Go On! Rule of Law for Oceans, 4-5 November 2019

Conference in Oslo, Norway: Is law fit for purpose to protect the oceans against increasing pressures and demands? This two-day conference aims at analyzing new trends in the law of the sea, international environmental law, and related fields of law, and discussions related to the effectiveness of certain tools and mechanisms.

The Research Group on International Law and Governance (University of Oslo, Law Faculty) and the Norwegian Institute for Water Research (NIVA) organize this conference to advance discussions on the gaps and challenges in law related to the protection of oceans, and to bring forward novel legal approaches and solutions.  

The oceans are under increasing pressure from climate change, (micro)plastic pollution, loss of biodiversity, habitat destruction, unsustainable use, to name but a few, which all adversely affect the resilience of our oceans.  UN Sustainable Development Goal 14 specifically requires us to conserve and sustainably use the oceans, seas and marine resources. Key to sustainable ocean governance is the understanding of ecosystem functioning and the appreciation of interactions and interconnections among marine ecosystems, land and sea, oceans and climate, and interactions between marine and other types of ecosystems. Changes in the ecosystem functioning and resilience often have consequences far beyond in time and geographical scope and require robust but flexible and comprehensive regulatory solutions and approaches.

International law, including the UN Convention on the Law of the Sea and the Convention on Biological Diversity, provides for a framework governing States’ rights and obligations with respect to the use of oceans and their resources, protection of the environment and biodiversity as well as responsibility for the damage caused to the oceans arising from unlawful activities of different actors. Regional agreements such as OSPAR and HELCOM have similar purposes for regional seas. National legal systems also play a crucial role in the implementation of international and regional obligations. The legal system is fragmented and comprehensive, but is the law ripe for protecting oceans in the face of increasing environmental challenges and human demands? Are legal frameworks effective, strong, and flexible enough to address new challenges and pressures in light of advanced scientific knowledge and understanding of oceans? This conference aims to discuss and reflect on how we could strengthen the rule of law for Oceans.

Where can existing laws evolve, adapt and improve? And where do we have to think afresh? Which innovative approaches and mechanisms are being adopted or under discussion and what could be their advantages?

Please send your abstract (max 300 words) and a short resume to Professor Alla Pozdnakova no later than 15th August 2019. You will be notified by 1st September 2019. Full link to conference call: here

Please mark your email with “Abstract for the Ocean Conference Oslo”. Abstracts submitted after the deadline will not be considered.

The organizing committee,

Alla Pozdnakova                                Froukje Maria Platjouw

Alla.pozdnakova@jus.uio.no               fmp@niva.no

Faculty of Law, University of Oslo       Faculty of Law, University of Oslo,  Norwegian Institute for Water Research            

Advertisements

Brazilian NGO addressing environment and human rights receives inaugural Human Rights & Business Award

Justica nos Trilhos - logo

The Brazilian NGO Justiça nos Trilhos will receive the inaugural award from the Human Rights and Business Award Foundation, the recently-formed foundation announced today.  The award, which is accompanied by a $50,000 grant, is made in recognition of “outstanding work by human rights defenders in the Global South or former Soviet Union addressing the human rights impacts of business in those regions”.

As the foundation states in its press release:

Justiça nos Trilhos is an organization working closely with local communities in remote parts of Brazil – including indigenous peoples, peasants, and Afro-descendants – to address human rights and environmental abuses by mining and steel companies, in particular the multinational Vale.

Mining and steel companies have polluted the rivers on which these people depend for drinking water and their livelihoods, polluted the air causing respiratory and eyesight problems, contaminated the soil with industrial waste, displaced communities, and decimated the cultures and lives of indigenous peoples.

The foundation notes:

The human rights defenders of Justiça nos Trilhos, and the local communities they work with, have been subjected to surveillance and retaliatory lawsuits by Vale.

Information about the Vale mining company is available here.  Two stories about the work of Justiça nos Trilhos, the first of which includes Vale’s responses:

Session on Tuesday at UN Forum on Business and Human Rights

BHR ForumDanilo Chammas, a lawyer at Justiça nos Trilhos, will accept the award on behalf of the organization at a session being held at the United Nations Forum on Business and Human Rights in Geneva on Tuesday 27 November. The session “will be an interactive learning and discussion opportunity, linking the particular experiences of the award recipient and the lessons learned through those experiences to the Forum’s priority issues including human rights due diligence, sector-focused challenges, and the UN Guiding Principles [on Business and Human Rights]”.

Human Rights & Business Award – Human rights defenders in the Global South
– Tuesday 27 Nov, 18:15-19:45, Room XX, Palais des Nations, Geneva
– The session’s objectives, key discussion questions, and discussants:  here

The Business and Human Rights Award Foundation was established by the founder of the award-winning Business and Human Rights Resource Centre, Chris Avery.  The foundation website was launched today in eight languages.

Press release announcing the 2018 Business and Human Rights Award:

 

A Posthuman Feminist Approach to Mars

Grand_star-forming_region_R136_in_NGC_2070_(captured_by_the_Hubble_Space_Telescope)

Captured the Hubble Space Telescope (NASA)

Feminists must found a constitution for Mars, notes Keina Yoshida in her fascinating recent post. If we leave Mars to the founding fathers it will become the domain of the super wealthy elite white men of techno-mediated capitalism––the Musks, the Zuckerbergs and the Trumps. Human space exploration will follow the same, masculine, humanist blueprint of domination on Earth and Mars will be exploited for its natural resources, just like Earth. Yoshida thus asks:

 

… what then would a founding feminist constitution look like? How would it guarantee foundation against what bell hooks has termed the ‘white supremacist capitalist patriarchy’? Is it a democracy to come? Whose work should we draw upon to inform this constitution? … Who will protect their rights in Mars?

Yoshida answers her own question: “The feminists.”

Feminists are indeed ideally positioned to be able to tackle this issue. Environmental protection is core here but the problem does not lie with these founding fathers alone but with the entire foundations of dominant thought. Feminist gender theorists are central to challenging these dominant accounts of knowledge. Feminist posthumanism is one frame through which these challenges can be made.[1]

Continue reading

A Constitution for Mars: A Call For Founding Feminists

Constitutions. Hamilton. Founding Fathers. Fathers. Father. Patriarchy.

purple and brown colored planet

In July scientists found a lake in Mars, raising hope that life on Mars, or a ‘colony’ on Mars, may become possible. Elon Musk has been telling us it is possible. Blue Origin tells us that ‘our dramatic next step will take us closer to the potential space holds for us all’. Space exploration has become the sport and object of the super rich and of transhumanists who are convinced that the Event is coming upon us.  Beyond the bunkers in New Zealand built by the capitalist uber elite, space, planets, and terrain beyond ‘the Earth, our home’ is destined for exploration. And if they achieve their goals, then what?  When the first to arrive are the super elite and the wealthy will they do anything other than impose the capitalist extractivist patriarchy under which we live here and now?  What type of rules would these founding fathers desire to regulate their affairs in Mars? Who will the ‘founding fathers’ be?  Bezos, Musk, Zuckerberg, Trump?

It is time that international feminist lawyers start talking about founding space feminism (For an excellent doctrinal overview of the laws on outer space including environmental protection and appropriation see Gerardine Goh Escolar here).  If space exploration is to happen (and it is happening), we must ensure that life in other spaces and times are not subject to the oppression, poverty, racism, sexism, and inequality to which most people on this planet are subjected to. It is up to us to become what Giaconda Belli termed the portadores de sueños (in her poem) and to write the treaties, covenants, and other instruments that provide for an alternative and better future. We must ensure that our ‘space’ constitution is binding and that it binds those who wish us to be bound.

The idea of a Bill of Rights in Mars or a Constitution for Mars is not new. CS Cockell has argued in an Essay on Extraterrestrial Liberty that ‘the most profound irony of the settlement of space is that the endless and apparently free expanses of interplanetary and interstellar space will in fact allow for, and nurture, some of the most appalling tyrannies that human society can contrive  Thwarting this tyranny will be the greatest social challenge in the successful establishment of extraterrestrial settlements’. He and others have previously gathered to discuss what a bill of rights for Mars would look like.  Astrobiologists, it seems, may be ahead of us critically minded lawyers.

The race for space exploration is undoubtedly influenced by the destruction of the planet, and fears over climate security. The UN has recently held debates on water, peace and security. The Rio Declaration on Environment and Development, principle 25 make it clear that ‘Peace, development and environmental protection are interdependent and indivisible’. Environmental peacebuilding recognises that conflict can be caused by or exacerbated by resource scarcity or resource abundance (for example, the war in Sierra Leone and its links to ‘blood diamonds’). More recently, General Recommendation No 35 (updating General Recommendation No 19 on violence against women) of the CEDAW Committee specifically recognises that:

Gender based violence against women is affected and often exacerbated by cultural, economic, ideological, technological, political, religious, social and environmental factors, as evidenced, among others, in the contexts of displacement, migration, increased globalization of economic activities including global supply chains, extractive and offshoring industry, militarisation, foreign occupation, armed conflict, violent extremism and terrorism.

As GR35 recognises, extractive industries exacerbate violence against women and girls. It is deadly. GR35 also recognises the role that corporations play when they operate extraterritorially. And what about when they operate extra-terrestrially?

So what then would a founding feminist constitution look like? How would it guarantee foundation against what bell hooks has termed the ‘white supremacist capitalist patriarchy’? Is it a democracy to come? Whose work should we draw upon to inform this constitution?  Around the world, the brave, the portadores de sueños work on the ground against systematic violence.  Activists and academics work together on feminismos territoriales, and the rights of  women, forests, trees, and rivers.  Who will protect their rights in Mars?

The feminists.

 

Keina Yoshida is a research fellow at the Centre for Women, Peace and Security.  She is currently working on the AHRC funded project a Feminist International Law of Peace and Security.

Law as a Method of Destruction: Dismantling Indigenous Land Rights and Protective Institutions in Brazil

Reporting on her 2016 official visit to Brazil, Special Rapporteur on the Rights of Indigenous Peoples Victoria Tauli-Corpuz declared that “[t]oday, indigenous peoples face more profound risks than at any time since the adoption of the Constitution in 1988.”[1] Brazil’s largest indigenous group, the Guaraní-Kaiowá, have and continue to suffer large-scale displacement and dispossession from their ancestral lands in the state of Mato Grosso do Sul. Encroaching large-scale agribusinesses and private landowners grab lands, transform forests into farms, and reap huge profits from agriculture exports produced on Guaraní lands. At the same time, farmers entangle indigenous representatives in decades-long legal battles over the land’s title to stave off official demarcation of lands as indigenous. Some demarcation disputes have resulted in violent clashes between private farmers, public officials and indigenous peoples.

The Guaraní-Kaiowá communities experience devastating consequences as a result of the land grabs and the ongoing violence of state-sponsored settler colonialism. To the Guaraní-Kaiowá, “land is life;” without the land, communities lack access to adequate food, water, shelter, healthcare, education and other necessities. In addition to skyrocketing suicide and childhood starvation rates, Guaraní communities are targets of violent attacks, forced removals, and dozens of assassinations of leadership. Alarmingly, the Guaraní-Kaiowá’s population has dropped from 400,000 to only 50,000 people, motivating community leaders to call this protracted conflict a “silent genocide.”[2]

As in many unfolding processes of mass atrocity, the law has played an integral role in facilitating the systematic destruction of the Guaraní-Kaiowá. Although article 231 of Brazil’s Constitution guarantees indigenous groups the collective rights of return to—and occupation and use of—their traditional lands in line with international obligations, public and private sector interests have prevented the Guaraní-Kaiowá from realizing these rights. According to Tauli-Corpuz, the law has been used to obstruct, rather than to guarantee, indigenous peoples rights in Brazil.[3] The agribusiness sector wields enormous political power in Brazil, and the ruralista caucus (“Agricultural Parliamentary Group,” or “FPA”) has used its influence to roll back not only environmental and food production regulations, but also constitutional guarantees of indigenous peoples to original lands. Indeed, the FPA supports President Michel Temer’s government while funding a massive campaign to all but eliminate indigenous land rights. In direct contravention of its international human rights treaty obligations, the state has enacted laws, passed executive decrees and issued judgments to dismantle protections of ancestral lands and indigenous peoples.

For instance, on July 20, 2017, the President approved Union Attorney General’s Opinion 001/2017, which binds all federal public administrative agencies to limit indigenous rights to demarcation in ways that do not adhere to international treaty obligations or regional human rights jurisprudence. One limitation is the application of the “temporal framework” doctrine (“tese do marco temporal”), a judicial thesis that denies indigenous peoples the right to ancestral lands if the community did not occupy and control those lands at the time the 1988 Brazilian Constitution was promulgated. Given that prior to 1988 most indigenous communities were forcibly removed from their lands in a period of military dictatorship in which the state denied legal capacity to indigenous peoples, such a doctrine severely curtails the constitutional guarantees of indigenous peoples to their original lands. Application of the temporal framework doctrine would affect 748 administrative demarcation processes presently in progress across the country.

Additionally, several proposed bills in Congress further threaten to undo protections of indigenous rights in Brazil. One of the most precarious legislative proposals is Constitutional Amendment Bill 215 (“PEC 215/2000”). If passed, PEC 215/2000 effectively would stop indigenous land demarcations, and would permit new economic and “development” activities, as well as rural settlements, on indigenous lands without free, prior and informed consent of indigenous communities as required under international law.

The United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) includes the clearest and most advanced articulations of the FPIC requirement under international law.[4] Although UNDRIP is non-binding, the Declaration serves as a strong, interpretive guide to determine the content and scope of indigenous rights in international law.[5] Located under several articles of the UNDRIP, FPIC again is derived from and grounded in the rights to self-determination, culture and the use of traditional lands, territories and resources.[6] Brazil also is obligated inter alia as state party to the International Labour Organization’s Convention No. 169 (“ILO No. 169”) to uphold these rights.

Continue reading

Un petit part de la part de la planète

Do Your Part,” Allied posters proclaimed during World War II. Women were urged to join the U.S. Army Auxiliary to work at defense plants, families were pressed to keep farms producing, and all were advised to keep their mouths shut. This coming-together defeated Axis enemies and gave rise to unprecedented postwar intergovernmental cooperation.

That 72-year-old global infrastructure is under threat. Last week saw fractious meetings at NATO headquarters (where I’m due to bring students later this month) and Taormina (just 75 miles north of the Siracusa summer school where I was then teaching). Today it’s the President’s invocation of the provision permitting U.S. withdrawal, in about 4 years, from the 2015 Paris Agreement on climate change, to which 195 – nearly all – the countries in the world have agreed.

The news spurs reflection on the very small part I played in the development of the Paris Agreement.

As with most international accords, this one did not happen on the spur of the moment. Rather, countries had engaged in consultations and negotiations for years before the summit. France was especially active, eager to accomplish something significant in October-November 2015, when it would host COP21, the 21st Conference of the Parties to the 1992 U.N. Framework Convention on Climate Change.

Thus in June 2015 I joined French and American colleagues at a symposium entitled “Le Changement climatique, miroir de la globalisation (Climate Change, Mirror of Globalization),” a pre-summit preparatory meeting whose cosponsors included the Collège de France and Fondation Charles Léopold Mayer pour le Progrès de l’Homme. Our interventions aided thinking about the impending summit.

My own contribution, “Le changement climatique et la sécurité humaine,” reprised a chapter published in Regards croisés sur l’internationalisation du droit : France-États-Unis (Mireille Delmas-Marty & Stephen Breyer eds., 2009). As indicated in the English version, “Climate Change and Human Security,” the essay demonstrated that litigation would not proved a fruitful method for combatting climate change. It thus advocated a human security approach, one drawn from U.S. legal traditions like the 1941 Four Freedoms speech of President Franklin Delano Roosevelt and the 1945 Statement of Essential Human Rights of the American Law Institute.

The essay concludes:

“Emphasis on state duty carries with it an assumption that legislative and executive officials will assume their obligation to avoid harm from occurring. Such officials may not assume, as seems the wont of some who operate under a litigation model, that they may act as they wish unless and until a court steps in to order some belated and imperfect sanction for the wrongs they have committed. A state that endeavors to achieve human security, moreover, is likely to fashion comprehensive, before-the-fact remedies. That is preferable even in isolated cases; in other words, we would rather have an agent of the state eschewed torture than have to compensate a victim after she has suffered state torture. This comprehensive, before-the-fact framework is even more preferable with regard to human insecurities that have communitywide, even planetary consequences – to name one, the threat to human security posed by climate change.”

Theories like these undergird the agreement reached in fall 2015. They yet may maintain a firm hold in these next 4 years.

(Cross-posted from Diane Marie Amann)

Ogiek: The African Court of Human and Peoples’ Rights first decision on indigenous rights

This past Friday, 26 May 2017, the African Court of Human and Peoples’ Rights handed down its first judgement on the rights of indigenous peoples in the matter of African Commission of Human and Peoples’ Rights v The Republic of Kenya (the Ogiek case). The case concerns the Ogiek people, an indigenous community of about 20 000 people who live in the Mau Forest in the central Rift Valley in Kenya. In 2009, officials from the Kenyan Forest Service served an eviction notice on the community and other settlers requiring them to leave the forest within 30 days. The notice was issued on the grounds that the forest constitutes a reserve water catchment zone and that the land is state property. The Ogiek people argued that the decision to evict was taken without regard to the importance of the forest to the community and to their survival, and without any consultation with the community, in violation of the State’s obligations under the African Charter of Human and Peoples’ Rights.

Like the Endorois decision handed down by the African Commission of Human and Peoples’ Rights in 2009 (also a case about the eviction of a group by the Kenyan Forestry Service), this case turns on questions about what constitutes an indigenous group and whether Kenya’s alleged environmental concerns justify overriding obligations to these groups under the African Charter.

The Court found that Kenya had violated the Ogiek community’s rights under Article 14 (the right to property), Article 2 (the right to equality), Article 8 (the right to freedom of religion), Article 17(2) and (3) (the right to culture), Article 21 (the right to free disposal of wealth and natural resources), Article 22 (the right to economic, social and cultural development) and Article 1 (the State duty to take all legislative and other measures necessary to give effect to the Charter). The Court found no violation of Article 4 (the right to life). In this post I briefly consider some of these Articles and the Court’s findings.

The Right to Property – Article 14

The Court found that Kenya had violated the rights of the Ogiek under Article 14 of the African Charter. Article 14 secures the right to property but the Court referred to the ‘right to land’ in its reasoning, interpreting the right in light of the UN Declaration on the Rights of Indigenous Peoples. The Court found the Ogiek had occupied the land since time immemorial and that, as an indigenous community, the community was entitled to occupy its ancestral land. (A report on the Ogiek for the Forest Peoples Programme, documents a series of evictions and forced removals of the Ogiek from their land starting in 1911, and continuing after independence.)

Rights to land for indigenous communities, the Court found, did not necessarily mean rights to property (an approach that has been central to the Inter-American Court and Commission’s indigenous rights jurisprudence). Rather, the Court emphasised rights to possession and unhindered use of their territories.  Continue reading