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Unformatted text preview: Human Rights and the Environment Conflicts and Norms in a Globalizing World Edited by Lyuba Zarsky Earthscan Publications Ltd London • Sterling, VA First published in the UK and USA in 2002 by Earthscan Publications Ltd Copyright © The Nautilus Institute, 2002 All rights reserved ISBN: 1 85383 815 2 paperback 1 85383 814 4 hardback Typesetting by PCS Mapping & DTP, Gateshead Printed and bound in the UK by Creative Print and Design Wales, Ebbw Vale Cover design by Susanne Harris For a full list of publications please contact: Earthscan Publications Ltd 120 Pentonville Road, London, N1 9JN, UK Tel: +44 (0)20 7278 0433 Fax: +44 (0)20 7278 1142 Email: [email protected] Web: 22883 Quicksilver Drive, Sterling, VA 20166-2012, USA Earthscan is an editorially independent subsidiary of Kogan Page Ltd and publishes in association with WWF-UK and the International Institute for Environment and Development A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Human rights and the environment : conflicts and norms in a globalizing world / edited by Lyuba Zarsky. p. cm. Includes bibliographical references and index. ISBN 1-85383-815-2 (paperback) — ISBN 1-85383-814-4 (hardback) 1. Economic development—Environmental aspects—Case studies. 2. Environmental responsibility—Case studies. 3. Human rights—Case studies. I. Zarsky, Lyuba HD75.6 .H86 2002 333.7—dc21 2002006464 This book is printed on elemental-chlorine-free paper Contents List of Figures and Tables About the Authors Preface Acknowledgements Acronyms and Abbreviations Introduction: Conflicts, Ethics and Globalization Lyuba Zarsky v vi x xii xiii 1 PART I: INTEGRATING HUMAN RIGHTS AND ENVIRONMENTAL ETHICS 1 2 The Rights of Indigenous Peoples in International Law Fergus MacKay Global Reach: Human Rights and Environment in the Framework of Corporate Accountability Lyuba Zarsky 9 31 PART II: CONFLICTS OVER MINERAL AND OIL DEVELOPMENT 3 4 5 Mining in Suriname: Multinationals, the State and the Maroon Community of Nieuw Koffiekamp Fergus MacKay 57 Environment, Human Rights and Mining Conflicts in Ghana Douglas Korsah-Brown 79 Conflicts Over Transnational Oil and Gas Development Off Sakhalin Island in the Russian Far East: A David and Goliath Tale Erika Rosenthal 96 iv Human Rights and the Environment PART III: CONFLICTS OVER DEVELOPMENT STRATEGIES 6 Environmental and Human Rights Impacts of Trade Liberalization: A Case Study in Batam Island, Indonesia Agus P Sari 123 7 Global Norms, Local Compliance and the Human Rights–Environment Nexus: A Case Study of the Nam Theun II Dam in Laos Philip Hirsch 147 8 The Darien Region Between Colombia and Panama: Gap or Seal? Pascal O Girot 172 Environment, Development and Human Rights in China: A Case Study of Foreign Waste Dumping Changhua Wu and Simon Wang 198 9 PART IV: CONFLICTS OVER LAND RIGHTS 10 Environment and Land in Bushbuckridge, South Africa Robert Thornton 219 11 Ecological Roots of Conflict in Eastern and Central Africa: Towards a Regional Ombudsman John Mugabe and Godber W Tumushabe 241 PART V: CONCLUSION 12 Promoting Environmental Human Rights Through Innovations in Mediation Naomi Roht-Arriaza 259 Index 281 List of Figures and Tables FIGURES 3.1 3.2 5.1 5.2 5.3 5.4 7.1 7.2 8.1 8.2 8.3 Villagers Blocking the Road to Golden Star’s Mining Camp, 1997 Signpost near Nieuw Koffiekamp, 1997 Sakhalin’s Unspoiled Coastline Sakhalin Island’s Wetlands Provide Critical Habitat for Many of the Endangered Birds of Asia Oil Contamination from Onshore Development Drilling Unit for Sakhalin-2: Shell-led Consortium Retrofitted a 20-year-old Drilling Unit that had been Mothballed Nam Theun II Project Area Nam Theun II Key Players Projected Road Through the Darien Gap Region The Darien Border Region: Colombia–Panama Inter-oceanic Routes Through the Mesoamerican Isthmus 60 67 97 99 100 102 156 161 174 176 182 TABLES 2.1 2.2 2.3 6.1 8.1 8.2 9.1 9.2 12.1 The Explosion of FDI Global Distribution of FDI Inflows World’s Top Ten MNCs Gross Domestic Regional Product (GDRP) in Batam Degree of Completion of the Darien Gap Highway: Tocumen, Panama–Río León, Colombia, 1970–1992 Yearly Total of Internally Displaced People in Colombia 1985–1999 Chinese Waste Imports 1990–1995 Sources of Imported Wastes 1993–1994 International Bodies with Ombudsperson-type Functions 33 34 35 127 181 187 205 206 266 About the Authors Douglas Fifi Korsah-Brown is co-founder of Friends of the Earth Ghana, where he works on issues such as trade and environment, climate change and ozone layer protection. Between 1983 and 1985, he studied journalism at the Ghana Institute of Journalism and proceeded to the University of Ghana, where he obtained a BA Honors in sociology. After setting up Friends of the Earth in 1986, he attended the Ghana School of Law, where he obtained his Qualifying Certificate and was subsequently called to the Bar in April 1996. Pascal O Girot is Associate Professor of Geography at the University of Costa Rica, where he runs the Program in Geographical Research. He received a BS in geography and international development from Clark University and, in 1984, an MS in geography from the University of Wisconsin-Madison. He is an active member of the World Conservation Union’s (IUCN) Commission on Environmental, Economic and Social Policy (CEESP) and a consultant for IUCN’s Regional Office for Mesoamerica, in its Forest Conservation and Protected Areas Program. He is editor of Boundaries in the Americas (Routledge, 1993) and author of numerous papers in English, French and Spanish on Central America’s territorial politics and boundaries, including: ‘Transborder Cooperation in Central America’, Borders and Border Regions: New Roles in a Changing Global Context (Berlin, 1996). Philip Hirsch is Associate Professor of Geography at the University of Sydney and Director of the Australian Mekong Resource Centre. He is actively involved in field-based research in the Mekong Region, mainly in Lao PDR, Thailand and Vietnam. Dr Hirsch has written extensively on development and environment in Southeast Asia. His publications include: The Politics of Environment in Southeast Asia, with Carol Warren (Routledge, 1998); Reclaiming Resources: Politics of Resources and Environment in Southeast Asia (Routledge, 1997); Seeing Forests for Trees: Environment and Environmentalism in Thailand (Silkworm Books, 1997); and ‘Competition, Conflict and Cooperation in the Mekong River Basin: Toward a New Framework for Security’, Development Dilemmas in the Mekong Subregion (Monash Asia Institute, 1996). Fergus MacKay is a human rights lawyer, specializing in the rights of indigenous peoples. He received his JD from California Western School of Law in 1991. Formerly legal adviser to the World Council of Indigenous Peoples, he is presently Regional Coordinator for the Guyanas in the Forest Peoples Programme of the World Rainforest Movement. Based in the Guyanas, he About the Authors vii works with a coalition of indigenous, human rights and environmental organizations from Guyana, Suriname and French Guiana. His publications include: ‘International Law, Intergovernmental Organisations and the Rights of Indigenous Peoples’ (Global Law Association, 2000); and ‘Mining, Land Rights and Indigenous Peoples in the Upper Mazaruni’, with L Anselmo (Amerindian Peoples Association of Guyana, Upper Mazaruni Amerindian District Council, Forest Peoples Programme) (Global Law Association, 2000). John Mugabe is Executive Director of the African Centre for Technology Studies (ACTS). He is a member of Kenya’s National Council for Science and Technology (NCST), the Board of Directors of the African Conservation Centre (ACC), Kenya, and the Board of Trustees of Sustainable Agriculture Centre for Research and Development in Africa. He also serves on the International Steering Committee of the Leadership for Environment and Development (LEAD) International Inc, New York, and is on the roster of experts for the Scientific and Technical Advisory Panel (STAP) of the GEF. His publications include: Access to Genetic Resources: Strategies for Sharing Benefits, with C Barber (ACTS Press and Initiatives Publishers, Ltd, 1997); and Managing Biodiversity: National Systems of Conservation and Innovation in Africa (ACTS Press, 1997). Godber Tumushabe is an independent environmental law and policy analyst engaged in research on a broad range of environmental and human rights issues in eastern and southern Africa. He is currently Executive Director of Advocates Coalition for Development and Environment (ACODE), a Ugandan-based independent public policy research and analysis think-tank, and has formally worked as a Senior Research Fellow at the African Centre for Technology Studies (ACTS) in Nairobi, Kenya. He has written extensively on environmental law and human rights issues and co-edited, with Professor Okoth-Ogendo, Governing the Environment: Political Change and Natural Resources Management in Eastern and Southern Africa (ACTS, 1999). Erika Rosenthal directs Earthjustice’s Russian project and has worked with Ecojuris, Russia’s national environmental law group, since 1994. She has prepared supporting briefs for several of Ecojuris’ cases, designed more than a dozen international legal training seminars, and written numerous articles on citizen participation in environmental decision-making and enforcement with a focus on the former Soviet countries and Latin America. Agus Sari is Executive Director of the Pelangi Organization in Indonesia and a lecturer on the politics of climate change at the University of California, Berkeley. From 1994 to 1999 he was the Senior Research Associate at Pelangi. His publications include ‘On Equity and Developing Country Participation’ in On the Flexible Instruments Under the Kyoto Protocol (Kluwer Academic Publishers, 1999). viii Human Rights and the Environment Naomi Roht-Arriaza is Professor of Law at Hastings College of the Law, University of California. She teaches international human rights, international and domestic environmental law, and is on the Executive Council of the American Society of International Law. She received her JD from the University of California, Boalt Hall and a Masters in Public Policy from UC Berkeley. RohtArriaza is associate editor of the Yearbook of International Environmental Law and author of numerous publications on the subjects of human rights, environment, trade, indigenous populations and international law, including: ‘Shifting the Point of Regulation: The International Organization for Standardization and Global Lawmaking on Trade and the Environment’ (Ecology Law Quarterly, 1995); ‘Environmental Management Systems and Environmental Protection: Can ISO 14001 Be Useful Within the Context of APEC?’ (Journal of Environment and Development, 1997); and ‘Institutions of International Justice’ (Journal of International Affairs, 1999). Robert Thornton is a professor in the Department of Anthropology, University of Witwatersrand, Johannesburg, South Africa. After receiving a PhD from the University of Chicago in 1978, Professor Thornton accepted a teaching position at the University of Cape Town in South Africa, where he was promoted from Lecturer, to Senior Lecturer to Associate Professor. In 1989 he went to the Institute for Advanced Study in Princeton, New Jersey for one year. The following year, he became Raoull Wallenberg Associate Professor of Human Rights in the History Department, Rutgers University, and a Fellow at the Rutgers Center for Historical Analysis, in New Jersey. His publications include: ‘A “vague and baggy monster”? Finding Culture Between the Cracks in the Disciplines’, in Openings: Studies in South African Culture, edited by S Nuttall and C-A Michaels (Oxford University Press, 2000); and ‘Culture-based Management Solves the Street Hawker Problem at Village Walk, Sandton [Johannesburg, South Africa]’, Planning: Architectural and Planning Review for Southern Africa 159:6–9, 1998. Changhua Wu is Senior Associate and Director of China Studies and directs the World Resources Institute’s (WRI)’ work in China. Her areas of work include strategic planning, project design and management, research and outreach, environment and health, energy and climate change, urban transportation, institutions and governance, and biodiversity and watershed management in China. She has an ML in journalism from the Chinese Academy of Social Sciences and an MPP in environmental policy from the University of Maryland. As a World Press Institute Fellow in 1993, she travelled, with nine other international journalists throughout much of the US, interviewed Federal and State congressional leaders and legislators, government officials and Presidential advisers, policy researchers and scientists, US media and NGO representatives, prisons and hospices, and gained a broad and objective view of the US. Wu is co-founder, President and Board Member of the Professional Association for China’s Environment (PACE). An enlarging network of people working on environmental issues in China, PACE is playing an increasingly important role in networking those people with common interest, exchanging About the Authors ix and sharing information and ideas, and providing advice for Chinese decisionmakers to chart a sustainable future for China. She is editor of Sinosphere, an English quarterly on China’s environmental policy issues, and executive editor of Chinese Environmental Perspectives, a Chinese environmental policy journal. Lyuba Zarsky is cofounder and Director of the Globalization and Governance Program at the Nautilus Institute for Security and Sustainable Development in Berkeley, California. She has designed and directed a number of collaborative research and advocacy projects, most recently: the California Global Corporate Accountability Project, which explored the global environmental and social dilemmas of California-based high tech and oil multinational corporations; and the International Sustainable and Ethical Investment Rules Project. An economist by training, she has acted as consultant for the Asian Development Bank, the Organisation for Economic Co-operation and Development (OECD) Environment Directorate and the UNDP Northeast Asia office. In the early 1990s, she created and managed a national programme on sustainable development at the Australian Commission for the Future. Zarsky has written widely on the ethics and sustainability in the governance of international trade and investment, especially in the Asia–Pacific region. Her recent publications include: ‘Beyond Good Deeds: Strengthening Corporate Social Responsibility With Public Policy’ (Forum Magazine, forthcoming 2002); ‘APEC: The “Sustainable Development” Agenda’, in R Steinberg (ed) The Greening of Trade Law (Rowman and Littlefield, 2002); and ‘Havens, Halos and Spaghetti: Untangling the Relationship Between FDI and the Environment’ (OECD, 2000). Preface This book grew out of an initiative by the Earth Council, a Costa Rica-based non-governmental organization (NGO), to explore the creation of an international environmental ombudsperson. Founded by Maurice Strong, the Earth Council was launched after the United Nations Conference on Environment and Development (UNCED, also known as the Earth Summit) held in Rio de Janeiro in 1992. The Earth Council had a vision of an ombudsperson function which would help to define new international norms by mediating in conflicts involving environment, human rights and development. The Council sought the help of experts to develop the conceptual foundation for the ombudsperson’s function, especially to present design options for its scope and modality. In October 1996, the Nautilus Institute for Security and Sustainable Development was engaged to lead the project, From Concept to Design: Creating an International Environmental Ombudsman. We quickly determined that the first task was to improve our understanding of what was happening ‘on the ground’. We commissioned 12 case studies of local or regional conflicts centred on human rights and environment issues. Each conflict involved at least one international actor or set of issues linked to globalization. To consider whether the ombudsperson could function effectively as a global institution, or should be located within a specific locale or region, the case studies spanned Latin America, Europe, Asia and Africa. The case studies were undertaken by researchers based in NGOs, universities and think-tanks from around the world – from Suriname to Ghana, from Indonesia to the Russian Far East. All the researchers are exceptionally astute and creative analysts, as well as highly committed social advocates and problem-solvers. The case studies were completed and submitted to the Earth Council at the end of 1998, along with a summary report outlining design options and recommendations. While the Earth Council weighed alternatives and negotiated with potential partners, the case studies were not made public. With the establishment of the International Ombudsman Centre for Environment and Development (OmCED) in 2000, the Earth Council released the project papers for publication. We are pleased to present them here. All the case studies have been updated and incorporate those changes, some dramatic, which have occurred since 1998. In one example, an entire country experienced a political and social explosion, overturning a 35-year-old government. Most of the conflicts were a long time in the making – and will be a long time gone. They provide insights not only about effective mediation but Preface xi also about how deeply and profoundly human rights and environmental protection are entangled in the process of globalization. The case studies also highlight the creative ways in which communities from around the world are mobilizing to hold governments and corporations accountable to higher ethical standards. This book is dedicated to these communities. Lyuba Zarsky Director, Globalization and Governance Program The Nautilus Institute for Security and Sustainable Development Acknowledgements Special thanks are due to Tani Adams, Coordinator of the From Concept to Design project for her persistence and brilliance in bringing the research project to fruition; and to Maximo Kalaw, the late Executive Director of the Earth Council, for his patience and commitment in seeing it to completion. Thanks to Leif Brottem of the Nautilus Institute for able assistance in editing and preparing the manuscripts for publication, and to Megan Keever for securing a publisher. Thanks to Michelle Leighton for helping to frame the project’s thinking on the emergence of international jurisprudence on human rights and the environment. For helpful comments and pointers to new literature, many thanks to Eva Herzer, Peter Hayes, Jason Hunter, Barbara Johnson, Jacob Scherr, Dinah Shelton and Edith Brown Weiss. Thanks to Kira Schmidt for editorial assistance and to Natalie Bridgeman and Jason Hunter for research assistance. A special thanks to Naomi Roht-Arriaza for co-directing the project with a delightful mixture of wit and whip. Finally, thanks to the Ford Foundation, New York Office, for supporting the staff time needed to bring the case studies to publication. Lyuba Zarsky Acronyms and Abbreviations ACHR ADB ADR AFTA AGC AMDAL ANC ANCON ASEAN BIDA BILIK BOOT BP BPKP CBD CBO CEC CERD COP COPD CRLR CSD CSR CTE DEAT DHMT DLA DSR EBRD ECA EDC EGAT EIA 1969 American Convention on Human Rights Asian Development Bank alternative dispute resolution ASEAN Free Trade Area Ashanti Goldfields Company Limited Analisis Mengenai Dampak Lingkungan (environmental impact assessment) African National Congress Asociación Nacional para la Conservación Association of Southeast Asian Nations Batam Industrial Development Authority Bina Lingkungan Hidup Batam (Batam Industrial Environmental Improvement Council) build-o...
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