 The history of conservation evictions in Botswana— the struggle continues …with new hope.................................. Lapologang Magole.................. 68 Is biocultural heritage a right? Conflicting priorities in China...... Andreas Wilkes & Shen Shicai... 76 Where there is no room for local people in conservation… reflections from Northern Thailand......................................... Frankie Abreu......................... 84 Voices from the margins— human rights crises around protected areas in Nepal................ Sudeep Jana.......................... 87 Protected areas and human rights in India.............................. Milind Wani & Ashish Kothari..... 100 Conservation’s engagement with human rights— Janis Bristol Alcorn & “traction”, “slippage”, or avoidance?....................................... Antoinette G. Royo.................. 115 Section 3: …but conservation and human rights can also work in mutual support… The right to know and the right to speak— Citizens’ Advisory Councils in Alaska...................................... Richard Steiner....................... 140 Reflections on integrating a rights-based approach in Gina E. Castillo & environment and development............................................. Marjolein Brouwer................... 153 Applying a rights-based approach to conservation— experience from CARE in Uganda........................................... Phil Franks............................. 168 In search of environmental justice— linking land rights, livelihoods and conservation in South Africa. Wendy Crane......................... 172 The 2006 Recognition of Forest Rights Act, India— Pradeep Kumar & a tool to support conservation through human rights................ P. Senthil Kumar...................... 185 Reconocimiento y protección de los derechos humanos de los Patricia Madrigal Cordero y pescadores artesanales........................................................ Vivienne Solis Rivera............... 190 Using human rights instruments for biodiversity conservation.... Svitlana Kravchenko................ 200 Indigenous peoples, protected areas and the right to restitution Fergus MacKay........................ 209 The role of parliaments in fostering environment-related human rights...................................................................... Hanna Jaireth......................... 223 15, July 2007 1 Conservation and Human Rights Nicholas Winer, David Conservation, protected areas and humanitarian practice.............. Turton & Dan Brockington... 232 Section 4: … within, and only within, a supportive enabling environment… Human rights, conservation and the privatization of sovereignty in Africa................................................................. James Igoe....................... 241 Derechos humanos y conservación ambiental— errores, horrores y terrores....................................................... José Sánchez Parga............ 254 Parks and people in North America— one hundred and thirty five years of change................................. Robert G. Healy.................. 261 Eco-authoritarian conservation and ethnic conflict in Burma........... Zao Noam......................... 272 El Ordenamiento Comunitario del Territorio conservación y Francisco Chapela y derechos sociales e indígenas..................................................... Yolanda Lara...................... 288 Naya Sharma Paudel, Somat Human rights— a guiding principle or an obstacle for conservation?... Ghimire, & Hemant Raj Ojha 299 Migratory pastoralists’ rights— a guarantee for rangeland conservation in Iran............................. Mansour Khalighi................ 311 Beyond the instrumental view of Corporate Social Responsibility..... Rajat Panwar & Eric Hansen.. 323 Section 5: Book Reviews Review of Negotiation and mediation techniques for natural resource management............................................................. Steve Collins..................... 334 Review of Les conventions locales de gestion des ressources naturelles et de l’environnement................................................ Aboubakry Kane................ 335 Review of Nature Based Tourism— A Draft International Covenant... Sylvie Blangy.................... 337 Review of Le Guide des destinations indigènes............................. Alain A. Grenier................. 339 Review of Visionaries of the 20 century— a Resurgence anthology.. David Pitt......................... th 340 Review of Sharing Power.......................................................... Jacques Pollini................... 342 Section 6: CEESP News and Events CEESP Network Highlights........................................................ ....................................... 346 Governance of Biodiversity and Community Conserved Areas— Grazia Borrini-Feyerabend & new and on-going projects....................................................... Barbara Lassen.................. 350 Nyeleni Forum for Food Sovereignty— Selingue, Mali, February 2007..................................................... ....................................... 352 Jeremy Ironside, Grazia A Co-Management Learning Network— Borrini-Feyerabend, & protected areas and indigenous peoples in South East Asia........... Jannie Lasimbang.............. 357 Poverty Indicators for Protected Areas........................................ Alessandra Giuliani............. 360 Amélioration des modes de vie et de l’équité— M. Kante Bocar & un nouveau projet de CIFOR..................................................... Bouda Henri-Noël.............. 362 Declaración oficial de Chake Ñuha— An introduction by Simone South American farmers' movements reject biofuels.................... Lovera.............................. 365 CEESP Steering Committee members and staff contact persons... ....................................... 370 2 15, July 2007  What ARE Human Rights, anyway? LETTER FROM THE CHAIR OF CEESP M any of us in CEESP are strong believers in the values and power of powerful foundation on which we can base our conservation values. But of course they are not exempt from their human communities. We trust the vir- own dangers and degenerations… first tues of local knowledge and customary among all the “abstract thinking” that practice, the potential of local solidar- makes us perceive universal concepts ity and cooperation and the collective and lofty connections while forget- ingenuity of people managing natural ting that all those have to make sense resources for the common good of for ourselves and the persons right in present and future generations. If we front of us—our indigenous peoples, look at history, however, we can dis- minority cultures, co-workers, neigh- cern some dangers. Throughout the bours and even our family. world, particularly in Europe in the This special issue of Policy Matters early 20th Century, the emphasis on lo- brings to light some elements that will calism has been a double-edged sword. hopefully allow us to strike a balance Self-sufficiency, voluntary simplicity, between the local and the univer- local sovereignty, living close to the sal, the need to anchor our action in land and following community val- ues are marvellous ideals… but those same ideals can also slip into extreme conservative and nationalist thinking, intolerance, fear and mistrust of “the other”. It is not impossible for a move- ment based on the primacy of rural communities to distrust “the city” and all that is cosmopolitan and innovative. It is also all too possible for nationalism and fundamentalism to degenerate into imperialism, colonialism, racism, wars of occupation against near and distant peoples, apartheid, antisemitism, Zion- ism, ethnocide and even genocide and “ethnic cleansing”. Simply put: that is why we need to identify, declare and Human rights bring us to appreciate the human- respect human rights! ity we share with other fellow beings—no mat- ter their gender, age, appearance, culture and Universal human rights provide ideas. (Courtesy Grazia Borrini-Feyerabend) the balancing perspective to local, communitarian action. They force us human solidarity at the local level and to lift our eyes from the little garden the need to elevate our thinking and in front of us and appreciate the larger moral inspiration to those principles humanity we share with other fellow and values that can be broadly applied beings—no matter their gender, age, to all human beings— the “rights” we appearance, culture and ideas. Human have for the simple fact of being born rights keep our mind open to egalitar- human. This act of “striking a bal- ian, anti-sexist and multi-cultural per- ance” is incredibly complex, of course, spectives and ultimately are the most and we can at most all try very hard and do the best we can… there are no 15, July 2007 3 Conservation and Human Rights recipes and often only uncharted terri- “the other” can be easily advanced to tories. To understand this we need only explain injustices and irrationalities, to refer to thorny issues such as the with the pernicious consequences we keep seeing in hu- Cover story. The persons* shown on the cover of this journal— man history. An al- members of an indigenous tribe of nomadic pastoralists in Rajastan— ternative perspective face multiple and interrelated opportunities and challenges at the would stress instead interface of conservation and human rights. Their community’s liveli- the common human- hood depends on sustainable use of and access to scarce pastureland ity of all peoples, and and associated resources. Conservation in support of sustainable use the bond of life that is clearly in harmony with their community rights to livelihood, i.e., ties that humanity to to food, culture, health, life. But exclusionary, discriminatory, techno- cratic and strictly protectionist conservation efforts have most often the rest of living be- undermined these very same rights by reducing access to natural ings, to nature and to resources. Further, community access rights to land and resources the biosphere. In this are intrinsically linked to the self determination and development of perspective the re- mobile indigenous peoples. These are among the most fundamental spect for our com- human rights. And, enlarging the view to the overall picture, the con- mon humanity and ditions of the land one can see in the picture and the decisions about the larger bond to whether or not, when, where exactly and how this community has life and nature are access to pasture, depend on the larger historical, cultural, political, the roots of our social and economic context. It is only within this larger context, in moral behaviour and fact, that the interplay between conservation and human rights finds its full meaning and can be positively addressed. Read in this way, the main cause of our this photograph provides a snapshot of the collective content of this success or failure as a journal. See the article by Mansoor Khalighi in this Journal for more species. Environmen- information on the community rights of indigenous nomadic pastoral tal destruction, the peoples and the conservation of natural resources. exploitation of hu- mans by humans and * In many camel herding societies, camels are counted and referred to as “persons” and are treated with utmost respect, which shows the interdependence of these the humiliation and cultures with these magnificent beings. (Thanks to Aghaghia Rahimzadeh of dispossession of entire CENESTA for the permission to use this picture) peoples and cultures are the consequences rights of present versus those of future of forgetting the bond generations, or the alternative environ- of humanity (or “human rights”) that mental values that can be preserved links us all. In this sense, our failures by incompatible interventions. are not isolated failures but common The “human rights perspective” can ones. And so are our achievements– also bring other fundamental benefits. first among all the appreciation, care It can provide us with the founda- and empathy we are still able to bring tions of an analysis of power, the to biological and cultural diversity, in- beginning of an explanation of why cluding multi-cultural societies. Human we live in a world where injustice and rights have much less to do with legal- ecological destruction are so pervasive ity than with meaning, and much more and intertwined. Without an analysis to do with the broader environment of of power— the understanding of the life than we usually see. agencies that fuel ecologically-de- CEESP has received partial financial structive growth and human exploi- support from IIED’s Sustainable Ag- tation— the world can indeed be a riculture, Biodiversity and Livelihoods confusing and depressing place. Con- Programme to produce and diffuse this spiracy theories and stereotypes about volume, and we are most grateful for 4 15, July 2007  What ARE Human Rights, anyway? the unfailing support of this sister or- labour of love, and a result of the work ganisation. We would also like to thank of the members of TGER—the CEESP here the outspoken and, at times, Theme on Governance, Equity and frankly courageous authors of the pa- Rights. With them, who did the lion’s pers collected here. They have shared share of the work, I also would like to many stories that are not simple or acknowledge most sincerely the guest even safe to tell. It is only through co-editors of this volume (and CEESP/ their work, endurance and passion for TGER members) Michelle de Cordo- conservation and justice that we can va, Armelle Guigner, Gonzalo Ovie- see powerful advances and lessons do, Marcus Colchester, Maurizio learned. Farhan Ferrari and Barbara Lassen. I trust they will all keep collaborat- Let me also thank most gratefully ing with CEESP and with IUCN at large and warmly, Jessica Campese, who to advance understanding, policy and has provided an unfailing reference action at the interface of conservation point for all the work that went in this and human rights. I can see few more volume, the organisation of related worthwhile and more powerful subjects symposia, workshops and innumer- for our personal and political engage- able meetings and the development of ment as conservationists. As usual, practical options for the IUCN to tackle both our website and future issues of human rights in its conservation work. Policy Matters will be available for any Jessica has been working with Grazia comments, replies and discussion on Borrini-Feyerabend for about two the challenges posed by the articles in years and this volume is very much one this issue. of their cherished products, surely a M. Taghi Farvar, Chair, IUCN Commission on Environmental, Economic and Social Policy (CEESP) 15, July 2007 5 Conservation and Human Rights EDITORIAL ‘Just’ conservation? What can human rights do for conservation… and vice versa?! Jessica Campese, Grazia Borrini-Feyerabend, Michelle de Cordova, Armelle Guigner and Gonzalo Oviedo, with Marcus Colchester, Maurizio Farhan Ferrari and Barbara Lassen W ithin the broad IUCN circles we are all familiar with the conservation of bio- equitable and ecologically sustainable”6 (see Box 1). This special issue of Policy Matters deals primarily with the emer- diversity and natural resources. But what gent understanding of the relationship are human rights, and what do they have between conservation and human rights. to do with our work? The first section of this journal addresses these questions There is little consensus regarding the in a straightforward way, and highlights roles, responsibilities and interests con- how, despite historic separation between servation organizations have in address- the two,1 attention to linking conserva- ing human rights, or how these factors tion and human rights has recently been should be practically addressed—a fact increasing. This trend poses new chal- made evident by the collection of articles lenges for conservation organizations, included in this journal. The conserva- called to recognize and address some tion–human rights relationship is com- new direct and indirect responsibilities.2 plex, multi-dimensional, and dynamic. Yet, as conservation protects resources If the articles defy a single overall mes- critical to fulfil rights to life, health, food, sage, however, some broad themes can water, and security, this trend also opens be perceived. Each of these themes– de- new doors for conservation organizations scribed in the main sections of this col- to be recognised as performing invalu- lection– is significant for understanding able roles in the realization of those how conservation actors can work in just rights, and in overall support to human and sustainable ways. societies. First, it is now abundantly clear that Recognition of the relationship between conservation has too often under- human rights and the broadly defined mined human rights, most clearly environment has been developing since through protected area-related displace- the 1970s.3 In this sense, many govern- ment and oppressive enforcement meas- ment and civil society actors— includ- ures. This phenomenon, common in the ing CEESP— work to address the rights past,7 continues today in subtle and less abuses that can arise from the extractive subtle ways. The articles in section two industry and other sources of environ- of the journal, which primarily demon- mental degradation.4 Similar action and strate this negative dynamic, also dis- attention around conservation practice cuss how this is changing, if slowly. has been slower to emerge, but can now be clearly identified.5 Since 2004, for ex- The second broad theme emerging in ample, IUCN as a whole recognizes hu- this collection is that conservation man rights as an important component and human rights can also work in in supporting its mission to “influence, mutual support. Some mechanisms, encourage and assist” societies to en- practices, policies and principles sure that “any use of natural resources is guiding conduct appear successful 6 15, July 2007  What ARE Human Rights, anyway? in responding to the challenge of their integration. The journal includes both case- based examples and general discussions of Conservation is positive links between con- servation and rights. For not an isolated or instance, mechanisms such value-neutral en- as on-going Citizens’ Advi- deavour– rather, sory Councils or case-based it is infused with legal procedures have been capable of fostering human political meaning rights as well as prevent- and values that ing/ mitigating negative originate outside environmental impacts. and independ- While no one article ently from it. presents a complete frame- work for a “human rights approach to conservation,” it is in the third section that the components of such an approach begin to emerge. Through these Picture 1. It is often the case that environmental articles, we come to understand that: damage and human rights violations go togeth- X human rights instruments and rights- er. In Peru, the rural communities of Huancavel- based codes of conduct can be leveraged ica, in the high Andes, are currently protesting to protect people from potential and/or major hydraulic works decided without their realized violations arising from conserva- informed consent and expected to dry out 1,000 tion practice; hectares of wetlands in their customary territo- ries. The diverted water will feed a hydroelectric X human rights instruments can be used to reservoir and will irrigate export monocultures, protect the environment; and such as asparagus, in the Peruvian lowlands. X natural resource management can (and Meanwhile, the highland communities will lose should) be incorporated as a key factor in the ecological integrity of their pastures and rights-based approaches to human devel- wetlands and will suffer important economic opment. losses. Communities living close to the hydro- As a matter of fact, some of the most power- electric reservoir will also lose land, as the water ful examples of synergistic linkages between level is expected to rise seven meters as a consequence of the hydraulic works. Fifty years conservation and human rights emerge from ago, the people of Choclococha lost their homes experience within development organizations and the heart of their land (see the semi-sub- that have adopted a rights-based approach merged, abandoned houses in the background) to their work. when the reservoir was initially constructed. These people are still waiting for the promised The third broad lesson we learn from this compensation. The history of ‘development’ ini- collection— one present in most articles but tiatives throughout the world is full of situations arising most clearly in the fourth section— is and events such as these. Who benefits? Who that the link between conservation and loses? Who speaks for environmental integrity human rights is embedded in larger his- and the rights of the affected people and com- torical, political, cultural and socio-economic munities? While many conservationists still focus on protecting a few “islands of biodiversity”, contexts that shape it and determine its others are beginning to address the intertwined meaning. Conservation is not an isolated or issues of ecological integrity and respect for hu- value-neutral endeavour– rather, it is infused man rights in the overall landscape. (Courtesy with political meaning and values that origi- David Bayer bayedavid@speedy.com.pe) 15, July 2007 7 Conservation and Human Rights nate outside and independently from it. In this sense, poverty, environmental destruc- tion and violation of human rights exist within power structures that may perpetuate them despite all the commitments and pronunciations to the contrary. We should view neither conservation nor human rights with tunnel vision, focusing We should view on a single area or species or on the wellbeing of a particular group neither conserva- or class of people. Equity and sustainability demand that we enlarge tion nor human the vision to the landscape and to humanity in general, and that we understand the broad phenomena that— sooner or later—will affect rights with tunnel even our precious protected areas and comfortable lives. vision, focusing on a single area Despite the complexities we have just mentioned, overall the articles in section four encourage the conservation community to take great- or species or on er responsibility for respecting and supporting human rights. It is the well-being of a clear that conservation actors’ scope of action is limited, that engag- particular group or ing with human rights implies understanding and responding to the class of people… broader institutions of society, and that the historical forces at play are often overpowering. Yet, the global situation is uneven, and local, national and international efforts by governments, civil society and even business actors can indeed make a difference. And they should. The themes we have just described– themes which are differentiated by journal sections, but which can also be read into most articles– are further linked by several cross-cutting lessons. Transforming exclusionary conservation practice, empowering rights-holders, and enhancing the accountability of duty bearers (including non-governmental conser- vation organizations) are all important in addressing human rights. Further, procedural rights are a major entry point for substantive rights and should be forcefully stressed in conservation. Our collection leaves open many questions and does not cover the full breadth of the relevant issues. Most notably, despite actively seek- ing submissions about the topics, we received little regarding the potential costs to conservation arising from the requirement to address human rights, and very few articles dealing with the positive role that conservation can play in supporting human rights. That notwithstanding, this collection contains suffi- ciently diverse perspectives and opinions to further a substantive discussion—a discussion whose time has definitely come. Jessica Campese (jessica@cenesta.org) is a Fulbright Fellow working in Geneva with CEESP/TGER, the IUCN Secretariat and IUED. Grazia Bor- rini-Feyerabend (gbf@cenesta.org) is a Vice Chair of IUCN CEESP and WCPA. Michelle de Cordova (mdecordova@gmail.com) is an environment and social development consultant, based in Vancouver. Armelle Guignier (armgui@yahoo.fr) is a French PhD law student and a member of IUCN Commission on Environmental Law. Gonzalo Oviedo (gonzalo.oviedo@ Picture 2. Fulfilling substantive rights often iucn.org) is Senior Social Policy Advisor with the IUCN. Marcus Colchester requires securing procedural rights— em- (marcus@forestpeoples.org) is Director of the Forest Peoples Programme. powering right-holders and supporting Maurizio Farhan Ferrari (maurizio@forestpeoples.org) is Environmen- their participation in developing and im- tal Governance Coordinator with the Forest Peoples Programme. Barbara Lassen (barbara@cenesta.org ) is Executive Officer of TGER, working as a plementing conservation policy and prac- volunteer. All the co-editors of this issue are members of CEESP/TGER. tice. (Courtesy Grazia Borrini-Feyerabend) 8 15, July 2007  What ARE Human Rights, anyway? Box 1. IUCN Resolution 3.015 Conserving nature and reducing poverty by linking human rights and the environment “…The World Conservation Congress at its 3rd Session in Bangkok, Thailand, 17–25 November 2004: 1. DECIDES that IUCN should consider human rights aspects of poverty and the environment in the context of its overall mission, under the leadership of the IUCN Director General; 2. FURTHER DECIDES to assess the implications of the use of human rights-related legal resourc- es and actions to protect the environment and the rights of those who defend it, especially through existing international human-rights protection systems; 3. ENCOURAGES IUCN’s State members, in cooperation with its non-governmental members, to analyse legislation in the field of human rights and the environment in their respective coun- tries and regions with the aim of providing effective access to justice in the event of the viola- tion of those human rights; 4. REQUESTS the CEL to provide additional legal research, analysis and resources, and contrib- ute to building the capacity of members in the enforcement of environmental laws, in close collaboration with IUCN members; and 5. FURTHER REQUESTS the CEL to provide a progress report to future World Conservation Con- gresses summarizing legal developments in human rights law and litigation that are pertinent to IUCN’s Mission, with an emphasis on human-rights tools that may be used by IUCN and its members in pursuit of the Mission.” 8 Notes References 1 See, among many, Perez (2004) for a general Ghimire, K. B. and M. P. Pimbert (eds.), Social discussion. Change and Conservation. Environmental politics 2 Organized movements of indigenous peoples, and impacts of national parks and protected ar- local communities, and other civil society actors eas, UNRISD, Geneva (Switzerland) and Earths- increasingly demand greater accountability from can, London, 1997. conservation actors regarding past and present Perrez, F. “Key questions concerning the human impacts of protected areas establishment and rights and environment debate: An introduction” management. Examples can be found in http:// in Human Rights and the Environment: Proceed- www.danadeclaration.org/text%20website/tex- ings of a Geneva Environment Network Roundta- tindex.html, http://www.forestpeoples.org/, ble, UNEP for the Geneva Environment Network, http://www.survival-international.org/ and Geneva, 2004. Available at: http://www.iucn.org/themes/ceesp/WAMIP/ http://www.environmenthouse.ch/docspublica- WAMIP.htm tions/reportsRoundtables/Human%20Rights%20 3 A trend reflected in several UN and regional Env%20Report.pdf (visited Oct 2006). human rights communications and non-binding West, P.C. and S.R. Brechin (eds.), Resident Peo- instruments that variously link environment and ples and National Parks, University of Arizona human rights. Press, Tucson, Arizona (USA), 1991. 4 For CEESP’s work in this area, see http://www. World Conservation Union (IUCN) IUCN, Resolution iucn.org/themes/ceesp/seaprise.htm. See also 3.015: Conserving nature and reducing poverty CIEL Human Rights and Environment program by linking human rights and the environment, at http://www.ciel.org/Hre/programhre.html, Adopted at the 3rd Session of the World Con- EarthJustice at www.earthjustice.org, EarthRights servation Congress in Bangkok, Thailand, 17–25 International at http://www.earthrights.org/, and November 2004. See full text in: Global Witness at http://www.globalwitness.org/. http://www.iucn.org/congress/2004/members/In- 5 WWF and CARE have called for “social and dividual_Res_Rec_Eng/wcc3_res_015.pdf (21 environmental justice”, which they define as May, 2007). “the equitable achievement of both human and environmental rights”. See http://www.panda. org/downloads/policy/socialenvironmentaljus- tice2.pdf . 6 http://www.iucn.org/en/about/ (emphasis added) 7 Two important sources are West and Brechin (1991) and Ghimire and Pimbert (1997). 8 IUCN, 2004, p2. 15, July 2007 9 Conservation and Human Rights Human Rights— a brief introduction to key concepts Jessica Campese and Armelle Guignier …recognition of the inherent dignity and of the equal and inalienable rights of all mem- bers of the human family is the foundation of freedom, justice and peace in the world. — Universal Declaration of Human Rights, 1948 Abstract. Understanding the relationships between conservation and human rights is difficult in part because of the nature of human rights themselves. We provide a brief overview of some (though by no means all) key concepts, debates, and contemporary instruments protecting international human rights. Given the vastness and complexity of the issue, we aim only to provide a helpful overview for readers unfamiliar with the international human rights framework. D espite general consensus within the United Nations (UN), definitions and characteristics of human rights are still debated, and are still emerging, all over the world. According to one gen- eral definition: “Human rights are the rights possessed by all persons, by vir- tue of their common humanity, to live a life of freedom and dignity. They give all people moral claims on the behav- iour of individuals and on the design of social arrangements—and are univer- sal, inalienable and indivisible. Human rights express our deepest commit- ments to ensuring that all persons are secure in their enjoyment of the goods and freedoms that are necessary for dignified living.”1 Rights can be understood as entitle- ments2 that create constraints and obli- gations in interactions between people. Rights, in their broadest sense, may arise from various institutions that es- tablish binding obligations (citizenship rights granted under laws particular to a state, inter-party contractual rights, Picture 1. “Human rights are the rights pos- etc.) An example may be the right to sessed by all persons, by virtue of their com- be paid for a service rendered under a mon humanity, to live a life of freedom and contractual obligation. Human rights, dignity”3 (Courtesy Grazia Borrini-Feyerabend) however, are based on the concept that all people are entitled to basic compo- 10 15, July 2007  What ARE Human Rights, anyway? nents of lives commensurate with hu- cultural rights are important and non- man dignity. hierarchical, and the realization of each ultimately depends on the realization of When most people talk about human them all.9 rights they refer to those recognized in the UN and/or regional and national However, even these core characteristics frameworks that arose since World War are much contested. Regarding II, but the concept developed over a interdependency, some States prioritize much longer period of time. Similarly, economic development and see a contemporary human rights are some- potential threat to that development times criticized for coming primarily arising from democracy and public from western philosophical traditions, freedoms.10 Others continue to view but their conceptualization has been economic, social and cultural rights much broader than the relatively nar- as, at best, second to political and row focus on ‘liberty rights’.4 In Shi- civil rights. The view of rights as non- man’s summary: “The earliest attempts hierarchical has gained wide acceptance of literate societies to write about only since the end of the Cold War rights and responsibilities date back (see Box 1). Some authors suggest more than 4,000 years to the Babyloni- that recognition of some hierarchy an Code of Hammurabi. This Code, the may be important for supporting key Old and New Testaments of the Bible, inderogable rights.11 Universality is the Analects of Confucius, the Koran, sometimes rejected on the grounds and the Hindu Vedas are five of the that human rights oldest written sources which address come from, and While human questions of people’s duties, rights, and reflect, western rights may responsibilities. In addition, the Inca cultural traditions, and Aztec codes of conduct and justice or more generally not exist solely and the Iroquois Constitution are Na- that universality is because they are tive American sources dating back well difficult to defend established in before the eighteenth century. Other given global cultural international law, pre-World War II documents, such as diversity.12 the English Bill of Rights, the US Con- international law stitution and Bill of Rights, and the Another widely rec- is an important French Declaration of the Rights of Man ognized but con- part of what and the Citizen, focused on civil and tested characteristic political rights.”5 is that human rights makes human are recognized and rights powerful. Some basic concepts supported in interna- There is growing consensus around the tional law. The point of some conten- recognition of human rights as being, tion here is whether or not such legal among other things: recognition is necessary for something Minimal standards of lives commen- to in fact be a human right13 One defini- surate with dignity;6 tion provided by the UN OHCHR makes Universal, i.e., they “belong to all peo- the following distinction: “Human rights ple, and all people have equal status are legally guaranteed by human rights with respect to these rights”7 by virtue law…expressed in treaties, customary of her or his being human;8 and international law, bodies of principles Interdependent and indivisible, i.e., and other sources of law. …. However, all political, civil, economic, social and the law does not establish human 15, July 2007 11 Conservation and Human Rights rights. Human rights are entitlements being free from all forms of that are accorded to every person as a discrimination.16 consequence of being human.”14 Thus, while human rights may not exist solely Of course the relationships between because they are established in interna- rights are very complicated, and this tional law, international law is an impor- is only one of many ways to categorize tant part of what makes human rights them. powerful. As Hausermann states, “Hu- man rights are a global vision backed by state obligations. The term “human rights” refers to those rights that have been recognized by the global commu- nity and protected by international legal instruments”.15 Collectively, the human rights recog- nized in international law today cover numerous dimensions of human well being and dignity, including: X substantive rights such as the rights to life, health, food, housing, and work; X procedural rights such as the Picture 2. All humans have a right to food rights to participate in political af- that is economically and physically ac- fairs, to information, and to access cessible over time, healthy, and culturally to justice; and acceptable. X cross-cutting principles including (Courtesy Grazia Borrini-Feyerabend) Box 1. Successive ‘generations’ and the principles of non-hierarchy and indivisibility Human rights have often been referred to in terms of first, second, and third ‘generations’.17 While such divisions have been disappearing since the end of the Cold War, and with increasing recognition of the principle of indivisibility, these ‘generations’ reflect historical treatment. The first generation encompasses civil and political rights, covered within the UN framework primarily by the International Covenant on Civil and Political Rights (ICCPR, 1966). These rights were primarily supported by western democratic states in the negotiations over the UDHR. While often regarded as negative rights —those that define actions duty-bearers (traditionally states) must refrain from taking against claims-holders (traditionally citizens)— it is increasingly recog- nized that protecting civil and political rights requires positive action (e.g., creating institutions to support the rule of law and an independent judiciary). In fact, all human rights have positive and negative obligations associated with them.18 Second generation rights include economic, social and cultural rights, covered within the UN framework primarily by the International Covenant on Economic, Social and Cultural Rights (ICE- SCR, 1966). These rights were most supported by socialist and communist states in the negotia- tions over the UDHR. While long seen as positive rights —those that define steps duty-bearers must actively take in support of claims-holders— as with first generation rights, it is now increas- ingly recognized that ESC rights have both negative and positive duties associated with them. In the 70’s, a third generation— solidarity rights— emerged, reflecting new concerns of the inter- 12 15, July 2007  What ARE Human Rights, anyway? national community. These include rights to peace, development, and environment. Articles 22 to 24 of the African Charter on Human and Peoples’ Rights (1981) reflect these emerging issues in protecting rights to “economic, social and cultural development”, “national and international peace and security”, and “a general satisfactory environment favourable to their development”. Some human rights theorists and practitioners question the legitimacy and usefulness of these rights, due in part to their collective character and fears that they will be difficult to clearly define and implement.19 Others believe, in contrast, that rights should be further expanded, adding a fourth generation that would include rights to protect human dignity from misuses of science.20 These generations, in addition to being a way of describing human rights’ historical acceptance at the international level, reflect a sense of hierarchy between categories that is slowly disap- pearing. However, the struggle to secure the place of economic, social, cultural, and other rights in the mainstream of human rights discourse and action continues: “The principle of the indivis- ible, interdependent and non-hierarchical nature of rights has become the mantra since the 1993 World Conference on Human Rights held in Vienna. However, social and economic rights still encounter a degree of scepticism (mostly US-led) as to their status as rights. Mainstream West- ern-based human rights NGOs only began to work on these since the mid-1990s.”21 Inter-and intra generational of the present without compromising rights the ability of future generations to do Calls for ‘inter-generational rights’ the same.23 Present generations have a reflect concern for equity, solidarity duty to protect and sustainably manage and responsibility between our gen- natural resources24 and the common eration and the future generations,22 heritage of humankind.25 In this sense, those at the heart of sustainable de- the precautionary principle aims to velopment aiming to meet the needs protect the rights of future generation by taking into account future irrevers- ibility of present decisions. But: who can represent future generations? How can we determine the needs and the contents of the rights of future genera- tions, as we cannot compare our needs to theirs? How can we guarantee re- spect for their rights?26 The rights of future generations were first expressed in the Stockholm Dec- laration (1972), and then restated in numerous international instruments (Rio Declaration Principle 3; Climate Change Convention Article 3; Conven- tion to Combat Desertification; and Convention on Biological Diversity, preamble). The International Court of Justice mentions “future generations” Picture 3. Inter-generational rights ad- in its advisory decision on the legality dress our obligations with respect to eq- of the threat or use of nuclear weap- uity, solidarity and responsibility between ons27 and in the Case concerning Gab- our generation and future generations. cikovo-Nagymaros.28 The Minors-Oposa (Courtesy IUCN Photo Library © IUCN / Jeffrey McNeely) case29 brought before the Supreme 15, July 2007 13 Conservation and Human Rights court of the Philippines provides a legal tion that some rights, in fact, are best example of the protection of future understood as essentially collective. generations. In this case, the plaintiffs For instance, recognition of the collec- (minors represented by their parents) tive rights of indig- filed a complaint in their name and enous people— to Collective rights “their yet unborn posterity”. The Court their land, resources, are particularly decided that the plaintiffs had the legal etc.— is essential important for capacity to sue in the name of future to their identity and generations based on the “concept of integrity. According understanding intergenerational responsibility insofar to a recent literature the significance of as the right to a balanced and healthful and issues review, indigenous peoples ecology is concerned.” UNESCO pro- “emerging human and local and claimed in 1997 the Declaration on the rights standards re- Responsibilities of the Present Genera- lating to indigenous mobile community tions Towards Future Generations.30 In peoples apply in large rights vis-à- contrast, ‘intra-generational rights’ are part to collectivi- vis conservation only concerned with responsibilities ties, focusing on the practice. among individuals and groups within rights of indigenous a given generation. This concept has peoples as a whole arisen primarily in the context of dis- rather than on indigenous individuals, cussion of (and demands for) equitable in accordance with their philosophies resource-sharing and distributive jus- (cosmovisions) and lifestyles, which are tice across states (specifically Southern much more based on collective prop- and Northern States).31 erty, knowledge generation, cultural identity and integrity”.33 Individual and collective rights In the traditional human rights frame- Indigenous Peoples and local work, rights holders are individuals. community rights However, some rights have a collective Collective rights are particularly im- character. A distinction must be made portant for understanding the signifi- between those individual rights with cance of indigenous peoples and local a collective dimension (they are exer- and mobile community rights vis-à-vis cised collectively by a group of people, conservation practice —the topic at the such as work-related rights operated heart of this journal. As stated by Ovie- through trade-unions) and collective do34 “From the conservation perspec- rights as such, in which the group itself tive, collective rights can have great (a people, minority, community) is impact. First of all, when applied to the holder. Article 27 of the ICCPR, for land, they are the basis for maintaining instance, protects minorities, but does the integrity of the territory and avoid- not recognize collective rights held by ing ecological fragmentation, which is a group per se. Rather, it recognizes in turn a key requirement for meaning- individual rights with collective dimen- ful biodiversity conservation. Secondly, sions, maintaining that it is the indi- collective rights provide a strong basis vidual members of the community who for the building and functioning of com- are rights-holders.32 munity institutions, which are indispen- sable for sound, long-term land and The understanding of human rights as resource management. Thirdly, they exclusively individual is slowly chang- strengthen the role of customary law ing in response to increasing recogni- as related to land management, and of 14 15, July 2007  What ARE Human Rights, anyway? traditional knowledge applied to broad- cal communities have emerged. These er territorial and landscape units.” include: X ILO Convention No. 169 Concern- Prior to the 1970s, human rights bodies ing Indigenous & Tribal Peoples were at best slow to address indige- in Independent Countries (1989), nous peoples’ issues. However, the last which was the first international decades have seen numerous positive convention to specifically address changes, including a growing body of indigenous peoples' human rights.39 international, regional and national However, relatively few states have law on indigenous peoples’ rights. In ratified this important instrument.40 sum, “[t]hanks to the lobbying efforts X Convention on Biological Diver- of indigenous representatives over the sity (CBD) (1992),41 which, among past 30 years, the rights of indigenous other things, advocates in Article peoples have received greater atten- 8j that States Parties “respect, pre- tion in the UN and in the international serve and maintain the knowledge, community, as a whole.”35 According to innovations and practices of indige- Ferrari, “[many] rights of indigenous nous and local communities embody- peoples relevant to biodiversity conser- ing traditional life styles relevant for vation [are] already established under the conservation and sustainable the UN system”.36 Colchester summa- use of biological diversity”; that they rises recognized indigenous peoples’ “promote their wider application with rights applicable to protected areas as the approval and involvement of the follows:37 holders of such knowledge, innova- X Self-determination tions and practices”; and that they X Freely dispose of their natural wealth “encourage the equitable sharing of and resources the benefits arising from the utiliza- X In no case be deprived of their tion of such knowledge, innovations means of subsistence and practices”. Article 10(c) advo- X Own, develop, control and use their cates that States Parties “protect communal lands, territories and re- and encourage customary use of bio- sources, traditionally owned or oth- logical resources in accordance with erwise occupied by them traditional cultural practices that X The free enjoyment of their own cul- are compatible with conservation ture and to maintain their traditional or sustainable use requirements”. way of life Further, under its 2004 Programme of Work on Protected Areas, the X Free and informed consent prior to CBD suggests that parties “[e]nsure activities on their lands that any resettlement of indigenous X Represent themselves through their communities as a consequence of own institutions the establishment or management X Exercise their customary law of protected areas will only take X Restitution of their lands and com- place with their prior informed con- pensation for losses endured. sent that may be given according to national legislation and applicable In addition to relevant provisions in international obligations.”42 several core human rights treaties,38 X The (Draft) Declaration on the in more recent decades a set of instru- Rights of Indigenous Peoples ments specifically addressed to indig- which would, among other things ad- enous peoples and, to a less extent, lo- dress rights to secure tenure of land 15, July 2007 15 Conservation and Human Rights currently or previously occupied; of two or more of these social groups.44 free, prior informed consent; resti- One important distinction between lo- tution of lands lost; conservation of cal communities and indigenous peo- the ‘total environment’; and control ple, made more of development priorities.43 complicated by One important this ambigu- distinction between Despite this, many states continue to ity, concerns the local communities express reluctance to recognizing col- collective rights and indigenous lective rights for indigenous peoples, recognized for and perhaps even more so for minori- each. What rights peoples, made ties and non-indigenous communities. are accorded to more complicated This reluctance is expressed on the non-indigenous by definitional grounds of national unity, fearing that local communities collective rights open the door to new in relation to land ambiguity, concerns claims of and demands for self-de- and resources, the collective rights termination and sovereignty. Several customary laws recognized for each. states (acting in their capacity as Gen- and institutions, eral Assembly members) postponed language and cultural practices?45 adoption of the Declaration on the Given the diversity of social groups that Rights of Indigenous Peoples in part for the term may encompass, the answer these reasons. may be to analyze which rights each group is accorded by international law (such as Farmers Rights under the 2001 International Treaty on Plant Genetic Resources for Food and Agri- culture), or to try to develop a broad based ‘integrated rights approach’ that could apply to the various social groups concerned,46 such as the concept of Traditional Resource Rights.47 With few exceptions (see CBD Article 8j above), international law does not, yet, widely acknowledge collective rights of local communities. The importance of collective rights, Picture 4. An example of 3-D model- particularly as they relate to land and ling built by the Karen people of Chom natural resource access, often arises in Tong District (Northern Thailand) to illus- the context of protected areas establish- trate their ancestral territory. ment and management. Protected areas (Courtesy Grazia Borrini-Feyerabend) have been, and are likely to continue to be, a core conservation strategy. While the ecological services they protect and The status of local community rights provide can contribute to human rights is more ambiguous, in part because in important ways, over the last two their standing as clearly defined groups centuries protected areas have often may also be more ambiguous. In the been established on land held in com- context of conservation, local commu- mon property by indigenous peoples nities may be farmers, fishers, pasto- or local communities, resulting in phy- ralists, mobile people, etc, or a mixture 16 15, July 2007  What ARE Human Rights, anyway? sical displacement or severely restric- are less important in relation to protec- ted resource access. This in turn often ted areas than else where”.48 However, resulted in conflicts and resistance that as can be seen in many of the cases in many cases continues today. Borrini in this journal, protected areas related et al., point out that “[t]oday, few peo- displacement (including through re- ple argue against the need to engage stricted resource access) of indigenous positively with resident or neighbouring peoples and local and mobile communi- communities in protected area manage- ties remains an issue demanding serious ment, and probably no-one would de- attention and action.49 fend the proposition that human rights Box 2. Defining Indigenous Peoples and Local Communities (Adapted from Ferrari 2005) Indigenous Peoples There is no internationally accepted definition of the term 'indigenous peoples'. However, the recognition of indigenous status is important in part because of the rights that are attached to it. The term has increasingly been gaining international attention since the 1970s in the con- text of debates about the rights of ‘ethnic minorities’, ‘tribal peoples’, ‘natives’, ‘aborigines’ and ‘indigenous populations’, who in varying forms have suffered, and continue to suffer, discrimina- tion, marginalisation and human rights violations as a result of colonialism, and post-colonial processes of nation-building, development and modernisation.50 The term ‘indigenous peoples’ has been adopted by a broad movement of self-identified peoples as it is the only category that offers them with clearly recognized collective (group) rights. Although a large number of governments and international agencies have accepted this approach, many governments still object to recognition of indigenous peoples’ inherent rights.51 For one widely used definition, we can look to the International Labour Organization Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries,52 ‘statement of coverage’ (Art. 1): “1. This Convention applies to: (a) Tribal peoples in independent countries whose social, cultural and economic conditions dis- tinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations; (b) Peoples in independent countries who are regarded as indigenous on account of their de- scent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present State boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions. 2. Self-identification as indigenous or tribal shall be regarded as a fundamental criterion for de- termining the groups to which the provisions of this Convention apply.” Significantly, this definition differs from many others,53 perhaps in part because it makes explicit reference to self-identification and deals with both Indigenous and Tribal Peoples, clearly estab- lishing its applicability to all regions of the world.54 Local Communities The term 'local communities' has also increasingly been used in development and conservation debates but it has also proved elusive in terms of a definition, as it may carry different meanings in different countries and contexts. Two definitions— both relevant to the issues arising in this jour- nal, and both demonstrating the diversity and complexity in defining local communities— are listed below. 15, July 2007 17 Conservation and Human Rights “A community is a human group sharing a territory and involved in different but related aspects of livelihoods—such as managing natural resources, producing knowledge and culture, and devel- oping productive technologies and practices. Since this definition can apply to a range of …it can be further specified that the members of a “local community” are those people that are likely to have face-to-face encounters and/or direct mutual influences in their daily life….A local commu- nity could be permanently settled or mobile.”55 A local community is “…a socially and geographically defined group of people, not necessarily homogeneous, living close to the natural resources and [protected areas] at stake. These people may have customary rights of use, distinctive knowledge and skills and direct dependency on natural resources as individuals or groups of individuals. They also, however, have a close and unique relationship to the natural resources as a community.”56 Rights addressees (duty- many instruments protecting economic, bearers) and their obligations social, and cultural rights. The ICESCR, Human rights imply corresponding obli- for example, allows for ‘progressive realization’ of gations or duties. According to the 2000 While states remain the World Development Report, “Duty bear- certain aspects of the rights focus of human rights, ers are the actors collectively responsi- ble for the realization of human rights. it covers, and it is becoming more Those who bear duties with respect to provides a important for non-state a human right are accountable if the margin of dis- cretion allow- actors to recognize their right goes unrealized. When a right has ing states par- responsibilities towards been violated or insufficiently protect- ed, there is always someone or some ties to decide human rights. institution that has failed to perform a which policies duty.”57 Such obligations are directed they want to enact to meet obligations. primarily to the government of that These provisions oblige states parties person’s state, which has duties to:58 to make progressive steps, reflecting their maximum available resources, X Respect rights: refrain from taking toward full rights realization in ways actions that interfere with the exer- that are realistic for and appropriate to cise of a right; their context. Progressive realization X Protect rights: ensure that third does not allow inaction or discrimina- parties (e.g., private individuals, tion, however, and certain steps must businesses, NGOs, etc.) do not take be taken immediately, e.g., removing actions that interfere with the exer- legislation that actively undermines cise of rights; and people’s ability to fulfil their own right X Fulfil rights: develop an enabling to food or other ESC rights.59 environment (through legislation, budgetary policy, public policies, etc) While states remain the focus of hu- in which people can fulfil their rights, man rights, there is a growing realiza- and provide services to more directly tion within the international commu- fulfil rights when people are not able nity that, in an era of shrinking roles to do so for themselves. of states and increasing scope of civil society and private sector action, it is Not all states can fully meet all these important for non-state actors (i.e., requirements in the same way, or at ‘third parties’) to recognize their re- the same time, a fact recognized in sponsibilities towards human rights. 18 15, July 2007  What ARE Human Rights, anyway? This is true both in traditional cases, Human rights instruments where states hold non-state actors ac- UN Covenants and Treaty Bodies countable through binding law, but also Partly in response to the global atroci- increasingly where states do not, or ties experienced during WWII, states cannot, hold non-state actors directly came together in the UN and, with accountable. The nature and scope of pressure from citizens acting through non-state actors’ responsibilities, how- NGOs,61 drafted the United Nations ever, remain highly debated.60 Charter, the Universal Declaration of Human Rights (UDHR) and several le- gally binding human rights conventions that laid the groundwork for much of contemporary internal law addressing human rights. Human rights covenants are legally binding for states parties, i.e., those states that fully ratify them. Each covenant is overseen by a UN “treaty body” (bodies set up to supervise implementation of obligations under specific binding covenants). Table 1 includes some of the key UN covenants and the names of their corresponding treaty bodies. None of the core covenants mentioned Picture 5. Participation can be seen as above specifically addresses conserva- both a right in itself, and as a means for tion practice or grants rights to sustain- realizing other rights. able and healthy environments. (Courtesy Grazia Borrini-Feyerabend). Table 1. Some human rights treaties and their corresponding supervisory treaty bodies Human rights treaty62 Corresponding supervisory body63 The International Covenant on Civil and Political The Human Rights Committee Rights (ICCPR) The International Covenant on Economic, Social and The Committee on Economic, Social and Cultural Rights (ICESCR) Cultural Rights The International Convention on the Elimination of The Committee on the Elimination of All Forms of Racial Discrimination (CERD) Racial Discrimination The Convention Against Torture and Other Cruel, In- The Committee Against Torture human or Degrading Treatment or Punishment (CAT) The Convention on the Elimination of All Forms of The Committee on the Elimination of Discrimination Against Women (CEDAW) Discrimination Against Women The Committee on the Rights of the The Convention on the Rights of the Child (CRC) Child 15, July 2007 19 Conservation and Human Rights However, they contain many rights that guidelines, standard rules and recom- are linked to the environment includ- mendations— which do not establish ing the rights to self-determination and legal obligations but do establish im- permanent sovereignty over natural portant moral obligations. In some resources, life, health, food, safe and cases (as in the case of the UDHR65) healthy working conditions, housing, such instruments may attain the status information, participation, freedom of of international customary law. Table association, and culture.64 2 provides examples of some of the instruments that may be of interest to Within the UN framework there are also conservation professionals. a large number of non-binding instru- ments— e.g., declarations, principles, Table 2. Examples of non-binding instruments relating to human rights in UN framework66 Vienna Declaration and Programme of Action United Nations Millenium Declaration United Nations Declaration on the Granting of Independence to Colonial Countries and Peoples General Assembly resolution 1803 (XVII) of 14 December 1962, “Permanent sovereignty over natural resources” Universal Declaration on the Eradication of Hunger and Malnutrition Voluntary Guidelines to Support the Progressive Realization of the Right to Adequate Food in the Context of National Food Security Declaration on the Right to Development Stockholm Declaration; (Principle l ) Rio Declaration on Environment and Development; (Principles 1 and 10) Dublin Statement on Water and Sustainable Development Draft Declaration on the Rights of Indigenous Peoples Draft Declaration of Principles on Human Rights and the Environment Finally, a number of international generally “hold broad human rights agreements and conventions, which are mandates, address an unlimited audi- not strictly human rights conventions, ence and take action based on major- deal at least implicitly with rights and ity voting.”67 These bodies thus deal concerns of people in connection to the with broad human rights trends, in- use of natural resources. Two notable, cluding convening research and action previously mentioned instruments are around emerging human rights (like ILO Convention No. 169 and the Con- environmental human rights) and can vention on Biological Diversity. in some cases take action against states for rights violations even where UN human rights charter bodies those states may not have ratified The United Nations Charter and specific conventions. There are two subsequent General Assembly (GA) currently operating UN Charter Bod- resolutions also set up several bodies, ies, explained briefly below. referred to as “charter bodies”, which 20 15, July 2007  What ARE Human Rights, anyway? The Human Rights Council68 has re- rapporteurs, undertakes various sponsibility for various, broad human studies on emerging human rights rights initiatives. The Council over- issues, and reports to the Human sees “special procedures”, which refer Rights Council.73 to various mechanisms the Coun- cil sets up to address human rights Regional bodies & instruments situations in a specific country, or an There is a vast network of regional emerging thematic issue. One well human rights bodies and instruments, known mechanism is the appointment which often reflect the most important of “special rapporteurs”, independent issues for a particular region.74 Further, experts that are mandated to inves- most states include at least some set tigate and report on specific topics of human rights in their constitutions for specific periods of times. Among or national laws. In her final report, the many current special rapporteurs the Special Rapporteur on Human are: Mr. Rodolfo Stavenhagen, on “the Rights and the Environment shows situation of human rights and funda- that at least 61 countries have made mental freedoms of indigenous peo- provisions for the environment in their ple”; Mr. Okechukwu Ibeanu, on “the constitutions,75 many of which either adverse effects of the illicit movement explicitly or implicitly link environment and dumping of toxic and dangerous to human rights. In fact, it is in part products and wastes on the enjoy- through provisions in national law that ment of human rights”; and Mr. Jean states parties are Zielger, on the right to food. Ms. …at least expected to meet Fatma Zohra Ksentini, former special their obligations 61 countries rapporteur on human rights and the under international have made environment, gave her final report in human rights instru- provisions for 1994. This report included the Draft ments. Principles on Human Rights and the the environment Environment.69 Special procedures Table 3 lists some in their can be important for exploring and regional bodies and constitutions, advancing new issues in the human some of the key in- many of which rights framework and, as explained struments they have briefly below, can sometimes pro- established. There either explicitly vide an additional avenue for people are many general or implicitly link to raise individual complaints about sources available environment to rights violations. The Council over- for anyone seeking sees some working groups, which can human rights… more information act as forums for raising, exploring, about such institutions in their region and gaining greater recognition for or state.76 emerging rights principles. Two of the current working groups address rights Procedures to address human of indigenous peoples70 and the right rights violations to development.71 Part of what makes human rights pow- The other main UN charter body erful is the ability to take recourse is the Subcommission on the Pro- in international law systems against motion and Protection of Human rights violations. Processes for seek- Rights,72 which reviews reports ing remedies exist at all levels —the from working groups and special international UN bodies, regional bod- ies, and many national bodies.77 While 15, July 2007 21 Conservation and Human Rights Table 3. Some key regional human rights bodies and instruments Regional Body Key Instruments African Commission on Human African Charter on Human and Peoples' Rights and Peoples' Rights Asian Human Rights Commis- Asian Human Rights Charter sion Convention for the Protection of Human Rights and Funda- Council of Europe mental Freedoms European Social Charter Council of the League of Arab Arab Charter on Human Rights States European Union The Charter of Fundamental Rights of the European Union Inter-American Commission on American Convention on Human Rights Human Rights United Nations Economic Com- Convention on Access to Information, Public Participation in De- mission for Europe cision-making and Access to Justice in Environmental Matters important, the universal mechanisms tion on a country’s implementation. The for human rights enforcement are treaty body will consider all available non-judicial, and often criticized for information and then publish a report, being weak as decisions are not bind- called ‘concluding observations’, stating ing in the name of state sovereignty.78 its concerns and making recommen- However, non-binding instruments can dations.80 Additional information from have strong political and public opinion non-state actors can be important for consequences on states. raising issues that may not be reflected in states’ own reports, and may serve Within the UN framework, depending as an impor- on the nature of the rights violation and tant avenue for Additional information the party bringing the complaint, one action in cases from non-state actors can use either the treaty bodies or the where there can be important for charter bodies discussed above, each isn’t a process having specific advantages and disad- for individual raising issues that may vantages.79 complaints (i.e., not be reflected in states’ under the ICE- own reports, and may Complaints mechanisms under the SCR). 81 serve as an important UN treaty bodies In addition to avenue for action in Any state party to a UN human rights convention is required to submit peri- reports, there cases where there isn’t odic reports to the corresponding treaty are some cases a process for individual body to describe its progress and chal- in which an indi- complaints. lenges in meeting its obligations. Some vidual can bring non-state actors, including NGOs, UN a complaint against a state directly to a agencies, the press, academic institu- treaty body. Such complaints must be tions, and other international bodies can brought to the supervisory body for the also submit reports or other informa- convention in question, and procedures vary by convention. For instance, under 22 15, July 2007  What ARE Human Rights, anyway? the ICCPR, individuals can submit com- wing the admissibility of petitions which plaints under what is called the ‘optional can be submitted by individuals) or by protocol’ to this convention if their state a State. Contrary to the ECHR, indi- has both ratified the convention and ac- vidual complaints cannot be brought cepted the optional protocol. In the case before the Court. of the ICESCR, there is currently no Jessica Campese (jessica@cenesta.org) has a Masters in similar provision for individuals to bring Public Policy, with a research focus on collaborative natural complaints against their state.82 resource management and community driven development. She is currently a Fulbright Fellow (Geneva, Switzerland) working with IUCN/CEESP/TGER and the Graduate Institute Complaints mechanisms under the for Development Studies (University of Geneva) on develo- UN charter bodies ping human rights approaches to conservation. Armelle Guignier (armgui@yahoo.fr) is a PhD candidate in UN charter bodies allow more options International law at the University of Limoges, France. Her for individuals to bring complaints subject deals with the links between food security, the envi- ronment and trade in developing countries. Her areas of in- again states even when those states terests are biodiversity law and agrobiodiversity, indigenous may not have ratified particular con- peoples, and international environmental and development ventions. For instance, under what law in general. She is also a program officer at the Centre International de Droit Comparé de l’Environnement (CID- is commonly called ‘the 1503 Proce- CE), an NGO member of IUCN. Armelle is a member of both dure’, an individual or group can file CEL and CEESP/TGER. a complaint with the Human Rights Council regarding a “consistent pattern Notes of gross and reliably attested viola- 1 UNDP, 2000, P16. tions of human rights and fundamental 2 See, for instance, Bromley, 1989, p42. freedoms occurring in any country of 3 UNDP, 2000, P16. 4 See Hausermann, 1998 for further discussion. the world”, even where the alleged 5 Shiman, 1999 at http://www1.umn.edu/humanrts/ violator is not a state party. Processes edumat/hreduseries/tb1b/Section1/tb1-2.htm and stipulations for filing such a pro- 6 See, for a general discussion of rights as minimum cedure can be found on the OHCHR standards, Stanford Encyclopedia of Philosophy, website.83 In some cases, individuals http://plato.stanford.edu/entries/rights-human/ 7 UNDP, 2000, p16. can also raise rights violations with the 8 “It is the universality of human rights that distin- holders of “special procedures” man- guishes them from other types of rights— such as dates (e.g., special rapporteurs). This citizenship rights or contractual rights” (Hauser- depends largely on the rules of a given mann 1998, p28, emphasis in original). special procedure.84 9 This characteristic, while now widely accepted, reflects a relatively recent change explained el- sewhere in this paper. Complaints mechanisms under 10 For example, according to Sen (2000, p.25), regional instruments some countries in Asia followed the “Lee thesis”, named for Lee Kuan Yew, former Prime minister of The European Court of Human Rights Singapore, which advocates authoritarian political (ECHR) is open to any contracting regimes to strengthen economic development. On the contrary, Sen (2000, p.151-164) has demon- States of the European Convention of strated the necessary interdependence between Human Rights and also to individual public freedoms and economic development. complaints alleging a breach by a con- 11 Teraya, 2001, p917. tracting State of one the Convention 12 See works of anthropology of law, including Le Roy, 1992. rights. The Inter-American Court of 13 See, for instance, Maggio and Owen, 1997. Human Rights with the Inter-American 14 UN Guide for Indigenous Peoples, leaflet 2, p1 Commission on Human Rights85 make (emphasis in original) up the Human Rights protection system 15 Hausermann, 1998, p25. of the Organization of American States. 16 See Hausermann 1998, p27 for background on Complaints can be brought before the this categorization, including ‘cross-cutting’ rights Court by the Commission (after revie- 17 The division of human rights into 3 generations dates back to 1977. Its origin is attributed to Karel 15, July 2007 23 Conservation and Human Rights Vasak, Professor of human rights. A proposal for a 48 Borrini-Feyerabend et al., 2004, p7. third International Covenant was drafted in 1982. 49 For background and specific case studies on these See Vasak, 1984. issues see, among others, West and Brechin, 1991; 18 Hausermann, 1998, p30. Ghimire and Pimbert, 1997; Colchester 2003; Bor- 19 Sudre,2005, p.101-109. rini-Feyerabend et al., 2004; and Brockington 2006. 20 Helmons, 2000. 50 Colchester, 1992. 21 Nyamu-Musembi and Cornwall, 2004, p8. 51 Kingsbury, 1998. 22 Principles 3, 7, Rio Declaration. 52 International Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Coun- 23 Brown, 1993. tries. http://www.unhchr.ch/html/menu3/b/62.htm 24 Jonas, H. 53 See, for example the definition used by the UN 25 Karagiannis, 2006, p.67. Working Group on Indigenous Populations: “'Indi- 26 Kiss and Beurrier, 2004, p.150. genous communities, peoples and nations are those which, having a historical continuity with pre-in- 27 “The Court also recognizes that the environment is vasion and pre-colonial societies that developed not an abstraction but represents the living space, on their territories, consider themselves distinct the quality of life and the very health of human from other sectors of the societies now prevailing beings, including generations unborn” point 29; in those territories, or parts of them. They form at see also points 35 and 36. (8 July 1996) present non-dominant sectors of society and are 28 Judgement of September 25,1997. determined to preserve, develop and transmit to 29 La Viña, 1994. future generations their ancestral territories, and 30 Adopted during the 29th session of the General their ethnic identity; as the basis of their conti- conference of UNESCO, 12 November 19997. nued existence as peoples, in accordance with www.unesco.org their own cultural patterns, social institutions and legal systems”(Cobo, 1986, cited in Ferrari 2005, 31 Cullet P, 1998, and generally Maggio and Lynch, sec.1.4.3). 1997. 54 Kingsbury, 1998. 32 Herczegh, 1998, p.172. 55 Borrini-Feyerabend et al., 2004, p9. 33 Ferrari 2005, drawing on Mackay 2002. 56 Kothari 2001, p14. 34 Oviedo 2002, p22. 57 UNDP, 2000, p16. 35 UN Guide for Indigenous Peoples, leaflet 1, p4. 58 This set of obligations is widely recognized by 36 Ferrari 2005, sec.2.3.1, p52. bodies that oversee rights at the international and 37 Colchester, 2003 (pp.16-17), cited in Ferrari 2005, regional levels. See Amnesty International (2005: sec.2.3.1, p52. 49) for more a more detailed summary of the cur- 38 See, for example, ICCPR Art. 1 and 27; ICESCR, rent usage. and CERD 59 This is a simplified interpretation of a much richer 39 ILO Convention 169 devotes articles 13 to 19 to discussion of the nature of state obligations on indigenous peoples’ land rights the right to food in CESCR General Comment 12 (1999). Also see General Comments 3 and 9 for 40 As of February 2007, 18 States have ratified the other relevant discussions. Convention: Argentina, Bolivia, Brazil, Colombia, Costa Rica, Denmark, Dominica, Ecuador, Fiji, 60 Jean Ziegler (2003, para.32), Special Rapporteur Guatemala, Honduras, Mexico, Norway, Paraguay, on the right to food, stated the following: “Under The Netherlands, Peru, Spain, Venezuela the traditional application of human rights law, it is usually only possible to hold a Government to 41 Convention text and related text can be found at account for violations of human rights; it is still not http://www.biodiv.org/convention/convention. well understood how a corporation could be held to shtml account for human rights violations. However, new 42 CBD Programme of Work on Protected Areas 2.2.5 developments are occurring within the study of at http://www.biodiv.org/programmes/cross- human rights and it is now increasingly understood cutting/protected/wopo.asp?prog=p2 (26 April, that there are two key ways of holding corpora- 2007). tions to respect human rights — one indirect, the 43 Through it will not be legally binding, “[t]he draft other direct...” [UN] declaration on the rights of indigenous Also see Clapham, 2006 for a discussion on some peoples represents one of the most important of the key positions among international lawy- developments in the promotion and protection ers and scholars on this emerging issue, and his of the basic rights and fundamental freedoms of argument for an expanded understanding of legal indigenous peoples.” (UN OHCHR 1997, p5) obligations for non-state actors. 44 Ferrari 2005, sec. 1.4.4 61 Shiman, 1999 at http://www1.umn.edu/humanrts/ edumat/hreduseries/tb1b/Section1/tb1-2.htm 45 Ferrari 2005, (sec. 1.4.4) poses this question and provides detailed discussion. 62 See http://www.ohchr.org/english/law/index.htm for links to all major UN instruments 46 Craig and Mayo, 1995. 63 Links to the UN Treaty Bodies available at: http:// 47 Posey, 1999. www.ohchr.org/english/bodies/treaty/index.htm 24 15, July 2007  What ARE Human Rights, anyway? 64 Zohra Ksentini, 1994, par 163— 243. The World Conservtion Union, Gland and Cam- 65 UNDP, 2000, p87. bridge, 2004. 66 Each instrument can be downloaded at Brockington, D., J. Igoe, and K. Schmidt-Soltau, http://www.ohchr.org/english/law/index.htm “Conservation, human rights, and poverty reduc- tion”, Conservation Biology, 20: 250-252, 2006. 67 UN Documentation: Research Guide http://www. un.org/Depts/dhl/resguide/spechr.htm Bromley, D.W., Economic Interests and Institution: The Conceptual Foundations of Public Policy, Basic 68 The HRC was established in March 2006 (GA Blackwell, Oxford, 1989. resolution 60/251). It continues the work of the Commission on Human Rights, which concluded Brown, W.E., Justice pour les générations futures : its final session in March 2006. See http://www. droit international, patrimoine commun et équité un.org/Depts/dhl/resguide/spechr.htm intergénérations, Sang de la terre, Paris, 1993. 69 As found in the report prepared by Ksentini, 1994. Clapham, A., Human Rights Obligations of Non-State Actors, Oxford University Press, New York, 2006. 70 http://www.ohchr.org/english/issues/indigenous/ groups/groups-02.htm Colchester, M. and F. MacKay, In search of Middle Ground: Indigenous Peoples Collective Represen- 71 http://www.ohchr.org/english/issues/development/ tation and the Right to Free Prior and Informed groups/index.htm Consent, Paper presented to the 10th Conference 72 The subcommission was established by the Com- of the International Association for the Study of mission on Human Rights in 1946. It was called Common Property, Oaxaca, August 2004, electronic the Subcommission on Prevention of Discrimination publication October 2004. Available at http://www. and Protection of Minorities until its name changed forestpeoples.org/documents/law_hr/fpic_ips_text_ in July 1999. See http://www.un.org/Depts/dhl/ only_aug04_eng.pdf (6 June 2007) resguide/spechr.htm for more information. Colchester, M., Salvaging Nature: Indigenous Peoples, 73 http://www.ohchr.org/english/bodies/subcom/in- Protected Areas and Biodiversity Conservation, dex.htm World Rainforest Movement and Forest Peoples Pro- 74 UN Guide for Indigenous Peoples, leaflet 2, p10. gramme, online publication August 2003. Available at http://www.wrm.org.uy/subjects/PA/texten.pdf 75 See Annex III the final report prepared by Ksentini, (6 June 2007) 1994. Colchester, M., Sustaining the Forests: The Com- 76 See, for instance, links available from University of munity-based Approach in South and South-East Ottawa human rights database at Asia, United Nations Research Institute for Social http://www.cdp-hrc.uottawa.ca/links/sitesint_ Development, Geneva, 1992. e.html Committee on Economic, Social and Cultural Rights 77 For a more complete summary, see the UN OHCHR (CESCR), General Comment 12 on the Right to Fact Sheet 7, Complaints Procedures Adequate Food, UN Document E/C.12/1999/5, 78 Dupuy, 2006, p.248. 1999.available at http://www.unhchr.ch/tbs/doc. 79 Specific advantages and disadvantages are ex- nsf/(Symbol)/d02758c707031d58025677f003b73b plained in detail in the UNOHCHR Fact Sheet 7, 9?Opendocument Complaints Procedures Craig, G. and Mayo, M. (Eds.), Community Empower- 80 Summary adapted from OHCHR web resources at ment: A Reader in Participation and Development, http://www.ohchr.org/english/bodies/treaty/index. Zed Books, London and Atlantic Highlands (New htm Jersey), 1995. 81 Sudre, 2005. Cullet, P., Differential treatment in international envi- 82 Summary adapted from OHCHR web resources at ronmental law: a new framework for the realisation http://www.ohchr.org/english/bodies/treaty/index. of sustainable development, unpublished disserta- htm tion, 1998. 83 See, in particular UNOHCHR Fact Sheet 7, Com- Dupuy, P.M., Droit international public, Dalloz, 8ième plaints Procedures ed., (Paris), 2006. 84 See http://www.ohchr.org/english/bodies/chr/spe- Ferrari, M.F., The Role of Indigenous Peoples and Lo- cial/complaints.htm for more information cal Communities in the Implementation of the Con- vention on Biological Diversity in Southeast Asia, 85 See for the Court http://www.corteidh.or.cr and for Dissertation, The Open University, UK, March 2005. the Commission http://www.cidh.oas.org Ghimire, K. B. and M. P. Pimbert (eds.), Social Change and Conservation. Environmental politics References and impacts of national parks and protected areas, UNRISD, Geneva and Earthscan, London, 1997. Amnesty International, Human rights for human dignity: A primer on economic, social and cultural Hausermann, J., A Human Rights Approach to De- rights, Amnesty International Publications— In- velopment, A Discussion Paper Commissioned by ternational Secretariat, London (United Kingdom), the Department for International Development of 2005. the UK Government, Rights and Humanity, London, 1998. Borrini-Feyerabend, G., Kothari, A. and Oviedo, G., Indigenous and Local Communities and Protected Herczegh, G., “Droits individuels et droits collectifs Areas: Towards Equity and Enhanced Conservation, (Mythes et réalités)”, pages 171-187 in Frison- 15, July 2007 25 Conservation and Human Rights Roche (ed.), Les hommes et l’environnement : en “rights-based approach” all about? Perspectives hommage à Alexandre Kiss, Paris, 1998. from international development agencies, IDS Jonas, H., Le principe responsabilité, Une éthique Working Paper 234, Brighton (UK), November, pour la civilisation technologique, Le Cerf, Paris, 2004. http://www.ids.ac.uk/ids/bookshop/wp/ 2001. wp234.pdf (November 2006) Karagiannis, S., “Patrimoine commun de l’humanité et Oviedo, G., Lessons learned in the establishment and droits des générations futures ” pages 65-71 in En- management of protected areas by indigenous and vironnement et renouveau des droits de l’homme. local communities, South America: enhancing equi- Actes du colloque de Boulogne-sur-Mer 20-21 no- ty in the relationship between protected areas and vembre 2003, La Documentation Française, 2006. indigenous and local communities in the context of global change, 2002. www.iucn.org/themes/ceesp/ Kingsbury, B., "Indigenous Peoples" in international Publications/TILCEPA/CCA-GOviedo.pdf law: a constructivist approach to the Asian contro- versy, The American Journal of International Law, Posey, D. A., Cultural and Spiritual Values of Bio- 92, 3, pp. 414-457, 1998. diversity, Intermediate Technology Publications, London,1999. Kiss, C.A., and J.P. Beurrier, Droit International de l’environnement, Pedone, Paris, 2004. Sen, A., Un nouveau modèle économique : dévelop- pement, justice, liberté, Ed. Odile Jacob, 2000. Ksentini, F.Z. (Special Rapporteur on Human Rights and Environment, preparer), Review Of Further Shiman, D., Economic and Social Justice: A Human Developments In Fields With Which The Sub-Com- Rights Perspective, Human Rights Resource Center, mission Has Been Concerned Human Rights And University of Minnesota, Human Rights Education The Environment, Final report for the Commission Series, electronic publication, 1999. Available at on Human Rights, Sub-Commission on Prevention http://www1.umn.edu/humanrts/edumat/hredu- of Discrimination and Protection of Minorities Forty- series/tb1b/index.html (10 February 2007) sixth session, 1994. Sudre, F., Droit international et européen des droits Kothari, A., “Local communities, equity, and protected de l’homme, Paris, PUF, 7ième éd., 2005. areas: A joint work theme of IUCN’S WCPA and Teraya, K., “Emerging hierarchy in international hu- CEESP— Vision Statement”, CM NEWS: Newsletter man rights and beyond : from the perspective of of the IUCN Collaborative Management Working non-derogable rights”, European Journal of Interna- Group, Commission on Environmental, Economic tional Law, 12 (5) : 2001. and Social Policy (CEESP), No. 5, October 2001. United Nations Development Program (UNDP), Hu- Available at man Development Report 2000: Human rights http://www.iucn.org/themes/ceesp/Publications/ and human development. Oxford University Press, CMWG/CMNews5.PDF (20 May 2007) New York (New York), 2000. http://hdr.undp. La Viña, A. G. M., “The Right to a Sound Environment org/reports/global/2000/en/pdf/hdr_2000_ch0.pdf in the Philippines: The Significance of the Minors (November 2006) Oposa Case”, Review of European Community and United Nations Office of the High Commissioner for International Environmental Law, 3(4): 246-252, Human Rights (UN OHCHR), ‘Draft Guidelines: 1994. A Human Rights Approach to Poverty Reduction Le Roy, E., “Les fondements anthropologiques des Strategies’, electronic publication, 2002, at http:// droits de l’homme. Crise de l’universalisme et post www.unhchr.ch/development/povertyfinal.html modernité”, Revue de la Recherche Juridique— (December 2006). Droit prospectif, 1, 1992. UN OHCHR, United Nations Guide for Indigenous Peo- Mackay, F., “The rights of Indigenous Peoples in inter- ples, United Nations Guide Series No. 1, electronic national law”, pp. 9-30 in L. Zarsky (ed.), Human publication, http://www.ohchr.org/english/issues/ Rights & the Environment: Conflicts and Norms in a indigenous/guide.htm (December 2006). Globalizing World, Earthscan, London and Sterling UN OHCHR, Complaints Procedure, Fact Sheet (Virginia), 2002. No.7/Rev.1, electronic publication at http://www. Maggio, G. and Owen J.L., Human Rights, Environ- ohchr.org/english/about/publications/docs/fs7.htm ment, and Economic Development: Existing and (December 2006). Emerging Standards in International Law and Glob- Vasak, K., “Pour une troisième génération des droits al Society, Center for International Environmental de l’homme” pages 837-850 in Etudes et Essais sur Law, Revised Draft, Online Paper 3, November 15 le droit international humanitaire et sur les princi- 1997. http://www.ciel.org/Publications/olpaper3. pes de la Croix-Rouge en l’honneur de Jean Pictet, html (November 2006) Martinus Nijhoff Publishers, 1984. Marcus, H.S., “La quatrième génération des droits de West, P.C. and S.R. Brechin (eds.), Resident Peoples l’homme”, pages 549-559 in Les droits de l’homme and National Parks, University of Arizona Press, au seuil du troisième millénaire. Mélanges en hom- Tucson, Arizona (USA), 1991. mage à Pierre Lambert, Bruxelles, Bruylant, 2000. Ziegler, J. (Special Rapporteur on the right to food), Meyer-Bisch, P., “D’une succession de générations à Note by the Secretary-General, 28 August 2003, UN un système des droits humains”, pages 333-354 in Doc. A/58/330 Karel Vasak Amicorum Liber. Les droits de l’homme à l’aube du XXIe siècle, Bruxelles, Bruylant, 1999. Nyamu-Musembi, C. and A. Cornwall, What is the 26 15, July 2007  What ARE Human Rights, anyway? Human rights and the environment— a practical guide for environmental activists Stefano Sensi* Abstract. This article analyses the links between human rights and environmental protection, with a view to clarifying the way, and the extent to which, the mechanisms and procedures established by human rights instruments adopted at the universal and regional levels may be used by environmental activists to pursue protection of the natural environment. It provides an overview of the ‘environmental’ jurisprudence of international human rights mechanisms, focusing on those human right provisions that are more frequently invoked to address cases of environmental harm. The article argues that the recognition of a substantive right to a healthy environment is not necessary, and may not even be desirable. The mechanisms and procedures set forth in international human rights instruments already provide a useful tool to environmental activists challenging State environmental policies and practices that prevent or limit the enjoyment of the rights set forth in human rights treaties. T he existence of a link between a safe and healthy environment and the enjoyment of human rights has long been recognised in public international law.1 Water and air pollution, loss of biodiversity, desertification and similar phenomena of environmental degrada- tion do not only affect the quality of the natural environment, but also have a negative impact on human beings and their living conditions. Despite the obvious relationship between the goals of environmental protection and the promotion of Picture 1. “the preservation of the envi- human rights, human rights law and ronment represents a pre-condition for international environmental law have the effective enjoyment of a number of until recently developed in isolation human rights— including the rights to life, from one another. Environmental health, food, clean water…” degradation and human rights abuses (Courtesy Purna Chhetri, Tanzania). have been treated as unrelated issues —even in cases where the cause- This article aims to analyse links be- and-effect relationship between tween human rights and environmental environmental degradation and the protection, with a view to clarifying violation of specific human rights was the way, and the extent to which, the evident— and distinct mechanisms and mechanisms and procedures estab- procedures have been put in place to lished by human rights instruments address these phenomena. * The views expressed here are those of the author alone and do not necessarily reflect the views of the Office of the High Commissioner for Human Rights or the United Nations. 15, July 2007 27 Conservation and Human Rights may be used by environmental activists are entitled, without distinction of any to pursue the goal of the protection of kind. As is the case for the UN Charter, the natural environment. the Universal Declaration neither en- shrines a substantive right to a clean Human rights and the and healthy environment nor refers to environment: a brief history the protection of the natural environ- Human rights are universal legal guar- ment among the pre-conditions for the antees protecting individuals and enjoyment of the substantive rights groups against actions by governments recognised in it. or non-State actors which interfere with fundamental freedoms and hu- In 1966, two treaties open to all man dignity. They are inherent entitle- States— the International Covenant on ments which come to every person as a Economic, Social and Cultural Rights consequence of being human, and are (ICESCR)6 and the International Cov- protected through a body of interna- enant on Civil and Political Rights (IC- tional norms commonly referred to as CPR)7— expanded upon the rights and ‘international human rights law’. freedoms proclaimed in the Universal Declaration, providing protection for a The Charter of the United Nations is wide range of human rights and funda- usually regarded as the starting point mental freedoms. The right to a decent of modern international human rights environment is not included in the list law.2 It reaffirms the faith of the ‘Peo- of guarantees they set out.8 ples of the United Nations’ in funda- mental human rights, and includes the The two Covenants have since been promotion of, and respect for, human supplemented by several treaties rights and fundamental freedoms adopted at the global and regional among the purposes of the United level. At the global level, a number of Nations.3 The Charter “does not iden- treaties expanded the content of the tify the human rights and fundamen- rights and freedoms set out in the Cov- tal freedoms enants, and adapted it to the particular The Universal Declaration which would situation and needs of the target group of Human Rights neither contribute to that these treaties aim to protect.9 At enshrines a substantive the economic the regional level, four ‘core’ human rights treaties have been adopted: the right to a clean and and social European Convention for the Protec- advancement healthy environment nor of all peoples, tion of Human Rights and Fundamen- refers to the protection of nor does it tal Freedoms (ECHR),10 the European the natural environment. provide any Social Charter (ESC),11 the American support for the Convention on Human Rights (ACHR),12 idea that a clean or healthy environ- and the African Charter on Human and ment should or did form a part of those Peoples’ Rights (ACHPR).13 rights and freedoms.”4 At the time most of these treaties were The first international instrument to adopted, i.e. in the period between the elaborate human rights standards was end of the Second World War and the the Universal Declaration of Human 1970s, the protection of natural envi- Rights.5 The Declaration sets forth ronment was not included in the hu- the human rights and fundamental man rights agenda. The international freedoms to which all human beings community had more immediate hu- 28 15, July 2007  What ARE Human Rights, anyway? man rights concerns to deal with at to their development. that time, and this explains why ‘envi- Article 11 of the San Salvador Protocol ronmental rights’ were not considered. contains a more complete formulation, Among international human rights which reads as follows: instruments, only the most recent ones 1. Everyone shall have the right to contain explicit references to ‘environ- live in a healthy environment and to mental rights’ or to the protection of have access to basic public services. the environment as a pre-condition for 2. The States Parties shall promote the enjoyment of human rights. the protection, preservation, and im- provement of the environment. The Convention on the Rights of the Child (CRC) is the first universal treaty Both formulations have been criticised which expressly recognises that the for being extremely vague and ge- enjoyment of human rights depends, neric.16 More generally, the existence inter alia, on a decent environment.14 of, and the need The ACHPR and the Additional Proto- for, a substan- There are very powerful col to the ACHR15 go even further, and tive right to a arguments that expressly include the right to a healthy healthy environ- the recognition of a environment in the catalogue of rights ment have been seriously ques- substantive right to a that States parties undertake to imple- ment. tioned at the in- healthy environment is ternational level. neither necessary nor The remaining part of this article looks As Boyle put it, desirable in greater detail at the way in which there are very existing human rights complaint pro- powerful arguments that the recogni- cedures may be used by environmen- tion of such a right is neither necessary tal activists to seek redress against nor desirable.17 human rights violations originated by poor environmental policies or prac- First of all, it is problematic to identify tices of States. It considers the main the holders of this right. The San Sal- arguments for and against adopting a vador Protocol refers to ‘everyone’. The substantive right to a healthy environ- ACHPR states that this right is to be ment vis-à-vis a rights-based approach enjoyed ‘by all peoples’, as opposed to to environmental protection, and looks ‘every individual’ who is the beneficiary at the way in which global and regional of the traditional human rights rec- human rights compliant procedures ognised in the Charter. This reference have been used in order to preserve seems to include the right to a healthy and protect the natural environment. environment in the category of collec- tive rights, which are difficult to uphold A substantive right to a healthy within the traditional human rights framework. Furthermore, it is unclear environment whether the expression ‘all peoples’ The African Charter and the San Salva- refers to the whole population of the dor Protocol are the only human rights State concerned, to a particular group instruments that enshrine a right to a within the State or even— as Anderson healthy environment. suggested— to unborn persons and future generations.18 Article 24 of the ACHPR states that: All peoples shall have the right to a gener- Secondly, existing legal instruments al satisfactory environment favourable 15, July 2007 29 Conservation and Human Rights recognising this right contain no defi- undermine the very notion of human nition or other indication of what is rights. At best, it may suffer from meant by ‘healthy environment’. The cultural relativism, particularly from a African Charter refers to a ‘general North-South perspective, and lack the satisfactory environment’. The San universal value normally thought to be Salvador Protocol prefers the term inherent in human rights.”19 ‘healthy environment’. Principle 1 of the Stockholm Declaration used yet The practical implementation of this another expression, referring to ‘an right would also pose a number of environment of a quality that per- problems. Article 24 of the ACHPR mits a life of dignity and well-being’. remains silent as to the measures that As Boyle noted, “[w]hat constitutes a States parties are required to adopt in satisfactory, decent, viable, or healthy order to implement this provision, and environment is bound to suffer from does not explain what States parties uncertainty and ambiguity. Arguably are supposed to do in the event of a it may even be incapable of substan- conflict between environmental mea- tive definition, or prove potentially sures and economic development.21 meaningless and ineffective (...) and Article 11(2) of the San Salvador Pro- tocol requires States parties to “pro- mote the protection, preservation, and improvement of the environment”, but does not indicate what kind of meas- ures States parties should take. The vague and laconic way in which these provisions have been drafted is also likely to undermine the effectiveness of mechanisms put in place under the respective treaties to ensure States parties’ compliance with the obliga- tions they have undertaken.22 Another objection to the recognition of a right to a healthy environment con- cerns its anthropocentricity. Such a right —like any other human right— is inherently focused upon the human being, and is thus opposed by some Another objection to environmentalists the recognition of a on the account of right to a healthy its failure to rec- environment concerns ognise adequately the inherent value its anthropocentricity. of other species and of the environ- Picture 2. …[w]hat constitutes a satisfactory, ment in general.23 The limited focus decent, viable, or healthy environment […] may of this right “may indeed reinforce the suffer from cultural relativism, particularly from assumption that the environment and a North-South perspective…”20 (Courtesy Wet its natural resources exist only for the Tropics Management Authority, Australia) human benefit, and have no intrinsic 30 15, July 2007  What ARE Human Rights, anyway? worth in themselves.”24 these rights. This approach is based on existing interna- Consequently, biodiversity in Antarctica tional human rights The real added value and other ecosystems would indeed be standards and of a rights-based protected only insofar as their preser- principles and seeks approach consists in vation is necessary, or desirable, for the to ensure the pro- protection of human lives and health, motion of human allowing victims of or for the realisation of human interests rights through a environmental harm (e.g. the protection of natural land- sound management the right to bring scape or the promotion of tourism). of environmental complaints against resources. Finally, it has been objected that while the State. a substantive right to a healthy envi- Using existing hu- ronment would have undoubted rhetor- man rights law as a tool to protect the ical force, it would in reality add little natural environment presents several to what already exists in international advantages vis-à-vis the creation of environmental law, and would therefore a new substantive right to a healthy be largely redundant.25 environment. As Boyle observed, such an approach “avoids the need to de- The lack of a reference to a human fine such notions as satisfactory or right to a clean environment in the decent environment, falls well within Rio Declaration, which abandoned the competences of existing human the human rights vocabulary used in rights bodies, and involves little or no Principle 1 of potential for conflict with environmen- A rights-based approach the Stockholm tal institutions.”27 to environmental Declaration, protection recognises that seems to be Nonetheless, the real added value of indicative of this approach consists in allowing vic- the preservation of the continuing tims of environmental harm the right environment represents uncertainty to bring complaints against the State a pre-condition for the concerning through the mechanisms and proce- effective enjoyment of a the need or desirability of dures established under the existing human rights treaties. Such mecha- number of human rights. such a right.26 nisms and procedures represent an important tool for environmental A rights-based approach to activists, given the general absence of environmental protection procedures to bring complaints in ex- A rights-based approach to environ- isting environmental treaties and the mental protection recognises that the very conservative approach adopted preservation of the environment rep- by many international and domestic resents a pre-condition for the effec- tribunals with regard to environmen- tive enjoyment of a number of human tal litigation. Indeed, as Shelton has rights— including the rights to life, correctly noted, “[i]n nearly all cases, health, food, clean water, adequate human rights tribunals provide the housing, property, private and family only international procedures current- life, and culture— and that, conversely, ly available to challenge government damage to the environment can im- action or inaction respecting environ- pair and undermine the realisation of mental protection.”28 15, July 2007 31 Conservation and Human Rights Not all forms of environmental deg- voked by individuals to obtain compen- radation can be addressed by using sation where death resulted from some existing human rights mechanisms. environmental disaster, like Bhopal or The limits of a rights-based approach Chernobyl, in so far as the State is re- lie in the very nature of human rights sponsible.”31 law, which aims to promote and pro- tect the fundamental rights of indi- However, the potential of this provi- vidual human beings. Thus, recourse sion has never been tested in practice. The limits of a rights- to human rights proce- International bodies have adopted a very cautious approach towards cases based approach lie in the dures would of alleged violation of the right to life very nature of human prove useless caused by hazardous activities under- rights law, which aims to with regard taken by the State or by its failure to promote and protect the to those en- vironmental provide a proper regulatory framework and monitoring mechanisms to ensure fundamental rights of threats— like the respect of the right to life by pri- individual human beings. climate vate actors. change or loss of biodiversity— that cannot be The Human Rights Committee received regarded per se as human rights vio- a number of complaints under the lations or directly evaluated in relation Optional Protocol32 concerning alleged to their impact on the life and well-be- violations of the right to life relating to ing of particular persons. On the other radioactive waste and nuclear tests. In hand, human rights law provides a E.H.P. v. Canada,33 the Human Rights powerful means to protect the natu- Committee acknowledged that the stor- ral environment against pollution and age of radioactive waste close to the other forms of degradation that have applicants’ homes raised serious issues the effect to prevent or limit the en- with regard to the obligation of States joyment of the rights set forth in hu- parties to protect the right to life of man rights treaties. present and future generations, but declared the communication inadmis- The following analysis provides an sible for non-exhaustion of domestic overview of the ‘environmental’ ju- remedies. In E.W. v. Netherlands,34 a risprudence of international human communication concerning an alleged rights mechanisms, focusing on those violation of the right to life based on human right provisions that are more the deployment of cruise missiles fitted frequently invoked to address cases of with nuclear warheads on Netherlands environmental harm.29 territory was found to be inadmissible because the authors failed to prove • Right to life that they were ‘victims’ within the All human rights treaties recognise that meaning of Article 1 of the Optional every person has an inherent right to Protocol. In Bordes and Temeharo v. life.30 This right places upon States two France,35 concerning France’s nuclear obligations: a negative obligation not to tests in the South Pacific, the Com- ‘arbitrarily’ deprive individuals of their mittee conceded that “the designing, right to life and a positive obligation to testing, manufacture, possession and take active measures to ensure every- deployment of nuclear weapons are one’s right to life. In the environmental among the greatest threats to the right sphere, the right to life “might be in- to life which confront mankind today”, 32 15, July 2007  What ARE Human Rights, anyway? but found the case inadmissible on the private actors from polluting or degrad- ground that the claimants had not sub- ing the natural environment. stantiated their claim that the conduct of nuclear tests by France had violated Notwithstanding its great potential, or threatened their right to life. this right does not appear to have been invoked under the Optional Protocol to The European Court on Human Rights the ICCPR or the Inter-American sys- has taken a similarly cautious approach tem. However, several cases brought in its interpretation of alleged viola- under the European Convention provide tions of the right to life resulting from examples of the way in which this right environmental harm caused by State has been used in environmental cases. action (or failure to act). In Guerra and Others v. Italy,36 the applicants Most of the cases of alleged violation complained of pollution resulting from of the right to private and family life operation of a nearby chemical factory. involve noise pollution. In Powell and The applicants claimed that the Italian Rayner v. United Kingdom,39 the Stras- authorities’ failure to take appropriate bourg Court found that the excessive action to reduce the risk of serious en- noise caused by the increasing volume vironmental pollution and to avoid the of aircraft at Heathrow Airport was risk of major accidents amounted to an justified under Article 8(2) because it is infringement, inter alia, of their right ‘necessary in a democratic society’ for to life and physical integrity. The Euro- the economic well-being of the country. pean Court did not rule on this alleged In reaching this conclusion, the Court violation. Having ascertained a viola- noted that the Government had struck tion of the right to respect for private a fair balance between the competing and family life, the Court found it un- interests of the individual and of the necessary to consider whether the right community as a whole, without exceed- to life had been violated in the present ing the margin of appreciation afforded case, despite the fact that deaths from to it in determining the steps to be cancer had occurred in the factory. This taken to ensure compliance with the decision has been criticised by several Convention. commentators, including some of the judges of the Court.37 In Hatton and others v. United King- dom,40 a chamber of the European • Right to respect for private Court found that the government policy and family life on night flights at Heathrow airport Several human rights treaties recog- gave rise to a violation of the appli- nise the right to respect for private cants’ rights under Articles 8 of the and family life, home, and correspond- Convention. This decision was over- ence.38 This right aims to protect in- turned by the Grand Chamber of the dividuals against arbitrary or unlawful European Court, which reaffirmed that interferences with a wide range of in- it is primarily the State’s responsibil- terests related to the personal sphere. ity to strike a fair balance between the In the field of environmental litigation, economic interest of the country and this right could be invoked by individu- the conflicting interests of the persons als to complain against pollution or oth- affected by noise disturbances.41 Envi- er forms of environmental degradation ronmental protection should be taken which might be attributed to the State, into consideration by States in acting in particular for its failure to prevent within their margin of appreciation and 15, July 2007 33 Conservation and Human Rights by the Court in its review of that mar- to provide essential information to the gin, but it would not be appropriate for applicants concerning environmental the Court to adopt a special approach hazards associated with the functioning in this respect by reference to a special of a nearby chemical factory to be in status of environmental human rights.42 breach of Article 8. The Court reached the same conclusion in the recent Gi- The Court found that the authorities acomelli v. Italy,46 concerning the lack had not overstepped their ‘wide’ mar- of prior environmental impact assess- gin of appreciation by failing to strike a ment and failure to suspend operation fair balance, and concluded that there of a plant located close to dwellings had been no violation of Article 8. and generating toxic emissions. The most important decision of the Court concerning environmental pro- • Right to property tection is López Ostra v. Spain.43 Here, The ICCPR does not contain a right to for the first time, the Strasbourg Court property. Such a right is included in Ar- found a breach of the Convention as a ticle 17 of the Universal Declaration of consequence of environmental harm. Human Rights and in the European and The applicant and her daughter suf- Inter-American human rights systems.47 fered serious health problems from fumes from a tannery waste treatment These provisions aim to protect the plant which was situated only a few right to peaceful enjoyment of one’s metres away from her home. The Euro- possessions, i.e. the right to have, pean Court noted that “[s]evere envi- use, dispose of, pledge, lend and even ronmental pollution may affect individ- destroy one’s property. Enjoyment is uals’ well-being and prevent them from protected primarily against interference enjoying their homes in such a way as by the State. However, such a right to affect their private and family life also imposes positive obligations on the adversely, without, however, seriously State, most notably a duty to prevent endangering their health.”44 private actors from interfering with the enjoyment of peaceful enjoyment of The Court applied its ‘fair balance’ test one’s property. and reaffirmed that States enjoy a ‘cer- tain’ margin of appreciation in striking In the environmental sphere, this right such a balance. However, it found that has been relied upon only within the the State did not succeed in striking European human rights framework, and a fair balance between the interest of often in conjunction with the protection the town’s economic well-being and the afforded by Article 8 of the Convention. applicant’s effective enjoyment of her In general terms, Article 1 of Protocol right to respect for her home and her No. 1 (hereinafter, P-1), which pro- private and family life, and concluded tects the right to peaceful enjoyment that the facts of the case revealed a of one’s possessions, may be invoked breach of Article 8. only in cases where pollution or other forms of environmental degradation The position of the Court in the López result in a substantial fall in the value Ostra case has been confirmed in of the property, provided that the State subsequent Article 8 cases. In Guerra may be held responsible and that the and Others v. Italy,45 the Court found economic loss has not been adequately the failure of the Italian Government compensated by the State. This is an 34 15, July 2007  What ARE Human Rights, anyway? area where States enjoy a wide margin of appreciation, and subsequently there will be no violation when the State can prove that a fair balance was struck between the competing interests of the individual and the community as a whole. There are several cases in which the Court affirmed that excessive noise and other forms of environmental pol- lution may adversely affect the right to peaceful enjoyment of one’s pos- sessions in breach of Article 1, P-1. In Rayner v. United Kingdom,48 the Eu- ropean Commission on Human Rights Picture 3. The right to freedom of expres- sion is included in all major human rights noted that Article 1, P-1 “does not, instruments… in principle, guarantee a right to the (Courtesy Grazia Borrini-Feyerabend) peaceful enjoyment of possessions in a pleasant environment” but recognised ment. The Court confirmed this posi- that aircraft noise of considerable level tion in the case of Pine Valley Develop- and frequency may seriously affect the ments Ltd and Others v. Ireland.51 It value of real property or even render noted that interference with property it unsaleable. However, it considered rights conformed with planning legisla- the application manifestly ill-founded tion designed to protect the environ- because the applicant had failed to ment, and concluded that it was clearly submit evidence showing that the value a legitimate aim “in accordance with of his property was substantially dimin- the general interest” or the purposes of ished on the grounds of aircraft noise. the second paragraph of Article 1. The European Commission reached similar conclusions in S v. France,49 • Right to information concerning the building of a nuclear The right to freedom of expression— power station within 300 metres from intended as the freedom to seek, re- the applicant’s house. ceive and impart information and ideas of all kinds, without interference by In other cases concerning the right public authorities— is included in all to property, the European Court ruled major human rights instruments.52 This that State interferences with the enjoy- right protects individuals against arbi- ment of property in order to protect trary or unlawful interferences aimed the environment were to be justified at excluding or limiting the right to under Article 1(2), insofar as they were receive or circulate information. How- considered to be “in accordance with ever, it is unclear whether such a right the general interest”. In Fredin v. Swe- can be construed as imposing a posi- den,50 the Court— recognising “that in tive obligation upon public authorities today’s society the protection of the to disclose information in their hands, environment is an increasingly impor- and, conversely, as a right of individu- tant consideration”— upheld the Gov- als to receive information held by pub- ernment’s interference with property lic authorities.53 rights in order to protect the environ- 15, July 2007 35 Conservation and Human Rights The right to access to information forms, including a particular way of life regarding the environment has come associated with the use of land re- to the attention of existing interna- sources, especially in the case of indig- tional authorities only in one occasion, enous peoples. That right may include namely in the Guerra case.54 The appli- such traditional activities as fishing or cants alleged that the relevant authori- hunting and the right to live in reserves ties’ failure to inform the public about protected by law. The enjoyment of the environmental hazards associated those rights may require positive legal with the functioning of a nearby chemi- measures of protection and measures cal factory, and about the procedures to ensure the effective participation of to be followed in the event of a major members of minority communities in accident, infringed their right to free- decisions which affect them. (...) The dom of information. The Court did not protection of these rights is directed subscribe to this view. It affirmed that towards ensuring the survival and “freedom to receive information, re- continued development of the cultural, ferred to in paragraph 2 of Article 10 religious and social identity of the mi- of the Convention, basically prohibits a norities concerned.”57 government from restricting a person from receiving information that oth- Under the Optional Protocol, indigenous ers wish or may be willing to impart individuals and communities have to him” but “cannot be construed as brought several complaints relating to imposing on a State, in circumstances the ownership of the land and the use such as those of the present case, posi- of the natural resources within the ter- tive obligations to collect and dissemi- ritories they traditionally inhabited prior nate information of its own motion.”55 to the arrival of the present dominant The Court thus concluded that Article population. As the ICCPR does not in- 10 was not applicable in the instant clude a clause on the right to property, case. and as cases related to the right of all peoples to self-determination or the • Minority rights right to participation have not proven Among the core human rights trea- successful, “the main perspective ap- ties, only the ICCPR contains a specific plied by the Human Rights Committee provision on minority rights.56 Article in considering these cases has been on 27 provides that “[i]n those States Article 27— the right of members of in which ethnic, religious or linguis- minorities to enjoy their own culture in tic minorities exist, persons belonging community with the other members of to such minorities shall not be denied their group.”58 the right, in community with the other members of their group, to enjoy their A number of these cases provide inter- own culture, to profess and practise esting examples of the way in which their own religion, or to use their own Article 27 can be invoked to protect language.” indigenous land and culture from envi- ronmental degradation.59 In Ominayak This provision aims to protect the cul- and the Lubikon Lake Band v. Cana- tural life of minorities, rather than their da,60 concerning an alleged deprivation physical survival. However, the Com- of the Band’s means of subsistence mittee has interpreted the concept of through the State’s selling oil and gas culture in a broad manner, observing concessions on their lands, the Com- that culture “manifests itself in many mittee expressly recognised for the 36 15, July 2007  What ARE Human Rights, anyway? first time that the rights protected by The absence of a specific provision on Article 27 include the right of persons, indigenous rights has not prevented the in community with others, to engage in Inter-American Commission on Human economic and social activities which are Rights from entertaining cases con- part of the culture of the community cerning alleged violations of the right of to which they belong. The Committee indigenous peoples over their land and concluded that “historical inequities its natural resources. In the Yanomami (...) and certain more recent devel- case,66 the Commission found that opments threaten the way of life and the construction of a highway through culture of the Lubicon Lake Band, and Yanomami territory and the authorisa- constitute a violation of article 27 so tion to exploit the territory’s resources long as they continue.” 61 amounted to a vio- In those cases where lation of the Yano- In the first Länsman case,62 related mami rights to life, environmental deg- to private companies quarrying build- liberty, and per- radation and pollu- ing stone in traditional lands of the sonal security, as tion can be meas- Sami, the Committee found that there well as their rights ured in relation to had been no violation of Article 27. In to residence and reaching this conclusion, the Commit- movement, and to their impact on the tee noted that the amount of quarrying the preservation of human rights of that had taken place did not appear to health and well-be- individuals, human have adversely affected reindeer herd- ing. The readiness rights mechanisms ing in the area, and that the local Sami of the Commission had been consulted during the pro- to consider envi- provide a formidable ceedings. With regard to future activi- ronment-related instrument in the ties, the Committee stated that if min- cases is confirmed hands of environ- ing activities “were to be approved on a by two recent cases large scale and significantly expanded brought to its at- mental activists by those companies to which exploita- tention. In the San Mateo de Huanchor tion permits have been issued, then case,67 the Commission accepted the this may constitute a violation of the request for precautionary measures to authors’ rights under article 27.”63 protect the life and health of an indig- enous community affected by mining In the second and third Länsman cas- toxic waste in Peru. In the Ralco case,68 es,64 the Committee adopted the same it approved a friendly settlement be- combined test of consultation and tween indigenous communities affected sustainability to exclude that logging by the construction of the Ralco dam in already conducted or planned within southern Chile and the Government. the Samiland amounted to a violation of Article 27. It is worth noting that, Conclusions in applying the sustainability test, the This analysis of jurisprudence highlight- Committee the Committee pointed ed several examples of the willingness out that “though different activities in showed by international organs and themselves may not constitute a vio- tribunals to strengthen environmental lation of this article, such activities, protection by making a creative use taken together, may erode the rights of of existing human rights provisions, in Sami people to enjoy their own cul- particular those relating to the right ture.”65 to private and family life and the right property. It also showed the limits 15, July 2007 37 Conservation and Human Rights of the protection afforded by human 8 The only explicit reference to the protection of the rights complaint procedures, which environment can be found in Article 12(2)(b) of the ICESCR, which requires States Parties to the can only be used in those cases where Covenant to take steps to achieve the full realisa- environmental harm has the effect to tion of the right to the highest attainable standard prevent or limit the enjoyment of the of physical and mental health, inter alia by improv- ing “all aspects of environmental and industrial rights set forth in human rights trea- hygiene”. ties. In those cases where environmen- 9 For the text of other core United Nations human tal degradation and pollution can be rights treaties, see http://www.ohchr.org/english/ law/index.htm measured in relation to their impact on 10 The ECHR, adopted in 1950, entered into force the human rights of individuals, human in 1953. Additional protocols to the Convention rights mechanisms provide a formida- integrate the list of rights protected under the Eu- ble instrument in the hands of environ- ropean human rights framework. The Convention establishes international enforcement machinery mental activists to challenge the poor based on the compulsory jurisdiction of the Euro- environmental policies and practices of pean Court of Human Rights. For the text of the the State. ECHR and its Protocols, see http://conventions.coe.int/Treaty/Commun/ ListeTraites.asp?CM=8&CL=ENG Stefano Sensi, LL.M., is currently working as a Human Rights Officer in the Treaties and Council Branch at the 11 The ESC was adopted in 1961 and entered into United Nations Office of the High Commissioner for Hu- force in 1965. The ESC was revised in 1996, to man Rights (OHCHR). His previous responsibilities within take account of the evolution which has occurred the OHCHR included the mandate on human rights and the in Europe since the Charter was adopted. For the environment as well as the mandate of assisting the Special text of the ESC, see http://conventions.coe.int/ rapporteur of the Council on Human Rights on the adverse Treaty/Commun/ListeTraites.asp?CM=8&CL=ENG effects of the illicit movement and dumping of toxic and 12 The ACHR was adopted in 1969 and entered into dangerous products and wastes on the enjoyment of human force in 1978. For the text of the Convention, see rights. http://www.oas.org/juridico/english/Treaties/b- 32.htm 13 The ACHPR was adopted in 1981 and entered into Notes force in 1986. For the text of the Convention, see 1 The Stockholm Declaration, adopted by the United http://www1.umn.edu/humanrts/instree/z1afchar. Nations Conference on Human Environment htm (UNCHE) in June 1972, is the first international 14 Article 24(2) on the right of the child to the enjoy- instrument that expressly recognises the inter- ment of the highest attainable standard of health relations existing between the preservation of the requires States parties to consider “the dangers natural environment and the enjoyment of human and risks of environmental pollution” and en- rights. See in particular Principle 1 of the Decla- sure that all segments of society have access to ration. The text of the Declaration is available at information and education with regard to, inter http://www.unep.org/Documents.multilingual/De- alia, hygiene and environmental sanitation. Article fault.asp?DocumentID=97&ArticleID=1503 29(e) includes “the development of respect for the 2 The Charter of the United Nations was signed on natural environment” among the goals of educa- 26 June 1945, in San Francisco, at the conclusion tional programmes. of the United Nations Conference on International 15 The Additional Protocol to the American Conven- Organisation, and came into force on 24 October tion on Human Rights in the Area of Economic, 1945. For the text of the UN Charter, see http:// Social and Cultural Rights, signed in San Salvador www.un.org/aboutun/charter/ on 17 November 1988, entered into force on 16 3 Articles 1(3), 55 and 56 of the UN Charter. November 1999. The text of the San Salvador Pro- tocol is available at http://www.oas.org/juridico/ 4 Sands, 1995, p. 221. English/Treaties/a-52.html 5 Universal Declaration on Human Rights was adopt- 16 For a detailed analysis of these provisions, see ed by the United Nations General Assembly on Churchill, 1996. 10 December 1948. For the text of the Universal Declaration, see http://www.unhchr.ch/udhr/index. 17 Boyle, 1996. htm 18 Anderson, 1996, at p. 12. 6 The ICESCR was formally adopted and opened for 19 Boyle, 1996, p. 50. signature and ratification in 1966, and entered into 20 Boyle, 1996, p. 50. force in 1976. For the text of the Covenant, see http://www.ohchr.org/english/law/cescr.htm 21 Churchill, 1996, p. 106. 7 As the ICESCR, the ICCPR was adopted in 1966 22 On the machinery put in place by the San Salvador and entered into force ten years later. For the text Protocol and the African Charter to ensure protec- of the Covenant, see http://www.ohchr.org/eng- tion of the rights set out in the respective treaties lish/law/ccpr.htm see Churchill, 1996, pp. 99-100 and 105. 38 15, July 2007  What ARE Human Rights, anyway? 23 On the issue of anthropocentricity, see Redgwell, 1994, Ser. A No. 303-C. 1996. 44 Ibid., para. 51. 24 Boyle, 1996, p. 51. 45 Guerra and Others v Italy, Judgment of 19 Febru- 25 Boyle, 1996, p. 53. ary 1998, cit. 26 Principle 1of the Rio Declaration on Environment 46 Giacomelli v. Italy, Judgement of 2 November and Development, adopted by the UN Conference 2006. on Environment and Development (UNCED) held in Rio de Janeiro in June 1992, reads as follows: 47 Article 1 of Protocol No. 1 to the ECHR; Article 21 Human beings are at the centre of concerns for ACHR. sustainable development. They are entitled to a 48 Rayner v. United Kingdom, Application 9310/81, healthy and productive life in harmony with na- (47) Decisions and Reports of the European Com- ture. mission on Human Rights, 1986, 5. 27 Boyle, 1996, p. 63. 49 S v France, Application No. 13728/88, (65) Deci- 28 Shelton, 2003, at p. 2. sions and Reports of the European Commission on Human Rights, 1990, 250. 29 For a more in-depth analysis of the jurisprudence of international courts and quasi-judicial bodies on 50 Fredin v Sweden (No. 1), Judgment of 18 February the issue of environmental protection, see inter 1991, Ser. A No. 192. alia Shelton, 2003, pp. 1-30; Shelton, 2002; and 51 Pine Valley Developments Ltd and Others v. Ire- Churchill, 1996. land, Judgment of 29 November 1991, Ser. A No. 30 Article 6 ICCPR; Article 2 ECHR; Article 4 ACHR; 222. Article 4 ACHPR. 52 Article 19(2) ICCPR; Article 10 ECHR; Article 13 31 Churchill, 1996, p. 90. IACHR; Article 9 ACHPR. 32 The Optional Protocol to the International Cov- 53 As far as environmental law is concerned, the enant on Civil and Political Rights was adopted in importance of public participation in environmental 1966 and entered into force in 1976. For the text decision-making has been first affirmed in Principle of the Covenant, see 10 of the Rio Declaration. The drafters were very http://www.ohchr.org/english/law/ccpr-one.htm careful to avoid references to the ‘rights language’, an attitude which reflects a reluctance on the part 33 E.H.P. v. Canada, Communication No. 67/1980, of States to allow an unlimited right of access to CCPR/C/OP/2, 1982, in “Selected Decisions of information. However, express references to this the Human Rights Committee under the Optional right have been since then included in several Protocol”, Vol. 2, United Nations, New York and international instruments, including the EC Envi- Geneva, 2002. ronmental Information Directive (Council Directive 34 E.W. et al. v. Netherlands, Communication No. 90/313/EEC) and, most notably, the UNECE Con- 429/1990, CCPR/C/47/D/429/1990, 1993. vention on Access to Information, Public Participa- 35 V. Bordes and J. Temeharo v. France, Communica- tion in Decision-Making and Access to Justice in tion No. 645/1995, CCPR/C/57/D/645/1995, 1996. Environmental Matters. 36 Guerra and Others v Italy, Judgment of 19 Febru- 54 See supra, footnote 36. ary 1998, Reports 1998-I. 55 Ibid., para. 53. 37 In his concurring opinions, Judge Jambrek noted 56 Among the legal instruments concerned with that “[i]t may therefore be time for the Court’s minority groups and indigenous populations, see case-law on Article 2 (the right to life) to start the ILO Convention concerning Indigenous and evolving, to develop the respective implied rights, Tribal Peoples in Independent Countries (No. 169) articulate situations of real and serious risk to life, and the European Framework Convention for the or different aspects of the right to life. Article 2 Protection of National Minorities. also appears relevant and applicable to the facts 57 Human Rights Committee, General Comment No. of the instant case in that 150 people were taken 23: The rights of minorities (Article 27), 1994, to hospital with severe arsenic poisoning. Through para. 7 and 9, available at http://www.ohchr.org/ the release of harmful substances into the atmos- english/bodies/hrc/comments.htm phere, the activity carried on at the factory thus constituted a “major-accident hazard dangerous to 58 Scheinin, 2000, at pp. 163-164. the environment”. 59 For an in-depth analysis of the jurisprudence of 38 Article 17 ICCPR; Article 8 ECHR; Article 11(2) international courts and quasi-judicial bodies on ACHR. cases concerning the use of land and natural re- sources by indigenous people, see Shelton, 2003, 39 Powell and Rayner v. United Kingdom, Judgment pp. 18-22; see also Scheinin, 2000, pp. 159-222. of 21 February 1990, Ser. A, No. 172. 60 Ominayak and the Lubikon Lake Band v. Canada, 40 Hatton and others v. United Kingdom, Judgement Communication No. 167/1984, CCPR/C/38/ (Third Section) of 2 October 2001. D/167/1984, 1990. 41 Hatton and others v. United Kingdom, Judgement 61 Ibid., para 33. (Grand Chamber) of 8 July 2003, Report of Judge- ments and Decisions 2003-VIII. 62 Ilmari Länsman et al. v. Finland, Communication No. 511/1992, CCPR/C/52/D/511/1992, 1994. 42 Ibid., para. 122. 63 Ibid., para. 9.8. 43 López Ostra v Spain, Judgment of 9 December 15, July 2007 39 Conservation and Human Rights 64 Jouni Länsman et al. v. Finland, Communication Human Rights Approaches to Environmental Protec- No. No. 671/1995, CCPR/C/58/D/671/1995, 1996; tion, Oxford University Press, Oxford, 1996. Jouni Länsman, Eino Länsman and the Muotkatun- Kiss, A., “The Right to the Conservation of the Envi- turi Herdsmen's Committee, Communication No. ronment”, pp. 31-46, in Piccolotti, R. and Taillant, D. 1023/2001, CCPR/C/83/D/1023/2001, 2005. (eds.), Linking Human Rights and the Environment, 65 Jouni Länsman et al. v. Finland, cit., para. 10.7. The University of Arizona Press, Tucson, 2003. 66 Status of the Yanomami Indians, Case 7615, Inter- Redgwell, C., “Life, the Universe and Everything: A Am. C.H.R. 24, OEA/ser. L/V/II.66, doc. 10 rev. 1 Critique of Anthropocentric Rights”, pp. 71-87, in (1985) (Annual Report 1984-1985). Boyle, A. and Anderson, M. (eds.), Human Rights 67 Community of San Mateo de Huanchor and its Approaches to Environmental Protection, Oxford members v. Peru, Case 504/03, Report No. 69/04, University Press, Oxford, 1996. Inter-Am. C.H.R., OEA/Ser.L/V/II.122 Doc. 5 rev. 1 Sands, P., Principles of International Environmental at 487 (2004). Law, Volume I: Frameworks, Standards and Imple- 68 Mercedes Julia Huenteao Beroiza et al. v. Chile, mentation, Manchester University Press, Manchester Case 4617/02, Report No. 30/04, Inter-Am. and New York, 1995. C.H.R., OEA/Ser.L/V/II.122 Doc. 5 rev. 1 at 693 Scheinin, M., “The Right to Enjoy a Distinct Culture: (2004) Indigenous and Competing Uses of Land”, pp. 159- 222, in Orlin T., Rosas, A. and Scheinin, M. (eds.), The Jurisprudence of Human Rights Law: A Compar- References ative Interpretive Approach, Åbo Akademi Univer- Anderson, M., “Human Rights Approaches to Envi- sity, Turku/Åbo, 2000. ronmental Protection: An Overview”, pp. 1-23, in Shelton, D., “Human Rights and the Environment: Boyle, A. and Anderson, M. (eds.), Human Rights Jurisprudence of Human Rights Bodies”, Background Approaches to Environmental Protection, Oxford Paper prepared for the Joint UNEP-OHCHR Expert University Press, Oxford, 1996. Seminar on Human Rights and the Environment, Boyle, A., “The Role of International Human Rights Geneva14-16 January 2002. Law in the Protection of the Environment”, pp. 43- Shelton, D., “The Environmental Jurisprudence of 65, in Boyle, A. and Anderson, M. (eds.), Human International Human Rights Tribunals”, pp. 1-30, in Rights Approaches to Environmental Protection, Piccolotti, R. and Taillant, D. (eds.), Linking Hu- Oxford University Press, Oxford, 1996. man Rights and the Environment, The University of Churchill, R., “Environmental Rights in Treaties”, Arizona Press, Tucson, 2003. pp.89-108, in Boyle, A. and Anderson, M. (eds.), Derechos humanos y medio ambiente Mario Peña Chacon y Ingread Fournier Cruz Abstract. Despite being recognized as a fundamental human right, the right to environ- ment is not explicitly regulated in any of the various international human rights instru- ments. Neither the international human rights system, nor regional systems such as the Inter-American or European system regulate the right to a healthy environment in a clear, explicit or exhaustive way. Although theoretical exceptions exist, such as in the African Charter on Human Rights, which does codify third-generation human rights, these have not been implemented so far. Therefore, for all practical aspects, the right to environ- ment lacks adequate protection under regional mechanisms. An indirect protection of this right can be observed in the European system, which through the Commission and the European Court of Human Rights has “environmentalised” other human rights mentioned explicitly in the Treaty of Rome. However, this indirect recognition is far from constitut- 40 15, July 2007  What ARE Human Rights, anyway? ing the effective creation and protection of a human right to a healthy environment. The Inter-American system, despite the Pact of San Salvador having entered into force, still lacks sufficient elements of direct protection of environmental rights. The codification of environmental human rights within international instruments is fundamental for the ad- equate protection of such rights. In this context, the proposal advanced by the Centre for Human Rights and Environment briefly described in this article is of great importance, as it could be a first step for the creation and implementation of a Treaty or Protocol of Hu- man Rights and Environment. Resumen. A pesar de ser reconocido como de un derecho humano fundamental, el dere- cho al ambiente no se encuentra expresamente regulado en los distintos instrumentos internacionales que versan sobre Derechos Humanos. Ni el Sistema Universal de Derechos Humanos, ni los sistemas Regionales como el Sistema Interamericano o el Europeo regu- lan de manera clara, expresa ni contundente el derecho al ambiente sano. Si bien existen excepciones teóricas dentro de los sistemas regionales de protección de derechos, como lo es la Carta Africana de Derechos Humanos la cual sí regula taxativamente los derechos de tercera generación, su implementación a la fecha no se ha dado. Por esta razón, para todo efecto práctico el derecho al ambiente carece de la debida protección dentro de los mecanismos regionales. La protección indirecta a este derecho se ha observado a través del Sistema Europeo, el cual por medio de la Comisión y de la Corte Europea de Derechos Humanos, ha “ambientalizado” otros derecho humanos que sí se encuentran plasmados explícitamente en el Tratado de Roma. Esta protección indirecta se encuentra lejos de crear y tutelar efectivamente el derecho a un ambiente sano. Por su parte, el sistema In- teramericano, a pesar de la entrada en vigencia del Protocolo de San Salvador carece de elementos suficientes para protección directa del derecho al ambiente. La taxatividad de los derechos humanos ambientales dentro de instrumentos internacionales es fundamen- tal para la correcta tutela de tales derechos. De ahí , la propuesta del Centro de Dere- chos Humanos y Medio Ambiente brevemente ilustrada en este articulo se reviste de gran importancia, pudiéndose utilizar de punto de partida para el análisis y ejecución ya sea de un Protocolo o bien de un Tratado de Derechos Humanos y Medio Ambiente. “La paz, el desarrollo y la protección del medio ambiente son interdependientes e in- separables”— Principio 25 de la Declaración de Río sobre Medio Ambiente y Desarrollo La evolución de los derechos que, en cada momento histórico, con- humanos y la incorporación cretan las exigencias de la dignidad, la libertad y la igualdad humanas, las del derecho ambiental como cuales deben ser reconocidas positiva- derecho humano de tercera mente por los ordenamientos jurídicos generación a nivel nacional e internacional.”1 En Por lo general, la mayoría de las defini- el segundo, el profesor Eusebio Fern- ciones sobre Derechos Humanos están ández, señala: “Toda persona posee cargadas del fundamento filosófico de unos derechos morales por el hecho de sus respectivos autores, ya sea posi- serlo y que estos deben ser reconoci- tivista o más bien, con tendencia hacia dos y garantizados por la sociedad, el el derecho natural. En el primer caso, derecho y el poder político, sin ningún el profesor Arturo Pérez Luño dice: “Los tipo de discriminación. Estos derechos Derechos Humanos aparecen como un son fundamentales, es decir se hallan conjunto de facultades e instituciones estrechamente conectados con la idea 15, July 2007 41 Conservation and Human Rights de dignidad humana.”2 Humanos incorpora los derechos económicos, sociales y culturales, estos Siguiendo una definición de tipo posi- hacen referencia a la necesidad que tivista, los Derechos Humanos son tiene el hombre de desarrollarse como el conjunto de normas y principios ser social en igualdad de condiciones. reconocidos tanto por el Derecho In- Nacen a raíz del capitalismo salvaje ternacional como por los distintos y de lo que se ha conocido como “la ordenamientos jurídicos internos, de explotación del hombre por el hom- observancia universal e inherentes bre”. Su primera incorporación la en- al ser humano, tanto en su faceta de contramos en la Constitución Mexicana individuo como de sujeto integrante de Querétaro suscrita en el año 1917, de la colectividad, y que definen las siendo desarrollada también tanto por condiciones mínimas y necesarias para la Constitución de las Repúblicas So- que el individuo pueda desarrollarse cialista Federativa de Rusia del año plenamente en el ámbito económico, 1918 y por la Constitución de la Repú- social, cultural, político y jurídico, en blica de Weimar de 1919. El derecho armonía con el resto de la sociedad. En a la educación, a la salud, al trabajo, este sentido es importante considerar seguridad social, asociación, huelga la posición de los Derechos Humanos y derecho a la familia, forman parte como indicadores de democracia en de esta segunda generación de Dere- una sociedad, donde su existencia chos Humanos. Un sector de la doct- implica el reconocimiento a la dignidad rina denomina a esta generación como del hombre, por ser anteriores, supe- “derechos de crédito” o sea, aquellos riores y prevalentes a la conformación que son invocables por el ciudadano de los Estado. Se parte de la premisa ante el Estado al asumir éste último no de que los derechos y libertades fun- ya el papel de garante de la seguridad, damentales de los individuos son uni- (estado gendarme) sino la realización versales, interdependientes, indivisibles de los objetivos sociales.3 y de igual jerarquía, pero desde una perspectiva meramente didáctica, a los Los Derechos Humanos, tanto de pri- Derechos Humanos se les puede clasi- mera como de segunda generación, ficar en tres generaciones: fueron incorporados rápidamente en una gran cantidad de constituciones a La primera generación de Derechos nivel global, pero no pasaban de ser Humanos es positivizada por el Bill of parte del derecho interno de los dis- Rights norteamericano de 1776 y por la tintos Estados. Esto viene a cambiar Declaración de Derechos del Hombre y a partir de 1948, cuando a raíz de las el Ciudadano suscrita en Francia en el atrocidades cometidas en las dos ante- año 1789. Se trata de los denominados riores guerras mundiales, y el fracaso derechos civiles y políticos, dirigidos a de la Liga de las Naciones, el 10 de proteger la libertad, seguridad, la in- diciembre de 1948 una gran cantidad tegridad física y moral de los individuos. de países reunidos en el seno de la Se caracterizan por ser derechos exclu- emergente Organización de las Na- sivos del individuo, sin atención a la so- ciones Unidas tomaron el acuerdo de ciedad, ni a ningún otro interés, porque suscribir la Declaración Universal de deben responder a los derechos individ- Derechos Humanos. uales, civiles o clásicos de libertad. Esta Declaración marca el inicio de una La segunda generación de Derechos era en pro de la codificación, recono- 42 15, July 2007  What ARE Human Rights, anyway? cimiento, defensa y promoción de los incluso algunas instituciones del Esta- Derechos Humanos. do, a incoar un proceso de reclamación para la restitución del derecho violado4. Así, la corriente de cambio iniciada Al tratarse de derechos colectivos, con la promulgación de la Declaración no pueden ser monopolizados o ap- Universal de los Derechos Humanos ropiados por sujetos individuales, pues sienta las bases para que en el año de pertenecen al género humano como un 1966 se suscribiera el Pacto Internac- todo. El punto es que se trata de dere- ional de Derechos Civiles y Políticos, así chos modernos, no bien delimitados, como el Pacto Internacional de Dere- cuyos titulares no son estrictamente chos Económicos, Sociales y Culturales. personas individuales, sino más bien Con la promulgación de la Declaración los pueblos, incluso la humanidad como Universal de los Derechos Humanos un todo.5 De acuerdo a la teoría de los y el complemento necesario de estos Derechos Humanos, los derechos de Protocolos, los Derechos Humanos se tercera generación, están dentro de la incorporan efectivamente en el Dere- categoría de derechos de síntesis, pues cho Internacional, naciendo a la vida para que se hagan efectivos es nec- jurídica el Derecho Internacional de los esario que en ellos se sinteticen los de Derechos Humanos. primera y segunda generación, en una interconexión necesaria, pues a manera A diferencia de los Derechos Humanos de ejemplo, únicamente se puede tener de primera y segunda generación, al acceso al medio ambiente sano, cuando día de hoy, los Derechos Humanos de el hombre sea libre, se respete su vida, tercera generación no han sido trata- el Estado garantice su educación, su dos con la misma complejidad, ni en salud, etc.6 los tratados internacionales ni en las respectivas legislaciones nacionales. Se Algunos han caracterizado a la tercera trata de derechos colectivos, pues los generación de Derechos Humanos con beneficios que derivan de ellos cubren el calificativo de “soft rights” o dere- a la colectividad y no sólo al individuo chos blandos, por carecer de atribu- en particular. La doctrina les ha llama- ciones tanto de juridicidad como de do derechos de la solidaridad por estar concebidos para los pueblos, grupos sociales e individuos en colectivo. Otros han preferido llamarles “derechos de la humanidad” por tener por objeto bienes jurídicos que pertenecen al género humano, a la humanidad como tal, entendiendo por ésta, no sólo a las generaciones presentes sino que también a las generaciones futuras. Igualmente, se les suele llamar tam- bién “intereses difusos”, debido a su característica de no ser necesaria la demostración de violación de un dere- cho subjetivo para poder reclamarlo. Foto 1. “Dentro de los Derechos Humanos de Son derechos que, de manera clara, se tercera generación se encuentran el derecho a identifican con una suerte de actio pop- la protección del ambiente…” ularis que legitima a cualquier persona, (Cortesia Grazia Borrini-Feyerabend) 15, July 2007 43 Conservation and Human Rights coercitividad. Lo anterior encuentra su El derecho a la protección del ambiente justificación por la escasa positivización tiene su aparición a nivel internacional de los mismos en las Constituciones en el año 1972 a raíz de la promul- Políticas de los distintos Estados. La ta- gación de la Declaración de Estocolmo rea de incorporarlos dentro de las distin- sobre Medio Ambiente Humano. Se ve tas constituciones ha sido lenta, siendo desarrollado por la Carta de la Tierra el derecho al ambiente y el derecho al del año 1982, la Declaración de Río desarrollo los únicos que han tenido eco sobre Medio Ambiente y Desarrollo del en una gran cantidad de cartas funda- año 1992 y por la reciente Declaración mentales. de Johannesburgo del año 2002. De la fusión del derecho al ambiente y del Dentro de los Derechos Humanos de derecho al desarrollo nace el megad- tercera generación se encuentran el erecho humano denominado derecho al derecho a la protección del ambiente, desarrollo sostenible, entendiendo por el derecho al desarrollo, el derecho a la éste aquel tipo de desarrollo que sat- paz, libre determinación de los pueblos, isface las necesidades de las genera- Específicamente, el patrimonio ciones presentes sin comprometer la derecho a la protección del común de la humanidad, capacidad de las generaciones futuras de satisfacer sus propias necesidades. ambiente contiene una derecho a la serie de principios que comunicación, El derecho al ambiente como inundan la totalidad y por último derecho humano de primera el megadere- o de tercera generación. del sistema jurídico y cho humano El derecho a un ambiente tiene por objeto la tutela al desarrollo adecuado y a su protección de la vida, la salud y el sostenible con- Además de la clasificación de los Dere- equilibrio ecológico. formado tanto por el dere- chos Humanos por generaciones, el au- cho al ambiente como por el derecho al tor Demetrio Loperena Rota ofrece otra desarrollo. Específicamente, el derecho clasificación dividida en dos categorías: a la protección del ambiente ha sido por una parte, los derechos que el encasillado por la doctrina dentro de Estado debe respetar y proteger, y por la tercera generación de Derechos Hu- otra, los que el Estado debe promover manos. Contiene una serie de principios o proveer. Como bien lo afirma el au- que inundan la totalidad del sistema tor, sólo los primeros son imprescindi- jurídico, de ahí que se hable de su trans- bles para que una sociedad pueda ser versalidad. Tiene por objeto la tutela de calificada como tal, mientras que los la vida, la salud y el equilibrio ecológico. segundos son opciones “civilizatorias”, Vela por la conservación de los recursos actualizables con el desarrollo social y naturales, el paisaje y los bienes cultu- progreso económico en su contenido.8 rales. El derecho a gozar de un ambiente Siguiendo esta clasificación, los dere- sano y ecológicamente equilibrado es un chos civiles y políticos o derechos de derecho subjetivo concebido para todos primera generación formarían parte de y cada uno de los sujetos, oponible a los Derechos Humanos que el Estado cualquiera (Estado y/o particular) y con debe respetar y proteger; por tratarse posibilidad de ser ejercitado a nombre de derechos intrínsecos a la naturaleza de cualquiera por formar parte de los humana. Respecto a estos derechos, denominados “intereses difusos”.7 la función del Estado es reconocerlos, respetarlos y protegerlos. Se trata de 44 15, July 2007  What ARE Human Rights, anyway? derechos que son anteriores a la con- que el Estado debe reconocer, respetar formación del mismo Estado y que por y proteger, en donde el rol estatal se ve tanto, éste debe reconocerlos como supeditado a tutelar que estos no sean derechos fundamentales y encomen- violentados, sin que su actuación posi- dar a los Poderes Públicos su tutela. tiva sea imprescindible. Contrario a lo anterior, los derechos de segunda y tercera generación entrarían Es importante en este punto resaltar la dentro de la categoría de los dere- diferencia que existe entre el derecho chos que el Estado deber promover o a un ambiente adecuado y el derecho proveer. Se trata de Derechos Humanos a la acción pública para la protec- que necesitan o dependen de los siste- ción del ambiente. Mientras el primero mas sociales o políticos. De esta forma, es cronológicamente anterior y por el derecho a la educación o a la asist- ende, no se ejerce frente al Estado, encia sanitaria universal, son conse- el segundo es posterior y si se ejerce cuencia de un desarrollo “civilizatorio”, frente a éste. El derecho a la protec- y por tanto, requieren necesariamente ción del medio ambiente está debida- de la intervención del sistema social y mente relacionado con los derechos de político del Estado. solidaridad, ya que por el principio de equidad intergeneracional, las futuras Ahora bien surge generaciones dependen del uso actual El medio ambiente la duda respecto al que se le da a los recursos naturales. precede al hombre, al lugar que debería De ahí que la intervención Estatal sea Derecho y al mismo ocupar el derecho al necesaria para asegurar que las gen- Estado. Por ello el ambiente dentro de eraciones venideras lleguen a gozar de estas categorías. El un ambiente sano, en donde se puedan derecho a un me- medio ambiente pre- desarrollar en armonía con el equilibrio dio ambiente sano cede al hombre, al ecológico. y ecológicamente Derecho y al mismo equilibrado como Estado. Por ello el El derecho a la protección del medio derecho a un me- ambiente por medio derecho fundamen- dio ambiente sano de la acción pública El derecho a la tal no depende de los y ecológicamente del Estado, así como protección del me- sistemas sociales y equilibrado como de la participación dio ambiente está derecho fundamen- solidaria de los políticos, al no ser tal no depende de demás individuos, debidamente re- forjado por el actuar los sistemas sociales encuadra dentro lacionado con los humano sino por la y políticos, al no ser de la segunda cat- derechos de solidari- misma naturaleza. forjado por el actuar egoría expuesta, humano sino por la sea aquellos dere- dad, ya que por el misma naturaleza. Lo mismo sucede chos que el Estado principio de equidad con el derecho a la vida, el cual tam- debe promover o intergeneracional, bién precede al Estado. En este sentido proveer. A esta las futuras genera- el rol del Estado respecto al derecho al categoría pertene- ambiente lo es de dar reconocimiento, cen los Derechos ciones dependen del respeto y protección. Por ello y sigu- Humanos de ter- uso actual que se iendo la acertada tesis esbozada por el cera generación o le da a los recursos profesor Loperena Rota, el derecho a de solidaridad, los naturales. un medio ambiente adecuado encuadra cuales, como se ex- dentro de la categoría de los derechos puso, necesitan de la plena acción del 15, July 2007 45 Conservation and Human Rights aparato estatal para su debida imple- “toda persona tiene derecho a un nivel mentación y protección. de vida adecuado que le asegure, así como a su familia, la salud y el El derecho al ambiente en bienestar.” Es importante aclarar que el sistema universal de los un medio ambiente sano y ecológi- derechos humanos camente equilibrado es un requisito indispensables para el efectivo de- Con la adopción de la Declaración Uni- sarrollo de la salud y el bienestar del versal de Derechos Humanos de 1948, ser humano, de hecho, del derecho a se reconoció por parte de una organ- la vida se extrae el derecho a la salud, ización de naciones, que son los Esta- y de estos dos se extrae el derecho a dos los primeros obligados en respetar, un ambiente sano y adecuado, pues proteger y promover los Derechos Hu- sin éste último es imposible el de- manos y por ende, es también un dere- sarrollo adecuado de los dos primeros. cho de los individuos, por sí y como Por su parte, el Pacto Internacional de colectividad, el exigir este respeto. Derechos Económicos, Sociales y Cul- turales de 1966 menciona la necesidad El Sistema Universal de los de mejorar el medio ambiente como Derechos Humanos uno de los requisitos para el adecuado El sistema Universal de los Derechos desarrollo de la persona. Humanos nace con la Organización de las Naciones Unidas y la suscripción Si bien no existe referencia expresa de los países miembros de Declaración en los instrumentos de Derechos Universal de Derechos Humanos, Humanos de las Naciones Unidas adoptada por la Asamblea General que haga suponer la existencia del de las Naciones Unidas el día 10 de Derecho Humano a la protección del diciembre de 1948. La Declaración fue ambiente, si es posible deducir su seguida de dos instrumentos inter- protección indirecta. Esto ocurre por nacionales sobre Derechos Humanos ser tales instrumentos anteriores al adoptados en 1966: la Convención nacimiento de la preocupación interna- Internacional de Derechos Civiles y cional por el medio ambiente. Sin em- Políticos y la Convención Internacional bargo, es por la vía interpretativa por de Derechos Económicos, Sociales y medio de la cual se puede extraer las Culturales. Tanto la Declaración Uni- bases que permiten asentar el dere- versal de Derechos Humanos como cho a un ambiente sano dentro de los estas dos Convenciones, fueron re- primeros documentos de la protección dactadas y puestas en funcionamiento de los Derechos Humanos del Sistema con anterioridad al inicio de la preo- de Naciones Unidas. cupación mundial por el medio ambi- ente, lo cual ocurre a partir de 1972, Los Sistemas Regionales de luego de la Conferencia de Naciones Derechos Humanos Unidas sobre el Medio Ambiente Hu- América, Europa y África han establ- mano de Estocolmo. ecido sistemas regionales de protec- ción de los Derechos Humanos medi- En la Declaración Universal de Dere- ante la adopción de Declaraciones y chos Humanos de 1948, se encuentra Convenciones, así como la creación de la primera base en donde se puede Comisiones y Cortes que refuerzan su asentar el Derecho a un Medio Am- aplicación. biente Sano cuando se establece que 46 15, July 2007  What ARE Human Rights, anyway? El Sistema Africano de Derechos cuales pueden ser acogidas o rechaza- Humanos das por la Asamblea de la Organización La Carta Africana de Derechos Hu- para la Unión Africana, incluso la pub- manos fue adoptada por la Organiza- licidad de los reportes se da sólo en ción para la Unión Africana, y entró el caso que así lo decida la Asamblea en vigor a partir de 1986. Por ser de General de la Unión Africana. Por ende, reciente creación, la Carta expone la la Carta Africana de Derechos Humanos lista tradicional se encuentra casi en desuso, debido a La Carta Africana de de derechos la falta de mecanismos efectivos que la Derechos Humanos civiles y políti- lleguen a poner en práctica. se encuentra casi en cos, los dere- El Sistema Interamericano de desuso, debido a la chos económi- cos, sociales Derechos Humanos falta de mecanismos y culturales, El Sistema Interamericano de Dere- efectivos que la lleguen así como los chos Humanos está compuesto por la a poner en práctica. derechos de Convención Americana sobre Derechos solidaridad o Humanos o Pacto de San José de Costa de tercera generación; incluyendo el Rica de 1969, el cual entró en vigen- derecho explícito de los sujetos a “un cia en 1978, junto con sus protocolos ambiente favorable y satisfactorio para sobre Derechos Económicos, Sociales y su desarrollo”. Culturales mejor conocido como Proto- colo de San Salvador suscrito el 17 de A pesar de ser un documento de van- noviembre de 1988, y el relativo a la guardia, el cual incluye derechos de abolición de la pena de muerte aproba- tercera generación, la Carta Africana do en Asunción Paraguay el 08 de junio de Derechos Humanos en su aplicación, de 1990, y las cuatro convenciones no ha tenido consecuencias prácticas interamericanas sectoriales sobre: favorables. Esto se debe principalmente prevención y sanción de la tortura,9 a que ella es aplicada por una Comisión desaparición forzosa de personas,10 y no por una Corte, la cual a pedido de prevención, sanción y erradicación de la Organización para la Unión Africana, la violencia contra la mujer,11 y la elimi- investiga y rinde recomendaciones, las nación de discriminación contra perso- nas con discapacidad.12 Con el fin de implementar la puesta en ejecución de los derechos contenidos en la Convención se crea la Comisión Interamericana de Derechos Humanos y la Corte Interamericana de Derechos Humanos. La Convención Americana sobre Derechos Humanos no hace referencia expresa al derecho a un ambiente adecuado, principalmente por haber sido redactada con anteriori- dad al advenimiento de estos últimos. Por su parte, el Protocolo Adicional a Foto 2. “…la Carta Africana de Derechos Humanos en su aplicación, no ha tenido la Convención Americana sobre Dere- consecuencias prácticas favorables. …” chos Humanos en Materia de Derechos (Cortesia Christian Chatelain) Económicos, Sociales y Culturales o 15, July 2007 47 Conservation and Human Rights Protocolo de San Salvador de 1989 o la Corte Interamericana de Derechos si regula expresamente el derecho al Humanos, con la salvedad de casos en ambiente en su artículo 11, donde ex- que se involucran situaciones de pueb- presa “Todo individuo tiene el derecho los indígenas donde, por lo general, se a vivir en un ambiente sano y a tener vincula el derecho humano a la propie- acceso a los servicios básicos públicos. dad colectiva con situaciones de medio Los Estados parte deben promover la ambiente.13 protección, preservación y el mejo- ramiento del ambiente”. El Sistema Europeo de Derechos Humanos El protocolo de San Salvador entró En el año 1950 en la ciudad de Roma en vigencia hasta el día dieciséis de las naciones europeas crean la Con- noviembre de mil novecientos noventa vención Europea de Protección de los y nueve cuando fue ratificado por Costa Derechos del Hombre y de las Libertades Rica. El problema adicional que presenta Fundamentales, la cual entró en vigen- tiene que ver con la falta de mecanismos cia en el año 1953, creándose además procesales para demandar la violación la Comisión Europea de Derechos Hu- de algunos derechos económicos, so- manos y la Corte Europea de Derechos ciales y culturales, mediante la interpos- Humanos. Además de la Convención de ición de peticiones individuales ante el Roma, el Sistema Europeo de Derechos Sistema Interamericano. Humanos se encuentra constituido por la Carta Europea de Derechos Sociales El derecho a un ambiente sano como y la Convención Europea para la pre- Derecho Humano no ha sido implemen- vención de la Tortura y trato o castigos tado aún por el Sistema Interameri- degradantes e inhumanos. El sistema cano de Derechos Humanos. Prueba europeo de Derechos Humanos es ejer- de ello, es la poca cantidad de casos cido por dos instituciones que velan por por violación al derecho al medio am- el cumplimiento del Tratado de Roma, la biente en conocimiento de la Comisión Comisión Europea de Derechos Humanos y el Tribunal Europeo de Derechos Hu- manos. A diferencia de los otros siste- mas regionales, el Sistema Europeo, por medio de su Tribunal de Derechos Hu- manos, si ha entrado a conocer de lleno violaciones medioambientales, lo que merece un análisis por aparte. Protección del derecho al ambiente por parte del tribunal Europeo de derechos humanos Al igual que el sistema de Derechos Humanos de las Naciones Unidas, así Foto 3. “…(hace) falta de mecanismos como al Sistema Interamericano, el procesales para demandar la violación de Tratado de Roma no reconoce explícita- algunos derechos económicos, sociales y mente un derecho humano a gozar de culturales, mediante la interposición de un medio ambiente adecuado. peticiones individuales ante el Sistema Interamericano. …” La interpretación dinámica y teleológ- (Cortesia Grazia Borrini-Feyerabend) 48 15, July 2007  What ARE Human Rights, anyway? ica de los derechos protegidos por el derechos enunciados dentro del mismo, Tratado de Roma, tanto por parte de tales como el derecho a la vida, el la Comisión como el Tribunal Europeo respeto a la vida privada y familiar y al de Derechos Humanos, han permitido disfrute del domicilio. para fines prácticos, proteger el dere- cho al medio ambiente a través de una A pesar de la protección del derecho al doble vía indirecta.14 De esta forma, ambiente, vía indirecta, por parte del los particulares pueden beneficiarse Tribunal Europeo de Derechos Hu- de la protección del derecho al medio manos, ello no implica necesariamente ambiente en conexión con el Convenio que se esté creando un nuevo derecho de Roma. Por una parte, esta protec- humano dentro del Tratado de Roma ción puede darse en cuanto a titulares que tutele un medio ambiente adecua- de derechos cuya garantía exija, en do, pues del análisis de la jurispruden- determinados supuestos, protección de cia de dicho Tribunal no se puede de- las condiciones medioambientales de ducir una tutela directa de tal derecho. calidad. Por otro lado, también puede darse esta protección al derecho al me- De lo anteriormente manifestado se dio ambiente cuando éste se encuentre puede concluir que el Tribunal Europeo en conexión con un interés general, de Derechos Humanos ha llegado a cuya salvaguardia permite a los Esta- tutelar el derecho al ambiente indi- dos Parte en el Convenio, imponer lim- rectamente a través de la protección itaciones y restricciones en el ejercicio del derecho a la vida privada y famil- de algunos derechos reconocidos por iar y al domicilio, otorgándoles a tales este instrumento regional de Derechos derechos, bajo determinadas situa- Humanos.15 Esta doble vía indirecta de ciones, una dimensión medioambiental, protección al derecho al ambiente por lo cual no implica que dichos derechos parte del Tribunal Europeo de Derechos se hayan “ambientalizado” per se, pues Humanos, se ha desarrollado a raíz de perfectamente pueden ser restringidos la aplicación por violación, por acción u por las autoridades estatales, siempre omisión, de los artículos 2 y en especial que se trate de una medida con base el 8 del Tratado de Roma. legal que persiga un fin legítimo y que sea necesaria en una sociedad democ- El numeral 2 del Tratado de Roma es- rática, tal y como lo establece el pár- tablece la tutela del derecho a la vida, rafo segundo del numeral 8 del Tratado mientras que el artículo 8 establece el de Roma. El Tribunal Europeo se ve derecho al respeto a la vida privada obligado a velar por el justo equilibrio y familiar, y al disfrute del domicilio. entre los intereses en juego, sea el Por tanto, y siguiendo el criterio es- interés estatal versus el interés del bozado por el autor Daniel García San particular o el interés de lo particulares José, si puede afirmarse a la luz de la afectados. Con ello, el Tribunal Europeo jurisprudencia del Tribunal Europeo de debe analizar caso por caso mediante Derechos Humanos, la existencia de el sistema de ponderación de los inter- una creciente percepción de la dimen- eses, sin que pueda establecer a priori, sión medioambiental de algunos de los cual de los intereses en juego irá a derechos reconocidos en el Tratado de prevalecer sobre el otro. Roma, lo que conlleva en la práctica a la protección del derecho al disfrute A manera de ejemplo, en el caso López de un medio ambiente adecuado, por Ostra versus el Reino de España,16 el encontrarse implícito en algunos de los Tribunal Europeo consideró que las 15, July 2007 49 Conservation and Human Rights ponderación de rigor, prevalecerían los intereses de los particulares afectados sobre los del Estado. Por ello, en este caso específico se observa el supuesto de la tutela ambiental indirecta por parte del Tribunal Europeo de Dere- chos Humanos. Conclusiones y propuestas A pesar de ser reconocido como de un derecho humano fundamental, el derecho al ambiente no se encuentra expresamente regulado en los distin- tos instrumentos internacionales que versan sobre Derechos Humanos, ya que ni el Sistema Universal de Dere- Foto 4. “…el Tribunal Europeo de Derechos chos Humanos, ni los sistemas Region- Humanos ha llegado a tutelar el derecho ales como el Sistema Interamericano al ambiente indirectamente. …” o el Europeo regulan de manera clara, (Cortesia Grazia Borrini-Feyerabend) expresa ni contundente el derecho al emanaciones de gases, olores, pesti- ambiente sano. lencias y contaminación por parte de una estación depuradora de aguas y Si bien existen excepciones teóricas desechos que funcionaba sin la respec- dentro de los sistemas regionales de tiva licencia municipal, violentó los protección de derechos, por ejemplo, derechos al respeto del domicilio y a en la Carta Africana de Derechos Hu- la vida privada y familiar de la señora manos si se regula taxativamente los López Ostra. El Tribunal europeo estimó derechos de tercera generación, ha que el municipio no adoptó las medidas quedado claramente demostrado que oportunas y constató que no se man- su implementación a la fecha no se ha tuvo el justo equilibrio entre el interés dado. Por esta razón, para todo efecto económico del municipio y los derechos práctico el derecho al ambiente carece de la señora López Ostra, declarando de la debida protección dentro de los en sentencia que estos últimos fueron mecanismos regionales. La protección violentados por la acción omisiva del indirecta a este derecho se ha obser- municipio. vado a través del Sistema Europeo, el cual por medio de la Comisión y de la La tutela ambiental por parte del Tri- Corte Europea de Derechos Humanos, bunal Europeo de Derechos Humanos ha “ambientalizado” otros derecho hu- es posible en el tanto la ingerencia manos que sí se encuentran plasmados contra el derecho incoado sea injus- explícitamente en el Tratado de Roma. tificada, y el efectivo disfrute de los No obstante, esta protección indirecta mismos no sea posible a consecuencia se encuentra lejos de crear y tutelar de las malas condiciones ambientales. efectivamente el derecho a un ambi- En tal supuesto, la ingerencia al dere- ente sano. cho protegido no respetaría el justo equilibrio que debe prevalecer entre Tal vez, mediante la ratificación de la los intereses del particular y los de Constitución Europea, el derecho fun- la comunidad, y una vez realizada la damental al ambiente logre plasmarse 50 15, July 2007  What ARE Human Rights, anyway? dentro de los derechos fundamentales rador posee un capítulo exclusivo sobre de tutela directa. El sistema Interamer- Derechos Humanos Ambientales, entre icano, a pesar de la entrada en vigencia los que se encuentran el derecho a un el Pacto de San Salvador, carece de el- ambiente sano, derecho a la vida, a la ementos suficientes para la protección integridad personal, igualdad ambien- directa del derecho al ambiente. tal, derechos del consumidor, derecho al desarrollo sostenible, derecho de Consciente de ello, y debido a la participación e información y acceso a necesidad imperante por la efectiva la justicia ambiental, entre otros.17 protección de este derecho fundamen- tal, el Centro de Derechos Humanos La taxatividad de los Derechos Hu- y Medio Ambiente, organización no manos ambientales dentro de instru- gubernamental con sede en Córdoba, mentos internacionales es fundamental Argentina, ha preparado un borrador para la correcta tutela de tales dere- de Proyecto de Legislación Internac- chos, de ahí que la propuesta que ional de Derechos Humanos y Medio realiza el Centro de Derechos Humanos Ambiente, con el fin que dicho docu- y Medio Ambiente reviste de gran im- mento sirva de base de discusión para portancia, pudiéndose utilizar de punto la suscripción dentro del continente de partida para el análisis y ejecución americano de un Tratado de Derechos ya sea de un Protocolo o bien de un Humanos y Medio Ambiente. Dicho bor- Tratado de Derechos Humanos y Medio Ambiente. “Hasta hace sólo unos pocos años antes de su asesinato en 1988, Chico Mendes, el brasileño conocido inter- nacionalmente por la batalla que libró contra la deforestación amazónica, se consideraba a sí mismo exclusi- vamente un activista defensor de la justicia social. Su principal objetivo era proteger el derecho de sus com- pañeros recolectores de caucho a ganarse el sustento gracias al bosque. Sin embargo, en 1985, Mendes cono- ció el movimiento ecologista y se dio cuenta de que la lucha internacional para salvar la selva tropical y su lucha local para ayudar a sus habitantes venía a ser casi lo mismo. Esa idea reside en el corazón de su legado: él mostró que las cuestiones relativas a los Derechos Humanos y las del medio ambiente están intrínsecamente uni- das.”18 Independientemente si el esfu- Foto 5.“…La taxatividad de los Derechos Hu- erzo es de un grupo de gobernantes, manos ambientales dentro de instrumentos inter- legisladores, especialistas, activistas nacionales es fundamental para la correcta tutela de tales derechos. …” o de un solo hombre, entre la teoría y (Cortesia Grazia Borrini-Feyerabend) la práctica, lo importante es rescatar 15, July 2007 51 Conservation and Human Rights el verdadero sentido de interconexión 10 Adoptada en Belem du Pará, Brasil, el 09 de junio de 1994, en vigor desde el 29 de marzo de 1996. entre los Derechos Humanos y el dere- 11 Adoptada en Belem du Pará, Brasil, el 09 de junio cho al medio ambiente. de 1994, en vigor desde el 05 de marzo de 1995. 12 Adoptada en la Primera Sesión Plenaria de la En este capítulo se presentan ambas, Asamblea General de la OEA el 07 de junio de 1999. una perspectiva teórica, un proyecto 13 Mediante la sentencia del 31 de agosto de 2001 con esperanza de motivar discusión en el caso Awas Tigni contra Nicaragua, la Corte creada por un grupo de especialista Interamericana de Derechos Humanos reconoció a en la Argentina, y una anécdota para los pueblos indígenas como un colectivo de dere- chos en su unidad y no únicamente como derechos mover los corazones que aún les cuesta individuales de sus habitantes. Además, desarrolló creer en el poder del cambio que radica el derecho a la propiedad colectiva y la obligación del Estado nicaragüense de titular sus tierras y en cada uno de nosotros. Si el dere- de disponer de recursos legales eficaces para que cho ambiental es de primera, segunda los pueblos indígenas puedan tener acceso a la o tercera generación, eso a los hab- reivindicación de ese derecho. La Corte concluyó que el Estado de Nicaragua violó los derechos de itantes de la selva tropical les tiene la comunidad Awas Tigni al haber otorgado una sin cuidado, pues lo que necesitan es concesión de explotación forestal a terceros sin la respuesta efectiva del Estado para su consentimiento, y por hacer caso omiso a las demandas de la comunidad indígena para que se su efectiva protección. Al lector se le delimitare su territorio. De esta forma, el Tribunal pide tome esta última reflexión para su concluye que los derechos territoriales indígenas no se basan en un título formal otorgado por el propio análisis, para los autores, que la Estado, sino en la simple posesión de tierras, inquietud sobre la conexidad entre los enraizada en su propio derecho consuetudinario, Derechos Humanos y el medio ambi- valores, usos y costumbres. A la vez estableció que “los indígenas por el hecho de su propia ex- ente deje huella ya es un triunfo. istencia tienen derecho a vivir libremente en sus propios territorios, la estrecha relación que los Mario Peña Chacon (mariopena@racsa.co.cr) es abogado indígenas mantienen con la tierra debe ser recono- costarricense graduado de la Universidad Autónoma de cida y comprendida como base fundamental para Centro América y Máster en Legislación Ambiental de la sus culturas, su vida espiritual, su integridad y su Universidad para la Cooperación Internacional y se desem- supervivencia económica”. La misma sentencia de peña como consultor ambiental independiente. Es miembro comentario impuso medidas provisionales para que de la Comisión de Legislación Ambiental de la UICN y de la el Estado de Nicaragua proteja la integridad de Asociación Costarricense de Derecho Ambiental. las tierras y recursos de la comunidad frente a la Ingread Fournier Cruz (ifournier@upeace.org) es aboga- acción de terceros o del mismo Estado como una da costarricense graduada de la Universidad Autónoma de forma de garantizar la efectividad del derecho de Centro América y Máster en derechos humanos de la Uni- propiedad hasta tanto no se produzca la titulación versidad para la Paz de las Naciones Unidas, y se desem- de tierras definitiva. peña como Legal Officer de la Universidad para la Paz. 14 Dejeant-Pons, 2002. 15 García San José, 2003. 16 Tribunal Europeo de Derechos Humanos, S 09-12- Notas 1994, número 0496/1994. 1 Pérez, 1924. 17 El borrador de Proyecto de Legislación Internacion- 2 Fernández, 1982. al de Derechos Humanos y Medio Ambiente puede 3 Loperena, 2003. ser accesado en la siguiente dirección electrónica: 4 Rodríguez. www.cedha.org.ar 5 Sagues, 1993. 18 Sachs, 1995, p5. 6 Santander, E., “Instituciones de Derecho Ambien- tal”, Ecoe Ediciones, Bogotá, 2002. Bibiliografia 7 Zeledón, R., “Código Ambiental”, Editorial Porvenir, Alvarez Molina M, Y. Aragon Cambronero, J. Flores So- Primera Edición, San José, 1998. toviak, G. Solis Vega, “Jurisprudencia Constitucional 8 Loperena, D., “Los derechos al medio ambiente sobre Medio Ambiente”, Editorial Investigaciones adecuado y a su protección” en Medio Ambiente y Jurídicas S.A, San José, Costa Rica, 2002. Derecho, Revista Electrónica de Derecho Ambiental De Oliveira Marum J.A., “Meio ambiente e direitos de la Universidad de Sevilla, Número 6, 2003. humanos”, Revista de Direito Ambiental, Editora 9 Suscrita en Cartagena de Indias, el 09 de diciem- Revista Dos Tribunais, número 28, Sao Pablo, Brasil, bre de 1985, en vigor desde el 28 de febrero de 2002. 1987. Dejeant-Pons, M. “La incorporación del derecho 52 15, July 2007  What ARE Human Rights, anyway? humano al ambiente en los sistemas regionales de Materials on International and Comparative Environ- derechos humanos”, Revista Universal de Derechos mental Law”, Editora Laguna, México, 2001. Humanos, Volumen 3, número 11, Madrid, España, Pérez, A., “Derechos Humanos en la sociedad 2002. democrática.”Editorial Tecnos, Madrid, 1924. Fernández, E. “El problema del fundamento de los Rodríguez, V., “El derecho al medio ambiente en el derechos humanos.” En Anuario del Instituto de Sistema Interamericano de Protección de Derechos Derechos Humanos, 1981. Editorial Universidad Com- Humanos: En busca de la implementación de una plutense de Madrid, España, 1982 estrategia de litigio regional”, accesible a través de García San José, D., “La protección del Derecho al la red Internet en la siguiente dirección: www.elaw. disfrute de un medio ambiente adecuado por el org/resources/ Tribunal Constitucional a la luz de los principios ex- Sachs, A. “Eco-justicia, la unión de los derechos traíbles de la jurisprudencia del Tribunal humanos y el medio ambiente”. Cuadernos World- watch. Worldwatch Institute, Bakeaz, Bilbao, Es- Europeo de Derechos Humanos. Un análisis crítico, paña, 1995. Madrid, España, 2003. Sagues, N., “Elementos de Derecho Constitucional”, Hunter, D., J. Salzman,D. Zaelke,. “Human Rights and Tomo Segundo, Editorial Astrea y Ricardo de Palma, the Environment”, Internacional Environmetal Buenos Aire , Argentina, 1993. Law and Policy, Foundation Press, Nueva York, Esta- Salazar Cambronero, R. y R. Saborío Valverde, “Manu- dos Unidos, 1998. al sobre Derechos Humanos y Ambiente”, Fundación Loperena Rota, D., “Los derechos al medio ambiente Ambio-Academia Costarricense de Derecho Ambien- adecuado y a su protección” en Medio Ambiente y tal, San José, Costa Rica, 1994. Derecho, Revista Electrónica de Derecho Ambiental Santander Mejía, E., “Instituciones de Derecho Ambi- de la Universidad de Sevilla, número 6, Sevilla ental”, Ecoe Ediciones, Bogotá, Colombia, 2002. España, 2003. Zeledón Zeledón, R., “Código Ambiental”, Editorial Ojeda Mestre, R., y D. Loperena Rota, “Cases and Porvenir, Primera Edición, San José, 1998. Human Rights— a new “territory” for nature conservation organizations Yves Lador T he new UN Human Rights Council, created in June 2006 to replace the one the keynote speaker at the open- ing ceremony of the Council was Ms. Wangari Mathai, the Kenyan Nobel former Commission on Human Rights, Prize winner. She reminded the Mem- is not designed to be the place to talk ber States of the Council how much the about ecosystems, species and genetic mismanagement of natural resources diversity. The mandate of the Council and of the environment can create is to deal with people, their fundamen- conflicts, poverty and insecurity, with tal rights and the States’ obligations a particular pressure on the weak and to protect and promote such rights. It the poor, and thus increase human could even be seen as an inappropri- rights violations. She insisted that good ate “institutional biotope” for conser- governance in these matters is crucial vationists. In contradiction with such to reach justice and security and how a a perception of the Council, however, body such as the Council is needed to 15, July 2007 53 Conservation and Human Rights monitor the situation of human rights the mandate of a “Special Rapporteur in the world and make sure that no one on the adverse effects of the illicit silence others in submission, when the movement and dumping of toxic and world is facing the challenge of poten- dangerous products and wastes on the tial conflicts over scare resources. enjoyment of human rights”, in order to see how to protect the rights of vic- The presence of Ms. Wangari Mathai tims of such practice and look at trends at the beginning of the Council was a in this matter. The mandate holder is foresight of the new challenges and is- today Prof Okey Ibeanu, of the Univer- sues on which the Council will have to sity of Nigeria. The Commission also work. But there were precedents. The mandated in 2004 its expert body to former Com- prepare a report on the legal implica- Ms. Wangari Mathai, mission on tions of the disappearance of States the Kenyan Nobel Prize Human Rights for environmental reasons, including winner reminded the had started, the implications for the human rights Member States of the although much too slowly, to of their residents, with particular refer- ence to the rights of indigenous peo- Council how much the look at en- ple. The study prepared by the British mismanagement of vironmental expert, Prof Francoise Hampson, is one natural resources can issues relevant of the first to look at such human rights to its man- implications of climate change and the create conflicts, poverty date. At the possible raise of the sea level. It is to and insecurity, with a beginning of the new Council to discuss now the first particular pressure on the the nineties, results of this study and probably to extend it. weak and the poor… and it had agreed that its expert thus increase human body, called All these examples illustrate how the rights violations the “Sub-Com- UN Human Rights Council will have to mission”, pre- deal more and more with the human pares a report on human rights and the rights implications of environmental environment. Ms Fatma Zhora Ksentini, degradation and its prevention and the Commission’s expert from Algeria responses. Two elements can specifi- who tabled it in 1994, wrote the report cally concern conservationists. First, and included in it a “Draft Principles on the Council is mandated to review human rights and the environment”,. and strengthen the former Commis- Unfortunately the Commission seriously sion “Special Procedures”. Under this followed-up on this issue only in 2002, general name are either individuals when preparing its contribution to the (called, for example, “Special Rappor- Johannesburg Summit. In that occasion teur” or “Special Representative of the it jointly organized an expert meet- Secretary-General”) or members of a ing with UNEP, whose conclusions were working group, serving in their per- presented in Johannesburg by Ms Mary sonal independent capacity and in all Robinson, the UN High Commissioner impartiality. They are now mandated for Human Rights. In 2003, the Com- by the Council to receive information mission adopted its first Resolution on on specific allegations of human rights “Human Rights and the Environment as violations, to carry out country visits parts of Sustainable Development”. and to examine, monitor, advise, and publicly report to the Council on human In 1995, the Commission created also rights situations in specific countries or 54 15, July 2007  What ARE Human Rights, anyway? on major phenomena of human rights violations. A number of these mandate-holders have had to deal with environmental issues and conservation problems, such as Mr. Peter Leuprecht, from Austria, Special Representative of the Secre- tary-General for human rights in Cam- bodia, and Mr. Paulo Sérgio Pinheiro, from Brazil, Special Rapporteur on the situation of human rights in Myanmar, who have been confronted with the impact of illegal timber trade on peo- ple. In another field, Prof. Jean Ziegler, from Switzerland, Special Rapporteur on the right to food, mentioned in his report the impact of land degradation and desertification and its possible con- tribution to new flows of environmental refugees. Of course, other Special Rap- Picture 1. “…the UN Human Rights Council will porteurs are also constantly confronted have to deal more and more with the human with the environmental dimensions of rights implications of environmental degrada- their issue. These Rapporteurs include tion and its prevention and responses…” the on the situation of human rights (Courtesy Clive Wicks) and fundamental freedoms of indig- dumping of their nuclear waste into enous people—Prof Rodolfo Stavenha- the Pacific Ocean by the Russian fleet. gen, from Mexico; the one on the right Considering “that damage to or protec- to the enjoyment of the highest attain- tion of the environment is an issue that able standard of physical and mental knows no boundaries (…) it should be health, Mr. Paul Hunt, of New Zealand; possible freely to engage in ecological and the one on the right to adequate criticism: this forms part of the right housing, Mr. Miloon Khotari, of India. to freedom of expression “regardless The so-called “classical” mandates are of borders”, as laid down by article 19 also concerned, such as the Special of the Universal Declaration of Human Representative of the Secretary-Gener- Rights and article 19 of the Interna- al on the situation of human rights de- tional Covenant on Civil and Political fenders, Ms Hina Jilani, from Pakistan, Rights”. The Working Group concluded who includes environmental defenders that the deprivation of liberty of Grigor- in her activities and reports. In 2000, ii Pasko was arbitrary and thus gave an the Working Group on Arbitrary Deten- important interpretation of these rights tion, who investigate cases of arbitrary for the environmental movement.1 In detention adopted an Opinion regarding 2006, 13 communications were sent the charges against Grigorii Pasko, de- jointly or individually by 6 mandates on tained in Russia for having tried to alert issues concerning the environment. national and international opinion to the environmental risks of the break- Finally, the second element concerns age for recycling of defective nuclear the efforts to improve the international submarines and from the clandestine environmental governance. A group of 15, July 2007 55 Conservation and Human Rights States calling for a UN organisation for ries and the environment is now known as the natural resources and to maintain “Group of Friends of the UNEO”, which their traditional way of life. This met last April in Agadir. It started with includes the right to security in the a meeting in Paris in Febuary 2007 enjoyment of their means of subsist- where the “Paris Appeal” was adopted. ence. Indigenous peoples have the This document includes a call “for the right to protection against any action adoption of a Universal Declaration or course of conduct that may result of Environmental Rights and Duties. in the destruction or degradation This common charter will ensure that of their territories, including land, present and future generations have a air, water, sea-ice, wildlife or other new human right: the right to a sound resources. and well-preserved environment.” The 1994 Ksentini report, with its “Draft The possible elaboration of such a new Principles on human rights and the Declaration, as called for in the Paris environment”, gave for the first time a Appeal, would require the participa- definition of such environmental rights. tion of all sectors of the environmen- It contained some specific provisions tal movement. It concerns the nature concerning conservation issues, such conservation organisations, which are as the following three Principles: called to increase their presence where the relation between human rights 6. All persons have the right to pro- and the environment is discussed and tection and preservation of the air, where the new “environmental human soil, water, sea-ice, flora and fauna, rights” are progressively emerging. and the essential processes and ar- Yves Lador (y.lador@bluewin.ch) is permanent representa- eas necessary to maintain biological tive of Earthjustice to the United Nations in Geneva (Swit- diversity and ecosystems. zerland). Earthjustice is a “non-profit public interest law firm dedicated to protecting the magnificent places, natural resources, and wildlife of this earth and to defending the 13. Everyone has the right to benefit right of all people to a healthy environment…”.2 equitably from the conservation and sustainable use of nature and natu- ral resources for cultural, ecological, Notes educational, health, livelihood, rec- 1 Working Group on Arbitrary Detention, E/ CN.4/2000/4/Add.1, pps 49 -51. reational, spiritual and other purpos- 2 Earth Justice Mission. For more information see es. This includes ecologically sound http://www.earthjustice.org/about_us/index.html access to nature. References Everyone has the right to preserva- Working Group on Arbitrary Detention, Civil and Politi- tion of unique sites consistent with cal Rights, Including the Question of Torture and Detention: Opinions adopted by the working group the fundamental rights of persons or on arbitrary detention, Addendum to the Report to groups living in the area. the Commission on Human Rights in their Fifty-sixth session, Item 11 (a) of the provisional agenda, 17 December, 1999. UN Document E/CN.4/2000/4/ 14. Indigenous peoples have the Add.1 right to control their lands, territo- 56 15, July 2007  What ARE Conservation Human Rights, can undermine anyway? Human Rights... Conservation and human rights— the case of the ‡Khomani San (bushmen) and the Kgalagadi Transfrontier Park, South Africa Phillipa Holden Abstract. This paper outlines the dispossession of the southern Kalahari San of their an- cestral lands, due to colonisation, the development of the conservation estate, and South Africa’s apartheid policies. The San (or Bushmen as they more usually call themselves) are the first peoples of southern Africa and there is evidence of their widespread distri- bution over the sub-continent, dating back at least 30 000 years. With the establishment of the Kalahari Gemsbok Park in 1931, people’s rights to live and hunt on the land were gradually eroded until their final eviction from the park in the mid 1970s. Under the new democratic government, the ‡Khomani San Community submitted a land claim for 400 000 ha in the park, which was vindicated and formally settled with major modifications in March 1999. The paper considers whether progress has been made since then, if in fact the rights of the San have been fully restored to them, and what factors are driving such outcomes. A look into the past... of other peoples. Approximately 2 000 Most paleoanthropologists and geneti- years ago the sheep and cattle herding cists subscribe to the “Out of Africa” Khoekhoe peoples migrated down from theory that the ancestors of modern Namibia and Botswana, pushing !Ui humans arose some 200 000 years ago speaking peoples away from the coast in Africa, with the earliest modern hu- and river areas, and around 800 years man fossils being found at Omo Kibish, ago a major migration of Bantu-speak- Ethiopia.1 They also agree that all the ing peoples entered eastern South variously shaped and shaded people Africa.3 Most relations between hunter- of Earth trace their ancestry to African gatherers and the agro-pastoralist peo- hunter-gatherers. Ancestral DNA mark- ples, however, are likely to have been ers turn up most often among the San positive and to have involved a degree people of Southern Africa and the Biaka of intermarriage. Pygmies of central Africa, as well as in some East African peoples.2 A vast rock This changed with the arrival of Euro- art record found on the sub-continent pean explorers and settlers in the 16th points at the San as the first peoples of and 17th centuries, after which land southern Africa. It seems reasonable to was gradually carved up into freehold conclude that the San are closely re- farms, displacing indigenous people lated to the ancestry of all humankind. onto smaller tracts of communal land, particularly in Namibia, South Africa The first peoples of southern Africa and Zimbabwe. The expansion of Euro- were seemingly all from one language pean colonisation caused a great strain family, known as !Ui. They were pushed on land resources. !Ui speaking hunter- into remoter and drier regions by two gatherers were victimised by the Eu- major and relatively recent migrations ropean settlers as well as by Khoe and 15, July 2007 57 Conservation and Human Rights Bantu-language groups, who were now black and white rhinos became flag- all competing for resources in the face ships for conservation as their numbers of European territorial expansion. Over had dwindled to near-extinction levels. this period, disease and other genocidal Game reserves were proclaimed by the conditions decimated most San clans state, conservation legislation control- in South Africa and Namibia— the last ling hunting was enacted, and several permit to hunt a Bushman was issued private nature reserves were pro- by the South African pre-apartheid claimed by conservation conscious land state in 1927.4 owners. At the same time, growing commer- Whilst indigenous hunter-gathering cial trade, together with protection of communities are likely to have had only crops and livestock necessitated certain minor impacts on natural systems, the controls over wildlife. The accumulation enforced apartheid policy of South Af- of wealth led to divisions among social rica (also applicable to Namibia, then a classes, and ‘desirable’ wildlife species mandated territory under South African came to be controlled by an elite who administration) and the prevailing land alone had the permission to hunt, trade policies in then Rhodesia (now Zimba- and enjoy the spoils of certain species.5 bwe), further removed any control or Wildlife numbers on freehold ranches use of wildlife from indigenous popula- decreased over time, particularly in tions. The net result of protectionist South Africa, due to a combination of legislation was to centralize control uncontrolled hunting and slaughter over wildlife and to effectively ban for skins, trophies and biltong.6 The subsistence use. Customary and tra- dominant settler religion, Christian- ditional natural resource management ity, excluded pantheistic beliefs in the institutions were eroded and gradually intrinsic power and value of nature, replaced with centralised, state sys- such as those held by the hunter-gath- tems that effectively removed control ering communities.7 Rather, Christianity of natural resources and biodiversity encouraged its adherents to tame and from local communities, destabilising civilize nature in the service of mankind functional management systems and and material progress.8 replacing them with increasingly non- functional, alien ones. ‘Superstitious The net result of the situation de- beliefs’ that had previously safeguard- scribed above— exacerbated by the ed biodiversity to some extent were rinderpest epidemic of the late nine- also undermined by the church with teenth century— is that by the early detrimental impacts on local, de facto twentieth century, in South Africa in conservation practices. particular, wildlife numbers had de- clined substantially and other natural History of the land claim resources were under increasing pres- The last to be affected by the European sure.9 During that time, the emergence expansion were the peoples of what is of a ‘new’ conservation ethic in western now Siyanda District in the Northern countries filtered through to southern Cape (see Figure 1 below). This terri- African colonial administrations. The tory, away from the Orange River, was extinct quagga and Cape bluebuck so dry that none of the food produc- were held as examples of the result of ing peoples could penetrate it easily an uncontrolled free-for-all approach. with their cattle and crops. Various San Species such as the bontebok and the groups co-existed in the area until the 58 15, July 2007  What ARE Conservation Human Rights, can undermine anyway? Human Rights... 20th century when technology allowed for the proclamation of a Bushman the European and so-called Coloured reserve, either inside or outside of the settlers to sink boreholes and gradu- KGNP. Boydell (1948:100) pointed out ally dispossess the last surviving “Cape that the extinction of the Cape Bush- Bushmen” or Southern Kalahari San of man ‘...was now being expedited be- their ancestral lands.10 cause that part of the country where they had lived, roamed and hunted had recently been made into a game reserve in which Bush- men were not allowed’. Though General Smuts was sympathetic, the National Parks Board was adamant that a Bush- man reserve should be created elsewhere, as is stressed by Mr Jus- tice de Wet, chairman of the National Parks Board in a letter to Sena- tor Boydell, dated July 3rd, 1937: ‘As regards the Bushmen I certainly have no objection to the government creating a Figure 1. Map of the northern Cape— reserve for them so long as it is not ‘Farms’ indicates the position of the in or on the border with the Gemsbok ‡Khomani San farms, south of the Kgala- Reserve (Boydell 1948:105). Though gadi Transfrontier Park, which occupies they could not persuade the govern- much of the finger of land north of Riet- ment to proclaim a Bushmen reserve, fontein, between Namibia and Botswana the efforts of Bain, Boydell and others (Source: Adapted from Department of however bore some fruit with the ap- Environmental Affairs and Tourism, South Africa, 2004)11 pointment of Colonel Denys Reitz as Minister of Native Affairs, who in April 1941 reported to parliament that there In 1931 the Kalahari Gemsbok National were 29 Bushmen in the KGNP, ‘...and Park (KGNP) was proclaimed, with it is our intention to leave them there enormous implications for the Bush- and allow them to hunt with bows and men living within the park boundaries. arrows but without dogs. We look upon A process of evictions began, which them as part of the fauna of the coun- continued on and off until the mid try...We think that with their bows and 1970’s.12 In 1936, Donald Bain, a well- arrows they will kill less gemsbok than known explorer and big-game hunter, the lions. It will be a crime to let them responded and took up what he saw as die out, and we have to make provision the desperate plight of the Bushmen. for them in some way or another.”13 An extract from Steyn is instructive in this respect: “Donald Bain and Senator The efforts of Bain to obtain land for Thomas Boydell meantime campaigned the Bushmen eventually bore fruit 15, July 2007 59 Conservation and Human Rights when the farm ‘Struis Zyn Dam’ adjoin- ing the park was allocated by the state as a home for them. However, for rea- sons that aren’t entirely clear, the farm was sold to white settlers before the Bushmen could occupy the land.14 The remaining Bushmen continued to live in the park, hunting at first, but then gradually being relocated to the park headquarters at Twee Rivieren, before final eviction in the early seventies. In 1995, under the new democrat- ic government, the ‘reconstituted’ ‡Khomani San Community lodged a Picture 1. The signing ceremony on Hu- claim for restitution of some 400 000ha man Rights Day, 1999. From right to left are then Deputy President Thabo Mbeki, in the Kalahari Gemsbok Park. After the traditional leader of the‡Khomani San years of negotiation and verification the Mr Dawid Kruiper, the then minister of now diluted claim was finally settled on Land Affairs Mr Derek Hanekom, and a Human Rights Day, 21 March 1999. At member of the Mier Municipality, Mr Willy a moving ceremony attended by scores Julius. (Courtesy Phillipa Holden) of Bushmen as well as the world's media, then Deputy President Thabo Rights restored Mbeki signed a land claim settlement Apart from ownership of the six farms agreement transferring the title deeds outside of the park, the ‡Khomani San of six Kalahari farms (approximately rights inside the park include: 36,000 ha) to the ‡Khomani San Com- X Land Rights. The ‡Khomani San munal Property Association (CPA). In received ownership of 25 000 hec- addition, some 25 000 ha of the origi- tares in the south east of the park nally claimed 400 000 ha within the whilst the Mier community received now renamed Kgalagadi Transfrontier 25 000 hectares in the south west, Park were to be managed as a Con- which areas were de-proclaimed as tract Park (the !Ai!Hai Heritage Park), National Parks and re-proclaimed in conjunction with 25 000 ha awarded as a Contract Park, to be managed to the neighbouring Mier community. by a Joint Management Board. The The latter had submitted a conflicting San can utilize this land in accord- land claim at the last minute. The re- ance with conditions contained in mainder of the calculated capital value the settlement agreement and the of the claim became available for the management plan, a draft of which purchase of additional land or develop- was annexed to the agreement. No ment of existing land. Over the next permanent residence, agriculture three years, further negotiations took or mining are allowed, but tourism place and in August of 2002, whilst related and traditional/cultural activi- South Africa was hosting the World ties are, including hunting, providing Summit on Sustainable Development, such use and activities are sustain- a complex final settlement agreement able and in keeping with biodiversity was signed by the parties. conservation objectives . X Preferential commercial rights. The 60 15, July 2007  What ARE Conservation Human Rights, can undermine anyway? Human Rights... San received preferential commer- rushed and further detailing of the cial rights to the area between the agreement was required, title to the contract parks and the Auob River. 25 000 ha of land in the park was not In this zone the ‡Khomani will be handed over to the community until entitled, in addition to traditional/ August 2002. In the interim, registered cultural activities, to formulate and members of the ‡Khomani San Com- conduct eco-tourism projects, in munity commenced the novel process partnership with South African Na- of managing communally owned farms tional Parks (SANParks) or other- according to the Communal Property wise. Association Act. Part of what made this X Symbolic and Cultural Use Rights. challenging was the fact that the ‘com- The San were awarded “symbolic munity’ was now artificially constructed and cultural” rights over the entire from both original claimants and San remaining area of their original land drawn from the diaspora (as the origi- claim. In this area they are entitled nal claimant group had agreed to ex- to visit and to carry out medicinal, pand it to include other San people gathering, cultural, hunting and from the northern Cape), many without related activities, providing such use any formal education or previous expe- and activities are sustainable and in rience of owning and managing land. keeping with biodiversity conserva- In the absence of a functioning “com- tion objectives. munity council” or other authoritative • Shares in the Klein Skrij Lodge. Both body, legislation required the San to the San and the Mier were awarded operate in accordance with received 50% shares in a now constructed western notions of “representative joint lodge situated in the contract democracy”.15 However, this complex park area in order to commemorate process was seriously undermined by a the manner in which they had coop- lack of adequate post-restitution sup- erated during the negotiations. The port from government, specifically the basic construction of the lodge was Department of Land Affairs, and NGOs, funded by the Government, and the and to date has not been achieved. concession fee is to be shared three ways between the partners and SAN- Throughout South Africa there have Parks as day-to-day managers of the been numerous problems encountered with the land reform process and the contract park. functioning of In the absence of • Specific community park incentive. CPA’s, and the SANParks offered the San a match- ‡Khomani San a functioning ing amount of up to R 500 000 for case is perhaps “community council” the specific establishment of a com- one of the worst munity game park outside of the instances of or other authoritative park. this. The causes body, legislation of dysfunction- required the San to • Community Gates. Each community ality include had the right to build and manage at failure to ad- operate in accordance least one gate into the park, subject here to demo- to the park’s strict regulations re- with received western cratic and equi- garding entry and security. table practices, notions of “representative failure to allo- democracy”. Reality of land restoration cate individual land rights to members, deficiencies in As the initial negotiations had been the design and establishment of entities 15, July 2007 61 Conservation and Human Rights created under the Communal Property from all spheres of government. In Association Act and land management recent months there has been an at- complexities related to communal land tempt to restore order to the situation holding. One of the results of this is a and, apart from an inter-governmen- lack of clarity with respect to who is tal steering committee that has been supposed to be managing and benefit- formed, the various actors are finally ing from the resource base and how. coming together in a constructive and In the case of the ‡Khomani San, the co-operative manner in an attempt to lack of a common vision and the ab- resolve the crisis and ensure delivery sence of a credible land use and devel- and development in a manner that re- opment plan for the farms in question, spects people’s fundamental human as coupled with a history of inequitable well as constitutional rights. self help by a few individuals at the expense of the group, has led to lit- Many factors contribute to and exacer- tle effective control of natural resource bate the situation within the ‡Khomani use and a lack of meaningful or optimal San Community, including but are not benefit being derived by most members limited to, the following: of the community. Whilst the ‡Khomani San’s constitution does provide a ba- X After nearly a century of being sis for such, it would seem that these spread out in the diaspora, families provisions are either not understood or and clans had developed in totally have been ignored by the various CPA different directions. Some had re- management committees. Due to on- tained most of the old ways, others going maladministration by successive had totally immersed themselves in CPA committees, the Director Gen- modern life, or had eked out lives as eral of the Department of Land Affairs an underclass in (DLA) obtained a court order against dismal squatter The land claim the CPA in November 2002. The order brought these disparate assigned control of the affairs of the environments. CPA to the Director General of Land Af- Many had sur- San, linked by fairs, under whose administration the vived lives of ancient blood ties, estate still remains. unspeakable hardship and into one reconstituted The murder of master tracker Optel misery. The land community overnight. Rooi in early 2004 by a member of claim brought the South African Police (subsequently these disparate San, linked by an- convicted) eventually precipitated the cient blood ties, into one reconsti- South African Human Rights Commis- tuted community overnight. The sion (SAHRC) to launch an inquiry into tensions and differences arising from allegations of abuse of human rights. countless perceptions, mistrust, and In late February 2005 a report was lack of knowledge of each other in released that detailed their findings of the community were underestimated serious rights abuse and neglect and and need to be addressed in order to that made a number of recommenda- further build up the community. tions for all actors involved.16 A fur- X Racial discrimination remains rife in ther investigation by the UN’s Special this area and this perpetuates the Rapporteur on the Situation of Human status quo and the sense of disem- Rights and Fundamental Freedoms powerment that the San community of Indigenous People17 corroborated experience. these findings and recommended that X Substance abuse is rife in the com- the situation receive priority attention munity and this leads to further social 62 15, July 2007  What ARE Conservation Human Rights, can undermine anyway? Human Rights... decay resulting in domestic violence, the settlement agreement, the day-to- child abuse, increased risk of HIV day management of the !Ai!Hai Herit- transmission, malnutrition, depres- age Park, continued to be undertaken sion and social disfunctionality. by SANParks. A Joint Management X A lack of education and life skills Board (JMB) comprising members means that the people are poorly of SANParks, San and Mier was con- equipped to cope with the situation stituted and the first meetings were that they find themselves in. held, focussing primarily on the issues X The provision of services to this of building the joint lodge and locat- relatively remote area is slow and ing community access gates into the the community has been severely park. Difficulties were experienced neglected by all arms of government. from the outset and could be ascribed There is extremely limited access to to park management’s lack of ability health care, limited access to the jus- to embrace and implement the set- tice system, limited access to shops tlement agreement, internal political and a food supply, no water on the conflicts within the Mier, and a dys- farms, inadequate housing, a lack of functional (and for a period non-exist- income generating opportunities, and ent) CPA Management Committee on a lack of infrastructure including for the ‡Khomani San side (of which the communication. These all result in park committee is a sub-committee.) the physical and virtual isolation of Aside from the construction of the joint this community with little access to lodge, little was achieved in the first information and the outside world. four years of the JMB’s operation, and X There is inadequate post settlement meeting after meeting was postponed support, despite statutory obligations or cancelled Furthermore, no effort was and contractual commitments. This is made by any of the parties to assist the mainly due to the over-commitment claimants, particularly the elders, to of government departments and of- visit their land in the park and to re-es- ficials in the face of numerous time tablish their ancestral connections with and resource-consuming land claims. their land. People grew increasingly frustrated as ‘ownership’ and contrac- tual rights did not manifest in actual rights to enter and reconnect with their land. The majority lived on the farms, located over 60 km away from the park, with no transport or procedures ena- bling them to freely access their land. On 6 February 2004, some of the original claimants met and drew up the Welkom Declaration, a cry for help which recorded in no uncertain terms their disenchantment with the out- Picture 2. Toppies and Tiena Kruiper come of the restitution process and outside their home on the farm Witdraai. their frustration now years later at still (Courtesy Phillipa Holden) being alienated from their land, and therefore from their history and their Meanwhile, back at the park... culture, these being interdependent. After signing, and in accordance with They concluded that they would like to 15, July 2007 63 Conservation and Human Rights re-open their claim to the whole 400 protocols that would give effect to their 000 ha and return permanently to live rights in the park, including medicinal on their land in the park. The Welkom plant collection, traditional hunting, as Declaration was sent to the CEO of well as cultural activities and visits by SANParks and to the Ministers and members of the community to their Director Generals of the Department land. JMB meetings have also become of Environmental Affairs and Tourism more purposeful and it is evident that (where SANParks is housed) and the with the backlog of work, an implemen- Department of Land Affairs. No reply tation officer is needed to carry out the or acknowledgement was received. JMB’s mandate on a day-to-day basis. The matter was then again brought to the attention of SANParks by ex- ternal parties and a meeting between the aggrieved claimants and SANParks was finally held in June of 2004. It was agreed that in order to give effect to the settlement agreement, it would need to be ‘unbundled’— complex legalese had to be decoded and the traditional, cultural and symbolic rights that had been restored to the people had to be defined and interpreted in practical terms. It was also very clear that the CPA’s dysfunctionality and the Picture 3. Early morning in the park, May lack of communication within the com- 2006. (Courtesy Phillipa Holden) munity and between them and the CPA Management Committee was a key Whilst there is renewed political will factor undermining progress. Despite within SANParks to implement the commitments to address the situation agreement, a number of challenges from the park’s side, not much hap- remain. South Africa is a signatory to pened for another two years. the Convention on Biological Diversity as well as the Durban Accord (output Then, in May 2006, a group of elders of the 2003 World Parks Congress) and and some youths returned to the park has adopted the United Nations Dec- for a three day visit. For many it was laration on the Rights of Indigenous the fist time they had set foot on their Peoples. Explicit in South Africa’s policy land since the historic signing of the and legislation is acknowledgement agreement in 1999. Financial support of the contribution that Indigenous for the trip was provided, for the first Knowledge Systems can make to sus- time, by SANParks, and the park’s new- tainable development as well as their ly appointed People and Conservation intrinsic value. The constitution is also Officer joined the people on this special very strong on the protection of hu- occasion. The event marked a turn- man rights, religious freedom and the ing point in relations and gave the San eradication of racial discrimination and some assurance that SANParks was inequality. But what is clear is that committed to working together with it takes time and ongoing effort to them. In August of 2006, the first ‘un- change prevailing mindsets and give bundling’ workshop was held, at which effect to these sentiments. the San were able to propose draft 64 15, July 2007  What ARE Conservation Human Rights, can undermine anyway? Human Rights... Whilst the notion of ‘co-management’ to fade— and it’s been a long time looks interesting on paper and sounds already. good at conferences, it is apparent that there is a great deal of resistance to it Institutional transformation is thus at a number of levels. It would seem critical if indigenous and local commu- that a certain amount of mistrust re- nities are to have their rights properly mains embedded in the institutions restored. Signing contracts is only one themselves, part of the process and further obliga- Whilst it is accepted that and that there tions remain. In the South African con- ‘modern /western science’ is not in fact a text Magome & Murombedzi contend is presently not able to true apprecia- that “devised under the apartheid re- gime in an attempt to expand national provide exact answers on tion of the op- portunity that parks by entering into agreements with what constitutes sustain- is present- politically powerful private landown- able use for each of the ing itself in ers, the contract national park model hundreds of plant spe- terms of the was not meant for the disadvantaged majority of black people, with the cies in question, there is information sharing and result that the unequal treatment of reticence to accept the very learning that private and com- Institutional practical (and conserva- can happen. A munal landowners transformation tive) guidelines that have case in point in their contracts is the draft with the state is critical if been proposed by the San. protocols for represents a new indigenous and local sustainable form of ‘ecological communities are resource use that have now been ta- apartheid’ in the bled by the San at successive meetings democratic South to have their rights and workshops. Whilst it is accepted Africa, perpetuat- properly restored. that ‘modern /western science’ is pres- ing a dual tenure Signing contracts is ently not able to provide exact answers system (individual only one part of the on what constitutes sustainable use for freehold for white each of the hundreds of plant species farmers and com- process and further in question, there is reticence to accept munal tenure for obligations remain. the very practical (and conservative) black farmers) and guidelines that have been proposed, preventing communities from reaching even given that an adaptive manage- the full potential of possible resource ment approach has been adopted with utilisation…”.18 a monitoring and evaluation system being put in place to support this. The Some lessons learned right to undertake traditional hunting X One of the most apparent lessons is activities is clearly a further cause of that without a suitable and support- consternation for the Park Manage- ive environment, conservation agen- ment, and probably understandably so. cies alone cannot save the day— they However, the Bushmen ask whether cannot be expected to carry the they can be Bushmen without hunting. burden of ensuring that social justice As they clearly articulate, the hunt, the and development take place. This dance, the healing and the connec- is not their core function and they tion to the land are all integral to their have no institutional experience in cultural identity, and when one compo- the matter. All relevant spheres of nent falls away, the whole slowly starts government need to co-operate and 15, July 2007 65 Conservation and Human Rights share responsibilities. listic manner and develop an appre- X Changing mindsets and shifting en- ciation for IKS and the deep relation- trenched perceptions takes time and ship between indigenous people’s and effort (and money) and institutional the earth. The latter can be illustrat- capacity building and harmonisation ed by the fact that in the !Ui San lan- at all levels of the organisation is es- guages there is no generic word for a sential. It is also necessary to put the tree as each individual tree matters right person in the job, and where and is given its own name.19 park staff are going to be expected to X How fast true power sharing can be deal with social and cultural issues, achieved obviously depends on the they need to be able and empowered local circumstances as well as the to do so. prevailing political climate. It tends, X A further major impediment to however, to invariably be a long progress after the signing of the set- process. Essential conditions are the tlement agreement was the anarchic willingness to devolve authority and state of affairs within the CPA. Good the embrace the principle and ethic governance, both within and without of co-management at local park level the conservation estate, is essential (not just at the political and corpo- if progress is to be made and people rate head office level); the avail- are to benefit. ability of the necessary resources for X Although people are often able to capacity building and skills transfer clearly articulate their own vision, (and the willingness to do so); the ongoing (and often costly) technical empowerment of communities to and NGO support is essential, espe- ensure equal weight in co-manage- cially where people are still dispos- ment; strong technical support, and, sessed, disempowered and deprived with respect to capacity building— of their rights. Navigating tortuous good ground work and follow through legal agreements and being intimi- with community members.20 dated by ‘foreign science’ is a daunt- ing prospect for anyone, particularly Conclusion for peoples whose culture embraces Bushman elders are concerned that the avoidance of conflict and is in- their knowledge is dying out. Whilst nately egalitarian. In this instance, encouraging youth to embrace modern government in particular seems to concepts, they remain concerned (as have underestimated the costs of do many youth) that young people do post-settlement support to historical- not know how to hunt and do not per- ly ravaged and hastily reconstructed form the healing dance. The connection ‘communities’. with their ancestors is fading. Poverty, X Capacity building at a community disrespect for human life, and aggres- level is essential too, though it also sive racism have all had an impact begs the question of whether, if a on the mental, physical and spiritual rights based approach is to be hon- health of this indigenous community. estly embraced, appropriate govern- The more ‘traditional’ members of the ance systems are not a prerequisite. ‡Khomani San CPA, largely members X The cultural and spiritual values of of a clan who were the last residents protected areas need to be main- of the park, are strongly attached to streamed in order that conservation the park and place a high value on agencies and the public are able to rekindling their material, cultural and perceive conservation in a more ho- spiritual connections to the land. For 66 15, July 2007  What ARE Conservation Human Rights, can undermine anyway? Human Rights... them perhaps more than anyone it is edge that these are— in fact— rights important that the terms of the agree- and not discretionary concessions or ment are properly met and that justice ‘nice-to-haves’. is done, not just on paper but in the Phillipa Holden (phillipa@hixnet.co.za) lives and works in effective and successful implementa- southern Africa and is involved in protected area planning tion of what is planned, in a mutually and management, both within national borders and across constructive and co-operative manner. borders in the form of Transfrontier Conservation Areas. She is mostly concerned with the involvement of local and indigenous communities in planning for and benefiting Conservation agencies and most con- from conservation and eco-tourism. Phillipa is a member of servation-oriented NGOs obviously TILCEPA. have conservation objectives upper- most in their corporate goals and con- Notes science. Conservation is where their 1 Shreeve, 2006. experience and expertise lie. To main- 2 Shreeve, 2006. stream issues such as co-management 3 Huffman, 2006. and access and benefit sharing, con- 4 Gall, 2001. 5 Carruthers, 1995. servation agencies and their person- 6 Grossman and Holden, in press nel need to become fully mindful and 7 Carruthers, 1995. respectful of the rights held by people 8 Carruthers, 1995. vis a vis protected areas, and acknowl- 9 Grossman and Holden, 2005. 10 Southern Kalahari San Land Claims Committee, 1995. 11 Map of the Northern Cape Province, Department of Environmental Affairs and Tourism, South Africa, 2004, in Bradstock, 2005, p1981. 12 Surplus People Project, 1970 13 Steyn, 1995. 14 Land Claim Committee, 1995. 15 Chennels, 2002. 16 for the full report see http://www.sahrc.org.za/sa- hrc_cms/publish/cat_index_41.shtml#13 17 Stavenhagen, 2005. 18 Magome & Murombedzi, 2002. 19 SASI, 2002. 20 Grossman and Holden, in press. References Boydell, T., My Luck Still In, Cape Town: Stewart Print- ers, 1948. Bradstock, A., “Changing Livelihoods and Land Re- form: Evidence from the Northern Cape Province of South Africa”, World Development Vol. 33, No. 11, pp. 1979–1992, 2005. Carruthers, J., The Kruger National Park: A Social and Political History, University of Natal Press, Pieterma- ritzburg.1995. Chennels, R., The Khomani San Land Claim, Paper submitted at Indigenous Rights in the Common- wealth Project Africa Regional Expert Meeting, Cape Town, 16-18 October 2002. Picture 4. Ouma Anna - one of the few Gall, S., The Bushmen of southern Africa: Slaughter of remaining ‡Khomani San elders who was born the Innocent, Chatto & Windus, London, 2001. in the park and who finally set foot on the land Grossman, D and P.L., Holden, Towards Transforma- again in 2005. (Courtesy Geoff Dalglish) tion: Contract Parks in South Africa, In press. 15, July 2007 67 Conservation and Human Rights Grossman, D and P.L., Holden, A History of Game 1995. Ranching in Southern Africa, Research Paper for Shreeve, J., “The Greatest Journey”, Official Journal of Ministry of Agriculture, Botswana, 2005. the National Geographic, 209(3): 60-73, 2006. Huffman T. H., “Bantu migrations in southern Africa”, Stavenhagen R., Report of the Special Rapporteur on In Soodyall H. (ed), The Prehistory of Africa, Jona- the Situation of Human Rights and Fundamental than Ball, Johannesburg, 2006. Freedoms of Indigenous People, United Nations Magome, H & J. Murombedzi, “Sharing South African Economic and Social Council, 15 December, 2005. National Parks: Community Land and Conservation UN DOC E/CN.4/2006/78/Add.2 in a Democratic South Africa.”, Decolonising Nature, Steyn, H.P., Die Dilema van Boesman Grondregte, 2002, pp 108-134. Unpublished paper, Department of Anthropology: South African San Institute (SASI), Annual Review: University of Stellenbosch, 1995. April 2001— March 2002, 2002. Wildshut & Steyn, If one can live, all must live, Sur- Southern Kalahari Land Claim Committee, Land Claim plus People Project, 1990. and Submission to the Minister of Land Affairs, The history of conservation evictions in Botswana— the struggle continues …with new hope Lapologang Magole Abstract. Botswana has since the colonial era designated large tracks of land as national parks, forest reserves, and wildlife management areas. While this is a laudable act of conser- vation, as its proponents claim, there are rightful concerns about the related continual re- moval of people, especially minority Khoi San groups, from their land. Not only are the evic- tions a violation of human rights, they also serve to impoverish these communities and cause them to be dependent on Government and NGO hand outs for their livelihoods. Historically, these evictions have brought much suffering to communities and their supporters— that is until the popular Central Kgalagadi Game Reserve (CKGR) eviction, where a Government de- cision to evict a San group from the park was successfully challenged in court. T here is general lack of regard for the land rights of the Basarwa (Khoi San) been taken lightly. Land policy deci- sions concerning areas that they occu- py are never thoroughly appraised for in Botswana. This appears to emanate impact on their livelihood and general from the erroneous assumption that welfare. The position of Basarwa within the Basarwa are ‘nomadic’, which is land resources governance is defined generally understood to mean that they by the general context of the develop- roam aimlessly and have no inherited ment of the country through the pre- land rights like sedentary groups. The colonial, colonial and post-colonial eras. Basarwa are perhaps the most socially and politically marginalised group in As Mazonde argues, ‘the politics of land Botswana, if not all of the Southern allocation fall within the framework African region where they reside. As a of the country’s overall development result, their rights, especially those of pattern’.1 In Botswana, the political access to and ownership of land, have economy of the country has not only 68 15, July 2007  What ARE Conservation Human Rights, can undermine anyway? Human Rights... The change came as political power shifted from the people and traditional leaders to the Colonial Administration and then to elected politicians. So- cial and political marginalisation of the Khoi San groups meant that they had little contact with the Colonial Administration and were hence left out when dis- trict boundaries and claims to land territories were defined and established. At the beginning of the colo- nial rule, land occupied by mi- norities, especially the Khoi San, was sliced out and given up to the Colonial Administra- tion as a token of appreciation for ‘protection’.3 As a result, the minority groups’ territories of Chobe, Ghanzi, Kgalagadi and North East Districts (see Map 1) have large proportions of their land held by the State (mainly as parks and game and forest reserves) or private individuals, with little or no access allowed for the adjoining communities Map 1. Botswana Districts, Game Re- who historically used the natural re- serves, National Parks, and Wildlife sources there in. On the contrary, areas Management Areas. (Courtesy, Cornelis Vanderpost and Masego Dhliwayo) dominated by other more politically and socially powerful groups, namely, Cen- had a role in shaping the general de- tral, Kweneng, Kgatleng, Ngamiland, velopment strategy but has also had and Southern have retained most (more an influence on the policy choice for than 80%) of their tribal land (see Fig- land management. Before colonial rule, ure 1). Even the small parcels of land traditional leaders were pivotal in de- given up as Crown, State or private termining land distribution, access and land in the territories belonging to the use. Within the power given to them by powerful groups, were peripheral lands the people, the Chiefs, headmen and occupied by minority groups. For ex- elders allocated and administered land ample, the 12.4% given up to the State within their territories. This had the in Central District is located in the far advantage of decentralised and local- northern part (Makgadikgadi pans re- ised land management as opposed to gion) of the district, which is mainly oc- District wide management by the Land cupied by Khoi San communities. Simi- Boards system,2 which constitutes a larly in Southern District, land given up large-scale and porous framework for to the British Government was occupied determining access to land resources. 15, July 2007 69 Conservation and Human Rights by minority Khoi San and Bakgalagadi ity Khoi San groups, have been denied groups. In Ngamiland, land sliced out ownership and or access to land. Land to be preserved as Game Reserves was reform and heavy regulation of natu- land occupied by Khoi San groups. As a ral resource use has meant that many result of this practice of appropriating rural communities who used to eke out land from the Khoi San and giving it to their livelihoods through multiple use of the British Government during colonial their land resources have been left with rule, most, if not all conservation evic- only government aid as a survival op- tions have happened to the Khoi San tion. For example, since the late 1990s communities. government support ranks first as a source of livelihood in the Matsheng area of the Kgalagadi District.4 Simi- larly in the North West District, Kgathi, et.al.,5 found that for small settlements where minority Khoi San groups live, a combination of Government assistance programmes, old age pensions, and drought relief form the most important sources of livelihood. I argue in this paper that this situation, in which so many have been put in a position where they must live on Gov- ernment or other aid, is caused in part by consistent removal of these people from the land on which they have de- pended for generations. I further argue Figure 1. Percentage of District communal that the situation is neither sustainable land available for communal use after land nor dignified for these communities, reforms. Through conservation policies and commercialization of communal and that it is a violation of their human land use, Districts occupied by minority rights. I compile a profile of land evic- communities (Ghanzi, Kgalagadi, Chobe) tions that show that this ‘tragedy of the have had their communal (tribal) land commoners’6 dates back to the colo- changed to other forms of use and their nial period and that The situation is access to land resources either severely most evictions have reduced or totally diminished. claimed a moral high neither sustainable (Source, Magole, 2003) ground based on con- nor dignified for servation. The most these communities, Apart from Government handouts, land- obvious conservation- and that it is a based resources are the only available related evictions are source of livelihood for the rural poor those that took place violation of their in Botswana. Livelihood activities in- during the forma- human rights. clude gathering forest products, rear- tion or expansion of ing small stock (goats and sheep), parks and game reserves. It is a colonial farming, and, to a lesser extent, cat- legacy which has continued in post-in- tle rearing. Therefore access to land dependent Botswana. The Government and the resources therein is extremely of Botswana continues to use the con- important for these communities. There servation rhetoric to remove poor Khoi is, however, evidence that over the San communities from their land. years the poor, especially the minor- 70 15, July 2007  What ARE Conservation Human Rights, can undermine anyway? Human Rights... The creation of Moremi Game Reserve Moremi Game Reserve was created on the 15th of March 1964.9 The reserve is hailed as being the first wildlife sanctu- ary created by an African tribe. While the question of whether or not an Afri- can tribe founded Moremi is debatable, what causes concern and is worth high- lighting is that communities living in the park at the time, who were later moved twice, were not Picture 1. Zebras in Moremi Game Re- While the question involved in the deci- serve. The Khoi San have co-existed with the animals for centuries and they are the sion making. Moremi of whether or not Game Reserve was ones best placed and experienced to con- formed at the instiga- an African tribe serve them. (Courtesy, ODMP) tion of a conservation founded Moremi Parks and national reserves group with expatri- is debatable, removals ate and Batswana communities Park evictions are not unique to Bot- members called the swana. Evictions were part of the for- Fauna Conservation living in the park mation of Kruger National Park in South Society (FCS), which at the time were Africa in the 1930s and 1940; local worked closely with not involved in the settlements were removed from the the Batawana Tribal decision making. Matopos of Zimbabwe; in East Africa Authority (the domi- local community evictions were part nant ethnic group in the Northwest Dis- of the formation of parks in Kenya and trict where the park is located), based Tanzania.7 Botswana boasts that 17% at the District Headquarters in Maun.10 of its total land surface is set aside for Together they took the decision to cre- conservation as restricted access and ate the park and presented the idea and use parks and game reserves, and a proposal in a public meeting in Maun, further 21% is set aside as wildlife some 50 kms from Moremi, and not in a management areas (WMA) where utili- Khwai village inside the proposed park sation restrictions favour environmental area. The group led by a Mr. Robert Kay conservation.8 Sadly, the conservation went to the community of Khwai with objective has been achieved through conservation rhetoric and threats (see human rights violations where commu- Box 1) after the decision was taken and nities are evicted from their land and ‘convinced’ them to move. caused to live in perpetual poverty. Box 1. A Mosarwa woman’s account of the events leading up to their eviction from the park While we were here in the bush, in our land, the BaTawana Tribal Authority and Fauna [Ngamiland Fauna Society] came with the decision that they wanted to protect / preserve our wildlife, to create a game reserve. We were told that if we did not reserve land to protect wildlife we were likely to face the problems faced by other African countries. A white man, Robert Kay, talked about foreign safari companies who caused a lot of game destruction in countries like Kenya, already approaching our country, coming to shoot and make money out of them…11 15, July 2007 71 Conservation and Human Rights A year later the FCS and the Tawana Tribal Authority decided, again without involvement of the community, to extend the park and move the community further away. Box 2. Mosarwa woman’s account of the events leading up to the second move When they came to us the second time they told us that they were going to move us again. We had spent a year at Segagana. In the second year they told us to move out of the place because they had expanded the park to where we were. We were told to cross the river and that this river would be the boundary between the people and the park. We moved again carrying our belong- ings, this time without transportation…12 The community was asked to move a in ‘remote’ and resource rich areas, third time in 1979 when the Department this settlement has since the mid nine- of Wildlife and National Parks took over teenth century attracted hunters from the authority to manage parks and na- elsewhere in Botswana and Europe. The tional reserves. This time the community case of Mababe is different from that of refused to move. Bolaane believes that Khwai, because while the latter commu- the Basarwa took this stand because nity has been moved twice, the Mababe their plight had been exposed to the resisted eviction. However, the com- outside world.13 The isolation of these munities have had communities is what makes their evic- similar experiences The isolation of tions easy. Once exposed, these unfair of loss of access to communities is evictions are likely to be criticised by important land re- people within and outside of the country, sources. According what makes their making them complicated and difficult to Taylor, outside 14 evictions easy. Once to carry out, especially without proper interest in Mababe’s exposed, these unfair negotiation and compensation for the natural resources evictions are likely to involved households. intensified in the 1940s when colo- be criticised by people The creation of Chobe nial officers decided within and outside of National Park to initiate a large the country. Of interest in this case is the Khoi San project involving settlement of Mababe, which lies at ranching and commercial crop planta- the edge of Chobe National Park at the tions and to move the community in the Southern tip adjoining Moremi. Like process. The Mababe Khoi San resisted other Basarwa communities who live successfully because they had a strong and assertive leader (see box 3). Box 3. A Mababe woman’s account of the failed eviction15 Kgosietsile was the one who refused to allow us to move to Nxaraga. The government wanted to move us, but he said if you take these stones and trees and waterholes, I will move there. The government could not say anything so they left us. This was a success for the Mababe the small piece of land on which the community, however it was not to settlement was located, however the hold for long, as in 1960 the area was community lost most of the land on gazetted as a Game Reserve and the which they used to hunt and gather. community was regarded as squatting. The situation of restricted use and ap- Eviction was avoided by degazetting propriation of land worsened in 1967, 72 15, July 2007  What ARE Conservation Human Rights, can undermine anyway? Human Rights... when without informing the commu- Map 1). Initially there were no evictions nity, the Government of Botswana from the reserve. However, through a decided to upgrade the Game Reserve cabinet memorandum in 1987, the Khoi to the more restrictive status of a San communities who lived in the park National Park. In 1980 the Park was were asked to move out of the Xade extended to include the land adjoining settlement, which is inside the park, to the Moremi Game Reserve. The lat- Kaudwane just outside both the CKGR ter move brought the Park boundary and the Khutse Game Reserve, as well to within two kilometres of the village, as to New Xade, 50 kilometres from the encompassing nearly all their hunt- western edge of the CKGR. There were ing and gathering grounds. Here again insinuations that residents were deplet- residents complained that they have ing wildlife. However, the explicit rea- not been given consultation by either sons given were that service provision the Colonial Administration or the Gov- and development of settlements could ernment of Botswana on any decisions not be achieved simultaneously with the taken, an opportunity to negotiate objective to conserve the wilderness compensation for loss of livelihood and status of the reserve. The Government land use rights, or, most importantly, also expressed that the residents had an offer of alternatives. to move out in order for the tourism potential of the reserve to be exploited. This directive to move the residents of the CKGR was not implemented until January 2002, when the Government ceased its provision of basic essential services such as clean piped water and special game hunting licences for the residents of the reserve.17 In response, representatives of the residents took the matter to court, contesting the Government’s decision to cut the services and particularly the special game licences which allowed Picture 2. A Khoi San woman gathering wild berries, an important part of their the Khoi San to continue hunting using tradition and source of livelihood. their traditional methods and equip- (Courtesy, Bothepha Kgabung) ment. In addition, and perhaps most importantly, the residents contested their ‘forced’ removal from the park. The creation of the Central This was to be a milestone case, which Kgalagadi Game Reserve attracted a lot of international inter- (CKGR) est. On the 13th of December 2006 According to the CKGR and Kutse Man- judgement was passed in favour of agement Plan,16 the CKGR was gazetted Basarwa (local name for the San) on in 1961. The CKGR is hailed as the sec- two of the above counts, namely that ond largest protected area in Africa af- the Basarwa are entitled to special ter Tanzania's Selous Game Reserve as game licenses and that their removal well as the largest unspoiled wilderness from the CKGR was unlawful.18 What area in the continent. The reserve is lo- makes this a milestone case is that the cated in the centre of the country (see Basarwa not only won the right to go 15, July 2007 73 Conservation and Human Rights back to their land What makes this a in the reserve, but Conclusion milestone case is that most importantly The same conclusion that Picard and the Basarwa not only won the right to Morgan came to regarding post-inde- won the right to go be listened to. pendence land refoms in Botswana can The court judge- be made here— that policy makers do back to their land in ment by a panel not really “engage the problem of the the reserve, but most of three judges rights of the hunting and gathering importantly won the stated clearly that groups (Basarwa)”.19 As argued above, the residents had Basarwa communities face potential right to be listened to. the right to live in and real evictions all the time. Moreo- their land and that the government was ver government often sets stringent wrong to evict them without proper and at times unreasonable regulation of consultation. It is also a landmark case their use of natural resources on which in that it is hoped that future evictions they depend for their livelihood. This will be thought through carefully, espe- is not only a violation of these people’s cially the human rights implications for human rights, but is also totally against those involved, and that due consulta- the principles of sustainability to which tion will take place. It is also hoped many countries including Botswana that lessons have been learned and claim to subscribe. that unless it is absolutely necessary and all stakeholders agree, evictions International organizations continue to disrupting people’s lives and causing adopt progressive steps towards sus- unnecessary suffering will be avoided. tainable development. They regularly engage in meetings, such as the United Nations World Summit on Sustain- able Development-WSSD, and embrace sustainability through agreements such as Sustainable Tourism to Eradicate Poverty -STEP, the Millennium Develop- ment Goals –MDG, and the Vth World Parks Congress resolutions. Whilst Governments accept and ratify these agreements and resolutions, the In some countries implementation of where the judiciary is these sustainable relatively independent, development ideals the minorities remain a mirage, especially for local need only to have minority groups, the courage, and the Khoi San being assistance, especially a case in point for Botswana. with financial resources and moral Clearly the pres- support, to fight for Picture 3. Khoi San women in a meeting dis- ervation rhetoric their rights and win. cussing their welfare in the new settlement of of ‘save the Rhino’ Kaudwane. (Courtesy, Bothepha Kgabung) which preceded the sustainable devel- 74 15, July 2007  What ARE Conservation Human Rights, can undermine anyway? Human Rights... 3 Botswana was regarded as a British Protectorate as opposed to a colony. In the strictest sense of the word a protectorate would continue with self-rule and was only offered protection from external invasion, while a colony was regarded as a territory under British rule. Whether Botswana continued with self-rule or was under British rule is debatable however there is evidence that the British Colonial Administration was involved in the internal affairs of country, especially those concerning land resources use and management. 4 Chanda and Magole, 2001. 5 Kgathi, et al., 2004. 6 Magole, 2003. 7 Bolaane, 2004. 8 Ministry of Finance and Development Planning, 1991 Picture 4. Khoi San men listening carefully 9 Taylor, 2000. at the meeting to discuss the welfare of Kaudwane residents. 10 Taylor, 2000; Bolaane, 2003. (Courtesy, Bothepha Kgabung) 11 Bolaane, 2004, p407. 12 Bolaane, 2004, p409. opment era still informs the current 13 Bolaane, 2004. conservation agenda that claims to be 14 Taylor, 2000. people centred. They cannot be genu- 15 Taylor, 2000, p103. inely people centered when decisions 16 Department of Wildlife and National Parks, 2003. are taken without involvement of the 17 Ditshwanelo, 2002. local people, whose interests are always 18 Mmegi Vol. 23 No. 189, 14 December 2006. relegated to a place behind all other 19 Picard and Morgan, 1985, p136. stakeholder interests. The outcome of the CKGR case, however, is an indica- References tion that in some countries where the Bolaane , M, “ The Impacts Of Game Reserve Policy On The River Basarwa/ Bushmen Of Botswana”, judiciary is relatively independent the pages 399-417 Social Policy and Administration, Vol. minorities need only to have the cour- 38 No.4 Blackwell Publishing Ltd, August 2004. age, and assistance, especially with Chanda, R. and L. Magole, “Rangelands in the context financial resources and moral support, of subsistence livelihoods: The case of Matsheng area, Kgalagadi North, Botswana”. Subsistence to fight for their rights and win. It also Rangeland Research Project Report, 2001. helps to publicise one’s plight nationally Department of Wildlife and National Parks, Central Ka- and internationally as this attracts sym- lahari Game Reserve and Kutse Management Plan, Government Printer, Gaborone, 2003. pathisers and critics who may put the Ditshwanelo (The Botswana Centre for Human Rights), Government under pressure to reverse Central Kalahari Game Reserve Seminar Report, unjust conservation decisions. Gaborone, 2002. Fidzani, N. H. “Wealth accumulation and its distribu- Lapologang Magole (magolel@mopipi.ub.bw) is a re- tion in Botswana”, pages 83-104 Poverty and plen- search fellow at the University of Botswana’s Harry Op- ty: The Botswana experience. Nteta, D. Hermans, penheimer Okavango Research Centre in Maun, Botswana J. & Jeskova, P. The Botswana Society, Gaborone, and a member of the IUCN CEESP Theme on Governance, 1997. Equity and Rights. Her research work and interest is in land and natural resources management policy and development Government of Botswana, Tribal Land Act, Govern- of rural communities. ment Printer, Gaborone, 1968. Government of Botswana, National Workshop on Tribal Grazing Land, Government Printer, Gaborone, Notes 1975. 1 Mazonde, 1998, p41. Government of Botswana, National Policy on Agricul- ture Development, Gaborone, Government Printer, 2 After independence the government established 1991. District Land Boards to take over land manage- ment, administration and allocation from the Harvey, C. and S. R. Lewis Jr., Policy choice and Chiefs. development performance in Botswana, Macmillan 15, July 2007 75 Conservation and Human Rights Press LTD. Gaborone, 1990. Ministry of Finance and Development Planning. “ Jerve, A. M.,Cattle and inequality; A study in rural National Development Plan 7” Government Printer, economic differentiation from Southern Kgalagadi Gaborone, 1991. in Botswana. Derap Publications, Fantoft-Bergen, Picard, L. A and E. P. Morgan, “ Policy implementation 1982. and local institutions in Botswana”, pages 125-156 Kgathi, D. L ., H. Bendsen, P. Blaikie, J. Mbaiwa, B.N. in Picard, L. A. The evolution of modern Botswana, Ngwenya, and J. Wilk, Rural Livelihoods, Indigenous Rex Collings, London, 1985 Knowledge System, and Political Economy of Taylor, M., Life, Land and Power: Contesting Access to Natural Resource in the Okavango Delta, Development in Northern Botswana, PhD Thesis, Botswana. Harry Oppenheimer Okavango Research University of Edinburgh, Edinburgh, 2000. Centre, University of Botswana, Maun, 2004. Twyman, C., Community Development and Wildlife Magole, L. “A Tragedy of the commoners: The Management: Opportunity and Diversity in Kalahari evolution of communal rangeland management in Wildlife Management Areas, Botswana, PhD Thesis, Kgalagadi, Botswana”, PhD Thesis, University of University of Sheffield, Sheffield, 1997. East Anglia, Norwich, 2003. White, R. Livestock development and pastoral Mazonde, I. N. “Land issues in Botswana: Limits of production on communal rangeland in Botswana, communal land tenure.” Review of Southern Africa The Botswana Society, Gaborone, 1993. Studies vol.2: 4059,1998-. Is biocultural heritage a right? A tale of conflicting conservation, development, and biocultural priorities in Dulongjiang, China Andreas Wilkes and Shen Shicai Abstract. The Dulong are one of China’s least populous ethnic groups, living at the corner of Yunnan, Tibet and Myanmar. Traditional Dulong agriculture (rotational agriculture with culti- vation of Alnus nepalensis) includes the cultivation of dozens of local varieties of crops, many of which are underutilized species. In 2003, implementation of the Sloping Land Conversion Program, a national soil and forest conservation program, brought traditional cultivation to an end. Many traditional crops are no longer planted. Because traditional agriculture is central to Dulong culture, the end of this practice threatens the survival of Dulong biocultural heritage. This paper argues that the concept of rights over biocultural heritage must be formally rec- ognized in order to empower traditional communities to be able to contest conservation and development interventions that threaten important aspects of their culture. D ingba was appointed by the govern- ment to represent his hamlet in the corn for the pigs. Then they encour- aged us to raise goats, but because of the wild animals in the nature reserve, 1970s, a post he held until two years I don’t know anyone whose goat herds ago. During his period in office, he wit- increased. The same for Bos frontalis. nessed numerous development projects I’ve seen so many of these things fail, come and go. “They taught us to con- that I cannot count on this one. Yes, struct rice terraces and grow rice, but you could say I’m growing that plot of now the terraces are used for growing 76 15, July 2007  What ARE Conservation Human Rights, can undermine anyway? Human Rights... biodiversity, and threatens to make Dulong biocultural heritage a thing of the past. This paper describes the implementation of this program and its impacts, and discusses what the situ- ation of the Dulong implies in terms of rights in relation to conservation and development. We suggest that the concept of biocultural heritage must be formally recognized in national law in order to empower traditional communi- ties to effectively negotiate the impacts of conservation and development. Forest conservation and food security in Dulongjiang Traditional Dulong agriculture is based on rotational (swidden) agriculture in which when forest is cleared, stumps of Alnus nepalensis trees are left in the field and seeds of Alnus are planted, so that after cultivation ends, forest cover Picture 1. A Dulong villager introducing his plot regenerates quickly. Alnus nepalensis of finger millet. (Courtesy Andreas Wilkes) has nitrogen fixing properties, so these trees have benefits for maintaining soil finger millet in case things go back to fertility for future cultivation.2 the hungry days of before.” Dingba is a member of one of China’s least populous ethnic minorities, the Dulong. Just over 4000 Dulong live in the Dulongjiang valley, an upstream tributary of the Irrawaddy that runs from Tibet, through Yunnan province and into Myanmar. The traditional liveli- hood of the Dulong has depended on rotational (swidden) agriculture with cultivation of Alnus nepalensis, a ni- trogen-fixing tree.1 The new project Dingba referred to is the Sloping Land Conversion Program, a nationwide soil Picture 2. Stumps of Alnus are left in the and forest conservation project that in fields to hasten regeneration of forest and 2003 finally brought Dulong traditional soil. (Courtesy Luo Rongfen) agriculture to an end. In 1999, China’s central government The implementation of the Sloping announced the Sloping Land Conver- Land Conversion Program has in- sion Program (SLCP). Through planting creased Dulong people’s dependency trees on farmland on slopes over 25 on grain handouts, decreased agro- degrees and providing grain subsidies, 15, July 2007 77 Conservation and Human Rights the aim is to increase vegetation cover capita incomes rose to 684 Yuan, bring- and reduce soil and water loss, while ing average income levels for the whole also considering the livelihood needs of valley to just above the national pov- farmers. Subsidies are given for eight erty line. For years years. Although the government has the government Most farmers tried to discourage swidden or rota- has been provid- think that other tional agriculture in Dulongjiang since ing relief grain households are the 1960s, this is the first such effort and selling grain to come with specific implementation to Dulong villag- preserving traditional measures. In 2002 the program began ers at subsidized varieties…But in to be implemented in Gongshan coun- low prices. For the fact, farmers who ty, and most of the quota for conver- local government, sion for the first year was allocated to the SLCP provides have kept cultivating Dulongjiang and special implementa- a welcome oppor- traditional crops are a tion measures were established. At the tunity to use cen- very small minority. beginning of 2003, there was a total tral government of 987.2 hectares of cultivated land in funding for grain supply to bring Dulong the valley, of which 33% was perma- villagers’ grain consumption levels to the nent arable land (35.2 ha. of irrigated poverty line. And it must be said that for paddy and 251.8 ha of rainfed land), many Dulong villagers, especially young- and 654.9 hectares of rotational arable er people, having an ensured grain sup- land. Most of this latter land was locat- ply without having to work in the fields ed on slopes over 25 degrees on both is most welcome. But the conditions on sides of the Dulong River. After imple- which the grain has been supplied mean mentation of the program, apart from there is a price to pay. retaining paddy, permanent fields, and vegetable gardens, the remaining ar- Impacts of the forest able land and all rotational arable fields conservation program were included in the conversion pro- In 2003, with implementation of the gram. The national guidelines for im- SLCP, all rotational agriculture in Du- plementation of the program stipulate longjiang stopped. In 2005 and 2006, that grain subsidies should be given on the Center for Biodiversity and Indig- the basis of the land area converted. enous Knowledge, an NGO based in But given the large area converted in Yunnan, China, undertook surveys and Dulongjiang and the long-term low consultations on the impacts of the rates of grain self-sufficiency among program, focusing on the implications farming households, the local govern- of the program for the future of tradi- ment decided to allocate the subsidy on tional Dulong agriculture.3 The surveys a per capita basis, with all rural inhab- found that: itants (adult and children) receiving X Traditional agriculture supported cul- 180 kg of rice per year. tivation of several rare and neglected crops and crop varieties, such as Poverty— as measured by government Setaria italica, finger millet, Echino- poverty lines— has always been both chloa sp., buckwheat, Amaranthus widespread and deep in Dulongjiang. sp., and yam. In 1995, average net per capita income (including the imputed value of agri- X Many households have not kept the cultural produce) was just 344 Yuan seeds of these crops and have not (ca. 40 USD). From 1995 to 2001 per continued their cultivation. Of 39 households surveyed only six were 78 15, July 2007  What ARE Conservation Human Rights, can undermine anyway? Human Rights... still growing at least one type of tra- will happen in three years’ time when ditional crop. the subsidies given under the SLCP X The range of varieties preserved by come to and end. Those farmers who, those farmers who are engaging in like Dingba, have retained the seeds of in situ conservation is limited, as traditional crop varieties, worry that no many traditional swidden crops do suitable new policy will be announced not perform well outside swidden in three years’ time. If there is no suit- fields. able and credible new policy, many X Most farmers think that other house- farmers say they will not hesitate to holds are preserving traditional clear new swidden fields and return to varieties, and assume that if in the their former practices. But when the future they need to cultivate swid- time comes they may find that tradi- den again, it will be easy to find the tional crop varieties no longer exist. seeds. But in fact, farmers like Din- gba who have kept cultivating tradi- And if there is a new policy that en- tional crops in small corners of their ables grain subsidies to continue to permanent arable land are a very be paid, many older Dulong villagers small minority. are concerned about the future vi- ability of Dulong culture as a whole. The practice of traditional rotational agriculture relies on knowledge about the characteristics of swidden sites (veg- Traditional etation cover, slope, agriculture is a core aspect, soil, etc), as element of Dulong well as knowledge relating to the treat- culture, relating not ment of different just to ecological forest resources and knowledge, but the use of fire. Spe- cial farming tools also to religion and are used to mini- social organization. mize soil erosion Picture 3. A variety of unusual grain crops caused by cultivation on steep slopes, form the basis of Dulong food. (Courtesy Luo Rongfen) and there is also a lot of knowledge related to the production and use Beyond these specific impacts on agro- of these tools. Traditionally, Dulong biodiversity, because the grain subsi- hamlets are based around one patri- dies made under the SLCP will end in lineal clan, and elders have a great three years, all farming households deal of influence on the use of forest in the valley face great vulnerability. resources, such as the choice of land Clearly, the program has substan- plots for agricultural cultivation. In tially resolved grain shortages for rural the process of cultivation, there are households, and some say that even all sorts of joint cultivation arrange- after the conversion program ends ments between households, which are they do not want to have to renew the based on traditional social ties. And traditional farming practices. But cur- for those Dulong who have not con- rent attitudes to the end of traditional verted to Christianity, cultivation must agriculture are all conditional on what be preceded by rituals to propitiate 15, July 2007 79 Conservation and Human Rights the spirits. Thus, traditional agri- elder people worry that: “young peo- culture is a core element of Dulong ple, if they are not good in school and culture, relating not just to ecological able to find work, then they no longer knowledge, but also to religion and understand ethnic food, and don’t social organization. know which wild vegetables to eat and how to plant ethnic foodstuffs, so For many older people, food is a key they are no different from old people cultural expression. The SLCP has just waiting to die”. That is, these resolved grain shortages by provid- young people are no longer suited to ing paddy rice for villagers to eat. livelihoods in the Dulongjiang. Other But traditional Dulong food does not villagers said that “the things that old include paddy rice, and most villagers people eat and how to eat them— if have not been able to eat traditional you don’t know these things then are grains since the SLCP was imple- you still a Dulong?” From this we can mented. Crops other than paddy rice see that rotational agriculture and are referred to as “ethnic food”, and traditional foodstuffs are an important elder villagers insist that according part of what it means to be Dulong. to cultural views, mixed grains other than rice are good for the health. For Which rights come first? example, when mothers who have The goals of the SLCP are to reduce just given birth rest for a month after soil erosion and increase forest cover. delivery, they are mainly given these At the same time, grain subsidies grains to eat. Also, finger millet is a are used to ensure basic living stan- widely known curative for diarrhea. dards. But the program has traded Many people worry that “the young forest conservation and food security generation is growing up eating rice— goals for the biocultural heritage of what will the next generation eat?” a people, and their ability to pursue sustainable livelihoods without de- pendence on government hand-outs for meeting their basic needs. Clearly, which rights one perceives, and which rights one is unaware of, depends on the frame of reference one brings to the situation. When officials view situations such as that in the Dulongjiang, they mostly see extreme poverty, ‘backward’ ethnic culture and the environmental de- struction caused by creating swidden fields. Meeting ‘rights to subsistence’ and ‘rights to development’ are priori- Picture 4. Women discussing what the tized, and the focus of officials’ efforts future will be like without ‘ethnic food’. is on ensuring that basic food needs (Courtesy Andreas Wilkes) are meet while introducing ‘advanced’ and ‘scientific’ agricultural production Apart from reflecting changes in diet, technologies. In this view, Dulong cul- this reflects worries about the overall ture has nothing to offer the future. loss of distinctive ethnic culture. Many 80 15, July 2007  What ARE Conservation Human Rights, can undermine anyway? Human Rights... Ecologists and ethnobotanists have People’s Congress. For all the Dulong also made studies of rotational agri- who took part in these consultations, culture in Dulongjiang,4 and praised it was clear that rotational agricul- the indigenous wisdom of cultivat- ture represents a core part of their ing Alnus nepalensis. But the values cultural heritage. The consultations that they see in this are the values identified several specific feasible of forest conservation. Agro-biodi- and desirable actions that the partici- versity— biodi- pants recommended: Some experts have versity with the X Promote development of consen- suggested that the closest links to sus among government depart- whole Dulongjiang ethnic culture— ments on the value of preserving has not fallen traditional crop varieties and tradi- valley should be within their line tional agriculture as a whole; made into a ‘National of sight. Some X Continue to encourage households Ecological Park’. such experts are to conserve traditional varieties in equally aware of plots of permanent land; the impacts the SLCP has had, and X Initiate joint experiments with have suggested that the whole Du- farmers on how to improve the longjiang valley should be made into performance of traditional varie- a ‘National Ecological Park’.5 As with ties on permanent arable land; other nature reserves, it is hard to X Convene seed exchange fairs imagine how the management of the within and between villages; administrative structures of such a X Allow and assist hamlets to cre- park could allow for or support genu- ate collective plots for cultivation ine Dulong participation in preserving of traditional varieties using tradi- their biocultural heritage. tional methods; X Use digital video cameras to make a DVD narrated in Dulong lan- guage documenting traditional cultivation practices to show in schools; and X Explore the potential of market-led measures for encouraging agro- biodiversity conservation, e.g. developing food products to sell to tourists. Officials who took part in the consul- tations stressed the need for agro- biodiversity experts to undertake landrace surveys, but for the Dulong Picture 5. Taro growing amidst Alnus participants in the consultations, stumps in a newly cleared field. (Courtesy Luo Rongfen) solutions to their current ‘crisis’ all rely on farmers’ involvement with In August 2006, the Center for Bio- support from the government. This diversity and Indigenous Knowledge highlights the importance of commu- convened a series of meetings of nity-based activities to the conserva- ordinary Dulong villagers and their tion of biocultural heritage. elected representatives in the county 15, July 2007 81 Conservation and Human Rights customary law in Peru, which reads:6 “Knowledge, innovations and practices of indigenous and local communities which are collectively held and inextricably linked to tra- ditional resources and territories, local economies, the diversity of genes, varieties, species and eco- systems, cultural and spiritual val- ues, and customary laws shaped within the local socio-ecological context of communities.” In 2004 China ratified the UNESCO Picture 6. Taro now has to be planted on Convention for the Safeguarding of permanent fields. Intangible Heritage, which explicitly (Courtesy Andreas Wilkes) refers to “knowledge and practices concerning nature and the universe” ‘Rights to subsistence’, ‘rights to among its targets for protection. In development’, and ‘rights to enjoy an May 2006 the Chinese government undegraded physical environment’ announced a list of 518 elements are all rights that are commonly of intangible culture that would be recognized in Chinese government preserved, but of these, only a small discourses. But what about the rights handful related to indigenous knowl- to cultural practices— the rights to edge of the environment. Part of the be Dulong in the way that (at least reason for this was that the imple- some) Dulong want to be? We see mentation of the convention is the that formal recognition for the con- responsibility of the Ministry of Cul- cept of rights over biocultural ture, whose work focuses mostly on heritage is essential in ensuring that the performing arts. But part of the ‘local communities embodying tra- reason lies in the low levels of under- ditional lifestyles’ (CBD Article 8(j)) standing and awareness of ecological are empowered knowledge and practices as an inte- Formal recognition to make effective gral part of culture and lifestyle. for rights over inputs into how biocultural heritage both conserva- Within the next year or two China will also announce a new law on the is essential in tion and develop- management of genetic resources. ment measures ensuring that affect the mul- Experts involved in drafting the law ‘local communities tiple, complex are focusing on developing arrange- embodying and intertwined ments for fair and equitable access to genetic resources. But as with many traditional lifestyles’ elements of their lifestyles. A defi- such laws it is likely that a limited (CBD Article 8(j)) nition of ‘Collec- definition of indigenous knowledge is are empowered. tive Bio-cultural adopted, focusing on access to and Heritage’ has the use of technical ecological knowl- been suggested by a workshop on edge. Without an appreciation of eco- traditional knowledge protection and logical knowledge and practices as 82 15, July 2007  What ARE Conservation Human Rights, can undermine anyway? Human Rights... Notes 1 Yin Shaoting 2001. 2 Yin Shaoting 2001, Qi Yinfeng 2006, Gao Yingx- ing 2003. 3 Xiao 2005, CBIK 2006. 4 e.g. Long et al. 1999. 5 Chu and Cheng 2006. 6 Cited in Swiderska 2006. References CBIK, Consultations on Agro-biodiversity Loss and Conservation in the Dulongjiang Valley, Yun- nan, China, unpublished report at the Center for Biodiversity and Indigenous Knowledge, Yunnan, 2006. Picture 7. Women weeding upland rice. Chu Xiaobai and Cheng Gong, Dulongjiang Zhong- shangyou kaocha baogao [Report on a survey (Courtesy Luo Rongfen) of the middle and upper reaches of the Du- longjiang]’, unpublished report submitted to part of biocultural heritage, it is un- Central University of the Nationalities, July 2006 likely that situations such as that of (in Chinese). the Dulong will be either addressed Gao Yingxin, Upland Agricultural minorities’ eco- or prevented by this new law. logical economy research Yunnan, Science and Technology Press, Kunming, 2003 (in Chinese) Long, C.L., Li, H., Zhou, Y.L, Dao Z.L. and T. Abe, Without formal recognition of the “Ethnobotanical Studies in Gaoligong Mountains: concept of rights over biocultural The Dulong Ethnic Group”, Acta Botanica Yun- nanica, 11(Suppl.): 137-144, 1999 (in Chinese). heritage in national law, and without Qi Yinfeng, “Dulong forest indigenous knowledge: government-supported mechanisms rotational agriculture research”, pages 145- in place through which indigenous 167 in Xiong Qinghua and Shi Xiaochun (eds.), Ethnic minorities and biodiversity research in the communities can make effective Gaoligongshan, Science Press: Beijing, 2006 (in claims, the future for the Dulong— Chinese). and countless other indigenous ex- Swiderska, K., “Banishing the Biopirates: a new perts and communities facing similar approach to protecting traditional knowledge”, Gatekeeper Series No 129, IIED, London, 2006. challenges— looks bleak. We suggest Xiao Jianwen, “Preliminary Survey of the Impact that concerted efforts are required to of Sloped Land Conversion on Agro-biodiversity gain recognition for the notion of bio- in Dulongjiang Township”, Community Liveli- hoods Program Working Paper No 24, Center for cultural heritage in policy circles, and Biodiversity and Indigenous Knowledge, Yunnan, to develop measures through which 2005. governments’ related commitments Yin Shaoting, Man and Forest, Yunnan University under the CBD and other internation- Press, Kunming, 2001. al instruments can be realized. Andreas Wilkes (awilkes@mountain.org), a British anthro- pologist working in China for the last 10 years, was Director of Programs at the Center for Biodiversity and Indigenous Knowledge (CBIK) when the research for this paper was un- dertaken. Shen Shicai (shenshicai@cbik.ac.cn), a botanist, has been coordinator of CBIK’s work on agro-pastoralist live- lihoods in Gongshan since 2003. Acknowledgement: Surveys and consultations in Dulongjiang were funded by a grant from the WWF Russell E. Train EFN Program, and a grant from Yunnan Agricultural Academy/Convention on Biological Diversity Office of the State Environment Protection Agency. 15, July 2007 83 Conservation and Human Rights Where there is no room for local people in conservation... Reflections from Northern Thailand Frankie Abreu Abstract. The author recounts some personal experiences during research with commu- nities in the Silalang area near Doi Phuka National Park in Northern Thailand. Based on these experiences, he draws the conclusion that even when conservationists have good intentions towards local communities, conservation without local people’s involvement can damage their livelihoods and undermine traditional ethical and religious beliefs that con- tribute to conservation. For many local people, and especially for indigenous people, strict conservation means ignoring the balance between protection and sustainable use. The poor and less-educated easily become marginalized and voiceless. There must be more and better room for local people to participate in natural resource management in their communities! "I came here to develop the commu- nity by investing in my environmen- employed at the hotel as cleaners and waitresses. The owner was a business- man from Bangkok. He was known as tally-friendly business. Now [that] I can a generous and devout person, eager employ the villagers from Silalang at to make merit at religious ceremonies, my hotel so that they can make their visiting the temple often and regularly In the forests of living, [it] means that my business contrib- offering food to the monks. Villagers praised him as a conservationist be- South East Asia utes employment to cause of his care and concern for na- indigenous people the communities." ture. living scattered This was the mes- sage of the owner of The RECOFTC trainees underwent in small, isolated Papua Phuka Hotel practical environmental and social as- communities know in a welcome speech sessment training. In the daytime they that the forest is to participants in an undertook various assignments such as their rice bowl, their international Commu- interviewing local villagers, collecting nity Forestry Training information from key informants, and shelter and their course organized by direct observation. In the evening, they knowledge chest. RECOFTC (Regional wrote up their findings and made pre- Community Forestry sentations at the hotel. RECOFTC se- Training Center) in the Silalang area of lected the Silalang communities to al- Nan Province, Northern Thailand. Situ- low the trainees to study local people's ated on a hillside backed by mountain sustainable approach to forest manage- ridges in a remote valley near Doi Phu- ment, combining both conservation and ka National Park, the comfortable 40- utilization of resources. room hotel was surrounded by farm- ing communities and looked out over In the forests of South East Asia indig- rice fields. It was heavily promoted to enous people living scattered in small tourists in the area. Six villagers were and isolated communities know that 84 15, July 2007  What ARE Conservation Human Rights, can undermine anyway? Human Rights... the forest is their rice bowl, their shel- no forests left, the political dissidents ter, and their knowledge chest. They couldn't survive because they would utilize forest products wisely and in have no more food and no more places keeping with their belief in ancestor to hide". The dense forests were al- reverence. Sometimes local people's located to logging concessionaires traditional conservation methods are and some forests were converted into difficult for outsiders to understand and mono-crop plantations for corn, cas- appreciate. For example, elder people sava and sugar cane. Eventually the can cut trees for their own utilization, focus of government policy in the area but there is a prohibition on cutting changed from counter-insurgency to trees with branches appearing from conservation, and Doi Phuka National the trunk. It is said that if you cut that Park was designated in 1999.a In all of kind of tree, you will experience bad the above, local communities remained luck such as being separated from your excluded from decision-making. In the family. This belief protects these trees. words of the village elder, "The forests Trees with more branches bear more declined gradually since the govern- fruit, and provide more food for ani- ment adopted several policies that mals and birds. More fruit also means mostly excluded local people’s partici- more seeds, and more young seed- pation in forest management. Now, lings. even though the Royal Forest Depart- ment people have good intentions in Villagers from Silalang have mainly their conservation approach, they do depended on rice farming, but collect- not understand our livelihoods. They ing non-timber forest assume that our ancestors’ way of “…Even though products (NTFP) has utilizing forest products is at odds with the Royal Forest been common even conservation. So we cannot express Department in the forests within the boundaries of ourselves to the conservation move- ment." people have good Pukha National Park. intentions in The Thai Royal Forest During the RECOFTC course, various their conservation Department, which representatives of local authorities and approach, they do has been in charge of the park, has fa- village leaders visited the hotel owner. The head of Doi Pukha National Park not understand our vored a conservation was among the visitors. He suggested livelihoods…” policy that restricts speeding up conservation based on local people’s activi- prohibitions targeted at the commu- ties in the forests. The villagers have nity. The hotel owner vowed that he been aware that the Forest Department would do his best to support conserva- views them as a threat to the forest, tion. During the stay at Silalang, the and they have to prove that their NTFP RECOFTC course participants met three collecting is sustainable and they do not poor families whose houses were not over-exploit resources. far from the village, near huge cliffs that marked the beginning of the for- According to a local NGO, the tra- est. These people worked on farms ditional way of life in the area was as day laborers. For extra income first affected by a government policy they collected mushrooms and bam- for eradication of communism in the boo shoots and made charcoal to sell 1960s. One village elder said, "The to the blacksmith in the community. government believed that if there were The blacksmith workers preferred lo- 15, July 2007 85 Conservation and Human Rights cal charcoal made from the Nan tree, wrapped in yellow robes. No one would which grows in dry deciduous forest dare to cut or harm trees wrapped like and is famous for its hardness. One this— to do so would be a sin. The smith said, "People like my agriculture hotel owner used this belief to protect tools— my knives, hoes and shovels— the cliff. He arranged for monks from because they are good quality. I believe the village temple to ordain the cliff for the quality depends on the [amount of] conservation. heat we use, and that depends on the quality of the wood. Charcoal from the The RECOFTC course participants, Nan tree not only provides intense and however, learned that the three fami- constant heat but also doesn't produce lies living near the cliff used to collect sparks, so we prefer local charcoal." honey from the beehives once a year, around April. The small income from honey collection helped these poor families to pay their children's school fees when the school opened in May. The yearly income from collecting honey was a blessing for these poor families who had the opportunity to There is no doubt give their children that the hotel owner an education. will derive a benefit When the cliff was ordained, effec- from this type of tively they were conservation. But what prohibited from will happen to the three collecting the poor families now that honey. One fam- ily member said, their source of income "The monks from is gone? Everybody the temple came has a human right to to the cliff with education. The honey Picture 1. Forests, river fisheries and other the hotel owner areas can be ordained as sacred spaces, exactly and ordained it that the families in the same ways in which Buddhist monks are ordained. (Courtesy Kirsten Ewers) for conserva- collected allowed them tion, because it is to exercise that right… so amazing and The three families lived near an amaz- beautiful. No one talked to us or in- ing natural sight. Bees usually build formed us about the ceremony." their nests in trees, but here they had constructed huge hives that hung, like After the cliff ordination ceremony, the chandeliers, from the 50 meter-high hotel owner came to the area with a cliff. The hotel owner proudly told the professional photographer who took RECOFTC course participants how he photos of the beehives. The pictures had organized the protection of the were used in an advertisement for the cliff and the beehives. In Northern wonderful land of Silalang, with direc- Thailand, tree ordination ceremonies tions on how to get there and where are popular for forest conservation. to eat and stay. The hotel was the only The trees in the ordained forest are one in the area and provided a full 86 15, July 2007  What ARE Conservation Human Rights, can undermine anyway? Human Rights... package of accommodation and food. especially indigenous people, strict There is no doubt that the hotel owner conservation means ignoring the bal- will derive a benefit from this type of ance between protection and sustain- conservation. But what will happen to able use. The poor and less-educated the three poor families now that their easily become marginalized and voice- source of income is gone? Everybody less. There must be more and better has a human right to education. The room for local people to participate in honey that the families collected al- natural resource management in their lowed them to exercise that right. They communities! were not consulted about how the bee- Frankie Abreu (franktheera@yahoo.com) is Project Coor- hives should be conserved. dinator for Karen Environmental and Social Action Network (KESAN), working on indigenous knowledge, environmental Even when conservationists have good education, forest policy, impacts of infrastructure projects and human rights issues among the Karen of Burma/Myan- intentions towards local communities, mar. Frankie is a member of CEESP/TGER. conservation without local people’s in- volvement can damage their livelihoods Notes and undermine traditional ethical and 1 See the WCMC World Database of Protected Areas religious beliefs that could contribute at http://www.unepwcmc.org/wdpa/sitedetails. to conservation. For many local people, cfm?siteid=312937&level=nat Voices from the margins— human rights crises around protected areas in Nepal Sudeep Jana Abstract. Human rights violations perpetrated by the Army and conservation officials have aggravated the predicament of communities residing on the fringes of protected areas (PAs) in the southern lowlands of Nepal. Based upon exhaustive research, the paper inquires into and discloses factual cases of atrocities and violence under the aegis of PA authori- ties— cases that have been obscured in conservation dialectics and dormant in human rights discourse. The central tenet of the paper is that the poor, the landless, the tribal people and women are the most vulnerable to human rights violations, a vulnerability reinforced by their compelling need to access natural resources. The paper revisits real stories of atrocities, provides a glimpse of movements and public protests, and deciphers their meanings as con- sequences of current policies and mechanisms of PA management in Nepal. The paper argues against militarization of PAs on account of its human rights implications. Based on Nepalese experience, the paper draws a theoretical linkage between erosion and crisis of traditional 15, July 2007 87 Conservation and Human Rights livelihoods of local communities, politics of survival, and human rights violations. The goals of conservation are complemented when they integrate the human rights agenda. H uman rights discourse in Ne- pal centers around civil and political against the backdrop of local struggles and movements, demand critical re- flection and inquiry. rights. It is reflected in the contempo- rary political history that is marked by The Nepal Army is currently deployed a decade-long armed struggle waged in ten3 out of sixteen PAs of Nepal. by the Communist Party of Nepal The introduction of armed guards for (Maoists) under the banner of “the protection of wildlife species began people’s war”, atrocities by the Royal1 with deployment of ‘Rhino Patrol’ in Nepal Army in the name of counter Chitwan valley. In 1975, the ‘Royal’ insurgency, the demise of multiparty Nepal Army was granted sole respon- democracy, the royal coup and the sibility for law enforcement in ‘Royal’ subsequent shrinking of democratic Chitwan National Park (CNP), the first space, curtailment of civil liberties and national park of Nepal. While the PAs resulting human rights crises. When were accessible for the royal fam- the momentous people’s uprising ily and elite class, after deployment toppled the despotic monarchic regime of the Army, restrictions on local ac- in 2006, Nepal witnessed a historic cess became stringent. The raison peace deal between an alliance of d'être for deployment of the Army was seven political parties and the Mao- to curb poaching of valuable wildlife ists, thereby creating an opportunity species and control illegal logging by for lasting peace and democracy in the forest mafia. Furthermore, national country. The recent political change is security concerns explain mobilization a significant impetus to a new demo- of the Army to strategic locations such cratic Nepal. as the area bordering India. However, militarization also reflects a conser- However, the fruits of major political vationist ideology that places animals changes in Nepal, including the most above people, denies the possibility of recent one, have not percolated down coexistence of the two, reflects intel- to the grassroots, as is reflected in on- lectual bias, and perceives locals as going atrocities carried out within the intruders or anti-conservation. dominant protected areas (PA) man- agement regimes. Grassroots ecologi- Vulnerability of tribal and cal democracy, local agendas around local women PAs2 and struggles against human Conservation policy that favors mili- rights abuse by the Army and conser- tary intervention and bureaucratic vation authorities are overlooked not control has detrimental effects on only in conservation discourse but also human rights of local people, particu- in the dominant human rights debates larly the poor and marginalized social in Nepal. At a time when the country groups. Human rights violations and is engaged in critical debates on state harassment carried out by Army per- restructuring and socio-economic-cul- sonnel and conservation authorities tural-political transformation, PA poli- charged with enforcing PA boundaries cies and governance and particularly and restrictive policies interact with the implications of militarizing PAs broader problems of gender inequal- 88 15, July 2007  What ARE Conservation Human Rights, can undermine anyway? Human Rights... ity and the unfair perception and ing unrestricted access to fishing. The treatment of women in the society. women fisher folk, on the other hand, Violence against women is rooted have a different narrative. Many of in patriarchal Ne- them reported that Gainda Gasti ha- Human rights pali society. Local rassed them, especially when they violations and women, particularly were in the forest to collect firewood, harassment poor tribal women, fodder, thatching grass and wild veg- carried out by dependent on natu- ral resources, living etables. One effective form of intimi- dation by the officials was confiscating Army personnel on the fringes of PAs their axe, khurpa (carving knife), and and conservation and perceived as namlo (traditional basket).7 authorities interact submissive and pow- erless, have fallen PA authorities, including security forc- with broader prey to human rights es, accuse tribal women who go into problems of gender abuses by the Army the forest to gather vegetables and inequality. and conservation firewood of being “destroyers of the officials deployed in forest”. Women fisher folk work along the national parks and wildlife re- the riverbanks and in wetlands using serves of Nepal. Local communities dhadiya and doko (traditional hand- around Terai4 PAs have reported many made baskets) to scoop up the mal- incidences of sexual harassment and gachi, bhoti, jhingha, gahira and other rape by members of the Army. Such aquatic species. The Army personnel incidences are not officially reported to have been reported to confiscate and the authorities due to the stigmatiza- destroy these tools and to abuse and tion of victims of sexual harassment harass the women. As a consequence, that affects women’s social identity. some women have refrained from go- The voice and suffering of local wom- ing about their livelihood practices, en is often suppressed and concealed which affected the food security of within the family, if not all together their families.8 disappearing amidst the bushes and forests. Locals have reported unmar- In villages around CNP, more than 30 ried victims of rape facing troubles women have had children reportedly later in their married lives, and mar- born out of rape or ried victims of rape abandoned by illicit relationships Women fear their spouses.5 with Army person- going about their nel. An unpublished livelihood practices, The history of harassment and conflict study by Com- which affects their between women Bote-Majhi-Musahar6 munity Develop- (traditional fisher folk) around Chit- ment Organization food security. wan National Park (CNP) and armed (CDO), an NGO conservation guards dates back to the advocating rights of local communi- time when Gainda Gasti (the Rhino ties around PAs in Nepal, reveals that Patrol) was mobilized in the forests of the Royal Nepal Army deployed in CNP Chitwan valley to protect the endan- has fathered 37 children in Meghauli gered Asiatic one-horned rhinoceros. alone, a buffer zone village. CDO Male fisher folk were at ease with the activists claim to have discovered Rhino Patrol, since they used to ac- around 65 such victims in villages company them during duty and ferry around CNP including Meghauli. Chil- them across the river, in return gain- dren raised under such circumstances 15, July 2007 89 Conservation and Human Rights face serious challenges in Nepal. Until gave a painful yet bold recitation recently,9 these children had a diffi- during a public hearing at the capi- cult time acquiring citizenship as well tal city.11 “My aunt was in her second as birth certificates because of the day after childbirth. Male members practice in Nepal of giving citizenship of the family had already left for fish- based only on the father’s name. Lo- ing in river Narayani. At around 12 cally these children are accepted and midnight, four soldiers from the CNP called “Gana Bahadur” (boy child) or intoxicated with alcohol came to the “Gana Kumari (girl child)”. In Ayod- hut and raped her. If such incidents hyapuri, another village, 9 women are reported, they threaten to kill us were deserted by Army deployed at with their guns. How long do we toler- Bagai Army Post of CNP in the period ate such brutal torture?” An incident 1995-2005. Cases of local women of harassment of local Kumal12 women abandoned by Army are rampant in from Meghauli, Chitwan received much nearby villages around CNP.10 There publicity. On April 30, 2006, a group has been organized protest seeking of 15 local Kumal women from a buf- justice against national park authori- fer zone village went to the Khoriya ties. However, protestors believe that Army Post inside CNP to seek permis- their voices have been grossly ignored sion for collection of wild vegetables. and their efforts went in vain. The Army took advantage of the oc- casion to harass them and beat up Another episode was revealed during a nine of the women. The next day six CDO study in the Koshi Toppu Wild Life Army personnel from the same post Reserve (KTWLR). In April, 1998 Buchi came to the village. Shanti Kumal, (32 years old), from Babiya village a local women’s activist, questioned around KTWLR , visited her sister- the action of the Army. “Why have in-law’s home at Purba Pipra village, you beaten Kumal women when they Saptari district. There, along with 19 approached you seeking permission other women, she entered the reserve to collect wild vegetables? Have they area to collect firewood and fodder. committed a crime?” The officer-in- At about 7 a.m. a group of Army men command was enraged, “Are you a from Bhagalpur, Udayapur district ar- journalist, a human rights activist, a rested all the women and detained leader of this village? How dare you them at the Bhagalpur Army post. question us?”. Buchi escaped the arrest by hiding in the bushes, but was caught when an- Poor tribal women are often perceived other Army patrol arrived later. After as submissive and voiceless. Feeling initial interrogation, Army personnel insecure, Shanti Kumal took the help gang-raped her and released her. She of an NGO she is affiliated with and received medical treatment with the issued a press release condemning the help of an NGO working with victims incident and warning of protest if a of torture. Her whereabouts are still proper investigation was not conduct- unknown. According to her relatives, ed. When the matter was taken up she migrated to India in order to avoid by the media, it infuriated the Army public stigma. officers of the post. On May 2 and 3, 2006, Army personnel from the post A women fisher folk, Hira Kumari Ma- came to the village looking for her. jhi, from Pithauli Village Development They threatened dire consequences if Committee (VDC)— 6, Nawalparasi the villagers did not hand over Shanti 90 15, July 2007  What ARE Conservation Human Rights, can undermine anyway? Human Rights... to the Army within three days. She had to escape from the village and take refuge at a relative’s home. On May 4, in a press conference along with other victimized women, she strongly protested the Army’s be- haviour and appealed for justice and security. The next day, their appeal reached the House of Representatives. The issue was raised in the Parlia- ment. Civil society leaders and human rights activists extended solidarity to their plight. Human rights organiza- tions began a fact-finding mission. The national media too highlighted the issue. Though civil society pressure Picture 1. Shanti with local Kumal women, Meghauli, Chitwan. warned off the Army, no concrete ac- (Courtesy Sumana Shrestha, CDO) tions were taken against the guilty.13 Bibi Fattama, a local woman from the natural resources of PAs. The stories buffer zone area of KTWLR, said the of violence and atrocities perpetrated following during the public hearing at by the Army have a direct link with Kathmandu: “When we village women conservation practice driven by exclu- go to the forest, soldiers from the re- sionary logic and firm belief in military serve arrest us. They make us dance solutions to wildlife conservation. naked and rape us in the bushes. The government either resettles us else- Purba Pipra, the village adjoining where or withdraws the Army from the KTWLR in Saptari district, lies close reserve area. If none of these are pos- to Pathahari Army post, which guards sible they can take our lives”. the reserve area. This post used to be condemned as a notorious one by the Atrocities and violence by the local people. When the Army deployed Army deployed in PAs there abandoned the post during vio- "Armies are similar to the villains lent armed conflict in the area, locals shown in the movies"14 experienced a sense of relief. Locals claim that "not a single family in the What are the implications of Army two villages has been spared from the deployment to guard PAs? Though torture and harassment of the Army”. conflicts between the Army and lo- In buffer zone villages in this district, cal communities have been found nine villagers lost their lives in one in highlands and mid-hills PAs, lo- decade due to Army torture.15 cal experiences show conflict to be more intense in PAs situated in low- During the state of emergency im- lands of Nepal. Among other reasons, posed by the government to confront this is particularly due to strict rules Maoist rebels, several fundamental protecting endangered and valuable rights accorded to citizens by the con- wildlife and guarding dense forest; stitution were curtailed. During field- close proximity of human settlements work in the two villages, Purwa Pipra to the PA boundary; and persistent and Jagatpur, it was disclosed that, need of local communities to access taking advantage of the political situ- 15, July 2007 91 Conservation and Human Rights ation, the Army personnel from KT- ed and suffocating. We could not talk WLR raided and terrorized the villages as well”, said one of the Malahas who by shooting 80 domesticated buffa- experienced the brutal incident. For- loes in a single day. This was ignored tunately, after struggling against the by mainstream media. The Army jus- waves of the Koshi, the fishers man- tified its action by claiming that buf- aged to get out of the river and hid in faloes were found grazing within the the thatch grass and bush across the restricted areas of the reserve. Locals river. The soldiers did not trace them, deny this. They aver that it was a de- but the Malahas lost their boats and liberate action by the Army to threat- fishing nets. Recalling the incident, en the Maoists and terrorize the vil- Baidhya Nath Mukhiya, one of the vic- lagers, who were perceived as Maoist tims said "What human rights are you sympathizers. “In the adjoining dis- speaking about? Out here, soldiers trict, cattle crossing over the reserve have laws in their mouth. They do area were spared on the same day. It whatever they want. It is impossible was revenge taken by the Army”, says to note down all the torture we have Idrish Mansuri, a local resident. Loss experienced from the soldiers. Those of domesticated animals is distress- are countless". ing to villagers who depend on these animals for their livelihoods. About 50 households were directly affected by the incident. Cattle owners who lost their buffaloes during the interview were distressed whenever they recol- lect the incident. Villagers asked in dismay, “Do we get compensation for our buffaloes?". In a similar incident in 2000, one hundred cattle, including 97 buffaloes and 3 sacred cows, were killed on the order of the officer-in- charge of the reserve area. In conversation with indigenous fish- ing communities at Purwa Pipra, an- Picture 2. Local resident showing bruises other story was shared. Three "Mala- resulting from abuses by Army personnel. In the background is a Kanji House where has"16— local fisher folk— from the cattle and villagers were detained by the village were fishing in the Koshi river in Army in Purwa Pipra, Saptari. the buffer zone of the protected area. (Courtesy CDO) Suddenly, soldiers from Pathahari post arrived. "We could not escape. PA related displacement and Soldiers caught us on the spot. Then eviction threats they battered us with guns, sticks On several occasions, establishment and their boots. They snatched our and expansion of PA boundaries in clothes, covered our heads with them Nepal have taken place at the cost of and tied us with shoelaces. They also displacement of native populations.17 forced clothes into our mouth. Then Global experience demonstrates that they threw us in the river and went relocation and resettlement of dis- to catch the other two Malahas on the placed people are highly damaging, other side of river. We were blindfold- 92 15, July 2007  What ARE Conservation Human Rights, can undermine anyway? Human Rights... particularly when they require that ers were forcibly chased away. They people change social and geographic claim that their huts have been de- contexts, and reestablish livelihoods molished several times. "In the past in territories alien to their traditional forest guards used to trouble us, now habitats. While the issue has yet to be national park officials and the Army adequately researched and debated trouble us” lamented a local resident in Nepal, specific experiences so far in a personal conversation during the demonstrate detrimental impacts study. upon displaced communities. One re- cent study shows that displacements Four hundred poor and landless in- have resulted in livelihood crises formal settlers have been residing in Absence of a when communities Bandharjhula, ward number 9, Ayod- are alienated from hyapuri, Madi, on the periphery of CNP concrete, socially- traditional land, for the past 17 years. The location of just rehabilitation houses and occupa- the community is strategically placed and resettlement tions.18 The study in relation to Chitwan National Park policy in Nepal has discloses that male (CNP), being bordered by the thick members of dis- forest of Parsa district in the east and reinforced poverty placed communities a trail to Indian territory to the south. and vulnerability have been forced to According to Shyam Khadka, repre- of communities migrate to neigh- sentative of the Bandharjhula Landless displaced by PAs… boring countries for manual work. Struggle Committee, the settlers are often perceived as threat to CNP for Absence of a concrete, socially-just harboring poachers. In 1996-1997 the rehabilitation and resettlement policy entire crop belonging to these settlers in Nepal has reinforced poverty and was destroyed by CNP authorities. vulnerability of communities displaced There were several attempts to evict by PAs. Their daily struggles and the community forcibly: on February miseries do not find space in the dis- 2, 2002, authorities of course of “biodiversity conservation”. the Park torched more “The forest around than 800 huts, as a our vicinity is Bardiya National Park (BNP), in mid- result of which the still dense. In western Nepal, has a history of dis- locals were homeless placing local communities. Among for 4 months. fact we are local the communities displaced during the conservationists. early 1970s, 96 landless Dalit house- Stereotypes and al- We are watchdogs holds (marginalized caste group) are legations against against poaching. currently languishing on unregistered “landless squatters” forest land at Bhawani Fata, Neulapur have often been used We have formed village in Baridya District. They have to justify atrocities a conservation been resisting threats of eviction against the Band- committee and have from BNP authorities and struggling harjhula community. for secure housing. December 22, Shyam avers they are been protecting 2005 was one of the most terrifying labeled as “demolish- the forest. ….” days in their lives. National park offi- ers of forest”, “poach- cials and hundreds of Army personnel ers” and even “terrorists” by CNP terrorized the entire settlement and authorities. Refuting all the allega- destroyed all the huts. Some locals tions, he further claims “The forest were physically assaulted while oth- around our vicinity is still dense. In 15, July 2007 93 Conservation and Human Rights fact we are local conservationists. thorities as well as local community We are watchdogs against poaching. forest users groups have resorted to We have formed a conservation com- violent actions to evict families from mittee and have been protecting the informal settlements for occupying forest. We have clear demarcation the forest lands.21 According to Amar for our settlement.” During one of Jung Shahi, local leader of displaced the local patrols in 1993-1994, locals landless families, in a recent incident captured police personnel as well as on November 30, 2006, officials of the poachers heading towards the Indian district forest office and members of border and later handed them over to a local forest users group collectively the authorities. In another instance, torched and demolished huts in Bandi, in October 2003, the locals succeeded the settlement of displaced families in in capturing 3 members of a group of Krishnapur village. Four members of poachers who were engaged in illegal the displaced families were detained felling of trees. The current settle- on the charge of provocation by en- ment used to be a grazing land for croachment of forest land. Thori villagers, near Parsa district, but that grazing has now stopped. The area was also a convenient cor- ridor for poachers and forest mafia. When the settlement grew, these activities were obstructed. Yet in spite of the strategic role of settlers in sup- porting conservation, the local com- munities have been leading a life of internally-displaced people resisting threats of eviction from CNP. Sukla Fata Wildlife Reserve (SFWLR) in far western Nepal was expanded in 1981 with the rationale that existing habitat for wildlife species was inad- equate. Seventeen settlements from Picture 3. Baidhya Nath Mukhiya, a local five villages19 fell within the expanded fisher folk from Purwa Pipra, Saptari, who boundary. Around 3000 households was once physically harassed by Army were displaced. While resettlement personnel from KTWLR. (Courtesy CDO) was agreed to in principle by authori- ties of SFWLR, it was not implement- Local movements and ed adequately to accommodate all backlashes the displaced families. A few of them Several grassroots popular move- were resettled in the town of Mahen- ments as well as community-based dranagar. Yet, the majority of dis- backlashes have thrived around na- placed families took refuge in forest tional parks and wildlife reserves in land outside the reserve area. Dis- Nepal. Voices and claims of marginal- placed households have been occu- ized communities facing the brunt of pying unregistered forest lands in 13 conservation costs began to emerge in different locations20 resisting threats organized forms in the expanded dem- of eviction. There have been several ocratic political space following multi- occasions in the past when state au- party democracy in 1990. Local move- 94 15, July 2007  What ARE Conservation Human Rights, can undermine anyway? Human Rights... ments and campaigns around Terai authorities and their callous and disre- PAs have been a non-violent form of spectful attitude towards forest dwell- mass protest. Such movements so far ers and river dependent communities. range from spontaneous movements The resulting struggle is an exemplary led by communities directly affected grassroots, non- Voices and claims of by PAs to those induced and support- violent movement of hitherto mar- marginalized commu- ed by civil society organizations and international funding agencies serving ginalized groups nities facing the brunt the plight of affected communities. that raised is- of conservation costs These movements often articulate sues of livelihood rights of natural began to emerge in public dissent and reaction to inad- equacies of policies and governance resource depen- organized forms in the of PA management and wildlife con- dent communities expanded democratic servation. More often than not, such around PAs of political space. policies and governance are driven by Nepal. Demand a bio-centric, orthodox conservation- for traditional fishing rights to mitigate ist paradigm, ‘exclusionary logic’, and the livelihood crisis engendered by re- excessive bureaucratic and military strictive polices of the CNP were central control. The origin and continua- to the movement. The struggle chal- tion of social movements around PAs lenged and vibrantly unveiled atrocities often have direct correlations with and human rights abuses by Army and livelihood crises of natural resource conservation officials. The movement dependent, poor and marginalized achieved fishing rights in river Narayani communities around PAs; human for six months a year. The struggle is rights abuses and atrocities by Army continuing. and conservation officials, local con- flicts with wildlife species, and failure Local women from buffer zone villages of buffer zone development programs of KTWLR in Saptari have organized intended to reduce conflict between mass protests against their harassment PAs and local people. by armed guards and officials of KTWLR. December 10, 2000 was noteworthy in During an Army raid on January 30, their struggle. Around 2500 local women 1993, CNP authorities, including Army wore a black cloth over their mouth, a personnel, confiscated boats and symbolic protest against the actions of fishing nets in several settlements22 reserve officials. They marched all way across the river Narayani. They from their villages to the district head- torched all fishing nets and handmade quarters asking, “Where are our human baskets, smashed boats into pieces rights?”.25 Local activist Kalpana Chaud- and battered villagers.23 The raid was hari recalls that the demonstration was an unprecedented move to enforce initiated by a local civil society group restrictions on fishing within the park called Koshi Concern Group, which had boundary. Though the communities been launching non-violent campaigns had begun to resist park impositions in districts around KTWLR on problems and abuses from 1983/84, this ter- faced by local communities. The group rorizing incident triggered a sponta- was banned by state authorities dur- neous movement of Bote-Majhi and ing the State of Emergency in Nepal Musahar, the traditional fisher folk24 after a few cadres joined the Maoists. residing on river banks adjoining Women activists of the group have been CNP. The community resents the park harassed and tortured in the past by se- 15, July 2007 95 Conservation and Human Rights curity forces on suspicion of ties with the displaced communities languish Maoist rebels. along highways, river banks and forest lands, their struggle for secure hous- Boundary expansion of SFWLR dis- ing and security of life continues.26 placed communities from villages such as Rauteli Bichuwa, Pipladi and In a recent incident in December Dekhatvuli. Conflict intensified when 2006, two local women of Bhuri Gaon, landless poor communities were ex- Shiwapur village27 were harassed by cluded from the resettlement plan. a group of conservation guards led by Among the displaced were around a ‘Game Scout’, Laxman Sunar. The 1013 Dalit households which were women had gone to the forest to col- forced to take refuge along highways. lect grass and fallen firewood. Accord- Several commissions and committees ing to the locals, conservation guards were formed by the government to ad- seized Doko and Namlo (traditional dress the resettlement issue but they baskets carried by village women for failed to resolve the crisis. Displaced fetching fodder and grass) and burnt communities launched a movement to them later. The incident was soon dis- pressure the state with demands for closed among the villagers. The local secure housing. The movement took ‘struggle committee of park affected off vibrantly against the backdrop of communities’, including social activ- massive destruction of a settlement on ists and local villagers, surrounded January 6, 2003 by the state authori- the Bankhet post, demanding justice ties. The displaced families had been and protesting the action of the game occupying forest lands for temporary scout. Public pressure forced the guilty shelter. ‘Reserve Victim Struggle Com- game scout to apologize publicly. The mittee, Kanchanpur’ evolved as part of incident was covered by the local the resistance to threats of eviction. In press, Bardiya Times. the non-violent struggle for just com- pensation for displacement, 45 year- Contesting militarization of PAs old Prem Bahadur Chand passed away For several reasons, deployment and while participating in a relay hunger dominance of the Army in PAs of strike. Media reports suggested that Nepal is seen as problematic by local health conditions of inhabitants in people, critics, civil society organiza- temporary camps had been deteriorat- tions, and some forest professionals ing due to lack of basic services. While engaged in contemporary discourse on conservation. The institution of the Army has always been loyal to the monarchy and the royal palace. There are matrimonial and other close ties between upper echelons of Army and the royal family, with the ‘top brass’ always belonging to one of four fami- lies/lineages (Rana, Thapa, Shah, Basnet).28 Their role in suppressing the historic people’s movement29 to sustain royal hegemony is evident in Picture 4. A torched hut in the settlement contemporary Nepalese history. Rela- of landless, Bandi, Krishnapur, Kan- tions of the Army with local civilians, chanpur District. (Courtesy CDO) and more often poor and indigenous 96 15, July 2007  What ARE Conservation Human Rights, can undermine anyway? Human Rights... communities, have been contentious. cold water for hours’, ‘Made to sleep The set of atrocities mentioned ear- on the ground and sent home without lier reflect on-the-ground realities, a chance to wash’ and ‘Spilling hot Locals in buffer resulting in local conflicts as well water on the body’.30 zone villages as backlashes. The ‘Royal’ Nepal Army has been have reported Locals in buf- criticized for human rights violations that soldiers fer zone villages against civilians time and again by na- have reported tional and international human rights have indulged in that soldiers have watchdogs. ‘There is reliable and doc- violations that indulged in viola- umented evidence that the RNA have range from seizure tions that range been responsible for systematic and of property and from seizure of property and widespread violations’.31 The United Nations Office of The High Commis- food, forced labor, food, forced labor, sioner for Human Rights in Nepal, and verbal abuse to and verbal abuse in its comments and recommenda- physical torture and to physical tor- tion on the Army Bill of 20 August sexual harassment. ture and sexual harassment. A re- 2006, pointed out the RNA’s failure to comply with international human cent study learned from local commu- rights standards.32 “Though the newly nities that those captured may face passed bill on the Nepal Army by the twenty-seven different forms of Army parliament, after restoration of mul- punishment. These include ‘Dunk in tiparty democracy, has attempted to the water’, ‘Batter with rough stick’, accommodate some of the concerns ‘Tied up upside down’, ‘Forcing to raised by human rights organizations, lay on mud exposed to blazing sun’, there are still problematic lapses in ‘Kicked with boots’, ‘Held in custody’, the Act that provide room for impu- ‘Fined unreasonable amount’, ‘Made nity. Crime against civilians and other to stand still in water’, ‘Made to run human rights violations other than in water’, ‘Forced to run in awkward murder and rape still fall within ju- positions and physically assaulted if risdiction of military court. Provisions failing to do so’, ‘Made to run with el- concerning fair trail are still dubious”, bows on the ground’, ‘Forced to touch remarks Mandira Sharma, in an inter- each other’s sex organs, punished view with a prominent human rights if refusing’, ‘Pulling the skin of the advocate in Nepal. stomach and beating’, ‘Making women dance naked’, ‘Making men strip in Conclusion front of women and sending home’, Reflections on grassroots realities ‘Touching and pointing at women’s from the buffer zone villages dis- private parts and harassing them’, cussed above demonstrate the im- ‘Forced to eat one’s own spit’, ‘Forced plications of current policies and to sing and dance’, ‘Snatching the fish mechanisms of PA management in catch’, ‘Breaking the boats’, ‘Aban- Nepal. They also illuminate the apathy doning the boats in the river’, ‘Putting of state authorities and institutions sugar on the body and forcing to lay towards human rights issues particu- on the ground in the sun’, ‘Seizing larly when they affect poor, tribal and axe and sickle’, ‘Chasing with el- indigenous communities bearing the ephants’, ‘Tying hands with shoe laces costs of state-imposed fashionable and throwing in the river’, ‘Dunking in ‘biodiversity conservation’ practices. 15, July 2007 97 Conservation and Human Rights The experiences of human rights perceived as something belonging to violations around PAs in southern the state and alien to the locals. The lowlands of Nepal suggest that poor, escalation of poaching of Asiatic one marginalized and minority indigenous horned rhinoceros and rapid decline communities are often excluded from of endangered wild water buffalo also the dominant conservation discourse challenge the effectiveness of the ex- and doomed to human rights viola- isting paradigm and strategy of wild- tions. The vulnerability of natural life conservation in Nepal. In a coun- resource-dependent poor and indig- try where local campaigns and civil enous communities is aggravated by society groups raising issues of hu- the erosion of traditional livelihoods man rights and advocating an active due to restrictive and exclusionary role of local communities in conser- conservation policies of the state. vation are perceived and labeled as Their agony should be seen of their ‘anti-conservation’, integration of the traditional livelihoods, intertwined human rights agenda into conserva- with their politics of survival and tion discourse is challenging. Howev- struggle for environmental justice. er, there are positive signs: emerging The political context in the country non violent local movements around also has consequences for the hu- PAs, civil society-initiated critical man rights situation at the grassroots. dialogues amongst diverse groups, Atrocities by state authorities against institutions on democratizing pro- the poor and marginalized commu- tected area governance in Nepal, and nities took place when the State of growing realization of the problem on Emergency was imposed and shrank the part of forest bureaucracy. democratic space. Popular stereotypes Sudeep Jana (janasudeep@gmail.com) a post graduate in against poor, landless and tribal peo- Social Work (Urban and Rural Community Development), is ple have also contributed to their suf- a researcher with Community Development Organization, a NGO working on social justice and ecological democracy ferings in the name of conservation. around protected areas of Nepal. For the past two and half years he has been engaged in researching grassroots social In the context of Nepal, civil and po- movements, struggles and conflicts over natural resources around PAs in the southern lowlands of Nepal. He is also litical rights dominate human rights involved in advocating democratization of PA governance in discourse. It is imperative to broaden Nepal. His book in collaboration with ICIMOD The Struggle the dominant understanding of hu- for Environmental Justice: An Indigenous Fishing Minority's Movement in Chitwan National Park, Nepal is forthcoming. man rights, and move beyond a strict focus on civil and political rights. It is essential to recognize the curtailment Notes 1 After political change in April 2006, the ‘Royal of customary usufruct rights over nat- Nepal Army’ was renamed ‘Nepal Army’. ural resources and its repercussions 2 Protected areas in Nepal have thrived since 1970s upon poor and indigenous people as and constitute more than 19 % of the territory. a violation of livelihood rights and There are 16 PAs at present, which include na- tional parks, wild life reserves, conservation areas food security. Apathy of conservation and hunting reserves. authorities towards human rights of 3 Rara National Park, Khaptad National Park, Bardiya local communities around PAs and National Park, Chitwan NP, Koshi Toppu Wild Life Reserve, Sukla Fata Wild Life Reserve, Shivapuri continued exclusion are likely to be Wild Life Reserve, Langtang National Park, Sagar- counterproductive to the aspirations matha National Park and Shey Foksundo National of 'sustainable' conservation. An Park. indication of this problem is mount- 4 Nepal is topographically divided into Himalayan, Hill and Terai regions. Terai belongs to the south- ing local hostility due to conflict with ern lowlands. wildlife species that are commonly 5 Bikas, 8 (15), Dec 8-9, 1999 in Adhikari & Ghimi- 98 15, July 2007  What ARE Conservation Human Rights, can undermine anyway? Human Rights... re, 2003. National Park 6 Bote-Majhi-Mushar are indigenous fisher folk who 28 Bhatt, 2006. reside on the periphery of Chitwan National Park 29 The People’s Uprising in April 2006 forced king (CNP), south central Nepal. Traditionally they earn Gyanendra to renounce autocratic role and rein- their livelihood from ferrying, fishing and access- state the dissolved House of Parliament. ing livelihood resources of the forest. Before the establishment of CNP they had unrestricted access 30 CDO et al., 2006. to natural resources. 31 ICJ 2006, p2. 7 CDO & ICIMOD, 2006, pp: 8. 32 UN OHCHR, 2006. Among other things, it ex- 8 CDO & ICIMOD, 2006, pp: 8. pressed concerns that the new bill, like the exist- ing Army Act, 1959 ‘allows military court over 9 After reinstatement of the dissolved house of civilian court to exercise jurisdiction over Army parliament in April 2006, the Government of Nepal personnel who commit serious human rights viola- made provisions to extend citizenship to children tions’; does not create enough room to oblige ‘Ne- from the mother’s name where the father was not pal Army to cooperate with civilian authorities’ to present or known. investigate serious human rights abuses by Army 10 Such buffer zone villages include Gardi, Baghauda, personnel and does not guarantee defendants to Kalyanpur, Patihani, Sukranagar and Jagatpur. just and fair trail or the human rights protection to 11 Bikas, 8(15), 8-9 Dec, 1999, quoted in Adhikari & those detained by Army ’ Ghimire, 2003. 12 Kumals, native population around CNP, belong References to one of the marginalized nationalities of Nepal, Adhikari, J. and S. Ghimire, Batawaraniya Nyay (En- traditionally dependant on natural resources. vironmental Justice), Martin Chautari, Kathmandu, 13 It is based on an interview with Shanti Kumal on Nepal, 2003. May 10, 2006 at Kathmandu. Bhattarai, A., A. Thapaliy, M. Thapa, and S. Ghimire, 14 Khor Bahadur Majhi, traditional fisher folk from ‘Voices from the Southern Civil Societies: Nepalese Shergunj, fringe of CNP. Country Report’, In Voices from Southern Civil Soci- 15 CDO et al., 2006. eties, The Interplay of National and Global Contexts 16 Malahas are traditional fisher folks who reside on in the Performance of Civil Society Organizations the periphery of Koshi Toppu Wild Life Reserve in the South, Country Case Studies, Policy Papers, (KTWLR) and earn their livelihood by fishing in Institute of Development Studies, University of Hel- river Koshi. They are one of the minority groups in sinki, Helsinki, 2003. buffer zone area of KTWLR. Bhattarai, A. and S. Jana, Grass Roots Organiza- 17 Based on first hand knowledge of the author tion Engaging Conservation Agency: Case Study of several experiences of displacement can be found Indigenous Fishing Communities Right to Fishing in in Nepal. Communities displaced by CNP from South Central Nepal, Research and Policy in Devel- old Padampur were resettled in new Padampur in opment (RAPID) Program, Overseas Development Chitwan. Communities from highlands of Mugu, Institute (ODI), UK , 2005 ( www.odi.org.uk). Karnali Zone, mid western Nepal were resettled in Bhatt, D, “All the king’s horses, all the king’s men”, Chisapani, Banke district, lowlands of Nepal, after Combat Law, Sept.-Oct.2006, special issue on Ne- establishment of Rara National Park. Many villages pal, pp. 44-46, 2006. were displaced during establishment of Koshi CDO, KVS, UCHEP and PCDF , ‘Uncovering Local Toppu Wild Life Reserve in south— eastern Nepal. Agony around Terai PAs in Nepal, A study in buffer 18 CDO et al., 2006. zone areas of Bardiya National Park & Koshi Toppu 19 The VDCs are Rauteli Bichuwa, Pipladi, Jhalari, Wild Life Reserve’ , Unpublished Report, Commu- Dekhatavali and Daiji. nity Development Organization (CDO), Anamnagar, Kathmandu, 2006. 20 Some of these villages include Simal Fata, Jhalari, Kalika, Beldandi, Dekhatbhuli and Pipladi in the CDO and ICIMOD, Grassroots movement of tribal buffer zone area. fishing communities in Nawalparasi, Unpublished Research Report, Kathmandu, 2006. 21 Adhikari,and Ghimire, 2003. International Commission of Jurists, Nepal: Recom- 22 The settlements were Sandh, Badruwa, Laugain mendations for Amendments to the Draft Army Act, and Piprahar, located in buffer zone area of Chit- September, 2006. (http://www.icj.org) wan Nationa Park in Nawalparasi district, south- central Nepal. United Nations Office of the High Commissioner for Human Rights in Nepal, OHCHR Comments and 23 Bhattarai, and Jana, 2005. Recommendations on Army Bill, 20 August 2006, 24 Their livelihood is historically dependant on fishing, text available at: http://66.116.151.85/wp-content/ ferrying and collection of livelihood resources of OHCHR_Army2006aug.pdf the forest. 25 Bhattarai et.al., 2003. 26 Based on the conservation with Amar Jung Sahi, local leader of displaced communities. 27 The village is located in buffer zone of Bardiya 15, July 2007 99 Conservation and Human Rights Protected areas and human rights in India— the impact of the official conservation model on local communities Milind Wani and Ashish Kothari Abstract. We reviewed the impact of some of India’s conservation policies on the livelihoods of communities living within areas protected for wildlife (national parks and wildlife sanctuar- ies). We did that in the background of United Nation’s Millennium Development Goal (MDG) of halving extreme poverty by 2015 and of the human rights framework, within which impov- erishment can be seen as a violation of human rights. Our research at sites in three states of India suggests that conservation policy is having significant adverse impacts on resident and user communities. Some sincere attempts by the state and/or by NGOs to mitigate or mini- mize these impacts have been made, but they remain inadequate. Issues of poverty, conser- vation, human rights, citizenship rights, and land/resource tenure rights specific to India’s history and social-economic conditions are closely inter-linked. They cannot be addressed in a piece-meal manner, as has been done so far. A human rights approach that integrates conservation and livelihoods requires an active and informed participation of the communities living within protected areas. Conservation policy itself needs to embrace new paradigms of governance and participation that many countries are exploring. I ndia’s protected areas (PAs) have been the single most important strate- munities. In this sense, any actions that actively cause ‘impoverishment’ can be considered a violation of hu- gic approach employed by the govern- man rights. Examples of such violations ment for the conservation of the coun- include: try’s biodiversity. Upwards of 600 PAs X Denial of customary rights over ac- cover about 5% of the country, helping cess to natural resources for physical to protect some of its last remaining subsistence, livelihood and economic natural ecosystems and wildlife popu- security. lations. These PAs are, however, also X Actual or potential threat of displace- home to 3 to 4 million people. Most of ment, dispossession and loss of these belong to communities that have command over economic resources. lived in or used the area for genera- X Ill-health, illiteracy, hunger and mor- tions or centuries, and most belong bidity that can be related to impov- to the economically ‘lower’ or ‘poorer’ erishment. classes of Indian society. This paper examines the social situation within X Denial of participation in develop- India’s PAs from three perspectives. mental activities and community life. X Disempowerment and decreased Firstly, we try to understand how the control over personal and community current poverty1 of resident or user lives. communities relates to the establish- X Lack of accountability of decision ment of PAs. Poverty is a multi-dimen- makers including the government. sional concept2 that negatively impacts on the well- being3 of people and com- Following the economist Amartya Sen, 100 15, July 2007  What ARE Conservation Human Rights, can undermine anyway? Human Rights... in 3 states of India (Orissa, Madhya Pradesh and Himachal Pradesh), and an analysis of conservation policies, undertaken as part of a Small Grants Programme research project funded by UNESCO. It places itself within UNESCO’s perspective that freedom from poverty is an issue basic to en- suring the protection of human rights. Poverty, human rights, and conservation Around 70% of the Indian population depends on land-based occupations, and on forests, wetlands and marine habitats for their basic subsistence requirements.5 This dependence is widespread, with very few ‘natural’ ecosystems (mostly some inacces- sible reaches of the Himalayas, and some islands) not being subjected to some form of human use. These com- Picture 1. Women in Satpura Tiger Reserve, the munities depend on the resources of hardest hit by restrictions on access to resources. the area for water, housing material, (Courtesy Ashish Kothari) fuel wood, fodder, pastures,6 medici- nal plants, non-timber forest products poverty can be seen as “the failure (NTFP), timber, aquatic resources of basic capabilities to reach certain including fish, spiritual and cultural minimally acceptable levels”.4 Being sustenance, and adequately nourished, clothed and myriad other It is crucial that sheltered and being able to participate basic needs. In access to natural in community life can be viewed as interrelated “functionings” that can be all, 275 million resources be considered people depend an essential impacted by development or conserva- on NTFP for their tion policies. In this sense, the active livelihood.7 NTFP component of anti- impoverishment and disempowerment collection gener- poverty strategies, of people and communities can be seen ates about 1063 as a violation of human rights and denial of access million person be seen as leading to days of employ- In this light, this article examines ment in India8 and impoverishment and the impact of PA-related policies and about 60-70% therefore a violation of judicial strictures on the livelihood of NTFP gather- options of these communities and basic human rights. ers are women.9 explores the extent to which new There are an estimated 20 million conservation policy initiatives (eg. person days per year involved in me- ‘ecodevelopment’) attempt to ensure dicinal herb collection from the wild, livelihood security and otherwise al- for a net collection of around 1120 leviate poverty. The article is based on million rupees per year.10 There are an site visits to study the situation of PAs estimated 22 million fisher-folk who 15, July 2007 101 Conservation and Human Rights Any consideration of India’s conserva- tion policies has to note their impact on people (leading to decreased or increased poverty), and conversely, the impacts (negative or positive) that people have on wildlife and natural re- sources. Some criteria crucial to under- standing the current situation are: X the extent of dependency on natu- ral resources for basic survival, the extent to which such dependency is recognized as a rights issue,16 and the impact of conservation policy on this dependency; Picture 2. Non-timber forest produce is a X success or failure of developmental critical source of livelihood for villagers in activities within areas designated for Baisipalli Sanctuary, Orissa. conservation; (Courtesy Ashish Kothari) X access to information regarding, and depend on aquatic habitats for their extent of participation in, decisions livelihood.11 The dependence is great- affecting one’s life; est in the case of India’s indigenous or X awareness about compensation poli- tribal communities.12 It is not coinci- cies; and dental that 65% of India’s forest cover X availability and awareness of alter- is in 187 tribal-dominated districts.13 native livelihood options. Given this dependence, it is crucial that India’s conservation model and access to natural resources be consid- its livelihood impact ered an essential component of anti- The greatest conflicts in relation to ac- poverty strategies, and denial of access cess to natural resources for livelihood be seen as leading to impoverishment purposes exist in PAs. Over the last few and therefore a violation of basic hu- decades, several man rights. The complexity and seri- hundred PAs have Ensuring that liveli- ousness of the issue is further under- been declared hood needs are met scored by the fact that the 150 poorest under the Wild districts in India are also constitution- without compromis- Life (Protection) ally-designated Schedule V areas and Act 1972 (WLPA). ing the conservation that Scheduled Tribes14 constitute From a handful of of wildlife and biodi- about 8.4 per cent of India’s popula- such areas prior versity is tion.15 Therefore, it is vital that conser- to 1972 (which vation be addressed within the context a critical part of were declared un- of human rights, and conversely that der previous laws, India’s environmen- human rights approaches incorporate mostly colonial in tal and developmental the need to conserve natural ecosys- origin), the coun- agenda today. tems and resources. In the context try today has over of PAs, conservation strategies must 600 PAs, covering almost 5% of its ter- address the issue of ensuring liveli- ritory. Until recently, these belonged to hood security (and hence freedom from two categories: National Parks—where poverty and impoverishment). all human activities are strictly prohib- 102 15, July 2007  What ARE Conservation Human Rights, can undermine anyway? Human Rights... ited, and Wildlife Sanctuaries— where of centralized bureaucracies, further some activities/rights are allowed. removing any vestiges of management In 2003, two more categories of PAs and control that local communities may were included in the Act: Conservation have had. This affects, either directly Reserves and Community Reserves. or indirectly, the life of 3 to 4 million There are a number of other legal and people in indigenous and other com- non-legal categories providing varying munities that live within PAs and an- degrees of conservation coverage to other few million that live outside PAs specific sites: protected and reserved but depend on the PA natural resources forests (under the Indian Forest Act for their own livelihoods. A country- 1927), biosphere reserves, elephant wide assessment in the mid-1980s reserves, heritage sites (none of these showed that 69% with legal backing), tiger reserves of the studied The WLPA continued (declared since 1973 but given legal PAs had human the colonial legacy of backing only in 2006), and ecologically populations.18 sensitive areas (under the Environment Local traditions rendering control over Protection Act 1986). of conservation natural resources into and community the hands of central- In areas where natural ecosystems still resource man- ized bureaucracies, exist in relatively intact or less dis- agement and turbed form, considerable wildlife and ethical and spiri- further removing any biodiversity still survives. But many of tual beliefs have vestiges of manage- these also have traditionally resident or sustained many ment and control that dependent human communities. Ensur- ecosystems and ing that livelihood needs are met with- wildlife species, local communities out compromising the conservation of though it would may have had. wildlife and biodiversity is a critical part be a mistake to of India’s environmental and develop- romanticize these as being universal or mental agenda today. always effective. These traditions were almost totally neglected in the legisla- Unfortunately, the official conserva- tion. Also neglected, and in some cases tion model applied in India is in many actually “dismantled”, were community ways unsuited to the Indian context.17 level institutions of resource manage- This model, imported from the West (in ment and conservation. This mismatch particular from the US Yellowstone Na- between conservation policy and the tional Park) and based on the principle social situation on the ground has had of exclusion, has been extended to ar- significant impacts, some of which are: eas where people reside within wildlife X Dispossession and displacement habitats. The fact that the model would Over 100,000 people may have been have serious implications for livelihood displaced from PAs over the last security and people’s own conserva- 3-4 decades (the fact that there is tion practices was ignored when it was no comprehensive official figure is enshrined in the WLPA. symptomatic of the casual attitude towards this problem).19 More seri- The WLPA has been crucial in reduc- ous is the denial of access to survival ing the destruction of wildlife species and livelihood resources for people and habitats, but has also continued that remain within PAs, reported the colonial legacy of rendering control to be prevalent in most PAs of the over natural resources into the hands country.20 15, July 2007 103 Conservation and Human Rights X Conflict between local people This is not to say that conservation and government officials policy and programs have only had The mid-1980 study mentioned negative impacts. Communities have above revealed that, of the PAs sur- also benefited in several ways: veyed as many as one-fourth re- ported physical clashes between PA X PAs have helped keep out the de- officials and local people.21 Another structive ‘development’ pressures 1983 report22 prepared by a govern- from many areas, some of which ment appointed task force and fo- (mining, dams, etc) could have cusing on rural peoples’ dependence inflicted far more damage on local forests, acknowledges the fact that: communities than the restrictions “In their precarious existence, en- imposed by PA rules. This impact forcement of restrictions in wildlife is less tangible,24 but nevertheless reserves triggers antagonism”. major in the case of some PAs, and X Backlash against conservation many communities do acknowledge Extreme hostility against PA-related it, when asked. restrictions and frequent repres- X The biomass being protected in PAs sion is also manifest in acts of re- is used by resident and user com- prisal: poisoning of wildlife, aiding munities (where not denied access); and abetting poaching by outsiders, PAs also act as “nurseries” from setting fire to the forest, and simi- where natural resources such as fish lar destructive acts. Political lead- spill over into surrounding areas and ers make use of this to demand the benefit people. de-reservation or downsizing of PAs X Ecosystem services protected by PAs to leave villages out of the bound- are of significant use to local people, aries.23 This downsizing happened water being probably the most im- some years back, for instance, with portant. the Great Himalayan National Park X Some PAs are employing local peo- in Himachal Pradesh, the site of one ple, and beginning to deliver more of our case studies. tangible benefits in terms of ecotour- ism revenues. Unfortunately, the above benefits are often poorly tangible, or seem to ben- efit only a fraction of the people ad- versely affected by PAs. This imbalance in costs and benefits to local people has of late become even more pro- nounced with recent policy pronounce- ments and judicial strictures. In 2000, the Supreme Court of India passed an order restraining all state governments from ordering the removal of timber, fallen wood, grasses, and other such produce from protected areas. Though Picture 3. Women of Barnagi village in this order was made in the context of buffer zone of Great Himalayan National a disguised move by one state govern- Park: in need of alternative livelihoods. ment to re-open timber logging inside (Courtesy Ashish Kothari) PAs, it has been more widely interpret- 104 15, July 2007  What ARE Conservation Human Rights, can undermine anyway? Human Rights... ed (2003/04), by the central Ministry It was precisely to ascertain the im- of Environment and Forests, and by a pact of the recent policy and judicial Centrally Empowered Committee set pronouncements that our study looked up by the Supreme Court, to ask state at the situation on the ground in some governments to halt all exercise of selected PAs. rights and concessions inside PAs! This extremely ‘generous’ interpretation of Case studies’ background and the Court’s direction is even beyond the results spirit and letter of the WLPA, since it The study examined the situation in effectively denies any means of liveli- four PAs in three states: hood to people living inside PAs. 1. The Satkosia Gorge Sanctuary Due to be impacted are 3.5 to 4 million (SGS) in Orissa state, with an area people, as virtually all their livelihood of 795.52 sq. kms, was declared on related activities dependent on for- 19 May 1976. It is a vital habitat for est or other natural produce would be the elephant and other wildlife, but halted. Without explicitly ordering this, also contains 102 villages (including India’s central judicial and executive three forest villages)25 with a popula- bodies have set into motion a process tion of nearly 32,000.26 The process that could first dispossess, and then of identifying and settling the cus- forcibly displace, millions of people. tomary rights of these people has Already the impacts have been felt. In not yet been completed. the south-eastern state of Orissa, the government has implemented a prohi- 2. The Baisipalli Sanctuary in Orissa bition on NTFP collection. This has re- state, with an area of 168.35 sq km, portedly affected several hundred thou- was declared on 7 November 1981. sand adivasi (indigenous/tribal) people, As of 2001, the villages inside had taking away their a population of 5874, most of them Without explic- sole or main means Scheduled Tribes with a very heavy dependence on NTFPs. Since the en- itly ordering this, of livelihood, and tire area of the Sanctuary was previ- India’s central forcing many of ously a Reserve Forest (under the them to migrate judicial and execu- out in search of Forest Act 1927), identification and tive bodies have set employment and settlement of people’s rights to for- est produce has not been considered into motion a pro- income. Similar necessary. cess that could first orders are under- way or under con- dispossess, and then sideration in many In both the above PAs, NTFP collection forcibly displace, other states. These for sale was banned in 2001. millions of people. orders have cre- 3. The Great Himalayan National Park ated a situation of enormous tension and potential escala- (GHNP) in the state of Himachal tion of conflicts across India. The NGOs Pradesh was established in 1984 Kalpavriksh (Pune, Maharashtra, India) for its exceptional range of Hima- and Vasundhara (Bubhaneshwar, Oris- layan flora and fauna, including sa, India) have legally challenged the many threatened species such as the orders, but the courts have yet (as of Western tragopan, Himalayan tahr, January 2007) to hear their arguments. Blue sheep, and Musk deer.27 GHNP is spread over an area of 754.4 sq km. Around 160 villages, with about 15, July 2007 105 Conservation and Human Rights 14,000 people, exist in the five-km ra Tiger Reserve (Madhya Pradesh) wide belt on the western side of the was studied. park; many have been dependent X State initiatives to create or en- on traditional resource uses inside hance livelihoods—The success or GHNP. In 1999, with the final notifi- failure of ‘ecodevelopment’ initiatives cation of the park, all such custom- as a means to alleviate livelihood/ ary use rights were prohibited. poverty needs and reduce pressure on the PA, was studied at GHNP, Hi- 4. The Satpura Tiger Reserve (STR),28 machal Pradesh. in the state of Madhya Pradesh, con- tains three protected areas: Satpura National Park (SNP: 524.37 sqkm), Bori Wildlife Sanctuary (BWS: 485.72 sqkm), and Pachmarhi Wild- life Sanctuary (PWS: 417.78 sq km). The total area is 1427.87 sq km. There are 8, 17 and 50 tribal villages respectively (total 75 villages) in the three PAs. The area is known as a part of the Gondwana tract after the Gond tribe, who chiefly inhabit this area and practice both settled and shifting cultivation. A decision was taken several years back to relocate some of the villages from within the STR. The first of these, Dhain, was shifted in 2005 and there are plans to shift 13 to 16 more villages.29 Ad- ditionally, a number of restrictions on collection of forest produce for sale have been imposed here, pursu- ant to the Supreme Court’s order of Picture 4. The Great Himalayan National Park 2000. offers excellent trekking and camping opportu- nities, and a fledgling ecotourism venture could These PAs were selected to illustrate lead to some livelihood generation for local three situations which face most PAs people. (Courtesy Ashish Kothari) and PA-resident peoples in India: X Denial of access to natural re- Our methodology included the following: sources— A common phenomenon X Literature search on available mate- across India, the precise effects of rial (official and otherwise); this were studied in detail in Bai- X Site visits to study impacts of con- sipalli and Satkosia Sanctuaries in servation policies and programmes Orissa, and in less detail at GHNP in on people, using personal observa- Himachal Pradesh. tion and detailed questionnaires to X Physical displacement of commu- elicit information and opinions from nities residing within protected forest officials, local people and insti- areas— As an example of this, the tutions, and state level NGOs; success or failure of the relocation of X Group and individual meetings held Dhain village from within the Satpu- 106 15, July 2007  What ARE Conservation Human Rights, can undermine anyway? Human Rights... with affected communities; ing in or around Baisipalli, Satkosia, X Commissioning an expert paper on and GHNP, due to denial of/restric- tourism as a livelihood option; and tions on access to natural resources. X Analyzing existing and proposed new In Orissa, prior to the ban on NTFP laws and policies and judicial pro- trade, families earned an average nouncements. annual income of Rs. 6800— 9100 through legal sale of forest produce. The focus of our study and methodol- This has dropped now to Rs.1000— ogy was to understand the impact of 1500, no longer obtained legally. In policy measures on communities resid- many villages, since this was the ing within PAs, and the extent to which main source of earning, people have they may have led to impoverishment been driven to the verge of desti- of communities staying within protect- tution. Similarly, in GHNP, prior to ed areas, through denial of livelihood restrictions on the sale of medici- because of dispossession, curtailment nal herbs, per family income was of access to sources of livelihood, in- Rs.7500— 10,000. Legal trade has adequacy of developmental initiatives, stopped almost completely, though displacement or inadequate rehabilita- some trade is reported to continue il- tion, denial of opportunities for par- legally. Thus the income drop in both ticipatory decision making etc. From cases has been above 80%. In Sat- the perspective of the “capability ap- pura, villagers also reported loss of proach”, these have a direct relevance livelihoods, but this was not studied for the “functionings” of the people, an in detail. inadequate realization of which con- X Additional problems30 that people stitutes a violation/denial of certain within Baisipalli, Satkosia, and Sat- human rights. Our study was also an pura have been facing include: inad- attempt to understand whether initia- equate development facilities, non- tives like “ecodevelopment” really are settlement of rights, harassment by an answer to the problems created by PA staff, lack of awareness of com- a certain model of conservation, and pensation schemes, lack of participa- whether they have been adequate to tion in decision-making, insecurity remedy impoverishment and the re- due to fear of eviction, inadequacy lated violation of human rights. of medical support, poor educational opportunities, and inadequacy of Our research reveals the following key roads, communication, and energy impacts of protected areas on commu- sources. nities: X There have been no attempts at X Communities within or adjacent to amelioration of negative impacts in these PAs were already facing depri- Baisipalli or Satkosia. At GHNP, sin- vation and denial of customary rights cere attempts at providing alterna- prior to the PAs being declared, for tive sources of livelihood have been reasons including the areas being made under ‘ecodevelopment’ pro- declared reserve forests during colo- grammes, including creation of wom- nial times, or lack of government at- en’s self-help groups. But these have tention to ‘remote’ areas away from been inadequate with respect to the main roads. scale of the loss. Villagers expressed X However, there has been a signifi- serious difficulties due to inadequate cant additional negative impact on compensation for (or alternatives the livelihoods of communities liv- to) the reduced income due to loss 15, July 2007 107 Conservation and Human Rights of rights and access to medicinal At GHNP, Park authorities had made herbs and grazing, compounded by efforts at improving infrastructure in inadequate settlement of customary some of the affected villages in the resource access rights based on out- buffer area. dated records.. X Some of the restrictions seemed X Displacement from Satpura has had to be leading to a backlash against a significant negative impact, visible conservation itself. In Baisipalli, at least in the short term. Key issues for instance, it was reported that at New Dhain (the resettled village) people had resorted to rearing include: poor initial governance of goats, which are taken out to graze the resettlement process (e.g. ab- in the forests. At all the PAs, hostil- sence of written Memorandum of ity against the PA authorities was Understanding with the villagers), palpable, leading to difficult working conflict with an existing settlement conditions for the staff. (Doobjhirna) over land, unsatisfacto- ry land preparation and water avail- Ironically, while local communities were ability for a year after relocation, being denied access to resources or and difficulty accessing authorities were being physically relocated, the and civil society groups for redress. government was giving out PA land for More recently, sincere attempts at commercial activities. This was very rehabilitation and livelihood genera- visible in the case of GHNP, where tion, mobilizing extra resources from about 1000 hectares (10 sq km) were district administration, are visible carved out of the PA, ostensibly to ben- on the part of the Satpura Reserve efit two tiny villages inside, but actu- authorities. ally to open up the area for the Parbati X Legal processes have been faulty Hydel project. Local people have suf- in all these cases. Settlement of fered from loss of income from herb customary resource access rights collection, grazing remains incomplete for communi- and agricultural ac- Ironically, while ties inside Baisipalli and Satkosia; tivities while alterna- local communities at GHNP, the settlement was based tive sources of liveli- on a 19th century report on forest were being hood were not made rights that hardly benefited cur- available to them. denied access to rently existing families. In the case Their health prob- resources or were of New Dhain, people have yet to get lems have actually being physically legal documents pertaining to the increased because land they have been allotted, due to of high levels of dust relocated, the restrictions imposed by the central and noise. Their government was government. crops and land have giving out PA land X Very few basic development re- been damaged with for commercial lated activities have been under- no compensation. taken within Baisipalli, Satkosia, and Their water sources activities. Satpura. Health-related problems have been disrupted. The influx of la- are serious in the area. Though bor put added pressure on the natural some initiatives were undertaken resources and threatened the valuable for the relocated village in Madhya bamboo forest and the Western Trago- Pradesh— for example roads were pan habitat. being constructed— this started more than a year after relocation. One positive point was that forest of- 108 15, July 2007  What ARE Conservation Human Rights, can undermine anyway? Human Rights... ficials across the four PAs were clearly concerned about the plight of the peo- ple within their jurisdiction. While no compensatory activities were visible in Baisipalli and Satkosia, officials did mention that they are exploring dif- One positive point ferent avenues like was that forest ecotourism to help the tribal communities, officials across and also that they the four PAs were had filed an appeal to clearly concerned the Supreme Court to allow NTFP collection about the plight of again. More concrete Picture 5. Over 30,000 trees were cut for the people within steps have been taken the rehabilitation of a village from Satpura their jurisdiction. by the GHNP au- Tiger Reserve, demonstrating the need to thorities, in terms of carry out impact assessments of the costs ecodevelopment activities that, albeit and benefits of relocation. inadequately, address livelihoods loss.31 (Courtesy Ashish Kothari) In Madhya Pradesh, according to the sought for wildlife protection, worsen- forest officials in charge of Dhain villag- ing the already marginalized existence ers’ rehabilitation, attempts are being of these communities, and in some made through forest department initia- cases turning a situation of free and tives to provide livelihood alternatives, relatively secure access to survival such as a sericulture project, which will resources into uncertain or prohibited hopefully assure a good income to the access. This mat- people in the future. The worst situa- tion by far is in the Orissa PAs.32 ter of great con- In some cases com- cerns has been mendable attempts made even worse Key issues by the passing of at ameliorating the From the case studies, and a general the judicial stric- situation have been reading of the situation in India, some ture restricting made. But these key issues emerge: access to NTFP. X Many communities living in areas remain inadequate X Denial of access targeted for wildlife conservation are to livelihood and compared to the living “on the margin”, with tenuous survival resourc- scale of deprivation. access to critical livelihood resources. es, even when This situation partly existed prior to a community is allowed to continue independence, and often continued living in its traditional place of resi- post-independence. Historical pro- dence, has directly lead to further cesses of state takeover of commons community impoverishment and in are one factor, but there are others, some cases destitution.33 such as state failure to deliver health, X In some cases commendable at- education and development inputs to tempts at ameliorating this situation “remote” areas. have been made. But these remain X Conservation policy and programmes inadequate compared to the scale of have had a significant negative im- deprivation. A recent focus on eco- pact on the socio-economic condition tourism to benefit communities has of communities living inside areas 15, July 2007 109 Conservation and Human Rights had some small-scale success, but in councils and assemblies (panchayats most places is insensitive to commu- and gram sabhas), and political and nity needs and rights, and to ecologi- administrative corruption. In the case cal sustainability requirements.34 of PAs, decentralized decision-making, X When communities get physically which could balance out the alienation displaced, even a relatively efficiently- and disempowerment caused by con- managed relocation process cannot servation policies, was and continuous make up for being up-rooted from a to be conspicuous by its absence. cultural way of living and way of being practiced for generations. These hith- The Way Ahead erto provided not only for livelihood, Legally-notified protected areas are but also for the cultural and spiritual certainly one effective way to conserve sustenance of these communities, ecosystems and wildlife. However, this based on a relationship with natural cannot be done without providing for resources that evolved over centu- the needs of ecosystem dependent ries. Livelihood, moreover, has been people. The imperatives of ecological based on historically-evolved custom- security and livelihood/food security ary rights and responsibilities. When have to be seen as two sides of the these are suddenly replaced by rela- same coin. For the former, it is critical tionships based on the modern con- to understand the biological require- cepts of state, law, judiciary, revenue, ments of ecosystems and species. finance, development, and so on, the For the latter, factors that sustain or change can become a traumatic ex- increase poverty (defined broadly as perience. Thus, those responsible for resource deprivation), or conversely relocations also need to factor in the sustain or increase livelihood security, issue of potential malaise and conflict must be understood with villages already in and around The imperatives of and addressed in resettlement sites. conservation plan- ecological security X Denial of access to resources often ning. This would and livelihood/food backfires on conservation itself. There also mean respect security have to be have been widespread reports from for traditional and PAs in India of people resorting to seen as two sides of customary rights of damaging activities, including illegal ecosystem-dwelling the same coin. timber felling and poaching. This is so communities, facilitating their ability because as people’s hostility towards to ensure a certain standard of digni- conservation measures increases, fied living in terms of entitlements like the potential for physical conflicts is secure livelihoods and employment, heightened, and people become less education facilities, health, access to cooperative, making it more difficult information, and so on. Finally, this for wildlife officials to work effectively. would also mean empowering people X Constitutional amendments and new by enabling their participation and laws regarding political decentraliza- involvement in conservation initiatives tion (1993 and 1996) have come and alternatives. Empowerment leads rather late (almost half a century to a sense of freedom and a control after Independence). The situation over one’s own destiny. Policy makers has been further aggravated by poor have to understand that unless and un- implementation, divisions created by til there is freedom from poverty, there politicization, continuation of caste will always be a poverty of freedom. system privileges within local village 110 15, July 2007  What ARE Conservation Human Rights, can undermine anyway? Human Rights... Box 1. Stop-press! Two latest laws that could democratize conservation In late 2006, two pieces of legislation have created the potential of democratizing forest and conservation management and providing greater benefits to local communities, but also some concerns about their impacts on conservation itself.35 The passage of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 at- tempts to reverse the historical marginalization of the tribal (indigenous) and other forest-dwell- ing people of India.36 The Act mandates the vesting of 14 kinds of rights over forest land and forest produce on two categories of communities: scheduled tribes, and “other traditional forest- dwellers” defined as those living in forests for at least three generations. The Act specifies that all rights in PAs need to be identified and established. It mandates a pro- cess for determining “critical wildlife habitats” inside PAs, and assessment of whether people’s activities within such habitats can be in consonance with conservation. If “irreversible damage” is established, communities can be relocated with their informed consent, and after ensuring the readiness of relocation and rehabilitation. Gram sabhas (village assemblies) have also been em- powered to protect wildlife and biodiversity, and to keep destructive activities out of the forests in which they are given rights. There are some serious concerns about the Act’s potential impact on conservation. In the context of PAs, for instance, it is not clear if the rights could over-ride the steps necessary to achieve conservation. Specific conservation responsibilities have not been placed on the rights-holders. The fact that ‘encroachments’ upto December 2005 can be legalized is already leading to incitement by politicians, in some areas, to encroach into forests further with the hope that they will be legalized. In some Indian states, such encroachment is a serious cause of deforestation. The second legislative measure of note is within the WLPA itself. In late 2006, the Wild Life (Amendment) Act was passed, setting up a National Tiger Conservation Authority, and speci- fying processes for notification and management of Tiger Reserves. It requires that “inviolate” areas need to be determined in a participatory manner, and that relocation from such areas needs to happen only with the informed consent of communities. Areas of concern pointed out by conservationists include the dropping of a number of provisions of the WLPA from being operative inside Tiger Reserves. As of late 2006, a legal challenge has been mounted by some conservation organizations against such provisions. Based on this understanding, the study X Moving from an ‘ecodevelopment’ makes a number of recommendations, approach towards Joint or Collabo- including: rative Protected Area Management, in which decision-making and ben- Addressing the lacunae efits are both shared.37 within current conservation X Regulating commercial use of re- policies and laws sources within PAs, and prohibiting large-scale diversion for develop- X Developing criteria for declaring ment projects. protected areas, assigning them a specific category and assessing X Ensuring due process of relocation dependence of local people on pro- and rehabilitation. This can make tected areas. use of new laws requiring informed consent and adequate preparation— X Identifying and establishing the the Scheduled Tribes and Other Tra- community rights, and settling them ditional Forest Dwellers (Recognition in PAs, through transparent and of Forest Rights) Act, 2006 and the participatory means. 15, July 2007 111 Conservation and Human Rights Wild Life (Amendment) Act 2006 ties, civil rights groups, and social (see Box 1 in this article). activists to exchange understanding X Implementing recommendations and knowledge about the impact of of existing national planning docu- policies (and amendments), proc- ments, such as the National Wildlife esses of displacement and rehabilita- Action Plan 2002-2016, and the tion, etc.. draft National Biodiversity Strategy X Right to assembly: They must be and Action Plan.38 free to meet without impediment X Implementing recommendations of and intimidation, e.g., they should international policy and treaties on be able to assemble without out- conservation and livelihoods, in par- side interference or the intimidating ticular the CBD Programme of Work presence of forest officials, vested on Protected Areas. political powers, etc. to discuss and decide about their own lives. X Right to say what they want with- out fear of persecution: They must be free to dissent vis-à-vis a policy directive entailing their forcible or coerced displacement or vis-à-vis an unsatisfactory or inadequate reha- bilitation. Appropriate mechanisms/ avenues of expression should be available. X Right to participation: This is a cru- cial and complex human right that is inextricably linked to fundamental democratic principles and that en- tails active and informed involve- ment in decision-making. As a World Bank document39 observes “The poor want desperately to have their voices heard, to make decisions and not always receive the law handed down from above. They are tired of being asked to participate in gov- ernmental projects with low or no Picture 6. Many villagers in the buffer zone of returns”. A human rights approach to Great Himalayan National Park have had to sell poverty requires active and informed off their livestock, since grazing in the Park was participation of the people and com- banned. (Courtesy Ashish Kothari) munities living within PAs. X Right to information: They must Ensuring that human rights are know the relevant facts about safeguarded schemes, compensation policies, ap- plication processes, etc. that affect People and communities living within their lives. PAs should enjoy human rights: X Right to a reasonable standard of X Right to association: They must be living and livelihood security: Com- free to organize without restriction mand over natural resources plays and associate with other communi- an important role in defining liveli- 112 15, July 2007  What ARE Conservation Human Rights, can undermine anyway? Human Rights... hoods and should be protected. 13 Quoted from “Fatwa raj is over”, Interview with Brinda Karat, CPI(M) leader and Member of the Rajya Sabha, Frontline, January 12, 2007 Treading an integrated conservation 14 Scheduled Tribes are tribal communities listed in a and livelihoods path is difficult, and schedule in the Constitution of India, for the pur- pose of being provided special rights and privileg- prone to errors of judgement. But in es; Scheduled Areas are those primarily inhabited countries like India, where wildlife by tribal communities; these are also prime “tiger and people live side by side in most of districts”; see for reference the Executive Sum- mary of the report of the Tiger Task Force http:// the landscape, it is the only path that projecttiger.nic.in/TTF2005/index.html). has a long-term hope of success. The 15 Prasad, 2007. sooner India moves in this direction, 16 Till the 1991 amendment to the Wild Life (Protec- the better it will be for both its wildlife tion) Act, 1972, a sanctuary could be notified with- out people’s rights being determined; subsequent- and its people. ly, they had to be identified and settled (allowed Ashish Kothari (ashishkothari@vsnl.com) has been with or extinguished), before the sanctuary could be Kalpavriksh— Environmental Action Group for the last 27 finally notified. In 2003, further amendments pro- years. He has also taught at the Indian Institute of Pub- vided for people to be given alternative arrange- lic Administration for a decade, and been on the Board ments for fuel, fodder and minor forest produce of Greenpeace International. He co-chairs the Strategic till the rights were settled. However, in many PAs, Direction on Governance, Equity and Livelihoods, of the rights still remain unrecorded or unsettled even IUCN— World Conservation Union and continues to partici- years after declaration. pate in several social and environmental movements. His 17 The Yellowstone National Park model of the United main areas of interest are environmental governance and States advocates a separation of wildlife from community-based natural resource management. people, is based on western notions of wilderness, Milind Wani (milindwani@yahoo.com) has been with Ka- and is known to have caused disruption for native lpavriksh— Environmental Action Group for the last 4 years. human populations even in the USA. His areas of interest are conservation, human rights, social 18 Kothari et.al., 1989; the 2005 report of the Ti- action and culture. ger Task Force set up by India’s Prime Minister, acknowledges that “The protection of the tiger is Notes inseparable from the protection of the forests it 1 We define poverty here as deprivation of resources roams in. But the protection of these forests is essential for survival and livelihood, including, itself inseparable from the fortunes of people who for communities living within/adjacent to natural in India, inhabit forest areas” (http://projecttiger. ecosystems, denial or lack of access to natural nic.in/TTF2005/index.html). resources. 19 Kothari et.al., 1996. 2 The dimensions of poverty are linked to certain 20 Kothari et. al., 1996 ‘freedoms’ that a person can enjoy or be denied. 21 Kothari et.al., 1989. Thus curtailment of certain ‘freedoms’, e.g., free- 22 The 1983 Eliciting public support for wildlife con- dom to exercise customary rights of access over servation — report of the task force, by a com- natural resources, can lead to impoverishment. mittee headed by Madhavrao Scindia, focuses on 3 Human well-being can be viewed as a set of inter- the dependence of rural people on forests. This related “functionings” that a person can “do or be”. report recommended development programmes The level of well-being will then depend on the and funds for villages located in the periphery of level of those “functionings” in areas of value to protected areas. However, this will be much more the person (OHCHR, 2004). relevant for villages located within protected areas 4 Quoted in OHCHR, 2004. pg. 7 where dependence on forest, aquatic and other 5 TPCG and Kalpavriksh, 2005. natural produce for economic and domestic subsis- tence is very substantial 6 Over 200 castes, as much as 6% of the total In- dian population, is engaged in pastoral nomadism 23 Kothari, 1999. with substantial dependence on natural ecosys- 24 The problem, of course, is that this is a potential tems ( Agarwal et. al., 1982.) threat warded off, whereas the actual harassment 7 Bajaj, 2001. due to conservation laws and often repressive bureaucracy is far more tangibly felt 8 Khare, 1998. 25 Forest villages were set up by the Forest Depart- 9 Gera, 2001. ment in the erstwhile colonial regime and after 10 FRLHT, 2001. Independence, as labor for forestry operations. 11 Kocherry, 2001. Very few rights were given to these people. Forest villages are under the control of the Forest Depart- 12 The term ‘indigenous’ is not officially used in India, ment, do not come under the Revenue Depart- though the peoples themselves use it; more com- ment, and are not entitled to many government monly used terms are ‘tribes’ or adivasi (“original schemes/programs that most villages in India can dwellers”). avail of. In Satkosia, one of these villages, Tarava, 15, July 2007 113 Conservation and Human Rights was established by the British in 1910 for com- 39 As cited in OHCHR from the series “Voices of the mercial forestry operations. To date, this has not Poor” published for the World Bank by Oxford Uni- been converted into a revenue village. Due to this, versity Press, 2000-2002. It is of course another it is deprived of the benefits of various government issue that the Bank itself has been frequently programmes like old age pension, widow pension, criticized for not following such an approach in its Anthyodaya Anna Yojana, or even domiciles cer- funding. tificates as they are under the sole jurisdiction of the Forest Department. There are recent reports of death due to malnutrition from this village (Barik, References 2006). Agarwal, A., R. Chopra, and S. Narain, The State of 26 1991 census. India’s Environment, 1982: A Citizen’s Report, Cen- tre for Science and Environment, New Delhi, 1982. 27 Pandey, 2003. Bajaj, M., The Impact of Globalization on the Forestry 28 This section is partialy based on http://project- Sector in India with Special Reference to Women’s tiger.nic.in/bori.htm Employment, Paper for National Commission on 29 As of June 2006, this was the plans Labour: Group on Women and Child Labour, New 30 It should be noted that not all of these are due to Delhi, 2001. the presence of the PA; many of these deprivations Barik, S., “Looking to get out of the ‘green jail’”. The exist in Indian villages outside PAs also. However, Hindu, 28 November, 2006. at least some instances were recounted of devel- Bhatt, S., Tourism in Protected Areas: A Viable Liveli- opment facilities being denied due to PA related hood Option?, Unpublished paper commissioned policies. for the UNESCO Small Grants Programme study by 31 However, the then Park Director Sanjeeva Pande, Kalpavriksh, Pune, 2006. responsible for many of the progressive efforts FRLHT, Trade Database 2001. Foundation for the made in the last few years at GHNP, acknowledged Revitalization of Local Health Traditions, Bangalore, the fact that conservation is not going to come 2001. through only economic empowerment, but that social and political empowerment of the communi- Pandey, S., Environmental Justice Study on Human- ties living in and around protected areas is also Animal Conflict in and around the Great Himalayan required. National Park, Himachal Pradesh. Submission made to Winrock International India, New Delhi, 2003. 32 There has been no response to our study from the Forest Department despite repeated reminders, Gera, P. , Women’s Role and Contribution to For- though initially, at the time of giving us official est-Based Livelihoods. Paper prepared for Human permission to visit the study sites, we were told Development Resource Centre, United Nations De- that we would require their permission in order to velopment Programme, New Delhi, 2001. publish our findings! Khare, A. , “Community-based conservation in India” in 33 Recent policy revisions by a number of donors Kothari, A., Anuradha, R.V., Pathak, N., and Taneja, have redefined “restricted access” to certain B. (eds.) Communities and Conservation. Natural Re- natural resources as a form of involuntary dis- source Management in South and Central Asia, Sage placement, even if the affected groups are not Publications, New Delhi, 1998. physically relocated. This revision would affect the Kocherry, T., Biodiversity And Communities that Live programmes of various multilateral banks as also on Subsistence, Submission made to the Thematic of the Global Environmental Facility (GEF) (Cernea Working Group on Livelihoods, NBSAP, National 2006). Fishworkers Forum, Thiruvananthapuram, 2001. 34 Bhatt, 2006. Kothari, A. and S. Singh, D. Variava, and P. Pande, 35 Both these took place towards the end of this Management of National Parks and Sanctuaries in study, hence have not been analyzed in detail in India: A Profile, Indian Institute of Public Adminis- relation to the case studies and empirical work tration, New Delhi, 1989. done under it. Kothari, A., N. Singh, and S. Suri, People and Protected 36 See a series of articles and an interview in the Areas: Towards participatory conservation in India, Frontline issue of January 12, 2007 (http://www. Sage Publications, New Delhi, 1996. flonnet.com/fl2326/index.htm). Kothari, A. “To Save the Sanctuaries”, Frontline, July 37 Lessons in this regard could be learnt from 30, 1999. examples such as Periyar Tiger Reserves where OHCHR, Human Rights and Poverty Reduction: A Con- some experiments in participatory conservation ceptual Framework, United Nations, New York and have been tried. Lessons could also be learnt from Geneva, 2004. local people’s efforts at conservation of wildlife, Prasad, Archana, “Survival at stake”, Frontline, Janu- or Community Conserved Areas (see http://www. ary 12, 2007. iucn.org/themes/ceesp/Wkg_grp/TILCEPA/ Rajalakshmi, T.K., “Fatwa raj is over”, Frontline, Janu- CCA%20India%20brochure.pdf). Considerable ary 12, 2007. documentation on the same is available with Kal- pavriksh. TPCG and Kalpavriks, Securing India’s Future: Final Technical Report of the National Biodiversity Strat- 38 As action plans, both the NBSAP and NWAP have so egy and Action Plan, Prepared by the NBSAP Techni- far not had major policy, legal, or on the ground im- cal and Policy Core Group, Kalpavriksh, Delhi/Pune, pact. This lacuna needs to be addressed immediately. 2005. 114 15, July 2007  What ARE Conservation Human Rights, can undermine anyway? Human Rights... Conservation’s engagement with human rights— “traction”, “slippage”, or avoidance? Janis Bristol Alcorn and Antoinette G. Royo Abstract. Human rights (HR) have become a smoking-gun issue threatening conservation’s public legitimacy and long-term funding. Globally there are rising frustrations that large conservation non-governmental organizations (NGOs) do not seem to be collaborating with civil society movements promoting democratization. They rather appear to associate closely with governments and other actors with poor HR records. HR abuses or allegations of abuse that arise in conservation contexts include violation of due process, massive forcible reset- tlements, destruction of property and farms, torture, and extrajudicial killings. In addition, conservation agents are increasingly perceived as HR ‘duty bearers’ that do not fulfil their responsibilities. Many biodiversity hotspots overlap with poverty hotspots where HR abuses occur, and in such areas conservation organizations have an excellent opportunity to act to- wards addressing such abuses. Their responsibilities are guided by international and domes- tic law, yet their record of action is uneven. In some local cases, conservation agencies have demonstrated ‘traction’ in supporting HR. Evidence of ‘slippage’ and avoidance in assuming HR responsibilities, however, suggest that the biodiversity conservation community has yet to mature towards a commitment to HR, which would require systematic changes at multiple levels. This paper places unspoken issues on the table and encourages their open discussion, hoping to promote the positive changes essential for sustainable conservation. We address the following questions: X Who are the duty-bearers in conservation? X Where do they engage in conservation? X What guidance exists to assist and encourage such duty-bearers to develop and implement a rights-based approach to their work? X What are some indicators of their engagement, or lack thereof, with HR? X What are illustrative examples of HR ‘traction’ and/or ‘slippage’ behaviour? X How and by whom can conservation actors’ HR engagement be monitored? C ritiques of conservation and pro- tected areas1 have raised global press society coalitions and rule of law to support long-term conservation. In many fora and conversations, these attention to questions about the legiti- concerns have been shared by conser- macy2 of protected areas created and vation fieldworkers, as well as by local managed in violation of human rights. NGOs, indigenous organizations, com- A recent global review of conservation munity representatives, and the donor work3 found widespread frustrations community.4 As a result of these per- that large conservation non-govern- ceptions, the international biodiversity mental organizations (NGOs) aren’t conservation agenda is losing ground joining civil society movements pro- with indigenous peoples (IP)5 and other moting democratization, but rather sectors of society in local and global work side by side unprogressive gov- arenas.6 ernments that function through rule of power. They do not appear to perceive Large conservation NGOs have oppor- or agree about the need to build civil tunities to influence decision-makers, 15, July 2007 115 Conservation and Human Rights because they are part of elite circles, new toy of donors, NGOs, and govern- with access to politicians and national ment agencies. At the same time, the authorities beyond the reach of rural outreach to the private sector would citizenry. Hence rural people and ad- be much more limited, thus losing new vocacy NGOs can view conservation financing options.”8 programs as choosing to be complicit with the HR violations arising from These reactions are interpreted by crit- government actions. They can point to ics as misguided efforts of conserva- the armed “nature keeping forces” that tionists to avoid legal and moral re- occupy protected areas7 and a long his- sponsibilities while seeking to maintain tory of other cases that together reflect and expand funding for conservation. a general lack of concern for HR. Human rights and Some conservation analysts cherry-pick responsibilities good cases to defend a positive assess- Human rights are universal and indivis- ment of conservation’s HR record. Oth- ible, whether or not governments ac- ers say, "It’s a mixed bag", as though knowledge these rights. The indivisible supporting human rights in some cases bundle of human rights includes civil, is good enough. Others respond that economic, cultural, political, property, conservation has nothing to do with and environmental rights. Individu- human rights. Some international con- als and groups holding the rights are servation NGOs are even seeking to ‘rights-holders’, and those with whom counter these charges of HR neglect by they interact are ‘duty-bearers’ carry- defining the existence of biodiversity as ing obligations to act to protect human a human right of humanity. This would rights directly and to create the condi- shift the frame of engagement from tions for other duty-bearers to fulfil questions about violations of the rights their responsibilities, even in the ab- of individuals and communities to a sence of national legislation or regula- frame defending the legitimacy of con- tions protecting human rights. Accord- Human rights servation NGOs im- pinging on other hu- ing to international law, human rights are only protected man rights in order cannot be negated by states, nor can states negate duty-bearers´ responsi- when both rights- to achieve this goal. bilities to uphold human rights.9 bearers and duty- This apparent atti- tude of putting sec- Duty-bearers can fulfil their obliga- bearers work toral/organizational tions by engaging in actions that as- together nurturing interests before hu- sist right-bearers to demand and fulfil a positive feedback man rights extends their rights. Rights-bearers have the circle to consolidate beyond protected right and obligation to demand that areas. For example, duty-bearers fulfil their duties. Human norms and public a recent analysis of rights are only protected when both accountability that payments for envi- rights-bearers and duty-bearers work in turn support a ronmental services together to create and use systems healthy civil society. (PES) states: “If we impose a lot of that prevent and/or redress violations, nurturing a positive feedback circle to side objectives on consolidate norms and public account- PES (poverty alleviation, gender, indig- ability that in turn support a healthy enous people, human rights, and other civil society. Avoidance of duty-bearer noble causes), PES would become the responsibilities has negative effects on 116 15, July 2007  What ARE Conservation Human Rights, can undermine anyway? Human Rights... human rights. Duty bearers´ behav- human rights commitments, building iour, directly and indirectly, determines on the Caux Round Table Principles for whether human rights are respected Business.13 or abused. Rights are violated as much by failure to address past wrongs as by In the spirit of opening a discussion to ongoing actions. Hence, duty-bearers help conservation actors assess and carry a major obligation to redress past guide their performance as HR duty- wrongs. bearers, we put the following questions on the table: An example of the complementary X Who are the duty-bearers in conser- nature: rights-holders require access to vation? legal and judicial processes to exercise X Where do they engage in conserva- their right to demand remedies; duty- tion? bearers, in turn, are responsible to X What guidance exists to assist and ensure that rights-bearers have access encourage such duty-bearers to de- to remedy. Actions taken by NGOs, civil velop and implement a rights-based society, and the media to implement approach to their work? this duty include monitoring courts and X What are some indicators of their en- filing relevant cases. Few human rights gagement, or lack thereof, with HR? NGOs10 understand the issues in rural X What are illustrative examples of HR settings, and this enhances the duty- engagement with ‘traction’ and/or bearer obligations carried by conserva- ‘slippage’? tion NGOs, religion-based groups,11 and donors, who operate in remote areas X How and by whom can conservation far from the watchful eye of the press actors’ HR engagement be moni- and other observers. tored? Given the growing awareness of con- In our replies to these questions, we servation’s human rights obligations, use specific illustrative cases.14 These tools for assess- are but a few examples taken from our It could be useful for ing HR engage- experience and the existing literature. They are not necessarily the best or conservation NGOs ment are sorely worst possible cases, but illustrate how to develop their own needed. They conservation actors´ engagement with should be included ‘conservation code in any protocol to HR has been inconsistent over time and of conduct’ that certify protected across countries. The intention is not to point a finger at particular international incorporates human areas and used to NGOs or places, but to ground the rights commitments. evaluate poten- tial collaborators. discussion of the need for new institu- Sanderson12 suggested that conserva- tional guidance to achieve consistently tion NGOs should assist the private positive performance. sector to develop a ‘conservation code of conduct’ to expand ethical guid- Who are the duty-bearers in ance to incorporate conservation into conservation? existing codes of conduct that include The sheer size and global distribution social justice and human rights. In this of areas under conservation agree- vein, it could be useful for conservation ments puts a significant burden of NGOs to develop their own ‘conserva- responsibilities on international conser- tion code of conduct’ that incorporates vation programs. Twelve percent of the 15, July 2007 117 Conservation and Human Rights Earth is under protected areas (20 mil- servation actors to influence policy in lion square kilometres) including 40% the poor countries where they operate. of rural lands in some African nations,15 Globally an esti- and more areas are being declared.16 mated $4.5 billion In 2002, three The national governments with sover- per year, ($45 billion major conservation eignty in these places are among the over the next ten NGOs (CI, TNC, human rights duty-bearers, but they years), will be used are not the only ones. Areas of high to finance the glo- WWF) had annual biodiversity concern are largely in na- bal protected area revenues of over tions with unclear property rights, weak system covering $1.28 billion. They judicial systems, and governments with 15% of terrestrial uneven human rights records. Conser- and 30% of marine spent $487 million vationists are among the few actors ecosystems.18 Na- outside the US, linking capital cities and remote areas, tional parks’ budgets more than the GEF. and, as duty-bearers, they need to run around $1.3-2.6 act on human rights responsibilities in billion. Foreign aid contributes some these situations. $350-420 million to conservation in developing countries.19 Of the estimat- International nongovernmental or- ed $893/square kilometre/year—which ganizations (NGOs) can be particu- is the average cost of managing pro- larly influential as they bring signifi- tected areas— foreign assistance from cant resources. In countries that maintain high human The sheer size and 2002, three ma- rights standards contributes approxi- global distribu- jor conservation mately $600/square kilometre/year. tion of areas under NGOs (CI, TNC, WWF) had an- In this way, foreign assistance donors transfer significant financial weight, conservation agree- nual revenues of which indeed could be used to encour- ments puts a sig- over $1.28 billion. age implementing agencies, NGOs, nificant burden of They spent $487 and host governments to honor their million outside the HR duty bearer responsibilities in con- responsibilities on US, more than servation contexts. international con- the GEF.17 Their servation programs. funding partners Where do duty-bearers engage include bilaterals in conservation? and multilaterals, industries, private Conservation is a multifaceted endeav- donors, trust funds and other finan- our, offering a range of settings for cial mechanisms. The Conservation exercising duty-bearer responsibilities. Finance Alliance (CFA), established in Governments and conservation NGOs 2002, includes UNEP, UNDP, UNESCO, have responsibilities in site-specific USAID, Danida, GTZ, major US-based protected areas (parks, reserves, etc.), conservation NGOs, and private firms. in design and management of conser- The political influence of the conser- vation initiatives, in protected areas vation organizations is reflected in the policy, debt-for-nature swaps and trust International Conservation Caucus funds, certification of forestry products, Foundation (ICCF) that recommends conservation concessions and private strategic direction to members of the reserves, conservation agreements/ US Congress, for example. contracts with local communities, land use zoning, corridor and landscape The high level of funding positions con- management, ecotourism, wildlife 118 15, July 2007  What ARE Conservation Human Rights, can undermine anyway? Human Rights... management, environmental educa- channels with policy-makers. The Con- tion, collaboration with industry, policy stitutions and laws have been reformed development, conservation ‘offsets,’ in the past decade in many countries,26 safari hunting, and payments for envi- yet conservation has lagged in reform- ronmental services. Partnerships with ing its programs to fit the new national industry are a cross-cutting theme. For settings, as was recently highlighted in example, protected areas systems may Bolivia.27 be national, private, or parastatal with industries raising funds through luxury Donors who fund conservation activi- hotels and wildlife sales. Some con- ties are another key duty-bearer. Do- servation NGOs implement protected nors have significant policy and project areas directly, and in some cases, pro- oversight opportunities in which to vide armed guards to protect parks.20 carry out their responsibilities to shape All these situations put significant HR the HR engagement of conservation.28 responsibilities on conservation NGOs. A recent commentary in Philanthropy News Digest, summarizes the basis for Human rights abuses and allegations growing donor concern: “Unfortunately, which arise in conservation contexts conservationists and environmental include violation of due process, mas- NGOs routinely carve protected areas sive forcible resettlements, destruction out of indigenous land ... As their lands of property and farms, torture, extra- are stripped, Indigenous Peoples´s judicial killings and other violations of sources of food, trade and traditional social, cultural, political and economic medicine are taken away and their very rights. Rural poor bear a disproportion- livelihoods threatened, putting them at ate share of conservation costs,21 and increased risk of poverty, disease, so- landscape approaches have extended cial unrest, and, in some cases, cultural conservation’s im- extinction. ... If (donors) were aware … as biodiversity pacts far beyond that .. conservation efforts are ... driv- hotspots overlap with protected area ing Indigenous cultures to extinction, poverty hotspots borders. Nineteen they would demand changes in conser- of twenty-five bio- vation programs.”29 and governments diversity hotspots with high corruption include 1.1 bil- What guidance exists to assist indices, conservation lion people who and encourage duty-bearers to actors have major live on less than develop and implement a rights- $1 per day, and based approach to their work? opportunities to sixteen of twenty- act on their HR five biodiversity Human rights must be addressed as an integrated whole, as they are indi- responsibilities. hotspots include visible and interdependent. To prop- areas where 20% erly support human rights, the overall of the population is malnourished.22 strategies and goals must be modified Human rights violations are common to effectively assume the organisation’s in remote impoverished areas23 and, responsibilities. Duty-bearers cannot as biodiversity hotspots overlap with simply add human rights as another poverty hotspots24 and governments objective among the others, but rath- with high corruption indices,25 conser- er need to incorporate this objective vation actors have major opportunities across the board as a minimum stand- to act on their HR responsibilities, for ard for all actions. instance through their communication 15, July 2007 119 Conservation and Human Rights Given the need for duty-bearers to duty-bearers’ recourse to arbitration as take an integrated approach, the Unit- prescribed in each particular conven- ed Nations has mandated that human tion.34 Rights holders and duty bearers rights responsibilities be mainstreamed ideally rely on national law that pro- into all UN programs through “rights- vides mechanisms for enforcement, if based approaches.” such law exists. International Labour Organization (ILO) Convention No. “The human rights based approach 169 Concerning Indigenous and Tribal (HRBA) is premised on the under- Peoples in Independent Countries35 is standing that human rights prin- of particular relevance for conservation. ciples guide all programming in all phases of the programming process, Soft law lies between policy36 and hard including assessment and analysis, law. Soft law provides ethical guidance program planning and design, imple- principles but does not have enforce- mentation, monitoring and evaluation. ment mechanisms. It emerges from These principles include universality meetings sponsored under interna- and inalienability, indivisibility, interde- tional auspices, and serves as a moral pendence and inter-relatedness, non- barometer and emerging global con- discrimination and equality; participa- sensus on what is legitimate and what tion and inclusion; accountability and is not. Soft law often foreshadows the rule of law.”30 development of hard international law on the subject. Typical of relevant soft Major development NGOs, such as law are “Declarations”.37 In addition, CARE, OXFAM, and Save the Chil- expert bodies as well as committees dren, have embraced rights-based associated with the hard law conven- approaches, as described in other tions also create soft law. An expert articles in this volume, and offer ex- seminar convened by the Office of amples of how systemic, institutional the High Commissioner for Human change can be catalyzed.31 Rights38 recently gave the expert rec- ommendation: HRs are defined in international con- “Experts call upon States to address ventions and declarations, and in na- inconsistencies in their national laws, tional Constitutions.32 Key rights in- recognizing indigenous peoples’ rights clude the right to free speech, rights over their lands and resources are not to property, freedom from persecution, overridden or extinguished by other freedom to make a living, freedom of legislation, in particular in relation to association, right to self-determination, extractive industries, natural resource and the right to freedom from harm. use, and the creation of ‘protected areas.’ Experts also call upon States Duty-bearer actions are mandated and to ensure that their national laws and governed by international hard and policies… are not discriminatory or soft law. International hard law33 in- inconsistent with international human dicates a broad global consensus that rights laws and standards.” affects non-signatories and provides a practical, ethical guide to encourage There is no broad policy guidance other duty-bearers (including states) designed specifically for conservation’s to implement mechanisms for guar- engagement as a human rights duty- anteeing human rights. International bearer.39 law is used through rights-holders’ and 120 15, July 2007  What ARE Conservation Human Rights, can undermine anyway? Human Rights... Are there indicators of duty- a potential red flag; programs linking bearers avoiding engagement? conservation and poverty eradication Red flags indicating avoidance arise generally avoid rights issues and in when duty-bearers: the end may fail in both aims, because they avoid addressing root causes and X say that they do not concern them- dimensions of pov- selves with human rights because [The] rise in poverty erty and biodiver- they are not human rights organiza- sity loss beyond in- eradication programs tions; come. While a more is a potential red X fail to point out gaps in addressing complete assess- basic due process rights in conserva- ment of the long- flag; [as] programs tion policies and laws; linking conservation term conservation X frame rights issues as if they were and HR implications and poverty eradica- technical and management issues; of linking conser- X speak of human rights issues in tion generally avoid vation to poverty terms of ‘social trade-offs’ as though eradication is need- rights issues [they] human rights have a relative and ed before making avoid addressing the tradeable value; any conclusions, it root causes and di- X use terms and processes that are is evident that this rights-neutral, such as focusing on mensions of poverty linkage has contrib- stakeholders40 instead of ‘rights- uted to weakening and biodiversity loss holders’; of rights in those beyond income. X give awards and otherwise enhance cases where pov- the legitimacy of government agen- erty alleviation actions have reduced cies or private industry accused of people to co-managers or targets for violating human rights; income replacement instead of recog- X rely on inserting Free Prior Informed nizing them as property owners.42 Consent as a fix-all in key docu- ments without investing resources in Are there illustrative examples its application in key processes, and of HR ‘traction’ and ‘slippage’? without addressing larger issues in Duty-bearers are obligated to carry out the system itself; their responsibilities in difficult circum- X pass implementation work to local stances, where forward movement partners who do not comply with HR can be slow even when ‘traction’ is standards; achieved. It is best practice to honestly X refuse to forge new patterns in new monitor and evaluate ongoing conser- protected areas instead of repeating vation work in order to improve per- HR violating processes of the past; formance and achieve objectives. and/or otherwise X directly violate human rights or This section covers conservation’s en- stand silent while their collaborators gagement with various pieces of the in- violate human rights. tegrated whole for which duty-bearers are responsible. Eleven categories of In addition, recent trends in foreign conservation activity have been taken assistance for conservation, as re- as headings to represent the complex- ported by the CBD Secretariat, show ity and breadth of conservation’s reach; an increased focus on sustainable use these categories are not mutually and equitable benefit sharing.41 This exclusive nor exhaustive, but rather rise in poverty eradication programs is overlap and inter-relate. Their order of 15, July 2007 121 Conservation and Human Rights presentation should not be interpreted crossing the park to manage indigenous to reflect any meaningful order or hier- territory historically claimed by Ayor- archy among them. eos, Chiquitanos, and Guarani, who provide park guards (see Picture 1). Under each of the eleven headings, rather than make a judgement of suc- cess or failure, we offer illustrative ex- amples of “traction” (where good effort is being made toward HR compliance and assumption of duty-bearer obliga- tions) and “slippage” (where obliga- tions are not being met through inac- tion or false action).43 The mixed record of slippage and trac- tion across the board in international conservation NGOs and their private sector partners (e.g, The International Council on Mining and Metals noted Picture 1. Park guards of co-managed Kaa below) is reason for concern, because Iya National Park discuss an archeological in today´s interconnected world, global site in the Chaco thorn forest near Isoso, Bolivia. The park guards are hired from duty-bearers´ obligations are to en- the TURUBO Chiquitano, Santa Terecita gage consistently across the whole. Ayoreo, and Isoso Guarani indigenous communities bordering the park. 1. Protected Areas— resettlement (Courtesy Janis Bristol Alcorn) and restriction of access Protected areas are the keystone of Slippage. Conservation’s poor duty- conservation work, and a key area of bearer performance can be measured HR concern. Policy refoms in protected by the number of conservation refu- areas management can encourage gees. People who are forcibly reset- but do not guarantee change on the tled suffer multiple stresses and psy- ground. chological trauma, cultural disruption, suicides, loss of access to livelihood Traction. Co-management instead of resources and property, and impover- resettlement is a step toward improv- ishment— clear violations of human ing conservation’s engagement. Some rights conventions. Indigenous peoples contend that co-management is impos- have suffered the brunt of conservation sible given the power relations differ- impacts, but millions who do not iden- ence,44 yet this engagement can offer tify themselves as “indigenous” have a significant arena for systemic change also been affected. In this context, it is in power relations if the duty-bearer unproductive to focus solely on indig- assumes their responsibilities.45 Kaa enous rights as much as it is wrong to Iya National Park in Bolivia offers an ignore indigenous rights where they example of co-management where the are claimed.46 indigenous Guarani government (CABI) collaborates with the Wildlife Conser- Estimates have placed the global vation Society (WCS) and the national number of conservation refugees at parks agency SERNAP, using funds from 130 million.47 If the people currently a trust fund endowed by a gas pipeline “illegally” resident inside protected 122 15, July 2007  What ARE Conservation Human Rights, can undermine anyway? Human Rights... areas or using protected area resources an obvious opening for improving con- were evicted or had their resource ac- servation’s image and engagement. cess restricted, the potential number of negatively affected people would run 2. Recognition of customary rights into the hundreds of millions. Property and other customary rights are critical human rights considerations In Africa, the situation is best-docu- in conservation activities. Tenure is a mented: 600,000 refugees in Chad;48 relationship between/among people 100,000 in Kenya and Tanzania in the regarding their access to natural re- past 30 years;49 120,000 (5% of the sources. It comprises a bundle of rights population) displaced since 1990 and and responsibilities, and may include an additional 170,000 facing displace- symbolic rights, rights of direct and ment in Nigeria, Gabon, Cameroon, indirect use, economic gain, control, Republic of Congo, Equatorial Guinea, and residual rights.56 Property rights and Central African Republic— being bundles are also sometimes classed as moved into lands already occupied rights of exclusion, access, manage- …none of the major and managed by50 ment, and alienation.57 250,000 people; conservation NGOs and 30,000 forced Customary rights, recognized in many has a policy on from Kibale For- Constitutions, include grazing rights, resettlement, an est Reserve and rights to sacred places, partitioned obvious opening Game Corridor in Uganda.51 In addi- rights to areas over the year, rights to forests, rights to govern according to for improving tion, an unidenti- customary laws, as well as land rights. conservation’s image fied number of lo- The majority of rural Africans hold land and engagement. cal and indigenous under customary rights.58 Customary people have been rights systems, present in many high removed from Central Kalahari Game diversity areas, do not mean that all is Reserve, Chobe National Park, Etosha communal, but rather they include indi- National Park, Moremi Game Reserve, vidual and group rights59 that should be Tsodilo Hillls World Heritage Site, West respected by duty-bearers. Caprivi Game Park, Wankie National Park, and Gemsbok National Park.52 In Regardless of a national government’s protected areas in Gabon, Cameroon, disregard for local and communal prop- and DRC, communities have lost access erty rights, conservation organizations and control over their traditional forests have obligations to fairly assess and (valued at $1.4 billion) and lost income support local rights in areas demar- opportunities of $21 million per year.53 cated as protected areas. Customary In the case of GEF-funded protected rights are part of indigenous territorial area projects, 65% have impoverished rights (which include rights to govern people with no evidence of conser- themselves, etc.,) but in situations vation benefits. More severe human where territorial rights are not recog- rights impacts are expected over the nized, engaging in recognition of cus- next six years54 if protected area estab- tomary rights is a good move forward. lishment procedures are not changed. Despite the seriousness of the prob- Traction. Community Conserved Areas lem, as illustrated by the above African (CCAs) have been proposed as one data, none of the major conservation among four main "governance types"60 NGOs has a policy on resettlement,55 in recent IUCN documents (Guidelines 15, July 2007 123 Conservation and Human Rights 11) and in the CBD Programme of Work territories and management decisions, on Protected Areas. Expanded accept- and protecting them from forced reset- ance of the CCA governance type could tlement outside tiger reserves.63 The increase recognition of communities´ central Tiger Conservation Authority customary rights to access and manage will have representation from Tribal Af- their resources, and provide greater fairs authorities. support for those reserves in nations that already recognize customary rights Slippage. Conservation organizations´ to collective management of commu- purchase of state or private lands that nity forests and biodiversity reserves, were established by ignoring or extin- e.g., Bolivia, Canada, Colombia, Mexico, guishing customary rights, is an exam- Papua New Guinea, and Namibia. Indig- ple of bad faith slippage by avoidance enous peoples are recognized to have of HR obligations. The buyer ends up ¨time immemorial¨ rights over pro- with a title and ownership rights while tected areas, under the National Inte- the indigenous and other rural com- grated Protected Areas Systems Law of munities with customary rights have the Philippines.61 The many programs no formal title and are forced off their supporting community rights to wildlife lands as squatters. The Mapuche in in Eastern and Southern Africa are also Chile64 and Argentina,65 and Mbyaa illustrative of traction in supporting cus- Guarani in Paraguay66 are among those tomary rights (see Picture 2). who have faced this insidious form of forced resettlement. In the case of San Rafael National Park in Paraguay (see Picture 3), nei- ther land purchases67 nor a bilateral debt-swap addressed human rights violations and obligations. Local com- munities protested the local vigilante landowners NGO´s cutting of their traditional forests after they been taken over under the NGOs management plan in 2002, and conflict ensued when the NGOs´ armed guards responded. Picture 2. Ngarambe village near the Rufigi River bordering the Selous Game Another form of related slippage Reserve in Tanzania participates in a around property rights is seen where pilot program that recognizes their rights debt swaps are used to purchase lands to forest and wildlife. They sell hunting that are claimed by peasants and indig- licenses to safari tourists, manage and enous peoples (including uncontacted butcher wildlife for their own consump- people), as in the case of San Rafael tion, and protect their forests through a National Park68 in Paraguay. In an ideal transparent governance program faciliated scenario, the NGO facilitating land pur- by WWF. (Courtesy Janis Bristol Alcorn) chase,69 or the donor behind the debt In India,62 in 2006, Parliament passed swap, investigates the tenurial situation a Wildlife Act which gives new powers prior to making any commitment and to local governments and tribals (in- chooses not to disenfranchise the indig- stead of central government authority), enous and local people of their human recognizing tribal people’s rights to rights by purchasing lands in conflict, 124 15, July 2007  What ARE Conservation Human Rights, can undermine anyway? Human Rights... but rather seeks to support a solution Their agreement with the government that recognizes local rights-holders. may be read as requiring the govern- ment to displace people from Nech Sar before the NGO took over that park. Their actions are threatening the Mursi, Dizi, Suri, Me’en, Nyangatom and other tribal peoples who have lived, farmed and sustainably pastured their animals in the Omo River valley for centuries. African Parks Foundation and their international funders have not yet as- sumed their duty-bearer responsibilities by taking advantage of opportunities to forge new collaborative patterns for conservation. International HR activists Picture 3. San Rafael National Park in are lobbying to encourage APF´s for- Paraguay is home to uncontacted Mbya eign funders to require APF to assume Guarani, yet conservationists have not their HR responsibilities. addressed their rights, nor the rights of Mbya Guarani and other communities Due to the significant overlap between around the park, in land purchases from indigenous territories and areas of high private international banks to consolidate biodiversity,71 IP are especially vulner- the park. Vigilante private landowners able to having their special and prior formed an NGO with armed private guards (in green hats) to assert control in col- rights violated by conservation. As a laboration with TNC, WWF, Guyra (Birdlife result of their experiences with con- International local counterpart) and oth- servation, IP increasingly view con- ers. (Courtesy Janis Bristol Alcorn) servation as the major threat to their survival and territories.72 The problems 3. Indigenous territories and divisions between the two are deep and longstanding. IPs have sometimes Traction: In Bolivia, Brazil, Colombia, described conservation as "ecofas- and Panama, large indigenous territo- cist." Conservation documents refer to ries are recognized and carry out their indigenous peoples as local “popula- own conservation activities with techni- tions” “inhabiting” protected areas, cal assistance from conservation or- rather than using terms that recognize ganizations or technicians. Indigenous their territorial rights and their rights Protected Areas (IPA) have been en- to negotiate collaboration. They use couraged in Australia since 1996, under other terms that prejudice against the federal Environment Protection and good relationships, e.g., rural people Biodiversity Conservation Act. In this “survive” by farming and “poaching” 73 latter case, aboriginal people retain rather than ¨derive their livelhoods by usage rights, and the Commonwealth farming and hunting¨. Human rights minister negotiates conservation agree- issues are also evident when conser- ments with them. vation organizations take insufficient action to protect endangered peoples Slippage: In Ethiopia, African Parks and “uncontacted” peoples while do- Foundation has contracted with the ing conservation work in their territory Ethiopian government to manage two or declaring protected areas over their parks— Nech Sar and Omo, and is not territories.74 This division between IPs following ICCP and CERD guidance.70 15, July 2007 125 Conservation and Human Rights Karen in Thung Yai –Huay Kha Khaeng reserve. They fought narrow restric- tions implemented under the aegis of a World Heritage Ssite designation that did not acknowledge indigenous rights, and they struggled against other con- servation NGOs´ efforts and coercive pressures to remove the Karen from their territory despite political risks to themselves, opened venues for dia- logue and learning, and worked with the Karen to support their traditional cultural practices and to represent Picture 4. Today pastoralist Mursi, Nyan- themselves to Thai government and gatom, Surma, Bodi, and other peoples international agencies. along the Omo River in Ethiopia are visited by international tourists seeking Over the past ten years, Indonesia’s “the last authentic tribal experience in the civil society organizations have taken world,” where they can enjoy interactions advantage of post-Suharto dictator- and taking photos like this one, but APF´s ship era openings to push the envelope new rapid effort to consolidate Omo Na- of reform, working with conservation tional Park and introduce rhinos on tribal lands does not fully recognize their human groups like WWF Indonesia (Sahul of- rights, and threatens these pastoralists´ fice, Lorentz National Park), Birdlife access to traditional territories and their Indonesia (in Sumba’s Laiwangi Wan- way of life. gameti National Park) as well as with (Courtesy Laurie Hughes Church) park management authorities of Lore and conservation is growing, despite Lindu National Park in Central Sulawesi, the glossy public relations efforts of Palu, Tangkoko Nature Reserve in North some international conservation NGOs Sulawesi, and Meru Betiri National Park to paint a cozy picture of collaboration. in East Java, to negotiate recognition of This is particularly counterproductive community-managed zones and village for conservation success as at least conservation initiatives as part of park 80% of the world´s high biodiversity management planning.75 areas are home to IPs. Slippage. A global evaluation of two 4. Protected Areas implementation hundred protected areas recently noted: “One depressingly consistent This is the heart of conservation ac- problem is a failure to manage rela- tion, and hence it is the area with the tions with people. Problems are evi- greatest slippage and the area with the dent in terms of effectively channelling greatest ground for traction. A few il- the input of local communities and lustrative examples show the range of indigenous peoples and securing their traction and slippage. voice and participation in manage- ment decisions. … In spite of all this, Traction. Starting in the early 1990s, respondents identified work with com- Wildlife Fund Thailand collaborated with munities among the top critical man- other local NGOs and universities to agement activities.”76 prevent resettlement and resource re- strictions by documenting the impacts Park guards with "shoot to kill" orders and resource management practices of 126 15, July 2007  What ARE Conservation Human Rights, can undermine anyway? Human Rights... are involved in extrajudicial killings. In been promoted by TNC,81 WCS, and some African countries, this is com- their local implementing organizations. mon; but this practice recently ex- The area is on a trajectory to become panded to Indonesia where it met with a binational park that covers Ayoreo public outcry.77 territory in Bolivia and Paraguay, with- out recognizing Ayoreo territorial and Many protected areas lie in zones of human rights. A civil conflict and war, and it is easier to World Conservation Transboundary lose sight of HR responsibilities in zones Congress resolu- protected areas offer of long-term armed conflict. When tion encouraged 82 the opportunity to international conservation NGOs seek action on this use the country with funds to arm helicopter gunships to human rights con- herd refugees out of parks, or arm one cern, but this issue highest common faction to kill others who are inside a has not yet been denominator park in Congo, conservation has lost its incorporated into tradition of way as a human rights duty-bearer.78 published plans recognizing human of WCS and TNC, Slippage. Transboundary protected financed by USAID. rights instead of areas offer the opportunity to use the Ayoreos who live in lowest as the point of country with highest common denomi- Paraguayan soci- departure. nator tradition of recognizing human ety have formed a rights instead of lowest as the point federation, yet the international NGOs of departure. In the GLT (Kruger and have not actively engaged them. Hu- Limpopo) between Mozambique and man rights NGOs are actively agitating South Africa, the Makulele of Kruger, for conservationists to support HR in who recently had their land rights re- this Paraguayan case. In Bolivia (see stored, were excluded from bi-national above), WCS actively worked with the park management meetings until they Bolivian government to establish the asserted their own rights.79 On the neighboring, co-managed Kaa Iya park Limpopo side, people are facing reset- with full recognition of IP rights and tlements— hence the lowest common acknowledging the presence of the un- denominator was used in the binational contacted bands of Ayoreode protected situation. The joint enforcement patrols inside the park, which would seem to for enforcement in TNS (Cameroon, offer a good base from which to es- Congo, CAR) and TRIDOM, follow the tablish a binational co-managed park, norms of Congo, replicating patterns of recognizing Ayoreo territory. Also in human rights violations instead of rais- Bolivia, TNC and its local counterparts ing standards.80 have supported private reserves owned by indigenous communities. However, In Paraguay, Ayoreos´ indigenous ter- when conservation NGOs and interna- ritories, including settled and uncon- tional donors do not take the opportu- tacted Ayoreos (Photo 5), lie within a nity to apply their positive approach in recently declared, 330 square mile, other countries to perform their duty UNESCO Biosphere Reserve covering bearer responsibilities in Paraguay, it Defensores del Chaco National Park, raises significant questions about insti- Medanos National Park, and the Cerro tutional commitments. Cabrera-Timane National Park Reserve in Paraguay, and Bolivia's vast Kaa Iya 5. National policy engagement National Park— an initiative that has The IUCN leverages considerable in- 15, July 2007 127 Conservation and Human Rights Traction. In Cameroon, NGOs promoted new procedures with Free Prior and Informed Consent (FPIC) for devel- oping and approving protected areas management plans.83 In Brazil, WWF incorporated indigenous territories and extractive reserves, together with pro- tected areas, into a USAID conservation project with national policy engage- ment, and won an award for exemplary collaborative governance.84 The Indone- sian Forestry Ministry, working with In- donesian civil society and conservation organizations incorporated community participation and empowerment in its recent revisions of protected area and Picture 5. Uncontacted Ayoreo are recog- nature reserve regulation.85 nized as living within a UNESCO Biosphere Reserve, yet their rights have not been Slippage. Slippage often occurs addressed in development of the pro- around conflating "stakeholder" with tected area, nor in the management plans "rights holder," and substituting “par- drawn up by WCS, TNC, and collaborators ticipation” for “decision-making”. in 2006. Eighteen uncontacted (voluntar- Many conservation agency documents ily isolated) Ayoreo were reported in a (including IUCN’s new governance Paraguayan newspaper, in 2004, as com- ing out of this forest to request assistance types and proposed principles)86 and from Ayoreo in Campo Loro, but contact methodologies for participation in was initiated by missionized Ayoreo. protected areas and other conserva- (Courtesy Janis Bristol Alcorn) tion activities frame the issues/actions in terms of stakeholders as opposed fluence in identifying what are consid- to rights-holders, ignoring the differ- ered best practices through the World ent stakeholders´ different rights and Parks Congress (WPC) which gives relative levels of marginalization/pow- civil society input and the World Con- er to assert rights. servation Congress (WCC) of govern- ments and NGO members of IUCN. When conservation organizations The combination of IUCN’s six Protect- lobby national Presidents to urgently ed Area categories and four govern- declare new protected areas in con- ance types serve as general recipes flicted zones without considering the and optional menus, for national gov- prior claims of indigenous peoples in ernments— each of which has its own the area, as occurred for example, particular PA system and laws govern- in 2001, when Conservation Interna- ing it in accord with each country’s tional and Field Museum offered fund- unique historical, cultural and politi- ing and lobbied for outgoing Peruvian cal factors. Conservation NGOs have President Paniagua´s rapid signature long assisted national governments declaring Cordillera Azul National to write laws and policies, which ob- Park, disregarding an Indigenous ligates them as a HR duty-bearer to Federation´s prior submission of a incorporate HR concerns into these claim for an uncontacted peoples´ re- policies and laws. serve in the area, their actions support 128 15, July 2007  What ARE Conservation Human Rights, can undermine anyway? Human Rights... a national executive policy of bypass- lished for uncontacted peoples, and ing democratic processes. It seems then selling those Private sector that rather than reflect on the serious- logs as certi- ness of choices made in the face of fied.88 Lack of partnerships, including such high-level opportunities to meet, significant action companies with or fail to meet, duty-bearer obligations on this problem negative human and collaborate with civil society to is an instance rights records, are a consolidate systemic reforms in such of a neglect of cases, the international conservation duty-bearer re- burgeoning area of organizations tend to say their plan is sponsibilities by a conservation, this to get the park declared and then sort chain of certifica- challenges conservation out “stakeholder” concerns by incorpo- tion experts and rating them into a park management organizations, organizations to plan, as though participation in a park including conser- leverage changes in management plan is the framework vation organiza- business. that offers a process for working out tions (WWF and larger societal issues. A similar situa- ACA) working in the area. tion is being played out in other places in the rush to consolidate protected In the Forest Law Enforcement and areas, as for example, in 2006, in Governance and Trade (FLEGT) proc- Ethiopian National Parks, with APF´s ess, there is a tendency to emphasize response to criticism from HR advo- the enforcement of laws that directly cates. APF said that a management address issues such as illegal log- plan will later sort things out with the ging, illegal trade and forest conver- pastoralists groups whose traditional sion, when in fact all laws and human rights over the land were not consid- rights related to access and control ered by APF when it became involved over natural resources in forest ar- in negotiations with the government eas should be equally considered and to obtain concessions to manage some enforced.89 protected areas.87 7. Collaborations with private 6. Forestry Certification sector Traction. Forest Stewardship Council Private sector partnerships are a bur- and other certification protocols include geoning area of conservation fund-rais- attention to property rights. This is a ing, including oil and gas companies, growing nexus of conservation organi- mining companies, and timber com- zations´ influence in the world's for- panies with negative human rights ests. It is rumoured that a new multi- records, and this challenges conserva- million dollar World Bank partnership tion organizations to leverage changes with WWF, CI, and TNC to expand the in business. IFC-funded Global Forest and Trade Network is in preparation. Traction. IUCN collaborated with The International Council on Mining and Slippage. In Madre de Dios, Peru, the Metals (ICMM) to develop a sustain- indigenous federation FENEMAD has able development framework which complained that certified small loggers includes Principle #3, “uphold fun- are using rivers to cross indigenous damental human rights and respect community lands to illegally enter and cultures, customs, and values in deal- bring out logs from a reserve estab- ings with employees and others who 15, July 2007 129 Conservation and Human Rights are affected by our activities.” ICMM 9. Seeking recourse in courts to Assurance Procedures include the create jurisprudence requirement that ICCM members are Efforts to build jurisprudence in in- audited for adherence to the princi- ternational courts are one option for ples and guidelines in the sustainable strengthening human rights. Yet no development framework.90 case was found where conservation joined the claimant, rather cases were Slippage. IUCN provided leadership for found where conservation was associ- the ICMM´s development of guidelines ated with the defendant being sued. for working with indigenous peoples, but those guidelines91 do not rule out Slippage reversed. UN Committee on forced resettlement. the Elimination of Racial Discrimination (CERD) expressed their concern about 8. Advocacy the forced resettlement of Basarwa/ Advocacy offers a wide arena where San people from their lands within conservation could publicly or quietly92 the Central Kalahari Game Reserve.96 join broad-based local movements Subsequently the Botswana High Court struggling to build civil society and ruled against the Botswana govern- strengthen rule of law. ment, demanding that the govern- ment allow San people to return to Traction. In India, in the late 1990s, their territory97 in the Central Kalahari US bilateral assistance (USAID) sup- Game Reserve,98 ruling that they were ported a WWF-led broad-based coali- ¨dispossessed forcibly, unlawfully tion linking biodiversity conservation to and without their consent¨ from their the development of a law for freedom ancestral lands. This is a significant of information93— an example of sup- decision, setting precedent for other porting systems and laws necessary human rights cases involving resettle- for guaranteeing human rights. The ment for conservation. Act to this effect was passed in 2002 and the resulting transparency has 10. Free prior informed consent produced significant, positive changes. (FPIC) Support was also given to an analy- FPIC99 is a procedural right that is sis of the national laws and policies to enjoying widespread insertion into identify strategic options for openings processes to enable rights bearers to to assert local people’s rights during assert their own rights. Duty-bearers conservation decision-making.94 bear the burden of ensuring that the criteria for “free,” “prior,” and “in- Slippage. Conservation agencies are formed” are met, preventing sloppy widely criticized, around the world, for or coercive implementation of FPIC,100 not taking a position when many other and upholding rights-bearers´ rights civil society organizations take on to say “no.” rights issues and struggle to support systemic changes. For example, in Philippines, Malaysia, Australia, Ven- Russia, RAIPON indigenous federation ezuela, and Peru have national leg- sought to engage WWF in civil society islation on free, prior and informed networks focusing on legal and policy consent of indigenous peoples for all reforms on many occasions, but it felt activities affecting their lands and ter- rebuffed.95 ritories.101 Colombia’s Constitutional Court has upheld the right to FPIC.102 130 15, July 2007  What ARE Conservation Human Rights, can undermine anyway? Human Rights... required by law, and the question of Traction. FPIC is included in processes who has prima facie over these areas associated with the CBD and many remains unanswered and often dis- guidelines for ¨local participation." puted.105 This can be a first step toward assum- ing obligations or a red flag demon- 11. Restitution of lands taken for strating avoidance of assuming more conservation significant responsibilities. Under international law, indigenous peoples have right to restitution of Slippage. The FPIC concept has been lands taken for protected areas.106 The incorporated into the ICMM mining and general remedy is legal recognition biodiversity guidelines.103 The develop- of property rights, demarcation and ment of the guidelines by proxy (with- titling of collective property, and com- out indigenous and local representa- pensation for damages. tion) through ICCM collaboration with IUCN and large conservation NGOs led Traction. Land restitution in the Kruger Duty-bearers bear the to criticism of the conserva- National Park was initially perceived to be a threat to South African parks and burden of ensuring tion organiza- reserves.107 However, land restitution that the criteria for tions not fully has produced new models for conser- “free,” “prior,” and assuming their vation, increased participation of indig- duty-bearer enous peoples, and extended legally “informed” [consent] responsibilities104 conserved land in South Africa. In are met, preventing by not enabling Tasmania some lands were returned to sloppy or coercive indigenous peo- their aboriginal owners as fee-simple implementation ples to represent titles in 1995. In Thailand, part of Huai themselves as Nam Dan National Park was degazet- and upholding rights-holders. ted and returned to villagers due to rights-holders´ rights corrupt government agencies´ use of to say “no.” It is rare for the area.108 The Philippine’s NIPAS law conservation effectively provided impetus to nation- organizations to provide para-legal al policy implementation of indigenous training and hire legal advisers to inte- peoples land rights in protected areas grate human rights obligations into or- systems.109 ganizational operations. Conservation organizations often lack understanding Slippage. In Australia, rights recogni- of the fundamental legal frameworks tion has been conditional; many states that deal with land, and other natural required lease-back to the state as a resources access and management in condition for recognition of aboriginal the countries where they are operat- rights. ing. In conflict situations over access and management, conservation groups How can the public, need to take seriously the need for conservation agencies, and due process, including the free and donors monitor conservation’s prior informed consent procedures. For example, recent legal and policy performance in its role as research in Indonesia has revealed human rights duty-bearer? that a majority of protected areas Organizational policy enforcement, have in fact not been fully gazetted, as external monitoring, and self-as- 15, July 2007 131 Conservation and Human Rights sessments can be helpful for assur- WWF´s review of 200 protected ar- ing that conservation agencies act eas113 identified problems with local on their HR responsibilities in ways people as major challenges, but the that consistently produce traction in evaluation instrument used manage- the move forward. While media at- ment and poverty lenses, and did not tention and ad hoc public monitoring gather data on local people’s con- has increased, as yet formal moni- cerns or explore HR issues contribut- toring and feedback processes are ing the management problems that largely under construction, and there were identified. is insufficient experience to evalu- ate what is be- The MacArthur Foundation requires Land restitution has ing promoted or conservation project proponents produced new models implemented. to complete a questionnaire about for conservation, in- Fresh ideas and renewed com- whether resettlement is likely. Other private foundations assume their HR creased participation mitment to responsibilities by supporting indige- of indigenous peoples, evaluation are nous and local communities to con- and extended legally needed. serve and manage their resources, bypassing big conservation NGOs as conserved land in The World Bank's middlemen. Most bilateral donors South Africa. new resettle- have statements ment policy of principles sup- Most bilateral donors incorporates a “process framework” porting human have statements for addressing the HR issues on an rights. Some ongoing basis. The African and Asian have specific of principles Development Banks rapidly followed guidance on in- supporting human with similar policies.110 On the other digenous peoples. rights. Some have hand, while the World Bank and the For example, Ca- specific guidance on regional multilateral development nadian CIDA has banks have Indigenous Peoples’ extensive policy indigenous peoples. policies that include provisions for guidance on Hu- protecting human rights, these poli- man Rights. DANIDA has developed cies and their application have been a much-lauded, detailed toolkit for severely criticized by indigenous and working with Indigenous Peoples.114 rural peoples’ advocates.111 The International Labour Organiza- WWF, the only conservation organiza- tion carried out an audit of Poverty tion with a significant policy on indig- Reduction Strategy Papers (PRSP)115 enous peoples— WWF’s Statement of to identify regional tendencies and Principles on Indigenous Peoples and factors contributing to the recogni- Conservation, carried out a self-as- tion of indigenous and tribal peoples’ sessment on the impacts of the poli- human rights. Transparency Inter- cy after ten years in 2005.112 WWF´s national116 also identifies opportu- management response has been in nities and weaknesses where HR preparation since early 2006. Other duty-bearers need to take on their conservation organizations have not responsibilities. These are resources yet demonstrated similar serious, that could be used by conservation in-depth attention to these issues. organizations to develop monitoring 132 15, July 2007  What ARE Conservation Human Rights, can undermine anyway? Human Rights... and evaluation tools. do not provide adequate guidance, feedback mechanisms, and transpar- If successful rights-based approaches ency in uncertain situations.118 In- are to be developed, they must be stitutional change is a hard road to evaluated against criteria that differ- travel, but the journey is not impos- entiate them from efforts to tweak the sible. Top-level decisions, budget system to promote “participation” with- commitments, resolve, individual in the existing conservation manage- initiative, and open two-way commu- ment paradigm without taking on the nication will be required to make and challenge of broader democracy issues maintain the radical changes neces- where governments have not assumed sary to overcome normal institutional HR responsibilities. The criteria should inertia. Any effort to evaluate this reflect an effort to enable rights-bear- progress must take these elements ers to assert their own rights. and processes into account, in order to build the governance systems and “Rights-based programming holds accountability necessary to achieve people and institutions who are in long term, sustainable conservation. power accountable to fulfil their re- Janis Bristol Alcorn (janisalcorn@yahoo.com) has sponsibilities toward those with less analysed governance issues in conservation and develop- power. It also supports right hold- ment for over thirty years. A PhD in Botany with a minor in Anthropology, she has written or coauthored five books ers to demand their rights and to be and over 100 articles. She is on the Expert roster for the involved in political, economic and Global Environmental Facility (GEF) and president-elect of social decisions in society. It aims to the Anthropology and Environment section of the American Anthropology Association. She has worked for universities, increase impact and strengthen sus- NGOs and bilateral funders. She is currently an independent tainability by addressing root causes, consultant and advisor to the Garfield Foundation. bringing about policy and practice Antoinette G. Royo (nonette@samdhana.org) is a lawyer with twenty-five years experience in conservation is- changes, working together with oth- sues. Active in human rights education since 1982, she is ers towards common goals and by a founding editor of the Philippine Natural Resources Law Journal, and co-founder of the Legal Rights and Natural changing power relations.”117 Resources Center-Kasama sa Kalikasan (LRC-KSK), the Women´s Legal Bureau of the Philippines, and Samdhana Top-level decisions, In sum, to pre- Institute for Social and Environmental Renewal. She has worked for NGOs and bilateral aid agencies, and is currently budget commitments, vent continu- executive director of Samdhana. ing inconsistent Janis and Antoinette have collaborated on projects and re- resolve, individual performance, search since 1994. Together, they wish to thank Elsa Chang, Marcus Colchester, Dave de Vera, Gus Gatmaytan, Owen initiative, and rights-based Lynch, Sandra Moniaga, Frances Seymour, Peter Veit, the open two-way programming indigenous leaders with whom they have worked over the past thirty years, and many others in the donor and conser- must integrate communication will vation community, for sharing insights and information. human rights- be required to make based activities and maintain the and incentives Notes radical changes into all the sec- 1 Chapin, 2004; NGOs´ responses in WorldWatch Jan, 2005; Colchester, 2001; Dowie forthcom- toral approach- necessary to overcome es of conserva- ing; Geisler, 2003; Ngowi, 2006; Pacheco, 2006. institutional inertia. tion to create 2 Wilshusen et al., 2002, Ferreira, 2004. systemic change 3 Springer and Alcorn, 2007. at organizational, national and global 4 Examples are drawn from literature and thirty years experience in the field around the world. levels. Bad things are done by good People in the field (conservation and other NGO people in institutional settings that workers, rural people, government workers, 15, July 2007 133 Conservation and Human Rights donor employees) are open in talking about 16 Emerton et al., 2006. the problems they face and their actions in 17 Bray and Anderson, 2005. response to those problems. We do not cite in- dividuals, as we do not want to cause them any 18 Bruner et al., 2004, Emerton et al., 2006. inconvenience. Oral information about the situ- 19 For example, in 2006, US Foreign Assistance ation in the field is more reliable than written Act Section 576 provided $165 million in Devel- reports, which are constrained and filtered by opment Assistance for biodiversity programs. internal organizational politics, donor demands See also Molnar et al., 2004. for success, and consultants/employees needs 20 E.g, Defensores in Sierra de las Minas, Guate- to maintain their clients/jobs. The objective of mala; various NGOs in Africa— Draulans & van the paper is not to seek responses regarding K., 2002. specific ¨slippage¨ examples, but rather to en- 21 Igoe, 2006. courage constructive discussion and debate in a milieu of high-level meeting tables where these 22 Khare and Bray, 2004. human rights concerns have too often been 23 c.f., Sidoti, 2003; Sub-Commission on the side-lined, disregarded or discredited. Promotion and Protection of Human Rights, 5 Indigenous and tribal peoples, as defined by Fifty-fifth session, 2003/14. The Social Forum of ILO Convention No. 169, self-identify them- UNHCHR, http://www.unhchr.ch/html/menu2/2/ selves as “peoples”— societies with their own sforum04/res2003-14.doc languages, customs, and identities. They have 24 Ford Foundation supports the Poverty and Con- prior rights to territories. The term tribal was servation Learning Group at IIED to explore the included in ILO 169 to cover a social situation of linkages between poverty and protected areas. discrimination and marginalization, rather than http://www.povertyandconservation/informa- basing it on length of residence/use of an area. tion//en See Tolei and Swepston, 1996. 25 Figari, 2006. 6 An anonymous source working for a European 26 Alcorn et al., 2005; Van Cott, 2002. development agency noted that the words ¨en- vironmental¨ and ¨conservation¨ have become 27 Bolivian President Evo Morales "nationalized" associated with anti-poor and elitist agendas, protected areas in 2006, in response to con- and hence were not being included in new pro- cerns that international NGOs were ignoring grams; also c.f., Adamson, 2007. human rights and communities' concerns in and around protected areas, Cingolani, 2006; for 7 Draulans and van K., 2002. debate and discussion see http://www.redesma. 8 Wunder, 2006. org/estadisticas.php 9 c.f., Lynch and Maggio, 2002. 28 A study of donor relations to indigenous orga- 10 An exception would be Amnesty International’s nizations in Latin America is underway by the partnership with Sierra Club to protect HR of lo- Center for Support of Native Lands, Arlington, cal conservation activists. Survival International VA. responds to others´ complaints about HR viola- 29 Adamson, 2007. tions in protected areas. EarthRights supports 30 The Human Rights Based Approach to Develop- grassroots action on environmental justice is- ment Cooperation: Towards a common un- sues. Native Solutions to Conservation Refugees derstanding among UN Agencies, adopted by raises global public awareness of HR violations UN Development group in 2003— cited in UN related to conservation. Permanent Forum on Indigenous Issues 2005. 11 In many countries, rural social justice activists 31 See, for example, Oxfam, 2005. have links to religions that encourage people not to be indifferent to injustice. In Central 32 The Bill of Rights appended to the US Constitu- America and Philippines, for example, the Cath- tion, for example, protects human rights. olic Church has used its institutional strengths 33 Conventions are hard law instruments that bind to support local people in their struggle for hu- the signers to develop and implement domestic man rights reforms. law to implement the general principles/stan- 12 Sanderson, 2002. dards of the convention. Relevant conventions include: International Covenant on Civil & 13 Cavanagh, 2004. Political Rights; International Convention on the 14 Conservation is an ongoing process and there Elimination of All Forms of Racial Discrimina- are constant changes in site situations. In some tion; International Convention on Torture and illustrative cases, there may have been changes Other Cruel, Inhuman or Degrading Treatment at the site since the situation was reported or or Punishment; International Convenant on observed, but the point for discussion in this Economic, Social and Cultural Rights; Interna- paper is that these negative situations have tional Labor Organization (ILO) Convention No. arisen and will very continue to arise unless 169 Concerning Indigenous and Tribal Peoples there are reforms. Likewise the positive mo- in Independent Countries; European (Aarhus) ments illustrated in this paper may have led to Convention on Access to Information, Public more positive effects, or may have been coun- Participation in Decision-Making, and Access to tered by other actions. Justice in Environmental Matters; The African 15 Veit et al., 2007. Charter on Human and Peoples Rights and the Latin American, European, and American 134 15, July 2007  What ARE Conservation Human Rights, can undermine anyway? Human Rights... regional Charters, associated with their own 45 Alcorn, 1997. processes and mechanisms; and Conservation 46 Brockington et al., 2005. The African Commis- on Biological Diversity (CBD) Article 8(j), Article sion on Human and Peoples Rights has recom- 10 c. mended that in Africa, the term “indigenous” be 34 e.g., in response to a Nicaraguan case of Awas applied to the structurally subordinate posi- Tingi, the Inter-American Court recently ruled tion of hunter-gatherers and pastoralists. The that the American Convention on Human Rights, largest group are the pastoralists; Ethiopia has Article 21 section on property rights extends to 7-8 million pastoralists, Kenya has 6 million, protect traditional indigenous tenure even when and Tanzania approximately 3.7 million, Tomei, tenure is not authorized by the state, Pasqual- 2005. ucci, 2006. 47 Geisler, 2002; Geissler and de Sousa, 2001; 35 More information can be found in the ILO News- Geissler, 2003. letter, April 2005, The ILO and Indigenous & 48 Dowie, 2006. Tribal Peoples. 49 Dowie, 2006. 36 Policy is general normative guidance that is legally unenforceable and nonbinding unless 50 Schmidt-Soltau, 2005. linked to law. 51 Colchester, 2001. 37 Among the relevant soft law Declarations are: 52 Hitchcock, 2005. UN Universal Declaration of Human Rights 53 Schmidt-Soltau, 2005. (UDHR); Draft Declaration on Rights of Indig- 54 Schmidt-Soltau, 2006. enous Peoples; InterAmerican Draft Declara- tion on the Rights of Indigenous Peoples; Draft 55 Schmidt-Soltau, 2005. Declaration of Principles on Human Rights and 56 Crocombe, 1971. the Environment; and the Belem Declaration for 57 Schlager and Ostrom, 1992. the Protection of Isolated Indigenous Peoples. See Lynch and Maggio, 2002, for elaboration 58 Veit et al., 2006. of definitions and more examples of relevant 59 Lynch and Alcorn, 1994. policy, soft law and hard law. 60 For a source on background for this distinction, please see http://www.iucn.org/themes/wcpa/ 38 United Nations Economic and Social Council, theme/categories/summit/papers/papers/Gov- 2006. ernancepaper4.pdf 39 In 2004, the World Conservation Congress 61 Sec. 4, RA 7586, Philippine National Integrated passed a weak resolution on “conserving nature Protected Areas Systems Law, 1992, and reducing poverty by linking human rights and the environment” indicating that the IUCN 62 The global profile of the human rights issues of Commission on Environmental Law (CEL) was tiger protection policies has expanded in recent to establish an Environmental Law and Human years, even serving as key story elements in Rights Specialist Group to provide future World bestselling popular novels, c.f. Ghosh, 2004. Conservation Congresses with a summary of 63 Kothari and Pathak, 2006; Anonymous, 2006. relevant developments in human rights law and 64 Anonymous personal communication to JBA, litigation, but not directing that any concrete 2005. action be taken on the information thus gath- ered. 65 In response to the violation of indigenous rights through land sales, Argentina showed inter- 40 Framing the issues and actions around stake- national leadership on this issue by recently holders focuses on stakes instead of rights, as passing an emergency national law stopping all a Mohawk representative complained publicly forced resettlement, including those brought over ten years ago— anyone who comes ¨to about by land sales, and demanding that all the table ¨ with a T-bone steak in hand is a states develop mechanisms for evaluating stakeholder—i.e., the rights of local poor people indigenous land claims. El Senado y Camara de are not treated with priority, but rather the big Diputados de la Nacion, 112-S-06 OD 1301 2/. oil companies and other sectors who come with money and power are given seats at the nego- 66 Clough-Riquelme et al., 1999, Alcorn et al., tiation and decision-making table when claimed 2005. stakes are privileged over prior rights. This is 67 http://www.nature.org/wherewework/south- not to say that stakeholders should be ignored, america/paraguay/work/art5110.html but duty bearers should encourage use of a 68 Semino et al., 2006; see also Notario, 2006 and ¨seating¨ framework that first and foremost USAID/Paraguay operational plan, 2006. supports rights-holders to claim and exercise their rights. 69 In worst case scenarios, NGOs can be drawn into situations where funding for land purchase 41 Emerton et al., 2006. (or other direct project funding) feeds creative 42 Alcorn, 2005. diversion of funds within national circles of 43 False actions are actions that appear to respond power, and NGOs can be quietly pressured to to issues without taking real action; c.f., end- accept this as the price of collaboration. Like- note 37 above. wise, when tax free status is granted to a park management concession expecting significant 44 Chapeskie, 1995. revenues, as when safari or other business 15, July 2007 135 Conservation and Human Rights deals such as gasoline concessions are granted 94 Rao and Prasad, 2000. by governments, the actors are in danger of 95 Anonymous personal communication to JBA, entering side-deals that support rule of power 2005. over rule of law. A discussion of the indirect HR impacts related to the acceptance of these 96 Committee on the Elimination of Racial Discrimi- ¨transaction costs¨ of doing conservation busi- nation, 2002. ness in corrupt circles is beyond the scope of 97 Hitchcock, 2005. this paper. See Baker, 2005 for general reflec- 98 Motseta, 2006. tion on this problem. 99 c.f., Perault et al., 2007. 70 Turton, 2006. 100 Substantive and methodological issues related 71 Oviedo et al., 2000. to FPIC have been explored in “Standard Set- 72 Dowie, 2005. ting: Legal Commentary on the concept of free, 73 A typical international conservation document’s prior and informed consent, working paper for choice of language in aspects relating to people the Commission on Human Rights, E/CN.4/ can be found on the UNEP-WCMC Protected Sub.2/AC.4/2005/WP.1 Areas Programme website, c.f., description of 101 “An Overview of the Principle of Free, Prior and Salonga National Park in DRC. Informed Consent and Indigenous Peoples in In- 74 Brackelaire, 2006. ternational and Domestic Law and Practices” UN Workshop on Free, Prior and Informed Consent, 75 Lynch and Harwell et al., 2002. PFII/2004/WS.2/8, http://www.un.org/esa/ 76 WWF, 2004. socdev/unpfii/documents/workshop_FPIC_ta- 77 Fidrus, 2006; Farid, 2003; Lystiani, 2004. mang.doc . 78 Anonymous personal communication to JBA, 102 Commission on Human Rights, 2005. 2006. 103 ICMM, 2006. 79 Anonymous personal communications to JBA; 104 IUCN, 2005. Steenkamp et al., 2006. 105 Contreras-Hermosilla, 2005. 80 Anonymous personal communication to JBA, 106 MacKay, 2002. 2005. 107 Fabricius and d.Wet, 2002; Steenkamp and Uhr 81 http://www.nature.org/wherewework/south- 2000; R.Witter personal communication to JBA, america/paraguay/work/art5109.html 2006. 82 World Parks Congress, Resolution BECW- 108 International Alliance of Indigenous Peoples CC3.103, Congress reference CGR.REC026. The Discussion Paper on FPIC and Traditional Forest Biosphere Reserve of the Chaco and indigenous Related Knowledge (TFRK), UNFF4 . peoples, 2004. 109 Sec. 13, RA 7586, 1992, Philippine National 83 Springer and Alcorn, 2007. Integrated Protected Areas System Act. 84 ARPA and Amazoniar projects, USAID/Brazil. 110 BioSoc, 2006. 85 Sudrajat, 2006. Resulting Law No. 6, 2007 for 111 Down To Earth et al., 2005. the first time in Indonesian history provides long term tenure, up to 35 years, renewable, 112 Springer and Alcorn, 2007. by local community co-managers of parks and 113 WWF, 2004. protected areas, together with village forests, 114 DANIDA, 2004. and social forestry managers. 115 Tomei, 2005. 86 As proposed in World Parks Congress and World 116 c.f., Dillon et al., 2006; Figari, 2006, see also Conservation Congress in 2004, Johnson and http://www.transparency.org . 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The first part of the paper outlines the ethical and historic context for government transpar- ency, and discusses several legal instruments of transparency in the U.S.— the Freedom of Information Act, the Privacy Act, Open Meetings acts and "Sunshine" laws, "Whistleblower" protections, state information access statutes, and conflict of interest / financial disclosure laws. The second part focuses on a mechanism to provide informed public oversight of pe- troleum development— Regional Citizens’ Advisory Councils (RCACs). The two RCACs es- tablished in Alaska subsequent to the Exxon Valdez oil spill in 1989 have essentially become the "eyes, ears, and voice" for local citizens on oil issues. They are well funded (about $3 million/yr. from the oil industry), have access to oil facilities, independence, and broad rep- resentation from citizen groups within the region impacted by oil operations. The groups give local citizens a formalized, direct voice in the corporate and governmental decisions that affect them and their communities. They are comprised of a Board of Directors, a paid staff, and several technical committees. They meet quarterly, review and comment on industry and government operations, and conduct their own independent research to support their policy recommendations. Their recommendations are non-binding, but the RCACs have been responsible for remarkable improvement in the relationship between the oil industry, gov- ernment, and the public. The paper recommends that all nations establish mechanisms for government transparency, and citizen oversight councils for petroleum sectors. It is proposed here that the scope and structure of new citizens’ councils be broader than those in the U.S., to include all aspects of oil and gas development— permitting, exploration, production, trans- portation, revenue collection, environmental compliance, etc. Funding should come either from the oil industry (preferably as an endowment), or from government oil revenues. P etroleum development presents societies with both opportunity and led to social, economic, and environ- mental decay. Due to its unusual ability to cause problems, a former oil minis- risk— a double-edged sword. While the ter in Venezuela called oil "the devil's development of reserves can bring so- excrement". Although the history of oil cioeconomic benefits, it will also bring and gas development around the world with it a constellation of negative im- is rife with poorly planned and operated pacts. Thus, the public policy challenge fields, reckless corporate behavior, en- is to maximize the positive impacts and vironmental degradation, human rights minimize the negative impacts. abuses, and corruption, this history need not repeat itself. And as some Throughout the 20th century, oil de- geologists estimate that humanity has velopment has helped some societies used about half of the commercially become more prosperous, but in others recoverable oil on Earth (about 1 tril- 140 15, July 2007  …but conservation and human rights What can Conservation canalso ARE work in Human undermine mutual Rights, Human support… anyway? Rights... transparency is passive— e.g informa- tion is accessible— informed public participation is active— there is capac- ity to collect, synthesize, interpret, and understand information, and the ca- pacity therefor to formulate informed opinions and to rationally influence policy. Although we have considerable govern- ment transparency in the U.S. (through legal instruments described below) there exists a tragic lack of informed Although we public involve- have considerable Picture 1. The Trans-Alaska Pipeline, ment in petroleum stretching across 800 miles of Alaska from government policy. And in such a the Arctic coast south to Valdez. situation, vigilance transparency in the (Courtesy State of Alaska) U.S., there exists atrophies, compla- lion barrels), how we develop (deplete) cency thrives, and a tragic lack of these remaining finite reserves is ex- government policy tremely important. informed public drifts away from public interest and involvement in The challenge is to create a new para- toward serving the petroleum policy. digm for oil and society— a new way of industry. The les- doing business around the world that son is that transparency is a necessary will create a more equitable, democrat- but not sufficient component of demo- ic, and environmentally sound econom- cratic governance. These two principles ics from petroleum. A central issue in must be developed together in order to this new paradigm for oil is how the create stable, prosperous, sustainable public is involved. Oil development can societies. foster democratic governance or it can destroy it. Government transparency— the public right-to-know Two of the fundamental principles of The fundamental basis of democratic democracy are: 1. access to informa- governance is that the government tion, or transparency; and 2. informed operates "by and for the people." As public participation in governance. It is stated in the U.S. Declaration of Inde- important to distinguish between the pendence, governments derive "their two principles. Transparency implies just powers from the consent of the simply that the public has easy access governed." The first amendment to the to government and industry informa- U.S. Constitution recognizes both the tion, and literally a "clear view" of what needs for an informed electorate as government and industry are doing. well as the right to free self-expression However, transparency does not neces- without fear of government repression. sarily mean that the public has a for- Constitutional scholars interpret the mal, active voice in the operations of 1st amendment such that the public's government and industry— the concept "right-to-know" derives directly from of informed public participation. While and is a fundamental necessity for the 15, July 2007 141 Conservation and Human Rights public's "right-to-speak" to be mean- X It is unjust and morally wrong, just ingful and informed. as when due process with access to all relevant information is denied an For democratic governance to work, its individual by the judicial system; citizens must have an active voice in all X To the extent that information is the affairs of their government, and to withheld from a citizen, the basis The public's "right- have such voice they of government control over him must be informed becomes coercion, not persua- to-know" derives about the workings sion— the citizen is given no ratio- directly from and of their government. nal ground for analyzing a decision, is a fundamental Thus, it is a funda- but must submit to it by force; necessity for the mental responsibility of any democratic X Secrecy is politically unwise, as it leads not to support but to disaffec- public's "right- government to pro- tion— concealment of information to-speak" to be vide free and open leads to anxiety, fear, and extrem- meaningful and access to govern- ism; ment information, X Secrecy undermines confidence in informed. and allow for the government and produces a cred- active advocacy of public interests with ibility gap. such information. The former director of the Associated Regarding the critical importance of Press, Kent Cooper, suggested that the public's right to know, one of the government secrecy was ultimately fathers of American democracy, Thom- self-defeating because: as Jefferson, once wrote: Whenever X confidence and loyalty thrive where the people are well informed, they can people have the right to know. be trusted with their own government. As citizens make the ultimate decisions regarding who will govern them and how they will govern, they must know what is going on in government. And while it is recognized that certain types of information can be kept secret (e.g. national defense, trade secrets, etc.), Thomas Emerson pointed out in "The Dangers of State Secrecy" that: As a general proposition, secrecy in a demo- cratic society is a source of illegitimate power.1 Emerson suggested that withholding of information by any part of the govern- ment is wrong for the following reasons: X It is in direct conflict with demo- cratic principles of decision making, Picture 2. The Trans Alaska Pipeline System marine terminal in Valdez Alaska, where over and that no rational choice by citi- 15 billion barrels of oil have been loaded onto zens can be made in the absence of tankers for shipment south to market since its information; opening in 1977. (Courtesy State of Alaska) 142 15, July 2007  …but conservation and human rights What can Conservation canalso ARE work in Human undermine mutual Rights, Human support… anyway? Rights... X patriotism springs from the people's ward openness.2 When FOIA became own convictions, based not upon law, the U.S. Attorney General com- government propaganda but on full mented that "nothing so diminishes information on all sides of every democracy as secrecy." question. X government power, backed by an To file a FOIA request, a citizen must informed citizenry, is unassailable, identify the proper agency, cite specific because through full availability documents and/or topics, and demon- to the news, an equal partnership strate that releasing the material is in between the government and the the public interest. FOIA allows docu- individual is established, based ments to be withheld only for reasons upon respect for the latter's right to provided by nine exemptions as fol- know. low: 1. national defense and foreign policy, 2. internal (personnel) rules, 3. Instruments of government exemption by another statute, 4. trade transparency in the U.S. secrets, 5. internal records (that would Freedom of Information Act (FOIA) not otherwise be available in litigation), 6. personal privacy, 7. law enforce- To counteract the tendency toward ment, 8. financial regulation, and 9. government secrecy in the U.S., the petroleum information (maps, geologi- Freedom of Information Act (FOIA) cal information, etc.). was signed into law on July 4, 1966. The Act requires that "each agency, on Some 26 nations have passed similar request for identifiable records…shall information access laws in the past make the records promptly available 10 years— Japan, Thailand, Bulgaria, to any person." FOIA defines a public the U.K., South Africa, etc. The U.S. record as any record retained by any government receives over 2.5 million government body, including any docu- FOIA requests / yr., and spends about ment presented to any government $250 million / year (about $1 / per body by any government or non-gov- U.S. citizen) in implementing the act. ernment body. The Act was amended While some argue that this is exces- in 1974 and again in 1995 to make sive and unnecessary, citizen advo- it quicker, easier, more efficient and cates counter that this is simply the cheaper to access government infor- cost a free nation must pay for gov- mation. In 1996, Congress passed ernment accountability. "Electronic FOIA" to include electronic records. The Privacy Act FOIA provides the public access to files The 1974 Privacy Act allows citizens to of federal executive agencies, and pro- know what government agency records vides: that disclosure is the rule, not are kept on them; to read, correct, or the exception; that all individuals have append information in such files; and to equal rights of access; that the burden prevent use of such files for other than shall be on the government to justify their original purpose. The Act places withholding of a document, not on the restrictions on agencies on the sorts of person who requests it; that individuals information they can collect on private improperly denied access to documents individuals, and in which such informa- have a right to seek injunctive relief in tion can and cannot be communicated the courts; that there be a change in within and outside of government. Government policy and attitude— to- 15, July 2007 143 Conservation and Human Rights "Whistleblower" protections The unauthorized leaking of informa- tion from government agencies, if it is to the public and in the public inter- est, is also protected to some extent by the Civil Service Reform Act (CSRA) of 1978. The Act is intended to pro- tect from administrative retaliation a civil servant who discloses information (other than classified) which he/she believes shows "a violation of any law, rule, or regulation", or "mismanage- ment, a gross waste of funds, an abuse of authority, or a substantial and spe- cific danger to public health or safety." Picture 3. The Exxon Valdez lies crippled at anchor in April 1989 after spilling over 11 million gallons of oil into Alaska's State Information Access laws Prince William Sound. All states in the U.S. also have Public (Courtesy State of Alaska) Records Acts and Open Meetings Acts, as counterparts to federal FOIA and Open Meetings, or "Sunshine" "Sunshine" laws. The state statutes, Laws patterned in parallel to the federal stat- "Sunshine" laws were named as such utes, are intended to make state and from a former U.S. Supreme Court local government business as open and Justice who stated that "sunshine is transparent as possible. the best disinfectant." The 1972 Fed- eral Advisory Committee Act grew out Conflict of Interest/ Financial of the desire of consumer groups for Disclosure laws access to advisory group meetings In order for the public to rationally between industry and federal agen- decide whether a government official cies heretofore closed to the public. It may have a conflict of interest regard- requires prior notice of meetings to be ing a particular policy issue, federal published in the Federal Register, and and state governments have enacted that minutes and records be kept of financial disclosure laws applicable for the meetings. And, the "Government certain government officials. These in the Sunshine Act " went into effect generally require people running for in 1977, requiring about 50 federal an elected office and those appointed agencies to hold their meetings in to senior government positions (Con- public, with 10 exemptions similar to gress, President, Governor, Legisla- those found in FOIA. But even if un- ture, cabinet posts, commissioners, der the exemptions an agency meet- etc.) to report campaign contributions, ing may be closed, the Act requires financial assets, etc., so that the citi- records be kept— transcripts, record- zenry can see who is giving money to ings, minutes, etc.— that "fully and whom. Such financial disclosure re- completely describe all matters dis- quirements provide a disincentive to cussed." The records of closed meet- corruption. ings may be subject to later disclosure through FOIA. [Note: The September 11, 2001 terror 144 15, July 2007  …but conservation and human rights What can Conservation canalso ARE work in Human undermine mutual Rights, Human support… anyway? Rights... attacks on the U.S. lead to a significant working to protect the public interest reassessment of the U.S. government is in fact far from the actual practice of posture toward the collection and re- democracy. lease of information. In general, the government expanded its abilities for Regional Citizens’ Advisory collection of information and restricted Councils— a model for public the public's ability to access informa- oversight of the oil industry tion.] To create a more equitable, transpar- ent, and truly participatory process for Informed public participation important civil society activities such as Even in long-established democracies oil and gas development, it is necessary the relationship between government, to establish a well funded, empowered, industry, and the public is problem- and independent citizens’ organiza- atic and often fails to serve the com- tion to provide oversight. The Regional mon public interest. Although govern- Citizens’ Advisory Councils (RCACs) in ment agencies and legislative bodies Alaska represent such an initiative. are legally obligated to operate in the interest of the public, many regula- Prior to the 1989 Exxon Valdez oil spill tory agencies are too closely tied to the disaster in Alaska, the oil companies industries they regulate to provide ef- and the state and federal governments fective oversight. Regulation and legis- conducted their business largely "out- of-sight / out-of-mind" of the public. With the Exxon Valdez Oil Spill, the political dynamic took a dramatic shift in response to an outraged local pub- lic. Shortly after the spill, the Alyeska Pipeline Service Company owners (a consortium of BP, ARCO, Exxon, Mobil, Amerada Hess, Phillips, and Unocal) agreed to citizen demands to establish a citizens’ oversight council. To back up oil company promises to fund and cooperate with this new citizens group, the federal Oil Pollution Act of 1990 (OPA 90) mandated the establishment of two national demonstration RCACs Picture 4. Crude oil spilled by the Exxon in Alaska—one in Prince William Sound, Valdez spread over 15,000 km2 of Alas- and the other in Cook Inlet. [ OPA 90 ka's coastal ocean, and oiled over 1,500 km of coastline. The spill became the was the federal government's response most ecologically damaging oil spill in his- to the Exxon Valdez spill, and in addi- tory. (Courtesy State of Alaska) tion to the RCACs, it also mandated the phase-in of double-hulled oil tankers lation in such a symbiotic environment in U.S. waters, stricter liability provi- tends to favor industry at the expense sions, the establishment of an Oil Spill of the environment, social justice, Liability Trust Fund, and more stringent and economic justice. Our ideal of a safety protocols for tanker crews.] well-informed, participatory public, a government always receptive to public In the OPA 90 RCAC provision, the concerns, and a cooperative industry all U.S. Congress noted that "the pres- 15, July 2007 145 Conservation and Human Rights ent system of regulation and oversight Cross Timbers—with an annual funding of crude oil terminals in the United level of approximately $600,000.4 States has degenerated into a process of continual mistrust and confronta- Structure and function of an tion." and "only when local citizens are RCAC— the Prince William Sound, involved in the process will the trust Alaska model develop that is necessary to change These RCACs provide citizens an ad- the present system from confrontation visory role in oil issues in the region, to consensus." monitor impacts, review spill preven- tion and response plans, and recom- In December 1989, the Prince William mend continual improvements in the Sound (PWS) RCAC was incorporated system. The concept is to give local as a nonprofit corporation, and in citizens a direct voice in the corporate February 1990, it entered into a con- and governmental decisions that af- tract with the pipeline owner, Alyeska.3 fect them and their communities. The Through the negotiated contract, Aly- group is the primary conduit through eska agreed to provide four things to which government and industry com- the PWS RCAC: $2 million in annual municate to the public on oil issues. funding, adjusted for inflation; absolute In a real sense, the RCAC has become independence from Alyeska; access "the eyes, ears, and voice" for the local to Alyeska facilities; and that the con- public on oil issues. The public relies tract would continue "for as long as oil on the RCACs to safeguard its interests flowed through the pipeline".3 The Cook and assure transparency in industry Inlet RCAC was incorporated in Decem- and government. This is a novel, and ber 1990, and entered into a contract indeed experimental effort. Among with a consortium of oil companies and RCACs, the Prince William Sound RCAC tanker operators in its region—Cook (PWS RCAC) is the largest. The PWS Inlet Pipeline Co., Kenai Pipeline Co., RCAC has three main structural compo- Phillips Petroleum, Tesoro Alaska Pe- nents: the board of directors, the staff, troleum, UNOCAL, Marathon Oil, and and the committees: Board of Directors: consists of 19 members representing the commu- nities and major citizen constituen- cies affected by the Exxon Valdez Oil Spill—commercial fishing, Alaska Na- tives, aquaculture, conservation, rec- reation, cities, villages, and tourism. Board members are chosen by their respective institutions, and are thus ultimately accountable to the institution they represent. Both the Prince William Sound RCAC and the Cook Inlet RCAC (with a 13-member board) have sev- eral ex-officio, non-voting board mem- Picture 5. Commercial fishing, the eco- nomic mainstay of coastal Alaska, was bers representing the relevant state shut down by the oil spill, and has not and federal agencies. fully recovered today 18 year later. (Courtesy State of Alaska) All board members are volunteers, 146 15, July 2007  …but conservation and human rights What can Conservation canalso ARE work in Human undermine mutual Rights, Human support… anyway? Rights... receiving no financial compensation son, finance manager, seven project other than for travel expenses to attend managers, and administrative assis- meetings and other events (the com- tance (The Cook Inlet RCAC has a staff pensation issue may need to be recon- of six). The staff serves at the pleasure sidered in the emerging democracies in of the Council's executive director. order to attract the best possible people to serve on citizen councils). The RCAC Committees: Much of the council's work Board of Directors meets at least four is conducted by four technical commit- times a year, and at each meeting, rep- tees, each with a dedicated staff liai- resentatives of industry and government son: Oil Spill Prevention and Response; report on their issues of concern and Terminal Operations and Environmental operations and hear from the citizens Monitoring; Port Operations and Vessel regarding issues of importance to them. Traffic Systems; and Scientific Advi- This regular interchange provides a line sory. These volunteer committees are of communication vital to the interest of appointed based on expertise, interest, each constituency, and results in a con- and willingness to serve. The commit- structive climate for problem solving. tees meet regularly to discuss any and all issues within their purview, draft The board is responsible for allocating and recommend policy actions to the the annual budget. The PWS RCAC has RCAC Board, and conduct research ap- an annual budget that has averaged proved and financed by the Board. The about $3 million (FY 2003 was $3.2 Cook Inlet RCAC has three committees: million) of which on average about 38 Environmental Monitoring; Prevention, percent ($1.14 million/yr.) is devoted Response, Operations, and Safety; and to staff, 33 percent ($1 million/yr.) for Educational Outreach. contracts and research, and 29 per- cent ($860,000) to office rent, sup- Responsibilities: The work of the coun- plies, equipment, and audits. An annual cil is multifaceted. The broad mission audit of all finances is conducted and is to organize citizens to promote the approved. The U.S. Coast Guard also environmentally safe operation of the conducts an annual recertification of Alyeska Pipeline Service Company ter- the group as being in compliance with minal in Valdez and the oil tankers that the terms of OPA 90. All of the RCAC's use it. Within this mission, the council work is open to the public on whose reviews and submits written comments behalf it operates, and interested on operations of the pipeline terminal citizens can attend and provide public and tankers. This oversight, review, comment as well. These checks and comment, and recommendation can balances provide a high level of integ- cover state and federal legislation, reg- rity and credibility to the process. ulations and permits, industry policy and procedure, and so on. Staff: The day-to-day activity of the PWS RCAC is the responsibility of a At the request of its committees, the paid staff of 18, located in two offices— RCAC commissions independent scien- one in Anchorage, where Alyeska head- tific studies and reports on relevant is- quarters are located; and the other in sues to the public, the media, govern- Valdez, where the pipeline terminal is ment agencies, legislative bodies, and located. Staffing includes an executive the industry. This research often forms director, two deputy directors, public the basis of policy recommendations. information manager, community liai- Conducted jointly with government 15, July 2007 147 Conservation and Human Rights and industry, this research has fos- phase-in requirements for double- tered a more cooperative spirit among hull tankers these groups, minimizing conflict and X Installation of ice-detecting radar to Not surprisingly, contention. The RCAC warn of iceberg hazards in the ship- monitors and plays an ping lanes the initial active role in all spill X Development of nearshore spill re- relationship drills and exercises, sponse strategies and contingencies between citizens’ and recommends im- X Improved Vessel Traffic System councils and provements in post- drill debriefing. (VTS) surveillance of all tankers in the system the oil industry X More stringent weather restrictions was somewhat Not surprisingly, and speed limits for tanker traffic distrustful, but the initial relation- X More stringent tanker inspection, in ship between these gradually became citizens’ councils and Alaska and beyond dynamic and the oil industry was X Advocacy for better government somewhat distrustful, oversight, more personnel, and more effective. funding but gradually became dynamic and effective. X Deployment of weather buoys along the shipping lanes for real-time RCAC successes weather The recommendations of the RCAC are X Improved spill contingency plans, non-binding, and government regula- response equipment, and training tors and industry do not always take X Improved understanding of com- the council's advice. Yet many recom- munity impacts from technological mendations are adopted because of the disasters thorough research and vetting facili- X Conducted comprehensive envi- tated by the council's public/industry/ ronmental monitoring to assess oil government framework that provides impacts regular meetings to discuss research X Pioneered the control of ballast wa- objectives, methodologies and results. ter treatment to control exotic spe- cies The successes of the PWS RCAC at- X The construction of a Vapor Control test to the sort of cooperative problem System to capture volatile hydrocar- solving that can be accomplished with bon vapors released during tanker genuine, informed public participation. loading Overall, the citizens’ council has been X Improved fire prevention and re- a primary driver in the improvement sponse capability at terminal and on of the system for oil transportation tankers through Prince William Sound, making it arguably the safest system anywhere An official U.S. government review in in the world. The following are some 1993 of the two Alaska "demonstra- of the more significant improvements tion" RCAC programs concluded that: that the RCAC either recommended or “The demonstration programs have played a pivotal role in: substantially increased the level of citi- X Deployment of powerful, maneuver- zens’ involvement with the oil industry able tugs to escort all outbound, and with government regulators in the laden tankers environmental oversight of oil terminal X Monitoring the compliance with and tanker operations. Through vari- 148 15, July 2007  …but conservation and human rights What can Conservation canalso ARE work in Human undermine mutual Rights, Human support… anyway? Rights... ous projects and activities, the citizen councils have provided extensive input into matters such as oil-spill contin- gency plans, tanker navigation and escort procedures, and oil terminal operations. Industry and government officials acknowledge that many of the councils' projects and activities have been helpful.”5 As described in the "RCAC Retrospec- tive", there have been many important lessons learned over the group's his- tory.6 Some lessons with relevance in other regions are as follows: Picture 6. The Prince William Sound X Cooperation works better than con- Regional Citizens’ Advisory Council was frontation. established in 1989, giving voice to the X Conflict is inherent, but common region's citizens in matters involving oil ground is possible. transportation and spill prevention. The X Trust between citizens and indus- Council sponsored a Risk Assessment, try is difficult to establish and even which identified further safety measures to be implemented. harder to maintain, but can be main- (Courtesy State of Alaska) tained by regular informal meetings. X Sufficient funding is essential The challenges and opportunities X A citizens’ group can be independent for establishing RCACs with industry funding with proper Given the obvious benefits to public safeguards. process regarding oil and gas issues X Agreeing on how to disagree reduces in the United States that have derived conflict from the establishment of these citi- X Logic and using science make pas- zens’ councils, it is recommended that sion persuasive the citizens and governments else- X It pays to acknowledge industry and where consider the establishment of regulators when they act right such groups as well. Although there X All affected citizens should be repre- may be initial resistance to the con- sented on RCACs boards cept within industry, government, and X Board members do not have to be perhaps the public, none of this should technical experts prove insurmountable. The importance X Funding should not have strings at- of these citizens’ councils is para- tached mount—they are not government, they X Advisory groups should be mandated are not industry, but they are estab- by state or federal statute lished and operated solely by and for the citizens of the region. X A clear mission and identity should be established early on Although other RCACs could have simi- lar characteristics to those in existence An overall lesson is that citizens are in the U.S., they should have a broader clearly more effective if they have for- scope of responsibility. These RCACs mal relationships with those who make could be empowered to provide over- decisions that affect them. 15, July 2007 149 Conservation and Human Rights sight on all aspects of petroleum de- RCACs have sufficient funding to do the velopment in their region—permitting, research that they feel is necessary, exploration, production, transporta- greatly enhancing the justification for tion, refining, public revenue collection, their policy recommendations. risk management, and environmental compliance. The RCACs should provide There are several possible avenues for oversight, advice, and advocacy on is- financial support: sues such as the following: where to allow petroleum development, rates of X Direct funding by the petroleum in- reserve extraction, Best Available Tech- dustry: Funding could come directly nology (BAT) standards, accident pre- from the oil and gas companies and/ vention and response preparedness, le- or their consortia (as in Alaska), but gal liability, environmental monitoring, must contain sufficient safeguards regulatory reform, petroleum revenues against industry bias and control. and taxes, and so on. They should have Industry funding would be best in a voice in the selection of export routes the form of an and transportation methodologies. endowment from The International With regard to the public collection and which the RCAC Financial use of petroleum revenues, the RCACs could operate off should monitor and advise government the investment Institutions could and the public on all industry financial earnings. require companies matters— revenues, costs, taxes, roy- X Financial institu- receiving loans to alties, etc. And, they should commis- tions requiring establish and fund sion annual audits of both industry and the establish- government petroleum revenues. ment of RCACs independent, credible as a condition of public participation All major constituencies in the regions their loan: Lack- as a condition of should be represented, with directors ing direct support their loan. being democratically chosen by their by the oil and gas respective interest groups. The govern- companies, the International Finan- ment should agree to become coopera- cial Institutions (IFIs) could require tive partners with these groups, granting companies receiving loans to es- them access to information and delibera- tablish and fund such independent, tions. The citizens’ councils should also credible public participation as a con- advocate strong public access statutes dition of their loan. The IFIs could similar to the United States FOIA, as stipulate what sort of audit, review well as open meetings acts and other protocols, representation, and gov- public disclosure instruments. ernment and industry cooperation must be put in place to ensure the Funding: Substantial and stable fund- highest levels of integrity and effec- ing for such a group / groups is critical. tive action of the groups. The budget should be commensurate X Government support: The govern- with the responsibilities of the new ments of the region could them- RCACs, and include sufficient funds to selves establish and finance such commission independent research and citizen participation from public technical reports as the RCACs deem revenues derived from oil and gas appropriate. If there is one thing that projects, thereby removing industry distinguishes the RCAC concept from from any direct role in the group's other advisory structures, it is that the budget. 150 15, July 2007  …but conservation and human rights What can Conservation canalso ARE work in Human undermine mutual Rights, Human support… anyway? Rights... X Interim, start-up support from phil- their interests, they can correct or re- anthropic, non-governmental organi- place that representative. Importantly, zations (NGOs): If none of the above board appointments to an RCAC are financial instruments is attainable in made by the represented groups them- the short-term, then the assistance selves— not the host government or of an outside, philanthropic NGO industry. Ultimately, it is the citizens’ should be solicited. As the interim groups represented in an RCAC that RCACs prove themselves a wor- control the process— not government thy mechanism for informed public or industry. participation in the region, then their funding should be picked up directly The other challenge to the RCAC con- by government or industry. cept in some emerging democracies is that of government persecution of citi- A concern often voiced regarding es- zen activists. This is an extremely seri- tablishing RCACs in the emerging ous, fundamental problem that must democracies and other areas is that be addressed whenever and wherever of financial corruption. And although it occurs. Democratic governance de- the Alaska case is admittedly different, pends on the rights of citizens to free its structural safeguards against cor- speech and dissent. Governments that ruption are applicable anywhere. The fail to protect these rights must be RCACs commission annual financial challenged to do so by the interna- audits by independent firms and report tional community. Democratic govern- their results in their publicly available ments must have laws and regulations annual reports. Both the U.S. Coast in force to aggressively prosecute any Guard (the federal liaison agency) and such actions against its citizens. The Alyeska (the contracting oil industry establishment of RCACs may help some body) have the right to conduct yearly governments that are wary of citizen financial audits of the RCAC—and on dissent come to value public attitudes occasion avail themselves of this right. and insights. Thus there are straightforward audit and disclosure mechanisms that can prevent corruption. Another related concern regarding the establishment of RCACs is pos- sible industry co-option of the group. While there is no absolute safeguard against this tendency, the groups can be designed to limit this threat. RCAC members being accountable to their respective institutions, together with transparent activity, are the foremost safeguards against co-option. As board representatives have to report regu- larly to their host institution, it is the institution's responsibility to ensure Picture 7. As a result of citizen demands, that its views and concerns are ad- regular oil spill response drills are held, dressed. If an interest group feels its using local fishing vessels. RCAC representative is not working for (Courtesy State of Alaska) 15, July 2007 151 Conservation and Human Rights Conclusion— a new paradigm for oil and gas revenues or from industry oil and society itself. Citizens need to be involved in In closing, it should be underscored the oversight of petroleum operations that the success of corporations in the that will affect their lives, and to do 21st century will be measured not just this they will need an organization with by their bottom-line profits, but also by money, staff, authority, broad represen- social and environmental responsibility, tation, and most of all, independence. citizen involvement, ethics, justice, and honesty. Governments will be assessed The establishment of RCACs would by how well they protect the rights and provide an unprecedented level of interests of their citizens. In this re- transparency and informed public gard, citizen's involvement is critical. participation with regard to industrial activities in fulfillment of the promise of All nations should establish instruments democratic governance— an important of transparency and informed public prerequisite to achieving a prosperous, participation as outlined above. This equitable, just, and sustainable society. should include enactment of a Freedom Richard Steiner (afrgs@uaa.alaska.edu) is a Professor of Information Act (FOIA), Open Meet- and Conservation Specialist for the University of Alaska Marine Advisory Program, based in Anchorage, Alaska. His ings Act, Privacy Act, Whistleblower specialty is ecological conservation, and he has worked in- protections, and Conflict of Interest / ternationally on conservation and sustainable development Financial Disclosure laws for public of- issues. His work regarding the Exxon Valdez spill included proposing Regional Citizens’ Advisory Councils. He has ficials. Further, petroleum producing published on a broad array of conservation topics including states should require the establishment oceans, fisheries, forests, macro-economic policy, endan- of Regional Citizen Advisory Councils gered species conservation, maritime issues, oil revenues, citizen involvement and environmental democracy, war and (RCACs) for a nation's petroleum sector, environment, global warming, the global environmental to be funded either from government crisis, and oil spill prevention. Prof. Steiner is a member of CEESP’s TGER and SEAPRISE. Notes 1 Emerson, 1974. 2 Foerstel, 1999. 3 PWSRCAC 4 CIRCAC 5 U.S. GAO, 1993. 6 PWSRCAC, 1996. References/ Further Reading Busenberg, G. Citizen Advisory Councils and Environ- mental Management in the Marine Oil Trade. Techni- cal report based on doctoral dissertation, University of North Carolina, Chapel Hill (1997): 78, 1997. CIRCAC, Annual Reports, publications, newsletter available from Cook Inlet RCAC. Kenai, Alaska, USA. ph: 907-283-7222; fax: 907-283-6102; e-mail: Picture 8. After strong, well reasoned citi- circac@circac.org; and on Worldwide Web: zen input, the oil tanker transport system www.circac.org in Alaska is much safer than when the Commission on Protecting and Reducing Government Secrecy, 1997 report. At Exxon Valdez occurred, and is arguably www.access.gpo.gov/congress/commissions/secrecy/ one of the safest anywhere in the world. index.html The tanker in the background is outbound Emerson, T.I., “The Dangers of State Secrecy”, The with a load of oil, and has an escort tug. Nation, March 30, 1974 (Courtesy State of Alaska) Foerstel, H.N., Freedom of Information and the Right 152 15, July 2007  …but conservation and human rights What can Conservation canalso ARE work in Human undermine mutual Rights, Human support… anyway? Rights... to Know. Greenwood Press, Conn., London, 1999 Project on Government Secrecy. (Federation of Ameri- FOIA Group. at www.foia.com can Scientists) at www.fas.org/sgp/ Ginsberg, P., S. Sterling, S. Gotteherer, "The Citizens' PWSRCAC, Annual Reports, publications, and newslet- Advisory Council as a Means of Mitigating Environ- ter available from PWS RCAC, Anchorage, Alaska, mental Impacts of Terminal and Tanker Operations." USA. ph: 907-277-7222; fax: 907-277-4523; Marine Policy (September 1993): 404-411, 1993. e-mail: rcac@anch.pwsrcac.org; and on Worldwide Web: www.pwsrcac.org Gordon-Murnane, Laura, “Access to Government In- formation in a Post 9/11 World”, Searcher v. 10 no. PWSRCAC, RCAC Retrospective: The Successes and 6. June. P. 50-62, 2002. Lessons of a Citizens' Advisory Group. PWS RCAC document file code: #5006.645. 1996. McKay, D.J., Tapping Officials' Secrets: The Door to Open Government— Alaska, 1989. Robinson, J.S., Tapping the Government Grapevine, Oryx Press, Phoenix, New York, USA, 1988. Michael, J., Freedom of Information in the United States, in Public Access to Government-Held In- U.S. GAO, Report to Congress on the Alaska Regional formation: A Comparative Symposium, London, Citizens' Advisory Councils. GAO, Washington, D.C. Stevens & Son Ltd, 1987. (1993): 33. National Freedom of Information Coalition at www. Wentworth, J., “The Public Has a Right to Know”, reporters.net/nfoic/newsletters.html Spectrum, v. 73 No. 2. Spring, 2000. Reflections on integrating a rights-based approach in environment and development Gina E. Castillo and Marjolein Brouwer* Abstract. The article reflects on how Oxfam Novib, a development organisation, has inte- grated a rights based approach (RBA) in its general work and mission of poverty eradication, and what lessons can be learned by conservation actors. Although historically human rights, development, and conservation have had a rather uncomfortable relationship, the authors maintain that a rights based approach and sustainable use of natural resources are compat- ible. An RBA to development seeks to transform the vicious cycle of poverty and marginali- sation into a virtuous cycle in which people can seek the fulfilment of their rights from duty- bearers. The authors describe how Oxfam Novib has situated its work on the use of natural resources within the right to a sustainable livelihood. In practice, this means that at the local level, an RBA to environmental programs begins with a thorough analysis of local realities, and the inclusion of men and women in problem definition and proposal making. The analy- sis of who is accountable and how the situation can be redressed then informs the choice of strategies that can be used. Yet, many problems experienced at the local level are generated at higher levels. Hence, for Oxfam Novib, an RBA to environment requires changing policies, practices, beliefs and ideas, and building and reinforcing the capacity of rights holders and duty bearers. Moreover, seeking a government’s responsibility for environment, poverty and exclusion requires active citizenship. Responsibility for the environment calls for joint work in mutual solidarity, as everyone has an obligation towards each other, the earth, and future * The views expressed in this publication do not necessarily reflect those of Oxfam Novib or Oxfam International. 15, July 2007 153 Conservation and Human Rights generations. The article touches briefly on of the issue of trade offs between livelihood oppor- tunities and sustainable use of natural resources. It acknowledges that this is an area where more analytical work and cooperation between development actors and conservation needs to occur if we are to ensure a healthy environment for all. A rights based approach (RBA) to development is important for conser- vation actors to understand not only because of the links between conserva- tion and development, but also be- cause development organizations have a breadth and depth of experience with RBA that may exceed that in the con- servation sector, and therefore devel- opment organizations’ experience may provide important lessons. While presenting our reflections and Picture 1. The environment is central to experiences, we will automatically the well-being and livelihoods of women touch on issues of natural resources, and men living in poverty. A human rights as both a RBA to development and perspective on conservation offers ad- anti-poverty work focus on women and ditional benefits and challenges as com- men living in poverty. We posit that the pared with either conservation, anti-pov- physical environment is central to their erty, or human rights perspectives taken well-being and livelihood practices. We alone. (Courtesy Oxfam Novib) further maintain that a human rights rights to life, health, property, culture, perspective on conservation issues of- and decent living conditions are to be fers additional benefits and challenges fulfilled for the majority of the world as compared with either conservation, population rather than just a minority, anti-poverty, or human rights perspec- and if those rights are realized in the tives taken alone. pursuit of affluence rather than mod- eration, than a rapid depletion of natu- Before we begin, two caveats are in ral resources is a likely consequence. order. Historically, there has been An environmentalist may suspect discomfort between conservationists, that there is a structural contradic- development practitioners and human tion between fulfilling existing rights rights advocates. Some development for a growing population and effective practitioners and human rights advo- protection of limited environmental cates all too easily assume that, for goods.”1 Obviously these are simplistic conservationists, resource conserva- generalisations but historically human tion and wilderness preservation are rights, development, and conserva- more important than people’s rights tion have had a rather uncomfortable and livelihood opportunities. Likewise, relationship. This is unproductive and environmentalists may distrust the there is much that all can learn from priority which human rights activists exchanging experiences and working are likely to accord to the human be- together. ing over other species and ecological processes: “If the established human The second caveat is that we rec- 154 15, July 2007  …but conservation and human rights What can Conservation canalso ARE work in Human undermine mutual Rights, Human support… anyway? Rights... ognise that the term environment is Introduction to rights and notoriously ambiguous and restrict development Historically, human its meaning in this Although for those who live in poverty paper to natural there is probably no distinction be- rights, development, resources in ru- tween ‘rights’ and ‘development’, hu- and conservation ral areas as this is man rights and development practition- have had a rather where Oxfam Novib ers have worked rather independently. uncomfortable has acquired some experience. Our Traditionally, NGOs that worked on hu- relationship. This intention is to raise man rights concentrated on the protec- tion of civil and political rights, on the is unproductive some general argu- basis of internationally agreed human and there is much ments about how rights instruments and using language that all can learn RBA relates to the conservation of nat- of rights-holders and duty bearers. By contrast, development actors pre- from exchanging ural resources. Fur- dominantly focused on improving living experiences and thermore, we must conditions and people’s empowerment, working together. stress that this is an advancing social, cultural and economic area where we have rights in a pragmatic way and not nec- much to learn about. As such, this essarily framed in rights language. analysis does not in any way present a model. What is presented here is Yet, the link between rights and de- not necessarily the only way that RBA velopment was reaffirmed in many to environment can be conceived and authoritative international statements: implemented. the Charter of the United Nations (UN) refers to an intrinsic link between de- The first part of this article will give velopment and rights as do the twin an overview of how RBA and devel- International Covenants on Economic, opment have come together. Subse- Social and Cultural quently, we will give a brief overview Rights (1966) and In an RBA to de- of Oxfam Novib’s work. This will cen- tre on presenting some of the lessons on Civil and Politi- velopment, people cal Rights (1966). are seen as holders we have learned in working with an The UN Declara- RBA. Finally, this article will present tion on the Right of rights, who have the way in which Oxfam Novib has to Development is a claim on duty- addressed environment concerns. even more compre- holders, which in- We argue that a rights based ap- hensive in saying: proach and sustainable use of natural “The right to devel- clude communities, resources are compatible. This en- opment is an alien- governments at all tails empowering people to challenge able human right levels, private sec- power structures. Exercising rights is by virtue of which best done in a world where women tor, civil society, and every human per- and men have the power to decide son and all peoples external development over their own lives and have a say in are entitled to par- partners. decisions that affect their lives, where ticipate in, con- the rule of law exists, where govern- tribute to, and enjoy economic, social, ments are accountable and where the cultural and political development, in corporate sector acts socially respon- which all human rights and fundamen- sible. tal freedoms can be full realized.”2 15, July 2007 155 Conservation and Human Rights In the late 1980s, the worlds of devel- Oxfam Novib— a development opment and human rights converged. actor With the fall of the Berlin wall, the Oxfam Novib is part of Oxfam Interna- interdependence, indivisibility and tional, an international group of inde- interrelatedness of all human rights pendent non-governmental organisa- (economic, social, cultural, civil and tions dedicated to fighting poverty and political) could be reconfirmed at the related injustice around the world.3 World Conference for Human Rights in The Oxfams believe that poverty and 1993. Within the development commu- powerlessness are avoidable and can nity, the topic of ‘human development’ be eliminated by human action and gained ground, in which the well-be- political will. In all of Oxfam’s actions, ing of the human person became the the ultimate goal is to enable people benchmark rather than macro-eco- to exercise their rights and manage nomic variables alone. People became their own lives. The Oxfams maintain the subject and agents of development. that preventing and reversing dam- In an RBA to development, people are age to the environment is essential in seen as holders of rights, who have a achieving sustainable livelihoods. The claim on duty-holders, which include Oxfams support the work of more than communities, governments at all levels, 3000 counterparts in approximately private sector, civil society, and exter- 100 countries. They work together to nal development partners. achieve greater impact by their collec- tive efforts, as is illustrated in box 1. Box 1. Sahelian cotton farmers in Cancun As of the early 1980s hundreds of village-based farmers’ associations were founded in the Sahel countries of West Africa. Intermediary NGOs, which invested in enhancing the organisational capacities of the village associations, received subsequent support from Oxfam Novib. Realising that local solutions were not sufficient, local groups of farmers, cattle owners, fishermen and women in different parts of the Sahel started forming national federations. With the help of the intermediary NGOs, they linked up with each other and formed regional unions. Meanwhile, Oxfam Novib shifted its support from the intermediary NGOs to the farmers’ and other sectoral associations and their federations. In 2000, Sahelian farmers’organisations set up a regional farmers’ organisation, ROPPA (Réseau des Organisations Paysannes et des Producteurs Agricoles de l’Afrique de l’Ouest). ROPPA was a response to the negative effects of globalisation on Sahelian cotton farmers whose income had dropped after the price of cotton fell on the world market. Sahelian cotton farmers were now confronted with American and European government’s subsidies to their own cotton farmers. In 2003, together with Oxfam International, ROPPA defended the interests of Sahelian cotton farmers, at the WTO meeting in Cancun. Source: Novib in Action The mission of Oxfam Novib is ‘to pro- bility and mutual solidarity’. Operating mote a global society where the so- from one central office in The Hague, cio-economic inequalities between rich Oxfam Novib works with civil society, and poor are eradicated, where the governments and the private sector world’s prosperity is distributed more to halt poverty and injustice, believ- justly and where people and sectors ing that every member of this triangle of the population can learn about and (Figure 1) has a role and responsibil- respect each other’s culture, while ity to act.4 working together on their develop- ment on the basis of shared accounta- The Oxfams understand poverty to 156 15, July 2007  …but conservation and human rights What can Conservation canalso ARE work in Human undermine mutual Rights, Human support… anyway? Rights... Oxfam’s RBA: Principles In adopting a RBA, Oxfam’s work became centred and framed around rights. Five Rights Based Aims became the cornerstone of Oxfam’s Strategic Plan, Towards Global Equity. Oxfam believes that all people have: X The right to a sustainable livelihood (Aim 1) X The right to basic services (Aim 2) X The right to life and security (Aim 3) be a state of powerlessness in which X The right to be heard (Aim 4) people are unable to exercise their X The right to an identity— gender basic human rights or to control as- and diversity (Aim 5) pects of their lives. Human rights are acquired at birth and belong to all hu- These rights are enshrined in interna- man beings regardless of their colour, tional agreements and covenants, in ethnicity, gender, sexual orientation, the domain of human rights6, labour language, religion, etc. Human rights rights (adopted by the ILO), environ- apply to all people wherever they live. mental rights (ratified by individual The Oxfams believe that poverty is states) and rights protected by hu- almost always rooted in human ac- manitarian law (“the Geneva conven- tion or inaction. “It tions”). Oxfam defined its programme Poverty exists be- can be made worse around these five rights, which are tween continents, by natural calamities, interrelated, interdependent and in- between countries and human violence, divisible: the right to a sustainable livelihood is hard to achieve without and between popu- oppression and en- the right to be heard, nor can the vironmental destruc- lation groups. It tion”.5 Poverty exists right to an identity be exercised with- is a symptom of between continents, out due respect for the right to basic deeply rooted in- between countries social services or the right to life and security. equities and un- and between popula- tion groups. It is a equal power rela- symptom of deeply In order to bring significant and sus- tionships …. rooted inequities and tained positive changes in the lives of unequal power rela- people who are affected by poverty, tionships which are institutionalised injustice, insecurity and exclusion, through policies and practices at the Oxfam seeks changes in policies and state, societal and household levels. practices at various levels: interna- Some of these are rooted in age-old tional, national, sub-national, commu- injustices and others are more recent nity, and household levels. In this way, in origin. To end this state of poverty, unequal power relationships that per- ‘business as usual’ is not an option. In petuate poverty and marginality can be November 2000, the Oxfams decided challenged and reversed. Table 1 illus- to adopt a RBA. trates the kinds of changes Oxfam sup- ports to make this occur in practice.7 15, July 2007 157 Conservation and Human Rights Table 1. Examples of rights-based changes in policies and practices RANGE THE OXFAMS' GOVERNMENTAL AND CORPORATE RELIGIOUS, CULTURAL AND SOCIAL FIVE AIMS LAWS AND REGULATIONS AND THEIR BELIEFS AND THEIR OBSERVANCE ADHERENCE Changes in Changes in Rights Changes in Policy Changes in Policy Practice Practice To a Parliament passing Ministry of Agro-industry recog- Commercial sustainable a law mandating an Agriculture nising the economic farmers adopt- livelihood agrarian reform. distributing land potential of farming ing large-scale titles to landless without intensive organic farming peasants. chemical fertiliser practices. and pesticide use. To basic Ministries of Health Pharmaceutical Roman Catholic Religious faithful social and Commerce ruling companies initiat- archbishop modify- massively us- services that the importa- ing local manu- ing religious doctrine ing condoms to tion and production facture and sale to permit the use of block the trans- of generic anti-viral of low-cost anti- condoms. mission of the medicines will be per- virals. AIDS virus. mitted. To life and Interior Ministry Civilian popula- Families chang- Communities security emitting a decree tion stopping the ing their belief that implementing prohibiting the public carrying concealed nothing can be done flood disaster from carrying con- weapons in public. in the face of peren- preparedness cealed weapons. nial flooding. plans. To be Referendum and Citizens participat- Citizens' groups Civil society or- heard— constitutional amend- ing in the mu- becoming convinced ganisations act- social and ment requiring that nicipal budgeting that governmental ing as watchdog political local government process. corruption must be on municipal citizenship consult citizens on combated. officials. budget planning and execution. To an Managers Association Members of mi- Community elders Parents support- identity— adapting corporate nority groups file declaring every ing girl students gender and guideline prohibiting increasing number woman's right to be in denouncing diversity ethnic discrimination. of formal charges free of domination sexual abuse for corporate har- by men. by their male assment. teachers. Equity and justice are key principles carry responsibility for securing not for the realisation of these rights and just their own rights, but the rights of are at the heart of all of Oxfam’s pro- other people as well. Building an active grammes. Other principles such as worldwide citizenry, and strengthening inclusion, responsibility, participation, the relationship between citizens and citizenship and accountability have the State are key to an RBA. Every- been worked out in ‘Global Change one everywhere must be able to par- Objectives’ that the Oxfams have iden- ticipate in changing the world into a tified in their new Strategic Plan, De- fair place, where prosperity does not manding Justice.8 All the world’s people cause poverty and where social justice 158 15, July 2007  …but conservation and human rights What can Conservation canalso ARE work in Human undermine mutual Rights, Human support… anyway? Rights... has the same importance as economic RBA and poverty growth. Governments and civil soci- As mentioned, poverty is charac- Everyone everywhere ety need to be strong enough terised by a lack of power. People living in poverty have little or no must be able to partici- to ensure that control over their own lives. Poverty pate in changing the corporations hits vulnerable groups harder and world into a fair place, meet social and reinforces the vicious circle of pov- environmental erty-powerlessness-conflict-environ- where prosperity does standards. This mental degradation-poverty. Oxfam not cause poverty and entails building Novib seeks to turn this vicious where social justice has a world-wide circle (Figure 2) of inequity into a the same importance as constituency economic, so- for virtuous cycle (Figure 3), in which women and men, as rights holders, economic growth. cial, cultural and can seek redress for violations of political rights, their rights and in which duty bear- promoting inclusive citizenship and ers take their responsibility towards participation; and changing ideas, at- rights-holders. titudes and beliefs. In international law, the state has the A RBA: How is it done? ultimate responsibility to protect and To better understand to what extent safeguard rights. In the virtuous cycle and how Oxfam Novib and its coun- of an RBA to development (Figure 3), terparts work with an RBA, in 2005, any actor (as rights holder) can seek we undertook an internal study.9 The redress from an identified duty bearer, study analysed 24 projects/programs and any actor (in his/her role of duty of Oxfam Novib and its counterparts. bearer) should make efforts to ensure In the absence of an Oxfam defini- that rights of others are met. An organi- tion of the RBA, we developed an “RBA sation such as Oxfam can switch roles checklist” with elements, based on and positions: it can be a duty bearer Oxfam principles and other character- when it comes to the rights of its ben- istics, commonly identified for the RBA. eficiary groups, but, in an another in- These elements include: participation, stance, together with the same benefici- holism, accountability, universality and ary groups, it can act as a rights holder interdependence of rights, non-dis- vis a vis the State, the duty bearer. crimination and empowerment.10 15, July 2007 159 Conservation and Human Rights Analysing the interventions gave en- Obviously, many of these come back couraging results. In all cases, organi- to general principles of ‘good program- sations applied more than one of these ming’. What is new From an RBA, elements. For example, in most cases, is how an analy- organisations have a holistic approach. sis is weighed and the process is as This entails making a good analysis labelled (injustice, important as of the situation at hand and shedding violation of rights, the outcome. In light on who is to be held responsible inequality) and how conventional for the state of injustice. The study redress is sought also revealed that interventions that to set right what is approaches to operate at multiple levels, such as the wrong. Hence, what poverty reduction, it micro level (e.g. working with benefi- is important to em- is only the outcomes ciary groups)11 and macro level (e.g. phasise that from influencing states), and where the an RBA, the proc- that matter. supposed beneficiary groups actively ess is as important as the outcome. participate, generate better and more In conventional approaches to poverty sustainable results than interventions reduction, it is only the outcomes that that either aim at ‘service delivery’ matter. Finally, the language of rights or ‘advocacy’ alone. Finally, the study (based on internationally agreed con- revealed that what at first appears to ventions and treaties) makes a clear be ‘RBA’, such as legal aid to indigent statement: rights are inalienable and women, may not necessarily ‘be’ RBA, universal for all people, without dis- whereas providing technical assistance tinction as to gender, race, caste or to farmer groups can qualify as RBA. religion. The secret in identifying genuine RBAs lies in the analysis of the situation and RBA, poverty, and in the process of seeking accountabil- environmental degradation ity and redress. In the above example, The main catalyst for Oxfam Novib to providing technical assistance to farm- integrate RBA and environment stems ers can be as empowering as provid- from the simple fact that the organisa- ing legal aid to women, provided that tions we support work predominantly the organisation empowers farmers to with the rural poor. Poverty continues claim their rights. to have a rural face.12 The livelihoods of rural poor men and women depend The study has helped Oxfam Novib to directly on unspoiled natural resources, further define what good RBA practice from which they obtain food, housing, is. An RBA comes first of all with an energy, water, medicine and income. accurate holistic analysis of the rea- When the natural resources they use sons that generate inequality by and are degraded, they have even fewer with those women and men who (con- opportunities to get out of poverty. tinue to) directly suffer from poverty Therefore, environmental degradation and injustice. How did the situation further perpetuates the vicious cycle come about? Who can be held account- of poverty and exclusion. Moreover, able? How can the situation be re- poor people, particularly women, are dressed? Who has the power to make generally most vulnerable to natural changes? This analysis informs the disasters such as floods or droughts choice of strategies that the organisa- because their limited access to assets tion will use. means that they have low resilience to induced changes or shocks.13 Hence, 160 15, July 2007  …but conservation and human rights What can Conservation canalso ARE work in Human undermine mutual Rights, Human support… anyway? Rights... when a disaster strikes, they are political power, so that resources of the plunged into deeper poverty. physical environment are also about issues of control, power, participation Accordingly, the concept of sustainable and self-determination. livelihoods developed in the 1980s is key in guiding Oxfam Novib’s approach By uniting the concepts of sustainable to environment. This concept emerged livelihoods and power, Oxfam Novib to redress many issues afflicting ru- wants to address issues of access to ral development at the time. Perhaps and control over natu- Issues of access to the issue of paramount importance ral capital by poor men for development practice and theory and women. It also and control over was returning agency to the people seeks to change the natural resources on whose behalf development was structures that per- are complex and undertaken. The concept of sustain- petuated their exclu- are determined by able livelihoods refocused development sion and to promote as praxis and agency. Chambers, for the development of many of the same example, pointed out “the environ- policies and institutions structures that ment and development are means, not to protect and pro- generate poverty ends in themselves. The environment mote their interests. In and development are for people, not funding environmental and exclusion. people for environment and develop- projects, guiding principles are partici- ment”.14 He argued for an emphasis on pation, accountability, and empower- “sustainable livelihoods” which ena- ment, all of which are also part of RBA. bled causal connections to be made These concepts and principles guide between development and livelihood Oxfam Novib’s funding priorities when and between environment and liveli- it comes to environment issues. A con- hood. For development practitioners, siderable amount of the environment the concept of sustainable livelihoods work that is supported falls under the provided a basis for understanding the category of the right to a sustainable relationship between poor communi- livelihood (Aim 1) and the right to be ties, their local environment and exter- heard (Aim 4). The organisations that nal socioeconomic, environmental, and we fund start from the recognition that institutional forces. in rural areas the capacity to resist poverty and to improve livelihoods The other guiding concept that informs often depends on opportunities offered Oxfam Novib’s work on environment by natural resource-based produc- is power. For development practition- tion systems, conditioned by the wider ers, the Brundtland Report15 was a economic, institutional, and political landmark in that it acknowledged and environment. The organisations as- expanded the linkages between envi- sess which assets are used for exist- ronment and development and high- ence (including those owned and those lighted that the distribution of power obtained through formal or custom- and influence lie at the heart of most ary rights or through exchange), how environmental and development chal- they are used in livelihood activities, lenges. More importantly perhaps for and who uses which resources and for Oxfam Novib was that the Report reit- what ends. It is important to empha- erated that many problems of resource size that livelihood activities are not depletion and environmental stress narrowly conceived as purely utilitar- arise from disparities in economic and ian economic driven activities. Rather 15, July 2007 161 Conservation and Human Rights livelihood activities are appreciated for needs to change, and how this change the meaning they give to people’s lives can come about. Control and therefore and their aspirations. Hence, environ- power are central to discussions of ment is also important for aesthetic, environmental management. It is par- identity, and religious reasons. ticularly important to include marginal groups, ethnic minorities, and women, Issues of access to and control over since they are often the ones who not natural resources are complex and only rely most heavily on the environ- are determined by many of the same ment but also have knowledge of the structures that generate poverty and environment and perceptions of what exclusion. Even at the local level where the problems are. Involving people in natural resources are often described the analysis of problems means that as “public” goods— open to everyone— they can be part of the solutions. in practice communities are not ho- mogeneous and more powerful groups Thus, inclusion in problem definition have easier access to these resources and proposal making is the first step and hence can benefit from them more in empowering people to address the than others. In our experience, wom- structures that generate and perpetu- en, for example, are more likely to ate inequality in the use of natural depend on open-access resources such resources. Intervention strategies are as forests and wetlands for subsist- then aimed at enhancing a groups’ ca- ence and income generation. Yet, when pacity to claim their rights, strength- it comes to running or participating in ening their voice in decision-making institutions responsible for their man- processes at all levels, and increasing agement, women are impeded from their access to resources. Indeed, we doing so due to a number of barriers find that although people may have associated with class, class, ethnicity, some statutory or customary rights, etc. and to the difficulties of combining often these are either unrecognised or household and child care practices with unprotected by the state. In such cas- public functions. es, people are fairly easily displaced and not given proper compensation. Accordingly, bringing an RBA perspec- Moreover, court and legal instruments Bringing an tive to environmental are often inaccessible because of programs begins with costs, corruption, or simply because RBA perspective a thorough analysis they are often physically not easily to environmental of local realities, men accessible to poor people, particularly programs begins and women’s percep- women. with a thorough tions of the problem, and their proposals Furthermore, many of the organisa- analysis of local on ways of tackling tions that we fund operate in coun- realities, men and them. Any attempt at tries where external bureaucracies women’s percep- RBA and environment blame poor people for environmental tions of the prob- must begin with a thorough understand- degradation and where standard envi- ronmental packages are applied with lem, and their ing of local context, a no regard for local knowledge, local proposals on ways power analysis (in- actors and the diversity between and of tackling them. cluding an analysis within ecosystems. In their efforts to of decision making control the use of natural resources, powers and protection by law), of what powerful groups will create and cir- 162 15, July 2007  …but conservation and human rights What can Conservation canalso ARE work in Human undermine mutual Rights, Human support… anyway? Rights... culate myths that portray local users conservation issues and empowering as the cause of environmental degra- people. Empowering approaches need dation. Peluso has noted that all too to be created to bring together differ- often state agencies depict local users ent knowledge systems to promote as wild, uneducated, or backwards in collaboration and mutual learning. their efforts to impose state resource management policies that benefit the Changing bad policies into good powerful.16 ones: Linking levels and actors Oxfam Novib supports organisations Yet, experiences from numerous coun- to change bad policies and practices. tries show that poor people are not to Bad policy hurts people, especially blame for the deterioration of natu- poor people, and contributes to envi- ral resources.17 In fact, communities ronmental deterioration. Good policy can play an active role in conserva- protects people, especially those tion when their own tenure and access who live in poverty, and protects the rights are secured, when benefits are environment. Changing policies from equitably shared, and when govern- bad to good, or creating policies that ment provides a supportive legal and protect the interests of poor men and institutional framework that protects women requires a long-term vision. their rights. And although for some conservationists and state environ- Policy-making is a complex, tedi- mental agencies, conservation may ous, messy and often untransparent entail keeping humans out, we have process. It is nothing like the com- found the opposite. In the countries mon perception of a rational objective where we work, most progress is made problem solving process. In reality, on common ground— where securing policy making is infused with political environmental rights for local liveli- interests, involves diverse social ac- hoods also provides a basis for better tors holding different kinds of power stewardship. and representing different groups, and depends on different discourses and This may be an unsatisfactory answer narratives.18 Given this, our general for some conservationists who believe approach is to support spaces and that enclosure is necessary to protect practices that allow poor people, who biological diversity. Such a perspective historically have been ignored in the clashes with the RBA that we adopt in policy making our environmental work. Depending on Policy-making is process, to voice the context, enclosures may seriously their concerns. a complex, tedious, undermine the livelihoods of poor This requires messy and often people who depend on them. More importantly, people are not simply bad enhancing peo- untransparent process. ple’s capacity It is nothing like the or good stewards. They learn how to and supporting be good and responsible stewards of training and edu- common perception the environment. Culturally meaning- cation (see Box of a rational objective ful ways can be found to show men 2). In our view, and women how they can best use problem solving integrating an and conserve natural resources. It is RBA approach to process. necessary to draw on both the insights environment works to ensure that the of science and local knowledge to de- policy-making process is both partici- velop effective strategies for tackling patory, inclusive, and transparent. 15, July 2007 163 Conservation and Human Rights Box 2. Changing practices and policies through environment education Oxam Novib has been funding the Education Initiative for Water (EIW) program of WWF-China since January 2001. EIW aims at developing the capacity and responsibility of teachers and stu- dents to the environment through community based projects. Designed as part of WWF China’s Environmental Educators’ Initiative( EEI), EIW focuses specifically on primary and middle school students in Beijing. EIW introduces an alternative to the current educational system in the form of student-centred, active learning through real world problem solving and community service. In the first phase (2001— 2004), the EIW partnership was a joint effort between WWF China Educa- tion Program, Beijing Normal University (BNU) and People’s Education Press (PEP). Oxfam Novib is supporting the upscaling of the EIW program in a project entitled “Sustainability Education Initiatives for Communities and Water”. The rationale for this upscale is twofold: first, this is an investment that is consistent with Oxfam Novib’s regional thematic focus in the East and Southeast Asia region. Funding support to counterparts moves beyond basic literacy and basic social services delivery to supporting programs that link directly to sustainable livelihoods targeting minorities and indigenous people, and with a strong policy advocacy framework. Two independent evaluations in 2004 showed that the program has achieved significant impact on both practice and policy change. For example, following a complaint by students, who had ob- served disabled park users’ difficulties, Taoranting Park is reviewing its disabled access facilities. The students have also put forward suggestions for improving zoning of recreational activities within the park, and proposed a biological (rather than chemical) solution for a persistent algae bloom in the park lakes. Yaerhutong students have successfully campaigned for the relocation of a soy sauce factory, after local residents identified water pollution from the factory as a serious concern. They also negotiated a code of conduct on emissions with the entertainment business association of the popular recreational area around the Three Lakes, implementation of which the students will monitor. Oxfam Novib will contribute to the consolidation and dissemination of the project by support- ing: (a) expansion of the EIW to other schools in Beijing and initiation of a rural pilot project of the same; (b) development of Shangri-la Sustainable Community Initiative (SSCI)/Community Learning Centres. The latter aims at using education as a means to empower Shangri-La’s lo- cal communities (in the north west of China’s Yunnan Province) to manage their resources in a sustainable manner. Source: Oxfam Novib files Working at this level requires a long- ethnic minorities, and illiterates. term perspective to promote social learning and achieve sustainable re- It also entails supporting advocacy sults. This entails building relationships and lobby activities, as well as policy with different groups as they all have a relevant research. Demands are more role to play. Within this process, partic- likely to produce change if they are ular spaces and innovative means (see accompanied with data and realistic Box 3) have to be found to reach out to suggestions about how change can be the most marginal, including women, accomplished. Box 3. Bringing the legal system to bear on the environment The Bangladesh Environmental Lawyers Association (BELA) started in 1991 as an advocacy group of young lawyers developing techniques and strategies with the legal regime for environmental protection. The organization has adopted various means to create awareness amongst major actors and the common people. As a lawyers’ group, BELA has always emphasized and advocated 164 15, July 2007  …but conservation and human rights What can Conservation canalso ARE work in Human undermine mutual Rights, Human support… anyway? Rights... wider participation in law making and policy planning. Regarding achievements, Bangladesh’s first environmental litigation was filed and fought by BELA in 1994. In 1995, the Supreme Court directed the government of Bangladesh to implement the Flood Action Plan (FAP) only after following certain legal procedures that involve assessing compensation claims of the affected people. BELA also works on raising environmental law awareness amongst different groups. In a country with high illiteracy rates, this requires using stickers, cartoons, etc. Awareness raising is also done with young people. School students who are likely to bear the consequences of environmental degradation in the future have been identified as a target for BELA’s work. BELA launched an educational program to teach students about their environmental rights and duties. BELA has been undertaking training program for lawyers, NGO workers, journalists, statutory officials and others since its inception. These training programs increase the level of understanding about environmental issues and corresponding laws. Source : Oxfam Novib files Rights and responsibilities means that we are constantly exploring Up till now, we have talked of rights and learning about the origins of pov- and how they relate to environment erty, rights violations, environmental and development. From a RBA, the degradation, and exclusion. On envi- state bears ultimate responsibility for ronment, our entry point is livelihoods upholding and protecting rights, includ- and empowering poor men and women ing the right to live in a satisfactory to claim and use natural resources in environment. States must meet their a sustainable manner. We look at sus- responsibility and should be supported tainability holistically: sustainability to do so. relates not just to natural resources or physical capital, but also to the larger Responsibility for environment, poverty institutional framework. The right insti- and exclusion cannot be left to gov- tutions are critical to assure sustainable ernments and powerful groups alone, use of natural resources. Therefore, a however. It is too important for that. It considerable amount of the work we needs to be everyone’s business. It re- support is focused on enhancing peo- quires fostering personal responsibility ple’s capacities so that they can de- and a more active citizenship. A RBA mand and participate in creating and/or to environment, even more than an reforming policies and institutions to RBA to development, calls seriously for better serve their needs and protect joint work in mutual solidarity (or what their rights. Oxfam Novib calls ‘shared self inter- est’). Everyone has an obligation to- Obviously, there are issues— trade wards each other, the earth, and future offs— that we struggle with. Trade generations. In particular, it requires off is a term that is often all too eas- engaging elites— those who have ily used in contemporary development power— and convincing them that it is work, particularly by economists. From in their interest to share their power the work that we support, poor peo- and privileges. ple are continuously asked to make very painful trade offs: sending a girl Reflections to school or keeping her home to fetch water 5km away from the house be- For Oxfam Novib, working with a RBA 15, July 2007 165 Conservation and Human Rights cause the local river has become too Conclusion polluted to use. These are the kinds We have related how RBA to develop- There can be in- of trade offs that ment seeks to transform the vicious stances where prevent people from circle of poverty and marginalisation realizing themselves, into a virtuous cycle in which people maximising short violate their rights, can seek the fulfilment of their rights term needs takes and can plunge them from duty-bearers. Operationalising a precedence over into deeper poverty RBA to development requires prioritis- long-term sus- and exclusion. How can trade off issues ing a situational analysis that looks at issues of power and is done with tainability, as the be dealt with in a way the active participation of the people urgent problems of that protects and pro- who are struggling to get their rights immediate sur- motes people’s rights heard. Likewise, connecting rights and promotes sus- to environment forces us to ask the vival are likely to tainable development same questions as those lying behind displace concern in a just manner? poverty and injustice. How has this for long-term eco- situation come logical integrity. Also, there can be about? Who is More and deeper instances where max- responsible for exchange is needed imising short term needs take prec- its perpetua- edence over long-term sustainability, between rights based tion? How can we as the urgent problems of immediate redress the situa- development practi- survival are likely to displace con- tion? Formidable tioners, conservation cern for long-term ecological integrity. challenges re- and environmental When does achieving livelihood objec- main. In substan- specialists, and peo- tives compromise the livelihood op- tive terms, part portunities of others within the same of the challenge ple who have to weigh or future generations? The sustainable is to pursue more and make daily livelihoods approach recognises these convincing ana- decisions to protect trade-offs, but does not yet suggest lytical work. An- how they might be resolved. In theory their own and their other important human rights can compete with each part is to work children’s future. other. In such cases it is up to the towards changing policies, practices, courts to decide which right will pre- beliefs and ideas. And finally there is vail. However, in the case of ‘personal need to further build and reinforce the integrity’ rights, even in the case of capacity of both rights holders and public emergency, no derogation of duty bearers, so that the enjoyment such rights is allowed, according to of rights becomes a reality, rather international human rights law.19 It is than just an intention on paper. on issues such as these that more and deeper exchange is needed between Finally, a RBA to environment deserves rights based development practition- and requires a sense of urgency that is ers, conservation and environmental shared by people, organisations, gov- specialists, and people who have to ernments and business alike, and that weigh and make daily decisions to transcends North-South thinking and protect their own and their children’s fields of work— environment, develop- future. ment or rights. 166 15, July 2007  …but conservation and human rights What can Conservation canalso ARE work in Human undermine mutual Rights, Human support… anyway? Rights... Gina E. Castillo (Gina.Castillo@Oxfamnovib.nl) has a Ph.D. 19 See article 4.2 of the International Covenant on in anthropology and works as livelihoods advisor at Oxfam Civil and Political Rights Novib. In her spare time, she practices urban agriculture on her balcony. Marjolein Brouwer (Marjolein.Brouwer@Oxfamnovib.nl) holds master degrees References in criminology and law and joined Oxfam Novib 11 years Boyle, A.E. and M.R. Anderson, Human Rights Ap- ago as a rights advisor. Before that she worked for various proaches to Environmental Protection, Clarendon UN agencies and Amnesty International. Press, Oxford, 1996. Bruntland, G. et al., Our Common Future : World Notes Commission on Environment and Development, 1 Boyle, 1996, p3. Oxford : Oxford University Press, 1987. 2 “ Article 1 of the Declaration on the Right to Chambers, R., Sustainable Livelihoods, Mimeo, Uni- Development, UN General Assembly resolution versity of Sussex, Institute of Development Studies, 41/128 of 4 December 1986. 1986. 3 By the beginning of 2007, the Oxfam-group was CGIAR (Consultative Group on International Agricul- made up of Oxfam Australia, Oxfam Solidar- tural Research), Charting CGIAR’s future: a new ité (Belgium), Oxfam Canada, Oxfam Québec, vision for 2010, 2000. Available from: http://www. Oxfam Deutschland (Germany), Oxfam France, rimisp.cl/cg2010b/doc4.html#_ftn1. Accessed on 12 Oxfam GB (Great Britain), Oxfam Hong Kong, February 2007. Oxfam Ireland, Oxfam Novib (The Netherlands), Gready P. and J. Ensor, Reinventing development? Oxfam New Zealand, Intermón Oxfam (Spain) Translating rights based approaches from theory and Oxfam America (United States). into practice, London: Zed Books, 2005. 4 In 2004, Oxfam Novib had 148 million euro IFAD (International Fund for Agricultural Develop- available for its work. Of this income, Oxfam ment), Rural Poverty Report 2001: The Challenge of Novib transferred 118 million euro to more than Ending Rural Poverty, New York: Oxford University 800 counterparts (in over 18 core countries, 11 Press, 2001. regional programmes, and one global pro- gramme). Oxfam Novib, Novib in Action, Civil Society Building: vision, policy and practice, 2004. 5 Article 6 of Oxfam International’s mission Oxfam Novib, How an RBA works in practice: explor- 6 The primary frame of reference is the Universal ing how Oxfam Novib and its counterparts apply an Declaration of Human Rights (UDHR) and the RBA, (Brouwer, M. and Pena, N.), 2006. subsequent International Covenants on Econom- ic, Social and Cultural and on Civil and Political Oxfam International, Towards Global Equity, OI Stra- Rights (ICESCR and ICCPR, respectively). To- tegic Plan 2001-2006, 2000. gether they form the International Bill of Rights, Oxfam International, Demanding Justice, OI Strategic which contains the basic minimum conditions Plan 2007-2016, 2006. that all human beings are entitled to. Peluso, N.L., "Reserving Value: Conservation Ideol- 7 Wilson-Grau, 2004. ogy and State Protection of Resources." in, Peter 8 Oxfam International, 2006. Vandergeest and Melanie Dupuis, eds., Creating the Countryside: Concepts of Rurality, Country, and Wil- 9 The study “How an RBA works in practice” can derness, Chapel Hill: Temple University Press, 1995. be downloaded from the RBA pages at www. oxfamkic.org. Hard copies can be obtained from Pimbert, M., Transforming Knowledge and Ways of the authors. Knowing for Food Sovereignty and Bio-Cultural Diversity, Paper prepared for the Conference on En- 10 The full text of the checklist can be found in An- dogenous Development and Bio-Cultural Diversity in nex 1 of the study. Geneva, 3-5 October 2006. http://www.iied.org/NR/ 11 Like many others, Oxfam struggles with how agbioliv/documents/FoodSovereigntyBio-CulturalDi- to define the people who benefit from Oxfam versity.pdf Accessed February 2, 2007. supported programmes. Oxfam Novib uses the Shore, C. and S. Wright (eds), Anthropology Of Policy: words ‘project participants’ and ‘beneficiaries’. Critical Perspectives On Governance And Power, Oxfam America uses the word ‘primary change London: Routledge, 1997. agents’. To our knowledge, none of the Oxfams uses the word ‘rights-holders’ for women and Wilson-Grau R., PPCs: Novib and Policy and Practice men who benefit from programmes. Changes, Concepts and Some Examples, Draft pa- per for Oxfam Novib, 2004. 12 Estimates of rural poverty range from 62% (CGIAR 2000) to 75% (IFAD 2001) of all poor World Health Organization, “Was 2005 the year of people. natural disasters?” Bulletin of the World Health Organization, 2007 http://www.who.int/bulletin/vol- 13 See WHO, 2007. umes/84/1/news10106/en/print.html Accessed 21 14 Chambers, 1986, p7. March 2007 15 Brundtland, 1987. 16 Peluso, 1996 in Pimbert, 2006. 17 See Pimbert, 2006. 18 See Shore & Wright, 1997. 15, July 2007 167 Conservation and Human Rights Applying a rights-based approach to conservation— experience from CARE’s Rights, Equity and Protected Areas Programme in Uganda Phil Franks Abstract. Rights based approaches provide a lens and a tool box for understanding and addressing issues of governance and specifically the underlying causes of poverty, environmental degradation and injustice related to power. This article illustrates the application of this approach within CARE International and specifically in CARE's Rights, Equity and Protected Areas programme in Uganda, emphasising procedural rights of access to information, participation and justice. The article demonstrates that working to ensure procedural rights can be an effective entry point for positive social and environmental impacts. Human rights are the universal rights of all individual human beings, regard- less of ethnicity, nationality, religion or sex, based on inherent human dig- nity. These include both substantive rights— i.e., to the substance of human well-being (life, food, housing, water, a healthy environment)— and procedural rights— i.e., to procedures that help protect and fulfill substantive rights (access to information, participation in and influence on decision-making, and access to justice/legal redress). All of the above mentioned substantive rights are enshrined in international human Picture 1. Assessing the costs and benefits of rights instruments with the notable ex- Queen Elizabeth National Park using participa- ception of the right to a healthy envi- tory environmental valuation. (Courtesy Phil Franks) ronment. F ocusing on CARE’s work in Uganda, this article illustrates the application There has been much progress in establishing procedural environmen- tal rights in the last fifteen years. This of a rights-based approach (RBA) to progress comes A rights-based promote more equitable sharing of the in large part from costs and benefits of biodiversity con- Principle 10 of the approach empowers servation. This experience from Uganda people to understand, Rio Declaration, shows the value of working with pro- but most notably claim and exercise cedural human rights in addressing the from the Aarhus relationship between human rights and declaration, a Eu- their rights. environmental concerns. ropean convention that establishes these procedural rights as a means to 168 15, July 2007  …but conservation and human rights What can Conservation canalso ARE work in Human undermine mutual Rights, Human support… anyway? Rights... deliver on the substantive right to a stitution as an objective rather than healthy environment. Although the Aar- an explicit right within the chapter on hus convention applies only in Europe, rights. There is also no explicit en- this convention has influenced work on dorsement within Ugandan policy or environmental human rights in many law of the principle that PAs should “do other countries.a no harm”— the principle at the heart of the recommendation on Poverty and The RBA empowers people to under- PAs of the 2003 World Parks Congress. stand, claim and exercise their rights. So, although these internationally ac- In other words, the “states and their cepted rights and principles strengthen subjects” become the “states and their the moral case for action, they offer citizens with rights”. In law, rights are little in the way of practical means of protected and fulfilled through placing addressing the problem. a legal obligation upon a “duty-bearer”. RBA is as about holding duty-bearers The constitution of Uganda does, how- accountable for protecting and fulfilling ever, establish the substantive human rights as it is about strengthening the right to a healthy environment, and provisions that define rights. in a few cases this has been used to the advantage of local communities. There is widespread recognition that in Viewed from a national (i.e. aggre- many developing countries protected gate) level, Uganda’s PAs are certainly Conservation areas (PAs) impose negative impacts on helping to contribute to protection and fulfilment of this right through secur- activities may be local communities ing environmental services (watershed undermining the living in and around protection, biodiversity conservation) , substantive hu- these areas, and that but from the perspective of poor, park- in many cases these adjacent communities, this does not man rights of costs are not bal- compensate for the negative impacts of poorer, marginal- anced by the benefits the PAs on their livelihoods. ised groups generated by the PA. In other words, CARE’s work with protected areas in the rural poor frequently experience Uganda has emphasised three major a net negative impact (cost) on their livelihoods.b Recent studies of two PAs in Uganda confirm this scenario.c These studies also indicate that poorer households tend to bear higher costs in relative terms. So at least in these cases, it would appear that conserva- tion activities may be undermining the substantive human rights of poorer, marginalised groups— notably im- pacts on the right to food arising from damage to crops by wild animals and displacement (reduced access and in some cases physical displacement from farming/grazing lands). Although the Picture 2. Batwa leader Diveera on the right to food exists in international land that she could lose to the park. law, it is appears in the Ugandan Con- (Courtesy Phil Franks) 15, July 2007 169 Conservation and Human Rights concerns of local communities— crop It is assumed that the government will damage by wildlife, displacement now amend the gazettement notice, (physical relocation and loss of access), but in the event that they fail to do so, and the sharing of benefits derived the communities also have the consti- from tourism. This article focuses on tutional right to challenge the action of physical displacement and tourism rev- the government in the courts. enue sharing, which we have addressed primarily through procedural rights. In terms of benefits from PAs to ad- jacent communities, Ugandan law Although physical displacement of peo- requires Uganda Wildlife Authority to ple resulting from the establishment or allocate 20% of the park entry fees There have been expansion of PAs has paid by tourists to communities bor- been a major problem dering the PA. According to the Tour- few cases of dis- in Uganda in the past, ism Revenue Sharing policy of 2000, placement in re- there have been few this is specifically intended to mitigate cent years because cases in recent years negative impacts of the PAs on these of the strengthen- precisely because of communities in recognition of the fact the strengthening of that they shoulder a disproportionate ing of property property rights (in- burden of the costs of conservation. rights and proce- cluding customary) In terms of implementation, the policy dural rights. and procedural rights. requires local government to take the The case presented lead in facilitating a transparent proc- here is the result of an unfortunate ess of project selection, oversight, and mistake, but it illustrates efforts to use accounting. The work of CARE and these rights to remedy the situation. its local partners has focused on giv- The problem arose in 2002 when a bill ing communities access to information was submitted to parliament to extend on the law and policy, and promoting the boundaries of Bwindi Impenetrable accountability of local government in National Park to include an area that fulfilling its obligations in the manner was voluntarily (and amicably) va- intended. Community-based monitor- cated by local people with substantial ing of all stages of the revenue shar- compensation (financed by the World ing process, including accounting for Bank). By mistake, the gazettement funds, and continuing through project notice included an adjacent area where completion, promotes accountability of 120 families were still living. Based on past experience of the heavy hand of the state, local people feared the worst. But NGOs representing these people have been able to challenge this threat, firstly on the grounds that it violates their customary land rights, and second that even in the event of a case for compulsory purchase in the national interest, the government should have issued a statutory notice of their intention and paid “fair and adequate” compensation prior to ac- quisition of the land. The action of the Picture 3. The edge of Bwindi Impenetra- government is thus unconstitutional.d ble National Park. (Courtesy Phil Franks) 170 15, July 2007  …but conservation and human rights What can Conservation canalso ARE work in Human undermine mutual Rights, Human support… anyway? Rights... local government. These efforts have are defined and hold duty-bearers ac- highlighted many weaknesses, and re- countable for delivering on their obliga- sulted in improved implementation and tions. Most fundamentally RBA helps informed policy revision. This work is us understand and influence the power part of a broader programme of CARE imbalances that so often lie at the heart Uganda which promotes accountability of problems of governance. Changes in in service delivery, including health and power balance can be defined by, and economic development services. anchored in, rights and duties, and to a large extent these will be procedural These examples illustrate how working rights and duties. Over and above the with procedural human rights provides contribution this work may make to an entry point for addressing substan- protecting and fulfilling specific sub- tive human rights. These cases focus stantive rights, the empowerment that on issues of social equity in conserva- can be generated through working with tion that are relevant both to human RBA and procedural rights can be cru- well-being and the effectiveness and cial to enhance the human dignity at Working with sustainability of conservation itself. the basis of all human rights. Phil Franks (phil@ci.or.ke) is the Coordinator of CARE’s procedural human In this work we Poverty and Environment Network, a learning network rights provides an have found that the within CARE International focusing on natural resource management/governance, environmental and natural entry point for ad- substantive human resource-based enterprise, and climate change. Phil has rights and the “do been working in this position since 1999, and before this dressing substan- no harm” principle as Coordinator of integrated conservation and development projects in Kenya (with Birdlife International) and Uganda tive human rights. provide a useful (also with CARE). Phil is one of the longest-standing reference to inspire members of CEESP TGER and currently co-chairs the TILCEPA Task Force on Protected Areas, Equity and Livelihoods. discussion and enhance the moral authority of the process. However, in practical terms, results have been Notes achieved largely through working with 1 Pallemaerts, 2004. 2 WPC, 2003. procedural rights, and in particular the 3 CARE, AWF and IUCN, forthcoming. obligations these rights place on the 4 Mugyenyi, 2006. relevant duty-bearers. References Rights are derived from many different Pallemaerts, M. “Proceduralizing environmental rights: regimes including local statutory and the Aarhus Convention on Access to Information, customary law, national statutory law, Public Participation in Decision-Making and Access and international human rights instru- to Justice in Environmental Matters in a Human Rights Context”, Human Rights and the Environ- ments. Whether we are working with ment: Proceedings of a Geneva Environment locally, nationally or internationally Network Roundtable, United Nations Environment Programme, Geneva Environment Network, July defined rights, CARE has found RBA to 2004. http://www.environmenthouse.ch/docspubli- be an intrinsically valuable approach, cations/reportsRoundtables/Human%20Rights%20E particularly for addressing issues of nv%20Report.pdf governance of natural resources. RBA CARE, AWF and IUCN, a publication based on an unpublished 2003 work of Hatfield and Malleret- has proved to be a powerful lens and King “The economic value of the Virunga and Bwindi tool box. The lens helps us identify and protected forests”, forthcoming. understand the underlying causes of Mugyenyi, O., “Gifted by Nature, Dispossessed by Par- liament”, ACODE policy briefing paper #16, 2006 environmental degradation, poverty, WPC (World Parks Congress), Recommendation #29 and social injustice. The tools enable us on Poverty and Protected Areas, 2003. to strengthen the way in which rights 15, July 2007 171 Conservation and Human Rights In search of environmental justice— linking land rights, livelihoods and conservation in South Africa Wendy Crane Abstract. South Africa’s Cape Action for People and the Environment Programme (C.A.P.E.) seeks to conserve the globally significant biodiversity of the Cape Floristic Region, while en- suring that people are engaged in the process and benefit from conservation opportunities. Often the product of top-down conservation planning and action, landscape scale bioregional programmes run the risk of negatively impacting human rights at the local level. C.A.P.E.’s strategy emphasises collaborative approaches and partnerships among private landown- ers and existing nature reserves to promote sustainable utilisation of biodiversity. This case study explores how this approach to conservation might conflict or be reconciled with land tenure rights, and opportunities for land-based livelihoods among impoverished farm dwell- ers in the Baviaanskloof area of the Eastern Cape. S outh Africa is the third most biologi- cally diverse country in the world, with spread rural poverty. In this context the post-apartheid government must fulfil constitutional and international between 250,000 to 1,000,000 species obligations to safeguard environmental and exceptional levels of endemism.1 assets as well as Unfortunately, this global treasure also undertake land South Africa’s has the highest known concentration reform benefit- new Constitution of threatened plants, and the highest ing the previously extinction estimates anywhere in the enshrines not dispossessed. world.2 This reality coexists with an Responding to only the right to apartheid history of dispossession that the demands of environmental produced a starkly unequal land owner- the new demo- protection, but ship pattern along racial lines and wide- cratic order, South also the nation’s Africa’s new Con- stitution— widely commitment to land admired as one of reform and equitable the world’s most access to natural progressive— en- shrines not only resources. the right to environmental protection, but also the nation’s commitment to land reform and equitable access to natural resources.3 Inevitably, there is a continuous challenge of reconciling complex and often conflicting relation- ships between poverty, inequitable ac- Picture 1. The Baviaanskloof is an area of cess to resources, and the protection of exceptional beauty and biodiversity, and an important water catchment. biodiversity. (Courtesy Wilderness Foundation) 172 15, July 2007  …but conservation and human rights What can Conservation canalso ARE work in Human undermine mutual Rights, Human support… anyway? Rights... Farm dwellers constitute one of South Africa’s most mar- ginalised and poorest com- munities. Numbering nearly three million, they reside in insecure circumstances on mostly white-owned com- mercial farms. Poorly paid, geographically isolated and politically marginalised, their plight has worsened in the wake of agricultural deregu- lation post-1994, which has led to job losses, casualisa- tion and evictions.4 Although farm dwellers are a key tar- get group of the state’s land reform programme, legisla- tion designed to secure and upgrade their tenure rights has so far provided them little Map 1. Map showing location of the Baviaansk- benefit in practice.5 loof Mega-Reserve in South Africa. (Courtesy Wilderness Foundation) To fulfil its constitutional and interna- tional obligations to protect the envi- In this case study of the Baviaanskloof ronment, the state promotes conserva- Mega-Reserve, I explore possible im- tion on both public and private land. plications of this new approach for the Recent years have seen the creation of rights and livelihoods of farm dwellers biodiversity ‘mega-reserves’6— large in the area. Recent national evidence of areas under some form of protection, farm dwellers’ continuing vulnerability based on the voluntary and cooperative to evictions and loss of livelihood gives participation of private landowners— in this question added importance.9 The the Cape Floristic Region7 under the analysis draws on my field research C.A.P.E. programme.8 Conceptualised conducted in late 2005.10 as partnerships between private land owners and existing nature reserves, Description of the area the focus is on exposing people to The Baviaanskloof, or “Valley of Ba- more sustainable ways of using the boons”, is situated in the western part land and natural resources, promoting of South Africa’s Eastern Cape Province the adoption of conservation-conscious (see Map 1). It is a 75 km long valley farming methods or other land use of varying width and depth, and lies practices and, where possible, setting between two parallel east-west running aside land for formal protection. This mountain ranges: the Baviaanskloof differs markedly from the ‘fences and Mountains in the north and the Kouga fines’ approach— drawing boundaries, Mountains in the south. The eastern- regulating entry, and penalising unau- most point of the valley is about 95 thorised use— typical of many conser- kms north-west of the coastal city of vation efforts in the past. Port Elizabeth, and its most southerly point is 50 kms from the Indian Ocean. 15, July 2007 173 Conservation and Human Rights under private— largely white— own- The wider Baviaanskloof area is one ership. About 20 family-owned com- of outstanding natural beauty and mercial farms here are entirely sur- biodiversity, and an important water rounded by protected area. Less than catchment. No fewer than seven of 800 ha is under cultivation, with the South Africa’s eight biomes are repre- rest used for extensive grazing and sented there— the Fynbos, Subtropi- browsing. Vegetable seed production, cal Thicket, Nama-karroo, Succulent once a thriving industry with significant Karoo, Grassland, Savanna and Forest labour demand, has declined substan- biomes.11 It supports a high diversity of tially following the cessation of farming species, several of which are Red Data subsidies and introduction of agricul- listed— including leopard (Panthera tural labour legislation. This has led pardus), Cape mountain zebra (Equus to the loss of many permanent and zebra zebra), and grey rhebok (Pelea casual jobs since 1994. Most farmers capreolus).12 It is at the convergence now practice mixed small stock farm- of two of the world’s top 25 biodiver- ing, which is much less labour-inten- sity hotspots: the Cape Floristic Region sive. Pensioners, farm workers and and the Succulent Karoo.13 This natu- their extended families make up over ral treasure has led to part of the area 70 percent of the valley’s commu- being declared a World Heritage Site, nity,15 with many entirely dependent along with seven other reserves in the on government pensions and disability Cape Floristic Region. grants. The remainder are a mix of white farmers and their families, other The surrounding area is facing growing landowners, civil servants, and even socio-economic pressures. The local includes a small hippy community. The economy is based almost entirely on overall population currently stands agriculture, involving a mix of pastoral- at around 1000 and has been on the ism and irrigated crops (mainly citrus decline as people migrate to towns in and deciduous fruit, but also some search of work and subsidised housing. cash and seed production crops). Com- mercial agriculture is operating at or A conservation history near to capacity and there is limited Conservation in the Baviaanskloof space for growth. An overall decline in goes back to 1923 when state-owned the regional economy has been ac- land in the area was proclaimed as a companied by a general depopulation. forest reserve and water catchment Agriculture is unlikely to provide the zone. Purchase by expropriation of economic boost required to address key properties in the 1970s led to the growing unemployment, at least not consolidation of a provincial nature in the current paradigm that favours reserve system, a cluster of protected large-scale commercial agriculture. areas of which the Baviaanskloof Na- Conservation-based tourism has been ture Reserve is the focal point. During advocated as an alternative and sus- the 1980s the particular importance of tainable form of land use with the the Baviaanskloof Nature Reserve for potential to contribute to the local and biodiversity conservation and for the regional economy.14 provision of essential ecosystem serv- ices (especially water) became more While much of the Baviaanskloof is widely recognised. Additional land state-owned, in the western part of purchases increased the size of the re- the valley some 50,000 ha remains serve to about 175,000 ha by the turn 174 15, July 2007  …but conservation and human rights What can Conservation canalso ARE work in Human undermine mutual Rights, Human support… anyway? Rights... of the century.16 Further expansion of from more recent land acquisitions, the protected area is continuing up to coupled with anxieties and mistrust the present. generated by the 1997 proposal, pose major challenges to the new strategy. The long and convoluted boundary makes management of the conserva- The Baviaanskloof Mega- C.A.P.E.’s tion estate expensive. Reserve Project (BMRP) Due to its shape (see The BMRP is conceived as a 20-year underlying Map 2), the present process to conserve the area’s biodiver- philosophy of protected area is ex- sity, protect its critical role as a region- “keeping people on ceptionally vulnerable al water provider, and deliver economic the land in living to the ‘edge effect’ and the potential for benefits to surrounding communities. landscapes” differs conflicts with neigh- According to project documents20 it will stimulate a ‘biodiversity economy’21 by radically from bouring landowners is promoting alternative productive land previous concepts. high in terms of fire uses— notably though not exclusively risk, predator poach- ecotourism. Under the auspices of the ing, alien vegetation, soil erosion, Provincial Depart- water wastage etc. This situation led to ment of Economic Expansion of the a proposal in 1997 to consolidate the Affairs, Environ- reserve is primarily western sector of the reserve through compulsory acquisition of all private ment and Tourism directed towards (DEAET), a Project voluntary inclusion land inside the Baviaanskloof.17 While Management Unit this could yield many conservation (PMU) was created of private land benefits, the proposal failed to appreci- in 2003 to manage through the use of ate socio-political realities of the new the initial phase of South Africa and that the future of the formal agreements this process. The reserve as a viable conservation area with landowners. PMU operates under must take into account human commu- a sub-contract to the Wilderness Foun- nities and land use on properties ad- dation, an Eastern Cape-based NGO, jacent to the reserve. The proposition in a transitional arrangement aimed at that inhabitants simply be relocated building the provincial government’s to the nearby town of Willowmore met capacity to manage the mega-reserve with fierce resistance from all sides of project after 2008. A Baviaanskloof the Baviaanskloof community18 and Steering Committee (BSC) has been was clearly no longer viable under the formed to oversee the implementation new democratic order. The essence of the BMRP. of the proposal, however, was later taken up by C.A.P.E. when it identified Expansion of the reserve can involve the Baviaanskloof Nature Reserve and land purchase by government but is adjacent areas as a potential mega- primarily directed towards voluntary conservation area— culminating in the inclusion of private land through the present Baviaanskloof Mega-Reserve use of formal agreements with land- Project. Its underlying philosophy of owners.22 This expansion does not “keeping people on the land in living necessarily exclude the people residing landscapes”19 differs radically from there. It is the express intent of the the previous concept. Nevertheless, a BMRP that no people should be involun- legacy of expropriation in earlier dec- tarily displaced, and that where reloca- ades and resettlement issues arising tion is proposed it will only be done in 15, July 2007 175 Conservation and Human Rights is necessarily speculative. Con- certed effort by the PMU since 2003 to build a dialogue with the community has gone some way to allaying mistrust and suspicions. Through a ‘stakeholder engage- ment programme’ project staff have held numerous meetings with private landowners, farm labourers, local communities, or- ganised agriculture and others.25 A full-time community liaison manager and a landowner liaison manager conduct frequent inter- actions with different segments of the community. Throughout this process, it has been made abun- Map 2. Map of planning domain of the Baviaan- dantly clear that there will be no skloof Mega-Reserve Project. expropriation and that people will not (Courtesy Wilderness Foundation) be forced off the land. a consensual manner. In such an event, But there is scepticism about the ‘bio- the BMRP is bound by a Resettlement diversity economy’. To appreciate the Policy Framework and Process Frame- different perspectives, it is useful to work (RPF/PF) designed to comply disaggregate the community based on with World Bank social safeguard poli- varying patterns of land ownership. cies— a conditionality of GEF funding.23 Farm dwellers on private land face a The RPF/PF sets out quite stringent different situation than those occupying process and compensation standards in land recently purchased by the state. the event that the BMRP displaces peo- A group of ex-farm dwellers now own ple from land or productive resources. a farm as a collective, under a land re- It explicitly covers farm workers and distribution project. Other, mainly white dwellers and offers far greater protec- landowners can be divided between tion than the national Extension of those who depend on farming for their Security of Tenure Act (ESTA).24 livelihood, and those who have recently purchased land for its nature-based The planning domain of the BMRP cov- tourism potential. ers a vast territory around the exist- ing reserve cluster, but certain areas Farm dwellers on state land are prioritised. The western part of the Coleske farm was bought by DEAET Baviaanskloof is a major priority as it from a commercial farmer in 2001 and represents a ‘hole’ in the core of the now serves as western gateway into reserve (see Map 2). The discussion the reserve. The farmer moved off the which follows is focussed on this area. land, leaving behind a community of around 125 farm dwellers. He had em- Farm dwellers, tenure rights and ployed 8 permanent workers and many livelihoods in the Baviaanskloof others on seasonal basis. Many were The BMRP is at an early stage and any born on the farm, have lived there their discussion of impact on farm dwellers entire lives and numerous relatives are 176 15, July 2007  …but conservation and human rights What can Conservation canalso ARE work in Human undermine mutual Rights, Human support… anyway? Rights... families have had to move in with us old folks).27 The community’s contin- ued existence has become increasingly precarious. The PMU recognises that the Coleske case should trigger the Resettlement Policy Framework and Process Frame- work. People have lost jobs and access to natural resources. But moving the process forward is complicated by sev- eral factors. First, the ECPB— as man- Picture 2. The stakeholder engagement agement authority— has jurisdiction programme holds frequent meetings with communities. over resource access and utilisation in (Courtesy Wilderness Foundation) the reserve, so any agreements with the community require its consent. buried there. Initially, DEAET employed But the ECPB is very new and short on 45 people on a temporary basis under capacity. Second, there seems to be a state-funded Poverty Relief project, no consensus on whether the RPF/PF raising the community’s expectations of applies to Coleske.28 DEAET purchased job-creation in the reserve. But there the farm two years before the BMRP were problems in managing the work- officially started, and some feel that ers. There were insufficient resources DEAET should have handled any reset- for supervision, and on occasion people tlement issues then under ESTA legis- were found playing dominoes at home lation. Instead the matter was left to during working hours. Relations soured linger and ECPB is reluctant to touch it. between the reserve manager and the Meanwhile, there may well have been community. In 2004 the newly formed an influx of ‘relatives’ seeking employ- Eastern Cape Parks Board (ECPB) took ment or other benefits under a possible over as statutory authority of the re- resettlement deal. To prove or disprove serve. Poverty Relief funding ran dry anyone’s legitimate tenure rights to- and work stopped, virtually without day will require a very tricky process of notice. As the farm is now a protected forensic sociology.29 Third, the RPF/PF area, the farm dwellers’ rights of ac- was drawn up by C.A.P.E. without the cess to resources such as firewood, involvement of the Eastern Cape gov- clay, honey, natural medicines and ernment, raising questions about ‘buy- grazing have become severely restrict- in’ from those now responsible for the ed. “Die kampe is so klein, ons donk- BMRP. Fourth, delivering on the prom- ies is te swak om by die winkel uit te ises of the RPF/PF is hugely complex. kom” (the designated grazing area is As GEF funds cannot be used for imple- so small, our donkeys are underfed and menting action plans arising from the too weak to reach the nearest shop).26 policy, it requires budgetary commit- The farm store was closed down and ments and synchronised planning from people now walk over 30km for basic a multiplicity of government institutions supplies. Unemployment has made at local and provincial level. In addition younger people dependent on the to alternative land and accommodation, pensions of their elders. “Al die jong the RPF/PF provides for alternative mense met vrouens en kinders het employment, training and “measures to by ons ouens ingetrek” (the younger guarantee that livelihoods do not de- 15, July 2007 177 Conservation and Human Rights cline”— all equivalent to and preferably ists, creating new income streams. better than before.30 The RPF/PF proc- For farmers, such a shift involves two ess may be too institutionally complex types of risk. One is reduced income to be viable, especially in the Eastern from reduced stock levels in the short Cape where local government has been term, against uncertain growth of a widely criticised for insufficient capacity biodiversity economy in a more dis- and poor delivery. tant timeframe. Second, the current practice of extensive mixed stock farm- While the PMU struggles to initiate the ing enables them to spread their risk, RPF/PF process and line up the various while shifting to intensive single stock institutional actors, anger and frustra- farming increases risk. Landowners tion in the community is beginning to whose livelihoods depend solely on boil over. “Hulle het ons gesê da gaan farm income are unlikely to volunteer altyd werk wees, maar die beloftes het for such a scheme without income-re- verbreek” (they told us there would placement guarantees: “Daar moet ‘n always be work, but the promises have waarborg wees” (there has to be some been broken).31 Much is at stake— not guarantee).33 If such guarantees were just the fate of dozens of poor and forthcoming (which seems unlikely) vulnerable people, but the credibility farmers could focus on a single stock of the BMRP itself and its approach to type such as ostrich and cultivate land conservation. Across the Baviaanskloof for animal fodder in the valley near the coloured community, Coleske farm is river, thereby enabling the surrender now a constant reference point as to of significant land areas to biodiversity why conservation is bad for farm dwell- conservation and expanded tourist fa- ers. As long as the Coleske case is not cilities. Another view is that such a sce- resolved in a way that is perceived as nario is inevitable. “We have to change fair and just, the BMRP’s stated phi- our mindset, and fence ourselves in.”34 losophy of ‘keeping people on the land As new landowners with an eye on in living landscapes’ is seriously under- ecotourism withdraw grazing areas mined. from agriculture, nature is encroaching on farms and winning the battle slowly Farm dwellers on private land but surely: wild animals are increasing Farm dwellers on private land have not and predators moving in. Farmers may yet felt the impact of the BMRP— it is be forced to concentrate their crops too early to observe concrete changes and stock in central, fenced-in areas in in land use as a direct result of the order to protect them. project. Change for them will depend on whether or not landowners agree Whichever the case, most farmers to alter the way they use their land to interviewed expect neither positive nor accommodate conservation concerns. negative impacts on labour and ten- This is driven strictly by economic con- ure rights of farm dwellers. Jobs lost siderations. from herd reductions would be few and could probably be replaced by alterna- Among other things, the PMU would tive work, such as servicing camp sites, like to see farmers withdraw live- trail guides, horse treks, etc. Nor do stock from degraded mountain sides they see much room for job growth. and concentrate farming in the valley Farm workers themselves see it differ- bottom.32 Restoration of wilderness ently. Those interviewed consistently would attract greater numbers of tour- expressed concern that a reduction in 178 15, July 2007  …but conservation and human rights What can Conservation canalso ARE work in Human undermine mutual Rights, Human support… anyway? Rights... farm activity will place their jobs at associated with keeping livestock. For risk, pointing at Sandvlakte farm as poor people livestock is crucial: “die an example. The owner of this farm hoofdoel op ‘n plaas” (the main aim on stopped farming some years ago to a farm).38 If people have a quick debt focus on ecotourism leaving many farm to settle they can immediately sell off dwellers, especially women, without an animal— the easiest and quick- work. Most farm dwellers cannot see est way to convert a farm product into how they could possibly benefit from cash. Equally, they find it inconceivable tourism enterprise on land belonging to to confine their livestock to the cur- someone else. “Ons bly op wit-man se rent camps— grazing and browsing in grond” (we live on white man’s land).35 the hills is necessary from time to time Anything they do is by the grace of “die when the camps do not provide enough baas” (the master)— investment is a forage. It is particularly in this regard risk as permission can always be with- that the Sewefontein community feels drawn. Who is going to put up infra- threatened by the BMRP’s conservation structure for a kiosk? Selling vegeta- agenda. They worry about losing their bles to tourists may be an opportunity, hard-earned right to use their land as but a farm worker who fails to make they wish: “Ons vrye reg gaan bekrimp him/herself available “om in te val” (to raak” (our rights will be restricted), and substitute) on Saturdays or Sundays about being squeezed out by conserva- risks losing his job because he is too tion as the wilderness encroaches on inflexible.36 Everywhere, farm dwellers them and their animals. “Hulle vernou worry about their fate should the land- ons; ons bergwêreld word verkoop of owner decide to sell his farm to nature uitgehuur; ons veeplekke raak beknop- conservation— Coleske farm serves as pig” (our mountains are being sold or a constant reminder. rented; our grazing becomes limited).39 Ex-farm dwellers at The BMRP sees Sewefontein as an Sewefontein farm important opportunity to demonstrate Sewefontein is a land redistribution how poor people can turn the biodiver- project. In 2001, a group of 75 land- sity economy to their advantage. The less people from the Baviaanskloof farm itself holds considerable poten- pooled their government housing tial for ecotourism: stunning springs, grants to purchase the farm. Given the space for a wilderness campsite, build- limited number of houses, the major- ings suitable for conversion to guest ity of shareholders do not reside there. houses. There is ample water to sup- Some live at Coleske while others live port intensive irrigated agriculture on and work on other farms in the valley. smaller land areas. But before any Most intend to settle at Sewefontein of this can happen, the Sewefontein at some point, when they get ill, old people have more basic problems to or for one reason or another can no resolve. Like many land redistribution longer remain where they presently projects in South Africa,40 the large are. Sewefontein is their ‘insurance number of shareholders is the source policy’ against the ever-present threat of problematic group dynamics and of eviction.37 First and foremost, it of- continuous conflict over issues such as fers them a secure place to live when farm management, payment of wages they run out of options elsewhere; to members working the farm, who is second is the possibility of generating entitled to live in the existing houses, some income. The latter is invariably etc. There is general agreement that 15, July 2007 179 Conservation and Human Rights agricultural activity as on Coleske farm, and also Nuwekloof farm where 5 work- ers lost their jobs in 2003, it introduces the possibility of loss of livelihoods and increased impoverishment of farm dwellers occupying that land. Although purchase of this kind is intended to form only a small part of the overall land con- solidation and expansion strategy, it has been the most visible and with visibly negative consequences. This creates a major image problem for the BMRP and its underlying philosophy that conserva- Picture 3. Farm dwellers depend on don- tion be achieved in a manner that is em- key carts to access their basic supplies. braced by local communities. Public per- (Courtesy Wilderness Foundation) ceptions are vital to this new approach the group’s size must reduce before to conservation. Cases like Coleske and any progress can be made in making Nuwekloof threaten to undermine its Sewefontein a viable enterprise, and essence by fuelling suspicions that bio- the PMU has agreed to take a back diversity conservation leaves poor and seat while a process of restructuring landless people worse off. gets underway.41 Second and closely linked to the above, social safeguard policies especially de- Analysis and conclusion signed to protect poor people against The early stage of implementation of these risks are proving the BMRP makes this concluding dis- very difficult to im- Social safeguard cussion more speculative than evalu- plement, for reasons policies especially ative. At the time of this research, mainly to do with insti- designed to the project was only two years into a tutional complexity and twenty-year process. In addition, the protect poor people capacity. Moreover, the plight of farm dwellers is set against a fact that neither the are proving backdrop where many agricultural jobs community nor the ma- very difficult to have been and continue to be lost as a jority of the Baviaansk- implement. result of wider forces in the agricultural loof Steering Commit- economy unrelated to the conservation tee appear to know about the existence agenda now being pursued. Neverthe- of these policies raises questions about less, the findings presented here point openness and transparency. The RPF/PF to some systemic and structural issues is arguably the most important policy that reflect tensions in the BMRP’s at- instrument spelling out the rights of tempts to reconcile biodiversity con- people affected by expansion of the servation with land tenure rights and mega-reserve. As long as people at both land-based livelihoods of farm workers ends of the power spectrum— the poor and dwellers. whose rights the RPF/PF is designed to protect, and the steering committee First is the issue of land acquisition by responsible for overseeing the project— the state as one element in the mega- remain unaware, their ability to realise reserve’s expansion strategy. Where these rights is seriously undermined. this directly results in cessation of Without adequate measures to ensure 180 15, July 2007  …but conservation and human rights What can Conservation canalso ARE work in Human undermine mutual Rights, Human support… anyway? Rights... that decision-makers recognise and labour absorption in current farming protect existing rights, they are poten- practice versus a biodiversity economy; tially in jeopardy. the other is the dif- ferent skill profiles The study reveals Third, while early speculations suggest the latter requires, that biodiversity that farm dwellers on privately owned and therefore the farms may not suffer the negative con- implications for a conservation may be sequences experienced by their compa- potentially chang- risky for the rich as triots mentioned above, unequal power ing profile of em- well as the poor. relations on farms make it hard to see ployees, along lines how they might actually benefit from a of class and gender and also, perhaps, new biodiversity economy. To overcome race.43 Better-paid and more highly this, deeply entrenched attitudes and skilled jobs may privilege people who prejudices on both sides must be ad- do not bear the brunt of job-shedding dressed. Social relationships on many in farming. The present study came of South Africa’s farms are highly ex- across a few cases where white mid- ploitative and unequal, but their per- dle-class individuals from outside the sistence cannot be explained simply in area were employed in tourism-related terms of farmers’ control. It rests also functions. While too anecdotal to be in some measure on farm dwellers’ conclusive, such cases suggest a need consent— consent which arises from for further scrutiny. structural conditions such as a deep- rooted culture of paternalism,42 and the Fifth, the study reveals that biodiver- lack of alternatives available to them. sity conservation may be risky for the Questions that should be asked are: rich as well as the poor. Expectations Who stands to benefit most? How can that farmers will be prepared to reduce a social environment be created where the scale of their farm enterprise in farm dwellers can negotiate economic favour of uncertain growth in ecotour- opportunities with their landowners ism are tempered by the question ‘who on a more even-handed basis? What carries the risk?’ In the context of the is required to create some visible suc- Baviaanskloof, just what it will take to cess stories to demonstrate that the persuade farmers to change their land possibility of change for them exists? use still seems poorly understood.44 An This will not happen by itself. Dedicated approach to conservation that relies on capacity is needed to forge a new social the voluntary participation of private accord in the community, giving farm landowners requires greater insight dwellers and other poor and landless into this question. people access to entrepreneurial op- portunities— for example a micro-en- Sixth, the claim that agriculture is terprise development professional with unlikely to provide the economic boost a social/community development per- needed to address unemployment can- spective, based in the area and tasked not go unchallenged— for it begs the with identifying and developing a question: what kind of agriculture? number of projects that respond to this Critics of South Africa’s land reform urgent need. programme argue that land reform should include a process of agrarian Fourth, two aspects of employment restructuring that favours smallholder impact need careful monitoring over agriculture over the prevailing com- the coming years. One is the levels of mercial farming model, if it is to tackle 15, July 2007 181 Conservation and Human Rights rampant rural poverty.45 International serving biodiversity while at the same evidence as well as local research sug- time delivering social and economic gests that small-scale family type farm rights to the poor. The aforementioned models are generally more efficient, impasse in implementing social safe- create more on- guard policies at Coleske farm is an Small-scale family farm employment,46 example. type farm models and are more sup- are generally more portive of biodiver- Finally, questions must be raised about sity47 than large- the increasingly popular, yet arguably efficient, create scale mechanised overstated belief that ecotourism can more on-farm farms. As this study meet the challenge of reconciling bio- employment, and shows, poor rural diversity conservation, rural livelihoods are more supportive households seek, and land rights. Although ecotourism first, a secure place is not the only element of the biodiver- of biodiversity to live and land for sity economy being promoted by the than large-scale small-scale produc- BMRP, it appears to take centre stage. mechanised farms. tion of food and But stories of successful ecotourism market crops; be- ventures that involve poor rural people yond this, they value land for non-com- are scarce in southern Africa,50 and this moditised resources such as grazing, applies equally to poor people in land firewood, building and craft materials. reform projects.51 For the Sewefontein In contrast, the state’s preference for community, ecotourism should be seen capital-intensive commercial agricul- as only one livelihood possibility among ture— informed by its largely neo-lib- others available to Ecotourism should eral macroeconomic paradigm— tends them. It may con- to undervalue the land uses of the tribute to farm in- be seen as only one poor. Challenging this paradigm may be come without being livelihood possibility beyond the scope of the BMRP, but is the major focus of among others central to the issue at hand. income-generating activities. Govern- available to them. Two observations can be made about ment and conservation agencies should the inter-institutional relations that aim to provide support that can en- shape the BMRP. One concerns the hance multiple livelihood strategies. Baviaanskloof Steering Committee (BSC). Its official mandate is to over- This paper has identified systemic and see, advise and facilitate the project,48 structural tensions in current attempts but in practice it functions more as a to reconcile biodiversity conservation public relations forum bringing together and farm dwellers’ rights and interests a wide range of stakeholders49 on a in the Baviaanskloof. There are unre- quarterly basis. In itself this is a use- solved critical questions about con- ful function, but it does tend to obscure servation-human rights connections, where real power and oversight reside including those dealing with procedural and this may compromise accountabil- rights (as with the role of the steering ity, especially in relation to protecting committee and the application of social poor people’s rights. More broadly, the safeguards) and with certain ‘nega- highly complex institutional arrange- tive’ rights (where communities have ments on which this project is built lost livelihoods and access to natural can generate inertia and paralysis, and resources). The road ahead for the raise doubts about the viability of con- BMRP is difficult but deserves support. 182 15, July 2007  …but conservation and human rights What can Conservation canalso ARE work in Human undermine mutual Rights, Human support… anyway? Rights... The broader bioregional strategy for 24 ESTA is the national law enacted to secure farm dwellers’ tenure rights and to prevent arbitrary conservation that looks beyond formal evictions (see Department of Land Affairs, protected areas in terms of planning, 1997), but is widely seen as providing relatively conservation and economic develop- weak protection and notoriously difficult to en- force (see Hall, 2004b). ment is a positive response to much 25 Boshoff, 2005. of the criticism that has been levelled 26 Interview with farm dwellers, August 2005. against conservation in the past.52 But 27 Ibid. the complexity of the task cannot be 28 Interviews with Matthew Norval, Project Man- underestimated. The Baviaanskloof ager, and Eleanor McGregor, Community Liaison Manager (PMU), August 2005. Mega-Reserve will be an instructive 29 Interview with Trevor Beeton, Department of space to watch in the coming years. Land Affairs, August 2005. Wendy Crane (wendycrane@telkomsa.net) is an independ- 30 Cape Action for People and Environment, ent analyst and consultant in the field of sustainable devel- 2003:38-39. opment. She has worked for over 20 years in the interna- 31 Interview with farm dwellers, August 2005. tional development arena across Africa and Asia. 32 Interviews with Matthew Norval, Project Man- ager, and Andrew Skowno, Conservation Planner Notes (PMU), August 2005. 1 Sandwith, 2002. 33 Interview with Chris Lamprecht, Chairman Bavi- 2 Wynberg, 2002. aanskloof Farmers Association, August 2005. 3 Republic of South Africa, 1996. 34 Interview with Thys Cilliers, landowner and CEO 4 Centre for Rural Legal Studies, 2003. of Baviaanskloof Mountain Passes Tours, August 2005. 5 Crane, 2006; Hall, 2004a, 2004b; Wegerif and Russell, 2005. 35 Interview with farm dwellers, August 2005. 6 The term ‘mega’ is used because the area must 36 Ibid. be large enough to accommodate animal move- 37 Interestingly, other landowners in the Baviaan- ments and gene flow over large distances, as skloof view the Sewefontein Trust as their own well as encompass a gradient of habitat types. insurance against land expropriation for conser- 7 South Africa’s Cape Floristic Region is one of the vation purposes. (Interviews with Skillie Rau- world’s top 25 biodiversity hotspots (see Myers tenbach, Department of Agriculture, July 2005; et al., 2000). and Chris Lamprecht, Chairman Baviaanskloof Farmers Association, August 2005) 8 C.A.P.E. is a multi-stakeholder initiative between government, civil society and the private sector 38 Interview with members of the Sewefontein to coordinate and maximize efforts to conserve Trust Committee, August 2005. the Cape Floristic Region. 39 Ibid. 9 See Wegerif and Russell, 2005. 40 Hall, 2004b. 10 Findings of this research were originally pre- 41 To this end, a Steering Committee has been sented in a more extensive article published in formed involving inter alia Trust officials, De- Geoforum (see Crane, 2006). partment of Agriculture, Department of Land 11 Boshoff, 2005. Affairs, and Southern Cape Land Committee. 12 Clark, 1998. 42 This culture is rooted in colonial tradition which described the farm as a family-like community 13 Myers et al., 2000. and emphasised the master’s (often despotic) 14 Boshoff et al., 2000. power over the ‘child’, his servant. For a discus- 15 Ibid. sion of this culture of paternalism see Du Toit, 1996. 16 Ibid. 43 I am grateful to Ruth Hall for pointing out this 17 See Clark, 1998. issue. 18 See Roodt, 2003. 44 Interview with Mandy Barnett, Programme De- 19 Baviaanskloof Mega-Reserve Project, 2004a. veloper, C.A.P.E., September 2005. 20 See Baviaanskloof Mega-Reserve Project, 45 E.g. Hall, 2004b; Kepe and Cousins, 2002. 2004a; GEF, 2004. 46 Van Zyl, 1996. 21 The concept of a biodiversity economy is one 47 Pretty, 1995. where local economic development does not harm biodiversity, and where biodiversity re- 48 Baviaanskloof Mega-Reserve Project, 2003. sources are developed into economic opportuni- 49 Members include local and provincial govern- ties. ment agencies, NGOs, organised agriculture, 22 Baviaanskloof Mega-Reserve Project, 2004b. academic institutions. BSC meetings are some- times attended by landowners and other mem- 23 Cape Action for People and Environment, 2003. 15, July 2007 183 Conservation and Human Rights bers of the Baviaanskloof communities. Conservation and Sustainable Development 50 Kepe et al., 2005. Project Document, 2004. 51 See Magome and Murombedzi, 2003. Hall, R., Land and agrarian reform in South Africa: A status report 2004, Programme for Land and 52 Kepe et al., 2005. Agrarian Studies Research Report no. 20, Univer- sity of the Western Cape, Cape Town, 2004a. References Hall, R., “A Political Economy of Land Reform in South Africa”, Review of African Political Econo- Baviaanskloof Mega-Reserve Project, Constitution my, No. 100, 213-227, 2004b. of the Baviaanskloof Steering Committee, Project Management Unit, 2003. Kepe, T. and B. Cousins, Radical land reform is key to sustainable rural development in South Africa. Baviaanskloof Mega-Reserve Project, Conser- Programme for Land and Agrarian Studies Policy vation Strategy 2004-2007 (Third Draft), Brief no. 3. University of the Western Cape, Cape Project Management Unit, 2004a. http://www. Town, 2002. wildernessfoundation.co.za/project/content. asp?PageID=266 Kepe, T., R. Wynberg and W. Ellis, “Land Reform and Biodiversity Conservation in South Africa: Baviaanskloof Mega-Reserve Project, Baviaanskloof complementary or in conflict?”, International Mega-Reserve Land Consolidation and Expansion Journal of Biodiversity Science and Management Strategy: 2004-2006, Project Management Unit 1(1), 3-16, 2005. Working Document, 2004b. Magome, H. and J. Murombedzi, “Sharing South Boshoff, A.F., The Baviaanskloof Mega-Reserve: African National Parks: Community Land and An environmentally, socially and economically Conservation in a Democratic South Africa”, pages sustainable conservation and development initia- 108-134 in Adams, W.M. and M. Mulligan (eds.), tive, Terrestrial Ecology Research Unit Report No. Decolonizing Nature. Strategies for Conservation 52, Nelson Mandela Metropolitan University, Port in a Post-Colonial Era. Earthscan, London, 2003. Elizabeth, 2005. Myers, N., R.A. Mittermeier, C.G. Mittermeier, G.A.B. Boshoff, A.F., R.M. Cowling and G.I.H. Kerley, The da Fonseca and J. Kent, “Biodiversity Hotspots Baviaanskloof Conservation Area— a conserva- for Conservation Priorities”, Nature, Vol. 403, 24 tion and tourism development priority, Terrestrial February 2000. Ecology Research Unit Report No. 27, Nelson Mandela Metropolitan University, Port Elizabeth, Pretty, J.N., Regenerating Agriculture: Policies and 2000. Practice for Sustainability and Self-Reliance, Earthscan, London, 1995. Cape Action for People and the Environment, A Biodiversity Strategy and Action Plan for the Cape Roodt, M.J., Baviaanskloof community audit and Floral Kingdom, WWF South Africa, Cape Town, attitudinal survey towards the establishment of 2000. a mega-reserve, Report prepared for the Wilder- ness Foundation, Rhodes University, Graham- Cape Action for People and the Environment, Reset- stown, 2003. tlement Policy Framework and Process Framework for C.A.P.E., National Biodiversity Institute, Cape Republic of South Africa, Constitution of the Repub- Town, 2003. lic of South Africa, No. 108 of 1996, Government Gazette No. 17678, Cape Town, 1996. Centre for Rural Legal Studies, Land Reform Op- tions for Farm Workers: The uptake and impact of Sandwith, T., “Introduction”, pages 1-4 in Pierce, these on rural communities in the Western Cape, S.M., R.M. Cowling, T. Sandwith and K. Mackinnon CRLS, Stellenbosch, 2003. (eds.), Mainstreaming Biodiversity in Develop- ment: Case Studies from South Africa, The World Clark, D., Greater Baviaanskoof Wilderness Area: A Bank, Washington, D.C., 2002. regional development proposal –Rationalisation and consolidation of the western sector, Execu- Van Zyl, J., “The farm size-efficiency relationship”, tive summary, Eastern Cape Province Department pages 259-309 in Van Zyl, J., J. Kirsten, and H.P. of Economic Affairs, Environment and Tourism, Binswanger (eds.), Agricultural Land Reform in 1998. South Africa. Oxford University Press, Cape Town, 1996. Crane, W., “Biodiversity Conservation and Land Rights in South Africa: Whither the Farm Dwell- Wegerif, M. and B. Russell, National Evictions Sur- ers?” Geoforum, 37(6), 1035-1045, 2006. vey, Briefing to Parliamentary Portfolio Commit- Also available at: http://dx.doi.org/10.1016/ tee for Agriculture and Land Affairs, 30 August j.geoforum.2006.07.002 2005. Nkuzi Development Association and Social Surveys, 2005. Department of Land Affairs, The White Paper on South African Land Policy, 1997. http://www.pol- Wynberg, R., “A decade of biodiversity conservation ity.org.za/govdocs/white_papers/landwp.html and use in South Africa: tracking progress from the Rio Earth Summit to the Johannesburg World Du Toit A., The fruits of modernity: Law, power and Summit on Sustainable Development”, South paternalism on Western Cape farms, Programme African Journal of Science 98, May/June 2002, for Land and Agrarian Studies Occasional Paper 233-243, 2002. No. 3, University of the Western Cape, Cape Town, 1996. Global Environment Fund, C.A.P.E. Biodiversity 184 15, July 2007  …but conservation and human rights What can Conservation canalso ARE work in Human undermine mutual Rights, Human support… anyway? Rights... The 2006 Recognition of Forest Rights Act, India— a tool to support conservation through recognition of human rights Pradeep Kumar and P. Senthil Kumar Abstract. In India, the tribes and other forest dwellers (TFD) have been residing on their ancestral lands from time immemorial. Among the problems they faced are the inadequate recognition of their land rights during the forest consolidation process, the non-conferment of ownership rights over minor forest products, and the limited access to the benefits of devel- opment schemes. In order to solve these problems, the Government of India has recently enacted the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act. This Act recognizes several rights of the forest dwellers, while maintaining a clear conservation vision. This paper analyses the provisions of the Act in relation to rights, with special reference to human rights, and discusses how such rights can contribute to con- servation. The paper also presents perceived threats to conservation expected to arise from implementation of the Act. The Act is in its very early implementation stage and its full impli- cations in terms of conservation and livelihoods are not yet clear. It is argued, however, that the Act can serve as a tool to develop pathways for forest dwellers’ engagement in conserva- tion, while simultaneously promoting human rights. I n India, tribal people and other forest dwellers (TFD) are integral to the very lived and thrived for generations are perhaps the main reasons why tribal communities feel emotionally survival and sustainability of forest as well as physically alienated from ecosystems, including wildlife. How- forest conservation. ever, historically TFD rights have not X lack of confirmation of owner- been adequately recognized,1 resulting ship rights over minor forest in protracted injustices, including: products. An emphasis on produc- X inadequate recognition of TFD tion forestry has somehow left the land rights during the process interests of the tribal communi- of forest consolidation. The tradi- ties in minor forest products (MFP) tional rights of TFD on forest lands unrecognized. were not adequately recognized and There has been The Act is a valiant recorded in the process of consoli- no confirmation attempt to balance dation of state forests, either during of ownership forest dwellers’ the colonial period or in independ- rights over MFP ent India. As an example, many to forest dwell- rights with economic TFD still do not have a homestead ers. The collec- and environmental or address of their own. They are tion and trade of objectives. people without legal identities, erro- most high value neously looked upon as encroachers MFP is largely monopolized by the on forest lands. The threat of evic- Corporations of the Forest Depart- tion looms large in their psyche. In- ments of various states, with TFD security of tenure and fear of evic- employed only as wage earners col- tion from the lands where they have lecting MFP for the state. 15, July 2007 185 Conservation and Human Rights months of acrimonious debate. The Act is a valiant attempt to balance for- est dwellers’ rights with economic and environmental objectives, and seeks answers to some key questions, such as “Who can live in forested areas? What rights do forest dwellers have over lands they have lived on for gen- erations? Can they be relocated, and if so, on what justifications and under what terms?” Overview of the provisions of the Act The main rights recognized for the tribes and forest dwellers by the Act are: (i) right to hold and live in forest land, under individual or com- mon occupation, for habitation or cultivation for livelihood— To ensure specifically, conservation, the scheduled rights holders are tribes and oth- empowered to protect er traditional forest dwellers catchment areas, living in forests water sources and Picture 1. Forest dwellers are heavily dependent for three gen- other ecologically- on forest products for their livelihood. (Courtesy Pradeep Kumar) erations will be sensitive areas. entitled to a X benefits of development maximum of four hectares of land schemes denied. Mainly due to or area [per individual, family their lack of clear land title, TFD or community, as applicable] if are threatened with displacement that land has been under occu- resulting from demands for bring- pation prior to December 2005 ing more land under protected area (for scheduled tribes), or at least (PA) status. Further, the land under for 3 generations (75 years) (for their occupation is treated as illegal other forest-dwellers). and therefore not serviced by de- (ii) right to access, use, or dispose of velopment interventions for drink- minor forest products, including ing water supply, health facilities or through sale; electricity. (iii) other rights of use or entitle- ments such as grazing (both set- It was against this background that tled and transhumant) and tradi- The Scheduled Tribes and Other Tradi- tional seasonal resource access of tional Forest Dwellers (Recognition of nomadic or pastoralist communi- Forest Rights) Act was passed by the ties; Indian Parliament in 2006 after several 186 15, July 2007  …but conservation and human rights What can Conservation canalso ARE work in Human undermine mutual Rights, Human support… anyway? Rights... (iv) right of habitat and habitation for been neglected by the government primitive tribal groups and pre- and left to fend for themselves. For agricultural communities; example, the pastoral Maldhari com- (v) right of access to biodiversity, munity in Gir Wildlife Sanctuary in and community intellectual prop- Western India and the pastoral Gujjar erty rights over traditional knowl- community in Rajaji National Park in edge related to forest biodiversity Northen India live simple lives in small and cultural diversity; mud houses hidden deep in the for- (vi) right to protect, regenerate, con- ests. They have no access to electric- serve or manage any community ity, schools or health care. Their basis forest resource that TFD have of livelihood is milk from their cattle, traditionally protected and con- vegetables, collecting honey, and trad- served; ing their produce in the local market (vii) any other customary rights, ex- for items like food grains. Some of cluding hunting. them are illiterate and unable to count or use money. To ensure conservation, the right- sholders are empowered to protect Some conservation activists see it as catchment areas, water sources and essential for conservation success that other ecologically-sensitive areas, as forest dwellers be involved in conser- well as their cultural and natural herit- vation efforts and given a sense of age. Even though they will enjoy their ownership and responsibility over the customary rights, those now exclude forests. There is a symbiotic relation- hunting, trapping or extracting body ship between tribal people and con- parts of any wild animal. There are servation. The natural resource base regulatory provisions to ensure sus- forms the very foundation of their life tainable practices and promote con- support system. It is not only for food servation in critical wildlife habitats, and water that they depend on for- and these are being framed as further est— their customs and lifestyle are rules under the Act. integrally interwoven with the forests. Only an inclusive forest management How the Act simultaneously system can secure the active partici- pation of forest dwellers in conserva- addresses human rights and tion. conservation The present Act fulfils a need for It is natural for any human to have comprehensive legislation giving due an attachment to his or her land, but Only an inclusive recognition to the forest rights of in the absence of tenure rights it can hardly be expected that people devel- forest management tribal communities op a sense of ownership to forest land system can and forest dwellers. and, consequently, care about for- secure the active More than 40 mil- est conservation. Insecurity of tenure lion of India’s most forces people to think on short-term participation of impoverished and horizons and focus on immediate and forest dwellers in marginalized people exploitative benefits. Once the tribal conservation. live in the country’s people secure their own land, they forests, including will have the incentives to protect tiger reserves, wildlife sanctuaries and the forests in the vicinity. The reali- national parks. For years they have zation that they have a permanent 15, July 2007 187 Conservation and Human Rights stake in the land allocated to them sures from human land use.e These and the adjoining forest land, will species are typically large-bodied, create a lasting stake in its conserva- slow-breeding, and need large areas tion2 and dismantle the psychological of habitat and vast resources for barrier created by the perception of survival. Increased human habita- conservation as something imposed tion in forests may cause depletion by outsiders (“their land, their rule”). of forest cover, resulting in signifi- As shown by the work of Kalpavriksh cant ecological costs. and other Indian activist groups, there X While the Act does not allow cul- are thousands of sites where commu- tivation of previously unoccupied nities have demonstrated the ability forest land, if a family is allowed to and willingness to protect forests and use an occupied four hectare patch wildlife. However, they did not have for cultivation, it is certain that the the legal authority to counter threats whole patch and sustain their conservation results will be used The main challenge in such areas. The present Act finally for cultivation of the Act is to provides backing for such initiatives.3 only, and that harmonize the all forest-based potentially Perceived threats to requirements conservation and the situation will be met conflicting interests of tribal people and other forest from adjoining of recognizing the dwellers forests. One forest rights of cannot imagine tribals and other The main challenge of the Act is to that just at the harmonize the potentially conflicting forest dwellers while boundary of interests of recognizing forest rights of TFD, and protecting forests and cultivated land protecting forests and there will be wildlife resources. wildlife resources. Unfortunately, the dense forest. Act has, since its inception, generated There will be a gradient of degrada- a sharp division of opinions on politi- tion from the edge of the cultivated cal and ecological lines. For instance, land to some point inside the for- some conservationists and journal- est. The whole forest may be dotted ists have commented that the Act with cleared patches and surround- will destroy "what remains of India's ing degraded forest.6 forests". Some of the main concerns expressed are enumerated below. X The argument that the tribal people have been living in the forest for a X There are no reliable estimates of very long time without degrading it the likely number of families eligible really does not hold true any longer. for the forest land rights that will be The population of tribal people has granted by the Act, therefore it is increased and so have the impacts not known if the number of rights- of their way of living. Many tribal holders could be a significant risk people have been influenced by to existing forest cover. If too many culture outside their own traditions. people are allowed to live in the The total pressure on the forest forest, they will degrade the habitat is much higher than it was in the as their cattle graze in direct com- past.7 petition with prey like deer.d Certain species such as tigers, rhinos, and X The Act has vested land rights not elephants are vulnerable to pres- only with the tribal people, but also with other forest-dwelling communi- 188 15, July 2007  …but conservation and human rights What can Conservation canalso ARE work in Human undermine mutual Rights, Human support… anyway? Rights... hood and hardship for TFD. In spite of the above concerns, many people seem to believe that the posi- tive aspects of the Act outweigh the concerns. In other words, the majority of commentators believe that this Act is a great beginning to link human rights with sustainable conservation in India. Conclusion There is no doubt that legislation was Picture 2. Some encroachments, once le- necessary, in India, to remedy the his- galized, may pose danger to the health of torical injustices against tribal people. the forests. (Courtesy Pradeep Kumar) Yet, the public debate revealed a sharp ties. Politicians were unanimous in division of opinions: some hard-core Many people seem demanding the withdrawal of cases to believe that the registered against forest-dwellers by conservationists forest officials. This was tantamount have foretold a positive aspects of to legalizing encroachment. Further disastrous ecologi- the Act outweigh the encroachment in the forests may be cal future after the Act, while their hu- concerns. encouraged by the expectation that it will be regularized eventually by man rights counterparts have argued similar legislation in the future. that the Act should have included even stronger provisions for land rights. In X The definition of "traditional forest the debate, the voices of several mod- dwellers" in the Act provides scope erate conservation and human rights for State Governments, land mafia groups have been drowned out. But and local elites to exploit the situ- their message is nevertheless critical: ation, which could in turn create or we need to protect forests to protect exacerbate local conflicts. There are livelihoods, and we need to establish many situations, for instance in the clear livelihood rights to create a long- north-eastern States of India, in term stake in conservation. As The which individuals and communities Telegraph, a respected Indian news- from outside a region have occupied paper, puts it: where human rights, forest land recently, at the expense human and animal coexistence and of the local tribal or other traditional the conservation of nature are con- forest-dwelling communities.8 cerned, "legislation is only a beginning X Despite the Act, large-scale reloca- for achieving such a difficult and deli- tion of tribal communities from core cate balance. This is the first proper areas of National Parks and Sanc- attempt to implement a complicated tuaries may take place.9 Given poor issue of natural justice— the confer- track record in relocating people ring or restitution of land and produce affected by development projects, rights for forest dwellers”.12 The au- such as the Narmada Dam,10 or thors of this paper agree and believe from sanctuaries such as Sariska that the present Act can open new and Gir,11 the possibility of large- pathways to engage forest dwellers in scale relocation from core areas conservation while ensuring the pro- raises the spectre of loss of liveli- motion of human rights. 15, July 2007 189 Conservation and Human Rights Pradeep Kumar (pradeepifs@hotmail.com ) is an Officer of determined by the Ministry of the Central Govern- the Indian Forest Service with responsibility for forestry and ment dealing with Environment and Forests. environment-related issues. Currently, he is posted as Con- 10 Levien, 2004. servator of Forests in the Government of Sikkim. P. Senthil 11 Shahabuddin et al., 2005. Kumar (senthilkumarifs@yahoo.com) is also a member of Indian Forest Service and currently posted as Divisional 12 Daily Telegraph, December 2006. Forest Officer in the Land Use and Environment Division of the Government of Sikkim. He is responsible for land use References and environment-related issues. Government of India, Circular No.17014/4/2005-S&M (Pt.), Ministry of Tribal Affairs, 2 June 2005. Notes Kalpavriksh, Comments on the draft bill, 2006. www. 1 Government of India, 2005. kalpavriksh.org/f1/f1.2/Tribal Forest Rights Act 2006.doc 2 In the opinion of authors of this paper. Pooja, K. “Will Forest Rights Bill 2006 Destroy Forests 3 Kalpavriksh, 2006. and Its Dwellers?”, India Daily, January 2007 4 Pooja, 2007. Levien, M., "Narmada: Life, Struggle and Exodus", 5 Madhusudan, 2005. India Together, August 2004. 6 General impression of the authors of this paper. Madhusudan, M.D, "Of rights and wrongs: wildlife 7 General impression of the authors of this paper. conservation and tribal bill", Economic and Political Weekly, November 19, 2005. 8 Madhusudan, 2005. Shahabuddin, G., R. Kumar and M. Shrivastava, 9 Core Areas: National Parks and Sanctuaries are "Pushed over the edge", Economic and Political required to keep certain areas inviolate for pur- Weekly, Aug, 2005. poses of wildlife conservation. The areas may be Reconocimiento y protección de los derechos humanos de los pescadores artesanales— las áreas marino-comunitarias una alternativa? Patricia Madrigal Cordero y Vivienne Solis Rivera Abstract. This article analyzes the legal viability of the recognition of a marine community conserved area. After reflecting generally on legal frameworks to jointly address human rights and conservation, the article proposes some concepts for effective recognition of arti- sanal fishers’ rights. We then review the process developed in Tárcoles, an artisanal fishing community on the Central Pacific Coast of Costa Rica. Working in collaboration, Coope Solidar R.L. (a cooperative for professional services for social solidarity) and Coope Tárcoles R.L. (an artisanal fishers cooperative) facilitated creation of a community area for responsible fishing. The objective was to secure traditional fishing rights and ensure the sustainability of artisanal fishing. This activity demonstrates that artisanal fishing is compatible with marine conserva- tion by integrating conservation and development objectives and taking an ecosystem appro- ach that could reduce poverty in coastal communities and enhance food security. Resumen. Este artículo analiza la viabilidad jurídica del reconocimiento de un área de conser- 190 15, July 2007  …but conservation and human rights What can Conservation canalso ARE work in Human undermine mutual Rights, Human support… anyway? Rights... vación comunitaria en el mar. Partiendo de una reflexión sobre los marcos jurídicos en ma- teria de derechos humanos y conservación, plantea algunas ideas para el reconocimiento de los derechos de pesca artesanal. Como referencia se menciona el proceso que se ha desarrol- lado en Tárcoles, una comunidad de pescadores artesanales ubicada en el Pacífico Central de Costa Rica, en donde en el marco de la relación de asociatividad entre Coope SoliDar R.L.,1 una cooperativa de servicios profesionales para la solidaridad social, y Coope Tárcoles R.L., una cooperativa de pescadores artesanales, se ha declarado un área comunitaria para la pesca responsable, con el objetivo de que se reconozcan sus derechos tradicionales de pesca, procurando la sostenibilidad de la pesca artesanal como un oficio que puede ser orientado hacia la conservación marina y cultural. Este planteamiento intenta reconocer a la pesca artesanal como un sector más cercano hacia la conservación marina, que integra objetivos de conservación y desarrollo desde un enfoque ecosistémico que podría reducir la pobreza de las comunidades costeras y fortalecer su seguridad alimentaria. Las áreas de conservación también a los colectivos, a las comunida- comunitaria: un reconocimiento a des, a los pueblos y a las organizaciones. procesos locales de conservación El V Congreso Mundial de Parques Na- Las áreas de conservación comunitaria cionales2 definió las Áreas Conservadas (ACC) son una forma de entender, con- por Comunidades como aquellos “eco- ceptualizar y justificar, situaciones que sistemas naturales y modificados que se han dado a lo largo Esta dignidad del tiempo en todo el contienen una biodiversidad importante, prestan servicios ecológicos y poseen debe ser reconocida mundo. No es de ex- valores culturales, y cuya conservación no sólo a los trañar entonces, que está a cargo de co- desde una perspectiva individuos sino jurídica su justificación munidades indíge- Un Área de Conserva- también a los se encuentre no sola- nas y locales en el ción Comunitaria no marco del derecho colectivos, a las mente en los marcos consuetudinario o es una categoría de comunidades, a jurídicos de la conser- por otros medios manejo, es el reconoci- vación sino también los pueblos y a las en los de derechos efectivos” (WPC miento de una forma organizaciones humanos, tanto a nivel Rec 5.26). Un Área de gobernanza, el de Conservación internacional como a reconocimiento de la Comunitaria no nivel nacional. Las ACC no sólo reco- nocen que es importante conservar la es una categoría toma de decisiones en de manejo, es el un espacio geográfico diversidad biológica sino el acceso y la reconocimiento distribución equitativa de estos recursos. de una forma de por parte de comuni- Su conceptualización integra conserva- dades locales o pueblos gobernanza,3 el ción pero también desarrollo, calidad de vida y/o derechos humanos. Su funda- reconocimiento de indígenas. la toma de de- mento reside en principios hartamente cisiones en un espacio geográfico por pregonados pero difícilmente aceptados, parte de comunidades locales o pueblos de que el ser humano tiene como tal una indígenas. Esta forma de gobernanza se dignidad que debe ser reconocida, un encuentra reconocida por el Convenio de libre albedrío que le permite tomar deci- Diversidad Biológica (CBD) cuya Deci- siones y una libertad que exige que éstas sión VII/28 de la VIII Conferencia de las sean reconocidas. Esta dignidad debe ser Partes contiene el Plan de Trabajo para reconocida no sólo a los individuos sino 15, July 2007 191 Conservation and Human Rights Áreas Protegidas.4 Dicho plan recomien- los beneficios derivados de la creación da a los Estados signatarios revisar sus y administración de áreas protegidas. sistemas de áreas protegidas de acuerdo Entre otras recomendaciones sugiere: a los tipos de gobernanza incluyendo “2.1.2. Reconocer y promover el con- aquella desarrollada por comunidades junto más amplio de los tipos de go- locales o pueblos indígenas. bernabilidad de las áreas protegidas en relación con su potencial de logro de las Asimismo, el Plan de Trabajo reconoce un metas de conservación de conformidad enfoque de equidad y participación para con el Convenio, en lo que pudieran in- las áreas protegidas que han ampliado cluirse las áreas conservadas por comu- su espectro para añadir a los objetivos nidades indígenas y locales”. de conservación el reconocimiento de otras formas de gestión y gobernanza. Respaldo jurídico para Esta inclusión no es más que el recono- la propuesta de un Área cimiento de los derechos humanos de las Comunitaria para la Pesca poblaciones usuarias. Por otro lado, en Responsable este plan se reconoce que el porcenta- El reconocimiento de los derechos de je de áreas protegidas en el mundo ha pesca artesanal, enfrenta serias limita- aumentado, pero que no han incluido los ciones en los países que siguen el sis- ecosistemas más representativos, debi- tema romano francés, que parte de que lidad que se vuelve más evidente sobre el mar y la zona costera es un bien de todo en ambientes marinos. dominio público. La forma tradicional en que se ha propuesto la utilización de El elemento 2 del programa “Goberna- estos bienes públicos o demaniales ha bilidad, participación, equidad y parti- sido a través del otorgamiento de actos cipación en los beneficios” incluye en el administrativos como las concesiones objetivo 2.1 la necesidad de promover o permisos de uso. La gran limitación la equidad y la participación en los be- de estos instrumentos administrativos neficios. Su meta es establecer para el de derecho público es que otorgarían año 2008 mecanismos de participación derechos exclusivos, o excluyentes de equitativa tanto en los costos como en otros actores interesados. Dicho de otra forma, el beneficiario de una concesión adquiere el uso exclusivo sobre el bien que le ha sido otorgado. El reconocimiento de derechos de pesca artesanal que han existido a lo largo del tiempo proviene por una ideología de otra parte de una ideología de dere- derechos humanos chos humanos basa- basados en la dos en la solidaridad, solidaridad […] el o por los derechos goce solidario entre Foto 1. Asociados de Coope Tárcoles R.L. de la tercera genera- con el apoyo de Coope SoliDar R.L. re- ción, que implican el quienes acepten alizando la zonificación participativa del goce solidario entre las normas de uso área comunitaria de pesca responsable en quienes acepten basadas en la lógica, septiembre 2006. las normas de uso (Cortesía Coope SoliDar R.L.) la ciencia y la razón basadas en la lógi- 192 15, July 2007  …but conservation and human rights What can Conservation canalso ARE work in Human undermine mutual Rights, Human support… anyway? Rights... ca, la ciencia y la razón. Tal es el caso Samoa y Fiyi; las áreas de manejo o ex- de Coope Tárcoles R.L. cuya Asamblea plotación de recursos bénticos chilenas General declara que un área comunitaria o las unidades de gestión de playa que para la pesca artesanal responsable es operan en Uganda, Tanzania y Kenia”.5 aquella en donde no sólo sus asociados pueden ejercer derechos de pesca ar- Problemática del sector tesanal sino todos aquellos pescadores pesquero artesanal: derechos artesanales que se comprometan a reali- económicos, sociales y zar una pesca responsable. culturales que no han sido garantizados Compartir el poder de acceso y uso a estos recursos que pareciera más fácil Desde el año 2001 Coope SoliDar R.L. entregar en forma exclusiva a un ac- ha promovido espacios de intercambio tor, enfrenta obstáculos y dificultades y discusión con pescadores artesanales, conceptuales y metodológicas. No sólo no solo nacionales, sino también de las no existen procedimientos específicos islas Galápagos, en Ecuador, y de Pa- sino que además su justificación parte namá. Como resultado de ese proceso de una integración de principios y valo- se han identificado los asuntos que más res de la teoría de derechos humanos preocupan a este sector, los cuales reve- que todavía muchos juristas conside- lan claramente que los derechos econó- ran “derecho natural”. Lo cierto es que micos, sociales y culturales no han sido alrededor del mundo, se está solicitando garantizados por el Gobierno y que exis- que el sector pesquero artesanal sea ten grandes obstáculos para que el sec- protegido en el acceso a los recursos tor pesquero artesanal disfrute del goce pesqueros como una forma de reducción y ejercicio de este tipo de derechos. Los de la pobreza y de mantenimiento de principales problemas identificados por la soberanía alimentaria. Este reclamo, el sector pesquero artesanal que violan desde un punto de vista de derechos el ejercicio y goce de sus derechos son:6 humanos, no es otra cosa que un reco- X derecho a la organización; nocimiento de los derechos económicos X derecho a la educación, el trabajo y la sociales y culturales de los pescadores seguridad social; artesanales que a lo largo de las déca- X derecho a un trabajo digno; das han quedado rezagados. X derechos ambientales y de acceso a los recursos naturales. Nomura afirma recientemente que “de acuerdo con las políticas pesqueras y los 1. Derecho a la organización enfoques frente a la gestión, incluyendo Los pescadores artesanales perciben los derechos de pesca, deben adaptar- que dentro de su gremio es difícil orga- se a cada contexto concreto del país o nizarse, trabajar por metas comunes y de la zona en cuestión en función de su enfrentar juntos los obstáculos que se pesquería, su estructura social, su cul- les presentan desde afuera. Datos sumi- tura local, etc. Actualmente se asignan nistrados por el Instituto Costarricense derechos de pesca en el marco de pro- de Pesca y Acuicultura, INCOPESCA, dan gramas a largo plazo como el sistema cuenta de la diversidad de actores que de desarrollo comunitario que funcionan se agrupan alrededor de la actividad pes- en comunidades pesqueras del mar de quera. Esta diversidad queda represen- Bering; los varios sistemas que derechos tada en la tabla 2, donde se clasifica al de uso territorial en la pesca (en in- sector por tipo de organización.7 glés TURF) vigentes en Japón, Filipinas, 15, July 2007 193 Conservation and Human Rights Tabla 1. Sector pesquero nacional: tipología de actores según modelo de organización8 (Fuente: Lic. Luis Castro, Dirección de Extensión, INCOPESCA). Asociaciones de pescadores 66 Asociaciones de pescadores artesanales 25 Comités locales de pescadores (COLOPES) 14 Asociaciones de buzos 3 Cámaras 8 Cooperativas 7 Federaciones 3 Sindicatos 2 Uniones 2 Como se observa en la tabla, el pes- con base en la Encuesta de Hogares de cador artesanal cuenta con estructu- Propósitos Múltiples del INEC, ponen ras organizativas como asociaciones, de manifiesto el deterioro socioeconó- Comités Locales de Pesca (COLOPES) mico del sector pesquero artesanal y la y cooperativas. Estas estructuras or- necesidad de articular una estrategia ganizativas han sido promovidas por interinstitucional para abordar la com- el Estado o a través de la Coopera- plejidad de los problemas de este sec- ción Internacional, pero sin el apoyo y tor tan importante para el desarrollo del seguimiento necesario para su fortale- país. El ingreso per cápita promedio del cimiento. Esas organizaciones mues- hogar es de ¢66.685,7 por mes. Para tran grandes debilidades de gestión el 2005, el Ministerio de Trabajo defi- administrativa las cuales muchas veces nió para ocupaciones tipificadas como llevan a su desaparición, este elemento no calificadas un salario mínimo de está íntimamente relacionado con los ¢4.188 por jornada diaria, equivalente problemas sociales que enfrenta el sec- a ¢125.640 mensuales.9 Esto significa tor. Asimismo, el derecho a la organiza- que, según los datos oficiales, el ingre- ción se ve afectado directamente por la so económico de las personas que se obtención de una remuneración inferior dedican a la pesca es inferior al salario a los salarios mínimos y por la falta del mínimo. Por otro lado, la escolaridad derecho a la educación. promedio de los pescadores es de 5,7 años, como puede verse en la tabla 3, 2. Derecho a la educación, el también elaborada por el Programa Es- trabajo y la seguridad social tado de la Nación a partir de la Encues- Estimaciones realizadas por el Informe ta de Hogares de Propósitos Múltiples. Estado de la Nación para el año 2005, Tabla 2. Nivel de educación pescadores (Fuente: Programa Estado de la Nación, 2006) Nivel de educación 2001 % 2005 % Primaria incompleta o menos 2.963 39,1 2.660 28,0 Primaria completa 2.853 37,7 3.309 34,9 Secundaria incomplete 957 12,6 1.845 19,5 Secundaria completa o más 733 9,7 1.425 15,0 Ignorados 67 0,9 246 2,6 Años de escolaridad promedio 5,7 6,7 194 15, July 2007  …but conservation and human rights What can Conservation canalso ARE work in Human undermine mutual Rights, Human support… anyway? Rights... Ambos indicadores, educación e ingre- que pueda ser replicada sin riesgo por so, revelan la precariedad del sector otros grupos. pesquero artesanal. Debe agregarse que el sistema de seguridad social La apertura de espacios de reflexión al hasta hace muy poco ha reconocido el interior del sector pesquero permitiría derecho de los pescadores artesanales que se analicen, sistematicen y com- a una pensión por vejez, incapacidad partan las lecciones aprendidas de las o muerte. Es frecuente observar en las opciones socioproductivas que se pro- comunidades costeras personas mayo- mueven, siempre y cuando se parta del res de 60 años que todavía se dedican respeto al ejercicio de un oficio digno a la pesca porque no tienen otra fuente como lo es la pesca artesanal y no de de ingresos o que se desempeñan en la necesidad de que los pescadores se otras labores relacionadas. En con- dediquen a otro tipo de oficios. Como secuencia, es posible afirmar que los lo establece el Código de Pesca Res- derechos sociales en cuanto respecta ponsable de la FAO, la pesca artesanal al menos al trabajo, la educación y la brinda empleos, seguridad alimentaria seguridad social, permanecen en un e ingresos para un país y el Gobierno estado de declaración formal en lo que debe establecer las políticas, estrate- al sector pesquero artesanal se refiere. gias y programas necesarios para su mantenimiento. 3. Derecho a un trabajo digno. La realidad antes descrita, unida a la 4. Derechos ambientales y de disminución de las capturas y de las acceso a los recursos naturales áreas donde se puede pescar, es lo que En todas las entrevistas, visitas e in- despierta la inquietud de los pescado- tercambios realizados, los pescadores res por la búsqueda artesanales mencio- El derecho a un de nuevas opciones naron el impacto de En todas las en- ambiente sano y socioproductivas. las redes de arras- trevistas, visitas e ecológicamente Algunas comunida- tre sobre su activi- intercambios reali- des pesqueras han dad. Para ellos, la zados, los pescadores equilibrado se ve buscado alternati- responsabilidad por seriamente limitado vas en el turismo la degradación am- artesanales mencio- al permitir el Esta- o en proyectos de biental y la dismi- naron el impacto de acuicultura. Sin nución de la captura las redes de arrastre do la utilización de embargo, preocupa es en gran medida artes de pesca que estas activida- sobre su actividad. atribuible a los bar- que dañan el ecosis- des puedan traer cos camaroneros. Esta situación afecta tema marino. pérdida de valores o crear expectativas también las artes de pesca, cuando los rastreros se llevan los trasmallos. Algu- que no necesariamente serán satisfe- nas embarcaciones asumen los costos chas. Se reconoce que si no existen de estos daños. No obstante, son los formas para distribuir los beneficios camaroneros quienes proporcionan la que genera el turismo, éstos no llegan carnada para la pesca artesanal y exis- a las comunidades pesqueras. Los pro- ten relaciones entre ambos grupos. yectos de acuicultura que desarrollan algunas comunidades pesqueras están El derecho a un ambiente sano y ecoló- en una fase experimental, requieren gicamente equilibrado se ve seriamente asistencia técnica y aún les falta llegar limitado al permitir el Estado la utili- a una etapa de distribución comercial zación de artes de pesca que dañan el 15, July 2007 195 Conservation and Human Rights ecosistema marino. Paradójicamente, al tratar de identificar las amenazas para la conservación marina se seña- la al sector pesquero, sin establecer las diferencias necesarias que eviten las asimetrías en la distribución de la responsabilidad. Otro elemento que hace aún más difícil esta realidad es la marginalidad jurídica del sector. Las co- munidades pesqueras están asentadas en la zona marítimo-terrestre y por lo general sus pobladores no cuentan con títulos de propiedad del lugar donde viven y trabajan. Por otra parte, la gran mayoría de ellos no tiene licencia de Foto 2. Asociados de Coope Tárcoles R.L. con pesca. el apoyo de Coope SoliDar R.L. realizando la zonificación participativa del área comunitaria de pesca responsable en septiembre 2006. En los últimos años, el desarrollo turís- (Cortesía Coope SoliDar R.L.) tico y de bienes raíces ha aumentado la plusvalía de propiedades ubicadas del área bajo la creencia de que solo en áreas costeras. Esto ha motivado un se restringiría la pesca de arrastre en mayor interés de las entidades esta- sus aguas y que ellos podrían desarro- tales en controlar el uso de las zonas llar su actividad de una mejor forma. públicas, lo que se ha traducido en una Sin embargo, a la postre la categoría política de desalojos que afecta seria- de manejo de parque nacional generó mente a los grupos pesqueros. Así lo conflicto, pues limita el ejercicio de la han señalado, por ejemplo, los miem- pesca en todas sus modalidades, inclu- bros de la Asociación de Pescadores de yendo la artesanal. Zancudo, ubicado en el Pacífico Sur de Costa Rica, que se han organizado para En otras áreas protegidas, como en enfrentar esta situación. La utilización Guanacaste, el conflicto ha llevado de manglares, bienes públicos, también a presentar pliegos de peticiones al está provocando graves problemas en- gobierno y a plantear una reforma al tre usuarios como los piangüeros, que artículo 9 de la Ley … los mejores ahora requieren un permiso de extrac- de Pesca y Acuicul- ción emitido por el Ministerio de Am- tura, para que sea lugares de pesca se biente y Energía (MINAE), para lo cual el plan de manejo encuentran dentro se requiere un plan de manejo. el que defina las de un área protegida actividades que se El establecimiento de áreas marinas pueden realizar en marina (AMP)… protegidas (AMP) en algunos casos las áreas protegidas no obstante, supone la reducción de las áreas de marinas. Además los pescadores pesca, los pescadores se quejan de que se solicitó mayor artesanales … tienen no se les ha dado la debida participa- participación en la ción en el proceso tendiente a zonificar elaboración de ese una actitud positiva y delimitar las áreas de pesca y de pro- plan y, sobre todo, frente a las AMP y tección. En el Parque Nacional Marino en la zonificación. la pesca responsable Ballena, Pacífico Sur de Costa Rica, El sector considera los pescadores aceptaron la creación que, en la actualidad, los mejores luga- 196 15, July 2007  …but conservation and human rights What can Conservation canalso ARE work in Human undermine mutual Rights, Human support… anyway? Rights... res de pesca se encuentran dentro de No obstante, el artículo 32 deja abierta un área protegida marina. No obstante la posibilidad de establecer áreas silves- lo anterior, los pescadores artesanales tres protegidas según otras categorías con los que se ha trabajado en el mar- de manejo que el Ministerio de Ambiente co de este proyecto tienen una actitud y Energía (MINAE) reconozca en un fu- positiva frente a las AMP y la pesca turo. Como parte de los objetivos de las responsable. áreas protegidas, reconoce que deben asegurar el uso sostenible de los eco- El anteriormente mencionado Plan de sistemas y sus elementos, fomentado la Trabajo para Áreas Protegidas incluye activa participación de las comunidades como meta para el 2008 el estableci- vecinas. El capítulo siguiente, número miento de mecanismos de participación VIII, que trata sobre recursos marinos equitativa tanto en los costos como en y costeros, establece que el Ministerio los beneficios derivados de la creación de Ambiente y Energía (MINAE) jun- y administración de áreas protegidas. to con las instituciones competentes Esta propuesta para el reconocimiento pueden delimitar zonas de protección de un Área Comunitaria Marina para la a determinadas áreas marinas, sujetas Pesca Responsable se orienta hacia el a planes de ordenamiento y manejo, a cumplimiento concreto de esta meta. fin de prevenir la degradación de estos ecosistemas. Considerando que uno de Los derechos a un ambiente los principios que inspiran la Ley Or- sano y ecológicamente gánica del Ambiente es el de la utiliza- ción racional para el mejoramiento de equilibrado también deben ser la calidad de vida de sus habitantes, el garantizados para el sector establecimiento de éstas áreas marinas pesquero artesanal pueden aceptar una gestión comunitaria En Costa Rica el respaldo legal de las de la misma. La Ley de Biodiversidad áreas protegidas se encuentra en el que fue aprobada tres años después, capítulo VII de la Ley Orgánica del vino a ratificar lo establecido por la LOA Ambiente de 1995. Contrariamente a lo en sus artículo 58, 60 y 61, brindándo- que se puede creer por la fama interna- le además como se dijo anteriormente cional de nuestro país en este campo, el marco institucional que había veni- lo cierto es que el Sistema de Áreas de do funcionado, el Sistema Nacional de Conservación ha funcionado en base a Áreas de Conservación. una integración de normas de diferentes leyes y a lineamientos políticos que no En 1994, se constituyó el Instituto encontraron respaldo jurídico como tal, Costarricense de Pesca y Acuicultura, sino hasta la Ley de Biodiversidad en INCOPESCA. Este instituto tiene también 1998. Las categorías de manejo que la dentro de sus atribuciones dictar las Ley Orgánica del Ambiente (LOA) reco- medidas tendientes a la conservación, el noce son: fomento, el cultivo y el desarrollo de la X Reservas forestales flora y fauna marinas. Dicho de otra for- X Zonas protectoras ma, la conservación, el aprovechamiento X Parques nacionales y el uso sostenible de los recursos bioló- X Reservas biológicas gicos del mar es el ámbito de competen- cia de esta institución. El otorgamiento X Refugios nacionales de vida silvestre de los actos administrativos relacionados X Humedales con los recursos marinos compete al X Monumentos naturales. INCOPESCA y el sector que regula es el sector pesquero. 15, July 2007 197 Conservation and Human Rights El reconocimiento de los derechos tradi- cionales de la pesca artesanal en Tár- coles, y consiguientemente el reconoci- miento de la existencia El sector pesquero de un área comunitaria artesanal, para la pesca artesanal, ejerciendo una podría ser un insumo para la discusión del pesca artesanal Grupo de Trabajo sobre responsable puede diversidad biológica cos- contribuir con tera y marina, que ha los objetivos de solicitado información sobre experiencias de conservación de manejo integral marino la diversidad costero con participa- biológica marina. ción comunitaria para próxima reunión del SBSSTA. Su fundamento se encuentra Mapa 1. Ubicación de Tárcoles, Costa Rica. en el reconocimiento del Estado de los derechos sociales, económicos y cultura- ca marina. les del sector pesquero artesanal, el cual para el ejercicio de su oficio, la pesca El área comunitaria de pesca artesanal artesanal, requiere del establecimiento responsable en Tárcoles puede con- de una estrategia interinstitucional que vertirse en un sitio de observación y le reestablezca sus derechos de acceso aprendizaje sobre la integración de los a los recursos en la zona costera y en la derechos sociales, económicos, cultu- zona marina, de los cuales depende su rales y ambientales que promueve la sobrevivencia económica y cultural. Por normativa nacional e internacional. Pero otra parte, el sector pesquero artesanal, sobre todo, representa una muestra de ejerciendo una pesca artesanal respon- que aún existen oportunidades para los sable puede contribuir con los objetivos sectores más marginados. de conservación de la diversidad biológi- Caso de Estudio. Tárcoles, un proceso local de conservación marina para la pesca artesanal. Tárcoles es una comunidad ubicada en el pacífico Central de Costa Rica. La principal fuente de ingresos para sus habitantes ha sido a lo largo de estos años, la pesca artesanal. CoopeTár- coles R.L es una cooperativa que agrupa cerca de 40 pescadores y sus familias y fue consti- tuída hace 20 años. Se dedica a la pesca y distribución de diferentes variedades de pescado mediante la gestión sostenible de los recursos naturales y culturales. A lo largo de los años, Coope Tárcoles R.L. ha sido la fuente principal de empleo en el distrito de Tárcoles, generando ingresos para un 50% de la población, recibiendo pescado tanto para sus asociados como para pescadores no afiliados de Tárcoles y sus alrededores, como Playa Azul y Tarcolitos. A notar que, según el Foro Mundial de Pesca, el pescador no es solamente el que sale en su embarcación a traer el producto, sino que incluye una serie de oficios asociados como los “lujadores” que son aquellos que se encargan de desenredar las líneas después de una jornada de pesca, y que ocu- pa principalmente a mujeres y jóvenes; a los “encarnadores” quienes preparan las líneas con la carnada; los trabajadores en los Centros de Acopio; transportistas e incluso los administrativos. Coope Tárcoles R.L. ha decidido asumir el liderazgo para conservar la diversidad biológica de los 198 15, July 2007  …but conservation and human rights What can Conservation canalso ARE work in Human undermine mutual Rights, Human support… anyway? Rights... ecosistemas marinos en donde ha desarrollado la pesca artesanal por más de veinte años, asu- miendo también la responsabilidad de su control y gestión para beneficio de la pesca artesanal en general y no sólo para sus asociados. Desde hace cinco años se desarrolla la relación de asociatividad entre Coope SoliDar R.L. y Co- ope Tárcoles R.L. que espera proponer soluciones y alternativas.10 A fines de noviembre del 2004 fue aprobado unánimemente en Asamblea General el primer instrumento voluntario desde el sec- tor pesquero artesanal, el Código de Pesca Responsable de Coope Tárcoles R.L.11 Se han también desarrollado diferentes acciones, como la elaboración y ejecución de un Plan de Gestión Am- biental de la Planta, el cual ha sido reconocido con el Premio a la Innovación Tecnológica que otorga la Comisión Centroamericana de Ambiente y Desarrollo (CCAD) 2006. Desde mediados del 2005 se está llevando una Tabla de Pesca que recoge la información de las capturas diarias, el esfuerzo pesquero y los principales lugares de pesca, información que ha apoyado la toma de decisiones como la solicitud al INCOPESCA para monitorear la captura de la raya o la necesidad de realizar investigación participativa sobre la langosta en el Pacífico. Continuando con los avan- ces para desarrollar una pesca responsable, la Asamblea General de Coope Tárcoles R.L. del 12 de junio del 2005,12 declaró el establecimiento para un Área Comunitaria Marina para la Pesca Responsable. Esta iniciativa se concibe como un proceso en construcción, en donde se solicita el acompañamiento a las instituciones competentes y a todos los sectores interesados. El Concejo Municipal de Garabito, Gobierno Local de la Zona, en sesión ordinaria número 24 del pasado 18 de octubre del 2006, declaró al Distrito de Tárcoles como “Zona de Pesca Artesanal Responsable”; este reconocimiento se entregó en las propias instalaciones de CoopeTárcoles R.L. en una una sesión extraordinaria del Concejo Municipal de Garabito el 4 de noviembre del 2006, reconociendo los derechos tradicionales de pesca en esta área. El Área Comunitaria Marina para la Pesca Responsable que se propone pretende reconocer la importancia de la pesca artesanal como una actividad económica relevante para la creación de empleo, seguridad alimentaria y la erradi- cación de la pobreza de las poblaciones costeras; conservar los recursos marinos de la zona y re- conocer el aporte a la conservación biodiversidad marina que brindan los pescadores artesanales de Coope Tárcoles R.L. Se está trabajando en el proceso de zonificación participativa con el cono- cimiento de los pescadores asociados; y un Reglamento de Uso con las medidas necesarias para la conservación de la diversidad biológica marina en esta área: artes de pesca, estacionalidad de la captura de ciertas especies, mejores prácticas pesqueras. Coope Tárcoles R.L. ha solicitado a las autoridades gubernamentales que se unan en su esfuerzo haciendo lo que por ley les compete, Patricia Madrigal Cordero (patmadri@racsa.co.cr) Notas es abogada, especialista en derecho ambiental de la 1 En este proceso han trabajado los asociados de Universidad de Costa Rica, y candidata al Doctorado en Coope SoliDar R.L., Vivienne Solís R., Patricia Mad- Derecho Ambiental de Alicante, España. Es miembro del rigal C., Marvin Fonseca B., e Ivannia Ayales Cruz. Consejo Internacional de Derecho Ambiental (ICEL), de 2 UICN, 2005. la Comisión de Derecho Ambiental (CEL) y la Comisión 3 La gobernanza se refiere a la interacción entre sobre Política Ambiental, Económica y Social (CEESP) de estructuras, procesos y tradiciones que determina la UICN, y colaboradora regional del Anuario de Derecho cómo se ejerce el poder, cómo se toman las deci- Internacional Ambiental, Oxford Press. Actualmente es siones en asuntos públicos y cómo los ciudadanos y gerente de la Cooperativa Autogestionaria de Servicios otros actores se manifiestan. Trata sobre el poder, Profesionales para la Solidaridad Social, Coopesolidar las relaciones y la rendición de cuentas, quién tiene R.L. Vivienne Solís Rivera (vsolis@coopesolidar.org) es influencia, quién decide y cómo se rinden cuentas” bióloga graduada de la Universidad de Costa Rica, con (Abrams et al. 2003). una maestría en Ecología de la Universidad de Lawrence, Kansas, EUA. Durante 10 años fue coordinadora del Área 4 UNEP-CBD-COP 8-31, 2006. Temática de Vida Silvestre de la Oficina Regional para 5 Nomura, 2006. Mesoamérica de la Unión Mundial para la Naturaleza 6 Este apartado ha sido tomado del documento en (ORMA-UICN). Actualmente es Vicepresidente de la prensa “Consideraciones sociales del sector pes- Cooperativa Autogestionaria de Servicios Profesionales quero artesanal sobre el Corredor Marino de Con- para la Solidaridad Social, Coopesolidar R.L. y co-chair del servación del Pacífico Este Tropical: primeras ideas .“Theme on Governance, Equity and Rights” de CEESP hacia la incidencia social”, elaborado por Coope 15, July 2007 199 Conservation and Human Rights SoliDar R.L. con el apoyo de Conservación Internac- Referencias ional en el marco del proyecto Walton. Abrams, P., G. Borrini-Feyerabend, J. Gardner y P. 7 Coope SoliDar, 2006. Heylings, Evaluating Governance. A handbook to 8 Asociación: según la Ley de Asociaciones, para su accompany a participatory process for a protected creación se requieren como mínimo diez personas area, Report for Parks Canada and CEESP-CMWG- y su organización incluye una Asamblea General y TILCEPA, 2003. http://www.iucn.org/themes/ceesp/ una Junta Directiva. Wkg_grp/CMWG/EVALUATING%20GOVERNANCE%20 COLOPES: reúnen como mínimo a cuarenta pes- HANDBOOK.doc. cadores artesanales y reciben el apoyo técnico del Coope SoliDar R.L., Tárcoles: una comunidad de INCOPESCA. Su estructura se basa en una Asamb- pescadores artesanales en Costa Rica, aportes a la lea General y una Junta Directiva. conservación de los recursos marino-costeros del Cámara: estructura gremial que agrupa a diferentes golfo de Nicoya, San José, 2005. organizaciones con un giro económico común. Coope SoliDar R.L., Consideraciones sociales del sec- Cooperativa: según la Ley de Cooperativas, es una tor pesquero artesanal sobre el Corredor Marino de asociación voluntaria de personas con personería Conservación del Pacífico Este Tropical: primeras jurídica, duración indefinida y responsabilidad ideas hacia la incidencia social, San José, 2007 (en limitada, que se organiza a través de una Asamb- prensa). lea General con un mínimo de doce personas en el caso de las cooperativas de autogestión, o de veinte Coope SoliDar R.L., Código de conducta para la pesca personas para el resto de las cooperativas. Tiene un responsable, adaptación en folleto desplegable, Coo- Consejo de Administración, un Comité de Educación peTárcoles R.L. y CoopeSoliDar R.L., San José, 2004. y Bienestar Social y un Comité de Vigilancia. Coope SoliDar R.L.. “Recursos marino-costeros: una Unión de cooperativas: según la Ley de Cooperati- reflexión desde el uso sostenible y la conservación. vas, se constituye con hasta cinco cooperativas. Análisis del 2005”. Contribución para el capítulo Federación: agrupa más de cinco cooperativas. “Armonía con la naturaleza” del Informe Estado de la Sindicato: asociación permanente de trabajadores Nación (Programa Estado de la Nación, 2006). constituida para el mejoramiento y protección de Nomura, I., “Derechos de pesca: un enfoque para cada sus intereses económicos y sociales comunes. caso”, SAMUDRA reporte, CIAPA Colectivo Internacio- 9 Programa Estado de la Nación, 2006. nal de Apoyo al Pescador Artesanal, India, 44: 25-26, 10 Coope SoliDar R.L., 2005. 2006. 11 Coope SoliDar R.L., 2004. Programa Estado de la Nación. Duodécimo Informe Es- tado de la Nación en Desarrollo Humano Sostenible, 12 Asamblea General Extraordinaria, Coope Tárcoles Programa Estado de la Nación, San José, 2006. R.L., 12 de junio del 2006. Especial reconocimiento merece el Consejo de Administración que impulsó UICN, Beneficios más allá de las fronteras, Actas del esta iniciativa: Danilo Morales A., Marcos Chacón V Congreso Mundial de Parques de la UICN, UICN Rojas, Jeannette Naranjo González y David Chacón Gland (Suiza), 2005. Rojas. UNEP-CBD-COP 8-31, Decisiones adoptadas por la Conferencia De Las Partes en el Convenio sobre la Diversidad Biológica en su octava reunión, 2006. Using human rights instruments for biodiversity conservation Svitlana Kravchenko Abstract. This paper analyzes the connections between conservation of biodiversity and hu- man rights. First, it discusses court cases in which substantive human rights, such as the right to life and indigenous peoples’ rights to land and property, culture, and self-determina- tion, have been used to protect biodiversity. Second, it explains the role of procedural human rights, such as rights to information, participation in decision making and access to justice, in 200 15, July 2007  …but conservation and human rights What can Conservation canalso ARE work in Human undermine mutual Rights, Human support… anyway? Rights... the protection of biodiversity. The article demonstrates that international and national human rights instruments can be powerful tools for protecting biodiversity– often more effective than multinational environmental agreements. A connection between the field of human rights and the field of envi- gans, such as the UN Human Rights Council,2 and UN human rights treaty organs, such as the Human Rights ronment has been developing during Committee under the Covenant on Civil the last two decades. Some people and Political Rights and other bod- saw a conflict between human rights ies under other human rights treaties. and environmental rights during the Some (though not all) can be ad- 1992 UN Conference on Environment dressed by individuals, but these are and Development in Rio de Janeiro. not judicial bodies and have no direct By 2001, however, experts from both enforcement powers. Human rights fields had come together and reached violations can be challenged more ef- broad agreements during the Expert fectively in the regional human rights Seminar on human rights and environ- systems, namely the European Court ment organized by the United Nations of Human Rights, the Inter-Ameri- High Commissioner on Human Rights can Commission and Court of Human and the United Nations Environment Rights, and the African Commission Program in Geneva.1 Using interna- and Court of Human Rights. tional human rights instruments for the protection of the environment, and for In contrast, most Multinational Envi- biodiversity conservation in particular, ronmental Agreements (MEA) and, in has in fact several advantages for citi- particular, the Convention of Biologi- zens and non-governmental organiza- cal Diversity (CBD), have no strong tions (NGOs). systems of enforcement that can be accessed by individuals. The CBD Human rights instruments are estab- has dispute resolution and arbitration lished in the form of UN Charter or- mechanisms for solving disputes be- tween Contracting Parties3 concerning the interpretation or application of the Convention.4 Similarly, the Compliance Mechanism for the Cartagena Proto- col on Biosafety under the CBD (which started its operation in March 2006), which is a non-judicial mechanism that includes provisions for offering advice or assistance, can only be invoked by other Parties.5 As for state challenges against other states’ non-compliance under MEA compliance, dispute, and arbitration mechanisms, these are rath- er rare because states are concerned Picture 1. A bird being born in the Danube about the possible consequences for Biosphere reserve. When construction of a their diplomatic relationship with other canal started, many nests of endangered countries.6 Most human rights bodies, species of birds were abandoned. on the other hand, are available for (Courtesy Prof. John E. Bonine) 15, July 2007 201 Conservation and Human Rights complaints from non-state actors, such mit issued for a gold mine that would as citizens and NGOs. use cyanide to extract gold from ore. The court considered that, in light of Substantive human rights and the Turkish state’s obligation to protect biodiversity a healthy environment and the right to Various human rights treaties have life, the permit did not serve the gener- provisions that explicitly or implicitly al interest, in part because of the dan- recognize environmental rights. For ger of sodium cyanide to the local eco- system. When the Prime Minister and Various human instance, the San Salvador Protocol7 other authorities intervened to issue rights treaties recognizes that new permits despite the decision of the have provisions “Everyone shall have Supreme Administrative Court, various courts ruled that those permits were il- that explicitly or the right to live in legal. Nonetheless, the government au- implicitly recognize ament”. healthy environ- Another ex- thorized mining and related production environmental ample is the African starting in 2001 and continuing there- after. When the matter was brought to rights. Charter on Human the European Court of Human Rights, and Peoples’ Rights, which says that “All peoples shall have the court ruled that the mining was the right to a general satisfactory en- a violation of the right to respect for vironment favorable to their develop- private and family life, in breach of ment.”8 The two human rights courts Article 8 of the European Convention with the most highly developed envi- on Human Rights. It also ruled that the ronmental case law are in Europe and government’s refusal to abide by the the Americas, even though the word decisions of its own courts deprived the “environment” is not mentioned in the citizens of a procedural human right, Convention applied by either court. namely the right to effective judicial protection in the determination of their European Court of Human Rights “civil rights.” (The particular civil right at issue was the right, under Article 56 The European Court of Human Rights of the Turkish Constitution, to live in a has several cases in which the con- healthy and balanced environment.)12 nection between human rights and the environment has been established suc- cessfully. There are no specific environ- mental rights in the European Conven- tion on Human Rights. Despite this, the right to respect for private and family life and home (Article 8) has been used in cases such as Lopez Ostra v. Spain,9 Fadeyeva v. Russia,10 Taşkin v. Tur- key,11 and other cases to stop pollution causing harm to the health, family life, and home of plaintiffs; to oblige gov- ernments to resettle affected people; or to demand compensation for damages. Picture 2. White Pelican and Pigmy Corm- In the case of Taşkin v. Turkey, in May orant are two of 325 endangered species 1997, the Supreme Administrative in the Danube Biosphere reserve. (Courtesy Prof. John E. Bonine) Court of Turkey had invalidated a per- 202 15, July 2007  …but conservation and human rights What can Conservation canalso ARE work in Human undermine mutual Rights, Human support… anyway? Rights... Inter-American Court of Human mission on Human Rights. The peti- Rights tioner received a letter stating that The Inter-American Court of Human the Commission “will not be able to Rights recognized indigenous peoples’ process your petition at present... the rights to land and property in the land- information provided does not enable mark Awas Tingni case,13 and protected us to determine whether the alleged biodiversity in the process of doing so. facts would tend …after the Inter- In this case, the Court held that the to character- ize a violation of Governmental international human right to enjoy the benefits of property, affirmed in the rights protected Panel on Climate American Convention on Human Rights, by the American change issued a includes the right of indigenous peoples Declaration.”16 dramatic report about to the protection of their traditional However, after the Inter-Govern- global warming lands and natural resources. The Court held that the State of Nicaragua vio- mental Panel on in February 2007, lated the “property” rights of the Awas Climate change the Inter-American Tingni Community by granting a foreign issued a dramatic Commission on company a concession to log within the report about Community’s traditional lands, even global warming in Human Rights though the Community did not have of- February 2007, started a proceeding ficial legal title to the lands.14 The Court the Commission to consider the matter ruled that Nicaragua must secure the started a proceed- ing to consider of climate-related effective enjoyment of their rights. This decision ensures better conservation the matter more human rights, and sustainable use of biodiversity by generally, inviting inviting the Inuit to indigenous people. the Inuit to pres- present testimony in ent testimony in March 2007. March 2007. Other petitions have been less suc- cessful, but the attempts continue. For example, the Inuit people of Alaska Procedural human rights and and Canada have argued that the ad- biodiversity in international law verse impact on wildlife from climate Procedural rights, such as the right to change, which generates changes in information, to participate in decision the location, number, and health of making, and to access to justice in en- plant and animal species, violates vironmental matters, can be a powerful their fundamental human rights to life, tool for the conservation of biodiversity. property, culture and means of sub- The CBD and the Cartagena Protocol on sistence.15 Some species will move to Biosafety contain procedural rights to different locations; others cannot com- information and participation in deci- plete their annual migrations because sion making concerning the safe trans- ice they normally travel on no longer fer, handling and use of living modified exists. Reduction of sea ice has drasti- organisms in relation to the conserva- cally shrunk habitat for polar bears and tion and sustainable use of biological seals, pushing them toward extinction. diversity. Parties have to “consult the This has impaired the Inuits’ right to public in the decision-making process subsist by altering their food sources. regarding living modified organisms The Inuit petition, which was formally and shall make the results of such filed against the United States, was decisions available to the public….Each rejected by the Inter-American Com- Party shall endeavor to inform its public 15, July 2007 203 Conservation and Human Rights about the means of public access to the Matters. It is regional in scope, covering Biosafety Clearing-House.”17 How the Western and Eastern Europe, the Cau- public can actually enforce its right of casus and Central Asia, but has global information, participation, and consul- significance. According to UN Secretary tation is unclear, however. The mecha- General Kofi Annan, nisms adopted to assess states’ compli- this Convention “… The best example of ance with their obligations under the is by far the most an international CBD and the Protocol do not allow the impressive elabora- agreement protecting public to submit complaints. tion of principle 10 of the Rio Declara- procedural human In Europe, the Espoo Convention on tion, which stresses rights is the Aarhus Environmental Impact Assessment in a the need for citi- Convention Transboundary Context established that zens’ participation if a development project may affect the in environmental issues and for access environment of another country, the to information on the environment held public has a right to information and to by public authorities. As such it is the participate during preparation of envi- most ambitious venture in the area ronmental impact assessments (EIAs). of “environmental democracy” so far Transboundary effects can obviously undertaken under the auspices of the have significant impacts on biodiver- United Nations.”19 The Aarhus Conven- sity. However, as with the CBD and the tion’s procedural rights are being tested Cartagena Protocol, the procedures to and defined in the Convention’s Compli- measure compliance with the Espoo ance Committee. Convention do not provide the public any right to complain if their rights to information and participation are vio- lated.18 Several other MEAs do not even provide information or participation rights to the public, depending instead on the good will of governments to implement the conventions wisely. Just as they do not provide such rights, the compliance mechanisms under these other conventions do not provide the public any way to complain if a country fails to meet its obligations. Picture 3. Danube Delta— the "Ukrainian The Aarhus Convention Venice" (Courtesy Prof. John Bonine) In contrast to the relative ineffective- ness of the rights in various MEAs, a The Danube Delta case relatively new convention that does not in itself explicitly protect biodiversity or The Danube Delta is the ecological conserve protected natural areas does heart of Europe for many wildlife spe- recognize procedural human rights that, cies. Its waters and diverse habitats when used properly, can promote the support biodiversity found in few other conservation of biodiversity. That con- places. According to scientists at the vention is the Aarhus Convention on Ac- World Wide Fund for Nature, the Dan- cess to Information and Public Participa- ube Delta is "the most important wet- tion in Decision Making in Environmental land area in Europe."20 It is also the 204 15, July 2007  …but conservation and human rights What can Conservation canalso ARE work in Human undermine mutual Rights, Human support… anyway? Rights... home to 325 species of birds and 75 species of fish, several of which are listed in species Red Books and threat- ened with extinc- Ukraine decided tion.21 “The estuaries to build a deep are important bio- navigation logical environments canal through in that they form the spawning ground the heart of the for many economi- biosphere reserve cally valuable ma- without proper rine species.” The 22 importance of the environmental area is internation- impact assessment ally recognized. The Danube Delta has been designated a "Global 200" site, Map 1. The Danube Biosphere reserve with 8 alternative options for the const- one of the world's most significant and ruction of the canal. The government of diverse regions23 and as a Biosphere Ukraine chose the "worst" one (according Reserve under UNESCO's Man and the to the UNESCO/Ramsar mission report), Biosphere Program in 1998.24 Part of through the Bystre mouth, here indicated the Danube Delta was also designated as option 8. a Wetland of International Importance (Courtesy Danube Biosphere Reserve) under the Ramsar Convention in 1995. A further Joint Mission of international Despite these international recogni- experts, representing the secretariats tions, the Government of Ukraine de- of the Convention on the Protection of cided to build a deep navigation canal the Danube River, the Ramsar Conven- through the heart of the biosphere tion, the Bern Convention, the Aarhus reserve, without an EIA that would and Espoo Conventions, and UNESCO, meet international standards of public and led by the European Commis- involvement in decision making. The sion, visited Ukraine on 6-8 October process took over four years, and the 2004 and made recommendations in first phase of the canal was built and November 2004.26 Shortly thereafter, officially opened in 2004. Critics of the the Standing Committee of the Bern canal have alleged violations of national Convention on 3 December 2004 ad- law and of several international treaties opted Recommendation N° 111 on the ratified by Ukraine. A joint Ramsar and proposed canal through the Bystre UNESCO mission to the Danube Delta estuary. It recommended that Ukraine in October 2003 reached the conclusion suspend all works, thoroughly explore that construction of the canal though alternative solutions for creating or rec- the Bystre Mouth of the Danube River reating a shipping canal in the Danube would represent the worst option, in Delta, prepare an EIA Report consider- terms of the damage that the route ing all possible alternatives, minimise would inflict on the natural environment deterioration of important areas for and the costs and time associated to biological diversity, and, in case of ca- undertake the necessary compensation nal construction, provide for ecological measures required by the particular compensation for any possible envi- protection status of the area.25 ronmental damage.27 A special Inquiry 15, July 2007 205 Conservation and Human Rights Committee under the Espoo Convention provide information by the responsible in July 2006 stated that the canal will public authorities according to article 4 have adverse transboundary impacts, of the Convention.28 After initially ig- and that no proper EIA, including ad- noring the rulings of the Aarhus Meet- equate public consultation, had been ing of the Parties, the government of prepared. Ukraine has begun to respond to them. The second phase of the canal con- The government of Ukraine has paid struction was stopped. A new EIA was little attention to any of these criticisms conducted with public involvement, by international bodies operating under and some of the public comments were conservation and EIA conventions, and taking into account. The government …EPL built its has only partly followed their recommenda- is going to re-start the canal construc- tion, however, and a transboundary EIA strategy on tions. But the citizens that meets international standards has alleging the of Ukraine, invoking yet to be organized by the government. violation of their procedural human Whether the procedural rights will be rights, have played strong enough to stop the damage to procedural rights an important role and the area is still uncertain, but efforts to information have had some suc- to ensure biodiversity protection in this and participation cessful results. The area are continuing. in decision Ukrainian NGO Envi- ronment-People-Law Procedural human rights and making in the (EPL, formerly Eco- biodiversity in national laws EIA prepared for pravo-Lviv) has worked Procedural human rights also exist in the canal… to stop the construc- national laws and are being used to tion of the canal and to protect biodiversity at the national protect biodiversity using national and level. international legal tools. It sent peti- tions to the secretariats of the Danube, The Tashlyk Protected Area case UNESCO and Bern conventions, and a formal compliant to the Implementa- Another example of the use of proce- tion Committee though Espoo Secre- dural human rights to protect biodiver- tariat. Its most successful complaint, sity is found in the Tashlyk Protected however, has been communication to Area case in Ukraine. The govern- the Aarhus Compliance Committee. ment of Ukraine plans to finish the construction of the Tashlyk Pumped EPL built its strategy on alleging the Storage Hydro Station, to be included violation of procedural rights to infor- in the South Ukrainian nuclear power mation and participation in decision complex. The scheme is to supply the making in the EIA prepared for the station with water from the South canal. The Second Meeting of the Par- Bug River to provide full-time opera- ties of the Aarhus Convention, in Al- tion of the nuclear station. This will maty, Kazakhstan, on 25-27 May 2005, be possible by storing excess energy adopted Decision II/5b. This decision at night through pumping water into endorses the findings of the Compli- the reservoir, and then releasing it ance Committee, i.e., that Ukraine during the day when there is higher failed to provide for public participation energy demand. In conjunction with of the kind required by article 6 of the this, the government made a decision Convention, and that Ukraine failed to to change the water level of the Olek- sandrivsky reservoir from its previous 206 15, July 2007  …but conservation and human rights What can Conservation canalso ARE work in Human undermine mutual Rights, Human support… anyway? Rights... level of 8 meters to 16 or even 20.7 of biodiversity such as Tashlyk. meters.29 The rising water will cause harm to, and pos- The court ruled sibly extinction of, that withdrawing unique local bio- land from a diversity, includ- protected area to ing flora and fauna listed in the IUCN allow flooding, Red List and cov- without adequate ered by the Bern notice and public Convention. At the comment, violated time of this writing many habitats of the environmental such species have rights to public already been cov- participation. ered by water. The flooded territory also had monuments and objects of Picture 4. Newborn seagulls in the Danube cultural and historical value. Biosphere reserve. (Courtesy Prof. John E. Bonine) Complaints to international bodies and pleas to the Ukrainian government to Conclusion respect the status of the protected More and more experts in the previ- area fell on deaf ears. Then EPL, the ously separate fields of human rights same Ukrainian NGO mentioned before, and the environment are developing a decided to use national laws that pro- common understanding and consen- tect procedural human rights. Acting on sus about the benefits of cooperation. behalf of two citizens living near Tash- Indigenous peoples’ rights depend on lyk, EPL went to court to seek a ruling the sustainable use of biodiversity, and invalidating an oblast (county) action can be used to help protect it. The right that withdrew lands from the protected to life and the right to a healthy envi- area. EPL has alleged that the project ronment can reach their full potentials violates the right of the public to partic- only in a rich, diverse, and unspoiled ipate in environmental decision making environment. In this light, the human because the station is being built with- rights approach can be a powerful tool out proper consultation with the public for the conservation of biodiversity, during the preparation of the EIA. EPL as the field has established institu- got its first taste of victory in January tions and, in its regional human rights 2007. A trial court ruled that the action courts, the beginning of developed case of the Mykolaiv Oblast (County) Coun- law. Furthermore, the Aarhus Conven- cil, i.e., the withdrawing of land from a tion has stronger “teeth” in terms of protected area by active flooding, with- compliance than any other multilateral out adequate notice and public com- environmental agreements. Similarly, ment, violated the environmental rights human rights claims in national courts to public participation.30 The decision is have some potential. In terms of doc- likely to be appealed and the final chap- trines and tools, substantive human ter is not written, but it is apparent that rights can be used to achieve goals procedural human rights have an im- that are important to biodiversity con- portant role to play in protecting areas servation. Procedural rights can be 15, July 2007 207 Conservation and Human Rights used to ensure that all stakeholders Human Rights Violations Resulting from Global Warming Caused by the United States, Decem- participate in decision making, which ber 7, 2005 http://www.earthjustice.org/library/ will in many cases lead to more effec- reports/ICC_Human_Rights_Petition.pdf tive conservation. 16 http://www.nunatsiaq.com/news/nuna- vut/61215_02.html Svitlana Kravchenko (slana@uoregon.edu) received her 17 The Cartagena Protocol on Biosafety, Article J.D. and Ph.D. in environmental law in the former Soviet 23, http://www.biodiv.org/biosafety/articles. Union and her LL.D. in Ukraine. She taught domestic shtml?a=cpb-23. and international environmental law for 26 years at Lviv National University in Ukraine and continues to teach at 18 Kravchenko, 2007. the University of Oregon School of Law. Prof. Kravchenko is 19 Stec and Casey-Lefkowitz, 2000. the author of 174 publications in the field of environmental 20 WWF, 2002. law, including 12 books and book chapters. She founded the public interest environmental law firm Ecopravo-Lviv 21 WWF, 2002. See also http://www.wcmc.org. (now Environment-People-Law) in 1994 and has served uk/protected_areas/data/wh/danubed.html and as its president since. Dr. Kravchenko served as a Vice- http://www.birdlife.org.uk/news/pr/2003/05/ Chair of the IUCN Commission on Environmental Law. danube.html She was involved in the negotiations of the Aarhus Public 22 Coleman et al., Participation Convention and the SEA Protocol under the 23 http://www.panda.org/about_wwf/where_we_ Espoo EIA Convention as a “citizen diplomat.” She is Vice- work/ecoregions/global200/pages/regions/re- Chair of the Aarhus Convention Compliance Committee. gion159.htm 24 http://www.unesco.org/mab/BR-Ramsar.htm 25 UNESCO (Man and Biosphere Programme) and Notes Ramsar Convention Mission Report Danube 1 Conclusion of the Meeting of Experts on Human Biosphere Reserve / Kyliiske Mouth Ramsar Rights and the Environment (2002). Site, Ukraine, 27-31 October 2003, http://www. 2 The Human Rights Council replaces the Commis- ramsar.org/ram/ram_rpt_53e.htm. sion on Human Rights, which performed many 26 http://europa.eu.int/comm/environment/enlarg/ of the same functions until it concluded its 62nd bystroe_project_en.htm. and final session on 27 March, 2006. 27 https://wcd.coe.int/ViewDoc.jsp?id=847341&Ba 3 States that ratified the convention. ckColorInternet=9999CC&BackColorIntranet=FF 4 The Convention on Biological Diversity, Article BB55&BackColorLogged=FFAC75. 27, http://www.biodiv.org/convention/articles. 28 www.unece.org/env/pp/mop2.htm. shtml?a=cbd-27. The Parties concerned seek 29 http://www.epl.org.ua/a_cases_Pumped_Stor- a solution by negotiation. If the problem is not ageHS.htm. solved, mediation by a third party is suggested. The next steps are arbitration, and ultimately 30 Ibid. submission to the International Court of Justice. 5 The Cartagena Protocol on Biosafety, Article References 34, http://www.biodiv.org/biosafety/articles. shtml?a=cpb-34. Anaya, S. J. and C. Grossman. “The Case of Awas Tingni v. Nicaragua: A New Step in the Interna- 6 An exception is the Aarhus Convention’s unique tional Law of Indigenous Peoples”, Arizona Journal compliance mechanism, which accepts commu- of International and Comparative Law, Vol. 19, nications from the public and has considered 17 No. 1 2002. http://www.indianlaw.org/AT_Anaya_ cases during just 3 years of its operation. See Grossman_2002.pdf Kravchenko (2005). Coleman, J., M. Harry, H. Roberts and O. K. Huh, 7 Additional Protocol to the American Convention Deltaic Landforms, Plate D-2, Danube River on Human Rights in the Area of Economic, Social Delta, Romania In Geomorphology from Space: and Cultural Rights “Protocol of San Salvador,” A Global Overview of Regional Landforms, Ch Article 11, http://www.cidh.oas.org/Basicos/ba- 5, http://geoinfo.amu.edu.pl/wpk/geos/GEO_5/ sic5.htm GEO_PLATE_D-2.HTML 8 African Charter of Human and People’s Rights, Conclusion of the Meeting of Experts on Human Article 24, http://www.achpr.org/english/_info/ Rights and the Environment (14-15 January, charter_en.html 2002), http://www.unhchr.ch/environment/con- 9 Lopez-Ostra v. Spain, 1994. clusions.html 10 Fadeyeva v. Russia, 2005. Fadeyeva v. Russia, Application no.55723/00, The 11 Taşkin and others v. Turkey, 2004 . European Court of Human Rights (Former First Section), Judgment of 9 June 2005, http://world- 12 Taşkin and others v. Turkey, 2004. lii.org/eu/cases/ECHR/2005/376.html 13 The Mayagna (Sumo) Awas Tingni Community v. Kravchenko, S., “Strengthening compliance with Nicaragua, 2001. MEAs: the innovative Aarhus Compliance Mecha- 14 Anaya and Grossman, 2002. nism”, pp. 245-254 in Durwood Zaelke, Donald 15 Petition to the Inter American Commission on Kaniaru, and Eva Kružíková (Eds), Making Law 208 15, July 2007  …but conservation and human rights What can Conservation canalso ARE work in Human undermine mutual Rights, Human support… anyway? Rights... Work. Environmental Compliance and Sustainable Stec, S. and S. Casey-Lefkowitz (in collaboration Development, Cameron May Ltd, London, 2005. with Jerzy Jendroska, Editorial Adviser), The Kravchenko, S. “The Aarhus Convention and In- Aarhus Convention: An Implementation Guide, novations in Compliance with Multilateral Environ- United Nations, New York and Geneva, 2000. mental Agreements Compliance Mechanisms”, in Taşkin and Others v. Turkey,Application no. Thijs Etty and Han Somsen (series eds), Yearbook 46117/99), The European Court of Human Rights of European Environmental Law, Cambridge U. (Second Section) sitting as a Chamber Judgment, Press, New York, forthcoming volume 7, 2007. Strasbourg, 10 November 2004 http://worldlii. Lethier, Hervé, Shipping canal in the Bystre es- org/eu/cases/ECHR/2004/621.html. tuary (Danube Delta, Ukraine), Report of the The Mayagna (Sumo) Awas Tingni Community v. on-the-spot appraisal (22-24 July 2004) ,EMC²I Nicaragua, Judgment of August 31, 2001, In- (Switzerland), Convention on the Conservation of ter-Am. Ct. H.R., (Ser. C) No. 79, 2001, http:// European Wildlife and Natural Habitats Standing www1.umn.edu/humanrts/iachr/AwasTingnicase. Committee 24th Meeting, Strasbourg, 29 Novem- html ber— 3 December 2004. WWF, Waterway Transport on Europe’s Lifeline, Lopez-Ostra v. Spain, The European Court of Hu- the Danube. Impacts, threats and opportunities, man Rights, Series A no. 303 C, judgment of 9 WWF, Vienna, 2002. December 1994. Indigenous peoples, protected areas and the right to restitution— the jurisprudence of the Inter-American Court of Human Rights Fergus MacKay Abstract. The majority of protected areas were (and continue to be) established and/or man- aged in violation of indigenous peoples’ internationally guaranteed rights. It is a general prin- ciple of international law that violations of international obligations that result in harm create a duty to make adequate reparation, which includes a right to restitution. This article focuses on indigenous peoples’ right to restitution of their traditional lands, territories and resources, as that right has been elaborated by the institutions of the inter-American human rights system, especially the Inter-American Court of Human Rights. Jurisprudence articulating and upholding indigenous peoples’ property rights and right to restitution is examined, and a pending case that explicitly seeks restitution of indigenous lands incorporated into protected areas is discussed. The article looks at the interaction between human rights norms and the Convention on Biological Diversity (CBD), and argues that it is important that the nexus between these two bodies of interrelated law is given greater emphasis by governments and conservation organisations. Further, it argues that Article 10(c) of the CBD and its future elaboration in a decision of the Conference of Parties provides ample opportunity to officially merge environmental and human rights norms, and to ensure that the protection of biologi- cal diversity and ecosystems not only takes into account the rights of indigenous peoples, but is fully consistent with those rights. 15, July 2007 209 Conservation and Human Rights O ne of the most pressing issues fac- ing conservation groups, governments the institutions of the inter-American human rights system, especially the Inter-American Court of Human Rights and indigenous peoples today is how (“the Court”). Because the Court has to ensure the effective protection of specified that an obligation to return biological diversity without compro- or restore indigenous peoples’ lands mising indigenous peoples’ rights. This is integral to the right to property, in is especially pertinent in connection addition to a specific remedial meas- with the establishment and manage- ure, I begin by looking at the rights ment of protected areas. By some indigenous peoples hold over their estimates, around 50 percent of exist- traditional territories in inter-American ing protected areas worldwide are on human rights law. This is followed by a lands traditionally owned by indige- discussion of the Court’s jurisprudence nous peoples, and in the Americas this on the restitution of indigenous lands number increases to over 80 percent.1 and a section describing a pending Additional protected areas, including case that explicitly seeks restitution marine areas, are also planned all over of indigenous lands incorporated into the world, many of them incorporat- protected areas. ing or affecting indigenous peoples’ territories. The vast majority of these protected areas were (and continue to be) established and/or managed in violation of indigenous peoples’ rights: inter alia, to own their traditional ter- ritories, to consent to decisions that affect them, and to secure access to subsistence resources and areas of religious or cultural significance.2 It is a general principle of international law that “every violation of an interna- tional obligation which results in harm creates a duty to make adequate repa- ration.”3 Thus, governments that vio- Picture 1. Indigenous researchers in Suri- late indigenous peoples’ rights by es- name interviewed community members tablishing protected areas within their to document unwritten, customary norms traditional territories without their free, on traditional land and resource manage- prior and informed consent are obliged ment. (Courtesy Ellen-Rose Kambel) to make reparations. One method of repairing violations is the restitution of Rights to Lands, Territories and lands and resources and the restora- Resources tion of other rights abrogated in the establishment and management of The primary organs of the inter-Ameri- protected areas. can human rights system are the Court and the Inter-American Commission This article focuses on indigenous peo- on Human Rights (“IACHR”). These ples’ right to restitution of their tradi- bodies supervise compliance with two tional lands, territories and resources main human rights instruments: the as that right has been elaborated by 1948 American Declaration on the Rights and Duties of Man and the 1969 210 15, July 2007  …but conservation and human rights What can Conservation canalso ARE work in Human undermine mutual Rights, Human support… anyway? Rights... American Convention on Human Rights to protect the right of the Maya people (“ACHR”). The IACHR is competent to in their territory, including official rec- receive complaints about alleged vio- ognition of that right.7 lations of the American Declaration, which is applicable to all members of In the Mary and Carrie Dann Case, the the Organization of American States IACHR interpreted the American Dec- (“OAS”), and the ACHR, presently ap- laration to require “special measures plicable to 25 of the 34 OAS member to ensure recognition of the particular states. The IACHR issues recommen- and collective in- dations rather than binding decisions. terest that indige- ….indigenous The Court is competent to adjudicate nous people have peoples’ property contentious cases provided that the in the occupation rights derive from respondent state is a party to the and use of their their own laws, their ACHR and has accepted its jurisdiction traditional lands (22 states have accepted the Court’s and resources….”8 land tenure systems, jurisdiction). The decisions of the Court It also observed and their traditional are, as a matter of international law, that “general occupation and use. binding on respondent states and may international legal be executed in domestic courts.4 principles applicable in the context of indigenous human rights” include The IACHR and the Court have resolved “the right of indigenous peoples to a number of cases involving indigenous legal recognition of their varied and peoples’ rights to lands, territories and specific forms and modalities of their resources, and a large number of cases control, ownership, use and enjoyment are presently pending. In their deci- of territories and property; [and to] sions and judgments the Court and the the recognition of their property and IACHR have repeatedly held that indig- ownership rights with respect to lands, enous peoples’ property rights derive territories and resources they have from their own laws, their land tenure historically occupied.”9 systems, and their traditional occupa- tion and use, and that these rights are In the landmark Mayagna (Sumo) valid and enforceable absent formal Indigenous Community of Awas Tingni recognition in national laws.5 v. the Republic of Nicaragua Case, the Court confirmed that indigenous peo- In the 2004 Maya Indigenous Com- ples’ territorial rights arise from tradi- munities Case, for instance, the IACHR tional occupation and use and indige- observed that “the jurisprudence of nous forms of tenure, not from grants, the system has acknowledged that the recognition or registration by the property rights of indigenous peoples state. The latter simply confirm and are not defined exclusively by entitle- secure pre-existing rights. In its 2001 ments within a State’s formal legal re- judgment, the Court held that “[a]s a gime, but also include that indigenous result of customary practices, posses- communal property that arises from sion of land should suffice for indig- and is grounded in indigenous custom enous communities lacking real title to and tradition.”6 It held that Belize is property of the land to obtain official obligated to “effectively delimit and recognition of that property, and for demarcate the territory to which the consequent registration.”10 It ordered, Maya people’s property right extends among others, that “the State must and to take the appropriate measures adopt the legislative, administrative, 15, July 2007 211 Conservation and Human Rights and any other measures required to in cases where indigenous peoples are create an effective mechanism for de- threatened with displacement or have limitation, demarcation, and titling of been displaced in relation to develop- the property of indigenous communi- ment projects or protected areas re- ties, in accordance with their custom- mains to be seen. Nevertheless, it is ary law, values, customs and mores.”11 an important benchmark against which the design and implementation of these These norms have been reaffirmed and activities should be assessed. further elaborated on by the Court in three further judgments issued in 2005 It is important to note that the norms and 2006.12 In the 2006 Sawhoyamaxa set forth above are not unique to the Indigenous Community Case,13 for inter-American system. Indigenous example, the Court observed that its peoples’ rights to own and control their jurisprudence holds that: “traditional traditional territories are also protected indigenous land ownership is equivalent in similar terms under United Nations to full title granted by the State [and]; human rights instruments.22 The Com- traditional ownership grants the indige- mittee on the Elimination of Racial nous people the right to demand offi- Discrimination, for example, has called cial recognition of their property and its on state parties to “recognize and pro- consequent registration.”14 In the 2005 tect the rights of indigenous peoples Moiwana Village Case, the Court held to own, develop, control and use their that Suriname had violated the right communal lands, territories and re- to property of a tribal community15 sources….”23 It routinely reaffirms this and ordered the state to adopt legisla- basic principle when examining state tive and other necessary measures to reports and in decisions under its ur- restore and ensure the community’s gent action procedure. property rights,16 “with the participation and informed consent of the victims” The Convention on Biological Diversity and neighbouring indigenous peoples.17 (“CBD”), an international environmen- tal treaty, also addresses indigenous The Court also established important peoples’ rights, including in relation to norms in relation to displaced persons the establishment Indigenous peoples’ and communities in Moiwana, an is- and management sue that is highly relevant to protected of protected areas. own research dem- areas, especially in Africa.18 It held that Decision VII/28 on onstrates that secure the many of the United Nations Guiding Protected Areas, land tenure rights Principles on Internal Displacement19 adopted by the and control over “illuminate the reach and content … of 7th Conference of [the right to freedom of movement and Parties to the CBD, traditional territory residence in Article 22 of the ACHR] in provides that “the and resources are the context of forced displacement.”20 establishment, critical elements of One of the Guiding Principles empha- management and sized by the Court provides that “States monitoring of the sound conserva- are under a particular obligation to protected areas tion, use, and man- protect against the displacement of in- should take place agement of biological digenous peoples, minorities, peasants, with the full and diversity. pastoralists and other groups with a effective participa- special dependency on and attachment tion of, and full respect for the rights to their lands.”21 What this may mean of, indigenous and local communities 212 15, July 2007  …but conservation and human rights What can Conservation canalso ARE work in Human undermine mutual Rights, Human support… anyway? Rights... consistent with national law and appli- on the measures needed to implement cable international obligations.”24 These and give effect to Article 10(c). Con- applicable international obligations ducted in five countries around the are defined, inter alia, in international world, these studies demonstrate that human rights law including the juris- secure land tenure rights and control prudence of the IACHR and the Court. over traditional territory and resources Decisions of the CBD Conference of are critical elements of the sound con- Parties represent authoritative interpre- servation, use, and management of tations of the CBD and thus are legally biological diversity.27 They also show binding on state parties. that indigenous peoples’ institutions and customary laws are intrinsic to bio- Article 10(c) of the CBD further pro- diversity and ecosystem protection and vides that state parties shall “protect management, and have evolved based and encourage [indigenous peoples’] on detailed and long-standing interac- customary use of biological resources tions with the natural environment. in accordance with traditional cultural practices that are compatible with con- Finally, in line with UN human rights servation or sustainable use require- treaty bodies,28 the IACHR has con- ments.” This article, by implication, sistently held that indigenous peoples’ should also be read to include protec- informed consent is required in relation tion for rights to lands and resources to activities that affect their traditional and to require recognition and protec- territories.29 As a general principle, it tion of indigenous institutions and cus- observes that inter-American human tomary laws relating to ownership, use rights law requires “special measures and management of biological resourc- to ensure recognition of the particular es.25 These conclusions are supported and collective interest that indigenous by the analysis of the Secretariat of the people have in the occupation and use CBD, which explains that: of their traditional lands and resources In order to protect and encourage, and their right not to be deprived of the necessary conditions may be in this interest except with fully informed place, namely, security of tenure consent, under conditions of equal- over traditional terrestrial and ma- ity, and with fair compensation.”30 This rine estates; control over and use right to consent applies to tradition- of traditional natural resources; and ally-owned indigenous lands and ter- respect for the heritage, languages ritories, and is not restricted to indig- and cultures of indigenous and local enous property rights as recognized by communities, best evidenced by ap- national laws. Parallel to this, the Court propriate legislative protection (which has ordered that states “refrain from includes protection of intellectual actions— either of State agents or third property, sacred places, and so on). parties acting with State acquiescence Discussions on these issues in other or tolerance— that would affect the United Nations forums have also dealt existence, value, use or enjoyment” of with the issue of respect for the right indigenous peoples’ property at least to self-determination, which is often until such time as their property rights interpreted to mean the exercise of are secured in law and fact.31 Similar self-government.26 orders have been issued in the Court’s provisional measures jurisprudence.32 These conclusions are further support- ed by indigenous peoples’ own research 15, July 2007 213 Conservation and Human Rights The Right to Restitution Yakye Axa.36 In international law, violation of a human right gives rise to a right of Similar violations were also found in reparation for the victim(s).33 Repara- the Sawhoyamaxa Indigenous Com- munity Case.37 Reviewing its jurispru- Indigenous peoples tions include restitu- dence, the Court explains that indig- tion, compensation, maintain their rehabilitation, satis- enous peoples maintain their property property rights in faction and guaran- rights in cases where they have been forced to leave or have otherwise lost cases where they tees of non-repeti- possession of their traditional lands, have been forced tion. The UN Special Rapporteur on the including where their lands have been to leave or have right to restitution, expropriated or transferred to third otherwise lost compensation and parties, unless this was done in good faith and consensually.38 Thus, accord- possession of their rehabilitation states ing to the Court, “title is not a pre- that, “Restitution traditional lands. shall be provided requisite that conditions the existence to re-establish, to the extent pos- of the right to restitution of indig- sible, the situation that existed for enous lands.”39 Note that the Court the victim prior to the violations of has elaborated this right of restitution human rights. Restitution requires, as part and parcel of indigenous peo- inter alia, restoration of liberty, citi- ples’ right to property rather than as a zenship or residence, employment or separate remedial measure. property.”34 Similarly, the Court has consistently held that “Reparation of The Court also examined the temporal harm brought about by the violation scope of indigenous peoples’ right to of an international obligation consists restitution in Sawhoyamaxa. It held in full restitution (restitutio integrum), that the right to restitution continues which includes the restoration of the as long as indig- enous peoples … indigenous peoples prior situation …” and compensation or other forms of indemnification for maintain some have a right to material and immaterial damges.35 degree of spirit- restitution of their ual and material connection with traditional territories In the 2005 Yakye Axa Indigenous Community Case, the Court first ad- their traditional and resources, which in dressed indigenous peoples’ right territories.40 principle also applies to to the restitution of their traditional Evidence of the nature reserves. lands. Among others, it determined requisite con- that a violation of the right to prop- nection may be found in “traditional erty had occurred because Paraguay spiritual or ceremonial use or pres- had failed to effectively restore and ence; settlement or sporadic cultiva- secure the rights of the Yakye Axa to tion; seasonal or nomadic hunting, their traditional lands, large parts of fishing or harvesting; use of natural which were held by private persons. resources in accordance with cus- It ordered that the state identify tomary practices; or any other fac- these traditional lands, regularize the tor characteristic of the culture of the indigenous people’s ownership rights, group.”41 The Court further held that if and establish a fund for the expropri- indigenous peoples are prevented by ation of privately held lands to ensure others from maintaining their tradi- their return, free of charge, to the tional relationships with their territo- 214 15, July 2007  …but conservation and human rights What can Conservation canalso ARE work in Human undermine mutual Rights, Human support… anyway? Rights... ries, the right to recovery nonetheless consent” in connection with a nature continues “until such impediments reserve in Botswana.45 Second, with disappear.”42 regard to a national park in Sri Lanka, the Committee called on the state to If a state is unable to return indig- “recognize and protect the rights of enous peoples’ traditional lands and indigenous peoples to own, develop, communal resources for “concrete and control and use their communal lands, justifiable reasons,” compensation or territories and resources.”46 More the provision of alternative lands is generally, CERD has recognized that required.43 In such cases, the Court indigenous peoples have a right to requires that indigenous peoples’ restitution of their traditional territo- consent be obtained, “in accordance ries and resources, which in principle with their own consultation processes, also applies to nature reserves, stat- values, uses and customary law,” with ing that: “Bearing in mind its general regard to choices about the provision recommendation 23 on the rights of compensation or alternative lands.44 of indigenous peoples … where they have been deprived of their lands While neither the IACHR nor the Court and territories traditionally owned, or have had occasion to apply the above such lands and territories have been jurisprudence to a case involving pro- otherwise used without their free and tected areas, this is only a matter of informed consent, the Committee time. One case is presently pending recommends that the State party take before the IACHR that directly re- steps to return those lands and terri- quests restitution of indigenous lands tories.”47 incorporated into protected areas (dis- cussed below). Additionally, although the IACHR and the Court have yet to address indigenous peoples’ rights in the context of protected areas, in ad- dition to applying the norms enumer- ated by the Court, they are also likely to be persuaded by the jurisprudence of the UN Committee on the Elimina- tion of Racial Discrimination (“CERD”). This is all the more likely given that the provisions utilised by CERD (pro- tecting property and participation rights) employ similar language to that found in relevant provisions of the ACHR. Picture 2. The Lower-Marowijne river has CERD has articulated two main inter- been home to indigenous peoples’ for over related rules applicable to establish- 4,000 years. In the 1970s its beaches ment of nature reserves in indigenous attracted city dwellers who obtained land peoples’ territories. First, in 2002, the titles and dispossessed the indigenous Committee held that “no decisions di- communities. Atlantic Coast beaches, frequented by sea turtles, have been de- rectly relating to the rights and inter- clared nature reserves without the indig- ests of members of indigenous peo- enous peoples’ consent. ples be taken without their informed (Courtesy Ellen-Rose Kambel) 15, July 2007 215 Conservation and Human Rights Picture 3. The Wane Creek was the home- Picture 4. While Surinamese law prohib- land of the Lokono peoples of Marowijne, its indigenous peoples from hunting and and is now abandoned. It remains one of fishing inside nature reserves, Suriname the most important hunting and fishing allows large scale bauxite mining within grounds for both the Lokono and Kaliña the Wane Creek Nature Reserve. peoples, but was declared a Nature Re- (Courtesy Ellen-Rose Kambel) serve in 1986. (Courtesy Ellen-Rose Kambel) of the Galibi Nature Reserve with the local population, the villagers were not The Case of the Kaliña and involved in the decision-making process. Lokono indigenous peoples They were confronted with the reserve A case is presently pending before the as a fait accompli, something to which IACHR that, inter alia, explicitly seeks everyone would have objections.”48 the restitution of indigenous lands that have been converted into protected Suriname’s Nature Protection Act makes areas. This case was submitted by the no reference to the existence of indig- Kaliña and Lokono indigenous peoples enous peoples, nor does it recognize or of northeast Suriname and complains protect their ownership rights to their about three nature reserves within their traditional territories. The same is true territory, all created pursuant to Suri- for Surinamese law in general.49 Article name’s 1954 Nature Protection Act: 1 of the Act provides that “For the pro- the Galibi Nature Reserve (1969), the tection and conservation of the natural Wane Kreek Nature Reserve (1986) and resources present in Suriname… the the Wiawia Nature Reserve (1966). The President may designate lands and wa- Wane Kreek Reserve alone covers an ters belonging to the State Domain as a area of 450 square kilometers, some 50 nature reserve.” As indigenous territo- percent of the indigenous peoples’ tradi- ries are legally classified as state lands tional territory. (state domain), this provision permits the state to unilaterally declare any These reserves were established without indigenous territory or part thereof to the Kaliña and Lokono’s participation be a nature reserve by decree. The Act and consent, and they negatively affect also makes no provision for the exercise their rights on an ongoing basis. This of indigenous peoples’ rights within na- is acknowledged in the Galibi Nature ture reserves.50 Rather, under the Act, Reserve Management Plan 1992-96, hunting, fishing or damage to the soil or which states that, “Although the gov- the flora and fauna within the reserves ernment discussed the establishment are strictly prohibited and punishable 216 15, July 2007  …but conservation and human rights What can Conservation canalso ARE work in Human undermine mutual Rights, Human support… anyway? Rights... as criminal offences.51 While this pro- doing so. This is a requirement that will hibition remains in force for indigenous be very difficult for the state to satisfy peoples, large-scale bauxite mining, unless the areas’ protected status itself authorized by the state, is taking place is judged to be a justifiable and con- in the Wane Kreek Reserve. crete reason Applying the IACHR and the Court’s If we assume for the sake of argument jurisprudence to this situation, it is clear that the IACHR or the Court will find that the Kaliña and Lokono peoples’ that the protected status of land con- have protected property rights in and to stitutes a valid excuse from the restitu- their traditional territory irrespective of tion requirement— an unlikely outcome whether these rights are recognized in in my view— application of the Court’s Suriname’s domestic laws. The nature jurisprudence should and extent of these property rights is further require that Indigenous defined in the first instance by the indig- the interests of the ownership per se enous peoples’ customary laws and tra- state in maintaining does not preclude ditional tenure systems. As explained by its proprietary rights the continuation the Court, “traditional ownership grants in the protected the indigenous people the right to de- area be weighed of ecosystem or mand official recognition of their prop- against the rights species protection erty and its consequent registration.”52 and interests of the measures, or even Also, until such time as the Kaliña and Kaliña and Lokono. the continuation of Lokono’s property rights are secured in In undertaking such law and fact, Suriname is further obli- an analysis, the the protected areas gated to “refrain from actions— either of Court stresses that themselves. State agents or third parties acting with indigenous peoples’ State acquiescence or tolerance— that territorial rights are fundamentally would affect the existence, value, use or related to collective rights of survival, enjoyment” of their property rights.53 Ir- and that their control over territory is respective of whether title is recognized a necessary condition for the reproduc- and secured in domestic laws, the state tion of culture, their development and must seek indigenous peoples’ consent life plans, and their ability to preserve prior to undertaking or authorizing ac- their cultural patrimony.54 It should tivities that may affect their traditional also be noted in this context, that the territories. Court also has held that restricting or denying indigenous peoples access to Where the Kaliña and Lokono have been their traditional means of subsistence dispossessed of their traditional lands are prohibited by the ACHR.55 In Moi- without their consent— as is the case wana Village, for instance, the Court with the protected areas— and provided presumed the existence of material that they continue to maintain some harm, inter alia, on the grounds that degree of material or cultural/spiritual the community members’ “ability to connection to these lands (which they practice their customary means of sub- do), they hold an ongoing right of resti- sistence and livelihood has been drasti- tution that is integral to satisfying their cally limited.”56 property rights. These lands therefore must be returned unless the state can Given indigenous peoples’ fundamental demonstrate that there are ‘justifiable and compelling interests in maintaining and concrete’ reasons that prevent it their relationships with their territories, 15, July 2007 217 Conservation and Human Rights the state will be hard pressed to demon- ble violations of the ACHR that originate strate that its interests are paramount in events predating acceptance of its ju- and should prevail. This is especially risdiction insofar as they concern related the case given the size of the protected “effects and actions” that are ongoing areas (more than 50 percent of the and continuous.57 The Court’s approach Kaliña and Lokono’s traditional territory) is also subscribed to by other interna- and the fact that indigenous ownership tional courts and tribunals, including the per se does not preclude the continua- IACHR58 and the International Labour tion of ecosystem or species protection Organization in cases involving indig- measures, or even the continuation of enous peoples,59 which routinely exer- the protected areas themselves. Indeed, cise jurisdiction over alleged breaches of the Kaliña and Lokono would argue that international law that began before the they are more effective at protecting date of a state’s ratification and con- these areas than the state has been or tinue thereafter.60 is likely to be in the future. The continu- ation of protected area status would In the context of the Kaliña and Lokono, nevertheless have to be negotiated and the ongoing and continuing effects and consented to by the Kaliña and Lokono. consequences of the establishment of the nature reserves include denial of Finally, there is a general rule of in- their property rights and denial of ac- ternational law that a state cannot be cess to and security over their subsist- held liable for its acts and omissions ence and other resources. These deni- that predate its accession to an inter- national treaty. Suriname would argue that it acceded to the ACHR in 1987 and therefore that alleged violations of that instrument in relation to the protected areas are inadmissible because all were established prior to that date. However, while upholding this rule, the Court held that it is permissible to examine possi- Pictures 5 and 6. In February 2006, the Kaliña and Lokono indigenous leaders called on the gov- ernment to recognize and respect their human rights during a conference devoted to article 10c of the Biodiversity Convention. (Courtesy Ellen-Rose Kambel) 218 15, July 2007  …but conservation and human rights What can Conservation canalso ARE work in Human undermine mutual Rights, Human support… anyway? Rights... als constitute violations of the ACHR, peoples’ territorial rights and the right which, although originating in events to restitution. This jurisprudence also prior to Suriname’s accession to that demonstrates that respect for these instrument, are presently actionable. rights is not a matter of discretionary This is obviously relevant beyond the conservation policy and targets, but is confines of the specific case in Suriname instead a matter of international legal and would apply to protected areas obligation for the countries of the Amer- throughout the Americas (and beyond, icas and Caribbean. given that the principles are very simi- The 2004 decision Post-Durban lar under United Nations human rights on protected areas jurisprudence of the instruments). The admissibility of ongo- adopted by the CBD Court affirms and ing and continuous effects, coupled with Conference of Par- provides additional the Court’s jurisprudence with regard to ties should also be the right to restitution, therefore raise read constently with detail about the questions about the legitimacy on hu- this jurisprudence nature and extent of man rights grounds of most protected and thus provide indigenous peoples’ areas affecting indigenous peoples in a much needed territorial rights the Americas. human rights per- spective to our and the right to Concluding remarks understanding of restitution. The preceding issues are not new to the international envi- conservation community. Indigenous ronmental law in this area. Indeed, the peoples’ territorial rights and the right two bodies of law should not be viewed to restitution were extensively dis- as mutually exclusive but as interrelated cussed at the 2003 World Parks Con- and complementary.63 This will require gress, and the Durban Accord: Action a substantial reformulation of protected Plan acknowledges that there is “an areas laws and institutions, both to urgent need to re-evaluate the wisdom remedy past violations of indigenous and effectiveness of policies affecting peoples’ rights and to ensure that these indigenous peoples and local communi- rights are protected in the future. ties.”61 The Accord’s ‘key targets’ include full respect for the rights of indigenous It is also important to bear in mind in peoples in relation to all existing and this context that the jurisprudence of future protected areas; and, by 2010, the Court has also been incorporated the establishment and implementation by reference into the Inter-American of “participatory mechanisms for the Development Bank’s (“IADB”) 2006 restitution of indigenous peoples’ tra- Operational Policy 7-65 on Indigenous ditional lands and territories that were Peoples.64 This policy requires special incorporated in protected areas without safeguards for indigenous peoples in their free and informed consent ….”62 projects that directly or indirectly af- However, there appears to be little will fect their traditional lands, territories to fully pursue these targets on the part and resources, and specifies that “one of governments or conservation organi- of those safeguards is respect for the zations. rights recognized in accordance with the applicable legal norms.”65 The defi- What is new is the post-Durban ju- nition of ‘applicable legal norms’ in- risprudence of the Court that affirms cludes ratified international treaties “as and provides additional detail about well as the corresponding international the nature and extent of indigenous jurisprudence of the Inter-American 15, July 2007 219 Conservation and Human Rights Court of Human Rights or similar bod- agreements with indigenous peoples. By ies….”66 This is relevant to the subject supporting this, conservation organiza- at hand because the IADB is now one tions and governments can demonstrate of the primary implementing agencies that they are serious about achieving in the Americas for Global Environment the Durban targets, protecting biological Facility-funded projects. Therefore, in diversity, respecting human rights, and principle, GEF projects implemented engaging in respectful relationships with by the IADB, including protected area indigenous peoples. projects, must respect the rights of Fergus MacKay (fergus@euronet.nl) is the Coordinator indigenous peoples, among others, as of the Legal and Human Rights Programme of the Forest elaborated in the jurisprudence of the Peoples Programme. Court. Notes The post-Durban failure to achieve 1 Amend & Amend, 1992. meaningful progress towards meeting 2 See, Handl 2002, p. 85-110, (explaining the bases in international and comparative law for cultural the key targets on indigenous peoples and subsistence lifestyle damage claims by indig- does little to build confidence and leaves enous peoples.) those so inclined few options other than 3 Velasquez Rodriguez Case, Judgment of July to invoke domestic and international le- 21, 1989. Series C No. 7, at para. 25. See, also, Permanent Court of International Justice, Factory gal remedies to challenge the validity of at Chorzow Case, Merits, Judgment No. 13, 1928, protected areas and their management P.C.I.J., Series A, No 17, p. 29 and; International regimes. The Kaliña and Lokono case Court of Justice, Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion, is one of the first international cases I.C.J. Reports 1949, p. 184. For a detailed treat- and others are sure to follow. While ment of remedies in human rights law, see, Shelton 1999. the details of that case may be peculiar 4 Article 67 of the American Convention on Human to Suriname, the situation is not that Rights provides that “1. The States Parties to the different from many other countries Convention undertake to comply with the judgment around the world. of the Court in any case to which they are parties. 2. That part of a judgment that stipulates compen- satory damages may be executed in the country Article 10(c) of the CBD and its future concerned in accordance with domestic procedure governing the execution of judgments against the elaboration in a decision of the Confer- state.” ence of Parties provide fertile ground to 5 Sawhoyamaxa Indigenous Community v. Paraguay, begin to address some of the deficits in 29 March 2006. Series C No. 146, para. 248; Case conservation practice related to indig- 11.577 (Awas Tingni Indigenous Community— Ni- caragua), Annual report of the IACHR. OEA/Ser.L/ enous peoples’ rights. They also provide V/II.102, Doc.6 rev., (Vol. II), April 16, 1999, 1067, ample opportunity to merge environ- para. 108 and, See, also, Art. XVIII, Proposed mental and human rights norms and to American Declaration on the Rights of Indigenous Peoples, approved by the IACHR in 1997. ensure that the protection of biological 6 Report No. 40/04, Maya Indigenous Communities of diversity and ecosystems not only takes the Toledo District, Case 12.053 (Belize), 12 Octo- into account the rights of indigenous ber 2004, at para. 117. peoples, but is fully consistent with 7 Id. at para 132 (footnote omitted). those rights. This will require address- 8 Report Nº 75/02, Case Nº 11.140, Mary and Carrie Dann (United States), 27 December 2002. OEA/Ser. ing land and resource tenure rights, L/V/II.116, Doc 46, at para 131. recognizing indigenous peoples’ right to 9 Id. at para 130 (footnotes omitted). control and freely determine how best 10 Mayagna (Sumo) Awas Tingni Community Case, to utilize their territory and resources, August 31, 2001, Series C No 79, at para. 151. and developing and implementing a 11 Id. at para. 164. 12 Yakye Axa Indigenous Community v. Paraguay, framework for negotiating mutually 17 June 2005. Series C No. 125; Moiwana Village acceptable and beneficial conservation v. Suriname, Judgment of 15 June 2005, Series C 220 15, July 2007  …but conservation and human rights What can Conservation canalso ARE work in Human undermine mutual Rights, Human support… anyway? Rights... No. 124; Sawhoyamaxa Indigenous Community v. C/CAN/CO/5. See, also,UN Permanent Forum on Paraguay, supra. Indigenous Issues 2005. 13 Sawhoyamaxa Indigenous Community, supra, para. 29 Report on Admissibility and Merits No. 09/06 on the 248. Case of the Twelve Saramaka Clans, 2 March 2006, 14 Id. at para. 128. para. 214; Mary and Carrie Dann Case, supra, para. 131; Report No. 40/04, Maya Indigenous Communi- 15 Moiwana Village v. Suriname, supra note 46, para ties of the Toledo District, Case 12.053 (Belize), 12 128-35. October 2004, para. 142. These issues are dis- 16 Id. at para 209, 233. cussed in greater detail in S.J. Anaya 2005. 17 Id. at para 210. 30 Mary and Carrie Dann Case, supra, at para 131. 18 See, also, Case of the Massacres of Ituango v. Co- 31 Moiwana Village Case, supra, at para 211; and May- lombia, Judgment of 1 July 2006. Series C No. 148; agna (Sumo) Indigenous Community Case, supra, Kankuamo Indigenous Community v. Colombia para 164. (Provisional Measures), Order of the Inter-American 32 See, for instance, Mayagna (Sumo) Indigenous Court of Human Rights of July 5, 2004, at Resolu- Community Case, Provisional Measures of 6 Sept. tion 3 (requiring immediate measures to protect 2002, at Decisions, at para 1. the right to freedom of movement including those to permit displaced indigenous persons to return 33 Van Boven 1993. to their traditional lands); Jiguamiandó and the 34 Id, at p. 57. Curbaradó Communities v. Colombia (Provisional 35 Velasquez Rodriguez Case. Compensatory Dam- Measures), Order of the Inter-American Court of ages. Judgment of July 21, 1989 (Article 63(1) Human Rights of March 6, 2003, at para. 9 (an American Convention on Human Rights. Series C Afro-Colombian tribal community who “are all in a No. 7, at p. 49, para. 26. situation of equal risk of … being forcibly displaced from their territory, a situation that prevents them 36 Yakye Axa Indigenous Community Case, supra, from exploiting the natural resources necessary para. 217. for their subsistence;”); and Jiguamiandó and the 37 Sawhoyamaxa Indigenous Community, supra, para. Curbaradó Communities v. Colombia (Provisional 248. Measures), Order of the Inter-American Court of 38 Id. Human Rights of February 7, 2006, para. 9, 12. 39 Id. at para. 128 19 UN Doc. E/CN.4/1998/53/Add.2. February 11, 40 Id. at para. 131. 1998. 41 Id. 20 Moiwana Village, supra, at 111. 42 Id. at 132. 21 Id. 43 Id. para. 138-9. 22 See, for instance, MacKay, 2005 and MacKay 2006. 44 Yakye Axa Case supra, at para. 151 and; Sawhoy- 23 General Recommendation XXIII (51) concerning amaxa, supra, para. 135. Indigenous Peoples. Adopted at the Committee's 1235th meeting, 18 August 1997. UN Doc. CERD/ 45 Concluding observations of the Committee on the C/51/Misc.13/Rev.4, at para. 4. The International Elimination of Racial Discrimination: Botswana. Convention on the Elimination of All Forms of Racial 23/08/2002. UN Doc. A/57/18,paras.292-314, at Discrimination has 173 state parties as of Decem- 304. ber 2006. 46 Concluding observations of the Committee on the 24 Decision VII/28 Protected Areas, at para. 22. In, Elimination of Racial Discrimination: Sri Lanka. Decisions Adopted by the Conference of Parties to 14/09/2001. UN Doc. A/56/18,paras.321-342, at the Convention on Biological Diversity at its Sev- 335. enth Meeting. UNEP/BDP/COP/7/21, pps. 343-64. 47 Concluding observations of the Committee on the 25 This is acknowledged in the Adis Ababa Principles Elimination of Racial Discrimination: Guatemala, and Guidelines on Sustainable Use of Biodiversity, 15/05/06. UN Doc. CERD/C/GTM/CO/11, 15 May adopted in 2004 by the VIIth Conference of Parties 2006, at para. 17. to the CBD, especially in Principles 1 and 2. 48 Reichart 1992, at 30. 26 Traditional Knowledge and Biological Diversity, 49 See, Report on Admissibility and Merits No. 09/06, UNEP/CBD/TKBD/1/2, 18 October 1997. Twelve Saramaka Clans, supra, at para. 230 and, 27 The results of these studies are summarized in M. Moiwana Village, supra, para. 86(5). Colchester 2006. 50 Nature Protection Act (Natuurbeschermingswet), GB 28 For UN jurisprudence affirming indigenous peo- 1954, 26 (current text SB 1992, 80). ples’ right to give or withhold consent, see, inter 51 Id. Art. 5: “Within a nature reserve it is prohibited: alia, Concluding observations of the Committee on a) to purposely or negligently damage the condi- the Elimination of Racial Discrimination: Ecuador. tion of the soil, the natural beauty, the fauna, the 21/03/2003. UN Doc CERD/C/62/CO/2, at para flora, or to perform acts which harm the value of 16; Concluding Observations of the Committee on the reserve itself;” and, Art. 8: “Violation of this law Economic, Social and Cultural Rights: Colombia. will be punishable with imprisonment not exceeding 30/11/2001. UN Doc E/C.12/Add. 1/74, at para 12; 3 months or with a fine of one thousand guilders and, Concluding Observations of the Human Rights maximum.” Committee: Canada, 20/04/2006. UN Doc CCPR/ 52 Id. at para. 128. 15, July 2007 221 Conservation and Human Rights 53 Moiwana Village Case, supra, at para 211; and May- 64 Inter-American Development Bank 2006. agna (Sumo) Indigenous Community Case, supra, 65 Id, at 8. para 164. 66 Id, at 5. 54 Yakye Axa Case, supra, para. 146. 55 Case of the Masacres de Ituango v. Colombia, 1 July 2006. Series C No. 148; Kankuamo Indigenous References Community v. Colombia (Provisional Measures), Amend, S., & T. Amend (eds.), Espacios sin habitan- Order of the Inter-American Court of Human Rights tes? Parques nacionales de America del Sur. IUCN, of July 5, 2004, at Resolution 3 (requiring im- Gland, 1992. mediate measures to protect the right to freedom Anaya, S.J., “Indigenous Peoples Participatory Rights of movement including those to permit displaced in Relation to Natural Resource Extraction: The More indigenous persons to return to their traditional Fundamental Issue of What Rights Indigenous Peo- lands); Jiguamiandó and the Curbaradó Communi- ples have in Lands and Resources”, Arizona Journal ties v. Colombia (Provisional Measures), Order of of International & Comparative Law, 22 (7), 2005. the Inter-American Court of Human Rights of March 6, 2003, at para. 9 (an Afro-Colombian tribal com- Colchester, M., Forest Peoples, Customary Use and munity who “are all in a situation of equal risk of … State Forests: the case for reform, Draft paper pre- being forcibly displaced from their territory, a situa- sented to the 11th Biennial Congress of the Interna- tion that prevents them from exploiting the natural tional Association for the Study of Common Property resources necessary for their subsistence;”); and (IASCP) Bali, Indonesia, 19-23 June 2006. Avail- Jiguamiandó and the Curbaradó Communities v. able at: http://www.forestpeoples.org/documents/ Colombia (Provisional Measures), Order of the In- conservation/10c_overview_iascp_jun06_eng.pdf ter-American Court of Human Rights of February 7, Handl, G., “Indigenous Peoples’ Subsistence Lifestyle 2006, para. 9, 12. as an Environmental Valuation Problem”, In: M. 56 Moiwana Village Case, supra, at para. 186-7. Bowman and A. Boyle (eds.), Environmental Dam- age in International and Comparative Law. Problems 57 Blake Case, Judgment of 2 July 1996. Series C No. of Definition and Valuation, OUP, Oxford, 2002. 27, at paras. 33 and 40; Genie Lacayo Case, Judg- ment of 27 January 1995. Series C No. 21, para. Inter-American Development Bank, Operational Policy 22-26; Plan de Sánchez Massacre Case, Repara- 7-65 on Indigenous Peoples, adopted 22 February tions, 19 November 2004. Series C No. 105; and, 2006. Available at: http://www.iadb.org/sds/ind/ Moiwana Village Case, supra, at para. 108, 126. site_401_e.htm. 58 Report No. 26/00 (Admissibility), Village of Moiwa- MacKay, F. (ed.), Indigenous Peoples and United Na- na, 7 March 2000, para. 18; and, Report No. 60/99 tions Treaty Bodies: A Compilation of United Nations (Admissibility), Ovelario Tames., 13 April 1999, Treaty Body Jurisprudence 1993-2004, Volume I. para. 26 and 27. Forest Peoples Programme, Moreton in Marsh, 2005. Available at: 59 Report of the Committee set up to examine the rep- resentation alleging non-observance by Mexico of http://www.forestpeoples.org/documents/law_hr/ the Indigenous and Tribal Peoples Convention, (No. un_jurisprudence_comp_sept05_eng.pdf 169), made under article 24 of the ILO Constitution MacKay, F. (ed.), Indigenous Peoples and United Na- by the Radical Trade Union of Metal and Associated tions Treaty Bodies: A Compilation of United Nations Workers. Doc.GB.273/15/6; GB.276/16/3 (1999), Treaty Body Jurisprudence 2005- 2006, Volume II. at para. 36. See also, Report of the Committee set Forest Peoples Programme, Moreton in Marsh, 2006. up to examine the representation alleging non-ob- Available at: servance by Denmark of the Indigenous and Tribal http://www.forestpeoples.org/documents/law_hr/ Peoples Convention, 1989 (No. 169), made under un_jurisprudence_comp_vol2_06_eng.pdf article 24 of the ILO Constitution by the Suliner- mik Inuussutissarsiuteqartut Kattuffiat (SIK). Doc. MacKay, F. & R. Pané, “Protected Areas in Suriname: GB.277/18/3; GB.280/18/5 (2001), para. 29. Fifty Years of Disrespect”, Cultural Survival Quar- terly 28 (No. 1), 2004. 60 Sandra Lovelace v. Canada, Communication No.R.6/24, U.N.Doc.Supp.No.40 (A/36/40) (1981); Reichart, H.A., Galibi Natuurreservaat Beheersplan Phosphates in Morocco case (Italy v. France), PCIJ [Galibi Nature Reserve Management Plan] 1992- Series A/B, No. 74 (1938), at 28. Also see, inter 1996, Paramaribo, 1992. alia, X. v. France, Eur. Ct. H.R., App. no. 18020/91 Shelton, D., Remedies in International Human Rights (1992)(Judgment)(Merits and Just Satisfaction); Law, OUP, Oxford 1999. Bozano v. France, Eur. Ct. H.R., App. no. 09990/82 UN Permanent Forum on Indigenous Issues, Report (1986)(Judgment)(Merits). of the International Workshop on Methodologies 61 Durban Accord: Action Plan, adopted at the Vth regarding Free, Prior and Informed Consent and In- IUCN World Parks Congress, Durban South Africa digenous Peoples. (New York, 17-19 January 2005). (2003), at p. 25. UN Doc. E/C.19/2005/3, 2005. 62 Id, at p. 26. Van Boven, T., Study concerning the right to restitution, 63 See, also Article 22 of the CBD and Advisory Opin- compensation and rehabilitation for victims of gross ion on the Legal Consequences for States of the violations of human rights and fundamental free- Continued Presence of South Africa in Namibia, ICJ doms. Final report submitted by Mr. Theo van Boven, Rep. 16 (1971), at 31. Special Rapporteur. UN Doc. E/CN.4/Sub.2/1993/8, 1993. 222 15, July 2007  …but conservation and human rights What can Conservation canalso ARE work in Human undermine mutual Rights, Human support… anyway? Rights... The role of parliaments in fostering environment- related human rights Hanna Jaireth Abstract. This article argues that parliaments can play a significant role in protecting environ- ment-related human rights, and that NGOs should encourage this, while mindful of the poten- tial limitations of such involvement. While some parliaments already make a contribution to the protection of environment-related human rights (examples are included in this paper), im- provements could be made and more parliaments could become engaged. The paper outlines the benefits for NGOs of focusing action on parliaments rather than on other governance sites. Environment-related human development on indigenous peoples’ rights land to forced resettlement, denial of It is generally accepted that humanity access to customary territories and and global biodiversity are endangered resources, poorly administered town by unsustainable production and con- planning regimes, inappropriate aircraft sumption, and by the degradation of flight paths, the siting of waste disposal the planetary environment. The declin- facilities or the denial of access to in- ing ability of some areas to provide formation or the right to protest.1 a decent quality of life for significant human populations, and the dispropor- Multilateral treaty obligations, such tionate impact that some segments of as those in the international human the human population have on others, rights covenants and conventions, raise human rights issues. But so do and environmental treaties such as other local matters from inappropriate the Convention on Biological Diversity, tend to be vaguely worded concerning the linkages between human rights and the environment. They do not yet explicitly recognise a fundamental and distinct human right to a safe and healthy environment. And yet, many well-established civil, political, economic, social and cultural rights can apply to environmental concerns and sustainable development.2 Environment-related human rights in the international bill of rights include the rights of minorities; the right to equality before the law; to life; to protection of the family and the rights Picture 1. Walk Against Warming outside of the child; to privacy and reputation; of the ACT Legislative Assembly on the to peaceful assembly and association; International Day of Action on Climate to freedom of expression; to take part Change, 4 November 2006. (Courtesy in public life; and to a fair trial. Non- Dave Long and the Conservation Council binding multilateral declarations also for Canberra and South East Region) 15, July 2007 223 Conservation and Human Rights tend to recognise the human rights and environment linkages. The interdependence of human rights and sustainable develop- ment is the subject of ongoing discussion within the UN,3 and was recognised in the Imple- mentation Plan agreed at the Johannesburg World Summit on Sustainable Development.4 The imple- Picture 2. Members of the ACT Legislative As- sembly, Assembly secretariat, and Planning and mentation of the UN Millennium Devel- Land Authority staff at a briefing on planning opment Goals has been linked directly reform legislation. (Courtesy ACT Legislative with international human rights obliga- Assembly Committee Office) tions.5 The 1994 Ksentini report to the UN Human Rights Commission on the human rights provides a foundation for links between human rights and the broader global standard-setting, and environment6 stimulated broad ranging compliance reporting by diverse social international discussions,7 but not yet actors. But it is more important for the development of specific internation- enabling the domestic implementation al instruments. of these recognised rights. Encouraging parliaments at all levels to recognise Several regional agreements recognise and protect these rights can be an ef- a broad human right to a healthy envi- fective means of ensuring their realisa- ronment,8 but some regional initiatives tion. There is also growing international have failed to give ap- interest in protecting the rights of hu- Encouraging propriate recognition man rights defenders, including those parliaments at all to environment-relat- of activists promoting environment-re- lated human rights. levels to recognise ed human rights. For and protect example, among the web-accessible reports The role of parliaments, and environmental to the 2006 Asia Pa- committees in particular rights can be an cific Forum on National Parliaments, which are often represent- effective means Human Rights Institu- ative or partially-representative bodies, tions, only India’s and are arguably as well-placed as the judi- of ensuring their Thailand’s mentioned cial institutions to insist on adherence realisation. environmental rights.9 to internationally-recognised standards protecting basic human dignity. Both More than 100 national constitutions types of governance institutions have protect environmental rights, and par- embarrassments on their record. But liaments can be required to not legis- for parliaments, a temporary capac- late inconsistent with these.10 Domestic ity to deny rights with impunity may judiciaries in various countries have reflect electoral will, authoritarian rule, affirmed the right to a healthy envi- or majority government. These causes ronment in constitutional or statutory are impermanent, and it is up to social litigation. Some jurisdictions also have actors to insist that their environment- statutory bills of rights, which were en- related human rights are recognised acted following consultative exercises.11 and protected. The Commonwealth The recognition of environment-related Parliamentary Association has taken a 224 15, July 2007  …but conservation and human rights What can Conservation canalso ARE work in Human undermine mutual Rights, Human support… anyway? Rights... commendable lead in capacity-building ‘declarations of compatibility’. Several for parliamentarians in the general area jurisdictions also permit the judiciary to of human rights,12 but more can be issue ‘declarations of incompatibility’, done with environment-related human where legislation cannot be interpreted rights. as consistent with human rights but leaves it to the parliament to remedy In the exercise of their legislative pow- the breach. Despite such legislation, ers, most parliaments have enacted a political exigencies, including a com- panoply of legislation concerned with mitment to parliamentary sovereignty environment-related human rights to and a reluctance to regulate extra-ter- resources (land and other property ritorial trans-national corporate activi- rights, native title, co-management, ties, can thwart well-intentioned com- With a broader gender-based rights etc), access to infor- mitments. human rights mation, due proc- The case law that these statutory dec- focus, Parliaments ess, privacy, non- larations of rights have produced do can ensure that discrimination etc, not include radical judicial pronounce- although these do ments on the scope of environmental all legislation it not often explicitly rights, but this could have hardly been enacts is human- acknowledge their expected. Judiciaries in most coun- rights compliant. rights-based geneal- tries are usually reluctant to intervene ogy. Although the where large-scale resource-alloca- terms and implementation of this legis- tion questions are at issue, and where lation may fail to deliver on its promise, governments already regulate the this is likely to result in on-going cam- market.14 There have, however, been paigns. For example, the limited gains a few litigation wins for complainants from native title legislation in Australia in extreme cases. The failure of liti- continue to rankle with social justice gants to succeed in court should not proponents, including Indigenous Aus- be a deterrent to engaging parliaments tralians.13 So does governments’ ten- on environment-related human rights dency to frustrate the implementation issues, however, as the political arena of freedom of information legislation. can be effective for resolving values- But this does not deny the potential based conflicts, provided political com- of parliaments to enact rights-affirm- munities are effectively engaged on the ing legislation, and simply invites more issues. effective campaigning and the mobi- lisation of authoritative (or otherwise There are a range of parliamentary influential) networks to provide advice opportunities for asserting and protect- supporting reform. ing human rights, as parliaments are supposed to hold the executive arm With a broader human rights focus, of government to account. A range of parliaments can ensure that all legisla- opportunities in parliamentary cham- tion it enacts is human-rights compli- bers can be used to debate and scruti- ant. Some jurisdictions have enacted nise executive actions: question time, legislation to ensure that legislative speeches on matters of public impor- drafting and interpretation are hu- tance, adjournment debates, and de- man rights-compliant unless expressly bate in the committee of the whole. In intended not to be so. Pre-legisla- general, however, parliamentary com- tive scrutiny may be attested through mittee work is recognised as the most 15, July 2007 225 Conservation and Human Rights influential scrutiny mechanism. reference. Such broader reference or legislative parliamentary committees There is potential in establishing (where can undertake substantial and detailed they do not exist) and strengthening scrutiny and policy development work. and clarifying the terms of reference of In the Australian Capital Territory, the The political arena parliamentary stand- Standing Committee on Planning and ing committees for the Environment has canvassed the human can be effective for scrutiny of legislation, rights implications of planning pro- resolving values- regulations and sub- posals and reform legislation.17 Other based conflicts, ordinate instruments. committees may focus on indigenous provided political Such committees can influence the develop- peoples, on mobile or settled commu- nities, or on the legislative and policy communities ment of human rights frameworks for the sustainable devel- are effectively cultures in govern- opment for these communities. As they engaged. ance institutions and tend to operate in a rather independent 15 can develop expertise way, their attention to human rights is- in specialised areas, such as environ- sues tends not to draw on the expertise ment-related human rights. These of the scrutiny committees. It is thus committees review bills and advise the incumbent on stakeholders, MPs and parliament if they unduly trespass on committee staff to develop expertise rights and freedoms, make them un- on human rights issues and apply it to duly dependent on insufficiently defined general committee work. administrative powers or non-review- able decisions, inappropriately delegate There have been several inquiries in re- legislative powers or insufficiently cent years that demonstrate how par- subject the exercise of legislative power liamentary committee work can foster to parliamentary scrutiny. For example, environment-related human rights. The the UK Parliament’s Joint Committee 2005 Report of the Canadian House of on Human Rights reviews legislation. Commons Stand- Typically such committees refer to do- ing Committee on Through their mestic law, international human rights Foreign Affairs and scrutiny of budget law and the law and jurisprudence of International Trade, estimates and other jurisdictions as sources for the for example, made appropriation standards they apply for their scrutiny far-reaching recom- work. Ministers usually respond for- mendations on the legislation, mally to issues raised by the commit- need for Canadian parliaments can tee and, if the concerns are accepted, companies operat- insist on pro-human may amend the offending legislation or ing in developing rights budgets. develop remedial administrative proce- countries to be dures. The correspondence is usually on more accountable for environmental the public record, but issues identified and human rights violations. It called tend to be muffled in technical or ob- for stronger incentives and regulatory lique language, which may be ignored, measures to encourage corporate social and direct recommendations are rarely responsibility (CSR) and better compli- made.16 ance with international human rights standards. It also called for an inves- Many parliaments have standing or tigation into the impact of TVI Pacific select committees with ‘environment’ Canatuan mining project in Mindanao and/or ‘sustainability’ in their terms of (Philippines) on the indigenous rights 226 15, July 2007  …but conservation and human rights What can Conservation canalso ARE work in Human undermine mutual Rights, Human support… anyway? Rights... and human rights of people in the area, have focussed on environment-related and on their environment.18 The gov- human rights despite the relatively ernment’s non-regulatory response dis- strong human rights institutions in Eu- appointed some civil society stakehold- rope.21 Some other parliamentary com- ers, including Amnesty International, mittees have not explicitly recognised but the report provides a lightning rod the human rights aspects inherent in for further lobbying. The government their recommendations. In Zambia for response proposed a series of national example, the Committee on Local Gov- roundtables to discuss the report’s ernance, Housing and Chiefs’ Affairs recommendations and co-operative recommended in 2006 the develop- international work to clarify the CSR ment of mechanisms for sharing rev- framework; expressed support for the enues from game licence fees between UN Secretary-General’s special repre- the Zambia Wildlife Authority, district sentative on human rights and tran- councils and local communities, without snational corporations; and expressed referring to the human rights aspects a commitment to incorporating human of this issue (such as rights to culture, rights best practice into projects’ due equality before the law and right to diligence processes, improving advi- property).22 sory services; and improving corporate transparency.19 In Australia, a similarly Some parliamentary committees moni- groundbreaking report was the 2006 tor or scrutinise the findings other report of the Parliamentary Joint Com- oversight bodies such as human rights mittee on Corporations and Financial commissioners, ombudsmen, audi- Services on corporate responsibility.20 tor-generals or commissioners for the environment. Public Accounts Commit- Despite the potential for work in this tees tend to scrutinise Auditor-Generals area, some parliamentary committees reports. Some parliamentary officers have not given a high priority to en- focus are more specifically on environ- vironment-related human rights. The mental issues. New Zealand, for exam- European Parliament’s Environment ple, has a Parliamentary Commissioner Committee, for example, seems not to for the Environment (PCE) appointed for a 5-year term by the Governor- General on the recommendation of the NZ Parliament. The Environment Act 1986 establishes the office of the PCE and details the Commissioner’s powers Pictures 3 and 4. Citizen action can be an important part of the campaign for parliaments to better protect environment-related human rights, such as this ‘Walk Against Warming’ (see also Picture 1). (Courtesy Dave Long and the Conservation Council for Canberra and South East Region) 15, July 2007 227 Conservation and Human Rights and functions. Through their scrutiny stability, and parliaments that insist on of budget estimates and appropriation compliance with human rights stand- legislation, parliaments can also insist ards are likely to have greater legiti- on pro-human rights budgets. macy and authority amongst the less powerful in society. Advantages and benefits There are several advantages in seek- The powers that are available to par- ing parliamentary engagement on liamentary committees are also sub- environment-related human rights in a stantial, and can be exercised without political rather than purely legal sense. significant financial expense. Parlia- Committee recommendations, if ac- mentary committees’ ability to call for cepted by government, can lead directly persons and papers can be an effective to reform. If not agreed, or if additional means for ensuring that ministers and and dissenting comments are included others are held accountable and re- (usually on party lines), the differences sponsible to the parliament and stake- between parties on issues becomes holders. Usually, witnesses are willing transparent and can provide guidance to provide submissions and evidence for electors or political campaigns. to parliamentary committees and to MPs can become A distinct advantage of a parliamentary voluntarily appear effective proponents as witnesses. On the focus is that all members of parliament other hand, various of environmental (MPs) and witnesses appearing before causes related to a parliamentary body, and all work powers, privileges done in the course of parliamentary and immunities can human rights. proceedings, are protected by the privi- be invoked to encour- leges and immunities of parliament. age reluctant witnesses to cooperate. This means that no legal action, in- Conduct that amounts, or is intended cluding actions for defamation, can be or likely to amount, to an improper instituted as a result of anything said interference with the free exercise by a or done during those proceedings.23 house or committee of its authority or This is a powerful advantage in liberal functions, or with the free performance democracies. Some jurisdictions have by a member of the member’s duties conferred an additional protection for as a member, may be an actionable activists outside the parliamentary con- contempt of parliament. text, by restricting the ability of cor- porations to pursue strategic litigation MPs can become effective proponents to silence critics (SLAPP litigation)24, of environmental causes related to hu- and/or to sue for defamation. Of course man rights for instance by canvassing environmental and human rights activ- issues in correspondence, speeches or ists are still detained in many jurisdic- debates inside or outside parliament. tions (with notorious examples recently This can contribute to the education in Turkmenistan, China, Indonesia and of the broader public about the issues. Russia), but this does not reduce the Parliamentary engagement is also likely protective mantle of parliaments in ju- to increase media interest. But the risdictions that better recognise demo- effectiveness of an MP or committee cratic freedoms. Permitting dissent depend on their level of interest and and attempting to resolve it peacefully engagement; their expertise or capac- and politically is a far better govern- ity; the political make up of the parlia- ance approach for long-term peace and ment and the committee; the strength 228 15, July 2007  …but conservation and human rights What can Conservation canalso ARE work in Human undermine mutual Rights, Human support… anyway? Rights... of stakeholder activism; competing Sadly these individuals tend to be rare, priorities; governance standards; and or suppressed by party or executive practices in the polity and media reac- discipline. tions. There may also be more practical con- Disadvantages and risks straints. Scrutiny of bills committees, It needs to be acknowledged that there for example, are often limited in their are many constraints facing campaigns effectiveness by the absence of a clear which focus on parliaments for better definition of the hu- rights protection. Often by the time man rights standards The abstract nature legislation has reached parliament against which they of environment- assess legislation, related human Parliamentary ittiallyhas been substan- negotiated and and by the tradi- tion of only obliquely rights can be a scrutiny mecha- endorsed by a cabinet identifying issues limiting factor. nisms may be and/or political cau- for parliament’s politically cus. In such cases, the consideration, rather than suggesting likelihood of significant constrained. amendments being recommendations for amendment(s). agreed is correspond- The legalistic representation of human ingly slim. Early engagement during rights issues and the lack of a broad- policy-development stage, focussing on based human rights culture generating bureaucracies as well as well as elected political resonance (with some excep- representatives, may be more effec- tions such as rights to trial and due tive. process), may weaken lobbying efforts. The abstract nature of environment-re- Parliamentary scrutiny mechanisms lated human rights can also be a limit- may be politically constrained. The con- ing factor, as are the disciplinary silos stitution of the parliament or strength within which committees and ministries of a political movement can lead to or operate, and the poor definition of the inhibit reforms. Where there is a mi- terms of reference of parliamentary nority government or an upper-house scrutiny committees. not controlled by the majority party or parties, parliamentary leverage is Conclusions stronger. On the other hand, if there is While there are many factors inhibiting a majority government or weak oppo- the recognition and realisation of envi- sition and cross-bench, parliamentary ronment-related human rights, these committees seem more vulnerable to are not insurmountable. There are being captured by the executive, or advantages in better focussing parlia- to having recommendations ignored.25 ments on human rights issues, includ- Weak and partisan committees may ing environment-related human rights. reflect a lack of MPs’ experience and These have been noted briefly, and poor understanding of the democratic have several constraints. Some realistic benefits of strong and effective par- targets for progress in this area are: liamentary (as distinct from partisan) X the enactment of domestic laws checks and balances. If influential and (where these are not in place), re- expert human rights champions have quiring all legislation to conform been elected to parliament, such advo- with international standards on hu- cates can present arguments in princi- man rights, including environmental ple and precedents justifying reforms. rights; 15, July 2007 229 Conservation and Human Rights X a better engagement and develop- Notes ment of expertise on environment- 1 See for example: Police v Beggs [1999] 3 NZLR 615; Dennis v Ministry of Defence [2003] Env related human rights by MPs, politi- LR 34; Baggs v UK [1981] 52 DR 29; Arrondelle cal advisers, committee staff and v UK [1977] 19 DR 186 and DR 26; Andrews v other stakeholders; Reading Borough Council [2005] 256 (QB)8; Lopez Ostra v Spain (1994) 20 EHRR 277, Guerra v Italy X the establishment of parliamentary (1998) 26 EHRR 357; Oneryildiz v Turkey [2002] commissioners for the environment ECHR 491; amongst other determinations, many of which were unsuccessful for the complainant. or the express inclusion of environ- Litigation in India on the right to clean air ment-related human rights in the demonstrates the potential for protracted conflict mandate of human rights commis- over environmental rights and the potential for significant reforms to be achieved: see Greenspan sioners; Bell et.al.2004. X the creation of parliamentary com- 2 See Picolotti & Taillant, 2003. mittees with a specialist human 3 See United Nations Permanent Forum on rights focus; Indigenous Issues, 2007 http://www.un.org/ esa/socdev/unpfii/ and work in the earlier United X the clarification of the terms of refer- Nations Economic and Social Council subsidiary ence of legislative scrutiny commit- bodies, 2004 tees to better recognise environ- 4 United Nations Johannesburg Plan of Implementation 2002, paras 5, 54, 62, 102, 138, ment-related human rights; 169 X the formation of working groups on 5 ‘Human rights and the Millennium Development human rights and the environment Goals’, UN Doc A/res/55/2, 8 September 2000, http://www.unhchr.ch/development/mdg.html, ac- in associations and organisations cessed 3 February 2007 such as the Commonwealth Parlia- 6 Ksentini, 1994. See also‘The 1994 Draft mentary Association, the Inter-Par- Declaration of Principles on Human Rights and the Environment’, Sierra Club Legal Defense Fund liamentary Union,26 regional bodies, Pamphlet and regional governance institutions; 7 Meeting of Experts on Human Rights and the X the strengthening of linkages be- Environment, Final Text, 2002. See also UN Doc. E/CN.4/2004/87. tween parliaments, the non-govern- 8 Such as the 1988 Additional Protocol to the ment sector, and UN institutional American Convention on Human Rights in the activities, and particularly those Area of Economic, Social and Cultural Rights, the concerned with environment-related ‘Protocol of San Salvador’. See also OAS General Assembly, San José de Costa Rica, June 5, 2001 human rights, such as inquiries and and Shelton, 2002. reporting by Special Rapporteurs, UN 9 Asia Pacific Forum of National Human Rights Insti- scrutiny of country reports, commu- tutions, 2006. nications to treaty bodies etc; 10 The South African Constitution provides that everyone has the right to an environment that X parliamentary scrutiny of National is not harmful to their health or well-being, Action Plans on Human Rights which and to have the environment protected for the benefit of present and future generations through implement the Vienna Declaration reasonable legislative and other measures that (i) and Program of Action with a view to prevent pollution and ecological degradation; (ii) ensuring that they address environ- promote conservation and (iii) secure ecologically sustainable development and use of natural ment-related human rights. resources while promoting justifiable economic and social development. See Hayward, 2005. Hanna Jaireth (mhsjaireth@netspeed.com.au) is Secretary 11 Bill of Rights Act 1990 (NZ), Human Rights Act to the ACT Legislative Assembly’s Standing Committee on 1998 (UK), Charter of Rights and Freedoms (Can- Planning and Environment, but the views expressed herein ada), Charter of Human Rights and Responsibilities are personal. Hanna has a longstanding interest in the law Act 2006 (Vic), Human Rights Act 2004 (ACT). On and politics of sustainable development. She co-edited consultation outcomes see for example: ACT Con- with Dermot Smyth, Innovative Governance: Indigenous sultative Committee Bill of Rights (2003), Report: Peoples, Local Communities and Protected Areas (2003), is Towards and ACT Human Rights Act, Canberra, actively involved with community environmental organisa- http://www.jcs.act.gov.au/prd/rights/documents/ tions and is a member of CEESP/TGER and TILCEPA and of report/BORreport.pdf , accessed 3 February 2007. other IUCN Commissions. 12 Commonwealth Human Rights Initiative and Com- 230 15, July 2007  …but conservation and human rights What can Conservation canalso ARE work in Human undermine mutual Rights, Human support… anyway? Rights... monwealth Parliamentary Association's Human Committee on the Environment, Public Health Rights Module for Parliamentarians (internet mod- and Consumer Policy 1999–2004 Parliament, ule). DT\537810EN.doc PE 346.894, 2004, http://www. 13 Laurie, 2007; Dick, 2007. europarl.europa.eu/comparl/envi/pdf/activity_ report/activity_report_5th_leg.pdf, accessed 30 14 Lee, 2005. January 2007. 15 Shearan, 2006. Evans, C. and S. Evans, The effectiveness of Austra- 16 Murray, 2006. lian Parliaments in the protection of rights, paper 17 The Committee’s reports are accessible at http:// delivered at the Legislatures and the Protection of www.parliament.act.gov.au/committees/index1. Human Rights Conference, Melbourne Law School, asp?committee=55. See in particularReport Nos 20–22 June 2006. 20, 21, 22 Greenspan Bell, R., K. Mathur, U. Narain, and D. 18 Canada, House of Commons, 2005. Simpson, ‘Clearing the Air: How Delhi Broke the Logjam on Air Quality Reforms’, Environment 19 Government of Canada, 2005. 46(3):22–39, 2004. http://www.rff.org/rff/News/ 20 Australia, Parliamentary Joint Committee on Features/loader.cfm?url=/commonspot/security/ Corporations and Financial Services, 2006. getfile.cfm&PageID=13200 21 See for example: European Parliament, 2004. Government of Canada, Government response to 22 Republic of Zambia, 2006, pp17 and 22. the14th Report of the Standing Committee on 23 In jurisdictions with a Westminster heritage, Foreign Affairs and International Trade: Mining these privileges and immunities derive from in Developing Countries— Corporate Social Re- the UK Bill of Rights 1689 but may have more sponsibility, 2005, http://cmte.parl.gc.ca/cmte/ recent embodiment in constitutional or statutory CommitteePublication.aspx?COM=8979&Lang=1&So provisions or parliamentary standing orders. urceId=131218, accessed 16 March 2007. 24 Strategic Lawsuits against Public Participation. Hayward, T., Constitutional Environmental Rights, Oxford University Press, 2005. 25 Evans and Evans, 2006. Ksentini, F.Z. Special Rapporteur, Review of Further 26 The resolution adopted by the 114th Assembly of Developments in Fields with which the Sub- the Inter-Parliamentary Union (Nairobi, 12 May Commission has been Concerned: Human Rights 2006), ‘The role of parliaments in environmental and the Environment: Final Report prepared by Mrs management and in combating global degrada- Fatma Zohra Ksentini, Special Rapporteur: 6 July tion of the environment,’ did not refer expressly 1994, UN Doc. E/CN.4/Sub.2/1994/9 and UN Doc. to environment-related human rights but these E/CN.4/Sub.2/1994/Corr.1, 1994. would be addressed implicitly: see http://www.ipu. org/conf-e/114/114-2.htm Laurie, V., ‘Land-use contracts fail to deliver’, and ‘Overlooked by the boom’, The Australian, 30 January 2007. References Lee, R.G. ‘Resources, rights and environmental regu- Asia Pacific Forum of National Human Rights Insti- lation’, Journal of Law and Society 32(1):111–30, tutions, 11th Annual Meeting, 2006, http://www. 2005. asiapacificforum.net/annual_meetings/eleventh/ Murray, Senator Andrew Parliamentary Committees concluding.htm, accessed 30 January 2007. and the Protection of Rights: A Partial Examination, Australia, Parliamentary Joint Committee on Paper presented to the international conference on Corporations and Financial Services, Corporate Legislatures and the Protection of Human Rights, Responsibility: Managing Risk and Creating Melbourne, 20–21 July 2006, p7. Value, Canberra, 2006, http://www.aph.gov. Organization of American States (OAS), General au/senate/committee/corporations_ctte/corporate_ Assembly, Resolution 1819 on human rights and the responsibility/report/index.htm, accessed 3 January environment approved in the Third Plenary Session 2007. of the OAS General Assembly, June 5, San Jose Canada, House of Commons, 38th Parliament, 1st Ses- de Costa Rica: AG/RES. 1819 (XXXI-O/01), 2001, sion, Standing Committee on Foreign Affairs and http://www.cidh.org/annualrep/2001eng/chap.2a. Trade, 14th Report: Mining in Developing Countries— htm, accessed 16 March 2007. Corporate Social Responsibility, 2005, http://cmte. Picolotti, R. & J.D. Taillant (eds.), Linking Human parl.gc.ca/cmte/CommitteePublication.aspx?COM Rights and the Environment, University of Arizona =8979&Lang=1&SourceId=178650, accessed 16 Press, Tucson, 2003. March 2007. Republic of Zambia, Report of the Committee on Local Commonwealth Human Rights Initiative and Com- Governance, Housing and Chiefs’ Affairs for the Fifth monwealth Parliamentary Association's Human Session of the Ninth National Assembly, appointed Rights Module for Parliamentarians, http://www. on 19th January 2006, http://www.parliament.gov. humanrightsinitiative.org/publications/hradvocacy/ zm/index.php?option=com_docman&task=cat_ cpa_chri_human_rights_module.pdf, accessed 30 view&gid=40&Itemid=112, accessed 16 March January 2007 2007. Dick, T., ‘Land rights in limbo’, The Sydney Morning Shearan, A. MP, Chair NSW Legislation Review Com- Herald, 26–28 January, 2007, p29. mittee, Speech to the Legislatures and the Protec- European Parliament, Activity Report of the tion of Human Rights Conference, 20–22 July 2006. 15, July 2007 231 Conservation and Human Rights Shelton, D., Human Rights and Environment Issues sustainable development: Report of the Secretary- in Multilateral Treaties adopted between 1991 General, UN Doc. E/CN.4/2004/87, http:// and 2001, Background Paper No. 1, Joint UNEP- daccessdds.un.org/doc/UNDOC/GEN/G04/107/30/ OHCHR Expert Seminar on Human Rights and the PDF/G0410730.pdf?OpenElement, accessed 16 Environment, 14–16 January 2002, http://www. March 2007. unhchr.ch/environment/bp1.html, accessed 3 United Nations, Johannesburg Plan of Implementation, February 2007. World Summit on Sustainable Development, http:// United Nations Economic and Social Council, www.un.org/esa/sustdev/documents/WSSD_POI_ Promotion and Protection of Human Rights, Science PD/English/POIToc.htm, accessed 17 March 2007. and the Environment: Human rights and the United Nations, Office of the High Commissioner for environment as part of sustainable development, Human Rights, Human Rights and the Environment, Report of the Secretary-General, UN Doc. E/ Conclusions: Final Text, Meeting of Experts on CN.4/2004/87, 2004. Human Rights and the Environment 14-15 January United Nations Permanent Forum on Indigenous 2002, 16 January 2002, http://www.ohchr.org/ Issues, Sixth Session: Special theme: Territories, english/issues/environment/environ/conclusions. Lands and Natural Resources 14–25 May, 2007, htmhttp://www.unhchr.ch/environment/conclusions. http://www.un.org/esa/socdev/unpfii/en/session_ html, accessed 16 March 2007. sixth.html, accessed 17 March 2007. United Nations, United Nations Millennium Declaration, United Nations, Commission on Human Rights, UN Doc A/res/55/2, 8 September 2000. ‘Human rights and the environment as part of Conservation, protected areas and humanitarian practice Nicholas Winer, David Turton and Dan Brockington Abstract. In recent years there has been increasing concern about the impacts of conservation on local and indigenous communities. This concern has come from both within and beyond the conservation community. In particular the impacts of protected areas have come under close scrutiny— a long list of case studies highlight evictions, forced resettlement, reduced or lost access to important resources and sources of income. Although protected area planning is the responsibility of government ministries, some of the big international conservation NGOs have been the target of criticism concerning these impacts. Yet, despite the existence of relevant case studies, and some “sensationalist” articles in the popular press, the evidence about the impacts of protected areas on human rights is often weak and anecdotal. The establishment of protected areas remains one of the principal conservation tools for the maintenance of biodiversity. As the demand for greater biodiversity protection competes with growing demands for access to agricultural and grazing lands, many conservation organisations are increasingly linked to efforts to better understand the impact of conservation on local people and the potential role of such people in promoting and benefiting from conservation. This has opened up a larger debate about the priorities to be adopted by conservation organisations, both large and small. This paper argues that it is high time to develop a set of agreed humanitarian principles, against which conservation organisations could hold themselves publicly accountable, as a way to maintain the public’s 232 15, July 2007  …but conservation and human rights What can Conservation canalso ARE work in Human undermine mutual Rights, Human support… anyway? Rights... confidence and ensure that impoverishment in the name of nature truly becomes a thing of the past. Such a set of principles would provide a means by which organisations could be publicly differentiated from governmental and non-governmental bodies whose actions continue to jeopardise the livelihoods of communities in and around areas of conservation importance. “Perhaps one day in the future the new park could be fenced in. Then the animals would have to remain inside it. They would be protected from the settlers near the park and prevented from dying from hunger and thirst when all the timber around their water holes had been felled and their pastures are over-grazed by native cattle.”1 “Local support is not necessarily vital for the survival of protected areas. Conservation can be imposed despite local opposition and protected areas can flourish notwithstanding resistance to them. Rural poverty and injustice do not undermine the foundations of conservation. Indeed they can underpin them.”2 “Conservation will either contribute to solving the problems of the rural poor who live day to day with wild animals, or those animals will disappear.”3 could guarantee the integrity of their conservation status. This status was originally conceived as having more to do with emblematic or charismatic scenery than any currently understood concept of biodiversity conservation. The establishment of protected areas remains one of the principal conserva- tion tools for the maintenance of bio- diversity. The 2004 World Database on Protected Areas includes over 105,000 Picture 1. A tourist photographing Mursi sites covering 19.7 million km2. The at a settlement in the Mago National Park. The Mursi have deliberately 'exoticised' expansion of this area remains central themselves for the Camera. to the work of the Convention on Bio- (Courtesy Ben Dome, 2004) logical Diversity which believes that. “Experience shows that a well designed T he concept of the National Park as a fully protected area has its origins in and managed system of protected ar- eas can form the pinnacle of a nation's Western European and American con- efforts to protect biological diversity….. cerns for wilderness and its preserva- Such a system complements other tion. The first Parks were established in measures taken to conserve biological the USA in the 19th century and shortly diversity outside protected areas.”4 afterwards the model found its way to Africa and the rest of the world. The In other words, the parties to the basic assumption was that ‘wilderness’ Convention believe that the protected landscapes were free of human inter- area model has stood the test of time. vention and that only their separation The model itself has been expanded from potential future encroachment and modified by IUCN’s categorisation 15, July 2007 233 Conservation and Human Rights populations compete for diminishing re- sources; in some cases growing wildlife populations are pushing ever outward generating increased conflict over those same resources and in turn challeng- ing established land use priorities. The increasing impoverishment of many marginal rural and agro-pastoral com- munities in the face of declining fertility, Many of the over-population and landscapes deemed worsening terms of trade for their prod- most precious for ucts means that their biodiversity their socio-economic values would not predicament can no have reached this longer be ignored by conservation man- state without some agers. There must degree of human be few today who intervention. feel that it is morally sound, economically viable, adminis- tratively feasible or environmentally sustainable to pursue the sort of bleak, Picture 2. Small plot irrigation from the Parapeti doomsday vision summed up in the River, which runs along the edge of the Kaa-Iya above quotation by the Serengeti’s del Gran Chaco Park in Bolivia. This is the first park in the Americas created at the request of founding father Bernhard Grzimek in an indigenous people. (Courtesy Hal Noss) 1960. of protected areas to reflect the di- There are today hardly any untouched versity of both form and policy now in landscapes. Many of those deemed existence. These range from category most precious for their biodiversity val- I (highest protection) to VI (sustain- ues have hosted indigenous peoples for able resource use), comprising a range millennia and would not have reached of land use options from forbidding all their present state without some de- forms of residence and resource use, gree of human intervention. This un- to human activity embraced as integral derstanding, coupled with the sheer part of the landscape.5 weight of socio-economic pressures and the dubious environmental sustain- The expansion and reform of the cat- ability of cutting off parks from their egory system has substantially con- surrounding areas, has led to a review tributed to the expansion of the global of the role of the National Park in the protected area estate.6 But the weaker wider landscape. Two important recog- forms of protection are treated scepti- nitions have emerged to date at least cally by significant sections of the con- in part of the conservation community: servation community who insist that the only valuable protected areas are 1. National Parks, as ecological islands the more strictly protected category in seas of land degradation, are not I-IV models.7 New pressures are being functionally sustainable. This recog- put on landscapes as growing human nises the influence of the surround- 234 15, July 2007  …but conservation and human rights What can Conservation canalso ARE work in Human undermine mutual Rights, Human support… anyway? Rights... ing areas on the ecological integrity namely, the rural poor. This was never of parks and the important role that the intention of the framers of the migratory corridors play in maintain- Convention on Biological Diversity and ing bio-diverse populations. it contradicts the Convention’s targets 2. Those living in and around protected for 2010 which aim “to significantly areas need to realise some ben- reduce the current rate of biodiversity efits from their proximity in order to loss at the global, regional, national compensate them for the associated and sub-national levels and contribute costs. This implicitly recognises that to poverty reduction and the pursuit of most protected areas are unlikely to sustainable development, thereby sup- achieve their conservation objectives porting the objectives of the Strategic without the cooperation of those who Plan of the Convention, the World Sum- live within and around them. mit on Sustainable Development Plan of Implementation and the Millennium The establishment of a protected area Development Goals.”8 results in the immediate reduction of future land use options. So while The problem is that many of today’s the benefits of a protected area sys- protected areas function as barriers to tem may be perceived at the national, expanding human economic activity. Revenues generated regional and international level, the costs are disproportionately borne by A great number of by protected areas those who live closest to the protected programmes and have rarely been seen areas and whose capacity to pay for projects have been by local recipients reductions in land use opportunities are designed which attempt to ad- as a sufficient often lower than the national average— dress the economic compensation or an implications of this adequate incentive to bleak fact. These support conservation activities are of- ten piecemeal responses that involve local peoples in developing products for tourism markets and generating employment within the local tourism industry. But tourism is a fickle global industry that is often culturally insensi- tive.9 In addition, little tourism revenue goes directly to those most affected by the presence of a protected area. As a result, revenues generated by protect- ed areas have rarely, if ever, been seen by their local recipients either as a suf- ficient compensation for loss of access to natural resources or as an adequate incentive to support conservation. Local people are rarely considered responsi- ble and responsive enough to become Picture 3. Women thatching a grain store at a managers and custodians of lands and Mursi settlement in the Mago National Park. resources they have lived with for cen- (Courtesy Ben Dome, 2004) turies. It is even rarer that local peo- 15, July 2007 235 Conservation and Human Rights ple actively support and lobby for the socio-economic interests. The advent creation of national parks. In all of the of the MDGs [Millennium Development Americas there are few national parks Goals] and the World Bank/IMF’s PRSPs established as a result of lobbying by [Poverty Reduction Strategy Papers] an indigenous people, the first such has made it much more important for one was only established in 1995.10 conservation initiatives to demonstrate their linkages to poverty reduction, and thereby to enter the mainstream of national development planning. On the one hand, these major multi-lateral initiatives offer opportunities to link protected areas to larger land use de- velopment processes and ensure a flow of funds and other resources capable of supporting the integration of conser- vation into the national development agenda. On the other hand, a failure to demonstrate linkages between conser- vation and poverty reduction risks leav- ing conservation programmes further Picture 4. A tourist gets his shot of a 'wild' isolated from national planning proc- Mursi in the Mago National Park, for which esses and less able to attract funds. he will pay about 20 US cents. (Photo courtesy Ben Dome, 2004) This may not be of critical importance to well funded conservation organisa- There is clearly not just a practical dif- tions or to purely research based activ- ference, but also an ideological one in ities, but it does mean the conception of the role and value of that clear expectations Conservation has a protected area. This difference is not just another expression of the north- now exist that con- not, by and large, servation can and will been seen by either south divide but also of the urban-ru- play a role, not just in conserving biodiversi- local residents or ral divide. How a citizen of the USA, Europe or of a major conurbation in a ty but also in reducing national and developing country values conserva- poverty. This in turn regional planners tion is inherently different from that of means that the way as an integral com- a marginal land user in a developing conservation organisa- country whose land use and therefore tions interact with the ponent of develop- livelihood options are placed under in- ment planning. traditional custodians creasing threat from a variety of sourc- of land in and around es of which conservation is perceived protected areas falls under a brighter as only one. spot light. Conservation has not, by and large, Many recent conservation initiatives been seen by either local residents or make some effort to engage with local national and regional planners as an groups in order to provide them with integral component of development alternative sources of income, in recog- planning. Conservation organisations nition of the fact that their user rights have consequently found themselves have been adversely affected. However working in ‘islands’ of biodiversity. successful or otherwise these efforts feeling besieged by the surrounding 236 15, July 2007  …but conservation and human rights What can Conservation canalso ARE work in Human undermine mutual Rights, Human support… anyway? Rights... may be, the commitment to provide approaches to biodiversity— those economic and cultural incentives to that recognise the moral and practi- support conservation promotes both cal importance of including community conservation and development. In so actors as active There is a growing doing it moves towards a reconciliation participants in the of the previously conflicting philosophi- management of sense of frustration cal underpinnings of development and conservation areas. among certain conservation. The uncoupling of such Notwithstanding sectors of the a linkage would return conservation to the broad scientific authoritarian preservationist manage- understanding that conservation ment regimes unwilling to recognise most protected community with the local cultural, economic and envi- areas are too small ‘inclusive’ approaches ronmental costs of conservation. to function as ef- to biodiversity. fective ecosystems The problem for biodiversity conservation, there is a “There is often widespread conflict be- growing belief that a return to stricter tween the interests of rural peoples and definitions of conservation may be both the interests of biodiversity conserva- scientifically and morally justifiable. tion within protected areas. Time and According to this ‘narrative’ biodiver- time again the premise of many nature sity conservation is, on the one hand, reserves across the developing world incompatible with the presence of hu- has been the same: the forcible up- man beings and, on the other, of such rooting of resident and mobile popula- importance as to constitute a moral tions, often coerced violently to relocate obligation. This view holds most sway somewhere else……The new enthusiasm amongst a number of conservation for private investment in, and private scientists who also understand that the management of, nature reserves has current protected area network is insuf- the potential to be a new and potent ficiently extensive to satisfy rigorous force for social disruption in rural ar- scientific definitions of ecosystem, or eas.”11 biodiversity, conservation. They there- fore propose an expansion of the area “Involuntary resettlement may cause under protection, which should be free severe long-term hardship, impoverish- of human interaction and managed by ment, and environmental damage un- a central authority. A range of justifica- less appropriate measures are carefully tions is given for this position:13 planned and carried out.......Displaced X Biodiversity loss is so rapid and persons should be assisted in their ef- extensive that there exists an over- forts to improve their livelihoods and whelming moral obligation to act to standards of living or at least to restore preserve it. them, in real terms, to pre-displace- X Community based conservation prin- ment levels or to levels prevailing prior ciples and practises are not rooted in to the beginning of project implementa- science and draw on romantic, un- tion, whichever is higher.”12 verifiable images of traditional rela- tionships between peoples and the Despite both the rhetoric and targets of environments they live in. the Convention on Biological Diversity X The weakness of common property there is a growing sense of frustra- institutions undermines the potential tion among certain sectors of the con- sustainability of community based servation community with ‘inclusive’ approaches. 15, July 2007 237 Conservation and Human Rights X Wider community based development actions rarely result in successful species conservation. X The community development com- ponents of conservation draw scarce financial resources away from protec- tion and into development. X Protected areas do work and the scale of the threats to biodiversity justify a significant strengthening of their scope and implementation up to and including authoritarian enforce- ment measures. This position gains strength from ad- vocates of protected areas who do not recognise the costs displacement from protected areas can bring. There are, among this group, those who claim that there is insufficient empirical evidence to substantiate the contention that es- tablishing national parks compromises the welfare of people who live in or around them.14 This position supposes that restricting human activity (which tends to be integral to conservation policy), without recompense might not Picture 5. An aerial view of the Lower Omo Valley.The Omo here forms the eastern necessarily affect welfare, when simple boundary of the Omo National Park, under logic suggests it must. It also ignores the management by the Netherlands-based a long and growing list of case stud- African Parks Foundation (APF) as of January ies and surveys which overwhelmingly 2006. Members of seven ethnic groups live in indicate that eviction and exclusion and utilise the park for cultivation and grazing. have caused impoverishment and dis- The agreement between APF and the Ethiopian content.15 government does not recognise the land rights of these groups. It merely states that APF will At the same time we must also rec- consider the 'interests' of local people, 'as far as ognise that the evidence about the is practically possible'. (Courtesy David Turton) impacts of protected areas could be ysis.16 This weakness makes it hard to stronger. Among the case studies re- discern regional and historical patterns ferred to in the previous paragraph, in the nature and experience of differ- there are many that are weak or merely ent forms of displacement, or the distri- anecdotal. There is also a problem of bution of benefits from protected areas. missing system and order in the enquiry into the social impacts of protected It is clear that, for the foreseeable areas. This makes it hard to obtain an future, protected areas will remain key adequate overview of their social im- components of any national or inter- pacts. And, although the literature on national biodiversity conservation pro- the social impacts of displacement is gramme. Our concern is to address the growing, it still lacks a systematic anal- absence of an international consensus 238 15, July 2007  …but conservation and human rights What can Conservation canalso ARE work in Human undermine mutual Rights, Human support… anyway? Rights... on the responsibility of those who pro- organisations such as the World Bank, mote protected areas to ensure that The African, Asian and Inter-American their costs are not ‘externalised’ in the Development Banks and the OECD. form of increased costs borne by local Each of these publications sets standard communities. operating procedures for loan or grant agreements. They may or may not be The creation of a protected area can appropriate in every detail, but they do bring with it a range of possible impacts outline the importance given to the sub- on local communities, from forced evic- ject by the wider development commu- tions on the one hand to integration nity which now views even restrictions into management structures and the on access as a form of displacement development of new roles and respon- requiring remedy.17 sibilities for them on the other. There is, at present, little to alert community In addition, major conservation bodies members to the likely impact on them such as IUCN18 and WWF19 have tried to of a change in land use caused by the address these issues. “The international establishment of a protected area. community has affirmed that all peoples Experience shows, however, that the have human and environmental rights. overwhelming risk is that local com- These are rights that should guide the munities, already amongst the poor- distribution of the material benefits est of the poor, will become even more and limit the environmental costs of impoverished and therefore increasingly economic growth”.20 While the recom- alienated from the goals of biodiversity mendations and policies elaborated by conservation. such organizations are clear statements of intent, it is high time to look at what It is therefore desirable, for both ethical can be done to bring together the rhet- and practical reasons, that conservation oric of institutional support for rights NGOs and multilateral institutions com- with the reality on the ground. mit themselves to a set of ‘conserva- Nicholas Winer (winer_nicholas@yahoo.es) is an Honorary tion principles’ that espouse minimum Fellow of the Institute of Development Policy and Manage- humanitarian standards consistent, at ment at the University of Manchester and an independent least, with the inter- consultant specialising in Natural Resources Management It is desirable national obligations after spending twenty years managing rural development and natural resource management projects in Africa. that conserva- of host governments David Turton (david.turton@queen-elizabeth-house.oxford. ac.uk) is a Senior Associate of the Department for Interna- tion NGOs and engaging in multi-lat- tional Development at the University of Oxford, where he multilateral in- erally funded projects that involve significant was formerly Reader in Forced Migration and Director of the Refugee Studies Centre. Before moving to Oxford he taught stitutions commit changes in land use. in the Department of Social Anthropology at the University of Manchester. Dan Brockington (daniel.brockington@man- themselves to a set It is appropriate that chester.ac.uk) is a Lecturer at the Institute for Development of ‘conservation those whose land use Policy and Management in the University of Manchester. His research examines the social impacts of protected areas and options have been principles’ that changed for larger, he has conducted a global review of eviction from protected areas using published and grey literature. Nick, David and espouse minimum nationally driven, Dan are all members of CEESP/ TGER. humanitarian policy reasons should standards. be able to rely on a consistent minimum Notes 1 Grzimek and Grzimek, 1960. set of standards that safeguard their 2 Brockington, 2004. interests. There are a number of policy 3 Adams and McShane, 1992. and operational manuals published by 4 CBD http://www.biodiv.org/programmes/cross- cutting/protected/default.asp 15, July 2007 239 Conservation and Human Rights 5 Bishop, et al., 2004; and Chape et al., 2005. “Measuring the extent and effectiveness of protect- 6 Naughton-Treves et al., 2005. ed areas as an indicator for meeting global biodiver- sity targets,” Philosophical Transactions of the Royal 7 Locke and Dearden, 2005. Society B 360:443-455, 2005. 8 CBD http://www.biodiv.org/programmes/cross- Chatty, D and M. Colchester (eds.), Conservation and cutting/protected/default.asp Mobile Indigenous Peoples: Displacement, Forced 9 Turton, 2004. Settlement and Sustainable Development. New York 10 Winer, 2003. and Oxford: Berghahn Books, 2002. 11 Hutton et al., 2005. Convention on Biological Diversity, Protected Areas Introduction, webpage: 12 World Bank, 2004. http://www.biodiv.org/programmes/cross-cutting/ 13 Hutton et al., 2005. protected/default.asp 14 Wilkie et al., 2006. Hutton, Jon, W.M. Adams and J.C. Murombedzi, “Back 15 (Brockington, 2002., Burnham 2000., Catton to the Barriers ? Changing Narratives in Biodiversity 1997., Cernea 2000., Cernea & Schmidt-Soltau Conservation,” Forum for Development Studies, No 2003, 2006., Fabricius & de Wet 2002., Ganguly 2. 2005. 2004., Gavlin et al. 2002., Geisler 2003., Ghimire IUCN, Vth World Park’s Congress Recommendation 1994., Ghimire 1997., Hitchcock 1995, 2001., Igoe 5.29 on Poverty and Protected Areas, 2003. & Brockington 1999., Ikeya 2001., Jacoby 2001., Keller & Turek 1998., Koch 1997., Magome & http://www.iucn.org/themes/wcpa/wpc2003/pdfs/out- Fabricius 2004., McLean & Straede 2003., Naba- puts/recommendations/approved/english/html/r29. kov & Lawrence 2004., Neumann 1998., Olwig & htm Olwig 1979., Overton 1979., Schmidt-Soltau 2003, Locke, H., and P. Dearden, “Rethinking protected area 2005., Shyamsundar & Kramer 1997., Spence categories and the new paradigm.” Environmental 1999., Tacconi & Bennett 1995 and Turton 1987)— Conservation. 32 (1): 1–10 2005. In Kai Schmidt-Soltau et.al, (under review 2006). Naughton-Treves, L., M.B. Holland, and K. Brandon, 16 Brechin et al., 2003; and Chatty and Colchester, “The Role of Protected Areas in Conserving Biodi- 2002. versity and Sustaining Local Livelihoods”, Annual 17 Cernea, 2005. Review of Environment and Resources 30:219-252, 2005. 18 See http://www.iucn.org/themes/wcpa/wpc2003/ pdfs/outputs/wpc/durbanaccord.pdf and Schmidt-Soltau, K., D. Brockington, and R. Malleson, http://www.iucn.org/themes/wcpa/wpc2003/pdfs/ Protected Areas and Resettlement: What scope for outputs/wpc/durbanactionplan.pdf voluntary relocation? (under review 2007). 19 See: The WWF Indigenous peoples’ policy and Turton, D., “Lip plates and the people who take pho- IUCN-WWF Indigenous Peoples and Protected Ar- tographs. Uneasy encounters between Mursi and eas policy, both available at http://www.worldwild- Tourists in Southern Ethiopia”, Anthropology Today, life.org/indigenous/policies/index.cfm). Vol. 20. No 2, April 2004. 20 WWF http://www.panda.org/about_wwf/what_we_ Wilkie, D. S., G. A. Morelli, J. Demmer, M. Starkey, P. do/policy/people_environment/index.cfm Telfer, and M. Steil, “Parks and People: Assessing the Human Welfare Effects of Establishing Protected Areas for Biodiversity Conservation”, Conservation References Biology, 20:247-9. 2006. Adams, J.S. & T.O. McShane, The Myth of Wild Africa: Winer, N. “Co-management of protected areas, the oil Conservation without Illusion, Norton & Co., 1992. and gas industry and indigenous empowerment— Bishop, K., N. Dudley, A. Phillips, and S. Stolton, the experience of Bolivia’s Kaa Iya del Gran Chaco”, Speaking a Common Language, The uses and Policy Matters, The Journal of the IUCN Commission performance of the IUCN System of Management on Environmental, Economic and Social Policy, Issue Categories for Protected Areas, Cardiff: Cardiff Uni- 12, 181 –191. 2003. versity; IUCN; UNEP-WCMC; . 2004. World Bank, World Bank Operational Policy 4.12. Re- Brechin, S. R., P. R. Wilshusen, C. L. Fortwangler, and vised April 2004, available at: P. C. West. Contested Nature. Promoting Interna- http://web.worldbank.org/WBSITE/EXTERNAL/ tional Biodiversity with Social Justice in the Twenty- PROJECTS/EXTPOLICIES/EXTOPMANUAL/0, content first Century. Albany, NY: State University of New MDK:20064610~pagePK:64141683~piPK:64141620 York Press: 264, 2003. ~theSitePK:502184,00.html Brockington, D., “Community Conservation, Inequal- World Wide Fund for Nature (WWF), People and ity and Injustice: Myths of Power in Protected Area the Environment, Webpage: http://www.panda. Management” Conservation and Society, 2,2. Sage org/about_wwf/what_we_do/policy/people_environ- Publications. 2004. ment/index.cfm Cernea, M.M., “‘Restriction of access’ is displacement: WWF Indigenous peoples’ policy and IUCN-WWF In- a broader concept and policy,” Forced Migration digenous Peoples and Protected Areas policy, avail- Review, 23, May 2005, pp. 48-49. able at http://www.worldwildlife.org/indigenous/ Chape, S., J. Harrison, M. Spalding, and I. Lysenko, policies/index.cfm 240 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? Rights... environment… Human rights, conservation and the privatization of sovereignty in Africa— a discussion of recent changes in Tanzania Jim Igoe Abstract. While states do not always guarantee human rights, human rights cannot be guar- anteed without a viable state. Paradoxically, many conservationists see the state as a central obstacle to effective community-based conservation. The central contention of this article is that the neoliberalization of African conservation, leading to the privatization of African states, has led to a situation in which it is extremely difficult to promote human rights via conservation or vice versa. Not only have human rights been narrowly redefined according to free market priorities, but the mechanisms whereby rights can be articulated and understood have largely disintegrated. This situation is both reflected in, and perpetuated by, current conservation interventions. This article draws on examples from around the African Conti- nent, but focuses primarily on the author’s research in Tanzania in 2005-2006. It concludes with a discussion of how to bring the question of human rights to a more central place in transnational conservation. Most importantly, it emphasizes that everyone involved in inter- national conservation is equally culpable in the field of human rights, not just the govern- ments of the countries in which specific groups of people happen to reside. As such, there is a pressing need for the institutionalization of independent reporting and structures of over- sight and accountability at all levels of international conservation. D rawing from my research in Tanzania (2005-2006)1 and recent observations against the socially and environmen- tally destructive spread of neoliberal, free market capitalism. In their seminal of other researchers across the conti- article on communities and conservation nent, this article outlines some of the Agrawal and Gibson wrote that advo- fundamental aspects of human rights cates of community-based conservation and conservation in Africa today. Its saw states and markets as the main central argument is that the ‘neoliber- obstacles to their agendas.3 In the pur- alization’ of African states and societ- suit of economic growth through foreign ies has overshadowed organic linkages investment, states do often facilitate between conservation and human rights enterprises and interventions that vio- activism. late people’s basic rights while harming the environment. Getting rid of states, In the wake of the Soviet Collapse at however, is probably not our best bet the turn of the 1990s, human rights for promoting human rights or the envi- came to the center of development and ronment. For better or for worse, states governance discourses. Conservation remain the ultimate guarantor of rights quickly followed suit and for a few years in our current global system. NGOs and in the 1990s some were predicting a multi-lateral institutions may educate global convergence of human rights people and help them advocate for their and conservation agendas.2 These two rights, but ultimately it is states that agendas appeared as a crucial bulwark must legislate and enforce those rights. 15, July 2007 241 Conservation and Human Rights Until some other global institutions that each of us examine our own culpa- are able to guarantee people’s rights, bility, both personally and institutionally. therefore, the current decline of states Most critically, these types of changes is probably bad for human rights and will require new types of institutional conservation. oversight, which should be modeled after existing bodies, such as the World Furthermore, the relationship of con- Bank Inspection panel.6 I will return to servation to markets and private enter- these points in the conclusion of this prise has shifted dramatically since the article, following a discussion of the im- NGOs and multi- turn of the millennium. The role of corpora- pacts of these changes on human rights and conservation in Tanzania and other lateral institu- tions in conservation parts of Africa. tions may educate has become increas- people and help ingly prevalent. These 4 transformations have them advocate for significant implica- their rights, but tions for both human ultimately it is rights and conserva- states that must tion. Understanding them, as well as their legislate and en- continuity to previous force those rights. arrangements, requires looking at current conservation, development, and gover- nance discourses. It also involves look- ing beyond and behind these discourses to the actual practices of conservation Picture 1. View from Paul Tudor Jones’ and human rights and their implications exclusive Grumeti Lodge. for future action and conceptualization.5 (Courtesy Beth Croucher) While many observers have noted the types of practices I will outline below, The neoliberalization of African they are often dismissed as temporary conservation and its implications and/or anomalous. One of the central for human rights contentions of this article, however, The opening up of African economies is that they are quite ‘normal’ in the in the late 1980s went hand-in-hand experiences of rural Africans in their with the opening up of African political day-to-day lives. They should, there- systems. This reflected the widespread fore, be taken much more seriously if assumption that free markets and free we are serious about promoting human elections would naturally lead to a free rights through conservation or even vice society. Totalitarian states were seen as versa. the problem. They restricted free trade, free assembly, free speech, and free In fact, these fundamental changes press. If states were less intrusive in all demand a fundamental reconceptu- of these matters, peoples’ lives would alization of the relationships between naturally improve. Smaller states, a conservation and human rights. Most vibrant NGO sector, and the promotion importantly, we need to recognize that of private enterprise became the pre- everyone involved in transnational con- scribed solution to these problems.7 servation is culpable and it is essential 242 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? Rights... environment… State-sponsored protected areas were involves reregulation as much or more the mainstay of conservation during this than deregulation.11 States play a cen- period, and by no means would most tral role in redefining natural resources conservationists like to see them de- in ways that make them available to regulated. In fact, during this period of private investors. This is often achieved deregulation, Tanzania continued ga- through privatization, but can also be zetting national parks achieved through a variety of other ar- Neoliberalization and the state-sponsored rangements, including those that osten- involves reregu- protected areas prolifer- sibly give local people more control of ated on a global scale.8 natural resources. lation as much At the same time, out- or more than side of protected areas, One of the key elements of “neoliber- deregulation. deregulation, decentral- alization” for conservation and human ization, and privatiza- rights is the idea of “more and more tion were increasingly heralded as the actors becoming self-governing within key to conservation success. Private centrally prescribed frameworks and Game Reserves began to proliferate. rules”.12 Individuals must be freed from Transnational conservation NGOs began the shackles of traditional social bonds, openly brokering conservation business so that they can become owners of ventures between foreign investors and private property, which can be used as local communities. For the most part, collateral for loans, which can be invest- benefits accruing to those communi- ed in new types of business ventures. ties have been much smaller than those This in part reflects the impact of Her- accruing to their “senior partners”, nando de Soto’s highly influential book, while maldistribution of benefits within the Mystery of Capital. De Soto argues communities has also been a common that poor people actually control a great problem. Moreover, little care has been deal of wealth, but that they are unable taken to measure whether the costs of to realize the value of that wealth be- local people foregoing access to the re- cause of inefficient state bureaucracies sources that they “invest” in conserva- and lack of legally guaranteed property tion enterprises is offset by the benefits rights. It is essential that these ob- that they receive.9 stacles to the poor realizing the value of their capital be removed, so that they These events and processes are best can take out loans and join the capitalist understood with reference to neoliberal economy.13 policy reforms. Rather than thinking of neoliberalism as a unified concept, it is While “rights” still enjoy a central place more useful to think of it as a process of in de Soto’s works and in neoliberalism neoliberalization.10 Although experiences in general, they are substantially dif- of neoliberalization vary from location ferent than in the classical sense of the to location, they revolve around certain term, which revolves around the idea key experiences readily visible in Africa. of a “social contract” between the state While neoliberalization is popularly per- and its citizens. Rather, they are nar- ceived as the deregulation of economic rowly defined as guaranteed rights over activities and the withdrawal of states property, which qualify people for loans, from social and economic spheres, criti- which in turn allow them to enter the cal observers argue that it is neither. global economy as investors, producers, In a comprehensive literature survey, and consumers. Investments, of course, Castree concludes that neoliberalization carry no guarantee. It is possible, even 15, July 2007 243 Conservation and Human Rights probable, that people will lose their Zimbabwe and Mozambique.17 capital due to limited opportunities on the bottom rungs of the investment lad- The first case was a program coordi- der. Poor people are also more likely to nated by GTZ to the north of Selous consume capital due to the numerous Game Reserve in the central part of the emergencies in their lives.14 Moreover, country, and the second was a program poor people have little capital and little coordinated by the AWF (African Wild- experience of how to effectively invest life Foundation) to the west of Tarangire it. The reregulation of resources, even National Park in the northern part of the when ostensibly for their benefit, often country. Local people in both the cases works to their detriment. They often were certain their rights had been vio- find themselves divested of their prop- lated, but they were not sure to whom erty even when that property is puta- they could bring their grievances. Maa- tively protected by law. sai herders to the north of Selous found themselves excluded from an area in which they had made substantial infra- structural investments. Kutu farmers complained that they were excluded from areas where they used to farm and prohibited from subsistence hunting. Arusha farmers west of Tarangire were angry and confused about the wildlife management area ostensibly being implemented on their behalf. The pro- cess of setting aside land for the wildlife management area had entailed the evic- tion of 63 households, while those living nearby found their farms swallowed up by the new boundaries. Elected village Picture 2. Jim Igoe and faculty from the officials claimed that they were at a loss College of African Wildlife Management to understand how their village land had participate in a community meeting con- come to be taken from their control.18 cerning conflicts with the AWF and the All felt that a handful of elites were Manyara Ranch. (Courtesy Beth Croucher) reaping benefits, while they were paying the price. In Tanzania, I observed communities that had been given legal rights to When officials from the villages near their land so that they could enter into Selous took these grievances to the re- wildlife management areas with trans- gional government, they were invited to national conservation NGOs and private a “special seminar”. They returned with investors. Once communities had en- a message for their constituents, “We tered into legal contracts as “property have no authority. We are only consult- owners”, they found themselves ex- ed.”19 Informants who described these cluded from their own property, while events, believed that these officials local elites, government officials, pri- had been threatened, bribed, or both. vate investors (both foreign and Tan- A group of elders representing the 63 zanian), and outside NGOs reaped the families evicted from the wildlife man- benefits.15 Similar patterns have been agement area near Tarangire went to observed in Zambia,16 as well as in complain to the district offices and were 244 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? Rights... environment… promptly arrested. Evictees claim that they then received a message from the detainees to comply with the eviction order as quickly as possible so that they would be released.20 Village officials who traveled to the capital to find out how their land was enclosed without their consent claim to have discovered forged village assembly minutes.21 People in these communities often won- dered aloud whether they actually had any rights at all or if they were simply going to be shunted around to make room for conservation enterprises from which they had little hope of benefiting. Picture 3. A meeting of Villagers near Tarangire National Park to develop a Even we as researchers began to won- strategy of how they might withdraw from der about the question of rights when the wildlife management area, which they we were called before the district game felt they were brought into without their officer who had played a central role knowledge or consent. in the creation of the wildlife manage- (Courtesy Beth Croucher) ment area near Tarangire. During the seeking their rights as their natural re- meeting he told us that the AWF and sources are alienated for conservation, the Tanzanian Government had put a lot economic development, and private en- of money and energy into creating the terprise. First people need to know their WMA… it was a big success for them, rights. The highly technical language of and they weren’t going to allow it to be reregulation makes this difficult. Once undermined by local people and outside people know their rights, it is then agitators. necessary for the state to enforce those rights, which often entails protracted He then went on to tell us that he al- legal battles, which usually do not go most had us arrested for attending in favor of local people.23 All this entails village meetings concerning the wildlife a great deal of expense for people who management area. At this point, one of can scarcely afford basic necessities. In my Tanzanian research assistants in- the era of free markets and free elec- formed him that this would have been tions, scarcely anything else is free. a violation of our rights. He responded Human rights must be bought and paid that the government and the police for— practically leaving poor people with were not concerned about the ques- no rights.24 tion of rights. “When we arrest people,” he told us, “our job has nothing to do The privatization of sovereignty with their rights. That is a question for Representatives of international con- the courts. We arrest you and later the servation organizations, to the extent courts decide whether we have violated that they acknowledge these kinds of your rights. In between, however, you problems, tend to lay the blame on cor- will suffer to a certain extent.”22 rupt African governments. These have become a standard scapegoat for just This discourse is highly consistent with about everything that goes wrong in the experience of rural Tanzanians Africa, which unfortunately is quite a 15, July 2007 245 Conservation and Human Rights lot. Donors and foreign investors can of control they previously enjoyed.26 claim that they had nothing to do with the negative impacts of their activi- Lest we swing too far in the other direc- ties. Ideally their interventions would tion, letting African elites off the hook have benefited local people, were it not and blaming outsiders, a more nuanced for the interference of corrupt African perspective suggests that both groups Governments. Unfortunately, corrupt as are equally culpable. The hollowing out they are, these governments are also of African states by neoliberalization has sovereign. Donors and investors could diminished their ability to govern. Sov- never meddle in the internal affairs of a ereignty and control in such situations is sovereign state. highly fragmented and decentralized— deployed in different ways by different This is a disingenuous position, since state-actors, in different contexts, with anyone involved in conservation and/ very little centralized control. For state or development in countries like Tan- actors, this fragmented sovereignty zania can’t help but know that donors often becomes an important commod- and investors habitually meddle in the ity that they can use to broker strate- internal affairs of sovereign states. Of gic alliances with private investors and course sovereignty in a post-colonial donors. Both groups bring important setting is very dif- resources to these alliances. Outsiders In the era of free ferent from sover- bring money and other external re- markets and free eignty in the global sources on which officials from impover- elections, scarcely north. European ished states are highly dependent. State anything else is colonies in Africa were expressly de- actors bring sovereignty— “the means of coercion that make it possible to gain free. Human rights signed to facilitate advantage in struggles over resources must be bought and outside influence traditionally the exclusive purview of the paid for— practi- on the inner work- state”.27 Outsiders wishing to directly ings of colonial control, or otherwise define the use of cally leaving poor states. Keeping these resources, depend on state actors people with no rights. such arrangements for this commodity. This does not usu- in place was a ally mean that state actors cede sov- major concern of European powers at ereignty to these outsiders— although independence. This can be seen in the this sometimes does sometimes hap- active role that the AWF, WWF, and pen. The relationships that emerge from IUCN took in this transition: starting these dynamics are usually of mutual the College of African Wildlife Manage- dependence, characterized by a great ment, establishing national parks, and deal of strategic negotiation and oc- developing management plans and casionally intense antagonisms. These conservation policies. Europeans con- relationships are difficult to discern, tinued to hold positions in African gov- obscured as they are by discourses of ernments through the early 1970s.25 official prerogatives.28 Garland argues that Africans made some gains in controlling conservation The impacts of these developments are and natural resource management in visible in conservation across the Conti- their countries during the period of nent. Witness the recent activity within state-centered development (roughly TILCEPA concerning the clearances of 1967 to 1985), but with neoliberaliza- Omo and Nech Sar National Parks in tion white outsiders regained the kind Ethiopia.29 Although these clearances 246 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? Rights... environment… were undertaken by the Ethiopian Gov- between 2001 and 2003. The village ernment, they were closely associated also received benefits of approximately with African Parks Foundation, an NGO $70,000 per year through partnerships indirectly bankrolled by with three private safari companies. Alliances of in- SHV Gas in the Neth- Above the door to the village office is a ternational con- erlands and Wal-Mart hand painted sign that reads: “We must servation NGOs, in the United States.30 stand united. Wildlife Management Area private enterprise, African Parks Foundation is the key to our future.” The benefits and state actors has been at the center helped the village to purchase a tractor, of similar controversies which helps local people to farm instead are increasingly around Africa, including of hunting for a living. common through- in South Africa.31 Alli- out Africa. ances of international This situation changed abruptly in 2003, conservation NGOs, when American futures investor Paul private enterprise, and state actors are Tudor Jones infused approximately $20 increasingly common throughout Africa. million into a flagging company known These kinds of alliances are actively as VIP Safaris with a promised total in- excluding people from landscapes in the vestment of $40 million,33 used to build name of conservation throughout the an airstrip, clear migratory habitat, es- continent, including in Cameroon, Chad, tablish anti-poaching activities, provide Central African Republic, Equatorial development assistance to neighboring Guinea, Mozambique Republic of Congo, villages, and construct a $1500/night Zimbabwe.32 luxury lodge.34 The company, which be- came Grumeti Reserves Ltd., took over These dynamics are also clearly vis- 340,000 acres of hunting concessions ible in Tanzania, as illustrated by two to the north-west of Serengeti National examples: 1) Robanda Village, on the Park, including the Grumeti and Ikoron- western boundary of Serengeti National go Game Reserves.35 The company also Park; and 2) Manyara Ranch, to the runs an NGO called the Grumeti Fund. north-west of Tarangire National Park. Here we have three entities: 1) a trans- During my time in Tanzania, events national company; 2) an NGO; and 3) surrounding Robanda were a matter of a state-sponsored Game Reserve; all national interests, and a topic of fre- sharing the same name, and in fact run quent discussion of faculty at the Col- by the same funding. lege of African Wildlife Management. In January 2006 I spent ten days in In 2005, the Grumeti Fund became and around Robanda as part of the involved in the planned reintroduction College’s Community-Conservation field of rhinos to the Grumeti and Ikorongo safari. Appropriately, we visited the Game Reserves. The plan was launched Manyara Ranch as part of the College’s at a stakeholder workshop under the Conservation Conflict safari. Between auspices of the Tanzania National Parks February and June of 2006, I worked Authority and sponsored by the AWF extensively in the communities border- and the Frankfurt Zoological Society.36 ing the Manyara Ranch. Grumeti Ltd’s interest in these relo- cations was to create a landscape in At Robanda the Western Serengeti which their clients could see all of the Regional Conservation Project, spon- “big five”.37 Similar reintroductions of sored by NORAD, succeeded in gen- species from South Africa to the Mkom- erating local support for conservation azi Game Reserve in the late 1990s 15, July 2007 247 Conservation and Human Rights were associated with the eviction of local people from the reserve in 1988 and their continued exclusion through the 1990s.38 Local people were also forcefully evicted from both the Gru- meti and Ikorongo Game Reserves in 1994.39 The clearing of the reserves, though not directly sponsored by out- siders, has opened up these areas for major investments and conservation interventions, which benefit outsiders and Tanzanian elites at the expense of local people. As a matter of fact, Gru- meti Reserves Ltd. did attempt to relo- cate Robanda Village, which it viewed Picture 4. Jim Igoe with Senior Instructor as a final obstacle to the creation of its Teresia Ole Mako (second from right hold- private game reserve. It also sought to ing book) and students from the College force out the three tour companies that of African Wildlife Management. have business agreements with the vil- (Courtesy Beth Croucher) lage government.40 Villagers also claim to have been harassed and beaten by tions, and the government are hardly private game guards working for the raised. company. The Manyara Ranch, in contrast to Gru- During my time in Tanzania there was meti Reserves Ltd., is a much smaller also significant discussion about Gru- and less funded intervention. Neverthe- meti’s plans to build an international less is has been established by a net- airport, film a Hollywood-style movie, work of NGOs, state elites, and private and relocate Serengeti Park Headquar- enterprise to set aside significant tracts ters just north of Robanda, to prepare of land for conservation and investment the area for tourism.41 Grumeti Reserves purposes. The ranch is controlled by Ltd. also received significant media a Trust set up by the AWF with fund- coverage. Both National Geographic and ing from USAID.44 One of its central the New York Times travel magazine goals is for an out- side investor, which The lands’ origi- described the company and its initia- tives in mostly glowing terms.42 An the Trust has already nal owners are not interview with Concession Director Rian identified, to build a described as rights Labuschagne in the Tanzania Daily News luxury lodge in the carried the headline, “We Sell Tanzania ranch once the neces- bearing citizens, to the Outside World,” while the New sary improvements but as junior stake- York Times article43 carried the Headline have been made. The holders who are in “Your Own Private Africa”—unambigu- official history of the need of guidance ous messages that Africa and African ranch, as told by the AWF, describes its and oversight so Countries are now commodities. People occasionally appear in these narratives takeover by the Trust that they won’t do as dreaded poachers or needy recipients as a nearly inevitable the wrong things. of corporate largesse, but the realities option.46 Annexing of their lives are seldom addressed and the area into nearby Manyara National their rights vis-à-vis investors, founda- Park was ‘deemed unacceptable,’ be- 248 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? Rights... environment… cause it would meet with too much series of meetings to which they were local resistance. Giving the land back to not invited, it was decided that the the community, although it was origi- ranch would be taken over by the Trust. nally theirs, was also “deemed unac- After leaving office, Benjamin Mkapa ceptable”, because local people might was invited to join the AWF board of farm in the ranch, thereby fragmenting trustees. Edward Lowassa, then MP important wildlife habitat and migration for the district and subsequently prime routes. The only reasonable arrange- minister, was named to the Board of ment, therefore, was for the Trust to the Trust. Local people feel that these take over the ranch, on behalf of local appointments represent a conflict of people and for their benefit. The land interests, since they also feel that these would still belong to the communities elected officials were meant to protect and they would derive benefits from their rights and interests before those of the tourist developments that would outsiders. In addition to feeling robbed occur in the ranch and by being able of land they feel is rightfully theirs, they to continue grazing their cattle in the feel that they have not received ade- ranch according to the permit system. quate benefits from the ranch, that they are not adequately represented on the Conspicuously absent from this narra- Board, and that they are not kept ap- tive is any discussion of people’s rights. prised of what the Trust is doing at any The fact that the land originally be- given time.46 longed to these people, and was taken from them first by trickery and then The Trust also has authority to negoti- by administrative fiat, appears to be of ate for easements or purchase of land. little consequence. Of primary concern It has recently initiated Kwa Kuchinja is the possibility that these people will Easements for the Environment Through do something to fragment habitat and Partnership (KKEEP), which seeks to block wildlife migration routes. They are induce local people to move from wild- not described as rights bearing citizens, life migration corridors with one-time but as junior stakeholders who are in monetary compensations. When we need of guidance and oversight so that visited the Ranch …human rights by they won’t do the wrong things. with students from the College of African definition are pre- This account of events is also much dif- Wildlife Management, mised on a social ferent than those of local people. The the Ranch’s Tanzanian contract between narrative that I collected from them community outreach goes as follows: local people gave up person told us: “This citizens and a the land for the ranch under the mis- is not a safe place for state– not between taken impression that this was a tem- people to live. Our stakeholders and porary arrangement. When they heard job is to help people other stakehold- that the land was being privatized they in these villages to began to lobby the government to re- understand that they ers or between a turn it to them. At one point it appeared are not safe here.” community-based that these efforts would be successful, The Ranch’s former organization and as community leaders began to hear manager told us that a private investor… through their networks that then Presi- the AWF was also dent Benjamin Mkapa was favorable to exploring the pos- the idea of the land being returned to sibility of relocating people. He further the community. Shortly thereafter, in a indicated that they were exploring the 15, July 2007 249 Conservation and Human Rights option of them moving to Hanang, 75 an explosion of new types of conserva- miles south. tion across the African continent. It has also coincided with the proliferation of Unfortunately, Hanang is also be- state-sponsored protected areas. These set with land conflicts that have their have in turn have been closely associ- roots in state-sponsored wheat farms. ated with the identification of tourism As these farms are privatized, local as one of the key economic opportuni- people are fighting with each other and ties in rapidly privatizing African coun- outsiders for access to newly reregu- tries. Tanzania, already a major tourist lated land. The relocation of people to destination, has created more parks to Hanang would exacerbate these con- increase the absorptive capacity of its flicts.47 We also encountered households tourist sector. Meanwhile countries that displaced from Hanang to our research have not previously been thought of as area, which were on the verge of be- tourist destinations (e.g. Chad, Ethiopia, ing displaced again. The reregulation Gabon, and Mozambique), have jumped of land throughout Tanzania, combined on the protected area bandwagon in an with population growth, has led to effort to capture their share of the tour- repeated internal displacements and ist market and more aid dollars. migrations that appear as localized land conflicts.48 The situation is captured in These changes have created signifi- the words an informant who was dis- cant opportunities for private investors placed from Hanang, then evicted from and international conservation NGOs, the wildlife management area described the lines between which are becoming in the previous section (also sponsored increasingly blurred. In the case of the by the AWF), and currently facing pos- Manyara Ranch, the AWF has repeat- sible displacement by KKEEP: “It’s like edly stated that it already has found an we aren’t Tanzanians and this isn’t our investor to build a lodge in the ranch country. Wherever we go, we are told, just as soon as it is ready. One of the you can’t stay here.”49 main justifications for KKEEP is that it will attract additional Conclusion investors to the vil- With the privatiza- This statement, the sentiment of which lages bordering the tion of sovereign- was echoed by many other respondents, ranches. These op- ty, the question of goes straight to the heart of the ques- portunities have not only attracted inves- human rights has tion of human rights and conservation. As I mentioned at the beginning of this tors, but also other become much less article, human rights by definition are conservation NGOs. straightforward. premised on a social contract between Most recently the Nature Conservancy Everyone involved citizens and a state– not between stake- holders and other stakeholders or be- has announced its in transnational tween a community-based organization plans to begin ease- conservation is and a private investor. The respondent ment interventions in culpable. quoted above recognizes that he is not Africa, modeled after a citizen by this definition. There is no the AWF experience— envisioning sev- social contract that protects from being eral million acres of key African habitats displaced by more powerful interests. under conservation easements.50 The downsizing of states and the decen- The central argument of proponents tralization of state power has facilitated of these kinds of interventions is that 250 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? Rights... environment… they also create economic opportuni- local people to clear wildlife migration ties for Africans. Since I have already corridors; and researchers/consultants addressed this argument at length, I who reproduce they types of narratives will not say much more here, only that that keep the question of human rights benefits rarely accrue to those who pay out of focus. the biggest costs for these interven- tions and there is little evidence that As Chambers writes, everyone in these potential local benefits can begin to networks has both the efficacy and the offset local opportunity costs for con- responsibility to bring about positive servation. Most business opportunities change and to help undo the relation- available to local people entail high risk ships of inequality that exist within and low returns Most jobs generated by these networks.52 Restoring sovereignty investment and intervention do not go to African states in a way that they to local people (most Tanzanian lodges can (and will) uphold the rights of their prefer to hire Kenyans and South Af- citizens is a tall order. However, creating ricans), and the ones that do are usu- accountability and oversight through- ally the lowest paying. Anyway, a job out the networks is not strictly a benefit. It is an eco- that engage and [We need] indepen- nomic exchange in which an individual interpenetrate with dent rapporteurs, since sells their labor to a firm and the firm these states would makes a profit from that labor.51 Part be an important our current informa- of the reason that ecotourism is such first step. A key tion is dominated by a growth industry is because of its low element of such the reporting of the labor costs. Tourists can enjoy services a transformation very people who are and experiences that they could never would be indepen- enjoy back home for a fraction of the dent reporting of undertaking and cost. Most fundamentally, it is neces- events and out- benefiting from these sary to keep in mind that the problems comes, perhaps by [“conservation” and outlined in this article are not “outli- independent rap- “development” ] in- ers”. Such problems are a common fea- porteurs, since our ture of conservation across the African current informa- terventions or from Continent. tion is dominated people hired by them … by the reporting Lost in all of this is the question of of the very people who are undertaking rights. It is tempting to place the blame and benefiting from these interventions for human rights abuses (both large and or from people hired by them. We also small) on corrupt African governments, need institutional structures of over- which obviously have a great deal to sight, like the World Bank Inspection answer for. As I mentioned at the outset Panel, and an enforceable code of ethics of this article, however, the privatization for individuals and institutions involved of sovereignty has rendered the ques- with transnational conservation. tion of human rights much less straight- forward. Everyone who is involved in Jim Igoe (james.igoe@cudenver.edu) is a member of CEESP and WCPA, with TGER and TILCEPA. He is Assistant transnational conservation networks or Professor of Anthropology at the University of Colorado at who benefits from such involvement is Denver, President of BRIDGE (Bridge for Indigenous Devel- culpable: private tour companies that opment and Grassroots Empowerment), and a senior fellow of the Environmental Leadership Program. He is author of take over land from local people without the book Conservation and Globalization, which examines adequate compensation; international conflicts between indigenous communities and national parks in Tanzania and South Dakota, with examples from NGOs that support the displacement of around the world. 15, July 2007 251 Conservation and Human Rights Notes February 23, 2007. 1 As a Fulbright lecturer at the College of African 31 http://www.mg.co.za/articledirect.aspx?articleid= Wildlife Management, Mweka. 131438&area=%2finsight%2finsight__national%2f, accessed February 23, 2007. 2 Igoe, 2005. 32 Ferguson, 2006; McDermott-Hughes, 2006; Cernea 3 Agrawal and Gibson, 1999. and Schmidt-Soltau, 2006; Igoe and Croucher, 4 See Dowie, 1995; Chapin, 2004; Igoe and Crouch- forthcoming. er, forthcoming http://www.id21.org/insights/insights57/art02.html, 5 See Hibou, 2004, p4. accessed February 23, 2007. 6 http://web.worldbank.org/WBSITE/EXTERNAL/EX- 33 Special Team, The East African, January 31 2005, TINSPECTIONPANEL/menuPK:64129249~pagePK: “Mr. Jones Takes 25 Kenyan Rhinos to a Tanzanian 64132081~piPK:64132052~theSitePK:380794,00. Reserve.” html, accessed 5 April 2007 34 Poole, R., “Heartbreak on the Serengeti,” National 7 See Igoe and Kelsall, 2005. Geographic, http://www7.nationalgeographic.com/ 8 West and Brockington, 2006; and West, Igoe, and ngm/0602/feature1/index.html, accessed February Brockington, 2006. 23, 2007. 9 Igoe, 2007. 35 From Singita web site http://www.singita.com/site/ 10 Heyden and Robbins, 2005; and Castree, in press. about/news.asp, accessed on February 21, 2007, also see 11 Castree, in press. http://www.africanconservation.org/cgi-bin/dcforum/ 12 Castree, in press. dcboard.cgi?az=read_count&om=4387&forum=DCF 13 De Soto’s ideas have been very influential in Africa, orumID3, accessed February 21, 2007. especially in Tanzania where the President’s Office 36 Special Team, the East African, as in footnote 20 hired him as a consultant for the countries informal above. sector policy and national poverty alleviation strat- egy. 37 The “big five” include elephant, rhino, buffalo, lion, and leopard. A colonial-era big game hunt was not 14 e.g., Brett, 2006. considered a success unless the hunter returned 15 Neumann, 2001; Igoe and Croucher, forthcoming. with at least one head from each of these animals. 16 Brown, 2005. These are coincidently the animals that present the biggest threat to rural communities. Crop dam- 17 McDermott-Hughes, 2006. age caused by elephants near Tarangire has made 18 For a full discussion see Igoe and Croucher (forth- it nearly impossible for local farmers to harvest coming). enough food to feed their families from year-to- 19 Translated from Swahili by the author. year. Over the past ten years, habituated elephants 20 This is very similar to the experience of Parakuyo have even begun pulling the roofs off of people’s activists who complained to district authorities houses and village storage facilities and eating the following the evictions from the Mkomazi Game relief food that has been stored within. Many farm- Reserve in 1988 (Brockington, 2002). ers have responded by seeking new places to live in other parts of Tanzania, but with little success (Igoe 21 For a full discussion see Igoe and Croucher (forth- and Croucher, forthcoming). coming). There are two sets of minutes. One, on file in Dar 38 Brockington, 2002. es Salaam, says that the village agreed to join the 39 Nelson, 2004. wildlife management area. The other, on file in the 40 See J. Lawi, “Land Wrangle Threatens Serengeti village office, says that villagers would like more Village with Loss of Millions,” IPP Media, October information before making a decision. Of course it 10th 2005, will not be easy to prove which one of the two is the http://www.ippmedia.com/ipp/guard- forged document. ian/10/10/51527.htlm, accessed February 22, 22 Translated from Swahili by the author. 2007. Grumeti Ltd. does not hunt in its exten- 23 See for instance, Igoe, 2003; Igoe, 2005. sive hunting concessions, but still pays the full complement of trophy fees to the Department of The notable exception being the recent court victory of Wildlife— about $300,000 per year, http://www. San People against the Government of Botswana, africanconservation.org/cgi-bin/dcforum/dcboard. which will allow San groups to return to their tradi- cgi?az=read_count&om=4387&forum=DCForumID3 tional homeland inside the Kalahari Game Reserve. , accessed February 22, 2007. 24 cf. Mamdani, 1996. 41 Shortly following the election of President Jakaya 25 Bonner, 1993; Neumann, 1998. Kikwete in December of 2005, a government official 26 Garland, 2006. confided to me that Grumeti was now going to have to renegotiate all its connections within the newly 27 Mbembe, 2001. reshuffled government. The following year the gov- 28 For a full discussion see Brockington and Igoe ernment finally announced that there were no plans (2006). to relocate Serengeti Headquarter, to the relief 29 http://www.iucn.org/themes/ceesp/alert.htm, ac- of park employees and the Chief Park Warden E. cessed February 23, 2007. Chacha, “No Relocation, Government Reassures SE- NAPA Workers, September 28, 2006, http://www. 30 http://conservationrefugees.org/apf, accessed ippmedia .com/ipp/guardian/2006/09/28/75311. 252 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? Rights... environment… html, accessed February 23, 2007. resettlement,” World Development 34 (10): 1808- 42 “Heartbreak on the Serengeti,” http://www7. 1830, 2006. nationalgeographic.com/ngm/0602/feature1/ Chambers R., Rural Development: Putting the Last index.html, accessed February 22, 2007 and First, Longman Publishers, Essex (UK), 1983. “Your Own Private Africa,” http://travel.nytimes. Chambers, R., “The Primacy of the Personal,” pages com/2006/09/24/travel/tmagazine/24tanzania. 241-253, in Edwards, M. and D. Hulme (eds), Beyond html, accessed February 23rd, 2007. the Magic Bullet: NGO Performance and Accountabil- 43 http://travel.nytimes.com/2006/09/24/travel/ ity in the Post-Cold War World, Kumarian Press, West tmagazine/24tanzania.html, accessed February 23, Hartford (CT), 1996. 2007 Chapin M., “A challenge to conservationists,World http://www.dailynews-tsn.com/page.php?id=3217, ac- Watch November/December,17-31, 2004. cessed February 23, 2007. Dowie M., Losing ground: American Environmental- 44 USAID, 2006. ism at the end of the Twentieth Century., MIT Press, 45 Sunba, Bergin and Jones, 2005. Cambridge (MA), 1995. 46 These assertions are consistent with the observa- Ferguson, J., Global shadows: Africa in the Neo-Liberal tions of consultants hired by USAID to assess the World Order, Duke University Press, Durham (NC), situation of the ranch in 2006. The exception being 2006. their assertion that “all stakeholders” support the Galaty, J., “Pastoral and Agro-Pastoral Migration Tan- Trust and the ranch. zania: Factors of Ecology, Economy, Ecology, and 47 http://www.landcoalition.org/pdf/kpsidconrpt. Demography in Cultural Perspective,” pages 163-183 pdf#search=%22hanang%20land%20conflicts%22, in Bennet, J. and J. Bowen (eds.), Production and Au- accessed September 2, 2006. tonomy, University Press of America, Lanham (MD), 1988. 48 cf. Galaty, 1988. Garland, E., State of Nature: Colonial Power, Neo-Lib- 49 Translated from Swahili by the author. eral Capital, and Wildlife Management in Tanzania 50 http://www.nature.org/magazine/spring2007/fea- [dissertation], University of Chicago, Chicago (IL), tures/art20038.html, accessed February 23, 2007. 2006. 51 cf. McDermott-Hughes, 2006. Goldman, M., “Partitioned nature, privileged knowl- 52 Chambers, 1996. edge: community-based conservation in Tanzania”, Development and Change. 34(5): 833-862, 2003. Heynen, N. and P. Robbins, “The Neoliberalization of References Nature: Governance, Privatization, Enclosure and Agrawal, A. and C. Gibson, “Enchantment and dis- Valuation”. Capitalism Nature Socialism, 16(1):5-8, enchantment: The role of community in natural 2005. resource conservation”, World Development 27(4): Hibou, B., “From Privatizing the Economy to Privatizing 629-49, 1999. the State: an Analysis of the Continual Reformation Alcorn, J., A.R. Kajuni and B. Winterbottom, Assess- of the State,” pages 1-46 in Hibou, B (ed.) Privatizing ment of CBNRM Best Practice in Tanzania, Final the State, Colombia University Press, New York (New Report, USAID Tanzania, Dar es Salaam, 2002. York), 2004. Bonner, R., At the Hand of Man: Peril and Hope for Afri- Igoe, J., “National Parks and Human Ecosystems,” ca’s Wildlife, Knopf, New York (NY),1993. pages 77-96, in Chatty, D. and M. Colchester (eds) Bond, P., “Neoliberalism in Sub-Saharan Africa: from Conservation and Mobile Indigenous People, Berghan Structural Adjustment to NEPAD,” pages 230-236 in Press, New York (New York), 2002. Saad-Filho, A. and D. Johnston (eds.) Neoliberalism: Igoe, J., “Scaling-up civil society: donor money, NGOs, a Critical Reader, Pluto Press,Ann Arbor (MI) and and the pastoralist land rights movement in Tanza- London, 2005. nia,” Development and Change 34(5): 863-85, 2003. Brett, J., “We sacrifice and eat less: the structural Igoe, J., Conservation and Globalization: A Study of complexities of micro-finance participation in Bolivia,” National Parks and Indigenous Communities from Human Organization 65 (1), 8-19, 2006. East Africa to South Dakota, Wadsworth/Thompson, Brockington, D., Fortress Conservation: the Preserva- Riverside (CA), 2004. tion of the Mkomazi Game Reserve, Tanzania, James Igoe, J., “Global Indigenism and Spaceship Earth: Con- Currey Publishers, Oxford (UK), 2002. vergence, Space, and Re-entry Friction.” Globaliza- Brockington, D. and J. Igoe, “Eviction for Conservation: tions 3(2):377-390, 2005. a Global Overview,” Conservation and Society 4 (3): Igoe, J., “Measuring the Costs and Benefits of Conser- 424-470, 2006. vation to Local Communities. Journal of Ecological Brown, T. ,“Contestation, confusion and corruption. Anthropology,” 10:72-77, 2007. Market-based land reform in Zambia” in Evers, S. et Igoe, J. and B. Croucher, “Poverty Reduction Meets the al,. Competing Jurisdictions: Settling Land Claims in Spectacle Nature: Does Reality Matter? Transnational Africa, Leiden, Boston (MA), 2005. Influence in Large-Landscape Conservation in North- Castree N. “Neoliberalizing nature: the logics of de- and ern Tanzania, Conservation and Society, forthcoming. re-regulation.” Environment and Planning, in press. Igoe, J. and C. Fortwangler, “Whither Communities and Cernea, M. and K. Schmidt-Soltau, “Policy risks and Conservation,” International Journal of Biodiversity national parks: policy issues in conservation and Science and Management, in press. 15, July 2007 253 Conservation and Human Rights Igoe, J., and T. Kelsall, “Introduction: Between a Rock Neumann, R., “Disciplining Peasants in Tanzania: From and a Hard Place,” pages 1-34 in Igoe, J. and T. Kel- State Violence to Self-Surveillance in Wildlife Con- sall (eds.), Between a Rock and a Hard Place: African servation,” pages 305-327in Pelosi, N. and M. Watts NGOs, Donors, and the State, Carolina Academic (eds.), Violent Environments, Cornell University Press, Durham (NC), 2005. Press, Ithaca (NY), 2001. McDermott-Hughes, D., From Enslavement to Environ- Soto de H., The mystery of Capital: Why Capitalism Tri- mentalism: Politics on a Southern African Frontier, umphs in the West and Fails everywhere Else, Basic University of Washington Press, Seattle and London, Books, New York, 2000. 2006. Sumba, D., P. Bergin and C. Jones, Land Conservation Mamdani, M., Citizen and Subject: Contemporary Africa Trusts: A Case Study of the Manyara Ranch Tanza- and the Legacy of Late Colonialism. Princeton Univer- nia. AWF Working Papers, African Wildlife Foundation, sity Press, Princeton (NJ), 2006. Washington, DC, 2005. Mbembe, A, On the Post-Colony, University of Califor- USAID, African Wildlife Foundation/Manyara Ranch nia Press, Berkeley (CA), 2001. Situation Assessment, USAID Tanzania, Dar es Sa- Nelson, F., The Evolutions and Impacts of Community- laam (TZ), undated. Based Ecotourism in Northern Tanzania, International West, P. and D. Brockington, “An anthropological Institute for the Environment and Development, perspective on some unexpected consequences of London, 2004. protected areas,” Conservation Biology 20 (3): 609- Neumann, R., Imposing Wilderness: Struggles over 616, 2006. Livelihood and Nature Conservation in Africa, Univer- West, P., J. Igoe and D. Brockington, “Parks and peo- sity of California Press, Berkeley (CA), 1998. ple: the social impacts of protected areas,” Annual Review of Anthropology 35, 251-277, 2006. Derechos humanos y conservación ambiental— errores, horrores y terrores José Sánchez Parga Resumen. Si se respetaran los derechos civiles de las personas no sería necesario recurrir a los “Derechos Humanos”, ya que estos son transgredidos, se denuncias y reclaman, cuando ya los seres humanos han dejado de ser tratados como personas y ciudadanos. Al medio ambiente le ocurre lo mismo: se denuncia su devastación en la misma medida que se vuelve irrecuperable. Frene a ambos fenómenos se adoptan posiciones defensivas y de protesta, porque falta el poder político para impedir las transgresiones tanto a los derechos humanos como a la conservación del medio ambiente. Abstract. If every person’s civil rights were respected, it would not be necessary to resort to “Human Rights”, as these are violated, denounced and claimed only when people have already ceased to be treated like persons and citizens. The same happens with the environment: we denounce the disasters when they are already well under way. In the face of both phenom- ena, defensive and protesting positions are being adopted because the political will is lacking to prevent both violations of human rights and disastrous impacts on the environment. A las víctimas, los derechos humanos o nunca les llegan o les llegan demasi- ado tarde. Hay una suerte de brecha insalvable entre los discursos densa- mente inflacionarios, interpelativos o 254 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? Rights... environment… doja terminal es que estos derechos son humanos no por otra razón sino porque son los mismos para todos; siendo precisamente esto lo que hace sus trasgresiones más impunes y uni- versales. Por eso resulta tan urgente y necesario precisar cuándo y cómo se comienza a atentar contra los DDHH de personas y pueblos. A la conservación de la naturaleza o del medio ambiente le ocurre algo muy sim- ilar a las infracciones contra los DDHH: no sólo se llega tarde para evitar sus daños y destrucciones sino también, y peor aún, para repararlos. Sólo cuando los efectos devastadores son inevitables y irremediables, suenan las alarmas ecológicas, para intentar proteger lo que todavía nos queda, pero no siempre para impedir que las fuerzas e intereses depredadores sigan actuando. Foto 1. A las víctimas, los derechos humanos o nunca les llegan o les llegan demasiado tarde. Muy curioso que exactamente lo mismo (Cortesía Grazia Borrini-Feyerabend) suceda con la “lucha contra la pobre- declamatorios sobre los “Derechos Hu- za”: una guerra equivocada y perdida manos” (DDHH), y la poca eficacia para de antemano, pues lo que no se puede, garantizar su respeto o su ejercicio. La porque no se quiere, es evitar la pobre- paradoja es que de los Derechos Huma- za: es decir el colosal enriquecimiento nos sólo somos sujetos cuando nos con- de unos pocos a costa del masivo vertimos en víctimas de su trasgresión; empobrecimiento de muchos. Costaría es decir casi de manera póstuma. Ha- mucho más evitar la pobreza y la de- bitualmente los hombres o ciudadanos, strucción de la naturaleza que todo el sujetos de derechos civiles, sólo ex- dinero invertido y todavía disponible traordinariamente se vuelven sujetos de para luchar contra el “efecto inverna- derechos humanos. Por consiguiente no dero”, contra la pobreza o contra todo habría mejor defensa y protección de atentado a los DDHH.1 los derechos humanos que evitar tales situaciones extremas, cuando las perso- Por muy aparentes que parezcan las nas, por el simple hecho de encontrarse diferencias entre estos fenómenos, son despojados de sus derechos civiles, demasiado similares y actuales como resultan ya víctimas de una trasgresión para no tener algo en común: la activi- a los derechos humanos. dad depredadora del moderno desarrollo del capital y del mercado. Es tan voraz Si el Estado y el Derecho Internacio- la actual producción de riqueza hoy en nal garantizaran los derechos y lib- el mundo, que no sólo genera una con- ertades civiles e impidieran su despojo stante y colosal masa de miseria, sino o trasgresión, nadie necesitaría ser que además tiene un irreparable efecto sujeto de derechos humanos. La para- devastador en la naturaleza, y en los 15, July 2007 255 Conservation and Human Rights derechos humanos de los hombres.2 (incluso los más redistribucionistas y progresistas como Amartya Sen), crean Derechos humanos y que la desigualdad es resultado de una desigualdades sociales comparación y de una diferencia entre Los derechos como la desigualdad son personas, y hayan olvidado completa- una relación social. Pero no se podrá mente la obra de Rousseau Sobre el comprender que la desigualdad social origen de la desigualdad. Olvido nada es no sólo una infracción contra los inocente, ya que encubre la naturaleza DDHH sino la trasgresión más radical socio-política de la desigualdad y su y total contra ellos, mientras se siga atentado contra los DDHH.3 reduciendo la desigualdad a simples comparaciones y diferencias económi- El origen de la desigualdad se establece cas, de riquezas o recursos materiales. (en otras palabras, toda desigualdad En contra de toda una tradición que se se origina) con toda eliminación de lo remonta a Aristóteles, pasa por Maqui- común por medio de una apropiación avelo y culmina en Rousseau, según privada. No porque la propiedad pri- la cual la desigualdad es una relación vada signifique una diferencia entre social entre personas, grupos sociales o quienes poseen y quienes no poseen, pueblos, ya desde el liberalismo hasta sino porque al eliminar lo común se la actual sociedad de mercado se ha liquida la igualdad. Ya que lo común confundido la desigualdad, y se ha en- sólo es posible entre iguales, y al no cubierto su sentido original y originario, existir nada común entre desiguales, convirtiéndola en una se excluye toda posibilidad de relación, …toda desi- mera comparación comunicación e intercambio entre el- los. Esto implícitamente constituye gualdad se ori- económica entre per- un desreconocimiento efectivo de su gina con toda sonas y grupos que poseen o no poseen condición humana; en otras palabras eliminación de riquezas o recursos, la desigualdad es una negación o su- lo común por entre quienes tienen presión de la misma relación social entre personas.4 Un segundo grado de medio de una más o menos o nada. desigualdad se establece, como con- apropiación pri- En una sociedad de secuencia del anterior, con las rela- vada.. […] porque mercado, donde ya ciones de sometimiento, dominación y explotación entre personas o grupos al eliminar lo no es politically cor- desiguales. El nivel extremo o termi- común se liquida rect pensar y tratar políticamente nada, y nal de la desigualdad, expresado en la igualdad. Ya menos aún los mismos la fórmula del amo— esclavo (que que lo común sólo hechos políticos, la después de Rousseau elabora Hegel), desigualdad en cuanto se produce cuando la dominación y es posible entre explotación terminan por despojar a realidad y relación iguales… profundamente políti- los seres humanos de su condición de ca sólo puede y debe ser pensada y personas, de sus derechos y libertades, tratada económicamente; ya que sólo reduciéndolos a la condición de cosas, es politically correct pensar económica- convirtiéndolos en mercancías en una mente cualquier realidad. sociedad de mercado, objeto de oferta y demanda, de consumo y destrucción. Nada casual por ello, que tanto la opinión pública como los cientistas Según esto, la trasgresión de los sociales y más aún los economistas DDHH en cuanto despojo de la con- 256 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? Rights... environment… dición humana de los hombres, o de rores ambientales y contra los DDHH: la condición de personas de los seres el mercado no tiene conciencia y su humanos, corresponde siempre y de lógica nada tiene de razonable. manera equivalente la trasgresión de a un progreso de la Derechos humanos y medio los DDHH […] cor- desigualdad; hasta ambiente responde siempre y el extremo que el ser La destrucción de la condición humana de manera equiva- humano despojado de su condición de perso- de las personas, hombres y mujeres, lente a un progreso na es reducido a la de de su reducción al estado de cosas, no sólo es análoga a la devastación de de la desigualdad; objeto o cosa y mer- la naturaleza o del medio ambiente, hasta el extremo cancía. Los hombres sino que además responde a una idén- no son dominados tica causa; a las mismas fuerzas y a que el ser humano y destruidos porque los mismos intereses del mercado. En despojado de su son esclavos, sino al primer lugar, también en este caso se condición de per- contrario: es porque trata de un movimiento de apropiación sona es reducido a no poseen ni se les y de privación privatizadora de algo reconoce la condición fundamentalmente común y compar- la de objeto o cosa humana, de personas, tido, espacio y objeto de los intercam- y mercancía. que pueden ser con- bios y relaciones entre los hombres. sumidos y destruidos, Por eso la devastación de la naturaleza como si fueran cosas. Por consiguiente, y del medio ambiente no sólo quiebra una sociedad de mercado, donde nada y vuelve hostiles las relaciones ente puede ser común y todo ha de ser pri- los hombres sino que profundiza las vado, objeto de oferta y demanda, se desigualdades entre ellos; sus mutuos funda en la desigualdad y se reproduce sometimientos y dominaciones. produciendo desigualdad, y atentando constantemente contra la condición La relación del hombre con el medio humana de hombres y mujeres. ambiente ha tenido a lo largo de la historia la forma de una “producción Es obvio que los genocidios, los terror- destructora”.5 Pero este proceso en la ismos de Estado, las torturas judiciales actual fase del de- y policiales ejercida sobre prisioneros, Nada más sarrollo capitalista, las violaciones de niños o prostitución debido al colosal ilusorio que infantil son todos casos extremos por desarrollo de las reducir todos estos más o menos frecuentes que sean, fuerzas productivas horrores contra pero a estos casos extremos se llega (nucleares, genéticas, cada vez con más frecuencia por una los DDHH a una tecnológicas...), ha progresiva desigualdad y progresivo alcanzado así mismo cuestión de ética despojo de los derechos civiles primero extraordinarios efectos y humanismo; y después de los derechos humanos. destructivos. Con la Nada más ilusorio que reducir todos detrás de ellos, y particularidad de que del beneficio que estos horrores contra los DDHH a una estos efectos destruc- cuestión de ética y humanismo; detrás tivos adquieren un reportan, está de ellos, y del beneficio que reportan, carácter tan irrevers- la voracidad del está la voracidad del mercado. ible como irremedia- mercado ble, que no pueden ya Por eso nada más erróneo que acusar ser compensados por los efectos pro- de irracionales e inhumanos los hor- ductivos. Nunca antes el poder destruc- 15, July 2007 257 Conservation and Human Rights tor hombre sobre la tierra había sido tan extraordinariamente superior a sus poderes productivos. Este fenómeno sólo ha sido posible a causa de la apropiación privatizadora del medio ambiente por parte de dichas fuerzas productivas del mercado; por una creciente y masiva acumulación de recursos energéticos de la naturaleza. Y en la medida que el medio ambiente ha sido objeto de una creciente concen- tración y acumulación por parte de las fuerzas productivas y del mercado, de Foto 2. Hoy el consumo del medio am- manera simultánea el medio ambiente biente y de dichos recursos energéticos tiene costos militares y etnocidiarios. ha ido dejando de ser un bien común, (Cortesía Christian Chatelain) compartido, objeto de una participación más o menos equitativa. Y por consigu- sido despojados de lo que era común. iente se ha vuelto presa de una voraz Tal relación de desigualdad adopta la devastación. Más aún, en cuanto que forma de una dependencia y someti- el medio ambiente, la naturaleza y sus miento proporcionales a la necesidad recursos naturales, han dejado de ser de sobrevivencia que supone el acceso compartidos, en lugar de generar vín- a lo que se convierte en propiedad culos y relaciones de intercambio entre privada. Esta situación se agrava y se los hombres, grupos sociales y pueblos, vuelve mortífera, cuando la propiedad se convierten en un objeto de disputa privatizada es consumida irreparable- y conflicto, de luchas encarnizadas, de mente sin posible reproducción. En guerras de “destrucción masiva”; de este sentido la destrucción del medio terrores terroristas y antiterroristas. ambiente tiene un efecto indirecto y Muy cínico o miope sería no relacionar secundario en la lenta e invisible de- en la actualidad el terrorismo ecológico strucción de la humanidad. con el terrorismo bélico y militar. La fórmula, programa o slogan del De esta manera la “devastación” del desarrollo sostenible o sustentable, medio ambiente y sus recursos en- responde a una ideología de com- ergéticos no es más que la contraparte pensación, que pretende encubrir el de una devastación geopolítica. Hoy el carácter insostenible del modelo de consumo del medio ambiente y de di- desarrollo impuesto por el actual creci- chos recursos energéticos tiene costos miento económico, basado en una sos- militares y etnocidiarios. Antes la dev- tenida concentración y acumulación de astación de la naturaleza se limitaba a riqueza. El mercado capitalista actual la devastación de un hábitat; actual- ha transformado el natural e ilimitado mente en cambio acarrea la liquidación deseo de poseer del hombre en un de los mismos pueblos que la habitan. modelo de sociedad, el cual funciona (no racional pero sí) irrazonablemente La apropiación por parte de un poder como un automatismo devastador e interés privado de lo que era común, tanto del medio ambiente como de la establece una relación de desigualdad misma condición humana del hombre. entre los propietarios y quienes han 258 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? Rights... environment… La única manera de frenar dicho cre- póstumos o demasiado tardíos, quienes cimiento económico es forzar (políti- promueven y promocionan los derechos camente) procesos y procedimientos humanos y la conservación del medio distributivos, que limiten su lógica de ambiente, los organismos encargados acumulación y concentración (esen- o responsables deberían abandonar sus cialmente no-distributiva). No se trata actuaciones y disposiciones defensivas de introducir un decrecimiento, lo que o de mera denuncia de los atentados y sería algo contradictorio, sino de im- transgresiones en contra de ellos, para poner al modelo un mecanismo con- ejercer un poder y unas facultades, trario a sus efectos tanto acumuladores que eviten tales atentados y transgre- y concentradores de riqueza como siones. generadores de desigualdades y devas- tación del medio ambiente. Distribución Esto significa un desplazamiento de la y redistribución comienzan restaurando problemática de los DDHH y del medio unas relaciones de igualdad, de inter- ambiente desde los ámbitos ético-mo- cambio, que además limitan la lógica y rales o exclusiva- Incluso Aristóteles las fuerzas de la acumulación concen- mente judiciales, tradora de riqueza. para situarla en el consideraba que el campo específica- hombre y la sociedad Se trata de un problema fundamental- mente político, y humana no hubieran mente político, ya que hoy son precisa- donde los poderes mente los países subdesarrollados, los políticos demás de podido existir ni más pobres o “emergentes”, los que apoyar los judicial- tampoco podrían más buscan y requieren un crecimiento es se someten a el- sobrevivir “sin algo la devastación de económico, aún a costa de las desigual- los. De lo contrario seguirá sucediendo en común”… Y sin la naturaleza y del dades y devastación lo que ha ocur- embargo hoy el medio ambiente ambiental que produ- rido hasta ahora: o mercado […] asalta no sólo quiebra y cen a su interior. El juicios y sanciones lo más común e caso chino o de la In- póstumas y tardías inalienable: el medio vuelve hostiles las dia son un ejemplo. o una doble medida relaciones ente los Lo que representa judicial de conde- ambiente hombres sino que la situación extrema nas, dependiendo de quienes tienen profundiza las de la desigualdad y o no tienen el poder sobre el orden devastación: cuando jurídico internacional. Así, genocidios desigualdades entre los mismos hombres cometidos por unos (norteamericanos) ellos; sus mutuos y pueblos confunden no son judiciables a diferencia de los sometimientos y las desigualdades cometidos por otros (tras haber sido dominaciones que sufren con las diferencias económi- derrotados). Idéntica situación afecta al medio ambiente: más que medidas cas, y creen que reduciendo éstas sería defensivas y denuncias tardías sería posible eliminar aquellas; cuando en re- necesario atajar y atacar las causas y alidad lo que ocurre es dramáticamente amenazas, cuando surgen y no cuando todo lo contrario. sus daños ya son irreparables. Conclusiones: Se trata de redefinir y restituir lo que ¿póstumas o postreras? es común entre los hombres sin necesi- Si eso es precisamente, lo que no dad de incurrir en comunismo alguno. deben ser los DDHH, ni postreros ni Incluso Aristóteles, para quien era peor 15, July 2007 259 Conservation and Human Rights demasiado en común que menos en tribución de sus efectos en el Norte y común, consideraba que el hombre y la en el Sur: mientras que la devastación sociedad humana no hubieran podido ecológica se pro- existir ni tampoco podrían sobrevivir duce y aprovecha Nada revela mejor “sin algo en común”.6 Y sin embargo en el Norte, se tanto los presupues- hoy el mercado, para el que todo ha sufren en el Sur tos como los alcances de ser privado, objeto de oferta y de- sus más nefastas manda, y nada soporta común, asalta consecuencias; terroristas del mer- lo más común e inalienable: el medio las víctimas de los cado, que su doble eje ambiente. DDHH se acumulan de devastación: el de y concentran en el la igualdad entre los El problema en ambos casos es que Sur, pero sus cau- nunca los poderes políticos fueron tan sas y consecuen- hombres y su con- débiles y se mostraron tan sometidos a cias benefician al dición humana, y el las fuerzas de otros poderes no políti- Norte; la riqueza de su medio ambi- cos que los atraviesan. Y en el caso de producida por acu- ente. […] este terror- los DDHH como en la devastación del mulación y concen- medio ambiente hay que partir de un tración en el Norte ismo del mercado no principio fundamental: en el mundo genera exclusión y sólo se ha convertido no hay buenos y malos sino quienes empobrecimiento en el nuevo orden tienen el poder y la fuerza para ejer- en el Sur; el crec- cerlo sin control, y quienes carentes de imiento económico global del mundo, fuerza y poder sufren las consecuen- allí arriba cor- sino que además cias. A ello hay que añadir el rasgo responde inequi- acusa y combate actual de que nunca las víctimas de los dades aquí abajo; como terroristas to- DDHH y la devastación del medio ambi- las defensas ter- ente fueron tan rentables y produjeron roristas del Norte das las resistencias beneficios tan colosales. se vuelven ataques o ataques a dicho antiterroristas en el ordenamiento. Nada revela mejor tanto los presu- Sur; y mientras el puestos como los alcances terroristas Norte corre riesgos y gana con ellos, el del mercado, que su doble eje de dev- Sur los sufre. astación: el de la igualdad entre los hombres y su condición humana, y el Y es que el mundo supuestamente cada de su medio ambiente. Pero lo peor, lo vez más globalizado nunca fue tan dif- más difícil de tratar y resolver, es que erente visto desde el Norte como lo es este terrorismo del mercado no sólo visto desde el Sur. se ha convertido en el nuevo orden José Sánchez Parga (jsparga@yahoo.com.ar) es doctor global del mundo, sino que además en filosofía, antropólogo, profesor universitario, investigador acusa y combate como terroristas to- del Centro Andino de Acción Popular, ex-Director del Centro de Estudios Latinoamericanos (PUCE) de Quito y primer das las resistencias o ataques a dicho Director de la revista Ecuador Debate. ordenamiento. Notas Finalmente, este complejo fenómeno, 1 Por ejemplo, el Alcalde de la ciudad de Quito, en el que convergen DDHH, medio Capital del Ecuador, en funciones en 2007 ha de- ambiente, concentración y acumulación clarado “la lucha contra la contaminación ambien- tal”, demostrando así su incapacidad y falta de vol- de riqueza y crecimiento económico, untad política para evitarla; si quisiera y pudiera ordenamiento global del mundo, se impedirla no necesitaría de esa lucha imaginaria divide brutalmente en una desigual dis- contra ella. 260 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? Rights... environment… 2 En el actual modelo de desarrollo basado en la 5 Schumpeter, 1969. concentración y acumulación de capital, el crec- 6 Política, II,i, 1260b. imiento no es posible sin creciente inequidad: cfr. Sánchez Parga, 2005. 3 En su obra Inequality Reexamined, Amartya Sen Referencias (1992) no tiene una sola referencia al texto clásico Sánchez Parga, J. “Sin (creciente) desigualdad no hay de Rousseau. crecimiento económico (posible)”, en Socialismo y 4 Que la desigualdad social no es posible en una Participación, n. 99, Lima, 2005. sociedad basada sobre lo común (koinon), todo lo Schumpeter, J., Capitalisme, socialisme et démocratie, que puede ser compartido, y sobre el vínculo social Payot, Paris, 1969. de una tal participación, constituye un principio Sen, A., Inequality Reexamined, Clarendon Press, fundamental de la Política de Aristóteles. Por eso lo London, 1992. común es lo primero que destruye la desigualdad. Parks and people in North America— one hundred and thirty five years of change Robert G. Healy Abstract. The three large and diverse countries that make up the North American continent— Canada, Mexico, and the United States — differ substantially in terms of how their protected areas have been selected and managed, how indigenous and other local people have been treated, and how government policy toward local populations has changed over time. This paper traces the history of park creation and management in North America, with an em- phasis on when and why the “anti-resident” policy in Canada and the US began to change, and the consequences that have come from that change, as well as the issues that Mexico has faced as a result of its long tolerance for human settlement in and around its protected areas. The paper also raises questions regarding the putative property rights (in A.K. Sen's terminology the "entitlements") that residents of park gateway communities establish as the park and the communities grow up together. United States two years after the creation of the US When the land that would become Yel- Park Service. Nearly all of the “crown lowstone National Park was set aside jewels” of the US national park sys- by the US government in 1872, one tem, including Yosemite, Mesa Verde, of the first acts of active management Olympic and Glacier N.P., are on former was to use the army to remove squat- Indian land, and their continued use of ters and stop hunting by migratory the land was strictly prohibited by park American Indians.1 A contingent of the managers.2 When Glacier Bay National US cavalry provided law enforcement in Monument (Alaska) was designated in the park until it was removed in 1918, 1925, considerable attention was paid 15, July 2007 261 Conservation and Human Rights over time.4 Although the first century of US park history was marked by a policy of excluding residents from park units, tourists were welcomed. Many man- agement actions were taken to encour- age visitors, including allowing railroad spurs and roads into the most scenic parts of the parks, permitting construc- tion of elaborate hotels within park boundaries, and training park rangers not only to ensure the safety of visitors but also to provide educational and in- terpretive programs. As a result of this Picture 1. Sloan Canyon (Nevada) has policy, park tourism boomed. Visitation been called the “Sistine Chapel” of Ameri- to national parks rose especially rap- can Indian rock art. It is less than one mile from the expanding suburbs of Las idly after World War II, as widespread Vegas. (Courtesy Robert Healy) automobile ownership combined with improved highways, higher incomes, to making sure the boundaries ex- and longer paid-leave time to make a cluded many mining claims and areas park vacation, particularly in the brief of interest to timber interests, but the summer season, one of the most popu- subsistence land uses of the native lar activities for American families. Tlingit people were simply not part of National park visits totaled 37 million the debate.3 in 1951, but had climbed to 172 million by 1970. The policy of removing humans from parks persisted into the 1930s, when Because hotels and eating facilities small farmers were ousted from the within the parks could not accommo- Although the new Great Smoky date the visitor hordes, tourist-oriented first century of Mountains National “gateway communities” sprang up at or Park, the Blue Ridge near the entrances of many of the most US park history Parkway, and Shenan- popular parks: Gatlinburg, Tennessee; was marked by a doah National Park. West Yellowstone, Wyoming; Flagstaff, policy of exclud- In most cases, park Arizona; Springdale, Utah. Residents of ing residents managers took pains to remove old farmhouses these communities developed an eco- from park units, and allow fields to re- nomic interest in how the parks were managed— they wanted the parklands tourists were turn to forest, erasing to remain attractive, but they did not welcomed. all traces of past hu- support restrictions on the numbers of man use of the land. In tourists nor the recreational uses they Everglades National Park, conceived in wanted to pursue. the 1930s and designated in 1947, a small population of Seminole Indians Most Americans were extremely proud was persuaded to move to reservations of their system of national parks. How- outside park boundaries, and their ever, groups of environmental advo- traditional hunting, fishing and other cates, often organized at a state or activities inside the park were curtailed local level, wanted more parks. They 262 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? Rights... environment… pointed out that very few of the exist- boundaries.5 At present, of 150,000 ing parks were near large cities, limit- acres in the park, only 22,000 are ing access by poor and minority peo- owned by the National Park Service. ple. They also noted that almost none Another 55,000 acres are owned by of the pre-1960 parks protected the the California state parks department, nation’s extensive beaches or barrier local governments or land conservan- islands. Creating new parks close to cies. Nearly half of the land within park cities and along attractive stretches of boundaries belongs to private owners. coastline was, however, quite different The use of the private land is subject to from creating them from remote fed- regulation by local governments, and eral lands or buying out near-bankrupt in some cases, the California (State) mountain farmers. Many of the most Coastal Commission. However, this ar- attractive areas for park expansion rangement does pose challenges for already were occupied—often by land- conservation objectives; the park’s owners who were prosperous, politi- 2002 management plan points out that cally mobilized, and very unwilling to “human construction and intrusion have move. By the 1960s, it became clear resulted in the loss or degradation of even to ardent park advocates that resources, including threatened and en- the view that human settlement was dangered species habitat.”6 The report completely inconsistent with good park also notes threats by development to management would have to change if cultural resources, as well as fire, flood new park units were to be created. and earthquake dangers to structures built within the park. Nevertheless, very Creation of Cape Cod National Seashore high land prices and opposition to use in 1961 specifically allowed some lo- of eminent domain by the Park Service cal residents to permanently occupy almost guarantee that the Santa Monica By the 1960s, residential parcels mountains park will remain a mixture of it became clear within park bound- aries, subject to public and private land. even to ardent federal and state After the 1970s, increasing pressure park advocates land use controls. was also experienced by the Park that the view that Parks following the Service to recognize rights of Native Cape Cod model Americans.7 For example, in Alaska’s human settlement are often termed Glacier Bay, changed from a National was completely “greenline parks” in Monument to a National Park in 1980, inconsistent recognition of the the use rights of the Tlingit had never with good park fact that all activity within the boundary been defined. Sometimes their hunting and fishing activities were allowed by management would (the “greenline”) Park managers, at other times prohib- have to change if is regulated, even ited. The Park Service tried to make a new park units were though it is not distinction between subsistence use of to be created. necessarily owned by the author- seals, fish and other wildlife resources, which would be permitted, and com- ity responsible for park management. mercial use, which would be prohibited In 1978 the Santa Monica Mountains for native and non-native alike. How- National Recreation Area, one of several ever, this distinction has proved very new “urban national parks” in the US, difficult in practice, as Tlingit wildlife envisioned a preponderance of private harvesting has been part of the cash (though regulated) land within park economy for at least a century. More- 15, July 2007 263 Conservation and Human Rights over, even subsistence use has run by the railroad. Over time tourism, into objections from ecologists that it strongly promoted by long-time Domin- exceeds the carry- ion Parks Branch After the 1970s, ing capacity of some director James B. Through most of increasing wildlife stocks.8 Harkin, became Canada’s history of pressure was more and more im- park creation, the in- experienced by the Another complex is- portant in Canada’s sue that arose in the slowly growing park terests of aboriginal Park Service to 1970s was Native system. In 1930, a people were given no recognize rights of American religious new National Parks special consideration Native Americans. use of the parks. Act prohibited hunt- This was addressed ing, mining and most timber cutting in by Congress in the American Indian the national parks. Religious Freedom Act of 1978, but Native American organizations argue Through most of Canada’s history of that protection of some sacred sites is park creation, the interests of aborigi- inadequate even when they are includ- nal people were given no special con- ed within national parks. For example, sideration. For example, designation of there is a long-running controversy the Algonquin Provincial Park in Ontario at Devil’s Tower National Monument in 1893 (a park of world-class size and (Wyoming). The huge rock formation importance) included prohibition of is popular among expert rock climbers, hunting, fishing and trapping by native and the National Park Service features people. “The failure to consider aborigi- a climber on the park’s web page. How- nal rights [in the Algonquin Park] says ever, the Park Service also notes that Killian “contributed to a sense of injus- “It appears to many American Indians tice that would smoulder for decades.”11 that climbers and hikers do not respect Wood Buffalo National Park, in Alberta, their culture by the very act of climbing is Canada’s only national park with “a on or near the Tower.”9 The solution, long standing tradition of native sub- not satisfactory to many Native Ameri- sistence use and involvement.”12 But cans, is a voluntary closure to climbers even there “during the first 50 years during the month of June, when certain of its existence, government officials sacred rites take place. Canada In its early national parks, Canada had a much more tolerant policy toward resource exploitation (mining, logging, grazing) than did the United States.10 However, tourism, particularly when managed by the new and powerful Canadian Pacific Railroad, was given priority. Creation of Canada’s Rocky Mountain National Park in 1885 was Picture 2. On the Canadian side of Niagara directly related to the government’s Falls, enormous crowds of visitors are desire to block individual land claim- efficiently managed by the Niagara Parks ants who might develop the local hot Commission, a self-supporting parastatal springs in a chaotic manner, rather corporation created by Ontario in 1885. than in the organized fashion preferred (Courtesy Robert Healy) 264 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? Rights... environment… managed WBNP according to what for 47 kilometers along the ocean coast they perceived as the best interests of Vancouver Island. The Quu’as West of indigenous peoples” and rules were Coast Trail Group, composed of people made “with little consultation with the from the three local First Nations com- native population and enforced without munities, provides trail maintenance, much consideration of traditional har- visitor orientation, and “Trail Guard- vesting practices.”13 ians” who do foot patrols looking for trail problems and injured hikers. The Recognition of the land rights of indig- Parks Canada contract with the Trail enous people (First Nations) in Canada Group is funded by a US$80 fee paid was given a major boost by a 1973 de- by all overnight hikers.15 cision by the Supreme Court of Canada (“Calder Case”) in which the Nisga’a Another example of co-management is people of British Columbia asserted the 1993 agreement of Parks Canada that aboriginal land titles had not been to collaborate with the Haida nation in extinguished by historical actions of managing Gwaii Haanas National Park the Canadian government. Although Reserve and National Marine Reserve. the Nisga’a actually lost the case 4-3, Gwaii Haanas is a portion of a large the fact that three justices agreed with island lying 100 miles off the central their position created a movement to British Columbia coast. The agreement re-visit the question of First Nations set up an Archipelago Management land rights.14 The impetus increased Board composed of two representatives with the 1977 report of the Berger of the Government of Canada and two Commission, an inquiry into a proposed from the Haida Nation.16 It specifies pipeline across native lands in the far resource use rights for the Haida, pro- north that called for greater attention vides for identification and protection of to the people affected, and the Consti- sacred sites, and gives encouragement tution Act of 1982, which gave explicit to Haida to become park employees. status to aboriginal rights. This management scheme (as well as the fact that Gwaii Haanas is lightly vis- The combined impact of these legal de- ited and quite pristine) helped make the velopments was to make Parks Canada park rank #1 of 55 Canadian and US much more will- national parks in a magazine poll that Various legal develop- ing to negotiate asked tourism experts to rank areas on ments made Parks with First Nations attractiveness and sustainability.17 Canada much more and to include willing to negotiate them in planning and sometimes Native rights have also become very important in the designation of new with First Nations in on-the-ground parks in Canada. Unlike the United and to include them management. One States, which has to date created in planning and of the most inter- national parks on an ad hoc basis, esting examples Canada has in recent years been fol- sometimes in on-the- of what has come lowing a deliberate plan that envisions ground management. to be called “co- new parks in biomes not represented management” is in in the current system. However, sev- Pacific Rim National Park (British Co- eral of the areas on the Parks Canada lumbia). The Park’s main feature is the wish list are located in areas where West Coast Trail, a rugged and some- government has not yet concluded times dangerous footpath which extends a land treaty with one or more First 15, July 2007 265 Conservation and Human Rights Nations groups. The size and boundar- the twin volcanoes (one active and one ies of the park thus become part of a dormant) above the city of Colima. negotiation involving On the other hand, some were essen- Native rights land in other areas, tially urban recreation areas, such as have become very cash settlements, and the streamside park that runs through important in other considerations. downtown Uruapan, Michoacan, today New major parks (all in a bustling city of 625,000 people. the designation the far North), such as of new parks in Kluane, Vuntut, Tuktut- Like the United States, and unlike Canada. Nogait and Auyuittuq, Canada, Mexico prohibited timber cut- have been created as ting in its national parks. But unlike part of native claims settlements.18 the other two North American nations, The Canadian government is currently Mexico did virtually nothing to either negotiating a land settlement with the set up a land management system or Dene people of the Northwest Ter- to promote tourism. There were lim- ritories that would include a park in a ited recreational facilities in some of huge pristine area, four times the size Mexico’s urban and historical parks, of Yellowstone, where the boreal forest but the “crown jewels” were simply meets the Arctic tundra.19 not promoted as tourist destinations, nor were tourist facilities provided. The Mexico great park hotels built by railroads in The park history of Mexico is quite dif- Canada and the US were never created ferent from that of Canada or the US. in Mexico’s parks. Even today, most of Mexico’s first protected natural area the large and dramatic nature parks in was established very early (first given Mexico may be featured in photographs protection in 1876, declared a national on tourist brochures, but arranging to park in 1917) but, unlike parks in Can- actually visit them can be quite dif- ada and the United States, it did not ficult. (Mexico’s magnificent archeo- protect a large “natural wonder” distant logical sites, managed by the National from most of the population. Rather, Institute for Archeology and History, a the Desierto de los Leones National separate agency than the one manag- Park protected a 1900 hectare area of ing natural areas, tend to be strictly slopes and forests just outside Mexico protected and have well-developed City, which served as a water supply facilities for tourists, who visit them in area and site for urban recreation. Not enormous numbers.) until the 1930s did Mexico experience a burst of park designation when reform- Another difference between Mexico’s ist president Lazaro Cardenas, advised early national parks by pioneering Mexican forester Miguel and those in Canada Much of the land Angel de Quevedo, created 40 new and the US is that nominally in national parks. Many of these areas they were not created national parks were historical or archeological sites, on federal land, but often included large was actually but a few were “true national parks”.20 For example, several of the new parks areas of private prop- owned by protected the magnificent volcanoes of erty. Particularly after communal bodies, Central Mexico: Ixtaccihuatl and Po- President Cardenas’ called ejidos. pocatepet, just outside Mexico City; historic and immense- Orizaba in Veracruz; Nevado de Toluca, ly popular program of breaking up large near the city of the same name; and rural estates and giving property rights 266 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? Rights... environment… to landless peasants, much of the land make use of plants or animals in cultur- nominally in national parks was actu- ally specific ways. Ironically, the lands ally owned by communal bodies, called occupied by some of Mexico’s most ejidos. Simonian observes that “since traditional and land-dependent groups— Mexican law prohibited the buying of the Raramuri of Copper Canyon (Chi- communal lands, public officials had to huahua), the Huicholes (remote areas of enlist the support of peasants in pro- Jalisco and Nayarit) and the Lacandon tecting their resources within national Maya (Chiapas)— were not included in parks. Despite a combination of per- Mexico’s pre-1970 park system. suasion and fines, cooperation from the ejidos was not always forthcoming.”21 Lara Plata notes that of several Mexi- In a review of the state of Mexico’s can national laws protecting natural re- national parks, Vargas Marquez docu- sources, none “gives particular empha- mented the sorry condition of virtually sis to the right of indigenous people to every unit in the park system.22 Of 55 manage their resources or participate park units studied by Vargas Marquez, in the planning, administration and 29 had little to no on-the-ground man- management of the protected natural agement. Seventy percent had human areas, [and] by no means specifies in settlements inside them. In the major- a formal way their opinion regarding ity of the parks, Vargas found illegal its establishment when it takes place timber cutting, hunting, and grazing, near or within their territory.”23 How- and found that wildlife was scarce. ever, he notes that indigenous cultures, which he considers highly endangered Many of the ejido residents of Mexico’s themselves, depend on use of natural parks could be considered indigenous resources. This spatial coincidence of people by virtue of their long residence indigenous people and localized re- in a particular area. However, relatively source dependence could provide the few practice earth-centered religions or conditions for future protected areas that might support both natural values and endangered cultures. In the mid-1970s, Mexico began to set up a system of biosphere reserves, selected to preserve representative ecosystems.24 Several of the largest reserves were in such remote, economi- cally unpromising parts of the country that their human population was quite small. However, some do follow the usual biosphere reserve model of in- corporating development programs for local people into the management plan for the area. One of the most successful Picture 3. Dwelling of a Raramuri Indian is Sian Ka’an, a 1.3 million acre reserve in Mexico's Barancas del Cobre (Copper along the Caribbean coast. Set up in Canyon). The Raramuri fled to this remote 1986, it contains about 2,000 inhabit- area centuries ago to avoid the Spaniards. ants. Fortunately for reserve manage- They now must deal with rapidly increas- ment, almost all are relatively prosper- ing tourism. (Courtesy Robert Healy) ous lobster fishers, who primarily use 15, July 2007 267 Conservation and Human Rights the offshore area and have made only Rights claims and the future limited, agricultural use of the interior of of Parks and people in North the reserve. Programs run by Mexican America NGOs and financed by international or- The narrative offered above demon- ganizations have tried to give the local strates that the interaction of park cre- residents an economic interest in keep- ation and management ing the reserve pristine, for example with various rights of One of the most by providing boat tours to tourists from striking features people has a long his- the booming Cancun corridor just to the tory in North America, of property rights north.25 There has also been a program and one which differs to increase agricultural productivity so claims in and from place to place as to avoid slash and burn practices.26 around PAs is and which has changed greatly over time. In their diversity. Less successful has been the reserve set general, the direction of up in 1987 to protect the habitat of the change has been toward greater formal Monarch butterfly. It occupies a densely recognition of human rights, whether populated forested area in central Mex- the people involved are neighbors, in- ico, where land belongs to ejidos that holders or displaced persons. Technical- had heretofore made their living by tim- ly, the human rights involved are prop- ber cutting. The government has tried erty rights—the right to benefit from the to involve local people in tourism—which use of land, wildlife and other natural is booming. But most of the benefits are resources and the attendant right to de- being received by only one of eight eji- cide when and how those rights will be dos.27 The ejidos not receiving tourists, exercised. But in many cases some or but subject to controls, have created all of these rights have no legal recogni- an organization that seeks to have their tion. They can perhaps be better viewed land excluded from the reserve. Mean- as what A. K. Sen has termed “entitle- while, illegal logging continues, severely ments”—moral or political claims to use damaging the butterfly habitats.28 resources for one’s own benefit.29 New management models, including Mexico’s biosphere reserves, Canada’s co-man- agement areas, and the greenline parks of the US, are all intended to recognize either legal or moral property rights claims while still providing adequate protection to the park’s natural and sce- nic resources. One of the most striking features of these property rights claims is their diversity. Some involve rights of indig- enous people, such as the First Nations in Canada. Others involve rights claims Picture 4. Gros Morne, a Canadian Na- by non-indigenous, and often impov- tional Park in Newfoundland. The small gateway community near the entrance to erished, people with long associations this rugged park has moved from depend- with the land, such as ejido residents ence on a declining fishing industry to an in Mexico whose farm or forest lands expanding tourism sector. had been incorporated into national (Courtesy Robert Healy) parks by decree. Still others are claims 268 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? Rights... environment… by people living in gateway communi- ger term context of park management. ties whose economic existence depends In the next several decades, the na- on a park. Some property rights claims tional parks of all three North American involve a mix of people. For example, countries are likely to face a common creation of Cape Cod National Seashore set of serious threats. They include: affected landowners whose families had demands for new types of recreational been in the area since the 17th cen- uses; overuse of certain park areas; tury and others who had bought their air, water and even light pollution beachside homes only a few years ago. coming from beyond park boundar- Some rights claimants are very poor, ies; invasive plant and animal species; others quite wealthy. Even the claims problems with reintroduction of native of indigenous people can involve dilem- animals; and climate change. This last mas. For example, do traditional hunt- threat, which may be the most serious ing and fishing rights extend to people of all, requires some elaboration. using modern harvest methods? The species and ecosystems protected It is frankly impossible to come up with in parks, which in many cases contrib- blanket statements about which rights ute greatly to the areas’ attractiveness claims should be validated and which for tourism and outdoor recreation, rejected. Moreover, depend on specific combinations of The question of the question is of- temperature and rainfall. If future whose property ten rendered moot if global climate change affects local con- rights claims the persons with the weakest moral claims ditions, the ecological characteristics of the park could be altered greatly.30 For should be on property rights are example, rising sea levels can cause validated is often those with the great- erosion and change salinity regimes at rendered moot if est political power coastal parks and the temperature and or with the greatest rainfall characteristics of species-rich the persons with possibility of thwart- mountain slopes may be altered. The the weakest moral ing the purposes for parks, in their present location, will claims on property which the park was simply be unable to perform many of rights are those created. One might their functions. assert with some with the greatest confidence that ev- Many of these problems are inter- political power. ery potential rights related. Eradication of invasives and claimant should be reintroduction of native species is made afforded due process and a right to be more difficult when the local human heard, whether or not their claim is population feels injured by the park ultimately accepted. As we have seen and hostile to park managers. The ex- from the history of parks in all three perience of the US National Park Ser- North American countries, it is only vice in reintroducing the grey wolf to recently that this kind of participation Yellowstone in the face of local opposi- has become regularly incorporated into tion is illustrative.31 Similarly, the sup- park designation and management. port or opposition of locals can be very important if park managers seek to ban Beyond affording procedural due pro- certain recreational activities or even to cess, I believe that the best way to take direct measures to limit crowding. deal with property rights claims is to And if climate change affects our pres- put them into a much broader and lon- ent systems of parks, provision must 15, July 2007 269 Conservation and Human Rights be made for changing park boundaries ing that affords absolute protection to or for connecting one park to another. part of the reserve, but permits con- trolled human use in buffer zones. One approach to dealing with all of the above problems—an idea actively Gateway communities can play an pursued by a number of scientists and important part in this larger park-re- environmental advocacy groups—is lated landscape.33 They are urban areas to manage individual parks as part of where park managers have little direct much larger landscapes—systems of power and are unlikely to obtain it. In parks, biosphere reserves, and large these places, it is probably best for scale ecosystems. A pioneer in this the park authorities to work with lo- approach has been the Greater Yellow- cal economic interests concerned with stone Coalition, which since 1983 has the long-term viability of the tourism advocated managing Yellowstone and industry. Today, many business inter- Grand Teton National Parks as part of ests in gateway communities are suspi- an 18 million acre “ecosystem” com- cious of park managers. But they could prised of federal, state, private and become some of the strongest regional Native American lands.32 advocates of park values. National Geographic has recently created a Looking at individual parks within this very useful on-line “Gateway Commu- much larger landscape or ecosystem nity Toolkit” with links to case studies, context may not only help parks re- policy literature, and sources of techni- spond to changing climatic conditions, cal assistance.34 The toolkit responds Looking at parks but could help with problems of in-hold- to concerns raised in a survey of park management and tourism experts within the larger ers, indigenous that indicated that the attractiveness landscape may people and the parks’ of many parks as tourism destina- not only help many “neighbors”. tions was being seriously degraded by What may be needed activities undertaken in the gateway parks respond to is a more flexible communities just outside their bound- changing climatic system of property aries.35 There seems to be growing ap- conditions, rights, which would preciation within the tourism industry but could help include rights not only within the park of the fact that tourist demand depends on the totality of the visitor experience, with problems itself but also over including both time spent in the park of in-holders, the much larger area. and time spent in the gateway.36 Gate- indigenous people The Canadian model way communities represent threats to and the parks’ of co-management of park units with local parks, but also major sources of politi- cal and economic support. many “neighbors”. people provides les- sons for what might If parks are to be managed as part be done inside park boundaries. US of much larger landscapes, the gate- park units such as Cape Cod and Santa way communities can be regarded as Monica Mountains show how regulatory a concentration of interested parties, systems can be used to allow private but not the parks’ only constituency. ownership of land in or near parks while It is useful to observe that the rights reducing the impact of development on asserted by these people are not con- park resources. The biosphere reserve stant over time. Ranchers who object model offers a vision of large-area zon- to the impacts of park wolves on their 270 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? Rights... environment… livestock may be replaced by owners 25 Centro Ecological Sian Ka’an, 2007. of rural recreational homes, who may 26 Simonian, 1995. harbor positive feelings toward wolves, 27 Simonian, 1995; Chapela and Barkin, 1995. 28 Gomez Mena, 2004. though perhaps with a little wari- 29 Sen, 1983. ness. Indigenous people may discard 30 Lovejoy and Hannah 2006; Saunders and Easley old cultural practices, then reinvent 2006. them in altered form. Climate change 31 McNamee, 1998. will affect not only the park, but also 32 Greater Yellowstone Coalition, 2006. the economics of land use outside the 33 Howe, McMahon and Propst, 1997. park. In this changing landscape, old 34 National Geographic Society, 2007. rights demands may be terminated, 35 Tourtellot, 2005. and new rights claims may be asserted. 36 Howe, McMahon and Propst, 1997. The challenge for park managers is to balance these changing rights claims References against the changing needs of the Brown, M.L., The Wild East: A Biography of the Great Smoky Mountains, University of Florida Press, parks. It will not be an easy job. Gainesville (Florida), 2000. Robert Healy (healy@duke.edu) is Professor of Environ- Catton, T., Land Reborn: A History of Administration mental Policy at the Nicholas School of the Environment and and Visitor Use in Glacier Bay National Park and Earth Sciences, Duke University, North Carolina, USA. He Preserve, An administrative history prepared for the teaches a course entitled "Protected Areas, Tourism and Lo- National Park Service, 1995. Accessed on-line Janu- cal Development". Among his research interests are how to ary 30, 2007 at http://www.nps.gov/archive/glba/ link tourist purchases of handicrafts and local food products adhi/adhit.htm (coffee, honey) to sustainable land use in protected area Centro Ecologico Sian Ka’an, 2007. Website accessed buffer zones. Healy holds a Ph.D. in Economics from the February 1, 2007. University of California, Los Angeles. Chapela, G. and B. David, Monarcas y campesinos : estrategia de desarrollo sustentable en el oriente de Michoacán, Centro de Ecologia y Desarrollo, Notes Mexico City, 1995. 1 Jacoby, 2003. Conservation Foundation, National Parks for a New 2 Keller and Turek, 1998. Generation: Visions, Realities, Prospects, The Con- servation Foundation, Washington, D.C., 1985. 3 Catton, 1995. Gomez, M, “Piden ejidatarios a la Profepa perseguir 4 Keller and Turek, 1998. a talamontes”, La Jornada (Mexico City) Decem- 5 Conservation Foundation, 1995. ber 9, 2004. Accessed as “Apatía en cuidado de la 6 National Park Service, 2002:39. mariposa monarca”on Corsario-l website, accessed 7 Prucha, 1984. February 1, 2007. http://www.laneta.apc.org/piper- mail/corsario-l/2004-December/000205.html 8 Catton, 1995. Greater Yellowstone Coalition, Website accessed 9 US National Park Service, 2006. January 28, 2007. http://www.greateryellowstone. 10 McNamee, 2002. org/ecosystem/index.html 11 Killian, 1993:14. Howe, J., E. McMahon and L. Propst, Balancing Nature 12 Beltran, 2000. and Commerce in Gateway Communities, Island Press, Washington, D.C., 1997. 13 Beltran, 2000. Indian and Northern Affairs Canada. Rich West Coast 14 Peepre and Dearden, 2002. Heritage Enriches Park Trails. c. 2004 Accessed 15 See Quu’as West Coast Trail Group, 2007; Indian on-line March 28, 2007 at http://www.ainc-inac. and Northern Affairs Canada, 2004. gc.ca/bc/fnbc/sucsty/suscom/ecoptr/sunbck_e.pdf 16 Peepre and Dearden, 2002. Jacoby, K., Crimes against Nature: Squatters, Poach- 17 Tourtellot, 2005. ers, Thieves, and the Hidden History of American Conservation, University of California Press, Berke- 18 Peepre and Dearden, 2002. ley (California), 2003. 19 Struck, 2006. Keller, R. and M. Turek, American Indians and National 20 Simonian, 1995:94. Parks, University of Arizona Press, Tucson, 1998. 21 Simonian, 1995:100. Killan, G., Protected Places: A History of Ontario’s 22 Marquez, 1984. Provincial Parks System, Queen’s Printer for Ontario 23 Plata, 1994. Ministry of Natural Resources, Toronto (Canada), 1993. 24 Simonian, 1995. Lara P., Lucio, Pueblos Indios y Areas Naturales Pro- 15, July 2007 271 Conservation and Human Rights tegidas, Tlacopac, Instituto Nacional Indigenista, Nebraska Press, Lincoln (Nebraska), 1984. Subdireccion de Investigacion, Projecto: Pueblos Saunders, S. and T. Easley, Losing Ground: Western Indios y Medio Ambiente, Mexico City, 1994. National Parks Endangered by Climate Disruption, Lovejoy, T. E. and L. Hannah (eds.), Climate Change Rocky Mountain Climate Organization and Natural and Biodiversity, Yale University Press, New Haven Resources Defense Council, New York (NY), 2003. (CT), 2006. Sen, A.K., Poverty and Famines: An Essay on Entitle- McNamee, K., “From Wild Places to Endangered Spac- ment and Deprivation, Oxford University Press, New es: A History of Canada’s National Parks,” pages York (NY), 1983. 21-50 in Dearden, P. and R. Rollins (eds.), Parks Simonian, L., Defending the Land of the Jaguar: A His- and Protected Areas in Canada, (2nd ed.) Oxford tory of Conservation in Mexico, University of Texas University Press, Don Mills (Ontario), 2002. Press, Austin (Texas), 1995. McNamee, T., The Return of the Wolf to Yellowstone, Spence, M.D., Dispossessing the Wilderness: Indian Henry Holt, New York (NY), 1998. Removal and the Making of the National Parks, Ox- National Geographic Society, Center for Sustainable ford University Press, New York (NY), 2000. Destinations, Gateway Community Toolkit, Website Struck, D., “Canadians Agree On Plan to Create Vast accessed January 25, 2007. http://www.national- National Park: geographic.com/travel/sustainable/gateway_com- munity_toolkit.html Protecting Wilderness, Tribal Culture Cited,” Washing- ton Post, October, 14, A13, 2006. Nelson, J.G., J.C. Day and L. Sportza (eds.), Protected Areas and the Regional Planning Imperative in North Tourtellot, J., “Destination Scorecard: National Parks,” America, University of Calgary Press and Michigan National Geographic Traveller, July/August, 2005. State University Press, Calgary and East Lansing US National Park Service, Devil’s Tower National (Michigan), 2003. Monument, 2006. Park web site, accessed January Peepre, J. and P. Dearden, “The Role of Aboriginal 30, 2007. http://www.nps.gov/archive/deto/climb- Peoples,” pages 323-53 in Dearden, P. and R. Rollins ing.htm (eds.), Parks and Protected Areas in Canada, (2nd US National Park Service, General Management Plan ed.) Oxford University Press, Don Mills (Ontario), and Environmental Impact Statement, Santa Monica 2003. Mountains National Recreation Area. v. 1., National Quu’as West Coast Trail Group, 2007. Web site visited Park Service, Washington, D.C., 2002. Feb. 1, 2007. http://www.alberni.net/quuas Vargas Marquez, F., Parques Nacionales de Mexico y Prucha, F.P., Great Father: The United States Gov- Reservas Equivalentes, Instituto de Investigaciones ernment and the American Indians University of Economicas, Universidad Nacional Autonoma de Mexico, Mexico City, 1984. Eco-authoritarian conservation and ethnic conflict in Burma Zao Noam Abstract. This paper explores ethical and practical challenges faced by international conservation organizations working in Burma with the Burmese military regime (State Peace and Development Council, or SPDC) within the context of political and military conflict. The paper discusses why and how the Burmese junta attempts to exploit large-scale conservation projects by international NGOs not for the aims of conservation, but for purposes of state- building and militarization. It also describes how international conservationists are required to comply with the dictatorship’s strict measures on engagement, ending up in “conservation- military alliances”. With the aid of international conservation organizations, the military state 272 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? Rights... environment… gains control of politically-disputed indigenous territory and the natural resources contained therein. The Hukawng Valley Tiger Reserve supported by the Wildlife Conservation Society (WCS) is a case in point. Meanwhile, grassroots environmentalism is taking hold in ethnic areas, although largely unnoticed by secular donors, conservationists and researchers. I argue that “eco-authoritarianism” is not the answer for successful biodiversity conservation. Ethically and socially-based solutions such as “selective environmental engagement” should rather be employed to protect Burma’s environment and the people that rely upon it for their livelihoods. These solutions present a more appropriate, nuanced and just way for international conserva- tionists to engage with Burma. B urma is the largest country in main- land Southeast Asia, with a land area of 675,000 km2 (Figure 1). A wide variation in altitude, latitude and cli- mate creates high diversity of habitats and species: nine of the WWF Global 200 Ecoregions lie wholly or partly in Burma,1 and the World Resources In- stitute (WRI) has described the Indo- Burmese region as one of the eight “hottest hotspots of biodiversity” in the world.2 The country is blessed (or some would say cursed) with a wealth of natural resources. Its extensive forests, perhaps the largest intact natural forest ecosystem in the region, contain com- mercially-valuable and increasingly rare timber such as Burmese teak (Tectona grandis), Pyinkado or ironwood (Xylia dolabriformis), Padauk or rosewood (Pterocarpus macrocarpus) and Kanyin (Dipterocarpus spp.). Natural resources are concentrated along the frontiers with Thailand, China, Bangladesh and India, regions mainly inhabited by Bur- ma’s numerous minority ethnic groups. The combination of valuable natural resources and high ethnic diversity has contributed to political unrest in Burma, and is shaping into an “ethno- ecological crisis”. Despite (or because of) Burma’s great biological, cultural and ethnic diver- sity, Burma remains embattled by the world’s longest running civil war. The Figure 1. Map of Burma. State Peace and Development Coun- 15, July 2007 273 Conservation and Human Rights cil (SPDC), the present name for the control, especially in ethnic areas. It Burmese military junta, focuses on has led to numerous forced evictions, unitary state-building through military relocations and resettlements, forced conquest. Its goal is to end political migration and internal displacement.”3 and ethnic resistance, control all terri- tory within Burma, bring all the people The international community is divided of Burma— and specifically the ethnic as to whether the best strategy for minorities— into the “national fold”, change is to isolate Burma or to en- and exploit the natural resource wealth gage, and if so, pre- of the frontier regions. The SPDC now cisely how. Although The international controls much of the country, but some some major interna- community ethnic political/military groups still have tional conservation is divided as effective control over some territories. organizations, such SPDC corruption and human rights as the IUCN, have to whether the violations, especially in ethnic areas, purposefully chosen best strategy have been extensively reported upon not to engage with for change is to by international and Burmese media, the Burmese regime, exiled opposition groups and interna- others have readily isolate Burma or to tional organizations. According to the moved in. The Wild- engage, and if so, latest UN Report of the Special Rappor- life Conservation So- precisely how. teur on the situation of human rights ciety (WCS) based in in Burma, “Grave human rights viola- New York City led the way into Burma tions are committed by persons within in 1993, becoming the first INGO of the established structures of the State any kind to initiate a program inside Peace and Development Council and are Burma. WCS’s primary aims are to not only perpetrated with impunity but work closely with the Burmese regime authorized by law.” Furthermore, and (specifically the Ministry of Forestry), with serious implications for conserva- to increase the area covered under tion projects in Burma, there exists “... Burma’s protected area (PA) system widespread practice of land confisca- and engage in wildlife protection.4 tion throughout the country, which is WCS, and other international NGOs seemingly aimed at anchoring military (INGOs) following suit, see establish- ing projects in Burma through the SPDC as apolitical and not constituting support for the Burmese junta. Alan Rabinowitz, executive director of the WCS Science and Exploration Pro- gram and the foremost international conservationist working in Burma, summarizes the common position of international conservation organiza- tions working in Burma: “WCS does not sanction forced relocation or kill- ings but we have no control over the government. We are in Burma because it is one of the highest biodiversity countries.”5 However, Rabinowitz has Picture 1. Sign post demarcating the Hukawng also highlighted certain advantages of Valley Tiger Reserve announcing new rules. (Courtesy PKDS) working on conservation with an au- 274 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? Rights... environment… thoritarian regime. “It's much harder conservation organizations? to get conservation done in democ- racies than in communist countries Forming associations with conser- or dictatorships; when a dictatorship vation INGOs enjoying a worldwide decides to establish a reserve, that's reputation can be a source of cred- that.”6 Burmese pro-democracy leader ibility for a regime with a poor inter- and Nobel Peace Prize winner Daw national image. Against a background Aung San Suu Kyi, whose house arrest of countless reports by international was recently renewed for yet another organizations, NGOs and foreign gov- year, has commented on political bar- ernments documenting and criticizing riers to an inclusive and participatory the human rights situation in Burma conservation approach: “I doubt under (see endnote 3), Rabinowitz has the present circumstances you can do argued that human rights violations anything very effectively in the way of have been exaggerated: “I’m not conservation. Under the kind of mili- arrogant enough to say I have seen tary regime that we have here you everything there is to see. But having would not be allowed free access to worked in the country for ten years, all the people with whom you wish to traveling to the most remote areas, I work.”7 However, for the type of con- think its [human rights abuses] have servation Rabinowitz advocates, this been blown out of proportion.”10 is not seen as an obstacle: “Biodiver- sity conservation is doomed to failure International when it is based on bottom-up pro- conservation or- Re-zoning for cesses that depend on voluntary com- ganizations can conservation provides pliance…I would advocate a top-down leverage “green” approach to nature conservation– con- discourse for an apparently trary to much contemporary political money, allowing legitimate reason and conservation rhetoric— because in governments to for the state to most countries it is the government, access substantial relocate populations, not the people around the protected funding for proj- areas, that ultimately decides the fate ects with an osten- to control and of forests and wildlife.”8 sible conservation patrol previously purpose. Concepts inaccessible areas of SPDC’s conservation regime such as ‘biodiver- contested territory, In a National Public Radio (NPR) sity’, ‘conservation’ and ‘sustainable and to claim state/ Forming associa- interview, Alan development’ can military ownership tions with conserva- Rabinowitz mented that com- be translated and of natural resources. tion NGOs enjoy- “the [Burmese] concretized into ing a worldwide government has new regulatory regimes and institu- tions augmenting state power. Per- reputation can be been very recep- haps most importantly, there are tive, more than a source of credibil- any other country potential economic, military and ity for a regime I have worked security advantages to large-scale conservation projects in Burma.11 with a poor interna- with, in terms 9of Raymond Bryant asserts, “Conser- conservation.” tional image. Why should the vation projects provide an effective normally reclusive SPDC be so recep- means to promote environmental tive to engagement with international conservation in a politically and eco- 15, July 2007 275 Conservation and Human Rights nomically important part of the coun- In addition, the new reserve over- try at the same time as it provides lapped and disrupted a Community a justification for tightened political Conserved Area already established control over this area. In this man- by the Karen, known as Kaserdooh.16 ner, “coercive conservation” in Burma is designed simultaneously to meet Development of the PA system is a environmental and political objectives key strategy of SPDC’s conserva- to obtain sustainable development.”12 tion policy. Burma’s 1994 forest Military state-building activities can policy mandated an increase in the be transformed into seemingly apo- country’s PA system to at least 5% litical state conservation. Jeremy of the country’s total land area, with Woodrum of U.S. Campaign for Bur- a long-term goal of 10%.17 In the ma has stated, "They'll do anything early 1990s, the regime called for they can, including create large for- the area set aside as state reserved est reserves, to seize control of land forest to increase from 14% to 30% that has historically belonged to a of the total national forested area.18 particular ethnic group.”13 Re-zoning Despite these policy commitments, in for conservation provides an appar- 1996 PAs constituted less than 1% of ently legitimate reason for the state the total national land area. However, to relocate populations, to control and between 1996 and 1999, 12 new PAs patrol previously inaccessible areas were added due to increased collabo- of contested territory, and to claim ration with conservation INGOs, and state/military ownership of natural by 2000, Burma had designated over resources. In this way, abuses against 15,000 km2 of PAs covering 2.3% of ethnic people may continue under the the total area of the country.19 Large- guise of conservation enforcement. ly due to the work of WCS in Kachin State, presently Burma has desig- The creation of the Myinmoletkat Bio- nated over 40,000 km2 of PAs in 38 sphere Reserve in Karen State in the established national parks and wildlife 1990s provides one example of this sanctuaries, covering about 6% of the phenomenon. Reserve creation was total area of the country, with several facilitated by WCS and the Smithso- other PAs currently in negotiation. nian Institute, and pushed through by a Thai/Burmese oil consortium PAs and conservation corridors are as appeasement to the international being designated/proposed predomi- community for the disastrous Yadana/ nantly in indigenous areas and, in Yetagon gas pipelines that were be- some cases, in areas of current politi- ing developed, and which would run cal conflict (see Tables 1 and 2). Nat- through the proposed reserve to Thai- ural resources remain most plentiful land.14 The creation of the reserve in mountainous ethnic regions along reportedly led to violent oppression Burma’s many borders; ongoing con- of Karen communities living in the flict and peripheral location caused area.15 Within a few months of sign- these areas to be beyond easy reach ing the MoU to establish the reserve, for large-scale resource extraction by the Burmese army launched one of its SPDC or transnational corporations, biggest and most successful military while to some extent indigenous land offensives to secure territory away management practices has protected from the Karen National Union (KNU) the environment as well. for inclusion in the proposed reserve. 276 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? Rights... environment… Table 1. Birdlife International et al. (2005) Suggested Conservation Corridors for Burma No. of Conservation Corridor Area (km2) KBAs* Ayeyarwady Delta 5,300 1 Areas dominated by Bago Yoma Range 17,800 2 Burman** Burmese Central Myanmar Dry Forests 15,000 2 people Central Myanmar Mixed Deciduous Forests 7,600 2 Total 45,700 7 % Grand Total 16% 13% Central Ayeyarwady River*** 18,000 13 Central Thanlwin River 11,000 0 Chin Hill Complex 23,900 5 Kayah-Kayin Range 13,000 1 Areas dominated by Lower Chindwin River 8,400 1 Ethnic Burmese peoples Naga Hills 5,500 1 (potential conflict territories) Nan Yu Range 20,500 0 Northern Mountainous Forest Complex 25,800 3 Rakhine Yoma Range 53,000 5 Sundaic Subregion (Tanintharyi) 44,200 12 Upper Chindwin Lowlands 24,400 4 Total (potential conflict territories) 247,700 45 % Grand Total 84% 87% Grand Total 293,400 52 * KBA is designated or officially proposed as a protected area, in whole or in part. ** Burman is the majority ethnicity of Burma, living predominantly in central and delta Burma, and the ethnicity heading the military regime. *** Some parts of this corridor fall within Burman Burmese Areas. Source: Adapted from Birdlife International et al. (2005) WCS spearheaded the establishment of PA was established.21 Since then, the Hkakabo Razi National Park in the far number of Burmese military battalions north of Kachin State in 1998, currently stationed in the surrounding area has the country’s largest National Park risen to over 10, as it is perceived as (although not the largest protected an important national security zone.22 area), with an area of over 3,800 km2. Within the PA resides a permanent WCS published a review of Burma’s PA human population engaging in hunting, system in 2002. It confirmed a mili- fuel wood collection, non-timber forest tary-conservation overlap in Burma’s product (NTFP) collection and shifting PAs: out of 20 PAs reviewed in the pa- cultivation.20 The Burmese military per, 6 are recorded as having “military took control of the area in 1994, after camps and/or insurgents indicating a ceasefire agreement with the Kachin availability of firearms.”23 Many other Independence Organization (KIO), PAs, according to the same article, con- the prominent Kachin political group tain plantations, mining or logging con- with semi-autonomy in the region. cessions operated by military-backed Neither WCS nor the state informed companies. One of the PAs mentioned or consulted with the KIO when the is Shwe U Dawng in Shan State, which 15, July 2007 277 Conservation and Human Rights according to a Shan environmentalist is the state may appropriate environ- located near the Bat Tu military com- mentalism to establish resource sov- pound that manufactures bombs for ereignty out of line with the conser- the Burmese Army.24 The article didn’t vation goals desired by practitioners mention, however, Loimwe PA also in and their donors.26 Only authoritarian Shan State, which is located in a hos- trends in conservation that can benefit tile area prone to fighting, and which the regime are promoted in SPDC-en- houses a military communication tower dorsed conservation projects, such as on the mountain peak, as has been the in large-scale land re-zoning for PAs. case since British colonial times.25 There is no room for participatory deci- sion-making, access to environmental I am not suggesting that international information, media freedom to report conservation organizations share the on environmental issues, or support for vision of the SPDC and its desire to “pro-people” conservation. support the military state. However, Table 2. Birdlife International et al. (2005) Suggested Priority Corridors for Burma* Priority Corridor Area (km2) Area dominated by Bur- Central Burma Dry Forests 15,000 man** Burmese people Central Burma Mixed Deciduous Forests 7,600 Total 22,600 % Grand Total 11% Chin Hills Complex 23,900 Areas dominated by Lower Chindwin River 8,400 Ethnic Burmese peoples Northern Mountainous Forest Complex 25,800 (potential conflict territo- Rakhine Yoma Range 53,000 ries) Sundaic Subregion (Tanintharyi) 44,200 Upper Chindwin Lowlands 24,400 Total (potential conflict territories) 179,700 % Grand Total 89% Grand Total 202,300 * The priority corridors represent a refined priority list of the conservation corridors in order to "maximize future conservation investment in Myanmar." ** ‘Burman’ is the majority ethnicity of Burma, living predominantly in central and delta Burma, and the ethnic- ity heading the military regime. Source: Adapted from Birdlife International et al. (2005) SPDC’s control of INGO in Burma entitled “Myanmar: Invest- activities in Burma ment Opportuni- It is impossible to undertake a large- ties in Biodiversity It is impossible to un- scale conservation project in Burma Conservation”. The dertake a large-scale without engaging with the military re- report notes that “regional military conservation project gime. Birdlife International, in conjunc- in Burma without tion with CARE-Myanmar, Conservation commanders have International, Critical Ecosystem Part- considerable influ- engaging with the nership Fund, and UNDP-Burma, recent- ence over the way military regime. ly published a report on the status and [environmental] opportunities for formal conservation policies are implemented within their 278 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? Rights... environment… commands.”27 In addition, in areas of past/present conflict (“natural habitats with security concerns”), the Ministry of Forestry shares management responsi- bility with the Ministry of Defense.28 In ceasefire areas (“parts of the country that have come under government influ- ence following “peace for development” agreements”), activities must be coor- dinated with the Ministry for Progress of Border Areas, National Races, and Development Affairs.29 The function of this ministry, known by the Burmese acronym Na Ta La, is summarized as Picture 2. A line of Chinese trucks illegally follows: “Na Ta La projects are or- transporting timber felled in Kachin State dained by regime elite, imposed by to China. (Courtesy PKDS) the army, and implemented not to im- working with the agencies responsible prove the lives of all individuals but to for managing wildlife, regardless of bolster the power of a few. The border the politics. But the politics of Burma development program serves primarily place great restrictions on how IN- to secure the regime’s hold on power GOs are allowed to operate within the and to enrich its supporters. Na Ta La country. Based on conversations with projects are only participatory inas- local, national and international NGOs much as they are financed predomi- operating in Burma, the unwritten rule nately through forced labor and the is that organizations must refrain from taxation of the rural populace. The net commenting on the political situation effect of the regime’s border develop- in Burma, from having dialogue (i.e., ment policies on border residents is public participation) with ethnic politi- negative.”30 Or as one local Kachin in- cal groups, from implementing projects formant put it: “Na Ta La means they in non-SPDC-controlled areas, and just chop down trees.”31 from addressing any environmental threats linked to regime-backed natu- To operate in Burma, INGOs must ne- ral resource extraction concessions. gotiate a Memorandum of Understand- ing (MoU) with any number of relevant SPDC interference in NGO activities ministries, along with the Ministry of intensified after the removal of Prime National Planning and Economic De- Minister and Chief of Intelligence velopment. Antony Lynam, Associ- General Khin Nyunt in October 2004. A ate Conservation Scientist of WCS’s Burmese journalist wrote that “one of Asia Program and working on tiger the top generals has issued a directive conservation in Burma, confirmed via forcing all international humanitarian e-mail that official permission to oper- organizations to deal directly with ate in protected areas must be issued Burmese government ministries, with through the Ministry of Defense and all major decisions going through the the Prime Minister (an army general). Ministry of Defense.”32 Early in 2006 Despite these conservation-military the Ministry of National Planning and alliances, Lynam went on to write that, Economic Development circulated if important wildlife in a country ex- guidelines for the code of conduct for ists, then it is important for WCS to be NGOs operating in Burma; however, 15, July 2007 279 Conservation and Human Rights the Burmese language version environmental surveys in politically- released was significantly different sensitive ethnic areas. For example, from the official English language over the past few years a Burmese version prepared to target expatriate Ph.D. environment student has always staff, in that the former was much been accompanied by SPDC soldiers more severe with listed restrictions when she traveled to the field to con- than the latter. According to the duct her research in ethnic areas.35 In Burmese language version, when another example, military intelligence recruiting national staff “organizations joined the 1997 survey led by WCS in should inform the respective ministry Hkakabo Razi National Park in north- about the required qualifications for ern Kachin State, collecting informa- staff,” and then the respective ministry tion on the people encountered and will “provide the list of qualified staff, their activities.36 and the organization can choose from the list.”33 Other restrictions include NGOs are hesitant to challenge the project staff having to be accompanied restrictions placed upon them and end by a “liaison officer” for “security” up complying with regime politics. when embarking to the field. Also, In one interview with a Kachin youth coordination committees including group, it was revealed that they were members from every ministry afraid to work on environment is- (including the Na Ta La and Ministry sues because of the sensitivity of the of Defense if situated in ethnic border issue in Kachin State, even though areas), the police and government- they viewed environment as a key organized NGOs (GONGOs) must issue.37 For another Kachin environ- be formed from the national all the ment organization, the main cause of way down to the township level. The project failures was field sites being various committees are responsible demarcated by the SPDC as logging for “monitoring the project team”, and mining concessions, for which the “networking between/among NGOs/ NGO did not file a complaint out of INGOs”, permitting INGO staff fear.38 But these allegations are more members to travel to the project site, severe for international NGOs, of and “coordinating” the organizations’ which two strong cases are presented. project activities.34 These operating The mostly foreign restrictions not only severely impede authors of the 2005 NGOs are hesitant NGO’s work, but more notably enable Birdlife Interna- to challenge the the military regime to influence the tional et al., report restrictions placed type of projects chosen and how they consulted with few, are carried out. Furthermore, the if any, ethnic Bur- upon them and end potential sensitivity of NGO projects mese working on up complying with create a climate of fear, causing NGO environment issues regime politics. personnel (especially local staff) to based inside Burma, work carefully and quietly for fear of nor did they consult with any ethnic repercussions, such as interrogation Burmese environmentalists working by police and/or the organization’s outside the country, such as Burmese MoU being revoked. environmental groups based in Thai- land, who follow an overtly rights- The SPDC may seek to exploit NGO based approach.39 In another current activities for its own purposes. Military example, Burma is embarking on the personnel accompany researchers on National Biodiversity Strategy and 280 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? Rights... environment… Action Plan (NBSAP) process to follow up on its ratification of the Convention for Biological Diversity (CBD). Despite strong language in CBD, NBSAP and GEF (Global Environment Facility, the financer for NBSAPs) guidelines about consulting with all stakeholders and paying close attention to indigenous knowledge and equitable access and benefit sharing, so far no ethnic Bur- mese environmentalists— inside or outside the country— are being con- sulted in the process pushed by Bird- life International and facilitated by UNEP ROAP (Regional Office of Asia- Pacific) in Bangkok, Thailand.40 Hukawng Valley Tiger Reserve Following dialogue between WCS and the Burmese regime, in 2004 the Minister of Forestry agreed to expand the original 6,400 km2 Hukawng Val- ley Wildlife Sanctuary to cover almost the entire Hukawng Valley, an area of nearly 22,000 km2, creating the larg- est tiger conservation area in the world, and one of the world’s largest forest PAs (Figure 2). The Hukawng Valley Tiger Reserve is a part of the Figure 2. Hukawng Valley Tiger Reserve in Kachin State. (Courtesy Images Asia massive 30,000 km2 “Northern For- Environment-Desk) est Complex”, promoted by WCS, which encompasses most of northwest Kachin State (Figure 3). As part of this Rumors circulated that the PA was conservation mission, WCS is assist- a trick by the SPDC to secure more ing the SPDC in obtaining GIS infor- Kachin territory, as the Hukawng mation of forested regions in Kachin Valley is located in a politically-con- State in order to expand conservation tested area.44 Alan Rabinowitz of WCS operations to the “human-dominated confirms that one of the reasons the landscape” and “into neighboring val- SPDC was so enthusiastic about the leys”.41 The Hukawng Valley Wildlife Hukawng Valley Tiger Reserve was Sanctuary acts as the core protected the opportunity to engage the KIO, a area, where relatively few people live, major Kachin political ceasefire group but the forest surrounding it will also who controls around 80 percent of be protected as part of the tiger re- the valley,45 in negotiations.46 In con- serve to “act as a buffer to human trast to the situation at Hkakabo Razi encroachment”. An estimated 50,000 National Park, Rabinowitz contacted people currently live within the valley42 the KIO during his visits to Hukawng and “venture into the park to hunt and Valley, despite this being against MoU collect forest products.”43 regulations that prohibit dialogue with 15, July 2007 281 Conservation and Human Rights ethnic political groups. During one vis- conservation-development outreach it, a KIA commander (the military arm are Lisu, traditional hunter-gatherers of the KIO), interviewed in his head- who do not yet engage in permanent quarters in the proposed tiger reserve, cash-crop agriculture, and most im- proudly claimed: “This is our land.”47 portantly are not politically organized. Rabinowitz supports this assertion in Despite its published statements on his NPR interview, declaring, “The KIA the importance of working with lo- rules this valley; they have autonomy cal people to save the tiger, as of over this valley.”48 Yet a WCS-Burma mid-2006 the author is not aware of staff member asserted that “the SPDC WCS yet engaging in any community- controls all the areas [of Hukawng focused activity in the tiger reserve, Valley]” and claimed they do not know apart from demanding local Lisu villag- which areas are still under the juris- ers not to hunt the tiger or its prey.51 diction of the KIO or about KIO-SPDC Community development work is political relations in the valley.49 It is outside the mandate of WCS since their hard to see how participatory deci- concern and experience is with wild- sion-making can be promoted and life conservation, as communicated by effective conservation achieved if key one WCS-Burma staff member.52 Any stakeholders in the area can not be projects to deal with the “people prob- accessed, or even acknowledged, by lem” will apparently be contracted out conservationists. Despite its success in to development organizations, as told expanding the PA system, a WCS-Bur- by a WCS-Burma staff member. NGOs ma staff member privately complained in Kachin State and UN agencies in that “sometimes we are very upset be- Yangon, however, have been hesitant cause we can’t work freely— we have to get involved.53 a binding with the government.”50 The Lisu are only one ethnic subgroup The local people WCS is targeting for in the Hukawng Valley among many others who are purposefully ignored for political reasons. Other “locals” include differ- ent sub-groups of Kachin, Naga, thousands of recent Burmese and Chinese en- trepreneurial migrants, and KIO/KIA active and retired soldiers. The Naga— hunt- ers who mostly live at the north-western border of the reserve— are politically or- ganized as the National So- cialist Council of Nagaland, and are actively engaged in conflict with both the SPDC and the Indian government. The Naga territory along the Figure 3. Map of “Northern Forest Com- Burma-India border is ex- plex” in Kachin State. (Courtesy WCS) cluded from the reserve. 282 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? Rights... environment… Lisu subsistence is neither the only mining concessions provide employ- nor the most important cause of tiger ment to the thousands of migrants habitat deterioration in the valley. The who provide a ready and reachable same habitat is under threat from gold market for the tiger’s prey that was mining and recent agricultural planta- non-existent prior to their mass ar- tion development with backing from rival, thus trans- According to a the Burmese military. A recent report forming previous by Kachin Development Networking local sustainable Karen saying, “The Group (KDNG) states that the number tiger hunting into a dog covers up the of gold mining sites in Hukawng valley market-orientated hoof print of the alone increased from 14 in 1994 to 31 enterprise.56 in 2006.54 Migrants have been sweep- pig.” While large- ing into the valley in search of quick Subsidized by WCS, scale conservation profits from gold mining. Mining con- the state has also projects attract cessions have been granted (mostly created a corps of most attention and to Chinese companies) by the SPDC, some 60 “wildlife facilitated by state-sponsored infra- and conservation funding, grassroots structure improvements (such as the protection police” environmental infamous Ledo Road that cuts through for the tiger re- activities continue the valley). Most recently, the SPDC serve.57 It has been virtually unnoticed. has allocated thousands of acres of alleged that these forested and paddy land to sugar cane officers have accepted bribes from and tapioca plantation development. locals seeking to continue their sub- The land is now under U Htay Myint's sistence NTFP collection.58 In all, the Yuzana Company in Yangon, which situation does not appear conducive Lisu subsistence is has close political connections to the to peace-building, respect for human rights or long-term tiger conserva- neither the only nor junta's vice Sen- tion. Any hope for achieving lasting the most important, ior General Maung conservation in Hukawng Valley must cause of tiger Aye. It remains involve revocation of large-scale re- 55 to be seen whether source concessions, consultation with habitat deterioration WCS will use its the KIO as major stakeholders in the in the valley. The rare influence in the area, support for Lisu traditional sub- same habitat is country to advo- sistence rather than mono-agriculture under threat from cate against these wider— yet more for export, and incorporation of com- munity-based natural resource man- gold mining and political— threats agement as an integral part of the recent agricultural to the tiger. WCS- tiger conservation plan. plantation Burma has asked development with for a ban on indi- vidual gold panning Grassroots environmental action in Burma backing from the by local people, but According to a Karen saying, “The dog Burmese military will not ask for a covers up the hoof print of the pig.” ban on large opera- While large-scale conservation proj- tions of SPDC-backed mining conces- ects attract most attention and fund- sions which scour rivers with hydraulic ing, grassroots environmental activi- equipment, destroy riverbanks and ties continue virtually unnoticed. Local dump mercury into the river system. communities in Burma have always Perhaps more importantly, the gold undertaken conservation through in- 15, July 2007 283 Conservation and Human Rights digenous land management practices (including establishing Community Conserved Areas). Since the many ceasefire agreements signed between the SPDC and opposition groups in the 1990s, however, there has been a remarkable emergence of local NGOs, community-based organizations (CBOs) and (mainly Christian) faith- based organizations. Some have been working quietly with local communi- ties in ethnic areas on projects directly or indirectly related to the environ- ment for the past decade. Activities include capacity-building, small-scale Picture 3. Gold mining pit in Kachin State. sustainable development projects, (Courtesy Zao Noam) environmental education and aware- ness, farmer-to-farmer information political scene.”60 Churches, Christian exchange programs, indigenous seed institutions and theological schools are cultivar preservation and exchange, converging on the immediate environ- sustainable agriculture demonstration mental situation in ethnic Christian ar- plots, community forestry, agroforest- eas, using the advantage of access to ry and documentation of environmen- international mission funds and well- tal threats, among many others. Some educated, influential pastor leaders. INGOs have been supporting grass- Based on the author’s environmental roots environmentalism through small- education project with Kachin Baptist scale projects carried out by local field youth groups, the author witnessed staff, usually of the same ethnicity as a spontaneously and inadvertently their target group, working out of pro- emerging “Eco-Christian Network”, a vincial and township offices, including coalition of Christian ethnic minority projects in non-SPDC controlled areas. youth that engage on grassroots en- vironmental issues directly connected Burma civil society researcher and to immediate livelihood problems with writer Ashley South states that grass- their communities. roots initiatives “undermine the ideo- logical and practical basis of military Conclusion: conservation in rule, creating autonomous spaces, at conflict areas and opportunities least in limited spheres.”59 He high- for environmental democracy lights the sangha (Buddhist clergy) In Burma an uncomfortably close link and Christian churches, among the exists between exclusionary top-down few institutions not controlled directly conservation and the state-building by the state, as potentially powerful strategies of a military regime as- civil society actors. With many ethnic sociated with serious human rights political groups signing ceasefires with abuses. I do not wish to suggest that the SPDC, faith-based ethnic organiza- international conservationists support tions are beginning to occupy new po- the SPDC national military motives. litical space. South asserts that “these However, although their motivations networks constitute one of the most are different (build up of the state dynamic aspects in an otherwise bleak military power versus biodiversity 284 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? Rights... environment… protection), the SPDC and conserva- ever, that conservation INGOs should tionists may have a shared interest avoid engagement in Burma alto- in the outcome of re-territorializing gether. On the contrary, there may be SPDC and strategic and resource-rich potential for “selective environmental engagement” to support small-scale, conservationists may ethnic areas into grassroots initiatives that could have have a shared interest state and mili- positive impacts for environment, in the outcome of tary-controlled humanitarian relief and social de- strict protected velopment. Operating through local re-territorializing areas. Large- structures outside the control of the strategic and scale rezoning institutions that infringe upon peoples resource-rich ethnic for conservation rights connects conservation with areas into state and purposes can con- comitantly cre- efforts to empower local people and strengthen civil society, which are military-controlled ate “people-free” crucial in areas experiencing long- strict protected areas. nature reserves term conflict. Conservation practi- and drive re- tioners should observe human rights settlement of ethnic people (seen as based standards in zones of conflict potential supporters of ethnic insur- and rights violation, to ensure that gents) from strategically important their approaches support local liveli- areas into SPDC-controlled villages. hoods, help people facing humanitar- In addition, the re-territorialization ian crisis and miti- of high biodiversity areas from land gate, rather than An approach that ig- quasi-controlled by ethnic politi- aggravate, conflict. nores human rights cal groups at odds with the SPDC to and puts an exter- national/military territory leads to a In territories not nally-driven envi- greater presence of state/military of- controlled by gov- ficials and army battalions. Superficial ernment, or where ronmental agenda “greening” of the SPDC could result in local people do not ahead of immediate conservation INGOs becoming impli- support the govern- local needs for nutri- cated in expanded access to power, ment, opportuni- resources and funds for the Burmese ties arise to more tion, sanitation and military/elite at the expense of local closely work with human security is people. The wrong type of conserva- local people and not only unethical, tion could deepen the political and grassroots organi- but will turn people environmental crisis in Burma— an zations. This could “ethno-ecological” crisis. An authori- include semi-en- against conservation tarian PA approach could lead to fur- gaging with militias and ultimately fail ther human rights abuses. Where the on environmental to achieve the long- state is in conflict with local people, education, and en- term goal of biodiver- and communities live in fear of the couraging establish- authorities, state conservation polic- ment of Community sity protection. ing could lead to a backlash in which Conserved Areas. conservation initiatives aligned with Certain types of conflict may offer the state may be viewed as hostile— diverse opportunities to explore com- driving people to become “enemies of munity-based conservation, since, in conservation”. the absence of a strong state, local traditional forms of environmental This does not necessarily imply, how- governance may have survived and 15, July 2007 285 Conservation and Human Rights indeed been strengthened. tober, 2006 5 Harrison et al., 1997. There is a debate in conservation 6 Shnayerson, 2005. 7 NCGUB, 1997. between advocates of community- 8 Rabinowitz, 1999:70-72. based and participatory approaches, 9 Montagne, 2004. and those who favor top-down 10 Graham-Rowe, 2005. conservation and the exclusion of 11 Peluso, 1993. people from protected areas. Oppos- 12 Bryant, 1996:351. ing “eco-authoritarian” conservation 13 Shnayerson, 2005. does not equate to being anti-con- 14 ERI, 2000; ERI, 2003. servation. Biodiversity is intrinsically 15 Associated Press, 1997; Faulder, 1997; Levy valuable and essential for sustainabil- and Scott-Clark, 1997. ity, and its conservation should be a 16 Interview, 2006 [Here and in the following cases, the names of the persons interviewed global human goal. However, an ap- are not disclosed for comprehensible reasons.] proach that ignores human rights and 17 Rao et al. 2002:361. puts an externally-driven environmen- 18 Bryant, 1996:349. tal agenda ahead of immediate local 19 Rao et al. 2002:361 needs for nutrition, sanitation and 20 Rao et al. 2002:363. human security is not only unethical, 21 Interviews, 2004. but will turn people against conserva- 22 Interviews, 2003 and 2004. tion and ultimately fail to achieve the 23 Rao et al. 2002:363. long-term goal of biodiversity pro- 24 Interview, 2007. tection. Biodiversity conservation is 25 Interview, 2007. embedded within a social and political 26 Peluso, 1993. 27 Birdlife International, 2005:44. process, and if it is to win support and 28 Birdlife International, 2005:45. achieve success it must address is- 29 Birdlife International, 2005:44. sues of social justice for stakeholders, 30 Lambrecht, 2004:172. such as the rights to self-representa- 31 Interview, 2003. tion and indigenous culture, autonomy 32 Irrawaddy News, 2005, emphasis added. and self-determination, the right to 33 SPDC 2007, unofficial Burmese language participate in decision-making, the version right to information, and the principles 34 SPDC 2007, unofficial Burmese language ver- of transparency and accountability. In sion. 35 Interview, 2004. this light, environmentalism is indeed 36 Rabinowitz, 2002. a primary struggle for democracy. 37 Interview, 2005. 38 Interview, 2005. Zao Noam (zaonoam@yahoo.com) has been conducting 39 Based on the listed consulted stakeholders in independent political ecology research in montainous main- the report, all of whom were invited to partici- land Southeast Asia, specifically in/on Burma, for nearly a pate in a stakeholder workshop in Yangon in decade. August 2003 and July 2004, and/or who pro- Notes vided feedback on the English language draft. 1 WWF website, http://www.panda.org/about_ 40 Personal communication with staff at UNEP- wwf/where_we_work/ecoregions/ecoregion_ Bangkok, 2006. list/ecoregions_country/ecoregions_country_ 41 WCS 2003; WCS website, www.wcs.org, last m.cfm, last accessed April, 2007 accessed October, 2006. 2 Brunner et al., 1998. 42 Pollard, 2005. 3 Refer to Office of the United Nations High Com- 43 WCS website, www.wcs.org, last accessed Oc- mission for Human Rights website at http:// tober, 2006. www.ohchr.org/english/countries/mm/index. 44 Shnayerson, 2006. htm, last accessed April 2007; and United Na- tions Human Rights Council Report 2007 45 Graham-Rowe, 2005. 4 WCS website, www.wcs.org, last accessed Oc- 46 Whitney, 2006. 286 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? Rights... environment… 47 Rabinowitz, 2004:116. Military as Benefactor in the Border Regions 48 Montagne, 2004. of Burma”, pages 150-180, in C. Duncan (ed.) Civilizing the Margins: Southeast Asian Govern- 49 Interview, 2004. ment Policies for the Development of Minorities, 50 Interview, 2004. Cornell University Press, Ithaca, 150-81, 2004. 51 Interview, 2006. Levy, A. and C. Scott-Clark, “Burma’s junta goes 52 Interview, 2006. green: Save the rhino, kill the people”, The Ob- server, P. 9. March 23, 1997. 53 Interviews, 2004 and 2006. State Peace and Development Council (SPDC), 54 KDNG, 2006. “Ministry of National Planning and Economic 55 Casey, M. 2007; Interview, 2007; KNG, 2007. Development Guidelines for UN Agencies, 56 Interview with WCS-Burma office staff member, International Organizations and NGO / INGOs on 2006. Cooperation Programme in Myanmar”, February, 57 Interview, 2004. 2006, English and Burmese language versions. 58 Interview, 2007. Montagne, R., Interview with Alan Rabinowitz, National Public Radio (NPR), March 15, 2004. 59 South, 2004. Website www.npr.org/programs/re/archivesda- 60 South, 2004. te/2004/mar/tigers/, last accessed April, 2004. National Coalition Government for the Union of Burma (NCGUB), Environment and Burma, Mes- References sage from Daw Aung San Suu Kyi to the briefing Associated Press, “Burma using forced labor to on Burma, New York City, May 25, 1997. build tourist park, exiles say”,October 20, 1997. Peluso, N.L., “Coercing conservation? The politics Birdlife International, Conservation International, of state resource control”,Global Environmental Critical Ecosystem Partnership Fund, CARE, and Change, 32: 199-217, 1993. UNDP, Myanmar: Investment Opportunities in Pollard, J., “In the eye of the tiger”, Western Aus- Biodiversity Conservation, 2005. tralian, June 11, 2005. Brunner, J., K. Talbott, and C. Elkin, Logging Rabinowitz, A., “Nature’s last bastions: Sustain- Burma’s Frontier Forests: Resources and the able use of our tropical forests may be little Regime, World Resources Institute, Washington more than D.C., 1998. wishful thinking”, Natural History, 108:70-72, Bryant, R., “The greening of Burma: Political rheto- 1999. ric or sustainable development?”Pacific Affairs, Rabinowitz, A., Beyond the Last Village: A Jour- 69(3): 341-359, 1996. ney of Discovery in Asia’s Forbidden Wilderness, Casey, M., “Rampant Gold Mining Polluting Huge Island Press, Washington D.C, 2001. Tiger Reserve in Myanmar”, Associated Press, Rabinowitz, A., “A Question of Balance: How January 11, 2007. Tiger’s, Gold Miners, and Gun-Toting Revolution- Earth Rights International (ERI), Total Denial Con- aries are Competing to Survive in Myanmar’s tinues— Earth Rights Abuses along the Yadana ‘Valley of Death’”, National Geographic, April, and Yetagun Pipelines in Burma, 2000. 98-117, 2004. Earth Rights International (ERI), Total Denial Con- Rao, M. A., Rabinowitz, and Saw Tun Khaing, tinues: Earth Rights Abuses along the Yadana “Status Review of the Protected-Area System in and Yetagun Pipelines in Burma, 2nd Edition, Myanmar, with Recommendations for Conser- 2003. vation Planning”, Conservation Biology, 16(2), Faulder, D.,“In the name of money: SLORC, the 360-68, 2002. Thais and two multinational oil giants are build- Shnayerson, M., “Alan Rabinowitz’s Fight of His ing a gas pipeline. The Karen are in the way— Life”, National Geographic, 2005. and that’s just too bad”, Asiaweek, May 9:42, South, A., “Political Transition in Myanmar: A 1997. New Model for Democratisation”, Contemporary Graham-Rowe, D., “Conservation in Myanmar. Un- Southeast Asia (ISEAS), August, 2004. der the gun”, Nature. Vol. 435, 16 June, 2005. United Nations Human Rights Council, “Report of Harrison, D., C. Scott-Clark and A. Levy, “Burma’s the Special Rapporteur on the situation of human junta goes green: Save the rhino, kill the peo- rights in Myanmar, Paulo Sérgio Pinheiro”, ple”, The Observer, London, March 23, 1997. February 12, 2007, http://daccessdds.un.org/ Irrawaddy News, “Junta keeps tight hold on local doc/UNDOC/GEN/G07/107/31/PDF/G0710731. NGOs”, October 19, 2005. pdf?OpenElement, last accessed April, 2007. Kachin Development Network Group (KDNG), Val- Whitney, J., “How conservationists prop up ley of darkness: Gold mining and militarization in Burma's military regime: rules of engagement”, Burma’s Hugawng Valley, 2007. The New Republic Online, September 26, 2006. Kachin News Group (KNG), “Animals killed by Wildlife Conservation Society (WCS), A National chemical agents in Hukawng Valley”,April 18, Tiger Action Plan for the Union of Myanmar, Pre- 2007. pared by Antony Lynam, May 1, 2003. Lambrecht, C., “Oxymoronic Development: The 15, July 2007 287 Conservation and Human Rights El Ordenamiento Comunitario del Territorio— un esquema para hacer compatibles los objetivos de conservación y los derechos sociales e indígenas Francisco Chapela y Yolanda Lara Abstract. Mexico is recognized as a mega-diverse country. Its biological wealth is supported by complex landscape dynamics, which are interrelated with bio-geographical, historical, cul- tural and technological factors. These factors are in turn affected by the institutional arrange- ments used to administer local and national territories. The conventional approach to this administration used central planning and gave priority to biological factors. This weakened the recognition of rural and indigenous communities’ rights, including property and custom- ary rights that underlie the landscape dynamics responsible of the high biodiversity found within them, thus putting important biodiversity elements in peril. We discuss an approach to developing polycentric, diverse institutional arrangements used in the last 10 years by an NGO, Estudios Rurales y Asesoría, emphasizing how the full recognition of rural and indig- enous communities’ rights can actually help to preserve biodiversity. Finally, some insights regarding policy development on these issues are discussed. Resumen. México se reconoce como un país Mega-diverso. Su riqueza biológica está aloja- da dentro de un sistema complejo de dinámica del paisaje, que está interrelacionado con factores biogeográficos, históricos, culturales y tecnológicos que son influidos a su vez por los arreglos institucionales que se han usado para administrar los territorios a nivel local y nacional. Un enfoque convencional ha usado enfoques de planeación central que han dado prioridad a los factores biológicos. Esto ha debilitado el reconocimiento de los derechos de las comunidades rurales e indígenas, incluso los derechos consuetudinarios y de propiedad que subyacen a las dinámicas del paisaje que son responsables de la alta biodiversidad que se encuentra en ellas, con lo que se ponen en peligro importantes elementos de la biodiver- sidad. Se discute un enfoque empleado en los últimos años por una ONG, Estudios Rurales y Asesoría, para desarrollar arreglos institucionales poli-céntricos y diversos, enfatizando en cómo el reconocimiento pleno de los derechos de las comunidades rurales e indígenas puede de hecho ayudar a conservar la biodiversidad. Por último, se discuten algunas ideas respecto al desarrollo de las políticas sobre estos temas. M éxico se reconoce como uno de los pocos países en los que se encuen- han sido completamente entendidas ni explicadas. En el presente documento, presentaremos algunos antecedentes tra representada la mayor parte de sobre el desarrollo de las instituciones la diversidad biológica del mundo. Al que han buscado administrar el terri- igual que otros de los llamados países torio y los dilemas que debe enfrentar megadiversos,1 esta suerte de Arca el país, para asegurar al mismo tiem- de Noé, es también una de las áreas po el respeto a los derechos de las en que se deposita buena parte de la comunidades rurales e indígenas y la diversidad cultural mundial.2 Las rela- conservación de la enorme diversidad ciones entre diversidad cultural y di- biológica. Discutimos algunos aspec- versidad biológica, son complejas y no tos relevantes de enfoque que hemos 288 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? Rights... environment… usado en los últimos 10 años para re- otros recursos naturales. Como resul- solver dichos dilemas, para finalmente tado de la revolución hubo un proceso hacer una discusión del aporte que de Reforma Agraria que permitió que dicho enfoque puede hacer a una po- a las comunidades indígenas que no lítica de conservación que respete los gozaban de derechos de propiedad, derechos territoriales y la diversidad pero sí mantenían cultural de las comunidades rurales e la posesión de sus La coexistencia indígenas. tierras, se les res- de las formas tituyeran sus terri- de organización Antecedentes del ordenamiento torios tradicionales. A la población rural indígenas con las del territorio que no pudo acre- europeas, creó una El desarrollo histórico de las institu- ciones en México, ha sido en el marco ditar la posesión dualidad social y de una confrontación entre propuestas de sus territorios política, que explica extremas, que han incluido el pro- porque habían sido despojados de ellos la enorme cantidad yecto monárquico de 1864 a 1867 de Maximilian von Habsburg (Maximiliano y perdido contacto de situaciones I), emperador de México y las pro- desde hacía mu- contradictorias que cho tiempo con su puestas anarquistas del Partido Liberal tierra, se les dotó se encuentran en la Mexicano que intentó creación de una república anárquica en 1906-1911. de predios llamados historia de México, ejidos. La revolu- pero explica también Durante la época colonial, eran los ción mejoró sustan- la diversidad representantes de la corona los que cialmente el acceso a la tierra y permi- cultural y biológica. definían la política de uso de los re- cursos a través de las “encomiendas”. tió un crecimiento Sin embargo, en muchos casos los económico y social sin precedentes. El pueblos indígenas no fueran despla- crecimiento económico significó tam- zados, sino que fueron obligados a pa- bién el aumento en la demanda inter- gar tributos, manteniendo sus formas na de materias primas y alimentos, de organización interna y sus técnicas que debía ser atendida para permitir de uso de los recursos. En contraste la entrada de México a la “moderni- con las colonias inglesas, la coexis- dad”. tencia de las formas de organización indígenas con las europeas, creó una El reconocimiento básico de derechos dualidad social y política, que expli- a las comunidades rurales e indígenas ca la enorme cantidad de situaciones creó una situación especial en México, contradictorias que se encuentran en en donde el incremento en la produc- la historia de México y de otros países ción de alimentos y materias primas que fueron colonias españolas,3 pero indispensable para fomentar el nuevo explica también la diversidad cultural modelo de desarrollo, estuvo basado y biológica. más en el reparto agrario y la tecnifi- cación agrícola que en la creación de Una de las confrontaciones más trau- un mercado de tierras, como suce- máticas, fue la revolución agraria de dió en otros países. Ambos factores 1910 a 1917, que tuvo una de sus se convirtieron en el motor para que causas principales en que la élite te- durante la segunda mitad del siglo rrateniente estaba limitando el acceso XX, los ejidos y comunidades crearan de las comunidades rurales a tierras y un mercado nacional de productos 15, July 2007 289 Conservation and Human Rights agrícolas, pecuarios y forestales que indígenas. Se dieron incluso casos de al menos durante 2 décadas fueron expulsiones de comunidades de sus la base para el desarrollo económico territorios ancestrales, para cump- del país y que hoy se conoce como “El lir con los objetivos definidos por los Milagro Mexicano”.4 planificadores centrales. Hacia el úl- timo cuarto del siglo XX, era evidente Las contradicciones del la dificultad de conciliar los esquemas Ordenamiento del Territorio de planificación centralizada con la En la época del crecimiento poste- atención a los derechos territoriales rior a la revolución de 1910-1917, los de comunidades rurales e indígenas y responsables de diseñar las políticas que en realidad la tierra y los recursos públicas suponían que la tierra era un naturales eran bienes muy escasos, y recurso abundante, que bien distribui- que debería racionalizarse la política de do, podría ser la base de una econo- uso del territorio. mía vigorosa y que esto era un asunto de estado, pues tanto el crecimiento Este escenario propició el establec- económico como el abastecimiento imiento de normas e instituciones de materias primas y alimentos eran para regular el uso del suelo más en temas estratégicos para el país. En concordancia con objetivos ambien- contraste con los avances constitucio- tales, aunque el reconocimiento en la nales en el reconocimiento de dere- práctica de los derechos territoriales chos de las comunidades, se utilizaron de las comunidades rurales e indíge- enfoques de manejo del territorio que nas no fuera atendido. Se empezó a no tomaban en cuenta dichos dere- incorporar a las políticas públicas la chos. Los primeros ordenamientos del planificación del desarrollo urbano y la territorio nacional, seguían de cerca provisión de áreas de reserva para las el modelo establecido por la Tennes- ciudades, así como el establecimiento se Valley Authority de los Estados de áreas naturales protegidas (ANPs), Unidos, que establecía una autoridad las cuales se multiplicaron hasta alcan- única para la planificación de toda el zar lo que hoy en día equivale al 10% área comprendida dentro del territorio del territorio nacional. Finalmente, de una cuenca hidrográfica. Dicho mo- al promulgarse la Ley de Ecología se delo se estableció en las principales estableció el llamado “Ordenamiento zonas agrícolas del país. Ecológico” como un instrumento de política ambiental. Tabla 1. Planificación por cuencas Esta situación ambivalente, en donde Planificación de cuencas hidrográficas5 sigu- los objetivos de desarrollo nacional iendo el modelo de la Tennessee parecen ser incompatibles con el re- Valley Authority—TVA.6 speto a los derechos territoriales de Comisión del río Papaloapan (1944) las Comunidades rurales e indígenas, Comisión del río Tepalcatepec (1947), plantea contradicciones que a su vez Comisión del río Grijalva (1951), constituyen dilemas de diseño in- Comisión del río Balsas (1960) stitucional que es necesario resolver, Fuente: Ángel Massiris Cabeza7 incluyendo si el manejo del territorio debe privilegiar una Visión etno-cén- El esquema de tener una autoridad trica o eco-céntrica; si las instituci- centralizada que decida sobre el uso ones para administrar los territorios del territorio, dejó de lado los dere- deben seguir un esquema de Pla- chos de las comunidades rurales e 290 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? Rights... environment… neación Central o Pluricentrico; si la Oaxaca, para buscar alternativas. implementación de los planes de uso Por un lado, no era realista pensar del territorio debe ser Centralizada en que las comunidades indígenas o a nivel Local; y si el seguimiento y pudieran definir sus planes de uso de control debe hacerlo una autoridad sus territorios sin superior o puede hacerse mediante un considerar el con- Es indispensable la esquema de Autogestión. En contraste texto más amplio participación activa con la tradición de planificación cen- de las instituciones de la población desde tralizada del Estado mexicano, du- nacionales. Pero el mismo diseño de rante más de 10 años, una ONG mex- por otro lado, eran icana, Estudios Rurales y Asesoría, evidentes los sín- los instrumentos, (ERA), ha desarrollado un esquema tomas de deterioro hasta la evaluación participativo de gestión del territorio, de los bosques y de su funcionalidad. basado en La Planeación Comuni- tierras y así como taria del uso del Territorio (PCT), que los efectos sociales del esquema de aporta alternativas para las solución Planificación por Cuencas Hidrográ- de los dilemas de diseño institucional ficas. En este contexto, se planteó mencionados. el desarrollo de un instrumento me- todológico que fuera relativamente La Planeación Comunitaria del fácil de manejar por los propietarios Uso del Territorio (PCUT) en colectivo de un terreno, que per- La contradicción entre el régimen mitiera la construcción de consensos constitucional que reconoce los dere- y cuyos resultados permitieran con- chos territoriales de las comunidades tar con una evaluación de los usos rurales e indígenas y las acciones in- del suelo vigentes en ese momento, stitucionales basadas en un esquema las tendencias esperadas del actual de planeación centralizada, creó ten- patrón de uso y si estas se corre- siones y conflictos entre los progra- spondían con las expectativas que mas de gobierno y las comunidades la comunidad se planteaba a futuro. locales. En el caso de comunidades Se buscaba también el diseño de zapotecas y chinantecas de la Sierra un plan estratégico de uso del suelo Norte de Oaxaca, hacia 1990 existía que permitiera corregir tendencias una preocupación creciente por los de deterioro de los recursos e incor- daños que podrían sufrir sus tierras y porar nuevas alternativas de manejo bosques como resultado de la imple- y aprovechamiento de los mismos. mentación de los planes de Desarrol- Para lograr esto, era indispensable la lo Rural diseñados por la Comisión participación activa de la población del Río Papaloapan. Las propuestas desde el mismo diseño de los instru- de uso del territorio y las técnicas mentos, hasta la evaluación de su que proponía dicha Comisión, pasa- funcionalidad. ban por alto muchas de las prácticas tradicionales que le habían permitido Se diseñó un proceso semi-estruc- a la población subsistir por genera- turado y sistemático, que abarca un ciones y ser autosuficientes en térmi- conjunto de herramientas para apo- nos alimenticios. yar a las comunidades que quieren emprender la revisión de sus mecan- Estudios Rurales y Asesoría fue invi- ismos de regulación y control del uso tada por las comunidades zapotecas de su territorio, de modo que puedan y chinantecas de la Sierra Norte de negociar y establecer un plan de uso 15, July 2007 291 Conservation and Human Rights pecíficamente para los fines de estos ejercicios de planeación local. Esta metodología fue probada por primera vez en 1994 en las 4 co- munidades que conforman la Unión Zapoteca-Chinanteca. Como resul- tado de esta prueba, se obtuvieron los primeros planes de ordenamiento del territorio comunal, en donde las propuestas locales se ponían en el contexto más amplio de las políticas nacionales, tratando de encontrar sinergias a favor de los objetivos de desarrollo de cada comunidad local. Foto 1. “La planeación comunitaria del El desarrollo y sistematización del uso del suelo es un proceso en el que se esquema metodológico inicial, derivó negocian las distintas racionalidades de priorización de los usos del suelo, tratando en una propuesta más acabada: La de construir una propuesta negociada.” Planeación Comunitaria del Uso del (Cortesía Yolanda Lara, Estudios Rurales y Territorio (PCUT).8 En la actualidad, Asesoría) esta planeación territorial ha sido revisada y mejorada por los propios del territorio a futuro, considerando técnicos de la Organización de comu- las distintas visiones de los difer- nidades indígenas. El uso de la PCUT entes grupos de interés y buscando se ha ido extendiendo con el tiempo, que el proceso de desarrollo de la y después de haber sido aplicada de comunidad pueda sostenerse, sin manera marginal, ha logrado poner detrimento de su base de recursos bajo planes de resguardo comunal naturales. La metodología empleada, explícito, una superficie equivalente reúne instrumentos ya existentes al 58% de las áreas naturales prote- desarrollados para otros contextos, gidas oficialmente el estado de Oaxa- como los de la etnobiología y la agr- ca (Ver tablas 2 y 3). oecología y algunos desarrollados es- Tabla 2. Áreas bajo Protección Oficial en Oaxaca. Superficie Categoría Area Natural Creación Recategorización (has.) Reserva de la biosfera Tehuacan-Cuicatlán 18-Sep-98 296, 272 Parque Nacional Huatulco has 24-Jul-98 11,891 Parque Nacional Benito Juárez has. 30-Dic-37 2,737 Parque Nacional Lagunas de Chacahua 09-jul-37 14,187 Monumento Natural Yagul 24-May-99 1,076 Santuario Playa de Escobilla 29-Oct-86 16-Jul-02 30 Playa de la Bahía de Santuario 29-Oct-86 16-Jul-02 32 Chacahua 275,047 Fuente: CONANP, 20049 292 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? Rights... environment… Tabla 3. Superficie Ordenada a la fecha con PCUT, en el estado de Oaxaca Organización Superficie Total Superficie bajo Superficie bajo Comunidades Regional (Has.) Conservación Aprovechamiento Comaltepec, Xiacuí, UZACHI 26, 000 13,000 Has 13,000 Has Capulalpam, La Trinidad Maninaltepec, Jayacatlán, IXETO 30,500 8,000 21,500 Zoquiapan, Aloapan Tlahuitoltepec, Totontepec, Región Mixe 39,000 7,800 3,1200 Tamazulapan, Metaltepec. SICOBI 102,000 20,400 81,800 Tepetotutla CEPCO 15,000 4,500 10,500 Teotlaxco TOTAL 212,500 53,700 158,800 Fuentes: Estudios Rurales y Asesoría, A.C./Grupo Autónomo para la Investigación Ambiental, A.C. Bases de la PCUT informadas y democráticas de largo Es común que los esquemas or- plazo y sí han sido más eficaces para ganizativos asociados a la planeación favorecer a ciertos sectores privilegia- centralizada, se acompañen de la dos de la comunidad sobre el resto de existencia de líderes fuertes más o sus integrantes. menos carismáti- El proceso cos o poderosos Lo que hemos podido demostrar en el desencadenado que cuando son caso de las comunidades con las que por una acción aceptados por la se ha trabajado la PCUT, es que el colectiva, negociada mayor parte de la población con- proceso desencadenado por una ac- ción colectiva, negociada e informada, e informada, forman verdad- permite explicitar la forma en que tiende a asegurar eras instituciones se toman las decisiones sobre el uso las condiciones de locales no sólo de un territorio, y tiende a asegurar para la regulación las condiciones de vida de la gente, vida de la gente, del uso del suelo fortaleciendo sus derechos básicos, fortaleciendo sus sino para todo lo al mismo tiempo que tiende a lo- derechos básicos, al que tiene que ver grar la perdurabilidad de los recursos mismo tiempo que con la resolución naturales. El proceso de planeación de los conflictos democrático e informado, se vuelve tiende a lograr la que normalmente asequible, transparente y eficaz. perdurabilidad de los se dan dentro de Un ejercicio de Planeación del Uso del recursos naturales. un grupo social Territorio Comunal10 (PCUT), puede organizado. Estos incluir distintos elementos de acuerdo arreglos institucionales, no siempre con las particularidades específicas de resultan en la toma de decisiones cada caso, pero tiene seis característi- 15, July 2007 293 Conservation and Human Rights cas relevantes: años, programas como el Proyecto de 1. La Comunidad es la unidad de pla- Conservación y Manejo Forestal Sus- neación. tentable (PROCYMAF) de la Comisión 2. Tiene una orientación clara hacia el Nacional Forestal de México, han empl- ordenamiento de un territorio que eado este enfoque, con lo que la PCUT es compartido por un grupo social. ha comenzado a tomar relevancia den- 3. Reconoce la existencia de actores tro de las políticas públicas que tienen internos y externos a la comuni- que ver con elaboración de planes de dad que influyen en la toma de manejo u ordenamientos ecológicos. decisiones y busca su participación Hasta 2003, el PROCYMAF llevaba or- para lograr equilibrios a futuro. denadas bajo este esquema 535,685 hectáreas en 63 núcleos agrarios.11 4. Busca reforzar la cultura propia, re- tomando las estructuras organizati- vas internas y las prácticas locales Conclusiones de manejo de los recursos natu- Los primeros enfoques de la rales ya existentes. conservación, en las que se busca a 5. Parte del conocimiento empírico toda costa el mantenimiento de áreas que los integrantes de la comuni- prístinas reduciendo o eliminando el dad tienen sobre su entorno para impacto de la actividad humana para elaborar una propuesta de uso del lograr que el arca de noé sobreviva suelo compatible con la visión de al diluvio, no siempre asegura la grupo. permanencia 6. Aprovecha recursos tecnológicos de la diversidad La eliminación de los compatibles con la visión de futuro biológica que se regímenes de gestión propuesta. quiere mantener. En muchos casos del paisaje que su- Durante los ejercicios realizados apli- que ya han sido byacen a los siste- cando este enfoque, el resultado ha extensamente mas tecnológicos y sido siempre una propuesta multi-fun- documentados,12 culturales de uso de cional del uso del suelo, en la cual se la eliminación de los regímenes de los recursos, podría reflejan los intereses de los diferentes grupos que conforman la comunidad, e gestión del paisaje significar la elimi- incluye áreas para la producción en sus que subyacen nación de los tejidos diferentes formas e importantes áreas a los sistemas tecnológicos y institucionales que de protección con diferentes niveles de han hecho posible que restricción Por último, la PCUT prom- culturales de uso ueve también la sistematización de de los recursos, países como México esquemas de manejo desarrollados por podría significar se encuentren en la los propietarios de la tierra y en donde la eliminación de los tejidos lista de los llamados no los hay permite la creación de estos. Gracias a ello es posible incidir desde institucionales países megadiversos otra perspectiva en la resolución de los que han hecho problemas ambientales, biológicos o de posible que países como México la producción de nivel local, mejorando se encuentren en la lista de los con ello la viabilidad de los sistemas llamados países megadiversos. Por productivos, la conservación de los el contrario, un enfoque en el que se ecosistemas relevantes, el suelo y las busque de manera explícita y racional funciones hidrológicas. En los últimos establecer relaciones en las que las comunidades rurales se beneficien de 294 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? Rights... environment… generar los servicios ambientales que incluyendo sus derechos de propie- demandan las poblaciones urbanas, dad, tienden a favorecer la perdura- puede ser la base del desarrollo de los ción de los recursos naturales y de la tejidos institucionales que demanda diversidad biológica, a escalas compa- un país más urbanizado, pero rables con los esquemas convenciona- paradójicamente más dependiente de les de ANPs. los servicios ambientales que pueden proveer las comunidades rurales. En este contexto, las culturas rurales no se desarrollarán si se les aísla de La PCUT parte de constatar que las la interacción con la cultura nacional comunidades rurales que son propie- y de lo que tiende a convertirse en tarias en colectivo de un territorio, la función de mayor importancia en tienden a desarrollar procesos explí- el futuro de las comunidades en las citos de asignación de los recursos regiones de montaña: la provisión naturales de que disponen, especial- de servicios ambientales. Una visión mente bosques, agua y pastos. En etnocéntrica puede llevar al anquilosa- este sentido, ha hecho patente que el miento y pérdida de la riqueza cultural reconocimiento de los derechos de las que está depositada en las comunida- comunidades indígenas y campesinas, des indígenas y rurales. Pero una vi- sión ecocéntrica en la que se diseñen instituciones destinadas a marginar a las comunidades indígenas y rurales de la gestión de sus territorios y del paisaje, llevaría a la destrucción de los sistemas de resguardo de los ecosiste- mas y a la pérdida de elementos clave de la diversidad biológica. Las nuevas redes institucionales de un país urbanizado pero con una cultura indígena y rural fortalecida como México, no pueden darse el lujo de repetir los vicios de la Planeación Central o dispersar la toma de deci- siones hasta escalas no significativas. Ambos extremos son formas de evitar la participación democrática y la cons- trucción de acuerdos de cooperación para establecer formas de organiza- ción sofisticadas, que estén al nivel que la responsabilidad de resguardar la gran diversidad del país implica. La diversidad cultural y biológica, debe corresponder también a una diversi- dad institucional.13 Los nuevos tejidos institucionales son complejos. No bas- Foto 2. “Técnicos comunitarios y comuneros ta con que haya liderazgos. No basta demarcan su plan de uso del suelo en un mapa con información técnica minuciosa. topográfico.” (Cortesía Yolanda Lara, Estudios Aunque es necesario, no es suficiente Rurales y Asesoría) 15, July 2007 295 Conservation and Human Rights tener un marco legal para la gestión explicitar la visión actual y la de largo territorial del paisaje y de los ecosis- plazo del grupo social con el que se temas. trabaja, es posible inducir un proceso de reflexión sobre las prácticas socia- Frente a estas exigencias, la PCT les y ambientales que influyen o pue- La diversidad cul- es un esquema metodológico que den influir en la construcción de estos escenarios. Asimismo es posible que tural y biológica, contribuye a la las comunidades adapten elementos debe corresponder construcción de tecnológicos y culturales diferentes a también a una diver- una Nueva Visión la cultura propia pero adaptándolos sidad institucional del Desarrollo Ru- ral con un nuevo a su contexto de manera que com- plementen a las prácticas locales sin enfoque del manejo de los ecosiste- poner en riesgo la base tecnológica mas en busca de su aprovechamien- desarrollada localmente.14 to en donde este es posible y de su protección, cuando esta es requerida. En tercer lugar, la PCUT contribuye al Pensamos que la aplicación amplia de mantenimiento del paisaje rural y de esta metodología permitiría la conso- los ecosistemas. Las prácticas cultu- lidación de la capacidad de sustento a rales reproducidas por un conjunto la vida en las áreas rurales, a través de actores a nivel regional confor- de favorecer entre la población rural man patrones paisajísticos que la PCT una visión más sistematizada de su ayuda a caracterizar y a mantener. entorno y de sus expectativas con Asimismo, herramientas como los respecto a ese entorno. Las aleja de transectos sintetizan los elementos las visiones cornocupianas ingenuas que conforman el paisaje y permiten y contribuye de manera importante a su apreciación por los actores que lo la toma de conciencia sobre la finitud moldean, pero dándole la dimensión del territorio disponible y por lo tan- colectiva que hay detrás de ellos. to de los recursos que albergan este territorio. En cuarto lugar, la PCUT contribuye al mantenimiento de la diversidad En segundo lugar, la PCUT contribu- biológica. El enfoque teórico utilizado ye al mantenimiento de la identidad por la PCUT retoma gran parte de la cultural y al reforzamiento de la cul- propuesta de Daniel Janzen en lo que tura propia. En la PCT se emplean respecta a reproducir y mantener las herramientas metodológicas que condiciones de evolución de los fac- contribuyen a la discusión de aspec- tores naturales y humanos gracias a tos culturales relevantes que muchas los cuales los ecosistemas actuales veces los actores en lo individual no existen.15 Se asume que el paisaje perciben como importantes debi- está conformado por una serie de do a la cercanía y cotidianeidad con elementos bióticos y abióticos que que son puestos en práctica. En este interactúan entre sí y van generan- aspecto resulta clave la participación do procesos que producen diversidad de actores diferentes a la comunidad biológica. El motor que impulsa estos y con experiencia en desarrollo rural procesos puede ser de origen natu- que puedan ayudar a contrastar la ral o antropogénico. Al caracterizar actual experiencia con otros contex- estos procesos es posible dilucidar el tos y resaltar lo diferente y valioso tipo de causas que les dieron origen del esquema que utiliza el grupo. Al y planificar actividades para mante- 296 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? Rights... environment… vigiladas por la misma población lo- cal. Con esto, estamos contribuyendo a la formación de activos naturales que pueden ser transformados en capital lanzándolos al mercado de ser- vicios ambientales en sus diferentes facetas. Es posible que si parte de las inversiones realizadas para fomentar la conservación sean canalizadas a este tipo de iniciativas los resultados sean sorprendente e inesperadamente favorables al cumplimiento del objeti- vo de conservación. Foto 3. “La propuesta de uso del suelo se Por último, la PCUT ayuda a asegurar discute a fondo después de su promul- la calidad del ambiente biofísico en el gación como parte de la ordenanza comu- cual se desarrolla un grupo social y la nitaria.” (Cortesía Yolanda Lara, Estudios prestación de servicios ambientales. Rurales y Asesoría) Ya que la PCUT es un ejercicio que nerlos vivos. En este sentido la PCUT parte de evaluar el estado actual de contribuye a reconocer estos procesos los recursos naturales, es una herrami- y las actividades o factores que los enta para mantener y mejorar la base generan. de recursos locales, contribuyendo a asegurar un medio ambiente sano en En quinto lugar, la PCUT contribuye al el largo plazo. Esto se logra a través desarrollo local al aportar viabilidad de la implementación de planes de económica a los esquemas de conser- manejo específicos para las diferentes vación. En la actualidad, gran parte áreas asignadas a los diferentes usos. de las ganancias provenientes de la El plan de ordenamiento es regulado conservación biológica están siendo por un instrumento normativo in- copadas por los grandes consorcios terno cuya aplicación corre a cargo de para la conservación, y los Gobier- las autoridades comunales. Tanto el nos de los países megadiversos.16 Sin plan de ordenamiento como el regla- embargo, muy pocos de los recursos mento de uso del suelo y los planes generados a nivel mundial para cubrir de manejo conforman un conjunto de este objetivo han llegado en forma instrumentos que permiten monitorear directa a las comunidades y propie- la respuesta de cada área ecológica al tarios afectados por decretos que les plan e ir conformando planes de orde- sustraen de la capacidad de controlar namiento regionales. En el caso de la sus territorios. Una de las ventajas de Unión Zapoteca-Chinanteca (UZACHI), la PCUT es que hace visibles los es- la evaluación del plan de ordenami- fuerzos locales de conservación y lla- ento se llevó a cabo entre el 2003 y ma la atención sobre el papel que los el 2004. Como producto de esta eval- propietarios del terreno pueden jugar uación se hicieron correcciones para en la protección de áreas silvestres y ajustarlo mejor a los objetivos que se agro-paisajes. Con muy baja inversión habían fijado en un inicio. Sin embargo es posible establecer conglomerados ninguna comunidad mencionó siqui- continuos y discontinuos de áreas era que el plan de ordenamiento fuera bajo diferentes estatus de protección, malo u obsoleto. 15, July 2007 297 Conservation and Human Rights Yolanda Lara (ylara@era-mx.org) Coordinadora de la Referencias Oficina de Estudios Rurales y Asesoría (ERA) en Oaxaca, al Adger W.N., “Social and ecological resilience: are sur de México. Ha trabajado por 20 años en capacitación y they related?”, Progress in Human Geography, apoyo técnico a organizaciones y comunidades indígenas (24), 3: 347-364, 2000. de Oaxaca. Francisco Chapela (fchapela@coinbio.org) Ángel Massiris Cabeza, Ordenación del Territorio Coordinador Nacional del Proyecto de Comunidades Indíge- en América Latina. Scripta Nova, revista electró- nas y Biodiversidad (COINBIO). Ha colaborado con ONGs nica de geografía y ciencias sociales, Universi- en temas relacionados con el uso sostenible de los recursos dad de Barcelona. (VI)125, 2002. biológicos, incluyendo sistemas agroforestales, conservación participativa, certificación forestal y esquemas de prestación Arias Toledo Ariel, Ordenamiento del Territorio de servicios ambientales. Comunal por el PROCYMAF. Ponencia presenta- da en ante la X Conferencia Bienal de la Inter- national Association for the Study of Common Notas Property. Oaxaca, México, 2004. 1 Potes, Luis Fernando, 2004 Bonfil Batalla, G., Lo propio y lo ajeno. Una 2 Declaración de Cancún. Declaración de Países Me- aproximación al problema del control cultural. gadiversos Afines. Cancún, México, 18 de febrero México, UNAM, Revista de Ciencias Políticas y de 2002 Sociales, 103, 1981. 3 Ribeiro, Darcy, 1985 Carmona, Fernando et al, El milagro mexicano. 4 Carmona, Fernando et al, 1981 México, Nuestro Tiempo, 12a edición, 1981. 5 Tennesee Valley Authority Act of 1933 (48° Stat. Chapela, F. y Lara, Y., La planeación comunitaria 58-59,16 U.S.C., sec. 83), 1933 del manejo del territorio. México, Consejo Civil Mexicano para la Silvicultura Sostenible, A.C.— 6 ver Carlos De Mattos, 1986. Estudios Rurales y Asesoría, A.C. Cuadernos 7 Ángel Massiris Cabeza, 2002. para una silvicultura sostenible. Serie Métodos 8 Lara, Y y Díez de S., J..La Evaluación Rural Par- para la Participación No. 2, 1996. ticipativa (ERP) en la práctica. Oaxaca, México, De Mattos, Carlos A. "Paradigmas, modelos y Estudios Rurales y Asesoría Campesina, A.C. 1996 estrategias en la práctica latinoamericana de 9 Comisión Nacional de Áreas Naturales Protegidas planificación regional", Pensamiento iberoame- (CONANP). Áreas Naturales Protegidas. http://co- ricano. Revista de economía política, n°spécial: nanp.gob.mx/anp/anp.php 2004 Desarrollo regional: nuevos desafíos, Madrid, 1986, 10: p. 13-37: 10 Estos ejercicios de PCUT fueron animados y coor- dinados por el Grupo Autónomo para la Investiga- Janzen, Daniel H., Ingredientes esenciales de un ción Ambiental (GAIA). enfoque por ecosistemas para la conservación de la biodiversidad de las áreas silvestres tropi- 11 Arias Toledo Ariel, 2004. cales. Presentación al Cuerpo Técnico Subsidia- 12 Adger W.N., 2000. ro (SBSTTA) en preparación de la 5a conferencia 13 Ostrom, E and Becker, C D., 1995 de las partes para la Convención sobre Diversi- dad Biológica (COP 5), Montreal, CA. 2000. 14 Bonfil Batalla, G, 1981 Lara, Y y Díez de S., J., La Evaluación Rural Par- 15 Janzen, Daniel H, 2000 ticipativa (ERP) en la práctica. Oaxaca, México, 16 En Latinoamérica, se llevaron a cabo entre 1990 y Estudios Rurales y Asesoría Campesina, A.C. 1997, 3,489 proyectos de conservación, los cuales 1996 fueron financiados al menos por 65 fuentes de Comisión Nacional de Áreas Naturales Protegidas financiamiento (aunque el 90% de los fondos fue (CONANP). Áreas Naturales Protegidas. http:// proporcionado por las agencias bilaterales) con conanp.gob.mx/anp/anp.php 2004 una inversión total de 326 millones de USD. Sin embargo, del total del financiamiento dedicado Ostrom, E and Becker, C D., “Human Ecology and a estas actividades sólo entre un 1.4 y 5% fue Resource Sustainability: The Importance of In- dedicado a financiar actividades en las cuales la stitutional Diversity”, Annual Review of Ecology población afectada por los decretos estuvo directa- and Systematics (26): 113-133. 1995 mente involucrada, como por ejemplo manejo de Potes, Luis Fernando, Megadiversidad. Buenos ecosistemas, empresas sostenibles y capacitación. Aires, Programa Panamericano de Defensa y La mayor parte (70%) se invirtió en pago de buro- Desarrollo de la Diversidad Biológica, Cultural y cracia gubernamentales y no-gubernamentales de Social, 2004. las ANPs. (World Bank, 2003) Ribeiro, Darcy, Las Américas y la civilización, Bue- nos Aires: CEAL, 1985 Tennesee Valley Authority Act of 1933 (48° Stat. 58-59,16 U.S.C., sec. 83). 1933. World Bank/WWF Forest Alliance, Biodiversity Funding in Latin America and the Caribbean. Washington, World Bank/WWF Forest Alliance, 2003 298 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? Rights... environment… Human rights— a guiding principle or an obstacle for conservation? Naya Sharma Paudel, Somat Ghimire, and Hemant Raj Ojha Abstract. Following a history of repressive conservation practices and related agonies and grievances, and a decade-long violent political conflict, the notion of human rights is becom- ing central to political discourse in Nepal, and conservation policy and practice are pressed to address this emerging agenda. This paper describes how political parties, civil society organi- zations, and bureaucrats take differing positions in the debate over human rights and conser- vation, with little consensus on how the two can be enhanced together. Meanwhile, despite the proliferation of human rights discourse, violations of some fundamental human rights continue to happen in the practice of protected area management… while the new political climate is encouraging the early release of notorious poachers from custody. Conservation- ists accustomed to securing the integrity of protected areas under an autocratic regime face multiple challenges to respond to increased demands for respecting human rights. I nclusion of the human rights agenda in nature conservation programmes Conservation programmes have been criticized for their negative social im- marks a significant turn in conservation pacts, including violation of human discourse. The human rights agenda rights.2 It is widely recognised that not only takes conservation away from the PAs approach to conservation has a narrow focus on protection of flora resulted in damage to crops and live- and fauna, but also goes beyond the stock, displacement of local and in- provision of economic incentives1 to digenous communities, denial of their protect the environment. In the case of traditional and customary user rights, conservation through protected ar- limitations on their development pos- eas (PAs), the notion of human rights sibilities and, in some cases, denial of broadly embraces the socio-economic their basic civil and political rights.3 and cultural rights of local and indig- enous people living in and around PAs. Conservation policy and practice, how- ever, reflect little consensus on the nature and scope of human rights that should be accommodated within PA governance. Some conservationists have fully defended the basic human rights of local and indigenous people, including their customary use rights in and around PAs.4 Others have warned that undue emphasis on human needs and aspirations may ultimately jeop- ardise conservation goals.5 They argue that democratic political systems and Picture 1. Indigenous people discuss is- sues of restrictions imposed by rules high respect for human rights pose protecting Nepal’s Chitwan National Park. serious challenges to securing PAs in- (Courtesy Naya Sharma Paudel) tegrity. Although there is an emerging 15, July 2007 299 Conservation and Human Rights consensus that some form of local par- independent group, he died because of ticipation helps PA governance, diverse torture at the hand of Park authorities.6 approaches to understanding and ad- dressing human rights can be observed Three local people (Shikaram Chaud- even within the participatory or people- hary, Mangal Praja and Saman KC) oriented conservation camp. have died in the past 13 months while in Park’s custody,7 and hundreds of lo- This paper discusses how human rights cal people remain in violations continue in nature conserva- custody at the time The global discourse tion, taking the case study of Nepal’s of this writing. In on conservation Chitwan National Park (hereafter the the Park’s history, generated ‘Park’). The focus of analysis is on the several others are ongoing problem of rhino poaching known to have been needed resources and widespread abuse of human rights shot and killed for and rhetorical in relation to this. The analysis is in- suspected poaching, instruments to erect formed by our extensive involvement in illegal use of natural strong conservation the park both as researchers and envi- resources, or en- ronmental and rights activists, as well croaching the park’s bureaucracies, which as by our literature review on PA gov- boundary . Other re- were impervious 8 ernance. We also draw on secondary ported punishments to even the radical information, selective interviews, and include: beatings; personal communications. being forced to sleep political change. naked on hot sand; confiscation of fish- The paper begins with specific cases of ermen’s catch; and forced labour such human rights abuses in the Park and as cleaning, cooking, collecting firewood then explores historical and contextual and working in the kitchen garden of forces leading to such abuses. Draw- Park officials. The conservation laws ing from civil society-led social move- and regulations ban indigenous liveli- ments, the paper reveals seeds of hope hood practices of fishing, collecting wild regarding the potential integration of fruits, vegetables and fodder, and ani- human rights within conservation. It mal grazing. Access routes are closed, concludes by exploring remaining con- cutting off communication and mutual flicts between various conservation ac- exchanges between neighbouring com- tors and challenges facing the integra- munities in and around the Park. tion of human rights and conservation. Such cases of human rights abuses Human rights violations in were by and large covered up before Chitwan National Park 1990 during the Panchayat period, a On, June 15, 2006 in Narayangarh, partyless political system under the Chitwan, almost every newspaper in leadership of the king, but this con- town highlighted the story of Shikhar- tinued even under the multiparty am Chaudhary, a farmer of the local parliamentary system, after 1990. indigenous community, who died in The global discourse on conserva- the custody of Chitwan National Park. tion generated needed resources and The park authorities had arrested him rhetorical instruments to erect strong for his alleged involvement in rhino conservation bureaucracies which were poaching. He died in custody during the impervious to even the radical politi- process of “investigation”. According to cal change. As a result, there are now an investigation report prepared by an highly unequal power relations be- 300 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? Rights... environment… tween the conservation authorities and national attention to the environmental the local and indigenous communities. protection of the Himalayan region.13 The conservation authorities were em- Thirdly, during the early 1970s, the powered with military means, legal and establishment of PAs was a global phe- administrative apparatus, international nomenon that mobilised technical and moral and financial support, and above financial aid, particularly in developing all, direct backing of the reigning kings countries in tropical regions. Following of the time and members of the royal consultations by conservation experts family.9 The local people were hardly from UNDP, FAO and zoological societies consulted and their social, cultural, and of London, New York, and Frankfurt, the economic relationships with the local King and a few domestic experts de- environment were largely ignored.10 In cided to establish hunting reserves and such contexts, concerns over human those were later converted into national rights violations were simply ignored parks and wildlife sanctuaries.14 or intentionally suppressed by the con- servation authorities.11 Militarization of PAs is one of the fac- tors that further worsened human Those living in the vicinity of the Park rights conditions in the field of con- are mainly poor, landless dalits, and servation. The Nepalese Army has indigenous communities such as Tharu, been deployed for Musahar, Bote, and Chepang. They protecting the PAs. Militarization of have little access to local social and Around 5000 army PAs is one of the political institutions, including politi- personnel have been factors that further cal parties, media, NGOs or other civil stationed in various society forums in general. They also PAs. International worsened human have little awareness of modern citi- conservation agen- rights conditions zenry rights, especially political and cies have recognised in the field of legal rights. Abuse of human rights has the Nepalese Army's conservation. therefore continued unabated or un- "exemplary efforts challenged most of the time. to combat poaching and illegal trade in endangered species, in particular Origins of conservation-related the leopard, the rhinoceros, and the human rights violations in Nepal tiger".15 It should be noted that un- Historically, Nepal’s conservation move- til recently (mid-2006) the Nepalese ment was little familiar with human Army has been within the tight grip of rights. The conservation agenda had the autocratic monarchy and has had been initially promoted by domestic a notorious history of committing seri- and international conservationists with ous human rights violations.16 Given strong backing by the autocratic kings this, one can hardly expect the army to and other members of the royal family. respect human rights in the context of Three factors, in particular, contributed protected areas. to the establishment and consolida- tion of PAs in Nepal. Firstly, the ruling The feudal legacy within conservation elites (especially late king Mahendra, a is another factor leading to sidelin- great hunter), saw their hunting para- ing human rights. Both the royal fam- dise disappearing and were concerned ily and the Nepalese Army, which has about the protection of game species. historically been loyal to the monarchy, Secondly, the Theory of Himalayan En- have been active in conservation. Park vironmental Degradation12 drew inter- staff also had close ties with the royal 15, July 2007 301 Conservation and Human Rights family during the Panchayat, though which] 808 persons were killed by the this relationship slightly diminished state security forces and 450 by the after 1990.17 However, even after the Maoists.…Extrajudicial killings, arbi- establishment of a multiparty system, trary arrests, incommunicado detention park managers and other staff saw the and 'disappearances' are escalating to royal family as their true patrons and alarming numbers”.22 felt privileged during their recreational visits to the parks (usually for hunt- At this time of increasing human ing).18 Their continued loyalty to the rights crises, a peaceful resistance royal family is demonstrated by the movement involving rights activ- following quote from a park warden: ists, media persons, lawyers, doc- “With the compassionate affection [and tors, teachers and students gradu- the] blessed and able leadership of His ally developed and gained influence, Majesty, all the environmentalists and drawing largely on the human rights conservationists engaged in the field framework. Since the conflict was of biodiversity have received incessant led by the Maoists, i.e. a communist inspiration to engage in the very noble party, it drew the particular atten- work of conservation”.19 tion of human rights movements, the press, and governments in the Royal coup, democratic West. Intensive public education movement and human rights campaigns on legal literacy, women’s discourse rights, rights of dalits, and rights to information were launched by vari- Nepal experienced over 237 years of ous development agencies and NGOs. autocratic monarchy. During this pe- Even government agencies, including riod, serious human rights violations the police and army, were coached on occurred including arbitrary detention, human rights issues. Gradually, the extra-judicial killings, and enforced human rights movement became part disappearances, in the apparent ab- of the democratic movement against sence of a rule of law.20 For the last the royal takeover. Finally, the King’s decade, the Maoist-led violent conflict direct rule collapsed, the elected par- crippled the country, resulting in se- liament was reinstated, a government vere security and livelihood crises. In was formed by a seven-party alliance, the shadow of Maoist insurgency, King and a comprehensive peace deal was Gyanendra, backed by the Nepalese signed by the government and the Army, took over the executive power, Maoists. A new interim parliament dismissed the elected parliament and and interim government have been government, and imposed his own rule. formed and will hold elections for a Human rights activists both at home Constitutional Assembly. and abroad were frustrated by abuses by security personnel and Maoists alike Sikharam’s death took place at the during this period,21 as reflected in time of these democratic transitions. As this excerpt from a human rights re- a result, strict conservation approaches port: “Gross human rights violations based on strong bio-centric beliefs have increased after the royal takeover. been increasingly challenged, demand- After the royal takeover, the number ing integration of the human rights of people killed per day has doubled. agenda. Rights activists, media persons A total of 1258 persons have been and civil society organisations consid- killed in connection with the Maoists' ered Sikharam’s death a stark viola- 'People's War' after the royal coup, [in 302 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? Rights... environment… tion of human rights by a ‘reactionary and indigenous, welcomed the ver- bureaucracy’. There was widespread dict. For the first time they could trust anger against a behaviour that con- that the state, particularly the judicial tinued to disregard fundamental civil system, would provide justice for the rights of the citizens. The rights activ- poor and disadvantaged. Tej Bahadur ists, local people, political party cadres, Majhi, a local fisherman said: “It is media and other sections of civil soci- incredible. I still cannot believe that ety formed an alliance to protest this the (assistant) warden is now in the incident. They launched a campaign jail. Something has definitely changed including street protest, mass meet- in this country.” Local people appeared ings, lobbying government ministers, to see the verdict as a victory, espe- and filing a court case against the park cially those suffering the strict punitive officials demanding legal redress and measures of the park officials. Linking fair compensation to Sikharam’s family. this ‘victory’ with the recent success- ful people’s movement, one of the local In the face of increasing public pres- political activists said, “Had King Gy- sure, the Ministry of Forest and Soil nandra’s rule continued in this country, The event was a cata- Conservation suspended the of- many of such events would have been buried under the soil.” lyst for the people of ficers involved in Chitwan to express the incident. The Conflicting perspectives on their agony over police arrested human rights them and held Forestry professionals, under the lead- decades of grievances them in custody, ership of Nepal Forester’s Association against the park and a case was (NFA) and Rangers Association of Ne- authorities and secu- filed demand- pal (RAN) opposed the arrest and trial rity personnel. […] ing punishment of the concerned of the park officials. They protested poor and indigenous officials. During through a nation-wide one day strike, submitted a letter of protest to the people could for the the trial, protests Minister, and issued a press release. first time trust that against the death They strongly objected to officials being the state, particularly continued in Chitwan, largely tried under civilian law and demanded that the case be tried under public ad- the judicial system, supported by the ministration law, which would take the would provide justice. political parties case toward a much softer corner. They and civil soci- blamed the Minister for not protect- ety activists. The event was a catalyst ing the officials involved. They argued for the people of Chitwan to express that charging park officers for “minor” their agony over decades of grievances abuses of human rights would kill the against the park authorities and secu- morale in the bureaucracy and create rity personnel. disincentives to arrest, interrogate and punish the poachers. If conservation The court eventually declared that the officials were constrained in their ac- death was caused by excessive use of tions, they would not be able to control force, and one assistant warden and the poachers, who have close ties with one ranger working with the Chatwan illegal gangs both within and outside National Park were found guilty and the country. These claims brought the therefore sentenced with imprison- case for human rights into question ment. The local people, mainly poor and led to reinforcement of army-based 15, July 2007 303 Conservation and Human Rights and strict conservation practices. Recently, a series of discussions have been organised on the problem of rhino Meanwhile, the problem of rhino poach- poaching, as it has drawn wider atten- ing escalated in the Chitwan National tion from diverse sections of Nepalese Park. A sharp decrease in rhino popula- society. Conservationists, park bureau- tion was noticed between two counts— crats, politicians, civil society members from over 544 in 2000 to only 372 in and representatives of local and indig- 2005.23 Since this last count, 37 rhinos enous people have their own analysis have been killed by poachers. The rhi- of the problem and solutions according nos are usually killed using guns, elec- to their perspectives, world views and tric wire trap, or poison. Well organised specific vested interests. Two major per- networks of poachers with access to spectives can be observed in the current power centres usually involve local debate on the death of Sikharam and people in trapping and killing rhinos. the ongoing rhino poaching in Chitwan. Despite the high priority given to stop- ping rhino poaching, the park authori- The first view favours a military solu- ties have largely been unable to pre- tion with stringent punitive measures. vent it. Instead, there has been general It advocates empowering the park rise in poaching in the recent years.24 authorities with additional legal and administrative means so that they The rhino is an icon for Chitwan Na- are not constrained by the “unneces- tional Park from various perspectives. sary” charges of human rights abuses. It is one of the endangered species, the Conservationists, park bureaucrats major attraction for tourists, and fa- and some politicians see the reduc- mous in popular discourse of conserva- tion of army deployment in the park tion, education, and eco-toursim. His- due to the Maoist insurgency as the torically the rhino had been accorded a main cause of increased rhino poaching special status. From the time of Rana in recent years. For them, reinstate- Prime Ministers in the early 19th cen- ment of army posts and increases in tury, the rhino was identified for exclu- army personnel are the solution. For In Chitwan sive royal hunting. them, the end of the autocratic rule, National Park, In fact, the primary impetus to establish establishment of a democratic pol- ity, proliferation of popular discourse the entire notion the park came, in the on human rights, and the agenda of of conservation of early 1960s, from democratic restructuring of the state biodiversity has concern over the have little relevance to conservation. protection of rhinos. Indeed, conservation practice gener- been reduced to Indeed, in Chitwan ally allows little political space for local rhino conservation. National Park, the affected people. Comparing conserva- entire notion of con- tion practice in Nepal with that of China servation of biodiversity has been re- and India, one park warden argues for duced to rhino conservation, as a result unlimited power for park authorities to of incessant promotion of conservation shoot any intruder.25 Similarly, as noted discourse by conservation agencies earlier, NFA, an organization represent- and the government. It is no surprise ing forest professionals and defending that the Nepalese parliament has also the park officials in Sikharam’s case, devoted much time to discussing the argued that the officials were simply issue of rhino poaching and protection. performing their duty according to the law and had no personal interest in kill- 304 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? Rights... environment… ing Sikharam. The secretary of the NFA management of PAs.26 The continuous made it explicit in a meeting that pun- alienation of the local people for over ishing the officials on duty might force three decades has the officials to refrain from undertaking made them indif- Human rights their everyday duties. ferent towards loss activists strongly of biodiversity. argue that violations This view proposes military solution Moreover, for many of human rights can to control the poaching and therefore local people the recommends for more security posts, rhino symbolises never be justified to increased army personnel, increased their main enemy, protect non-humans’ surveillance and stringent punitive as it causes crop rights or those of measures along with increased author- damage and hu- future generations. ity to park officials in order to curb ille- man casualties. gal activities in the Park. Although they As long as they recognise socio-economic factors in- will see the Park as the government’s cluding poverty that encourage poach- property, they will continue to see the ing, they are not ready to accept liveli- rhino as belonging to the state and hoods as fundamental human rights. will not feel a responsibility to con- For them supporting local livelihoods serve it. Introduction of a buffer zone is only a strategic move to garner local programme that provides economic support to conservation. incentives to the local people has also been largely limited to benefiting lo- Unfortunately, conservationists’ self- cal elites.27 Consequently, the Park has asserted claim that they are nature’s not been able to garner the support of only true caretaker with a long-term the large mass of marginalised groups outlook is at odds with the perspectives in and around it. The rights activists and rights of local people. Indeed, local and other civil society groups therefore people can share important responsi- argue that rhino poaching could not be bilities of protecting nature for future controlled without improving the exist- generations and for its intrinsic value. ing poor public support for conserva- The problem is that the conservation tion. Although some conservationists agencies assume local people have too see these deaths as ‘minor’ incidents narrow a perspective and hardly share or ‘necessary’ sacrifice for larger goals the ‘burden’ of their responsibility with of nature conservation, human rights the diverse actors in the society. activists strongly argue that violations of human rights can never be justified The second view emphasizes the need to protect non-humans’ rights or those to understand the problem of con- of future generations. servation involving social, economic, and cultural rights of people. Such an Although questions like whether rhino outlook is largely shared by local and conservation or human interests come indigenous communities in the Chitwan first divide conservationists and hu- valley, many civil society organisations, man rights activists, broader questions and some rights activists. For them, such as who decides the conservation people should come first, followed by agenda and how the costs and benefits rhino. They reject the idea that Sikhar- of nature conservation are distributed am’s death can be traded off with rhino between the state and different groups conservation and link the problem of citizens clarify these debates. The of rhino poaching with exclusionary conflict between rhino conservation 15, July 2007 305 Conservation and Human Rights and human interests in Chitwan valley protest rallies, and that is why politi- is largely a product of modern nature cians do not listen to them.30 conservation approaches focusing on protected areas, and must be exam- Lack of adequate attention by the ined through discourse, institutions and government (at the political level) to actors around conservation practice. As continued rhino poaching has further the political ecology perspective holds, increased concern society-nature relations are reflections among the conserva- A single argument of broader social arrangements. In this tion lobby. Several runs throughout light, conservation discourse and prac- suspected poach- discussion, tice are historically produced to serve ers were released the interests of dominant groups, de- in early September writing and policy legitimizing the rights of the local peo- 2005 through politi- prescriptions of the ple who depend on park resources. 28 cal decisions, a move conservationists: opposed by conser- more army posts Despite the entrenched exclusionary vation groups includ- ideologies of conservation, the re- ing IUCN and WWF.31 are required to curb cent upsurge of powerful discourses Despite constant rhino poaching. on democracy and human rights has warnings by conser- presented significant vationists and some sections of civil “The rhino does not challenges to biodi- society, more and more detainees of go in for hunger versity and environ- conservation offences are being re- strikes, burn tires, mental conservation leased. Many of those poachers re- practices. During the leased prior to the completion of their stop vehicular current transitional punishment are said to have returned movement, or period (since mid- to their old business. Moreover, only organize protest 2006) political parties minimum punishment is given to even rallies, and that is in Nepal have become the most dangerous poachers with no- powerful actors. As torious track records.32 Although clan- why politicians do has often been the destine relations between politicians, not listen to them.” case, the political par- bureaucrats and criminals were not ties, particularly at the uncommon during the past autocratic local level, have expressed full support regime, they were less evident in rela- for the immediate concerns of people in tion to the poachers due to strong con- their constituencies. They tend to think servation commitment of the members of short-term political gains rather than of the royal family. The current early long-term environmental interests. As release of poachers is often attributed one of the political leaders put it, “rhi- to recent political change and transition nos wouldn’t vote for our party; why towards liberal democracy; there are should we privilege rhino over peo- suspicions that the poachers may take ple?”.29 Within this joking comment lies advantage of the more liberal polity by an inherent rationale as to why politi- using corrupt politicians and bureau- cians prefer to side with the voices of crats to facilitate early release in ex- local people, rather than taking the change for benefits from vested political side of the rhino. In a similar vein, Ms and economic interests.33 As one WWF Rai, a columnist in a daily newspaper, officer commented, the decision under- has rightly pointed out that rhino does mined the long record of conservation not go in for hunger strikes, burn tires, achievements in Nepal: "The release stop vehicular movement, or organize of these rhino poachers and traders by 306 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? Rights... environment… the government of Nepal devalues the tions are exposed by the early release efforts that conservationists from within of dangerous poachers while demands the government, communities, and for increased army posts and stringent partner organizations, who have worked punishment for offenders fail to receive so hard to achieve in the past four dec- local support. ades of saving rhinos in Nepal."34 The establishment of a democratic pol- Unfortunately, continued poaching has ity and popular discourse on human allowed further rationalisation of mili- rights appears to have induced two par- tary solutions to the problem. A single allel but opposing processes. Local peo- argument runs throughout discussion, ple, various civil society organisations, writing and policy prescriptions of the and rights activists in particular are now conservationists: more army posts enjoying enough space to raise issues are required to curb rhino poaching. of social, economic and cultural rights Conservation authorities have become to local environmental resources. Local blind to any alternative modalities of people are now better organised, have conservation and instead continue to gained communicative competence and emphasise militarising the parks to are defending their customary rights. conserve biodiversity and wildlife. Even As the case of Chitwan National Park the buffer zone management councils shows, they have become influential in have recommended increasing army bringing park officials to justice, ulti- posts in Chitwan National Park. mately making the officials account- able for their actions. Now the officials The challenge of embracing have to change their practice drastically human rights in conservation and think twice before using excessive Sikharam’s death demonstrates the force. This is, however, seen as a seri- significance of human rights within ous setback for the enthusiasm and conservation efforts. The sheer mass efficiency of the park officials who have and diversity of local people and oth- long been acquainted with conventional ers who sympathised with the death of approaches to control poaching. Sikharam and expressed their anger against the park authorities is a testa- From the opposite end, a liberal demo- ment to the level of hu- cratic polity and Historically, man rights abuse by the human rights dis- Bureaucratic the disregard park authorities. On the course have given disposition and leeway to the gov- the relative comfort for human other hand, the respons- ernment for early rights has been es of conservationists conservationists and forest bureaucrats release of many a symptom of reveal the strong bio- detainees and for enjoyed during conservationists’ centric position that has soft punishment.35 autocratic regimes Although the early have made it unequal power been institutionalised release of many de- within conservation pro- relations with grammes in Nepal: con- tainees was part of difficult to embrace local people servationists put nature political generosity new principles first. Historically, the shown by the newly of human rights disregard for human rights has been formed democratic and to transform a symptom of conservationists’ un- government, some of the dangerous conservation practice. equal power relations with local people. Today, current institutional contradic- criminals also benefited from this de- 15, July 2007 307 Conservation and Human Rights cision. As demonstrated by increased principles of human rights and to trans- rhino poaching, generous treatment of form conservation practice. poachers often has negative impacts on protection. Such government deci- Conclusion sions have rewarded the criminals while The heavy influence of a protectionist demoralising some of the park staff who conservation ideology, the use of the are honestly engaged in rhino protec- military as the sole protector of flora tion. Apart from weakening their en- and fauna, and a strong legacy of feu- thusiasm and willpower to arrest and dalistc attitudes nurtured by the ruling detain suspected poachers, these kinds elites have historically contributed to of interferences alienate park officials the abuse of human rights in Nepal’s from protection tasks and jeopardise the conservation programmes. During the sustainability of the PA system in Nepal. Panchayat period, the autocratic political regime supported exclusionary manage- During personal interviews and con- ment of PAs so that violations of human versations with local people and au- rights were covered up or suppressed. thorities around the Chitwan National The legacy is so entrenched that even Park over the past several years, con- the recent radical political changes have servationists openly admit that they only partially exposed the practices that have been facing enormous difficulty in are counter to human rights standards. addressing the growing human rights movement on issues related to national After a decade-long violent conflict, parks. It appears that their bureaucrat- a democratic political system with an ic disposition and the relative comfort increasingly powerful human rights they enjoyed during autocratic regimes discourse has been established. Con- have made it difficult to embrace new servation authorities who used to enjoy unlimited power against anyone violat- ing the park rules regulations are now facing immense resistance from the burgeoning civil society. While this may be good news for many victims of exclu- sionary PA management, the authorities have found themselves in a very difficult situation in fighting against the poach- ing mafia. Poachers have benefited from liberal political trends by manipulating corrupt politicians and bureaucrats. Fur- ther, the anti-poaching image of con- servation authorities is blurred by the overt and covert associations of some of the officials with poaching networks, making it difficult to fully rely on con- servation officials to meet anti-poaching goals. Conservation authorities still tend to assume sole responsibility for pro- tecting PAs, and are reluctant to share their role and responsibilities with other Picture 2. Local fisherman repairing his fishing stakeholders including local people. net. (Courtesy Naya Sharma Paudel) Consequently, they have been found 308 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? Rights... environment… too weak in facing challenges of either 4 Colchester, 1997; Schwartzman et al., 2000. protecting the integrity of the park or 5 Terborgh and Schaik, 2002. adequately respecting local people’s hu- 6 CVICT, 2006; CITES, 2006; Ghimire, 2006. 7 Ghimire, 2006. man rights including economic, cultural, 8 Poudel, 2006; Ghimire, 1992; Shrestha and Conway, and other citizens’ rights. 1996. 9 Paudel, 2005; Soliva et al., 2003. Conservation authorities, due to their 10 Paudel, 2003; Paudel, 2005a. long association with the autocratic po- 11 Paudel, 2005a. litical regime, are reluctant to embrace 12 A term coined by Ives and Messerli (1989) to de- issues of human rights. They are also scribe the body of literature, particularly a treatise on hill deforestation by Eckholm (1976), that high- not trained to work in collaboration with lighted environmental degradation in the Nepalese empowered stakeholders who cannot be hills. This was was largely attributed to the in- easily controlled. The fundamental issue creased hill population and ‘primitive’ farming prac- tice leading to environmental degradation including here is that human rights have are not deforestation, erosion, and landslides in the region. perceived as guiding principles for the 13 Eckholm, 1976. conservation authorities but as a burden 14 Muller-Boker, 1999. posing a serious challenge to protecting 15 CITES, 2006. the integrity of the PAs. In this situa- 16 Amnesty International, 2006. tion, a small and emerging network of 17 Bhatt, 2003. critical civil society groups provide an 18 Bhatta, 2003. important source of hope for substan- 19 Upadhyaya, 2001:vii. tive change. These groups expose the 20 INSEC, 2006. 21 HRTMCC, 2005. practices of human rights violations and 22 INSEC, 2005: 4. empower the victims by helping them 23 GoN, 2006. to organise. In so doing, they challenge 24 TRN, 2007. two facets of the problem— the bio- 25 Kunwar, 2007. centric legacies of conservation authori- 26 Ghimire, 2007. ties, which undermine the fundamental 27 Paudel, 2005b. human rights of local people, and the 28 Brockington, 2004; Guha, 1987. feudalistic legacies of politicians, who 29 Quote from one of the party leaders of Nepal Sadb- lack both environmental sensitivity and hawana Party (Aanandidevi). public accountability. 30 Rai, 2007. 31 WWF, IUCN and NTNC, 2006. Naya Sharma Paudel (nsp@forestaction.wlink.com.np) 32 CITIESNEPAL, 2007. Also evident by a recent case in works as Coordinator of ForestAction, a Kathmandu-based which a park warden hearing a case of a notorious NGO working on environmental governance and forest re- poacher with a record of illegally possessing over 17 source management. Somat Ghimire rhino horns has imposed only a minimum sentence. (cdonepal@wlink.com.np) works with Community Develop- ment Organisation, also in Kathmandu. Hemant Raj Ojha 33 CITIESNEPAL, 2007. (hro@forestaction.wlink.com.np) works with the Environ- 34 Williams, 2007. Statement made by Christy Wil- mental Resource Institute in Kathmandu. liams, coordinator of WWF's Asian Rhinoceros and Elephant Action Strategy. 35 See Ojha (2006) for an overview of how technocrat- Notes ic mindset under liberal democratic polity dominates 1 Economic incentives that attempt to address liveli- forest governance in Nepal. hood needs of local people have recognised social and economic needs only as strategic means to conservation. Conservation programmes have yet References to recognise these needs as basic human rights ir- Amnesty International, Nepal: A decade of Suffering respective of their contribution to conservation. and Abuse, press release, 10 Feb, 2006. 2 Brockington, 2003; Brockington and Schmidt-Sol- Bhatt, N., "Kings as Wardens and Wardens as Kings: tau, 2004; Chapin, 2004. Post-Rana Ties between Nepali Royalty and National Park Staff", Conservation and Society 1(2): 247-268, 3 Kothari et al., 1996; Homewood and Brockington, 2003. 1999; Brockington et al. 2006 Brockington, D. "Community conservation, inequality 15, July 2007 309 Conservation and Human Rights and injustice: myths of power in protected area man- vice Centre, Kathmandu, 2006. agement", Conservation and Society 2(2): 411-432, Kothari, A., N. Singh and S. Suri, People and Protected 2004. Areas: Towards Participatory Conservation in India, Brockington, D. and K. Schmidt-Soltau, "The social and Sage Publications, New Delhi, 1996. environmental impacts of wilderness and develop- Kunwar, K., “Wrong attitude towards conservation” Kan- ment", Oryx 38(2): 140-142, 2004. tipur Daily, page 6, January 15 2007. Brockington, D., "Injustice and conservation- is local Muller-Boker, U., The Chitwan Tharus in Central Nepal: support necessary for sustainable protected areas?", An Ethnological Approach, Franz Steiner Verlag Stutt- Policy Matters, 12: 22-30, 2003. gart, Stuttgart (Germany), 1999 Brockington, D., J, Igoe and K. Schmidt-Soltau. “Con- Muller-Bèoker, U. and M. Kollmair, "Livelihood Strategies servation, human rights and poverty reduction.” and local perceptions of a new nature conservation Conservation Biology, 20(1):250-252, 2006. project in Nepal.", Mountain Research and Develop- Chapin, M., "A Challenge to conservationist", World ment, 20(4): 324-331, 2000. Watch, 17-31, 2004. Ojha, H., “Techno-bureaucratic doxa and the challenge CITES, Certificate of Commendation to Nepal authorities of deliberative governance— the case of community for their combat against wildlife poachers and traffick- forestry policy and practice in Nepal”, Policy and Soci- ers, CITES awards, 2006. ety, 25 (2), pp 131-175, 2006. CITIESNEPAL, “The nexus of wildlife traders at large”, Paudel N. S., “Protected areas and reproduction of so- Wildlife Times, 1(2): 1-2, 2007. cial inequality”, Policy Matters, 14:155-168, 2005a. Colchester, M., "Salvaging nature: indigenous peoples Paudel, N. S., “Conservation and livelihoods: exploring and protected areas", pages 97-130 in Ghimire, K. local people's responses to conservation interventions B.and M. Pimbert (eds), Social Change and Conserva- in Royal Chitwan National Park, Nepal”, International tion: Environmental Politics and Impacts of National and Rural Development Department, University of Parks and Protected Areas, Earthscan London, 1997. Reading, Reading (UK), 2005. CVICT, Field Based Report on Shikharam’s Death in Paudel, N. S., Buffer Zone Management in Royal Chit- Chitwan National Park. Centre for Victims of Torture, wan National Park: Understanding the Micro Politics, Kathmandu, 2007. Making Ecosystem Based Management Work, 5th Eckholm, E. P., Losing Ground: Environmental Stress International SAMPAA Conference 11-16 May, 2003, and World Food Prospects, W. W. Norton & Company, University of British Columbia, Science and Protected New York, 1976. Area Management Association, Victoria (Canada), 2003. Ghimire, K. B., Forest or Farm? The Politics of Poverty and Land Hunger in Nepal, Oxford University Press, Poudel, R.K., “Man eater National Park”, Samaya Delhi, 1992. weekly, 3(132): 16-17, 2006. Ghimire, P., "'Tortured' detainee in national park dies in Rai, S., “Rhinos do not go for hunger strike”, Kantipur hospital", The Kathmandu Post, Kathmandu, June 15, Daily, Page: 7, January 8, 2007. 2006. Redclift, M., "The Meaning of Sustainable Develop- Ghimire, S., “Conservation at People’s Hand” Samaya ment.", Geoforum, 23(3): 395-404, 1992. Weekly, Page: 40, February 2007. Schwartzman, S., A. Moreira, and D. Nepstad, "Re- Government of Nepal, The Greater One-horned Rhinoc- thinking Tropical Forest Conservation: Perils in Park", eros Conservation Action Plan for Nepal (2—0-2011), Conservation Biology 14(5): 1351-1357, 2000. Government of Nepal, Ministry of Forestry and Soil Shrestha, N. R. and D. Conway, "Ecopolitical battles at Conservation, Department of National Park and Wild- the Terai frontier of Nepal: an emerging human and life Conservation, Kathmandu, 2006. environmental crisis.",International Journal of Popula- Guha, R. "The Authoritarian biologists and the arro- tion Geography, 2(4): 313-331,1996. gance of anti-humanism: wildlife conservation in the Soliva, R., M. Kollmair and U. Müller-Böker, "The Social Third World.", The Ecologist 27(1): 14-19, 1997. Context of Nature Conservation in Nepal.", European Homewood, K. and D. Brockington, "Biodiversity, Bulletin of Himalayan Research, 24: 25-62, 2003. conservation and development in Mkomazi Game Re- Terborgh, J. and C. V. Schaik, "Why the world needs serve, Tanzania", Global Ecology and Biogeography, Parks", pps 3-14, in Terborgh, J., C. V. Schaik, L. Dav- 8(3-4): 301-313, 1999. enport and M. Rao, Making Parks Work: Strategies for HRTMCC, Sankatkal and Manabadhikar: Sidhanta ra Preserving Tropical Nature, Island Press, Washington Byabahar (Emergency and Human Rights: Theory and D.C., 2002. Practice), Human Rights Treaties Monitoring Coordi- TRN, "Lack of coordination cause increased rhino poach- nation Committee, Kathmandu, 2005. ing", The Rising Nepal Daily, March 31, 2007. INSEC, 300 Days of Royal Takeover: 1 Febru- Upadhyaya, G. P., "Preface", Souvenir, Narayangarh, ary— 27 November 2005, Human Rights Docu- Buffer Zone management Council: vii-viii, 2001. mentation and Dissemination Centre, Informal WWF, IUCN and NTNC Press release, Kathamndu, 2006. Sector Service Centre (INSEC), Kathmandu, http://www.cites.org/eng/news/press/2006/060323_ 2005. URL: http://www.inseconline.org/report/ nepal.shtml 300%20days%20of%20royal%20takeover.pdf visited on April 16, 2007. INSEC, Human Rights Year Book, Informal Sector Ser- 310 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? Rights... environment… The Rights of Indigenous Nomadic Pastoralists— a guarantee for rangeland conservation in Iran Mansoor Khalighi Abstract. In Iran, nomadic users of natural resources migrate seasonally as a double strategy for the conservation of nature and sustainable livelihoods. There are some 700 of these indigenous tribes in the country whose very identity depends on this mobility. Since the 1920s, however, a number of governmental policies and practices have consistently attempted to undermine the nomadic livelihoods and lifestyle. Among those are forced and induced sedentarisation policies, “development” initiatives (e.g., creation of urban areas and infrastructures, mining explorations and agricultural fields that have interrupted the migratory patterns), the nationalisation of rangelands, and the active undermining of the social organisation of the nomadic tribes. In this historical context, the nomadic communities were even considered a “barrier” to national development and modernisation, and their social identity suffered as a consequence. This paper discusses the socio-economic and ecological significance of migratory pastoralism and emphasises the role of local knowledge in conservation and its great potential when coupled with a respect of collective rights. Customary forms of governance and management of natural resources can foster harmonious relationships among people, livestock, and the broader environment. It can be argued that the critical rea- son for the deterioration of the natural Capitalism is based on the exploitation and control of labour force and natu- ral resources. It is a system that relies resources of Iran has been the nation- on mass production and permanent alisation of the country’s forests and innovation, driven by over-consump- rangelands. This policy was closely con- tion. Under such a system, “conserva- nected to the expansion of capitalism tion of nature” is a neglected value, and the industrialisation of the country, and so are human rights—in particular which go back to the early 1960s. the collective right of people to deter- mine their lifestyles and preserve their cultural identify. The most distinctive character of capitalism is domination over the relations between the labour force and the means of production, including through the ownership of such means. Land is a most significant element in the pattern. In its relent- less expansion, capitalism has consist- ently ignored the rights of peoples, and particularly so of foreign nation and Picture 1. Because of their dependency indigenous peoples. Its success has on pastureland, migrating pastoralists depended on gaining control over land have tended to manage it sustainably and and other resources, usually previously help to improve its quality—with results held by local communities. In some generally far superior to those attained in countries where capitalism developed the pasture used by sedentary villagers. (Courtesy CENESTA) rather unevenly, the state machinery 15, July 2007 311 Conservation and Human Rights also played a crucial role, paradoxically is more a political choice than an in- behaving like a private capitalist actor. evitable historical process; in Iran, the In the last centuries and accelerat- government played a decisive role in ing during the XXth century, nearly all this choice. The State became the sole over the world community governance owner and manager of natural resourc- over natural resources has been stead- es, with a policy objective of obtaining ily nearly completely substituted by and consolidating its power over the private governance (individual or cor- national economy as a whole. State porate landowners) or centralised state domination and the expansion of its governance. Iran represents a case in own bureaucracy were pursued at the point. cost of human rights of the indigenous peoples of Iran and customary govern- After World War II, capitalism expand- ance institutions, local knowledge sys- ed all over the world and came to affect tems and the sustainable use of natural the environmental and socio-economic resources. situation of most countries. During the second monarch of the Pahlavi dynasty The nationalisation process and its (1941-1979) the Iranian government consequences severely harmed the centralised the ownership and govern- nomadic pastoralists that were depend- ance of natural resources. The na- ent on rangelands for their livelihood. tionalisation of forests and rangelands The “land reform” of 1963, including paved the road for the domination of the nationalisation of natural resourc- the state over traditional modes of pro- es—which many experts and local com- duction, land, and people. The latter munities now consider a grand catas- were actually needed as labour force in trophe in which legitimate customary capitalist development and the Iranian rights and resource management insti- state acted as the agent of the capital- tutions were sacrificed for the sake of ist force in itself, extending its control moving small producers and indigenous to economic, natural and human capi- nomadic pastoral tribes off the land— tal. It also gave free reign to foreign led to development plans that ignored investments, which negatively affected the basic rights to natural resources, both national capitalism and the tradi- and the needs and priorities of nomadic tional, community-based lifestyles, left communities and in many instances with very little space to manoeuvre. also of other local communities such as Ambitious economic development plans forest peoples, fishing folks and small led an economic growth that carried farmers.1 The conflicts between the with itself detrimental social and envi- government and the indigenous tribal ronmental consequences. The adoption confederations, and the disintegration of industrialisation as a national policy of their social organisation, tore apart Figure 1. Historic events in Iran affecting nomadism & rangelands (Courtesy P.Ghoddousi, N.Naghizadeh, & T.Farvar) 312 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? Rights... environment… the traditional relations of governance public of Iran did not bring about any of natural resources and the customary fundamental change in state policy use of, and care for, the land. Nomadic towards the mobile nomadic pastoral- pastoralists became increasingly isolat- ists. State management of rangelands ed. At the same time, agriculture, par- went on the same way, pushing for ticularly large scale industrial farming, the sedentarisation of nomadic tribes was let entirely free to expand, con- in either their wintering or summering tributing to soil erosion, environmental territories. The best of the rangeland pollution, and sucking up ground water areas were earmarked for state sed- in unsustainable ways. The pastoralists entarisation schemes without the prior suffered increasingly and directly from informed consent of the nomadic peo- the impact of this water shortage. ples, causing great stress on the al- ready weakened livelihood and natural The fall of the Pahlavi dynasty and resource management systems of the its replacement by the Islamic Re- indigenous nomadic peoples. Forced sedentarisation was imposed on us in the twentieth century. Various governments seized our rangelands and natural resources throughout the last centuries. All sorts of “development” initiatives including dams, oil refineries, and military bases interrupted our migratory paths. Our summering and wintering rangelands were consistently degraded and fragmented by outsiders. Not even our social identity was left alone. Our story is similar to the story of nomadic pastoral- ist peoples all over the world, under all sorts of regimes that do not bear to let us manage our lands and lives…We, pastoral peoples, have always considered our land what you would call a “protected area”. We have always embraced “conservation” not as a professional activity but as intimate duty and pride of every member of our tribes, as the heart of our livelihood, because our very subsistence depends on it, because we pray on the same lands, and we take care of them as sacred places. I hear you talk of ecosystems, landscapes and connectivity. We have always known about this without using your terms. (Source: Speech of Uncle Sayyad, Elected Head of the Council of Elders of Kuhi sub-tribe and the Shish Bayli Tribe of the Qashqai Confederation of Nomadic Pastoralists, World Parks Congress of 2003) The failure of externally imposed regulations. In fact, the interference natural resource management of the state in customary management systems of rangelands created severe and damaging competition among villagers, It is now clear that centralised pastoralists, and ex-landlords. The government management has failed traditional methods of rangeland to effectively replace the customary management were plunged into total rangeland management systems. There confusion. As an example, sedentary appear to be several reasons underlying villagers who own livestock enter the this failure. The first reason is that rangelands illegally in the spring, before nomadic communities broadly mistrust the migrating pastoralists arrive to graze the government and are unwilling their flocks on the same land during the to “participate” in its initiatives and summer. When the pastoralists later plans. Other reasons that contribute migrate to their wintering territories, the to explaining the government’s failure villagers return to graze their flocks in include its inappropriate institutions the same rangelands, or plough the soil for the economic transition, its limited for cultivation. Rangelands are thus used financial and human resources— 240270- days per year instead of the unable to match the tasks, and customary 7590- days…. the lack of appropriate laws and 15, July 2007 313 Conservation and Human Rights “The routine violations of our rangelands leave us with no motivation to take care of them. If only we had security of tenure over the rangelands, we would apply our customary ways of land use. At present, knowing that some villagers will plough our grazing lands before we get there, forces us to migrate earlier than expected. If the government prevented the villagers from cultivating the land, the nomadic pastoralists would care for the rangeland themselves.” — from an interview of the author with a Qashqai nomadic pastoralist) Governance (including the new owner- ties, the main actors supposed to imple- ship norms) is a critical difficulty facing ment the projects, are not even aware of pastoralist community rights. It is widely what the projects entail, and do not see understood that the present system, any benefits in them. The projects have based on the individual “grazing permit”, failed miserably to promote any sense of is not effective and has failed to properly “ownership” among the people supposed replace the previous system of range- to carry them out.3 land governance. A permit entitles most livestock breeders to use the rangeland The main weakness of many of the for only 50 animal units. This number is above mentioned projects lies in their too low for pastoralists whose livelihood incompatibility with the local situation. depends on livestock. Besides, the regu- Many project plans are based on models lation is based on an outdated estimation originated in foreign universities and rely of rangelands carrying capacity, devel- on inventories of rangeland resources oped over 30 years ago. It should also conducted by “specialists” with limited be noted that “ranching” projects— the local field experience. Some such ex- only written and approved government perts barely pay perfunctory visits to programme dealing with the topic—have the rangelands that are the subject the faced many serious challenges. Accord- ranching proposals and spend little time ing to official reports,2 the very fact analyzing its geomorphology, water that numerous ranching projects were resources, soil characteristics, climate, either not approved, not carried out, or grass coverage, wild life and, even more stopped before their completion indicates importantly, the social and cultural char- the extent of problems they have en- acteristics of the communities involved. countered and the lack of a well thought- Such specialists do not believe in indig- out and coherent range management policy. The latest statistics show that half of the submitted proposals were never approved. The nearly 3,000 approved project would have covered only seven million of the 90 million hectares of rangeland in the country. Furthermore, many approved projects have failed to meet the goals envisaged in the propos- als that are hastily drawn up by private consulting firms who have no obligation to ensuring the success or even rel- evance of their mass-produced project proposals, as they are paid by the gov- ernment agencies, some of whom have had dubious relations of corruption with Picture 2. Expansion of cities blocks the the consulting companies in the past. migratory routes. It is reported that the local communi- (Courtesy Mansoor Khalighi) 314 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? Rights... environment… enous knowledge or in the participation ment during migration. This claim is of local communities in designing and also invalid since the expansion of urban elaborating the land management plans. areas, the construction of roads, the opening of new mines, the development The current official policies still aim at of industries and military bases, and the sedentarising mobile nomadic pastoral- transformation of rangelands into ag- ists. The authorities claim three reasons ricultural land have all harmed the ter- for their blatant invasion of community ritories to a much greater extent than rights in forcing nomadic pastoralists to livestock has or can ever do. According to abandon their yearly migration patterns. the remarks of the Head of the Technical Bureau of Forest, Rangeland and Water- First, it is asserted in the most simple- shed Management Organisation (FRWO), minded misconception that migration the migrating nomadic pastoralists are happens because of lack of amenities the ones who have damaged rangeland and comforts by mobile pastoral com- the least compared with the destructive munities. Some even say it is because interventions of others.4 But his opinion they lack appropriate means to keep is isolated. Local communities are broad- themselves warm in the winter and cool ly blamed as scapegoats for damaging in the summer! In other words, if they natural resources. And this is taken as an had houses they would not have a need excuse to support the forced sedentarisa- to migrate. It is also declared that no- tion of migratory nomadic tribes. madic pastoralists keep moving in search of food for their livestock. Once they Third, the authorities assert that are provided with sufficient feed for their many studies and statistics indicate livestock they will stop migrating. These the willingness of the mobile nomadic are not valid reasons to force sedentari- communities to settle. The construction sation upon them. And, as a matter of of houses in either wintering or fact, about 70% of nomadic tent-holds do summering grounds is given as proof to own some sort of dwelling units or hous- this claim. However many pastoralists es in either their wintering or summering consider the construction permit they territories and many of them use fodder use as a sort of “compensation” from the to feed their herd. Yet, they still continue government. They are ready to use their to migrate. The co-existence of tents and new houses, but will keep migrating with houses in the villages, the building of their livestock at the prescribed seasonal concrete stables for livestock, and even times. In other words, they do not wish the eviction of some nomadic settlements to quit their main job as herders, even are examples of mistakes made by gov- if they agree to take on agricultural ernment authorities in their hope of stop- activities as secondary sources of ping the people’s drive to migrate. livelihood. Some have been known to even use the rooms in the miserable Second, authorities claim that livestock, housing provided by government too abundant in number, damage the contractors for keeping their animals rangelands and cause quantitative and while they continue to use their tents as qualitative deterioration of the environ- preferred settlement for the household. Some laws and regulations are enforced to make the migrant pastoralists so desperate as to give up their main source of livelihood. When pastoralists cannot make their ends meet, they sell their herd. In this way, small scale livestock breeding is replaced by large scale animal husbandry under state control or other forms of land use. — from an interview of the author with a government specialist on pastoralism) 15, July 2007 315 Conservation and Human Rights deterioration of rangelands and oth- er natural resources. The gap between settled and mobile nomadic communi- ties is increasing due to the restriction of migrating routes, the ignorance and negligence of devel- opment planners re- garding the needs of migrating communi- ties, and the inatten- tiveness of decision makers in planning and budgeting. The current situation forces a trend to push for generate quick profits from the rangelands while losing their eco- logical integrity: the nomadic tribes are basically trapped. They have to de- crease the number of their livestock on which they rely as their main source of livelihood while the state keeps exerting pressure on them and fails to provide them with alterna- tives. To defend Figure 2. Invasion of customary communi- themselves, some nomadic tribes have ty rights over natural resources in indig- decided to strengthen their traditional enous nomadic territories—a schematic institutions and cultural heritage. They representation. See table page 318. are striving to revive their identity and (Indicative map courtesy Pooya Ghoddousi) to reorganise themselves in their social, The nomadic tribes face numerous chal- political, and economic structures by lenges. Their territories are increasing preserving control over their territories, appropriated by state or private compa- nourishing their cultural identities, and nies. Their livestock can never be food- maintaining their economic independence. secure because of a plethora of restrictive Some of them are powerfully succeed- rules and regulations and the extensive ing! They intend to keep their migratory lifestyle indefinitely.… 316 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? Rights... environment… One of the projects CENESTA initiated and implemented with the support of IIED (International Institute for Environment and Development) and the Dryland Development Centre of UNDP has offered an alternative to the current situation of the nomadic pastoralists in Iran. The project helps mobile nomadic communities to reorganise themselves in two related social and economic institutions— the Councils of Elders and the Community Investment Funds (sanduqs) for which the former act as the “board of directors”. These are in all cases organised through a process of participatory action research along the lines of tribal organisation, at the level of sub-tribes, tribes and where applicable, tribal confederations. Through innovative and flexible plans, the local com- munity is thus elaborating its own socio-economic self-management structures. This model de- rives from tribal traditions but encourages the community members to elect their representatives along customary lineage groups to run the Councils and their corresponding sanduqs. The ideal shift in the characteristics of decision making powers is presented schematically here. Bottom up Top down The restructuring of the nomadic tribes enables the least advantaged community members to find a voice in decision making. It also strengthens the position of nomadic pastoralists in gaining their rights for sustainable livelihoods and better access to vital rangeland resources. Making such a change in the structure of tribal communities is not an easy process. For best social and economic outcomes, a coalition of local-level stakeholders was developed to foster social communication and discussions. The project also engaged in raising the awareness of other social actors, espe- cially policy makers and government technocrats, about the capacities of mobile nomadic pasto- ralists for sustainable land and natural resource management. It has also attempted to build the capacity of community members and elders. The collaboration of CENESTA with government departments, such as the Forest, Rangeland and Watershed Management Organisation (FRWO), set the stage for making positive changes at the national levels. The FRWO has shown interest in recognising the nomadic tribal traditional terri- tories, with their summering and wintering grounds and the migration corridors in between. This is an important result since it can facilitate the process of solving the current legal conflicts over rangeland uses. It is one step towards redressing their rights, and consequently improving the governance and management of the country’s rangelands. Rights based conservation toralists have tended to manage them from “within”: building upon sustainably and help to improve its local knowledge and customary quality—with results generally far supe- natural resource management rior to those attained in the rangeland systems used by sedentary villagers. Nomadic communities have accumulated their Because of the close dependency on the knowledge of biodiversity conservation quality of rangelands, migrating pas- 15, July 2007 317 Conservation and Human Rights and sustainable livelihoods for a long the real situation. For these reasons, period and have passed it on from one nomadic management systems should generation to the next. Their knowl- be recognised and considered as the edge helps them in using the resources basis for natural resource management in sustainable ways, which naturally nationwide. Indigenous knowledge interplay with cultural practices and are and technology are also cost effective in harmony with the local beliefs and and save natural resources. They were conditions. Another significant charac- gained through centuries of observa- ter of customary management systems tion and practice and are generally far is that they are low-cost, and depend more sensible and applicable than those on local solutions, tools and equip- based on academic theories. ment, and are continually tested in Invasions and threats to community rights over natural resources Wintering grounds Migration routes & Summering grounds X Oil and gas refinery middle grounds X Land invasion by settled X Land invasion by seden- X Factories, e.g., cement plant farmers tary farmers & industrial- X Land invasion by settled farm- X Water source takeovers ized farming ers and industrial farming X Conversion of wetlands to X Expansion of urban and X Allocation of land for urban de- agricultural lands rural settlements velopment X Land grants to unrelated X Government-induced X Orchards obstructing migra- stakeholders ranching schemes—priva- tory routes X Decimation of wildlife and tization of the commons X Military bases habitats X Land grants to unrelated X Road/highway invasions X Government-induced ranch- stakeholders X Land confiscation for govern- ing schemes—privatization mental protected areas of the commons The relation among the different com- enrichment through the spreading of ponents of nature and the interac- seeds and burning dry rangeland, from tion among natural forces has been combining bottom-up decision making the centre of attention of the nomadic to decentralised systems, from expert pastoralists, generating an attitude assessment to combination of grazing that can be described as both holistic patterns, from keeping diverse livestock and systematic. The nomadic pasto- to enclosing territories, from separating ralists take opportunistic advantage of different types of livestock to changing a variety of management techniques its composition, from reducing livestock from subdividing rangelands to their numbers to using imported fodder…. A PhD student working on his dissertation remembers his first encounter with a local community. He felt embarrassed when the pastoralists asked him, “How is it that despite studying for 24 years you are learning things from us just now?” He also recollects he was laughed at while tak- ing down notes that sounded so basic to the pastoralists but quite new to him… (Source: Barani, 2002.) Migration is the seasonal moving of are alternatively used and let to rest, people and animals between summer- with time to regenerate. Depending on ing and wintering grounds, based on the location, rangelands are generally used needs of both herds and rangelands. As for five to seven months per year. This seasons change, in fact, the rangeland brings about a rather natural equilib- in summering and wintering grounds rium between livestock and rangelands.5 318 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? Rights... environment… Selection of times and routes of migra- migration. On the basis of information tion also show how attentive nomadic on climate and rangeland availability in pastoralists can be the summering and wintering grounds As seasons to the needs of their and in the migration corridors, the change, the pas- natural environment. tribal leaders would then determine the tures in summer- When pastoralists date of the onset of migration and the ing and wintering sedentarise, they end up using the same internal land use access rights—includ- ing the number of animals and people grounds are alter- local rangeland during allowed to migrate, based on their as- natively used and 8-9 months per year, sessment of the carrying capacity of the let to rest, with with obviously more destination rangelands. The pastoral- severe environmental ists were well aware of the significance time to regenerate impacts. of the natural and human spreading of seeds in the rangelands, and of the Especially before the nationalisation consequences of avoiding grazing for of rangelands it was the customary a season or more to restore degraded organisation of the nomadic pastoral- rangelands. This system, called qoroq ists that determined the timetable of in many of the 700 Iranian tribes and the migration and the appropriation of tribal confederations—exists in most of the rangelands. The particular hierar- the other nomadic regions, recognised chal social organisation of the nomadic as hima in Arabia, mahjar in Yemen and tribes—based on their kinship relations agdal among the Amazigh (“Berber”) and a system of community elders, peoples of north Africa. It is a form of implied that the decisions were taken what we call “Community Conserved by interaction of lower and higher lev- Areas”. They used to spread seeds of els as needed, and the whole system useful plants during the migration and worked almost meticulously. This sys- selected wisely the herd size and com- tem had many advantages, including a position. The combination of diverse strong sense of belonging of the people livestock reflects the wealth of house- and the land to each other, regardless holds but also helps in improving the of the formal status of ownership. The biological and economic utilisation of composition and number of livestock, rangelands. A herd composition of dif- the time of livestock movement and the ferent species, sex and age feed differ- appropriation of the rangelands were ently and on different plants, creating all under careful control. The ecologi- less intensive grazing.6 Furthermore, cal appropriateness of the system was a the combination of their animals is heritage left over from the early domes- made to vary with respect to climate tication of wild relatives of the animals and quality and quantity of grass. Dur- of the nomads, who were migratory in ing a drought, the nomadic pastoralists their natural state, and all humans had sell more of their livestock or slaughter to do was learn to follow them and the them.7 Prior to nationalisation of the innate knowledge and urge of the wild rangelands, migrating pastoralists used animals to migrate in order to protect the efficient conservation technique of the range and guarantee their survival. land enclosures (qoroqs). This meant that some rangelands were withdrawn For centuries, the nomadic pastoralists from grazing until certain plants man- assessed the conditions of rangeland, aged to flower. It was only then that water and precipitation through scouts livestock would be allowed to enter the sent in advance to the summering/ range. Using fodder and letting the live- wintering grounds before the onset of stock graze on farms and orchards after 15, July 2007 319 Conservation and Human Rights harvest were also ways to regulate the sustainable rotating grazing pattern. livestock food consumption.8 Finally, traditional resource manage- The nomadic social organisation adjusts ment systems appear superior to mod- Prior to nationaliza- itself in such a way ern management systems insofar as tion of the pasture- that the balance between humans, many modern technologies cause envi- ronmental damage, produce unhealthy lands, migrating livestock and foods and decrease the self-reliance pastoralists used rangeland is broad- and stability of agro-ecosystems. Mi- the efficient con- ly maintained. In gratory pastoralism supports extensive this sense, the organic food production as nomadic servation technique inherent flexibility tribes graze livestock in grasslands free of land enclosure of the nomadic life from artificial fertilisers and chemical […]grassland was requires the sepa- pesticides, while the rangeland plants withdrawn from ration of tent-holds and the creation have medical properties for the animals and, indirectly, for the human con- grazing until cer- of independent sumers of the animal products. Fur- tain plants managed clans whenever the thermore, the attention of nomads to to grow into flowers number of livestock rangeland and water resources is a gets out of balance guarantee of their sustainability. At the with people. Under such circumstances, minimum, development planners should even tent-holds with no livestock join respect the rights of mobile pastoralists other clans.9 to produce according to their custom- ary management systems. In so doing, The construction of more than 40,000 they would also promote sustainable hand-made subterranean water ca- agro-ecosystems. nals called qanats or karezes, besides innumerable terraces for cultivation To demonstrate the economic value of on mountain slopes, and small irriga- migratory pastoralism, the analytical tion dams and other water harvest- framework of Simon Kuznet11 can be ing schemes indicates how skilful and applied. He argues that an economic knowledgeable the local communities activity can be recognised as valuable are in conserving water resources, in “employment” when it meets some of harmony with existing supplies.10 Iran the five requirements below: is an arid and semi-arid country and X provision of labour force; regularly faces water crisis. At present, X provision of food production and/or drilling deep and semi-deep boreholes raw industrial materials; and wells has forced the government to forbid pumping water in 200 out of X increasing capital; the existing 600 plains. The genius of X expanding markets; nomadic pastoralists in managing wa- X supporting financial balances . ter should be fully acknowledged, as Migratory pastoralism possesses all the for generations they have been able above mentioned factors and can thus to direct water resources and grow be considered economically valuable. the plants they needed. Among some According to the latest official statis- tribes, such as the Shahsevan Confed- tics in Iran,12 the unemployment rate eration in Azerbaijan, water sources in of the nomadic tribal community is 3.9 the summering grounds are managed in %whereas the overall rate in the coun- a rotating scheme to irrigate the natu- try is 14%. In terms of food produc- ral pastures, given them a seasonally tion, the nomadic pastoralists currently 320 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? Rights... environment… the import/export balance: on the one hand it produces red meat to the extent that the country is self sufficient, and on the other, it produces export items such as carpets, rugs, animal hides, and medicinal plants.13 The economic and social characteristics of the migratory nomadic pastoralists in Iran necessitate their inclusion in the development planning of the country. Few other societies would be ready to throw out a system that contributes a billion dollars to the GNP and creates 6 digit employment. This would be akin to killing the goose that lays the golden egg. Their rights to keep their lifestyles in an enabling environment should be recognised as the ground on which their productive capacities and their capac- ity to manage natural resources in a Picture 3. Traffic on roads blocks the migration. sustainable way can best be developed. (Courtesy CENESTA) Encroaching upon such rights appears to go hand in hand with the deterioration offer 140,000 tons of meat annually of rangelands and many other economic, valued at US$600,000,000. Their dairy social, ecological and cultural losses. products amounted to nearly 400,000 tons in 1998. Adding the value of wool, handicrafts, and medical products to the Conclusion above items, the official figures them- To make their policies relevant and selves declare that the contribution of sustainable, the Iranian development the Iranian tribal society is more than planners should start centring their pro- US$ 1,000,000,000 per year, although gramming exercises on human capital migrant pastoralists comprise less than rather than on physical capital alone. 2% of the total population and con- Such a change requires more informa- stitute only 11% of total number of tion about local communities, and more livestock breeders. Furthermore, the effective communication with them. monetary cost of the food the nomadic What is already abundantly clear, pastoralists use for their livestock is however, is that the customary man- minimal; therefore, they achieve a agement of livestock, rangeland and higher rate of “net national production”. water by mobile communities can play The contribution of the nomadic tribes a major role in conservation, revival, to the national capital is largely made development, and appropriation of the through sale of their products to local country’s rangelands. markets (and purchase there of a vari- ety of products). Limiting food imports The active violation of the human—in- increases the demand for local prod- cluding and community rights of break ucts, but also gives the government the up of pastoralist social organisation, opportunity to control the price of agri- the demise of customary leadership, cultural and animal products. Migratory and the absence of alternative struc- pastoralism is also playing a vital role in tures have caused enormous damage to 15, July 2007 321 Conservation and Human Rights migratory pastoralism and its efficient plete elimination of small producers” such as farm- ers and pastoralists, and their substitution with management of natural resources. If large scale domestic and international agribusiness the outright revival of the old structures corporations. is nearly impossible, the development 2 Farhadi, 1994. of appropriate options based on them 3 Alizadeh, 2000. is today essential. Certain policy-mak- 4 From a formal correspondence between CENESTA and Mr. Negahdar Eskandari, the Head of Technical ers and specialists have begun doubting Office of Forest, Rangeland and Watershed Man- the appropriateness of their decisions in agement Organisation of Iran. favour of forced or induced sedentarisa- 5 Ansari, 1998. tion and “modernisation” of rangeland 6 Ardakani, 2004. economies. The resistance of pastoral- 7 Farhadi, 1994. ists has also spurred some change of 8 Ardakani, 2004. mind among government staff. It was 9 Afshar Naderi, 1968. generally assumed that as soon as the 10 Ardakani, 2004. economics of pastoralists’ livelihoods 11 Quoted in Najafi, 2003. 12 The latest nation-wide census was conducted in would change because of sedentarisa- 1998. tion, farming would replace livestock 13 Najafi, 2003. breeding and “de-tribalisation” would occur. Instead of this, and despite the References new imposed conditions and the inter- Akbari, A., “Tavanmandihaye Nezam Damdari nal and external conflicts they created, Ashayer” (Capacity of Pastoralist Livestock the tribal social structures have essen- Breeding),Majmoo’yeh Maghalat Hamayesh Sa- mandehi Jame’yeh Ashayer (Reader on the National tially remained alive. A most urgent Forum on Organising Pastoralist Communities), and important task for Iran is now their Organization for Nomadic Peoples in Iran, Tehran, strengthening as appropriate, so that 2004. these institutions become fully aware Alizadeh, A., J. Moghimi, M. Bigdeli and N. Eskandari, Natayej Hasel az Arzyabi Tarhaye Marta’a dari Kes- of their capacities and their rights to be havar (Assessments of Rangelands Projects), Forest, recognised so that they can continue to Rangeland an Watershed Management Organisation, Tehran, 2000. be positive actors in society. Afshar Naderi, N., Monogerafy Ile Bahmani (Monog- Mansoor Khalighi (khalighi@cenesta.org) is a PhD raphy of Bahmani Confederation of Tribes), Tehran student at the University of Tehran, pursuing a dissertation University Press, Tehran, 1968. on different exploitation methods of rangelands and their Amiri Ardakani, M. and M. Hossein Emadi, Danesh influence on ecological and eco-social sustainability. He Boomi dar Damdari (Local Knowledge in Livestock has been working with CENESTA (Centre for Sustainable Breeding), Ministry of Agriculture, Tehran, 2004. Development) since 2002. He is a member of CEESP-TSL. The author is deeply grateful to Nastaran Moossavi (nastaran@ Amiri Ardakani, M. and M. Shah Vali, “ Mabani, Mafa- cenesta.org), Pooya Ghoddousi (pooya@cenesta.org), Ali Aqili him va Motalea’at Danesh Boomi Kehsavarzi” (Basis, (bozqurt@cenesta.org) and Taghi Farvar (taghi@cenesta.org) Concepts and Studies on Agricultural Local Knowl- for helping in the preparation of this article, and to Grazia edge), Selsele Entesharat Roosta va Tose’eh (Series Borrini-Feyerabend (gbf@cenesta.org) and Jessica Campese of Publications on Rural Areas and Development), (Jessica@cenesta.org) for their assistance in editing it for No. 34, 2004. inclusion in this issue of Policy Matters. Ansari, N., Nahadhaye Sonati Bahrebardari az Marate dar beyn Ashayer Lorestan va Barresi emkan Ehya va Bekargiri An (Traditional Institutions of Range- Notes lands Appropriation among Lorestan Pastoralists and Review of the Possibility of their Revival), Depart- 1 The impetus for this “land reform” came from the ment of Livestock and Fisheries, Ministry of Agricul- policies of the United States, which were dominant ture, Tehran, 1998. in Iran at the time, following the CIA-led coup d’état of 1953 against the popular nationalist par- Barani, H., Barresi Ma’ani Farhang Marta’dari dar liamentarian/ prime minister Mohammad Mosad- beyne Galedaran Alborz Sharghi (Review of Cultural deq, which brought the unpopular Shah back to Concepts of Grazing Management among Pastoralists Iran as a puppet regime to serve the geopolitical in Eastern Alborz Mountains), University of Tehran, and energy resource ambitions of the United States Tehran, 2002. and its allies. A team of high level policy “advisors” Behnke, R.., I. Scoones and C. Kerven, Range Ecology from the United States told the Chair of CENESTA, at Disequilibrium, Overseas Development Institute, then a Vice Rector of Avicenna University, that their London, 1993. basic aim in the agricultural sector was the “com- 322 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? Rights... environment… Emadi, M. H. and A. Esfandiyari, “Danesh Boomi va Meiksins Wood, E., “ Modernite, Postmodernite ya Tose’eh Paydar” (Local Knowledge and Sustainable Sarmayedari”(Modernity, Post modernity or Capital- Development), Selsele Entesharat Roosta va Tose’eh ism), Jame’ae Anformatic va Saramayedari (In- (Series of Publications on Rural Areas and Develop- formation Society and Capitalism), trans. Mehran ment), No. 54, 2004. Mohajer, Agah, Tehran, 2000. Farhadi, M., “Zamineh haye Farhangi dar Manabe Mizban, M., “Barresi Farayand Taghyeer va Tahavolat Tabi’ee” (Cultural Background of Natural Resources), Ejtemai’a Jame’e Ashayer” (Review of Social De- Majale Jangal va Marta’a (Forest and Rangeland velopment of Pastoralist Community), Majmoo’yeh Journal), No. 25, 1994. Maghalat Hamayesh Samandehi Jame’yeh Ashayer Farvar, M Taghi. “Mobile pastoralism in West Asia— (Reader on the National Forum on Organising Pas- myths, challenges and a whole set of loaded ques- toralist Communities), Organization for Nomadic tions....” In Policy Matters 12, Tehran, CEESP/IUCN Peoples in Iran, Tehran, 2004. and CENESTA, September 2003. Najafi, B., Naghshe Ashayer dar Tose’eh Eghtesadi Khalighi, M., “Barresi Paydari Ejtema’ai va Ecoloz- Iran (Role of Nomadic Tribes in Economical Develop- hiki Shivehaye Mokhtalef Bahrebardai az Marate’e” ment of Iran), Organization for Nomadic Peoples of (Review of Social and Ecological Sustainability of Iran, Tehran, 2003. Various Methods of Rangeland Use), Faslnameh Tah- Nikdokht, R. and E. Karami, “Barresi Paydari Nezam ghighat Marta’a va Biyaban Iran (Iranian Journal of Damdari Ashayer” (Review of Sustainability of Pas- Rangeland and Desert Research), No. 13, 2006. toralist Livestock Breeding), Majmoo’yeh Maghalat Meiksins, P., “Kar, Teknolozhy Jadid va Sarmayedari” Hamayesh Samandehi Jame’yeh Ashayer (Reader on (Work, New Technology and Capitalism), Jame’ae the National Forum on Organising Pastoralist Com- Anformatic va Saramayedari (Information Society munities), Organization for Nomadic Peoples in Iran, and Capitalism), trans. Khosrow Parsa, Agah, Te- Tehran, 2004. hran, 2000. Beyond the instrumental view of Corporate Social Responsibility— a human rights and natural resource conservation perspective Rajat Panwar & Eric Hansen Abstract. Commonly prevailing corporate perception regarding corporate social responsibility (CSR) is based on its economic or instrumental utility. However, this perception has limita- tions in a changing society and does not promise to achieve the goal of sustainability. Alter- native views of CSR might provide more meaningful motivation for companies to embrace CSR. It can be argued, for instance, that the integration of human rights protection and natu- ral resource conservation perspectives can ameliorate the weaknesses of the instrumental view of CSR. A holistic approach incorporating a broader CSR definition, broader stakeholder categories, and a broader concept of capital could harmonize many of the apparently discord- ant dimensions of CSR. T he concept of corporate social re- sponsibility (CSR) has attracted grow- literature during the past two decades. There has been considerable scholarly debate over the distinction between ing attention in business management CSR and corporate philanthropy (CP). 15, July 2007 323 Conservation and Human Rights In simple terms, CSR commonly refers fresh investigation of business-society to the responsibilities of a business interaction. Issues such as the influ- in the course of conducting business ence of transnational business activi- whereas CP refers to post-profit “giving ties on foreign culture are attracting back”, usually in the form of monetary increasing attention. Campaigns led by contributions. civil society organizations and inter- national initiatives like the UN Global Scholars have conceptualized CSR in Compact7 reflect a shift in the per- different ways. The classical model ceived role of the business in contem- of CSR, often associated with Fried- porary society.8 man,1 is that the business of business is business and that the only standard Parallel to global socio-economic it should adhere to is meeting legal changes, the concept of sustainable requirements. The neo-classical model development has also been changing. of the next wave of CSR allows corpo- For example, in its recent release, the rations to seek profit while obeying a United Nations Commission on Sustain- “moral minimum”.2 Other notable con- able Development (CSD) has included ceptualizations include Carroll’s pyra- 50 new sustainable development indi- mid of social responsibility, assigning cators, which encompass themes such business four sets of responsibilities: as education, governance, demograph- economic, legal, ethical and philan- ics, health, poverty, fresh water and thropic.3 This hierarchical classification oceans, seas, and coasts.9 There is a has provided a concrete platform for growing consensus about the legitima- CSR research and has, arguably, domi- cy of CSR. Yet, academics, consultants nated conceptualization efforts up to and companies alike face practical now. According to the World Business problems defining areas of intervention Council for Sustainable Development and motivations for business to em- (WBCSD), CSR embodies the commit- brace CSR. Garriga and Mele have sug- ment of business to sustainable devel- gested a four-quarter scheme to group opment, which requires integration of different rationalizations of CSR:10 social, environmental and economic considerations.4 WBCSD has pointed X Instrumental or Economic out that lack of an all-embracing and view of CSR commonly-accepted definition leads to This perspective sees CSR as a tool for confusion surrounding CSR.5 The multi- economic utility. It is assumed that a tude of definitions suggests the role of corporation is an instrument for wealth business in different spheres of life can creation and that it can use CSR as a Around half of the be understood from a means to reach the end of profit mak- range of perspectives. ing. Garriga and Mele identify three hundred biggest CSR approaches under the instrumen- economies in the A changing economic tal category:11 maximizing shareholder world are now world order has been value; securing competitive advantage; corporations, not marked by the emer- and cause-related marketing, in which gence of transnational the company offers to contribute a nation states. corporations. Around specified amount to a particular social half of the hundred biggest economies cause when customers buy its prod- in the world are now corporations, not ucts, aiming at sales enhancement or nation states.6 Such enormous increase building customer relationships based in corporate power has contributed to a on brand positioning through social 324 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? Rights... environment… responsibility.12 er management and corporate social performance.14 Issues management is a X Political view of CSR process-based approach that suggests Scholars have also explained CSR institutionalizing understanding of and based on political theories, focusing on commitment to social issues across the the power and responsibility dictums whole organization. As opposed to the in a social context. The broader concept and process of social The main main argument is that responsibility, the principle of public responsibility promoted by Preston argument is that businesses are powerful and Post (1975) dictates that business businesses are social institutions and that they should use should involve itself in responsibilities powerful social this power in a respon- that are stipulated in public policy and institutions and sible manner. Gar- should not carve out its own domains of activities.15 Stakeholder manage- that they should riga and Mele include ment entails integrating in corporate two major concepts in use this power this category: corpo- decision making all groups that have in a responsible rate constitutionalism a stake in the organization, those that manner. and corporate citizen- affect or are affected by the decisions ship.13 Corporate con- that an organization makes. Corporate stitutionalism refers to a philosophical social performance is an outcome- understanding of power distribution in oriented variant of CSR espoused by a social system where all power con- Carrol which consists of three basic stituencies limit each other’s powers elements: definition of corporate social and responsibilities and prevent en- responsibility; identification of the is- croachment on them, in the same way sues that an organization will address; as under a governmental constitution. and specification of the response that Corporate citizenship or business citi- the organization embraces to address zenship rests on developing a sense these issues.16 of belonging in the local community, and has attracted increasing interest X Ethical view of CSR because of globalization of company This view suggests that CSR should be activities. embraced for ethical reasons. Garriga and Mele have identified four ethical X Integrative view of CSR approaches: nor- mative stakeholder, The universal rights This view is built on the premise that business depends on society for its universal rights, approach incorporates existence and growth, suggesting that sustainable de- human rights, business must operate in a way that velopment, and justice and labor is acceptable within a societal value common good.17 Donaldson and rights approaches. system at a given point of time. It im- plies that there is no single action that Preston suggested companies need to perform throughout a normative stakeholder approach in their lifetimes, and indicates a dynamic which stakeholders should be identified response to social demands at differ- based on their interest in an organiza- ent times and in different contexts in tion, irrespective of the organization’s order to secure social legitimacy. Under interest in them.18 The universal rights this category, Garriga and Mele have approach incorporates human rights, included issues management, the prin- justice and labor rights approaches. ciple of public responsibility, stakehold- The common good approach proposes 15, July 2007 325 Conservation and Human Rights that being a part of society, business to establish correlation between the two. must contribute to the common good. For example, Paine and Kotler and Lee In this sense, Fort argues that business have suggested numerous business ben- is a mediating institution and that it efits of adopting CSR.21 However, Griffin should be purely a positive contributor and Mahon point out that empirical stud- to the well-being of the society.19 ies mapping the relationship between CSR and financial performance have not Windsor points out that the managerial provided consistent conclusions.22 conception of CSR has been dominated by an economic view and thus, gener- In separate interviews that we recently ally, corporate motivations to embrace conducted for analyzing CSR in the CSR rest on instrumental or economic forest products industries in the USA utility.20 As a result, analyzing the link and India, two interesting responses between CSR and financial performance emerged that further illustrate the has been a topic of interest among dominant perception linking CSR with scholars and several studies have tried financial performance: “If the profitability is not at least 25% of the investment, no social responsibility is possible.” —An industrialist in India “CSR proponents should stop evangelizing the business.” [Stop trying to convert them into something that they are not] —An NGO employee in the US No conclusion can be drawn from these role in a global society facing the crises two responses, but they indicate one of ecological imbalance and socio-eco- problem— the philosophical underpin- nomic inequity. ning of CSR is not yet holistic. Within the context of the instrumental view of Bringing human rights into the CSR, these two responses are under- CSR landscape standable: if CSR is not fulfilling the On December 10, 1948 the General As- objective of corporate profitability, it sembly of the United Nations adopted could be dispensed with. However, ac- and proclaimed the Universal Declara- ceptance of such viewpoints will take tion of Human Rights. In addition to us back to the era of the “Robber Bar- its preamble, the Declaration consists ons”.23 Meanwhile, the resources of the of 30 articles, setting forth the human earth are being depleted at an alarm- rights and fundamental freedoms to ing rate, pollution is rising and billions which all men and women, everywhere of people are still living at or below in the world, are entitled, without any the subsistence level. An instrumental discrimination.25 In brief, the human approach to CSR is neither likely to be rights declaration seeks to ensure adequate in the changed society nor equality of opportunities to all people can it contribute effectively to sustain- without discrimination while securing able development objective promoted individual liberty in matters of belief as by the World Business Council for well as providing for freedom of ex- Sustainable Development.24 This calls pression.26 for fresh thinking regarding CSR and its 326 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? Rights... environment… Welford (2002) argues that concerns partnerships, human rights protection raised about the impacts of global- could potentially be the mainstay of ization predominantly focus on the the social dimension of CSR programs. economic perspective, leaving social, However, Welford voices a word of political and cultural implications un- qualification: dermined. He further argues that growth in organized civil society and in- “Such a change will not, however, be creased use of information technology easy. The economics of globalization will likely add to the public voice cur- emphasizes (not surprisingly) compe- rently speaking out against dominat- tition, capital investment, free trade, ing corporations, and asking for more growth and the transformation of mar- transparency. Carroll maintains that kets. These do not sit easily along- stakeholders are those groups or per- side the priorities for activists keen to sons who have a stake, a claim or an promote the rights of people including interest in the operations and decisions women, minority groups, indigenous of the firm.27 Mitchell et al. have com- populations and children. What we prehensively documented earlier efforts need therefore is not an agenda based to define “stakeholders” based on their around capital but one which attempts possession of one of more of the attri- to develop an agenda which gives us butes power, urgency, and legitimacy.28 the opportunity of finally achieving the They provide a theoretical basis to global objectives first set out by the identify relevant stakeholders. United Nations in 1948. The technology and developments which have created The increasing role of business in peo- the conditions for globalization to take ple’s lives, and globalization-induced place need to be put to use to serve issues such as humankind as a whole and not the Growth in organized invasion of indig- vested interests of corporate board- civil society and enous cultures, rooms.”29 increased use mean that business organizations could Conservation of natural of information be faced with in- resources: the need for a non- technology will creasing demands conservative approach likely add to the to be responsive to Sanderson maintains that untouched broader society and public voice currently to include the pro- wild places have shrunk to one-sixth speaking out tection of human of the earth’s land surface, leading to reduced avenues for wildlife habitat against dominating rights in CSR pro- conservation and human recreation.30 corporations, and grams. This might He acknowledges that this situation has lead corporations asking for more. to broaden the a human origin, and that economic ex- pansion, population growth, urbaniza- types of stakehold- tion and development are the foremost ers included in their decision making reasons for such rapid loss. Shepard beyond the definitive and dependent and Sivacolundhu note that the world’s categories, such as employees within forests have been shrinking by around a company. Since the universal decla- 200 square kilometers every day.31 Em- ration of human rights in 1948 most phasizing the economic importance of debate has been confined to govern- forests, they further note that around mental and inter-governmental levels. 24% of the global population depends With globally increasing public-private on the forest for its livelihood. Direct 15, July 2007 327 Conservation and Human Rights impact is clear from the statistics that nature and environment. The result has wood products contribute more than been an agreement to disagree, with 150 billion US Dollars annually to glob- the growth, development, and conser- al trade and that the forest products vation communities proceeding down The aim of CSR, per industry globally separate paths. In practice, the concept provides employ- of sustainable development has proven se, is sustainable ment to around less a viable middle ground than an development, yet 13 million people. empty rhetorical vessel.”32 the commonly Such estimates prevailing make a logical case for sustain- Typically, in a capitalistic society, busi- ness has been the engine of growth, instrumental view able management government has taken the develop- of CSR does not lead of forests. How- ment role, and some governmental to this desired end. ever, this market- and non-governmental organizations based case would have worked for the cause of natural entail adopting an instrumental view of resource conservation. With increased CSR and does not provide a rationale global business activity, the concept of for conserving the non-commoditized business as a mediating institution be- species vital for the health of any eco- comes particularly relevant. Fort33 sug- system. Therefore, there is a need for gests that with increased time-associa- intrinsic valuation of forest ecosystems tion of employees at work, business from an ethical rather than instru- can provide for associational needs that mental viewpoint in order to achieve have traditionally been fulfilled by so- ecological sustainability. The same cial institutions such as the family and argument holds for other industries or religious groups. This would provide occupations that are directly dependent broader room for CSR to incorporate on natural resources, such as fisheries. hitherto-neglected human development activities. Typically, however, most In search of a synthesis corporations would undertake activi- The aim of CSR, per se, is sustainable ties that improve employee satisfaction development, yet the commonly pre- based on instrumental reasons rather vailing instrumental view of CSR does than a belief in human values. This not lead to this desired end. As dis- development is not robust enough for cussed above, human rights and ethi- the broader stakeholder inclusion war- cal approaches to CSR can contribute ranted by earlier discussion. to global objectives of human rights protection and ecological sustainability. Depending on varying economic and so- However in the current world order, cio-cultural contexts, the integration of the interface of economy, social is- mediating institutions might take differ- sues and ecology is full of imbalances. ent shapes, and such a discussion needs Sanderson has summarized the issue separate investigation. Here the focus is as follows: “If development has ignored on making a conceptual foundation for a conservation, conservation has paid paradigm shift that corporations need to too little attention to development. make in order to move beyond embrac- Economic policymakers have concen- ing CSR for instrumental reasons. trated on growth, developmentalists on the distribution of the benefits of the Paradigm shift for broadening growth, and conservationists on the the CSR conceptualization costs and consequences of growth for Freeman suggests that most business 328 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? Rights... environment… and ethics discussions in the past have economic well being of humankind: considered each separately.34 Adolph- work performed by humans with and son35 has built a new perspective inte- without direct exchange of money, and grating ethics, ecology and economics, work performed by nature independent primarily based on the biophysical ap- of human interaction (see Table 1).38 proach espoused by Cleveland et al.36 Accordingly, Adolphson classifies three and Hall et al.37, which suggests that types of capital—Financial Capital, Hu- natural resources are the limiting factor man Capital and Natural Capital, and in our ability and ways to perform any integrates them succinctly: “natural activity. Adolphson argues that from a and human capital form the invisible biophysical perspective there are three arm that drives the invisible hand”39 types of work that contribute to the Table 1. Types of work and corresponding examples from a biophysical perspective (adapt- ed from Adolphson (2004) Type of work Examples Work performed by humans with an exchange Most business and economic activities— e.g., of money buying a house, etc. Work performed by human without direct ex- A parent helping children, volunteer work, change of money homemakers’ non-paid work, etc. Work performed by nature independent of hu- Photosynthesis, soil building process, water and man interaction air filtration, etc. Financial capital is rather easy to de- turn the “tide” of environmental and fine, but human and natural capital ecological deterioration; secondly, it might be viewed differently depending must be capable of influencing busi- on economic model and industry type. ness policy. He maintains, “it seems Lucas advocates that human capital to me that much of the work done by should also encompass communities or business ethicists to date fails the first cultures, going beyond the narrower criterion; much work done by environ- view that only focuses on individuals’ mental ethicists fail on the second.” education and training.40 All industries Desjardins argues that the two prevail- are directly or indirectly dependent on ing models of CSR operate with legal natural capital, for their clientele exists and moral constraints, respectively. To because of natural capital. This broader meet the two criteria of adequacy he view of “capital” might help to create suggests embracing the idea of sus- the corporate mindset necessary for tainability in human consumption of embracing CSR for non-instrumental natural resources. Notably, Desjardins reasons. advocates a rights-based approach allowing human consumption of indi- Desjardins41 has criticized the classi- vidual elements as long as the sus- cal and neo-classical models of CSR, tainability of the whole ecosystem is based on two adequacy requirements not disturbed. Finally, he prescribes a of corporate environmental responsibil- three-fold principle and a general ap- ity: firstly, it should address the entire proach for industries that he deduced range of environmental and ecological based on arguments by Frosch and issues affected by business so as to Gallopoulos: 15, July 2007 329 Conservation and Human Rights X renewable resources should not be used at rates that exceed the sys- tem’s ability to replenish itself; X non-renewable resources should be used only at the rate at which al- ternatives are developed or loss of opportunities compensated; X wastes and emissions should not be generated at rates that exceed the capacity of the ecosystem to assimi- late them. “In such a system the consumption of energy and materials is optimized, waste generation is mini- Only the inte- mized and the effluents gration of busi- of one process— whether ness, societal, they are spent catalysts Figure 1. Integration of three dimensional moti- vations to adopt CSR. Adapted from Dyllick and and natural from petroleum refining, Hockerts, 2002 fly and bottom ash from cases makes a electric power generation ty of the ecosystem and its associated “right case” for or discarded plastic con- social and natural dimensions. adopting CSR. tainers from consumer products— serve as the As an integrative effort, based on the raw material for another process”.42 ecosystem conceptualization of the business environment, Panwar and Whither from here Hansen have provided a broader defi- Matten et al. advocate for a corpo- nition of CSR: “CSR is a unique, con- rate citizenship approach arguing that text-specific and wholesome business it broadens the operational scope of philosophy, translated into corporate mainstream CSR approaches to include strategy and fused with organizational all interlinked elements of the corpo- culture, aiming at ethically-guided rate environment.43 Based on Dyllick initiatives that sustainably protect and Hockerts’ extended framework for and promote the interests of the ever corporate sustainability,44 Figure 1 illus- changing components of a corporate trates how an integrated conceptuali- ecosystem”.45 zation can provide the necessary syn- ergy for different approaches that are How will it happen? There could be generally perceived as conflicting. This different yet equally valid and promis- is analogous to the broader view of ing answers in varying contexts, and capital discussed earlier and suggests the corresponding justification might that financial capital is not sustainable vary according to the focus area. We unless accompanied by the feeding propose adoption of the ecosystemic components, social and natural capital. definition of CSR as a potential solution Only the integration of business, soci- to the problem of achieving the goal of etal, and natural cases makes a “right sustainability through CSR for the fol- case” for adopting CSR. To adopt CSR lowing reasons: for instrumental reasons is insufficient: X it integrates the three CSR cases as it cannot be separated from the entire- described above; 330 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? Rights... environment… to have served their own interests in all possible ways. Hence for this set of stakeholders, measures that maintain their interests are required. On the oth- er hand, factors of natural and social capital have generally deteriorated due to past practices and hence need both maintenance and enhancement effort. A broader set of stakeholders, espe- cially latent and expectant stakeholders at the far reaches of a corporate eco- system (e.g., the wider society), should be given intrinsic value. A rights-based approach is needed to respond to these stakeholders. Conclusion Figure 2. Conceptual framework for an Business profitability and CSR are not integrated approach for eco-systemic CSR dichotomous in nature and CSR is not about conversion of business into some X it encompasses the stakeholder ap- abstract philanthropic institution. How- proach, while also extending to the ever, an instrumental perspective of CSR concept of corporate citizenship; is inadequate in a changing global soci- X it diminishes the distinction between ety and will not achieve the objective of CSR and CP, a desirable convergence sustainability. We recommend adopting to alleviate present social and en- a broader view of the concept of capi- vironmental crises in which some tal and shifting linear relationships with more deteriorated areas need phil- stakeholders to an eco-system view and, anthropic contributions in addition to accordingly, define the areas for protec- responsible business practices. tion and enhancement, with engagement policies for definitive stakeholders and Figure 2 provides a conceptual frame- a rights-based approach for latent and work for an integrated approach to expectant stakeholders. A holistic CSR ecosystemic CSR. It incorporates the vision should incorporate enrichment wider view of “capital” discussed ear- from diverse perspectives and could lier. We would like to draw attention harmonize many apparently discordant to two important components of the dimensions of CSR. ecosystemic definition: protection and promotion. These could be considered Rajat Panwar (rajat.panwar@oregonstate.edu) is gradu- ate research assistant with the Forest Business Solutions in other words as “maintenance” and Team, College of Forestry, Oregon State University, Corval- “enhancement” respectively. In Figure2 lis (Oregon, USA). His interests include corporate social responsibility, issues management, CSR standards, business we assume that factors of financial ethics and international trade, and social entrepreneurship. capital involve definitive stakehold- Eric Hansen (eric.hansen2@oregonstate.edu) is Professor ers– those combining the attributes of of Forest Products Marketing and leads the Forest Business Solutions Team in the same College of Forestry. His inter- power, legitimacy and urgency, such ests include innovation management and corporate social as shareholders, industry associations, responsibility in the forest products industries. He has pub- etc. Such stakeholders are likely to lished extensively on certification issues in the forest sector and has co-authored the book “Strategic Marketing in the have dominated past company deci- Global Forest Products Industries”. sions and, in a given economic context, 15, July 2007 331 Conservation and Human Rights Notes 31 Shepard and Sivacolundhu, 2006. 1 Friedman, 1970. 32 Sanderson, 2002: p163. 2 Bowie, 1991. 33 Fort, 1996. 3 Carroll, 1979. 34 Freeman, 1994. 4 World Business Council for Sustainable Develop- 35 Adolphson, 2004. ment, 2000. 36 Cleveland et al., 1984. 5 World Business Commission on Sustainable 37 Hall et al., 2001. Development, 2000. 38 Adolphson, 2004. 6 http://www.corporations.org/system/top100. 39 Adolphson, 2004: p206. The invisible hand is a html metaphor coined by classical economist Adam 7 In an address to the World Economic Forum on Smith to illustrate how seeking wealth by fol- 31 January 1999, the former Secretary-General lowing one’s individual self-interest inadvertent- of the United Nations, Kofi Annan, challenged ly boosts the economy and helps in achieving business leaders to join an international initia- social welfare. tive— the Global Compact— that would bring 40 Lucas, 1988. companies together with UN agencies, labor and civil society to support universal environmen- 41 Desjardins, 1998. tal and social principles. The Global Compact’s 42 Desjardins, 1998 : p834. operational phase was launched at UN Head- 43 Matten, et al., 2003. quarters in New York on 26 July 2000. Today, thousands of companies from all regions of the 44 Dyllick and Hockerts, 2002. world, international labor and civil society orga- 45 Panwar and Hansen, 2006: p74. nizations are engaged in the Global Compact, working to advance ten universal principles in References the areas of human rights, labor, the environ- ment and anti-corruption. See http://www. Adolphson, D.L., “A new perspective on ethics, unglobalcompact.org/AboutTheGC/index.html ecology, and economics”, Journal of Business Eth- ics, 54 (3): 203-216, 2004. 8 Boele et al., 2001. Boele, R., H. Fabig and D. Wheeler. “Corporate So- 9 A detailed account of these themes and indica- cial responsibility and stakeholder management tors can be found at the web-link http://www. versus a rights-based approach to sustainable un.org/esa/sustdev/natlinfo/indicators/fact- development”, Sustainable Development, 9 (3): Sheet.pdf 121-135, 2001. 10 Garriga and Mele, 2004. Bowie, N., “New directions in corporate social 11 Garriga and Mele, 2004. responsibility”, Business Horizons, 34(4): 56-65, 12 Vardarajan and Menon, 1988. 1991 13 Garriga and Mele, 2004. Carroll, A. B., “A three-dimensional conceptual model of corporate performance”, Academy of 14 Garriga and Mele, 2004. Management Review, 4(4): 497–505, 1979. 15 Preston and Post, 1975. Carroll, A. B., ”The pyramid of corporate social 16 Carroll, 1979. responsibility: towards the moral management of 17 Garriga and Mele, 2004. organizational stakeholders”, Business Horizons, 18 Donaldson and Preston, 1995. 34(4): 39–48, 1991. 19 Fort, 1996. Cleveland, C., R. Costanza, C. Hall and R. Kaufi- mann, “Energy and the us economy : a biophysi- 20 Windsor, 2001. cal perspective”, Science, 225 (4665) : 890-897, 21 Paine, 2003; Kotler and Lee, 2005. 1984. 22 Griffin and Mahon, 1997. Desjardins, J., “Corporate Environmental Respon- 23 This term is used for the American industrial sibility”, Journal of Business Ethics, 17 (8):825- or financial magnates of the late 19th Century, 838, 1998. who became wealthy by unethical means, such Donaldson, T. and L. E. Preston, “The stakeholder as questionable stock-market operations and theory of the corporation: concepts, evidence, exploitation of labor. and implications”, Academy of Management Re- 24 WBCSD, 2000. view, 20(1): 65–91, 1995. 25 http://www.ohchr.org/english/about/publica- Dyllick, T. and K. Hockerts, “Beyond the busi- tions/docs/fs2.htm ness case for corporate sustainability”, Business Strategy and the Environment, 11 (2): 130-141, 26 http://www.ohchr.org/english/about/publica- 2002. tions/docs/fs2.htm Elkington, J., Cannibals with Forks, the Triple Bot- 27 Carroll, 1991. tom Line of 21st Century Business, Capstone, 28 Mitchell et al., 1997. Oxford (UK), 1997. 29 Welford, 2002: p2. Fort, T.L., “Business as mediating institution”, Busi- 30 Sanderson, 2002. ness Ethics Quarterly, 6(2): 149-163, 1996. 332 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? Rights... environment… Freeman, R.E., “The politics of stakeholder theory. Mitchell, R. K., B. R. Agle and D. J. Wood, “Toward Some future directions”, Business Ethics Quar- a theory of stakeholder identification and sa- terly, 4(4) : 409-419, 1994. lience: defining the principle of who and what Friedman, M., “The social responsibility of business really counts”, Academy of Management Review, is to increase its profits”, The New York Times 22(4), 853–886, 1997. Magazine, 1970. http://www.colorado.edu/stu- Panwar, R. and E. Hansen, “A brief account of dentgroups/libertarians/issues/friedman-soc- corporate social responsibility”, NICE Journal of resp-business.html (Accessed 01-23-2007) Business 1(2): 73- 82, 2006. Garriga, E. and D. Mele, “Corporate social Paine, L.S., Value Shift, McGraw Hill, New York responsibility theories. Mapping the territory”, (NY), 2003. Journal of Business Ethics, 53(1-2): 51-71, 2004. Preston, L. E. and J. E. Post, Private Management Griffin, J.J. and J.F. Mahon, “The corporate social and Public Policy: The Principle of Public Re- performance and corporate financial perfor- sponsibility, Prentice Hall, Englewood Cliffs (NJ), mance debate: twenty-five years of incomparable 1975. research”, Business and Society, 36(1): 5-31, Sanderson, S., “The Future of Conservation. DON’T 1997. BLINK”, Foreign Affairs, 81(5) : 162-173, 2002. Hall, C., D. Lindenberger, R. Kummel, T. Kroeger Shepard, D. and R. Sivacolundhu, “Consensus and and W. Eichhorn, “The need to reintegrate the commitment to save and sustainably manage the natural sciences with economics”, Bioscience, World’s Forests”, UN Chronicle (2): 68-69, 2006. 51(8): 663-673, 2001. Available on www.un.org/chronicle (Accessed Frosch, R.A. and N.E. Gallopoulos, “Strategies for 1-21-2007). manufacturing”, Scientific American, 261(3) : Varadarajan, P. R. and A. Menon, “Cause-related 144-152, 1989. marketing: a co-alignment of marketing strategy Kotler, P. and N. Lee, Corporate Social Responsibil- and corporate philanthropy”, Journal of Market- ity. Doing the Most Good for Your Company and ing, 52(3) 58–74, 1988. Your Cause, John Wiley & Sons, Inc., Hoboken Welford, R., “Globalization, corporate social re- (New Jersey), 2005. sponsibility and human rights”, Corporate Social Lucas, R.E., “On the Mechanics of Economic Devel- Responsibility and Environmental Management, 9 opment”, Journal of Monetary Economics, 22 (1): (1):1- 7, 2002. 3- 42, 1988. Wheeler, D., and M. Sillanpaa, The Stakeholder Matten, D., A. Crane and W. Chapple, “Behind Corporation. A Blueprint For Maximizing Stake- the mask: revealing the true face of corporate holder Value, Pitman, London, 1998. citizenship”, Journal of Business Ethics, 45(1–2): WBCSD (World Business Council for Sustainable 109–120, 2003. Development), Corporate Social Responsibility: Messick, D.M., “Why ethics is not the only thing Making Good Business Sense, WBCSD, Geneva that matters”, Business Ethics Quarterly, 6(2): (Switzerland), 2000. 223-226, 1996. 15, July 2007 333 Conservation and Human Rights Negotiation and mediation techniques for natural resource management By Antonia Engel and Benedikt Korf, FAO (Rome), 2005. 219 pp. Short review by Steve Collins T his guide, while developed mostly in the forestry context, is a timely re- sponse to one of the critical issues fac- ing all practioners dealing with natural resources, protected areas and rural development. Many problems are exac- erbated by a lack of good conflict man- agement processes leading to crisis and ongoing disputes. A recent cover of National Geographic proclaimed “Peo- ple versus Parks”, clearly showing that for many parts of the world over-popu- lation, poverty and development are in conflict with the conservation agenda. This guide was produced by the FOA’s Livelihood Support Program and at- tempts to do the following: 1) Integrate conflict management into the broad framework of collabora- tive natural resource management 2) Show how to establish and me- diate a process of consensual negotiations which emphasises stakeholder buy-in and choice 3) Acknowledge the cultural and social dimensions of the different contexts faced around the world. The guide is set out in a user-friendly way with a section explaining the terms used in natural resource and conflict management, useful pictures and diagrams and, importantly, at the end of each section a summary that pulls together the lessons. These valuable summaries could be pasted on the wall of natural resource workers as useful reminders. In my view the guide succeeds in its three aims. It begins with an introduction into 334 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? BookRights... reviews environment… the kinds of conflicts that could occur, and explains how practically conflict can be managed in the natural resource context through consensual negotiations. It then moves on to a step-by-step process of how to gain entry, analyse the conflict, broad- en stakeholder engagement, build agreements and lastly how to exit the process. The guide also includes a short section on collaborative management, several tools on how to analysis conflict, and two case studies. Steve Collins (Steve.Collins@gtz.de), GTZ TRANSFORM, is The guide is available in English, Spanish a South African mediator with 20 years of experience dealing with political, development and natural resource conflicts. and French and can be accessed at http://www.fao.org/docrep/008/a0032e/a0032e00.htm Les conventions locales de gestion des ressources naturelles et de l’environnement. Légalité et cohérence en droit sénégalais par Laurent Granier, IUCN (Gland, Suisse et Cambridge, Royaume-Uni), 2006. 44pp. ReVue ReVue br brève ève par Aboubakry Kane L ’étude sur la cohérence et la légalité des conventions locales de gestion des res- sources naturelles et de l’environnement (CLGRN) par rapport aux lois sénégalaises vient à son heure. En ratissant large, elle a permis de voir les avancées mais aussi les limites de la décentralisation de la gestion des ressources naturelles (RN) et de l’environnement à travers l’analyse de la genèse, de l’utilisation et des problèmes vé- cus par le développement de l’outil « convention locale ». Tout d’abord le premier mérite de l’étude est d’avoir clos le débat sur la cohérence et la légalité des CLGRN, ou au moins identifié et éclairci les bases juridiques de cette cohérence et légalité. L’étude a aussi prouvé le caractère légitime de ces outils, facteur important pour leur appropriation et mis en œuvre. Les conventions locales sont donc un instrument pertinent et efficace pour une meilleure réalisation de la régionalisation, opérée au Sénégal dès 1996 avec l’avènement des lois portant sur le transfert de plus- ieurs compétences dont l’environnement. Ce travail ressort dans l’analyse approfondie 15, July 2007 335 Conservation and Human Rights faite par Laurent Granier tant au niveau de la constitution que des codes con- cernés (Codes des collectivités locales, des Eaux et Forêts, de l’Environnement) que du statut des différents acteurs (signataires et ou engagés) vis-à-vis des CLGRN. Ainsi, les CLGRN apparaissent comme des formes de contrats adminis- tratifs conclus entre collectivités locales, les populations et représentants de l’état, dont les bénéficiaires directs sont les communautés locales et l’environnement. Ces contrats sont le plus souvent étab- lis et mis en œuvre au Sénégal grâce à l’appui de partenaires (ONG, services techniques locaux et projets), dont la collaboration est nécessaire à cause des difficultés des services de l’Etat à s’approprier des orientations politiques nationales et à les traduire en processus pertinents, adaptés aux problématiques et aux contextes régionaux et locaux. Malgré leur large développement depuis près d’une quinzaine d’années et leur contribution appréciable à la gestion locale et participative des RN, les CLGRN continuaient de susciter des doutes sur leur légalité. L’étude se bonifie d’analyses pertinentes et de recommandations, elle dévoile la profusion des concepts qui ajoutent à la confusion, les acteurs oubliés— tel que la commune qui est pourtant ges- tionnaire de ressources, la nécessité de disposer de moyens financiers et techniques pour élaborer les CLGRN (alors que l’Etat n’a pas délégué ces moyens), l’implication massive des ONGs et des projets qui a été à la base du grand développement des CLGRN, la réticente de certains services de l’Etat à collaborer considérant qu’il est de leur prérogative unilatérale de gérer. L’étude permet ainsi de percevoir le vide juridique existant pour que le droit sénégalais reconnaisse formellement les CLGRN. Le travail de Laurent Granier, exhaustif sur le plan documentaire, mérite d’être complété par un travail d’enquête sur le vécu des CLGRN par tous les acteurs, depuis leur élaboration jusqu’à leur mis en œuvre. Cette enquête devrait analyser les méthodes, les outils et les processus de Aboubakry Kane (aboubakry.kane@iucn.org) est Chargé validations populaires et fournir des propo- de projet Réserve de la Biosphère du Delta du Saloum, sitions en mesure de garantir la participa- UICN Sénégal. Laurent Granier (Laurent.Granier@iucn. tion et la prise en compte des préoccupa- org) est Conseiller en droit de l’environnement du Bureau de l’UICN au Sénégal et Point focal de l’UICN pour le droit tions de tous les acteurs, et en particulier de l’environnement en Afrique de l’ouest. Laurent est des acteurs marginalisés. membre associé du CEESP/TGER. 336 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? BookRights... reviews environment… Nature Based Tourism— A Draft International Covenant by Hadi Soleimanpour, CENESTA for IUCN/CEESP, Tehran 2006 Short review by Sylvie Blangy H adi Soleimanpour has been researching existing international development and environmental agreements that address Nature- Based Tourism (NBT) and assess- ing the contributions of recent major international conferences. On the basis of his analysis, he has written a book about a Draft Covenant to regulate tourism within environmentally and cul- turally sensitive areas. The book proposes an international com- mon language and code of con- duct for responsible nature-based and community-based tourism. The Covenant he outlined is based on 47 principles previously agreed by many world countries, and is intended to fill a gap in interna- tional agreements. The book is dedicated to the indigenous peo- ples and local traditional commu- nities of the world. The first chapter of the book lists the most commonly used definitions of eco- tourism and sustainable tourism and offers a new interpretation of the term “nature-based tourism” that incorporates the precautionary principle in relation to possible impacts on biodiversity, ecosystem integrity and local communities. In the second chapter, the international development instruments are revisited with NBT in mind, in particular regarding the roles played by the Commission on Sustainable Development and the UN Conference on Trade and Development after the Rio Summit. The third chapter focuses on the work of the UN Environ- 15, July 2007 337 Conservation and Human Rights ment Program (UNEP) on tourism. It discusses basic principles, voluntary ini- tiatives, an environmental code of conduct, ecolabels, and guidelines for plan- ning tourism in protected areas. It also addresses the role of UNEP in the World Summit on Sustainable Development and the achievements of the Convention on Biological Diversity in particular regarding the ecosystem approach. Part of the UNEP initiatives have been conducted in conjunction with the UN World Tourism Organization, but the point is hardly mentioned in the text under re- view. In chapter five, Soleimanpour has carefully chosen forty-seven principles based on his review and analysis of existing proposals and broadly accepted principles (e.g., sovereignty, polluter pays, human rights, poverty alleviation…). Some of the most notable innovations of the Covenant he outlines in chapter 6 are the establishment of a national system of Nature-Based Tourism Areas (NBTAs) identified on specific criteria such as the ecosystem approach, and a national and international multi-stakeholder body (NMB) to serve as a participatory planning forum. Soleimanpour also stresses the importance of facilitating and enhancing the participation of indigenous people in all NBT processes and en- courages a greater and more meaningful involvement and responsibility on the part of the tourism industry. He sets out a series of EIA procedures for the NBT developments, which should begin by a pre-assessment process. He suggests establishing NBT Awards and a Committee of Experts to facilitate the implemen- tation of the Covenant. The Draft Covenant on NBT proposed by Hadi Soleimanpour is very detailed and well illustrated by existing declarations and recommendations. And yet, one can wonder whether this agreement and new sets of guidelines will ever be imple- mented. Previous attempts at developing similar Covenants proved to be of limited interest to the different parties. Academics and students in the pursuit of their research program do mention them in their publications, but the tourism industry and indigenous people are hardly aware of these attempts. Possibly, if the tourism industry has shown little interest and public authorities have pro- vided limited support so far it is, at least in part, because they were not actively involved in their preparation process. Hopefully, this comprehensive attempt will receive better attention. Soleimanpour’s Draft Covenant should Sylvie Blangy (sylvie.blangy@rogers.com) is currently be of great interest to the IUCN Business a researcher at the Geography & Environmental Studies Department of Carleton University in Ottawa, funded on a and Biodiversity Unit and, in general, European Marie Curie fellowship for 3 years. She is studying to all the members of CEESP and other the role and impact of indigenous tourism on biodiversity and sustainable livelihoods. Sylvie has been a consultant Commissions interested in governance of in ecotourism for over 20 years. She is a board member of natural resources, alternative livelihoods, TIES— the International Ecotourism Society, and a long- pro-poor conservation, protected areas time member of CEESP/TGER. and the accountability of the private and public sectors. 338 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? BookRights... reviews environment… Le Guide des destinations indigènes Edited by Sylvie Blangy Indigènes éditions (1, Impasse Jules Guesde, 34080 Montpellier, France), 2006. 383 pp Short review by Alain A. Grenier T ravel initiatives proposing to mix the val- ues of fair tourism with those of ecological travel in natural settings are on the rise, with indigenous tourism initiatives receiving more attention. Yet, few (if any) attempt to list and describe the possible destinations and travel products offered in relation to indig- enous people. Le Guide des destinations indigènes (pub- lished in French) answers that specific need. Its author, Sylvie Blangy, has cumulated extensive experience of indigenous people and their home environments, over years of travel. Her guide is the product of her pas- sion for both these people and their environ- ments. With the assistance of people she met over her travels, Blangy has compiled a list of 183 indigenous tourism initiatives spread over 60 countries, from nearly every region and climate. The guide illustrates the diversity of travel products currently offered by native people. They cover different motivations, degrees of comfort and types of activities. These range from fishing or wildlife view- ing to staying within a remote community, sharing the villagers’ activities. Some of the products listed involve the hunting and killing of wild animals to feed partici- pants, which some potential travelers may find challenging, according to their con- cept and perception of indigenous and ecological tourism. The initiatives are small scale tourism, with many operators practicing environmen- tal management, opting among other practices for a restricted number of partici- pants. Some locations are more accessible than others. Most are little known on the international scale. The destinations listed in the guide were selected according to many criteria, includ- 15, July 2007 339 Conservation and Human Rights ing the originality of the destination, the authenticity of the contact provided by the community members and their capacity to use tourism to further development and to sustain their culture. At least half of the initiatives presented in the guide aim at financing different conservation projects including ecological restoration, the reintro- duction of native species that have disappeared or the protection of endangered ones. The book is organised in 180 sections (of countries and sub-regions), providing a general but remarkably good overview of the situation of indigenous people and tourism in each country listed. Each section is then supplemented by a tour of the initiatives and travel products offered by (or in relation with) indigenous people. The information provided in the book includes the localisation of the product, local cul- tural features, the type of excursions offered and contact people (including phone numbers and e-mail addresses). Some sections are more detailed than others, providing information about the recommended seasons to travel, clothing, weather conditions and prices to expect. A list of organisations working for the indigenous people discussed is also provided. In addition, every destination is illustrated by black and white photographs (1 to 3 per destination), which work as teasers for each destination and product proposed. Some may see a contradiction in a book that makes “destinations” out of indigenous people, their localities, cultures and natural environments. Yet, all the tours present- ed in this book occur in communities which have chosen to host visitors. In addition to providing practical information about indigenous travel products, the book helps illustrate how indigenous tourism is not only about environmental and social duties Alain A. Grenier, PhD (grenier.alain@uqam.ca), is a professor of nature tourism and sustainable development at but also about the pleasures of discovering Université du Québec à Montréal (UQAM) in the École des another pace of life. sciences de la gestion. Visionaries of the 20th century. A Resurgence anthology Edited by Satish Kumar and Freddie Whitefield, Green Books, Foxhole, Dartington, Totnes, Devon, (United Kingdom), 2006. 224pp. Short review by David Pitt "V isionaries of the 20th Century" is an anthology which provides an excel- lent, indispensable, introduction to the conservation— human rights interface, particularly the primordial right for 340 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? BookRights... reviews environment… peace, including 100 of the key contemporary thinkers and activists from the last century. We are all familiar with Resurgence magazine which, from 1966, drew on seminal ideas of those like E. F. Scumacher who argued that "small is beautiful". Resurgence has provided a thoughtful forum for those who believe, as the editors put it, that "all wars on humans and on nature are ultimately futile" and has become the spiritual and artistic flagship of the green movement. Resurgence has consist- ently advocated a different peaceful world of mutuality, reciprocity and solidarity based on sustainability, spirituality and frugality in stark contrast to the world of consumerism, materialism and militarism, a world in which nature is no longer an enemy. Many of the visionaries were ignored at the time they wrote or worse, per- secuted, imprisoned and tortured. But today there is a wide recognition of the need for sustainability and for global social and "earth" justice in a holistic world. Each of the articles is well written (with excellent photo portraits) often by those who will undoubtedly become the new generation of visionaries. The biographies are divided into three groups of visionaries - ecological, social and spiritual. To give an idea of the diversity of approaches those included amongst the ecologists are Arne Naess, Vandana Shiva, Julia Butterfly Hill, Petra Kelly, Edward Goldsmith, Aldo Leopold, Masanobu Fukuoka, Wangari Maathai. The social visionar- ies start with Gandhi and Martin Luther King but also include Anita Roddick, Aung San Suu Kyi, Muhammad Yunus, John Maynard Keynes, Arundhati Roy, Rianne Eisler, Ivan Illich, Alber Schweitzer, Oscar Arias Sanchez. The spiritual visionar- ies come from most of the great faiths and feature such iconic figures as the Dalai Lama, Desmond Tutu, Tagore, Starhawk, etc., but also lesser known but very in- teresting figures such as Thomas Merton, Seyyed Hoosein Nasr and Kahlil Gibran. Of course there are other visionaries that could and should have been included. As the editors recognize, any list is subjec- tive, and those associated with Resurgence are only a sample, even if the cutting edge. Starting to compile a list of visionaries for the 21st century, there might be much more "from below", from many more cultures, both traditional and newly emerging, as well as the multitudes of communities, not least thanks to the miracle of the Internet and the rage of blogging. Much more will come from women (only about one in four of the vi- sionaries in this book are women) and from increasingly vocal young people. Although looking back, the collection is very relevant for the future too. The 20th century was a time of ubiquitous war and violence not least against nature, a situation which continues today, indeed intensifies as the arms race again escalates, national, regional 15, July 2007 341 Conservation and Human Rights and religious rivalries re-emerge demonizing each other, and multinationals dictate through branding and marketing, obliterating cultural and natural diversity as more and more rural ecosystems are exploited and destroyed by the megalopolis. Nature in the context of global warming is becoming a new apocalyptic devil. International bodies seem only to look on, weak and ineffective, and the scene seems more a re- version to the gun diplomacy and jingoism of 19th century than the sunlit uplands of peace promised after World War II. If this century, (which has not started well and is indeed for many a real disaster), is to do any better, the "ordinary" person cer- tainly needs to be better informed, inspired, and more active. I think it was Einstein who said that if a small number (2 or 3%) were conscientious objectors (or refused to pay taxes), nations could not go to war. If consumers used their enormous pur- chasing power there could not be Coca-colonization. If citizens protested, especially now through the telecommunications revolution, abuses of conservation and human rights could not continue. But the lesson of this collection is not for confrontation, certainly not violence, but the need for a middle, conciliatory, soft, dialogical ap- proach building bridges (or re-erecting them) even as Jonathon Porritt argues with big business. The bottom line is for an ecological as well as a more general pacifism. This book should be in every school and library lest we forget and repeat the mis- David Pitt (pittdelacure@bluewin.ch) is a member of takes of the past and so that we have the IUCN/CEESP and is on the Executive Council of the Geneva International Peace Research Institute (GIPRI). inspiration and ideas to build on, so as not to reinvent the wheel. Sharing power— learning by doing in co-management of natural resources throughout the world By Borrini-Feyerabend, G., M. Pimbert, M. T. Farvar, A. Kothari and Y. Renard, IIED and IUCN/CEESP/CCMWG, Cenesta, Tehran, 2004.461 pp. Short review by Jacques Pollini T his book provides excellent guidelines for the implementation of co-manage- ment approaches for natural resources conservation and sustainable use. It proposes a toolkit for the identification of management issues and for the de- sign, implementation and evaluation of co-management approaches from within 342 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? BookRights... reviews environment… communities. It shows that centrally designed management policies often have adverse effects on local communities’ livelihood, favor unequal resources appro- priation, and sometimes lead to human rights violation. More than a guide for efficient resources management, this book is a strong advocate for the empow- erment of local communities. It draws on political economy of natural resources management and raises essential issues such as the relationships between the local and the global, the legal and the legitimate, nature and culture, science and politics, and tradition and modernity. This review aims to identify, beyond these qualities, the limits of this book in order to envision a possible next step for the improvement of natural resources management approaches while respecting communities’ livelihoods. In order to achieve this, I propose to set the problematic of natural resources management in its largest possible frame, by envisioning two distinct levels. The first level concerns the issue of unequal resource appropriation. Globaliza- tion and the development of markets favor the appropriation of resources by the most powerful actors and the marginalization of the powerless. Powerful actors often come from outside the areas where resources are found, while the pow- erless are often indigenous groups living in close proximity to, and directly de- pendent upon, localized natural resources. I call this dynamic colonization, in the sense (not restricted to the case of relations between developed and developing countries) that a group of people settles or appropriates resources to the detriment of an- other group that settled before and was already using these resources. The second level concerns resourc- es utilization, independently of inequity aspects. Groups of people utilize the resources of their en- vironment to satisfy their needs, while population growth forces these groups to create new modes of resource use. I call this dynamic development. Inquiry over long time periods is necessary to un- derstand its impacts. Development and colonization are, however, not independent. Colonization can be seen as a development strategy adopted by a group in the detri- ment of another, when its resourc- es become insufficient. There are increasing evidences that colonization, or the appro- 15, July 2007 343 Conservation and Human Rights priation of resources by the most powerful groups, is a more important cause of natural resources degradation than the development of local societies. The trans- migration programs in Indonesia and the colonization of the Amazonian basin provide good examples. For this reason the empowerment of indigenous groups, which can help them to resist to colonization by other groups, must be a central concern in all conservation programs. This book has the capacity to address the issue of empowerment in depth, which is not an easy task because conservation programs themselves are often a form of colonization. However, even if these ‘colonization issues’ are solved, empowerment of local people will not necessarily solve the trade-off that could exist between satisfac- tion of conservation and development objectives. There is still no consensus about what constitutes sustainable development. At global level, it has been decided that biodiversity conservation is one of the conditions for sustainabil- ity. This objective is rarely regarded as essential by agricultural societies, which focus on resource use and see primary ecosystems as areas to be converted into agricultural land. The second level (local agricultural development) is hence not addressed in a satisfying manner by this book. The book asserts for example that there are cases where “environmental sustain- ability and livelihood security need to be pursued together if they are pursued at all” (p.130). Many questions arise from this assertion and it is doubtful whether it is applicable in a wide range of situations. Livelihood securitization can lead to the appearance of new needs and the increase of investment capacity, resulting in the conversion of more forest land to agriculture. Environmental sustainability, on the other hand, usually requires restricting access to resources, with a cost at the level of livelihoods. Local communities can benefit from improved management in a context of colonization by outsiders, because the new rules are the only way to stop the appropriation of resources by these colonists. But in absence of colo- nization, unsustainable use can be a strategy for maintaining livelihoods. When a resource is depleted, another one can often be found or other strategies can be developed. The economic logic of local communities is often to adopt a succession of strategies, rather than to put in place a sustainable one. Resources are then sacrificed one by one in the name of development. In the context of agricultural frontiers, which are the areas where natural resources are put under higher pres- sures, the tradeoff between environmental sustainability and economical sustain- ability is obviously acute. Solving livelihood issues may not often solve natural resources management issues in such cases. The reasons why the two issues have to be solved together may be more ethical than technical. The book further asserts, page 155, that “the most important result sought by a genuine co-management initiative is not for people to behave in tune with what some experts […] believe is right for them, but for people to think, find agree- ment and act together on their own accord”. In a context of generalized top- down approaches, still prevalent in conservation and development projects and programs, it is necessary to make this assertion. There are however essential issues, such as mass extinction and global warning, that cannot be perceived by local stakeholders, though the solution to these issues depends in part on the decisions of such stakeholders, which renders external expertise necessary. 344 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling support… anyway? BookRights... reviews environment… By saying this, I take the risk of providing justification to hegemonic discourse mostly motivated by resources appropriation, and which blame local communi- ties for degradation dynamics to which they contribute only marginally. On the other hand, overlooking this issue would weaken the analyses that challenge this hegemonic discourse, because these analyses would not account for some indig- enous development dynamics that actually contribute to resources destruction (e.g., by forest clearing). It is therefore now necessary to go beyond natural resources management as- pects and to include an analysis of agriculture development and its relationship with other forms of resources utilization. It may be that societies of hunter-gath- erers or pastoralists can live on their land while preserving most of its resources, including biodiversity. But in the case of agricultural societies, one of the main functions of customary rights is to allocate forest land for clearing when needs increase or population grows. A synthesis of this book with Boserup’s (1965) classic work, The condition of agriculture growth, may be a starting point to ac- count for sustainability, for example in the context of agricultural systems on forest frontiers, where we find threatened primary ecosystems which constitute huge biodiversity reservoirs. This more comprehensive framework will improve the understanding of natural resources utilization on agricultural forest frontiers. It will also raise ethical issues (which already appear in filigree in the book) such as why to conserve ecosystem that only have a marginal utility value; who has the legitimacy to decide for this conservation; what are the acceptable economic, social and political costs; and who is going to bear these costs. In conclusion, this book provides an excellent contribution to engage in commu- nity centered natural resources management practices. Its outcomes now have to be prolonged by being articulated with the issues of local agricultural develop- Jacques Pollini (jp267@cornell.edu) holds Masters ment. This may be a necessary step if we degrees in biology/ecology, comparative agriculture, and development economics. He worked as an agronomist and are to achieve a comprehensive political a forester in Burundi, Vietnam, Laos and Madagascar. He economy of natural resources manage- recently completed a PhD in Natural Resources at Cornell University (USA). His research focuses on rural develop- ment that would be accountable for both ment and environmental policies in Madagascar. Jacques is local and global societies, and for the a member of TGER and TILCEPA. social and the natural worlds. 15, July 2007 345 Conservation and Human Rights CEESP Network Highlights T he flower petal model shown here illustrates how all of CEESP’s Themes and Working Groups are linked through shared concerns and strong collaboration. As we continue to follow the mandate received at the 3rd IUCN World Conservation Congress in Bangkok (November 2004), the Executive Committee of CEESP and the members all over the world are undertaking innovative work at multiple levels at the interface of environmental, economic and socio- cultural arenas. A few highlights are shared below. As always, please visit us at http://www.iucn.org/themes/ceesp/ for more information, including many recent publications. Working Group on the Social and Environmental Accountability of the Private Sector (SEAPRISE) Areas where oil companies and other extractive industries operate are also often areas of high biodiversity and low governance/ civil society capacity to engage with the companies. SEAPRISE works on capacity building of civil society and govern- ments in these areas, and toward greater accountability of these industries. Mining in Philippines. SEAPRISE participated in a fact-finding mission to the Philip- pines to asses the environmental and human rights impact of mining activities. The findings are published in a report1 that was simultaneously launched in press meet- ings in Manila and London in January 2007. Their findings reveal the devastating ef- fects of mining, including severe erosion, destruction of water catchments and ma- rine environments, decreased food security, over 800 related extra-judicial killings… and virtually no economic gains for the country! Unfortunately the country govern- ment is keen on expanding rather than curtailing mining activities, which raises strong suspicions of corruptions and wrongdoing. Assessment of war-related oil spill Lebanon. In August 2006, in collaboration with the Lebanese NGO Green Line and the WESCANA IUCN regional office (dealing with West Asia, Central Asia, and North Africa), SEAPRISE member Prof. Richard Steiner carried out a rapid environmental assessment of the war related oil spill in Lebanon. He prepared a report and conducted a follow up mission to Israel to discuss reparation measures with the offending government. The Theme on Environment and Security supported this work by offering a Report Addendum on legal implications. 346 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling CEESP support… anyway? BookRights... reviews environment… News and Events Oil production in the Niger Delta. Throughout 2005 and 2006, supported by PRCM (Programme Régional de Conservation de la Zone Côtière et Marine de Afrique de l’Ouest), FIBA (International Foundation for the Banc d’Arguin), and WWF, SEAPRISE accompanied to Nigeria representatives from governments and civil society from Gambia, Guinea Bissau, Kenya, Mauritania, Mozambique, Senegal, and Tanzania. These people could see first hand the environmental and social impacts of oil production activities in the Nigel delta and met with top officials and local residents. The visit dramatically raised their awareness about the need to prevent similar devastations in countries soon to become oil and gas producers in Africa. Looking ahead, SEAPRISE hopes to further raise, and directly address, the many and profound human rights implications of the extractive industry impacts on which it engages. Theme on Sustainable Livelihoods (TSL) Forum for Food Sovereignty. From more than 80 countries, over 500 representa- tives of organizations of peasants and family farmers, artisanal fisherfolk, indigenous peoples, landless peoples, rural workers, migrants, pastoralists, forest communities, women, youth, consumers and environmental and urban movements gathered in the village of Nyéléni in Sélingué, Mali from 23 – 27 February 2007 in the name of the food sovereignty movement. They did so to share experience and strengthen the global movement. TSL co-chairs facilitated two of the five main workshops units and several CEESP members participated actively in them. The Forum provided an op- prtunity for partners across sectors to continue the rethinking of food and agriculture outside the dominant neo-liberal model. GMOs Website. In response to a request by the IUCN Council, TSL has developed and launched a website [www.iucn.org/themes/ceesp/nogmo.htm] which links to in- formation and action on genetically modified organisms (GMOs), including the IUCN policy/resolutions on GMOs, related IUCN activities, and links to external sources. WAMIP General Assembly. TSL and the World Alliance of Mobile Indigenous Peoples (WAMIP) are organizing the first WAMIP General Assembly in Spain, September 2007, co-funded by the Spanish government and coinciding with the 9th Conference of the Parties to the UNCCD. Strategic Direction on Governance, Communities, Equity, and Livelihood Rights in Relation to Protected Areas (TILCEPA) The work of this joint Theme of CEESP and WCPA is closely linked to the work of TGER. Protected Areas Governance. With the support and advocacy of TILCEPA and TGER, the IUCN governance matrix was approved at the categories summit in Almeria for incorporation into the revised IUCN Guidelines for Protected Areas (PA). This matrix helps clarify and provide a framework for identifying PA governance type, 15, July 2007 347 Conservation and Human Rights as distinct from PA category.2 At the WCC in Barcelona, a workshop is planned with the government of Catalunia to present an analysis of their PA system using the government matrix. Other governments that were present in Almeria will go through similar assessments and will likely present their results in Barcelona The next step in the governance discussion is to look beyond Protected Areas, at the landscape level. The forthcoming IVth WCC is an opportunity to start reflection on this. Community Conserved Areas. TILCEPA and TGER are currently conducting two studies of governance of biodiversity and CCAs (see the article on page 350) Alerts. TILCEPA is supporting a number of alerts related to flagrant violation of rights of communities living within or close to protected areas, or communities whose CCAs are endangered by commercial interests. The co-chairs have recently written to the President of the Republic of Paraguay, requesting him to protect the Ayoreo People and their territory and reconsider the proposed deforestation of more than 23,857 ha of pristine forest in Amotocodie, northern Chaco . Theme on Governance, Equity, and Rights (TGER) Regional Learning Networks on Collaborative Management. Two learning networks are on-going with technical support provided by TGER members: one in South-East Asia, on co-management of protected areas with indigenous peoples, and the other in West Africa, focusing on co-management of marine protected areas. Each learning network has sites from different countries (Vietnam, Laos, Cambodia The Philippines,Thailand, Indonesia, and Malaysia in South East Asia, and Mauritania, Senegal, Cap Vert, The Gambia, Guinea and Guinea Bissau in West Africa) has representatives from NGOs, indigenous peoples, and government. Groups from each participating site come together to compare experience and support each other in learning- a fact that has also managed to advance policy and practice by the pressure of positive example. Conservation and Human Rights. In addition to this special issue of Policy Matters, TGER and its members and partners are coordinating a forthcoming Occasional Paper on conservation-related displacement, a concept paper on human rights approaches to conservation, a symposium on conservation and human rights at the 2007 Society for Conservation Biology Meeting, and a related field-based workshop in the Baviaanskloof protected area (South Africa).3 Co-Management practice and policy in China. CEESP members have been working in China to sustain a large scale pilot initiative (two township- eleven villages) on co-management of natural forests. They are now preparing to support policy innovations for the whole country. Innovative training for PA management in Morocco. A new specialization option for PA managers is being piloted at the National School for Forest Engineers (ENFI) in Salé (Morocco). For the first time, engineers are trained in conservation issues, participatory processes and issues of PA governance. Governance of Biodiversity in the South. (see the article on page 350) 348 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling CEESP support… anyway? BookRights... reviews environment… News and Events Theme on Culture and Conservation (TCC) Developing a Working Definition of Culture. TCC is working on a series of concept papers developing a working definition of culture and cultural policy for IUCN. The paradigm of cultural conservation is more and more part of IUCN and its new programme, and such a working definition will become increasingly important in that work. New and forthcoming publications and tools. TCC members are working on a resource book on biocultural diversity and on rapid cultural impact assessment tools for Protected Areas. A TCC member edited a recently published collection entitled Pacific Genes and Life Patents, Pacific Experiences & Analysis of the Commodification & Ownership of Life. Working Group on Environment and Security (E&S) Forces for Sustainability Conference (Peace Palace). E&S, in partnership with the Institute for Environmental Security, and with the support of several other CEESP Themes and Groups, coordinated the Forces for Sustainability Conference, (March 2007, Peace Palace, the Hague). Here, CEESP members (in particular from SEAPRISE) and military and private sector representatives engaged in fruitful discussion and furthered efforts to increase coordination across sectors to address environmentally-related security issues.4 Theme on Environment, Markets, Trade and Investment (TEMTI) The Chair of TEMTI is raising funds to launch the Theme’s activities over the next three years. A partnership with the IUCN secretariat is being developed. TEMTI’s core research project will focus on macroeconomic policies and practices and environmental change with a focus on the South American region. The Theme aims at producing and disseminating research results that advance the quality of the debate on economics and environment issues. Notes References 1 Doyle et al., 2007. Borrini-Feyerabend, G., J. Johnston and D. Pansky, 2 For more information on this, see the Almeria “Governance of protected areas”, pages 116-145 Summit papers available from the IUCN/WCPA in Lockwood, M., A. Kothari and G. Worboys (eds.), site and Borrini-Feyerabend et al., 2006. Managing Protected Areas: a Global Guide, Earths- can, London, 2006. 3 For the latter two events, we are grateful for the partnership with the International Institute for Doyle, C., C. Wicks and F. Nally, Mining in the Philip- Environment and Development (IIED) and the pines Concerns and conflicts Report of a Fact-Find- South Africa's Cape Action for People and the ing Trip to the Philippines July-August 2006, Soci- Environment Programme (C.A.P.E.). ety of St. Columban, (West Midlands) UK, 2007. Available at http://www.iucn.org/themes/ceesp/ 4 For more information, see www.envirosecurity. Wkg_grp/Seaprise/Mining%20in%20the%20Philip org/sustainability pines%20-%20Concerns%20and%20Conflicts.pdf (30 May 2007). 15, July 2007 349 Conservation and Human Rights Governance of Biodiversity and Community Conserved Areas: new and on-going projects with CEESP’s TGER and TILCEPA Grazia Borrini-Feyerabend and Barbara Lassen G overnance of biodiversity is a relatively new—although rapidly expanding— field of interest in the conservation community. For instance, the 2003 World Parks Con- gress, the 2004 CBD Programme of Work on Protected Areas and the 2005 Congress on Marine Protected Areas paid special attention to governance, explored its appli- cations and developed relevant recommendations and plans. Community Conserved Areas (CCAs) are among the most innovative concepts and areas of work that emerged out of these reflections. Paradoxically, they are very effective protected areas (the definition is demanding it) but possibly not legally recognized as such. How is it possible? CCAs comprise natural and/or modified ecosystems containing significant biodiversity values, ecological services and cultural value that have been conserved in a voluntary, self-directed way by indigenous peoples or local communi- ties. Such communities have usually done so through customary laws, as only some have legal ownership or are recognized by the state as the legal managers of the natural resources. Some CCAs were established centuries ago (some have over 1000 years of recorded history), others have recently evolved by taking advantage of new conditions or leg- islation. All share three basic characteristic. First, a strong bond linking a well defined community and a well-defined body of resources—a body that may have to do with culture, livelihoods, spiritual or other values. Second, the actual de facto capacity of the community to take decisions and implement those decisions regarding the management of the natural resources (what to do about them, what objectives to pursue, how to pursue them…). Third, the observation that the community management is successful in conserving biodiversity, possibly despite the other (cultural, socio-economic, spiritual, security-related, etc.) objectives that took precedence in the intention of the commu- nity itself. Remarkably, this makes the CCA definition more demanding than the IUCN or CBD definition of “protected area”, which re- Even in marine environments, sometimes considered the ecosystem where people fers to areas dedicated or managed for the act solely as “resource extractors”, one conservation of biodiversity, but not neces- can find amazing examples of traditional sarily successful at that… values, care and effective conservation practices. (Courtesy Pierre Campredon) 350 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling CEESP support… anyway? BookRights... reviews environment… News and Events While a few CCA examples may be said to be thriving, others face pressing threats from a variety of phenomena. Most of all, there is still a huge knowledge gap about where CCAs exist, what “types” exist, how do they function, what are their strengths and weaknesses, and how they can be supported for both conservation and community benefits. The IUCN Commission on Environmental, Economic and Social Policy (CEESP) has been seeking resources to study biodiversity governance, and in particular community conserved areas, for some time. At the end of 2006 it was successful in launching two initiatives that seek to both advance knowledge and positively influence policy. One of the initiatives is run by TGER—its Theme on Governance, Equity and Rights. The other is run by TILCEPA—its joint Theme with the World Commission on Protected Areas (WCPA). Participatory action research on governance of biodiversity in nine countries of the South CEESP/TGER is collaborating with a large, multi-partner research project exploring how governance processes and institutions can best contribute to the conservation of biodiversity. The project is EU-funded and works through a large partnership in The Kaya forests, in Kenya, are an exam- Europe. Outside of Europe, CEESP is co- ple of Community Conserved Areas. They ordinating, and partially carrying out in were developed for security purposes but a direct way, a total of nine participatory they are successful in conserving biodiver- action research studies in specific sites rich sity. (Courtesy Grazia Borrini-Feyerabend) in biodiversity. The sites are in Bolivia, Ar- gentina, Indonesia, Nepal, Turkey, Mongolia, Iran, Niger and Ethiopia. Most of them are Community Conserved Areas and a few engage communities in some form of co-management and/or broad landscape conservation efforts. TGER’s coordination is stressing the active involvement of community members in the development of the studies, whose results will feed into a broad EU analysis and report. In the Fall 2007, a workshop among representatives from the Southern countries will draw les- sons from the participatory action research and develop policy recommendations for EU aid policy and other international processes. Regional reviews of Community Conserved Areas In cooperation with Swedbio, CEESP is promoting a number of regional reviews of Community Conserved Areas. The goal is to deepen the understanding of CCAs and their relevant needs and opportunities in varying historical/regional contexts. From that understanding, policy recommendations will be drawn and supported at various levels, in particular through the CBD Programme of Work on Protected Areas. While working on the above, CEESP/TILCEPA will also identify and support one or more CCA in need of urgent field-based support. So far, studies are being carried out in the following regions: X Eastern Himalaya (including North-East India, Eastern Nepal, Bhutan, the Chit- tagong Hill Tracts of Bangladesh and Northern Burma (Myanmar) 15, July 2007 351 Conservation and Human Rights X East Africa (Tanzania, Kenya, Rwanda, Congo Democratic Republic, Uganda) X Southest China (the biodiversity hotspot in NW Yunnan, NW Sichuan, Southeast of Tibet A.R, South of Qinghai and southwest of Gansu) X The Arctic tundra region (Canada, Russia, Norway) X Mesoamerica (with a particular focus on For more information on either of these initiatives, please Mexico, Belize and Guatemala) contact Barbara Lassen (barbara@cenesta.org) and Grazia Borrini-Feyerabend (gbf@cenesta.org) Nyeleni Forum for Food Sovereignty Selingue, Mali - February 2007 From more than 80 countries, over 500 representatives of organizations of peasants/family farmers, artisanal fisherfolk, indigenous peoples, landless peoples, rural workers, migrants, pastoralists, forest communities, women, youth, consumers and environmental and urban movements gathered from 23 – 27 February 2007 in the village of Nyéléni (Sélingué, Mali) to share experiences and strengthen the global food sovereignty movement. What follows are a few extracts from the Synthesis Report of that gathering. N yéléni1 was the inspiration for the name of our Forum for Food Sovereignty in Sélingué, Mali. Nyéléni was a legendary Malian peasant woman who farmed and fed her peoples well— she embodied food sovereignty through hard work, inno- vation and caring for her people. We, peasant farmers, pastoralists, fisherfolk, indigenous peoples, migrant workers, women and young people, who gathered at Nyéléni 2007 are food providers who are ready, able and willing to feed all the world’s peoples. Our heritage as providers of food is critical to the future of hu- manity. This is especially so in the case of women and indigenous peoples who are historical creators of knowledge about food, agriculture and traditional aquac- ulture. But this heritage and our capacity to produce healthy, good and abundant food are being threatened and undermined by neo-liberalism and global capital- ism. 352 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling CEESP support… anyway? BookRights... reviews environment… News and Events We debated food sovereignty issues in order to deepen collective understand- ing, strengthen dialogue among and between sectors and interest groups, and formulate joint strategies and an action agenda. Our debates gave food provid- ers as well as environmentalists, consumers and urban movements the strength and power to fight for food sovereignty in Mali, the rest of Africa and worldwide. Through our alliances, we can join together to preserve, recover and build on our knowledge in order to strengthen the essential capacity that leads to sustaining localised food systems. In realizing food sovereignty, we will also ensure the sur- vival of our cultures, our peoples and the Earth. Food sovereignty puts those who produce, distribute and need wholesome, local food at the heart of food, agricultural, livestock and fisheries systems and policies, rather than the demands of markets and corporations that reduce food to internationally tradable commodities and components. It offers a strategy to resist and dismantle this inequitable and unsustainable system that perversely results in both chronic under-nutrition and rapidly rising obesity. Food sovereignty includes the right to food – the right of peoples to healthy and culturally appro- priate food produced through socially just and ecologically sensitive methods. It entails peoples’ right to participate in decision making and define their own food, agriculture, livestock and fisheries systems. It defends the interests and inclusion of the next generation and supports new social relations free from oppression and inequality between men and women, peoples, racial groups and social classes. It promotes a genuine agrarian reform and defends access to, and the sharing of, productive territories free from the threat of privatisation and expulsion. Food sovereignty defends the interests and the right to food, and to produce food, of peoples and communities, including those under occupation, in conflict zones, facing and/or recovering from disasters, as well as those who are socially and economically marginalised, such as dalits, indigenous peoples and migrant workers. Food sovereignty provides a policy framework for food, farming, pas- toralism, fisheries and other food produc- tion, harvesting and gathering systems determined by local communities. At Nyéléni 2007, we strengthened dia- logue among and between sectors and interest groups. This was through the main work of the forum which was spent discussing seven themes related to food sovereignty: local markets and interna- tional trade; local knowledge and tech- nology; access and control of natural Picture 1. More than 500 representa- resources; sharing territories; conflicts, tives from more than 80 countries and a occupation, and disasters; social condi- wide range of social movements gathered tions and forced migration; and produc- together in the village of Nyéléni in Sé- tion models. (Background papers on lingué, Mali to strengthen a global move- each of these topics were collaboratively ment for food sovereignty. (Courtesy Nahid Naghizadeh) developed by the social movements and 15, July 2007 353 Conservation and Human Rights are available at http://www.nyeleni2007.org/ spip.php?rubrique18). …[W]e deepened our collective under- standing of Food Sovereignty which: 1. Focuses on Food for People: Food sovereignty puts the right to sufficient, healthy and culturally appropriate food for all individuals, peoples and commu- nities, including those who are hungry, under occupation, in conflict zones and marginalised, at the centre of food, ag- riculture, livestock and fisheries policies; Picture 2. Instead of holding the confer- and rejects the proposition that food is ence in a hotel in the city, the village just another commodity or component of Nyéléni was built and donated to the for international agri-business. social movements of Mali for their future 2. Values Food Providers: Food sover- events using local labour and materials and traditional, ecologically sustainable eignty values and supports the contribu- architecture. (Courtesy Nahid Naghizadeh) tions, and respects the rights, of women and men, peasants and small scale fami- ly farmers, pastoralists, artisanal fisherfolk, forest dwellers, indigenous peoples and agricultural and fisheries workers, including migrants, who cultivate, grow, harvest and process food; and rejects those policies, actions and programmes that undervalue them, threaten their livelihoods and eliminate them. 3. Localises Food Systems: Food sovereignty brings food providers and con- sumers closer together; puts providers and consumers at the centre of deci- sion-making on food issues; protects food providers from the dumping of food and food aid in local markets; protects consumers from poor quality and un- healthy food, inappropriate food aid and food tainted with genetically modified organisms; and resists governance structures, agreements and practices that depend on and promote unsustainable and inequitable international trade and give power to remote and unaccountable corporations. 4. Puts Control Locally: Food sovereignty places control over territory, land, grazing, water, seeds, livestock and fish populations on local food providers and respects their rights. They can use and share them in socially and envi- ronmentally sustainable ways which conserve diversity; it recognizes that local territories often cross geopolitical borders and ensures the right of local com- munities to inhabit and use their territories; it promotes positive interaction between food providers in different regions and territories and from different sectors that helps resolve internal conflicts or conflicts with local and national authorities; and rejects the privatisation of natural resources through laws, commercial contracts and intellectual property rights regimes. 5. Builds Knowledge and Skills: Food sovereignty builds on the skills and local knowledge of food providers and their local organisations that conserve, devel- op and manage localised food production and harvesting systems, developing appropriate research systems to support this and passing on this wisdom to future generations; and rejects technologies that undermine, threaten or con- taminate these, e.g. genetic engineering. 354 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling CEESP support… anyway? BookRights... reviews environment… News and Events 6. Works with Nature: Food sovereignty uses the contributions of nature in diverse, low external input agroecological production and harvesting methods that maximise the contribution of ecosystems and improve resilience and ad- aptation, especially in the face of climate change; it seeks to heal the planet so that the planet may heal us; and, rejects methods that harm beneficial ecosystem functions, that depend on energy intensive monocultures and live- stock factories, destructive fishing practices and other industrialised production methods, which damage the environment and contribute to global warming. The following joint strategies and action agenda to realise food sovereignty were developed, presented below in summary, based on actions to promote the food sovereignty agenda, to resist policies and practices that undermine it and to strengthen the movement. We will promote strategies, policies and lifestyles that strengthen community control, ecological sustainability, local knowledge and autonomy, and traditional wisdoms to assert food sovereignty in all of its dimensions as well as our associ- ated Rights. We will identify and strengthen existing autonomous practices that provide food sovereignty as well as push our governments to re- spect and protect our rights to food sovereignty. Local markets: we will assert the right of food providers and consumers to have autonomous control over local markets as a crucial space for food sovereignty. Local knowledge: we will assert that local knowledge and cultural values are paths to realising food sovereignty and will identify local, collective, and diverse experiences and practices, as examples, recognising that they are ever changing and dynamic— not static— and gather strength through exchange and solidar- ity. Picture 3. Local women prepared the food Agroecological production and har- for the participants using local ingredients and recipes and served in calabash dish- vesting: we will promote socially and es: food sovereignty in action! environmentally sensitive production sys- (Courtesy Nahid Naghizadeh) tems that can be controlled by local food providers. Use of international instruments and programmes: we will assert food sov- ereignty and associated rights by utilising international legal instruments. Agrarian reform and community control of territories: we will fight for a comprehensive genuine agrarian reform that upholds the rights of women, indige- nous peoples, peasants, fisherfolk, workers, pastoralists, migrants and future gen- erations and enables the coexistence of different communities in their territories. We will resist the corporate-led global capitalist model and its institutions and policies that prevent communities from asserting and achieving food sovereignty. 15, July 2007 355 Conservation and Human Rights This includes challenging government policies that facilitate corporate control of our food production and distribution, as well as taking direct action against corporate practices. International trade: we will combine fights against trade liberalisation with struggles to promote local production and markets and thus build food sover- eignty. Transnational corporations: we will fight against the corporate control of the food chain by reclaiming control over our Picture 4. Malian girls carrying local food prod- territories, production, markets and the ucts during the opening ceremony. In the ways we use food. background appears one of the messages of the conference: for an agriculture with peasants; Conflicts and occupation: we will join for fishing with fisherfolk; for livestock withstruggles against occupation and fight pastors! (Courtesy Ahmad Taheri) the walls and militarization of borders that splinter peoples and prevent their access to local food and productive territories, recognising that conflicts and oc- cupations present a serious threat to food sovereignty and that asserting food sovereignty is crucial for peoples and communities to survive and thrive under adverse conditions. Toxic technology: we will continue to fight against genetically modified crops, animals, and trees; against industrial aquaculture; against cloned livestock; and against the irradiation of food. Monocultures & agrofuels: we will mobilise and engage in international cam- paigns against the industrial production of agrofuels; these are often under the control of transnational corporations and have negative impacts on people and the environment. Climate change: we will denounce industrial agriculture as a contributor to climate change and question the utility and effectiveness of carbon markets to reduce emissions and ensure climate justice. Strengthen the movement: we will strengthen the movements for food sover- eignty through mobilisation, alliance building, education, communication and joint action among movements throughout the world; and we will win. Mobilisation: we will mobilise across sectors in our joint struggles against those governmental policies, corporations and institutions that prevent the realisation of food sovereignty. Alliance building and strengthening our own movements: we will build the movement for food sovereignty by strengthening organisations, coopera- tives, associations and networks, and building strategic alliances among diverse constituencies such as consumers, students, academics, health practitioners, religious communities, the environmental justice movement, water justice move- 356 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling CEESP support… anyway? BookRights... reviews environment… News and Events ments and people affected by large dams, extractive industry, wars, occupation and disasters. Education: we will promote political education in order to assert food sovereignty. Communication: we will strengthen our own means of communication based on our cultures and local conditions, in order to counter corporate propaganda, chal- lenge the globalised industrial food system and highlight good local experiences and knowledge. Days of action: we will coordinate and participate in days of action that are organized and promoted by allied organizations, bringing a focus on food sover- eignty and encouraging the participation of For more information on this event and its outcomes, all constituencies, especially women. including the Food Sovereignty Action Agenda discussed by sectors, interest groups, and regions represented at the Notes Forum, please see http://www.nyeleni2007.org or contact contact@nyeleni2007.org. 1 Text is adapted by Maryam Rahmanian from the Nyéléni 2007 Synthesis Report (Forum for Food Sovereignty Pour d’avantage d’informations concernant cet événement International Steering Committee, 2007) ainsi que d’autres documents en français, incluant l’Agenda d’Action de Souveraineté Alimentaire, voyez http://www.nyeleni2007.org ou contactez References contact@nyeleni2007.org. International Steering Committee of the Forum for Food Sovereignty, Synthesis Report - Nyéléni 2007, Forum for Para más información así que otros documentos en Español, Food Sovereignty, electronic document, March 2007. incluyendo la Agenda de Acción de Soberanidad Alimenta- Available at http://www.nyeleni2007.org/spip. ria, ver php?article334 (15 June 2007) http://www.nyeleni2007.org o contactar contact@nyeleni2007.org A Co-Management Learning Network builds bridges between protected areas and indigenous peoples in South East Asia! Jeremy Ironside, Grazia Borrini Feyerabend, and Jannie Lasimbang T he Co-Management Learning Network (CMLN) was established in December 2005 to implement and exchange protected areas co-management (CM) experiences among seven pilot “learning sites” in seven countries of South East Asia (see table below). In light of the problems of ‘coercive’ approaches to protected area manage- ment, and of the strained relationships between indigenous communities and protect- ed area authorities, this initiative promotes cooperation and mutual respect towards more effective and sustainable opportunities to conserve Southeast Asia’s important biodiversity. 15, July 2007 357 Conservation and Human Rights Co-management Learning Sites in South-East Asia Indigenous Country Participating Site Communities Indonesia Kayan Mentarang National Park (KMNP) Dayak (several groups) Malaysia Crocker Range Park (CRP) Dusun and Murut Thailand Ob Luang National Park (OLNP) Karen, Hmong, Khon Muang Cambodia Virachey National Park (VNP) Brao, Kavet Laos Xe Piann National PA (XPNPA) Brao, Jrouk Dak Mu Cang Chai Species/Habitat Conservation Vietnam Hmong Area (MCC SHCA) Philippines Mt. Guiting-Guiting Natural Park (MGGNP) Sibuyan Mangyan Tagabukid The Co-management Learning Network is a partnership among “CM learning sites” engaged in similar processes towards shared governance (co-management) of pro- teced areas. In Phase I of the initative (December 2005 to June 2008) teams from each site— including government agency staff, indigenous peoples representatives and civil society organisations— are working towards: X Supporting CM practice in each learning site.and reflecting upon that practice in lo- cal participatory action research processes; X Promoting mutual support and common learning within the regional CM network; X Enhancing the capacity to develop and maintain co-management (policies, process- es, agreements and institutions) in all the learning sites, X Enhancing understanding, awareness and recognition of CM practices beyond the learning sites— in all concerned countries and in the region. While co-management learning networks have been successfully implemented in other parts of the world, this is a new initiative for the South East Asia region. Ac- ceptance of indigenous peoples' rights to participate in the management of protected areas varies greatly across the participating Picture 1. The first regional meeting of the Picture 2. Field visits help people recog- CMLN took place in Crocker Range Nation- nise the commonalities and diversities of al Park (Sabah, Malaysia) in March 2006. their issues. (Courtesy Grazia Borrini-Feyerabend) (Courtesy Grazia Borrini-Feyerabend) 358 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling CEESP support… anyway? BookRights... reviews environment… News and Events Picture 3. Cultural pride is part of indigenous Picture 4. The exchange among the participants peoples’ sense of identity. from different sites is intense (Courtesy Grazia Borrini-Feyerabend) (Courtesy Grazia Borrini-Feyerabend) countries. In the Philippines, for example, the Indigenous Peoples Rights Act of 1997 allows indigenous communities to claim their land ownership and resource management rights, and in some cases this has resulted in protected area authorities and local indigenous communities negotiating co-man- agement agreements. In Indonesia, government decrees issued since 2002 have mandated the collaborative management of Kayan Mentarang National Park through a joint policy board, including the participation of an independent indigenous organiza- tion (FoMMA). This policy advance is slowly being transformed into concrete action on the ground. In other countries, the policy discussion and acceptance of CM is only in a budding stage and still lacks legal provisions for 'sharing power' in protected area management. In the learning sites of the CMLN network, the rights and responsibilities to co-manage all or part of the protected areas are being defined in a variety of ways, including: X Negotiating watershed management agreements in which upstream indigenous communities receive benefits for maintaining the health of the watershed supplying water to downstream communities (The Philippines); X Negotiating, demarcating and developing sustainable resource use plans for com- munity areas inside protected areas (Malaysia, Cambodia); X Strengthening dialogue and cooperation between lowland and upland indigenous communities in watersheds, partially one included in a protected area (Thailand); X Demonstrating the value of indigenous traditional knowledge for protected area management (Laos); X Using pilot co-management activities for policy level advocacy (Vietnam); and X Defining protocols for sharing management tasks and responsibilities, and estab- lishing indigenous representative structures (Indonesia); 15, July 2007 359 Conservation and Human Rights These experiences are the focus of participa- tory action research in each site, regularly exchanged and discussed in the network’s regional workshops. The workshops are dedicated to mutual support and common learning among teams from each site. The teams include representatives of indigenous peoples, PA authorities and supporting civil society organisations. In addition, study tours are held between the sites, and technical support is provided through networks such as TGER and TILCEPA. The lessons learned in the CMLN are being documented and will be disseminated as the activities in each of the Picture 5. The second regional meeting sites and the broader network develop and of the CMLN took place in Mu Cang Chai evolve. Reports on progress will be shared (Vietnam) in December 2006. through the CMLN’s own web site (available (Courtesy Grazia Borrini-Feyerabend) soon!). Jeremy Ironside (jeremyi@camintel.com) is the Project References Coordinator of the Co Management Learning Network (Cha- ing Mai, Thailand) and a long time member of TGER. Grazia Ironside J. and N. Nang, Indigenous Peoples and Protected Borrini Feyerabend (gbf@cenesta.org) is Chair of TGER Areas: A Collaborative Management Learning Network in and Co-chair of TILCEPA. Jannie Lasimbang Southeast Asia, Project Inception Phase Report Dec 1 (aipp@loxinfo.co.th) is Secretary General of the Asia Indig- 2005– June 30 2006, Asia Indigenous Peoples Pact Founda- enous Peoples Pact Foundation (Chaing Mai, Thailand) and a tion, Chaing Mai, Thailand, Aug 2006. member of TGER. Ironside, J., Collaborative Management Learning Network Project 6 Month Progress Report, July 1 - Dec 31 2006, Asia Indigenous Peoples Pact Foundation, Chaing Mai, Thai- land, Feb 2007. Poverty Indicators for Protected Areas: Report from a workshop hosted by UNEP-WCMC in collaboration with the Poverty and Conservation Learning Group Alessandra Giuliani U NEP’s World Conservation Monitoring Centre (WCMC) recently hosted an interna- tional workshop at its offices in Cambridge (UK) to explore the potential for developing a set of poverty indicators that could be associated with the World Database on Protect- ed Areas. This workshop was intended to both share experience on a key poverty-con- 360 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling CEESP support… anyway? BookRights... reviews environment… News and Events servation issue (one of the objectives of the Poverty and Conservation Learning Group) and to feed into UNEP-WCMC’s “Vision 2020” project – an initiative that is intended to evaluate the contribution that protected areas make to conservation and development, and how that contribution is evolving over time. Protected areas (PAs) play a key role in conserving biodiversity. In recent decades, however, and especially in the last few years, they have come under increased scrutiny for their alleged negative impact on people living within or around them. The litera- ture on protected area impacts is, however, Picture 1. Group picture from the Vision quite patchy and often based on anecdotal 2020 workshop. evidence. Through the Vision 2020 project, (Courtesy Edmund McManus) UNEP-WCMC hopes to collect a body of objec- tive evidence assessing the contribution of PAs to biological diversity and their impact on communities, as well as the effectiveness with which such areas are managed. The workshop brought together representatives from conservation and development NGOs from around the world interested in studying the impact of protected areas in more depth. The meeting had two key objectives: first, to review the current state of knowledge on methodologies for assessing the socio-economic impacts of PAs on local communities and, second, to explore the feasibility of and institutional partnerships nec- essary for assessing PAs’ contribution to conservation and development goals. The workshop started with a series of presentations from participants to frame the dis- cussion - an exciting opportunity for all present to share experiences and lessons learnt on the linkages between poverty and PAs. The rest of the workshop evolved around breakout sessions and open discussions. Many stimulating debates took place during the two day meeting, owing to the outstanding level of expertise, goodwill, and commitment to the topic of all the participants. Fruitful discussions resulted in agreement on several key issues: X the development of an internationally recognized set of criteria and methods to as- sess the governance process and well-being impact of protected areas is both desir- able and timely; X the first step towards the creation of such a set of criteria and methods is to under- take an in-depth analysis of indicators and methodologies that have been developed and utilised thus far in this field and to summarise the lessons learned; X the development of such criteria and methods is a complex task and should be per- formed by a partnership of concerned organisations; and X UNEP-WCMC is well situated to lead the process of partnership development and fun- draising for this work. More generally, the workshop confirmed the high level of interest currently present at the international level in the linkages between poverty and protected areas. In the closing session, many participants expressed their personal or organisational 15, July 2007 361 Conservation and Human Rights interest in maintaining involvement in the project. As an immediate next step, TILCEPA and TGER members agreed to take a lead For more information about this workshop, the participants’ in developing a toolkit of methodologies list, and the Vision 2020 project concept, please visit UNEP- and indicators to assess the socio-economic WCMC website at: http://www.unep-wcmc.org/protectedAr- eas/dsp/Vision2020Index.htm or contact Charles Besançon, impacts of PAs, in collaboration with UNEP- the Project Coordinator WCMC, the PCLG and others. (Charles.Besancon@unep-wcmc.org). For more information about the Poverty and Conservation Learning Group please Alessandra Giuliani (pclg@iied.org) is the PCLG Research visit our website at www.povertyandconservation.info or Assistant. Alessandra is a member of TGER and TILCEPA. contact pclg@iied.org. Amélioration des modes de vie et de l’équité par la foresterie communautaire : un nouveau projet de CIFOR M. Kante Bocar and Bouda Henri-Noël L es objectifs du millénaire pour le développemen (OMD) constituent la référence pour les bailleurs de fond. Ces objectifs sont loin d’être atteints. La forêt est considérée comme une ressource pouvant contribuer à atteindre ces objectifs, car elle fonde des modes de vie et répond aux besoins de base des personnes en énergie, alimentation, santé, etc. Les rencontres internationales concernant l’aménagement forestier durable, en parti- culier celles prenant place au sein du Forum des Nations Unis sur les Forêts (UNFF), attirent l’attention sur l’importance des produits forestiers non ligneux (PFNL) dans la réduction de la pauvreté. Un rapport 2005 de World Ressources Institute (WRI) montre l’importance des PFNL dans la réduction de la pauvreté. Ainsi le NFP (National Forest Programme) Facility et PROFOR (un partenariat des bailleurs associé avec la Banque Mondiale) financent des projets de séminaire tendant à montrer la contribution des fo- rêts dans l’aménagement forestier durable. La gestion durable des forêts adopte aujourd’hui dans beaucoup de pays une approche de décentralisation et participation, censées substituer la méfiance à l’égard des po- pulations locales par leur responsabilisation. Cette approche, qui répond à un souci de bonne gouvernance, soulève un vif intérêt au sein de CIFOR (Center for International Forestry Research), une organisation internationale bien connue dans le domaine de la recherche forestière. Dans le cadre de son programme sur la gouvernance forestière, 362 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling CEESP support… anyway? BookRights... reviews environment… News and Events celui-ci a lancé avec d’autres partenaires une initiative sur les Droits et les Ressour- ces (Rights and Resources Initiative), sous-tendue par le projet de recherche « Amé- lioration des moyens de subsistances et de l’équité dans la foresterie communautai- re ». Ce projet de recherche vise à contribuer à l’objectif de réduction de la pauvreté par le moyen des ressources forestières. L’initiative est soutenue par un financement conjoint de la Fondation Ford et du CRDI (Centre de Recherche pour le Développement International). Le projet « Amélioration des moyens d’existence et de l’équité dans la foresterie communautaire » C’est de l’initiative « Resource Rights Initiative » que découle le projet « Amélioration des moyens d’existence et de l’équité dans la foresterie communautaire ». Ce projet met l’accent sur les droits et le bien-être des populations les plus vulnérables. L’objectif gé- néral du projet est d’appuyer les politiques, les stratégies, les processus institutionnels à divers niveaux ainsi que les pistes innovantes favorables aux pauvres et qui apportent une plus-value à la foresterie communautaire en respectant l’écologie durable, les béné- fices du bien-être et l’équité sociale en faveur des femmes et des autres groupes margi- nalisés dans les pays et sites sélectionnés. Les pays d’intervention du projet sont : X en Asie: Inde, Laos, Philippines X en Amérique Latine: Brésil, Bolivie, Guatemala, Nicaragua X en Afrique: Burkina Faso, Cameroun et Ghana. Les objectifs spécifiques de ce projet sont : X identifier et répondre aux demandes spécifiques d’information et de renforcement de capacités ; X renforcer les capacités institutionnelles pour la recherche, l’analyse, le suivi et le plai- doyer en faveur de la gestion durable des forêts ; X identifier et développer les mécanismes pour promouvoir le dialogue effectif des ac- teurs ; X renforcer les programmes et activités de sensibilisation en faveur de la gestion dura- ble des forêts, initiés par les partenaires et autres organisations. Pour atteindre ces objectifs, le projet prévoit les activités suivantes à réaliser : X mise en place d’un réseau de partenaires intervenant dans la foresterie communau- taire ; X mise en place d’un comité de pilotage et tenue de rencontres périodiques ; X sélection des sites d’interventions ; X identification des besoins de formation des communautés et de renforcement des capacités des partenaires ; X organisations de rencontres des acteurs de la foresterie communautaire en vue d’échanger sur les démarches de plaidoirie en faveur de la gestion durable des forêts X réunions de consultation des partenaires sur les rapports produits ; X séminaires avec les communautés ; X rédaction de rapports et campagnes de diffusion. Ces différentes activités doivent aboutir aux produits suivants : X rapport national de synthèse final ; X renforcement des compétences et capacités des partenaires locaux ; X appui au dialogue et à la communication entre les multiples acteurs ; 15, July 2007 363 Conservation and Human Rights X diffusion des résultats du projet à travers les médias et les canaux de prise de décision. Ainsi ce projet de recherche revêt une logique participative et cherche à avoir un impact durable sur les différents partenaires, avec répartition des responsabilités entre eux. La répartition des responsabilités entre les partenaires CIFOR adopte une approche collaborative dans la recherche et développe des partenari- ats dans divers secteurs et avec diverses catégories de structures (municipalités, uni- versités, organismes de recherche et de formation, ONG régionales ou locales, groupes de base et fédérations tels que les groupements de femmes ou les communautés lo- cales, propriétaires de forêts et associations d’exploitants). Ces différents partenaires sont sélectionnés sur la base de leur expérience ou de leur intérêt pour la promotion des politiques favorables aux plus démunis, les mécanismes institutionnels, la participa- tion des acteurs à la base et les programmes relatifs à la foresterie communautaire et à la réduction de la pauvreté. Dans le cadre du projet, les partenaires nationaux seront réunis au sein d’un comité de pilotage. CIFOR jouera surtout un rôle de facilitateur. Les partenaires décideront en commun de la méthodologie de recherche et se répartiront les tâches. Ils auront aussi la faculté de proposer des sites de recherches qui seront soumis aux critères de sélec- tion des sites définis par CIFOR et ses partenaires stratégiques. Les critères de sélection des sites Au maximum, trois sites seront sélectionnés dans chaque pays par CIFOR, et leur sélection tiendra compte de l’existence de processus organisationnels et de produc- tion relatifs au foncier, aux systèmes de gestion collective des forêts, aux stratégies de développement, et aux impacts et implications institutionnels. Les critères de sélection incluent : X la demande et l’intérêt pour la foresterie communautaire par les populations locales (particulièrement les groupes les plus vulnérables), les organisations non gouverne- mentales, les organisations de recherche et les structures administratives compé- tentes pour le ressort territorial des sites ; X l’existence de problématiques non résolues dans la recherche ou de priorités déga- gées dans des études antérieures ; X l’importance des forêts sur les revenus des exploitants locaux ; X l’existence de conflits entre les exploitants et/ou d’opportunités de partenariat et de collaboration entre les multiples acteurs. Conclusion M. Kante Bocar Oumar (bokante@gmail.com) est juriste de formation. Dans le cadre d’un mémoire de DEA, il a Le projet de recherche « Amélioration des travaillé sur « la protection nationale du patrimoine mondial moyens d’existence et de l’équité dans la au Sénégal ». Il est actuellement inscrit en thèse à l’Ecole foresterie communautaire » s’inscrit dans doctorale de droit public et fiscal de l’Université Paris 1 Pan- théon Sorbonne, en France. Parallèlement il travaille au bu- le sillage des objectifs du millénaire pour le reau de l’Afrique de l’Ouest de CIFOR comme cadre associé développement et la démarche participative au programme Gouvernance forestière. Bouda Henri-Noël (h.bouda@cgiar.org) est forestier, chercheur associé au lui permet d’impliquer les partenaires dès le bureau régional du CIFOR en Afrique de l’Ouest. Il s’occupe début de la réflexion et de la mise en œuvre depuis 2003 des thèmes de recherche relatifs à la décen- au niveau national. Les résultats devant être tralisation et la gestion des ressources naturelles. Il partage son temps entre le programme "Forêts et Gouvernance" et produits par cette recherche devraient béné- le programme "Forêts et Moyens de Subsistance". ficier des multiples acteurs dans le domaine de la foresterie communautaire. 364 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling CEESP support… anyway? BookRights... reviews environment… News and Events Declaración oficial de Chake Ñuha - South American farmers' movements reject biofuels An Introduction by Simone Lovera Concern about the existing and potential negative impacts of biofuels (or rather, agrofuels as social movements prefer to call them) is rising, and not only amongst environmental NGOs. At a seminar on agrofuels that took place in April 2007 in Asunción, Paraguay, the most representative Paraguayan farmers’ movements and a large number of NGOs adopted a joint statement that rejects what is called the "trap” of agrofuels. The statement warns that the large-scale production of agrofuels under the current agro-industrial model will strongly exacerbate existing problems related to the export-oriented production of soy and other monocultures, including rural unemployment and depopulation; contamination and degradation of soils; watersheds, deforestation, biodiversity destruction; the introduction of genetically modified crops; and an increase in health problems related to pesticide intoxication. Similar concerns were raised at an informal strategy meeting of Latin American NGOs and farmers’ organizations that took place at the occasion of an international conference on the impacts of Eucalyptus plantations organized by Via Campesina-Brazil in April. What follows is the Paraguayan statement, in Spanish and English respectively. Declaración oficial de Chake Ñuha— Seminario Nacional sobre las trampas del agrocombustible y los servicios ambientales en el Paraguay Paraguay se ha puesto como meta el ex- portar agrocombustibles a corto plazo. Los planes son exportar al menos 50 millones de dólares en el término de cuatro años, y simultáneamente dejar de importar por lo menos 150 millones de dólares de carburantes fósiles en el mismo período. Según ciertas investigaciones científicas este cálculo no sale; investigadores como Pimentel1 afirman una ecuación energética Picture 1. Soya crop expansion is causing negativa en la producción de agrocom- deforestation in the district of San Pedro, bustibles porque necesitan más insumos Paraguay (Courtesy Simone Lovera) fósiles para producción, elaboración y transporte que emiten después en la combustión en el motor del coche. El auge de la superficie cultivada con plantas energéticas solo se puede realizar a través de una expansión exponencial de monocultivos en gran escala a cuenta de la tala de los remanentes del bosque, sustitución de cultivos ya existentes o expulsión de pequeños productores campesinos e indígenas. Esta expansión de por sí significa más consumo de combustibles fósiles y emisión de dióxido de 15, July 2007 365 Conservation and Human Rights carbono de lo que se espera generar y ahorrar con los agrocombustibles. La expansión del monocultivo es la causa directa de la grave situación que vive actualmente la mayoría del pueblo paraguayo, con una economía volcada a la exportación de soja forrajera, con un costo en salud de miles de personas con- taminadas, la casi desaparición del Bosque Atlántico con la consecuente pérdida de biodiversidad, la disminución del empleo rural y la pérdida de la cultura in- dígena y campesina, un constante éxodo del campo a la ciudad donde los emi- grantes rurales se enfrentan a la miseria y el desempleo. Las cifras de crecimien- to macroeconómico no significan una mejora de las condiciones de vida de la mayoría si no el enriquecimiento desmedido de una delgada capa social egoísta y sus aliados transnacionales. Planteamos un rechazo a todas las medidas políticas y económicas que prom- ueven el desarrollo de agrocombustibles y la expansión de monocultivos de gran escala: 1. Rechazamos la renovación de la ley de biocombustibles que solo significa alivios fiscales para que las transnacionales instalen la infraestructura nec- esaria para profundizar el saqueo de nuestros Recursos Naturales. Esta nueva industria no implica ningún progreso para la población, repite el esquema de los silos de soja transgénica, son industrias sin trabajadores que se alimentan de un agro sin agricultores. Tal como el modelo sojero que se ha expandido sin contribuir a las mayorías, ahora Paraguay se vende a los nuevos agron- egocios energéticos con la presión fiscal más baja de la región y ofreciendo sin mayores escrúpulos, los remanentes de bosques y las tierras de las comuni- dades campesinas e indígenas. 2. Denunciamos la “Alianza del Etanol” y la propuesta de que Paraguay suminis- tre al alcoducto brasileño por ser este un proyecto que tendrá graves conse- cuencias en la población y el medio ambiente. Esta alianza estratégica con el Brasil en la producción de alcohol carburante, es para la exportación a EE.UU., Europa y Japón. Los acuerdos económicos sobre agrocombustibles de Para- guay con EEUU y la Unión Europea están en la misma línea. 3. Asimismo denunciamos el Primer Congreso Americano de Biocombustibles a realizarse entre el 10-12 de Mayo en Buenos Aires, Argentina,2 donde partici- parán el ex vicepresidente de los Estados Unidos, Al Gore; el ex presidente de Colombia, Andrés Pastrana; el ex Embajador de Estados Unidos en Chile, Gabriel Guerra Mondragón y Alberto Moreno, director ejecutivo del Banco In- teramericano de Desarrollo (BID). Este evento parece ser la presala del re- mate de los recién inaugurados fondos del BID, fondos que se estiman pueden llegar a un monto de US$ 200.000 millones para aprovechar y dominar la producción de los agrocombustibles. El mismo BID junto con el gobierno de Brasil estrechamente ligado al empresariado paulista y de los EEUU aunarán este fondo. 4. No se reconoce que estas estrategias implican inherentemente expansión de infraestructura de comunicación, tales como carreteras, puertos, ductos etc que promoverán mayor deforestación y no resolverán los obstáculos de com- ercialización y aislamiento que sufren los campesinos e indígenas paraguayos. Esta expansión de infraestructura implica la concreción del mega proyecto del IIRSA (Iniciativa para la Integración de la Infraestructura Regional Surameri- 366 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling CEESP support… anyway? BookRights... reviews environment… News and Events cana). 5. Este desarrollo de mercado no es para resolver la pobreza del país ni para al- iviar el cambio climático, aspira esencialmente a abastecer el nuevo mercado de la industria automotriz del norte especializado en agrocombustibles y tam- poco resuelve la dependencia del Paraguay de importaciones de combustibles fósiles. 6. Asimismo, rechazamos todas las propuestas de implementación de servicios ambientales por que son estrategias maquilladas para expropiarse de nuestros recursos naturales y territorios. Nuestra propuesta es: 1. Que las políticas públicas favorezcan la permanencia de las comunidades rurales e indígenas, apostando por su desarrollo comunitario y territorial con una reforma agraria integral y la recuperación de la Soberanía Nacional (Alimentaria, Territorial y Cultural) como eje principal de la democracia de nuestra sociedad. 2. Que en vez de promover la producción a gran escala de agrocombustibles, se planteen medidas serias para asegurar la Soberanía Alimentaria y Energética en América Latina con medidas de disminución de consumo de energía en el Norte a la vez que se aseguren mejores condiciones de abastecimiento en el Sur y se apueste por el arraigo y la repoblación del campo. 3. Exigimos una moratoria global para los monocultivos de agrocombustibles y el comercio internacional de agrocombustibles, incluyendo en estos el com- ercio de bonos de carbono. Requerimos de una moratoria para evaluar las potencialidades y los peligros de este desarrollo, denunciamos que somos victimas de la consecuencia de los monocultivos industrializados y tememos que el mercado de agrocombustibles pueda producir consecuencias aun más catastróficas. Entendemos que el fenómeno del cambio climático requiere medidas urgentes, pero estas inevitablemente tienen que primeramente ser resueltas en el nivel de consumo de los países del Norte y no a través de po- tenciar el Modelo Agroexportador y generar mas presión sobre nuestra tierra y nuestra población. Official Declaration of Chake Ñuhá on the Agro-fuels and Environmental Services Traps— Asunción, Paraguay, 24 April 2007 Paraguay has set a short term goal of exporting agro-fuels. The plan is to export at least 50 million dollars worth of agro-fuels in the next four years and in the same time frame to stop importing at least 150 million dollars worth of fossil fuels. How- ever, according to scientific research, the math of this proposal does not add up. Researchers like Pimentel3 argue that the net result of the energetic equation for agro-fuel production would be negative, not positive, because more fossil fuels are needed for production, processing and transportation than would be conserved by burning agro-fuels instead of fossil fuels to power a car. Furthermore, in order to increase the cultivation surface dedicated to energy plants, large scale monocultures will be exponentially expanded. This expansion would entail cutting down the remaining forests, substituting current crops and forcing the eviction of small farmers and indigenous peoples. Expanding agro-fuel 15, July 2007 367 Conservation and Human Rights monocultures also requires more fossil fuel consumption and releases more carbon dioxide emissions than the agro-fuels hypothetically produced and the emissions hypothetically avoided. The expansion of monocultures is the direct cause of the dire situation that the vast majority of the Paraguayan people endure. It is a pillar of the soy feed export economy which destroys the health of thousands of people intoxicated by soy plantation fumigations, promotes the clear cutting of the Atlan- tic Forest, the corresponding loss of biodiversity, causes the loss of rural jobs and the loss of the cultures of indigenous peoples and small farmers, as well as the constant exodus from the countryside to the city where the rural emigrants face unemployment and misery. The statistics of macroeconomic growth do not mean that there is an improvement in the living condition of the majority, but rather in- dicate the disproportionate accumulation of wealth of a tiny oligarchy and its tran- snational allies. We reject all policy and economic measures that promote the development of agro-fuels and the expansion of large scale monocultures: 1. We reject the reform of the biofuels law which will only give tax breaks to tran- snational companies for putting in place the infrastructure needed to accentu- ate the pillaging of our natural recourses. This new industry does not bring any progress to the people. It just duplicates the GMO soy silos paradigm, that is to say that it is an industry without workers that is based on agriculture without agricultural workers. Just like it did with the soy model which has not brought any benefits to the majority of the population, Paraguay is selling out to the new agro-energy business offering the greatest tax incentives in the region and, with nary a twinge of conscience, offering up the last remaining forests and the lands and territories of indigenous peoples and small farmers. 2. We denounce the "Ethanol Alliance" and the proposal whereby Paraguay will supply the Brazilian "Alcohoduct"c because they will have grave consequences for the people and environment. This strategic alliance with Brazil for carburant alcohol production is for exporting to the U.S.A., Europe and Japan. The eco- nomic agreement between Paraguay and the U.S.A. and the European Union on agro-fuels are drawn up in similar terms. 3. We also denounce the First American Congress on Biofuels to be held May 10th to 12th in Buenos Aires, Argentina with the participation of a former vice- president of the United States, Al Gore; the former president of Colombia, Andrés Pastrana; the former U.S. Ambassador to Chile, Gabriel Guerra Mon- dragón, and Alberto Moreno, Executive Director of the Inter-American Develop- ment Bank (IDB). This event seems like a pep rally for the recently approved IDB funding that is estimated at something like USD 200 billion to control and shape agro-fuel production. The IDB in conjunction with the Brazilian Govern- ment which is closely tied to a Sao Paolo business community and the European Union will administer this fund. 4. There is no acknowledgement that these strategies necessarily include expand- ing communication infrastructure, like highways, ports, pipelines, etc, that will cause greater deforestation and will not remove the obstacles faced by Para- guayan small farmers and indigenous peoples for marketing their products nor will it mitigate their isolation. This infrastructure expansion is part of the im- plementation of the IIRSA mega-project (Initiative for the Integration of South 368 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can canalso ARE work Human undermine a supportive in mutual Rights, Human enabling CEESP support… anyway? BookRights... reviews environment… News and Events American Regional Infrastructure). 5. The development of this agrofuel market is not intended to help diminish the poverty of the country nor mitigate climate change, nor lessen Paraguay's de- pendence on fossil fuels. Rather it aspires to supply the new agrofuels market of the Northern auto-industry. 6. Furthermore, we reject all proposals for implementing environmental services schemes which are thinly disguised strategies for expropriating our natural re- sources and territories. Our proposal is: That public policies promote the permanence and well-being of rural and indige- nous communities by promoting community and territorial development as part of an integral agrarian reform and the recuperation of National Sovereignty (including Food, Territorial and Cultural Sovereignty) as the principal axis of the democracy of our society. Instead of promoting agro-fuel production, we need sound measures for en- suring Food and Energy Sovereignty in America Latina as well as measures for diminishing energy consumption in the North and better energy supply in the South and special efforts to support rural communities' permanence and the re- population of the countryside. We demand a worldwide moratorium on agro-fuels monocultures and the interna- tional trade in agro-fuels, including the trade in carbon credits. We need a mora- torium to evaluate the potential impact and the dangers of this market. We de- nounce that we are victims of the adverse impacts of industrialized monocultures and that we fear that the bio-fuel market could result in even more catastrophic consequences. We understand that the climate change phenomenon requires swift responses. But climate change mitigation strategies have to focus on decreasing the consumption of the North and must not hinge on promoting agro-export mod- els that put the screws on our land and peoples. Organizaciones firmantes: ALTER VIDA, ASAGRAPA, BASE IS, CCDA, CEIDRA, CMB, CNOCIP, CONAMURI, Federación de Pueblos Guaraníes, GRR (Arg), IDECO, Iniciativa Paraguaya de Integración de los Pueblos, MAP, MCNOC, ONAC, SEPA, SERPAJ, PY, SOBREVIVENCIA/Friends of the Earth-Paraguay, Universidad Nacional de Pilar Notes 1 http://www.news.cornell.edu/stories/July05/ethanol. Simone Lovera (simonelovera@yahoo.com) is manag- toocostly.ssl.html ing coordinator of the Global Forest Coalition, a worldwide 2 Un evento que pretende perfilarse “la principal plata- coalition of Indigenous Peoples' Organizations and NGOs forma de intercambio de ideas, tendencias y proyectos promoting rights-based forest conservation policies. She en el sector emergente de los biocombustibles. Se also works as a volunteer forest campaigner at Sobreviven- analizarán proyectos ya en curso en América y Europa, cia/Friends of the Earth-Paraguay. así como la manera de replicarlos e incluso optimizarlos en América Latina.” http://www.biofuelscongress.org/index_esp.asp 3 A proposed pipeline for ethanol transport 15, July 2007 369 Conservation and Human CEESP Rights STEERING COMMITTEE 2005-2008 Name and Affiliation Role/Area of Responsibility Nationality/ Residence Themes and Working Groups & Focal Points for the Regions Taghi M. Farvar Chair of CEESP; Iran (taghi@cenesta.org) Co-Chair for the Theme on Sustainable CENESTA, Chair of the Board of Directors Livelihoods (TSL) Wouter Justus Veening Deputy Chair of CEESP; The (wouter.veening@nciucn.nl) Vice Chair for the Working Group on Netherlands Institute for Environmental Security, Policy Director Environment and Security (E&S) Thematic Vice Chairs Grazia Borrini-Feyerabend Vice Chair for the Theme on Governance of Italy/ (gbf@cenesta.org), Natural Resources, Equity and Rights (TGER); Switzerland Independant consultant Vice Chair of joint CEESP/WCPA Theme on Indigenous and Local Communities, Equity and Protected Areas (TILCEPA) Steven R. Brechin Vice Chair for the Theme on Governance of USA (sbrechin@maxwell.syr.edu) Natural Resources, Equity and Rights (TGER) Department of Sociology at the Maxwell School, Syracuse University, Professor of Sociology Chimere M. Diaw Vice Chair for the Theme on Governance of Senegal/ (c.diaw@cgiar.org) Natural Resources, Equity and Rights (TGER) Cameroon Centre for International Forestry Research (CIFOR) Scientist Regional Coordinator for West Central Africa Sandra Kloff Vice Chair for the Working Group on Social and The (srkloff@hotmail.com) Environmental Accountability of the Private Netherlands/ Independent Consultant Sector (SEAPRISE) Spain Ashish Kothari Vice Chair for the Theme on Indigenous Peoples India (ashish@nda.vsnl.net.in) and Local Communities, Equity and Protected Kalpavriksh Environment Action Group, Founder- member Areas (TILCEPA) Ken MacDonald Vice Chair for the Theme on Culture and Canada (kmacd@utsc.utoronto.ca) Conservation (TCC) University of Toronto, Department of Geography, Interdisciplinary Programme in International Development Studies, Professor Aroha Te Pareake Mead Vice Chair for the Theme on Culture and New Zealand (aroha.mead@vuw.ac.nz) Conservation (TCC); Victoria University of Wellington, Senior Lecturer, IUCN Councillor Senior Advisor for Indigenous Peoples Policy Alejandro Nadal Vice Chair for the Theme on Economics, Mexico (anadal@colmex.mx) Markets, Trade and Investment (TEMTI) Colegio de Mexico, Professor of Economics Emmanuel Asuquo Obot Vice Chair for the Working Group on Social and Nigeria (ncf@hyperia.com) Environmental Accountability of the Private Nigerian Conservation Foundation (NCF), Acting Executive Director Sector (SEAPRISE) Michel Pimbert Vice Chair for the Theme on Sustainable UK / France (michel.Pimbert@iied.org) Livelihoods (TSL) International Institute for Environment and Development (IIED), Principal Associate Sustainable Agriculture and Livelihood Programme Elizabeth Reichel-Dolmatoff Vice Chair for the Theme on Culture and Colombia/ (elizareichel@yahoo.fr) Conservation (TCC) Switzerland Independent Consultant Clive Wicks Vice Chair for the Working Group on Social and UK (Clive.Wicks@wicksfamily.plus.com) Environmental Accountability of the Private Independent Consultant Sector (SEAPRISE) Senior Advisors and Regional Vice Chairs Alejandro Argumedo Vice Chair for Latin America; Peru (ipbn@web.net) Senior Advisor for Indigenous Peoples Policy The Indigenous Peoples' Biodiversity Network (IPBN), Coordinator Li Bo Vice Chair for China China (qianhushan@gmail.com) Centre for Biodiversity and Indigenous Knowledge(CBIK), Affiliate JoJi Cariño Senior Advisor for Indigenous Peoples Policy Philippines/ UK (tongtong@gn.apc.org) Tebtebba Foundation, Indigenous Policy Adviser and European Desk Coordinator 370 15, July 2007  …but conservation andonly … within, and human rights What Conservation within, can ARE canalso work Human undermine a supportive Resources in from CEESP mutual Rights, Human enabling support… anyway? BookRights... reviews environment… CEESP News andmembers Events Richard Cellarius Vice Chair for North America USA (richard@cellarius.org) Sierra Club (USA), Vice President for International Affairs Michael Cernea Senior Advisor for Social Policy Romania/ (Mcernea@worldbank.org) USA George Washington University, Research Professor of Anthropology and International Affairs, Senior Adviser for GEF/ World Bank Ali Darwish Vice Chair for the Arab Region Lebanon (ali@greenline.org.lb) Green Line Association, President Chachu Ganya Vice Chair for the East Africa; Kenya (cganya@pisp.org) Senior Advisor for Indigenous Peoples Pastoralist Integrated Support Program (PISP) Policy Executive Director; and World Alliance of Mobile Indigenous Peoples (WAMIP) Member, International Coordinating Council Augusta Henriques Vice Chair for West Africa Guinea (augusta_sh@hotmail.com) Bissau Tiniguena (This Land is Ours), Secretary General Ricardo Melendez Senior Advisor for Trade and the Colombia/ (melendez@ictsd.ch) Environment Switzerland International Centre for Trade and Sustainable Development (ICTSD), Executive Director Jurgenne Primavera Vice Chair for South East Asia The (nykjprim@skyinet.net) Philippines Aquaculture Department of the Southeast Asian Fisheries Development Centre, Senior Scientist Marcela Villarreal Senior Advisor for Gender and Population Colombia/ (marcela.villarreal@fao.org) Policy Italy UN Food and Agriculture Organisation (FAO), Director of Gender and Population Division Jacques Weber Vice Chair for Europe France (weber@linogent.cirad.fr) (weber@mnhn.fr) Institut français de la biodiversité, Director Afriyie Allan Williams Vice Chair for The Caribbean Guyana/ (landnetcaribbean@tstt.net.tt) Trinidad Independent Consultant CEESP Staff Contact Persons Tasneem Balasinorwala Member Co-ordinating Team India (tilcepa@vsnl.net); +91 20 25654239 TILCEPA Jessica Campese TGER Focal Point for Conservation and USA/ (jessica@cenesta.org) Human Rights Switzerland Ron Kingham Executive Officer, Working Group on The (rkingham@envirosecurity.org) Environment and Security Netherlands Barbara Lassen Executive Officer, Theme on Governance, Germany/ (barbara@cenesta.org) Equity and Rights (TGER) Switzerland Nastaran Moossavi CEESP Executive Officer Iran (nastaran@cenesta.org); +98 21 66-972-973 Nahid Naqizadeh Associate Programme Officer, Iran (nahid@cenesta.org); +98 21 66-972-973 TGER Aghaghia Rahimzadeh Programme Officer Iran/ USA (aghaghia@cenesta.org) Theme on Sustainable Livelihoods (TSL) Maryam Rahmanian CEESP Associate Executive Officer Iran (maryam@cenesta.org) CEESP Main Office C/o CENESTA: Centre for Sustainable Development & Environment 142 Azerbaijan Avenue, 13169 Tehran, Iran Telephone: +98 21 66-972-973 Fax: +98 21 66-400-811 Email: ceesp@iucn.org; CEESP web site: http://www.iucn.org/themes/ceesp IUCN Secretariat Focal Points Gonzalo Oviedo, IUCN Senior Advisor, Social Policy (gonzalo.oviedoa@iucn.org); telephone: ++41 22 999 0287 Joshua Bishop, IUCN Senior Advisor, Economic Policy (Joshua.bishop@iucn.org); telephone: ++41 22 999 0266 15, July 2007 371 Conservation and Policy Matters is the Human journal of Rights the IUCN Commission on Environmental, Economic and Social Policy (CEESP). It is published approximately twice a year and distributed to CEESP’s 1000 members and the IUCN Secretariat offices, as well as at relevant conferences and meetings throughout the world. When possible, it is published concurrently with major global events as a thematic contribution to them and to the civil society meetings around them. IUCN, The World Conservation Union, is a unique Union of members from some 170 countries including nearly 90 States, over 200 government agencies, and some 1000 NGOs. Over 10,000 internationally-recognised scientists and experts from more than 180 countries volunteer their services to its six global Commissions. The vision of IUCN is “A just world that values and conserves nature”. IUCN’s six Commissions are principal sources of guidance on conservation knowledge, policy and technical advice and are co-implementers of the IUCN programme. The Commissions are autonomous networks of expert volunteers entrusted by the World Conservation Congress to develop and advance the institutional knowledge, experience and objectives of IUCN. CEESP, the IUCN Commission on Environmental, Economic and Social Policy, is an inter- disciplinary network of professionals whose mission is to act as a source of advice on the environmental, economic, social and cultural factors that affect natural resources and bio- cultural diversity and to provide guidance and support towards effective policies and practices in environmental conservation and sustainable development. Following the mandate approved by the 3rd World Conservation Congress in Bangkok, November 2004, CEESP contributes to the IUCN Programme and Mission with particular reference to seven thematic areas: X Theme on Governance of Natural Resources, Equity and Rights (TGER), X Theme on Sustainable Livelihoods (TSL, including poverty elimination and biodiversity conservation) X Working Group on Environment and Security (E&S) X Theme on Economics, Markets, Trade and Investments (TEMTI) X Theme on Culture and Conservation (TCC) X Working Group on the Social and Environmental Accountability of the Private Sector (SEAPRISE) X Theme on Indigenous Peoples & Local Communities, Equity, and Protected Areas (TILCEPA, joint between CEESP and the IUCN World Commission for Protected Areas) Each issue of Policy Matters focuses on a theme of particular importance to our members and is edited by one or more of our Themes/working groups focusing on the seven thematic areas. Past issues have focused on themes such as “Poverty, Wealth and Conservation”, “Community Empowerment for Conservation”, ”Collaborative Management and Sustainable Livelihoods”, “Trade and Environment”, “Environment and Security” and the Caspian Sturgeon, including issues of trade, conflict, co-management, and sustainable livelihoods for communities of the Caspian Sea (“The Sturgeon” issue). For more information about CEESP and to view or download past issues of Policy Matters, please visit our website: http://www.iucn.org/themes/ceesp. CEESP is hosted by the Iranian Centre for Sustainable Development and Environment (CENESTA). For more information about CENESTA please visit http://www.cenesta.org. Please send comments or queries to ceesp@iucn.org. We look forward to hearing from you! Design and layout artist: Jeyran Farvar (Jeyran@cenesta.org). Publisher: CENESTA Lithography, Printing and Binding: Mowla Printing Corporation (Mowla_print@yahoo.com). Photo Credits: inside front cover: Eric van de Giessen; inside back cover: Taghi Farvar (CENESTA); back cover (top to bottom): Green Line (Lebanon), Catherine Coumans, Clive Wicks. 372 15, July 2007