Agency in international climate negotiations: the case of indigenous peoples and avoided deforestation

This article examines the agency of indigenous peoples in designing a mechanism for reducing emissions from deforestation and forest degradation (REDD) under the emerging post-2012 agreement to the United Nations Framework Convention on Climate Change. It investigates whether indigenous peoples have agency in international negotiations and specifically the REDD design process and if so, how they have obtained it. Agency refers to the ability of actors to prescribe behaviour and to substantively participate in and/or set their own rules related to the interactions between humans and their natural environment. The aim of this study is to gain understanding of what role non-nation state actors, particularly indigenous peoples, play in shaping the REDD design process under the climate convention and what is shaping their agency. A special emphasis is placed on indigenous peoples as they may be highly vulnerable to the impacts from both climate change and certain policy responses. The article finds that, through REDD, indigenous peoples and forest community alliances are emerging in the climate regime but their agency in designing a mechanism on forest protection in a post-2012 climate regime remains indirect and weak. They are being consulted and invited to provide input, but they are not able to directly participate and ensure that their views and concerns are reflected in the outcome on REDD.     

Indigenous Peoples in International Environmental Cooperation: Arctic Management of Hazardous Substances

This article reviews the international legal framework on hazardous substances, with an emphasis on the Arctic and the roles of indigenous peoples. Persistent organic pollutants (POPs) and heavy metals pose significant risks to Arctic indigenous populations, mainly through the consumption of traditional foods. Treaties of particular relevance include the Protocols on Heavy Metals and POPs to the Convention on Long-Range Transboundary Air Pollution (1998) and the Stockholm Convention on POPs (2001). Arctic indigenous groups have exerted considerable influence on hazardous substance management through lobbying of national governments, participation in domestic and international scientific assessments, and direct advocacy in regional and global political fora. Their engagement on environmental issues has also helped to shape circumpolar consciousness and political activism among different indigenous groups. At the same time, there remain important limitations on the independent authority and ability to act of indigenous groups. Challenges for Arctic indigenous groups and States include continuing collaborative abatement work targeting many POPs and heavy metals, as well as addressing linkages between hazardous substances and climate change, which is another issue of great Arctic concern.     

Environmental Justice Imperatives for an Era of Climate Change

This paper is about intra- and inter-generational equity, connecting environmental justice discourse with necessary responses to climate change. It offers a review of the role of globalization in this pervasive context, contrasting the disaggregated nature of localized impacts, and seeks to address the potential for adjusting law-policy frameworks as a key part of the search for solutions. It argues that environmental justice approaches can incorporate values into law-policy processes based upon vital aspects of the integrity and functioning of communities, distributional fairness, and capacities for wider engagement and participation in the search for necessary behavioural change. The conclusion is that the ultimate success of the urgent process of addressing climate-related threats, through a meaningful degree of mitigation and adaptation, and multiple levels of decision-making and response, must be informed by the precepts of environmental justice.     

Legal Options to Stop the Revival of Keystone XL Pipeline

Abstract

The construction and operation of the international pipeline well-known as Keystone XL would potentially contribute to the “game over of climate”. With a focus on combating climate change, the Obama Administration denied the permit application for the Keystone XL. After Trump took presidency, Keystone XL was revived as a result of the administration’s energy dominance policies. Indigenous activists joined by environmental groups have been resisting the revival. This article explores legal options to stop the revival of Keystone XL, consisting of legislative, regulatory and judicial actions at both federal and state levels within the U.S., and legal responses at the international level.     

Placing Indigenous Rights to Self-Determination in an Ecological Context

In this paper the author focuses on Australian land management and in particular on the environmental management issues that could have been prompted by the High Court recognition in 1996 (in Wik Peoples v. The State of Queensland ) that native title to land and pastoral leaseholdings can co-exist. Drawing on themes of self-determination and co-existence, the paper looks at more specific topics such as aboriginal title to land—what has been called land rights or native title in Australia—and some implications of that for land, sea and resource management. Central to this analysis are competing theories of Aboriginal land management and links between Aboriginal traditional knowledge and conservation of species. These are illustrated through the marine mammal, the dugong. The Australian debates lead to the Canadian debates and then to Scandinavia and the role of the Sami people in protection and management of the Arctic region. Issues of indigenous self determination inevitably provide an overall theme to these discussions. As a matter of global concern, the paper asks, but does not decide, whether indigenous peoples may manage fragile eco-systems more effectively than outsiders. It maintains that what is important in this context is a broader question. This concerns how culturally inclusive land and resource management can emerge from recognition of indigenous land and human rights and how comparative developments can provide crucial cross-jurisdictional information for future developments and opportunities in the interests of environmental conservation.     

和谐世界视野下共赢性国际知识产权法律制度的构建

以TRIPs协议为核心的国际知识产权法律制度存在诸多问题,已经引发国际社会一系列重大矛盾冲突,如TRIPs协议妨碍了技术向发展中国家转移,TRIPs协议没有有效制止生物海盗行为,TRTPs协议损害了各国当地社会尤其是土著社会控制他们自己的基因资源、自然资源和文化资源的能力.TRIPs协议限制了获取专利药品的机会和能力并关涉到健康权的合理有效享有等.通过检视国际知识产权法律制度的嬗变,揭示发达国家种种极端利己主义行为及由此产生的严重后果,从建立和谐世界的角度,借助博弈论透析构建共赢性国际知识产权法律制度对建立和谐世界的重大意义,论证了知识产权国际保护应遵循的"共同而有差别"的指导原则,从体制内修订规则和体制外造法两个方面探讨了共赢性国际知识产权法律制度的构建.     

Greenland criminal justice: The adaptation of western law

The conflict which many indigenous peoples experience with Westernized systems of law has precipitated a search for alternative models of criminal justice. While the process of colonization has most often resulted in the destruction of traditional practices of social control, in Greenland an attempt was made to adapt Western law to the indigenous culture. The Greenlandic justice system has several unique attributes which have attracted the attention of indigenous peoples and governments worldwide. This article traces the origins, development and evolution of the Greenlandic Criminal Code and criminal justice system, the factors which influenced its development, and the extent to which the objectives of the architects of the systems have been met. The discussion provides key insights into the potential and limitations of adapting Western law to indigenous cultures.     

The Evolution of International Indigenous Rights in the Inter-American Human Rights System

Indigenous communities in the Western hemisphere are increasinglyrelying on international law and international fora for enforcementof their human rights. When there are no domestic laws thatrecognise indigenous rights, or such laws exist but there isno political will to enforce them, indigenous peoples in theAmericas may turn to the Inter-American human rights system.Consequently, the Inter-American Court of Human Rights and theInter-American Commission on Human Rights have developed a progressivecase law in this area. In 2005 and 2006, the Inter-AmericanCourt decided seminal indigenous ancestral land rights casesand a political rights case. This article analyses these casesand the previous jurisprudence and decisions on indigenous rightsin the Inter-American system.     

Narratives of Race and Indigeneity in the Genographic Project

In its quest to sample 100,000 "indigenous and traditional peoples," the Genographic Project deploys five problematic narratives: (1) that "we are all African"; (2) that "genetic science can end racism"; (3) that "indigenous peoples are vanishing"; (4) that "we are all related"; and (5) that Genographic "collaborates" with indigenous peoples. In so doing, Genographic perpetuates much critiqued, yet longstanding notions of race and colonial scientific practice.     

Are Domestic Violence Courts working for indigenous peoples?

It is well established that the disproportionate imprisonment rates for indigenous peoples surpass that of non‐indigenous peoples. What is troubling is the alarming statistic that indicates that the rate of apprehension, prosecution and recidivism of indigenous women surpasses that of not only non‐indigenous peoples but also male indigenous peoples. This article proposes a court setting for domestic violence that incorporates therapeutic jurisprudence as an appropriate vehicle for the recognition of an indigenous law system as the answer to this problem. The model proposed comprises two components; a specialized Domestic Violence Court underpinned by the doctrine of therapeutic jurisprudence and the implementation of an indigenous legal system such as tikanga Maori.     

Indigenous Peoples and Sustainable Development Subprojects in Brazilian Amazonia: The Challenges of Interculturality*

The implementation of sustainable development projects for Indigenous peoples in Brazilian Amazonia by the Pilot Program for the Protection of Brazilian Tropical Forests has generated new types of intercultural relations between the dominant society and local Indigenous communities. This article analyzes sixteen of these projects focussing upon (1) sociocultural relations, in which two different administrative and political systems come into contact and require the adoption by Indigenous peoples of a Western “project” format to meet their social and environmental needs, and (2) interscientific relations, whereby unresolved legal issues concerning the use of and access to Indigenous knowledge by members and institutions of the wider society are exacerbated.     

Gender,disasters and climate: Case of internal displacement in Assam,India

Social vulnerabilities are exacerbated as a result of human mobilities in the face of climate-related disasters. Framing these mobilities as a response to disasters masks the underlying systemic issues but helps to explore and understand the connections between climate change, disasters, and displacement, and particularly helps to identify which internal displacement patterns emerge as either adaptive or maladaptive strategies.

Using a case study approach, this article juxtaposes Assam’s history with floods, erosion, and extreme rainfall since 2012–2013 with people’s mobility as an emerging form of adaptive capacity. It contextualises key concepts of gender justice, using them to understand gendered recovery processes following disasters. This article advances the concepts of justice and migration by looking at the role and impact various patterns of mobilities have on vulnerable groups, particularly women.

While there is an increasing body of research examining the climate change–migration nexus, what is needed is a focus on understanding internal displacement using an environmental and gender justice lens. This approach must include debate and further research on internal displacement, and strengthening policy approaches to make them both climate resilient and migrant inclusive.

     

‘Multicolored’ green criminology and climate change’s achromatopsia

While green criminology may be an effective name or label for the sub-field or perspective within criminology that considers a wide range of environmental issues, it is, in reality, a ‘multicolored green’ – a criminology that engages a spectrum of issues, that reflects the interests of some racial groups more than others, that reveals and analyzes environmental harms which disproportionately impact some racial groups more than others, and that can be approached from a number of vantage points or that can be viewed with variously tinted lenses. This article begins with an overview of climate change, including a discussion of its anticipated impacts and indicators of its already-being-felt effects. It then offers some general comments on the disproportionate impact of environmental threats and harms before turning to a discussion of the present and anticipated distributional impacts of climate change. Here, this article argues that climate change is, in effect, achromatopsic – it is color-blind, in that it affects us all regardless of skin color – but that those impacts will be distributed unevenly/unequally and that various groups are and will continue to be in different positions to adapt to climate change. This article concludes by suggesting that while the environmental harms caused by climate change are real – and the risks and threats they pose tangible and serious – climate change presents an exciting challenge for our creative potential as humans. In the process of reducing our consumption of fossil fuels and stabilizing (or, better yet, reducing) our greenhouse gas emissions, we might better assist those geopolitical regions most at risk (i.e. poor, developing countries) to become more resilient – an approach that is necessary for both the physical health of the planet and the prospects for social justice.     

Five Year Review: Evolving Environmental Law and Advice to Green Lawyers

Five years ago, the U.S. environmental legal market was in a state of uncertainty after the 2007–2008 financial crisis, Congress's failure to pass a comprehensive climate change bill, and the Deepwater Horizon oil spill in the Gulf of Mexico. Since that time, the environmental job market has improved, and progress, particularly in addressing climate change and in facilitating renewable energy development, has been made at the state and federal levels. However, the election of President Trump in late 2016 and empowerment of a Congress hostile to environmental regulation threaten to undo many of the hard-fought environmental victories, especially at the federal level. New York State and its municipalities have the opportunity to lead—and New York environmental lawyers are ready to use creativity and innovation to tackle the complex environmental problems facing our communities and planet in this uncertain climate.     

Fostering a triple response mechanism to combat global climate change: Emission abatement,carbon capture and water improvement

The Kyoto Protocol has established emission abatement and carbon sink increase to cope with climate change. However, in recent years, developed countries tend to focus more on the former. The simplifying of GHG causes has posed challenges for the understanding of climate change issues and for the development of consequent counter-measures, leading to present controversy and dilemma over mechanisms to combat global climate change. It is held that a desirable global cooperative stance should be “harmonious but differentiated,” i.e., the division of responsibilities and co-operation among the countries should be conducted after the diversities of different countries are recognized in terms of climate change, interests and functions. To meet this end, it is necessary to have UNFCCC play a leading role, under which emission abatement, carbon sink and water cycle improvement are concurrently reinforced. Under this triple mechanism, industrialized countries ought to continue to take the lead in emission abatement, while developing countries, especially those with great potentialities to strengthen carbon sink and water conservancy, ought to conduct ecological preservation and to develop hydraulic capacity so as to strengthen the natural carbon cycle and water cycle to combat climatic impacts.     

传统知识保护之争中的非政府组织

由于世界性非政府组织对传统知识保护问题关注不够且与传统知识持有人之间存在摩擦、发展中国家非政府组织又受到数量不多、经费不足的严重制约,故在协助发展中国家推动传统知识的国际保护方面,非政府组织的潜力尚未得到充分开发.发展中国家的当务之急是:加强传统知识保护方面的议题表述模式研究,鼓励本国的土著、本土社区组建非政府组织并与国际性非政府组织展开合作,促进发展中国家非政府组织经费的"开源"与"节流".     

Sharing the benefits of biodiversity the Kani TBGRI deal in Kerala,India

Abstract

The United Nations Convention on Biological Diversity (CBD) concluded at the Earth Summit in 1992, mandates that where utilisation of the knowledge, innovations and practices of local and indigenous communities leads to benefits, such benefits shall be equitably shared with the holders of such knowledge, innovations and practices. The study analyses some of the issues that have emerged in the context of a ‘benefit sharing exercise’ attempted by the Tropical Botanic Garden and Research Institute (TBGRI), a research institute based in Kerala, with the Kani tribals of Kerala, pursuant to the development of a pharmaceutical drug, based on the knowledge, information and natural resources that the Kanis have nurtured over many years.

As the case study illustrates, the debate on benefit sharing in the absence of other fundamental rights such as the rights to land, access to the resource and adequate governance structures becomes a limited and myopic exercise. A ‘fair and equitable benefit sharing mechanism’ would therefore call for certain basic pre‐conditions that will be discussed in the course of the study.     

Linking Climate Litigation and Human Rights

Human activities since the beginning of the industrial age have produced emissions that are accelerating natural forces and changing the global climate. The expected impacts on sea levels, temperature, precipitation and storm intensity will stress many human communities and, in many cases, will threaten basic human rights. Climate litigation provides one tool that can be used to shape climate policy and to seek redress from climate-related injuries. This article explores the advantages and disadvantages of linking climate litigation and human rights in order to find effective strategies for protecting those most vulnerable to threats to well-being created by climate change.     

Adaptation to Climate Change and the Everglades Ecosystem

Water management, development, and farming continue to degrade the structure and function of the Florida Everglades. Global climate change is expected to exacerbate these anthropogenic impacts. This article explores the historical and current adulteration of the Everglades, reviews the expected effects of climate change on the ecosystem, and recommends an amendment to the farm bill to support the implementation of adaptive management to increase climate resilience.     

China and climate justice: moving beyond statism

China is the largest national source of greenhouse gas (GHG) pollution causing climate change. However, despite some rhetorical progress at the 2011 Durban climate conference, it has consistently rejected calls to take on binding targets to reduce its GHG emissions. The Chinese Government has understandably argued that developed states are responsible for the predominant share of historical GHG emissions, have greater capacity to pay for the cost of mitigation, and indeed have an obligation to do so before China is required to take action. However, due to the explosive growth in its GHG emissions, China is now in a position to single-handedly dash any hope of climate stability if its position does not change. On the diplomatic level, other big polluters, particularly the United States, will not enter into new binding agreements to reduce substantially their own GHG emissions without a credible commitment from China. Challenging the “statist” framing of the climate justice, this article explores the possibility for China to take on a leadership role in climate change diplomacy in a way that allows it to maintain its long-standing principled resistance to binding national emissions targets while making meaningful progress toward combating the problem. Action by China’s rapidly growing affluent classes may hold the key to long-term climate stability.