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South of South: Examining the International Climate Regime from an Indigenous Perspective
Abstract
The unprecedented degradation of the planet's vital ecosystems is among the most pressing issues confronting the international community. Despite the proliferation of legal instruments to combat environmental problems, conflicts between rich and poor nations (the North-South divide) have compromised international environmental law, leading to deadlocks in environmental treaty negotiations and noncompliance with existing agreements. This volume examines both the historical origins of the North-South divide in European colonialism as well as its contemporary manifestations in a range of issues including food justice, energy justice, indigenous rights, trade, investment, extractive industries, human rights, land grabs, hazardous waste, and climate change. Born out of the recognition that global inequality and profligate consumerism present threats to a sustainable planet, this book makes a unique contribution to international environmental law by emphasizing the priorities and perspectives of the global South.
... For example, the Paris Agreement embraces carbon trading and forest conservation projects as a means of mitigating climate change (Paris Agreement 2015: Articles 5 and 6). However, many forest conservation projects are being undertaken without the free, prior, and informed consent of Indigenous peoples and in ways that interfere with their subsistence livelihoods (Kronk Warner 2015). Wind farms and mega-dams continue to be constructed on Indigenous lands in the name of the green energy transition, but many of these projects are repeating the history of Indigenous dispossession (Baker 2015;Scott and Smith 2017). ...
The concept of racial capitalism has been embraced by scholars and activists as a means of exploring the common roots of contemporary social and ecological cri-ses. These include unprecedented environmental degradation, extreme economic inequality, the resurgence of authoritarian ethno-nationalism, increasingly militarized and racialized policing and border control, and the expulsion to the margins of society of growing numbers of humans, including persons who are unemployed, incarcerated, or homeless. This article examines the logic of racial capitalism in order to distinguish between reforms that entrench it and those that facilitate its dismantlement.
... In the Global South, wherein the above measures are unlikely practicable, attention should be paid to how low-income settings or local cultures might play an invaluable role in coming up with solutions. Indigenous communities, for example, often possess unique spiritual, cultural, and legal connections to their land and environment (Warner, 2015). Indigenous-led renewable energy projects in Canada have reduced reliance on fossil fuels and fostered a wider and more intergenerational distribution of the fruits of energy generation, both of which have been highly beneficial to developing a reciprocal form of ecological stewardship (Smith and Scott, 2021). ...
... In Canada, a controversial proposal to build an enormous hydroelectric dam on the Peace River threatens to displace Indigenous peoples and replicate the sacrifice zones of carbon capitalism-but this time in the name of "green energy" (Scott and Smith 2017). In Brazil and throughout the Global South, forest conservation schemes developed through the climate regime's Reducing Emissions from Deforestation and Forest Degradation (REDD+) program are interfering with the rights of local and Indigenous communities to harvest plants, timber, or fish in their ancestral territories (Kronk Warner 2015;Klein 2014). Lastly, the legislation in the United States and the European Union requiring the blending of biofuels into transportation fuels has increased food prices and incentivized large-scale land transactions in the Global South that destroy forests and displace rural dwellers in order to make way for large plantations to cultivate biofuel feedstocks (such as oil palm). ...
This article examines the relationship among climate change, racial subordination, and the capitalist world economy through the framework of racial capitalism. It argues that climate change is a logical consequence of an economic system based on extraction, accumulation through dispossession, and white supremacy. Climate change imposes disproportionate burdens on racialized communities all over the world, many of whom will be expelled from their homes in record numbers as the climate emergency intensifies. International law has been deeply complicit in the project of racial capitalism, and is now being deployed to address climate change-induced displacement. This article evaluates the emerging legal and policy responses to climate displacement, and proposes alternative approaches based on the perspectives of states and peoples facing imminent displacement, including their demand for self-determination. Climate change is not an isolated crisis, but a symptom of an economic (dis)order that jeopardizes the future of life on this planet. Through a race-conscious analysis of climate change grounded in political economy, this article seeks to engage scholars in a variety of disciplines in order to develop more robust critiques of the laws, institutions, and ideologies that maintain racial capitalism and pose an existential threat to humanity.
... In Canada, a controversial proposal to build an enormous hydroelectric dam on the Peace River threatens to displace indigenous peoples and replicate the sacrifice zones of carbon capitalism -this time in the name of "green energy" (Scott and Smith 2017). In Brazil and throughout the global South, forest conservation schemes developed through the climate regime's Reducing Emissions from Deforestation and Forest Degradation (REDD+) mechanism undermine the rights of local and indigenous communities to harvest plants, timber, or fish in their ancestral territories (Klein 2014, Kronk Warner 2015. Lastly, legislation in the US and the EU mandating the blending of biofuels into transportation fuels has increased food prices and incentivized large-scale land transactions in the global South that destroy forests and displace rural dwellers in order to make way for large plantations to cultivate biofuel feedstocks (such as oil palm). ...
This article expands our understanding of climate justice by demonstrating how racial subordination, environmental degradation, and the fossil fuel-based capitalist world economy are interrelated. It uses these insights to critique the emerging legal and policy responses to climate change-induced displacement and to examine alternative approaches emerging from climate-vulnerable states and peoples. The article argues that racialized communities all over the world have borne the brunt of carbon capitalism from cradle (extraction of fossil fuels) to grave (climate change) and that a race-conscious analysis of climate change and climate displacement can reveal the commonalities among seemingly distinct forms of oppression in order to forge the alliances necessary to achieve just and emancipatory outcomes. Este artículo amplía nuestra comprensión de la justicia climática al demostrar cómo la subordinación racial, la degradación medioambiental y la economía mundial capitalista basada en los combustibles fósiles están relacionados entre sí. Se parte de estos enfoques para criticar las respuestas emergentes de tipo jurídico y político al desplazamiento provocado por el cambio climático y para analizar abordajes alternativos provenientes de estados y pueblos vulnerables por el clima. El artículo argumenta que las sociedades racializadas de todo el mundo son las mayores damnificadas por el capitalismo basado en el carbón, desde la cuna (extracción de combustibles fósiles) hasta la tumba (cambio climático) y que un análisis del cambio climático y del desplazamiento subsiguiente que tenga en cuenta la raza revela las características comunes de formas aparentemente distintas de opresión, de cara a forjar las alianzas necesarias para conseguir resultados justos y emancipatorios.
This article reviews Global Energy Justice: Law and Policy, a comprehensive yet succinct introduction to the ways that law and policy can address the interlocking problems of energy access and poverty. Written by Lakshman Guruswamy, the book examines the plight of the nearly 3 billion people who lack access to modern energy for cooking, heating, lighting, sanitation, transportation and basic mechanical power. Sweeping in its coverage, the book provides a thorough analysis of energy poverty, discusses practical solutions, and offers important tools for incorporating energy justice into national and international legal frameworks. The book serves as a valuable primer on global energy poverty and an excellent resource for faculty eager to introduce energy justice into their courses.
International law has thus far proven limited as a tool for securing environmental justice for those marginalized by the international order. This essay reviews two recent publications that respond to the disproportionate effects of global environmental crisis on the marginalized within the framework of international law. It suggests that while both texts are important works of scholarship, each leaves an impression that international law, at least as we know it, is inadequate to the task of framing meaningful responses not only to the disproportionate effects of environmental crisis on the marginalized, but to that crisis itself. It is argued that the difficulty in utilizing international environmental law as a means of addressing problems of global environmental degradation may be better conceived not as a weakness in international environmental law per se, but as a symptom of the severance of human and natural environment that undergirds the logic of international law. Acknowledgment of the relationship between foundational concepts of international law and environmental exploitation invites sober consideration of the limits of international law as a framework for generating responses to global environmental crisis, and its disproportionate effect on the marginalized.
Forestry activities account for over 17 percent of human-caused greenhouse gas emissions. Since 2005, parties to the United Nations Framework Convention on Climate Change have been negotiating a mechanism known as REDD-Reducing Emissions from Deforestation and Degradation-to provide an incentive for developing countries to reduce carbon emissions and limit deforestation at the same time. When REDD was first proposed, many commentators argued this mechanism 2 vanderbilt journal of transnational law [vol. 47:1 would not only mitigate climate change but also provide biodiversity and forests with the hard international law regime that had so far been missing. These commentators appeared to hope REDD would develop into this kind of hard international law regime. Their hope is unlikely to be fulfilled. This Article focuses on two aspects of REDD negotiations between 2005 and 2012-the changing scope of the REDD mechanism and the parties' decisions about the level of international oversight-and situates these developments within an overall international legal framework. Placing the negotiations in the context of REDD's international legal framework exposes their significance. The true story of REDD demonstrates that REDD is developing into a country-driven, voluntary mechanism with limited international oversight and with a scope that makes it extremely difficult to implement. In that sense, REDD has far more in common with the international legal regime that currently governs forests and biodiversity than with the hard law of the international legal regime that governs climate change. This Article concludes by pointing out two problems that result from not paying attention to the overall effect of the REDD negotiations. The first problem is misdirected focus. If the international community does not pay attention to the real story of REDD, it is likely to focus its energies on design questions at the international level and miss critically important aspects of REDD's implementation at the national and subnational level involving both private and public initiatives. The second problem is misdirected accountability. REDD's current scope makes it extremely difficult to administer and maintains an institutional infrastructure that lacks standardized and supranational oversight. Mechanisms for accountability for REDD's success or failure are lacking. Many commentators have warned that the biggest threat to climate change mitigation and biodiversity would be failure to implement REDD. This Article counters that the biggest threat to climate change mitigation and biodiversity is for REDD to go forward as it is currently being negotiated. If the international community does not pay attention to the real story of REDD, it will likely become nothing more than a cover for limited emissions reduction, weak forest protection, infringement of indigenous and local peoples' rights, and harm to biodiversity.
The Arctic region is in crisis from the effects of climate change. The impacts of climate change pose a particular threat to Arctic indigenous communities. Because of the disproportionate impacts of climate change, these indigenous communities are environmental justice communities. Part I of this article discusses how indigenous nations are environmental justice communities and discusses the unique factors that may apply to environmental justice claims arising in Indian country. The article then presents two case studies to explore how, if at all, these concepts have been previously applied to environmental justice claims brought by various Arctic indigenous communities. Part II addresses the Inuit Circumpolar Conference’s petition to the Inter-American Commission on Human Rights. Part III considers the Native Village of Kivalina’s lawsuit against numerous private emitters of greenhouse gases. These case studies underscore the failure of international and domestic forums’ consideration of the special situation of Arctic indigenous peoples as environmental justice communities.
Because of the unique character of Native Nations, these communities are more likely to be impacted by climate change. First, because Native Nations are often tied to specific areas of land, such as reservations, it is impossible for Natives to leave these areas to either escape the effects of climate change or perhaps to follow migratory species moving to new ranges without abandoning their land. Furthermore, as species shift their ranges to follow their preferred climates, such shifts may threaten Native cultures, as Natives may no longer be able to access these species. Alaskan Natives may be particularly hard hit by shifts in the ranges of species, such as caribou, as the Alaska Native Claims Settlement Act of 1971 extinguished Alaskan Natives’ claims to aboriginal title and hunting and fishing rights. Alaskan Natives will correspondingly not be able to argue for movement beyond existing boundaries, as they have no claim to aboriginal territories and rights. The purpose of this article is not to assert that Native Nations should succeed on claims under the federal common law of public nuisance stemming from injuries sustained as a result of climate change. Rather, this article suggests that the parens patriae standing doctrine should apply to claims based on federal public nuisance like the claim brought by Kivalina. Accordingly, when considering these types of claims brought by Native Nations, courts must apply the parens patriae standing doctrine in considering whether tribes have standing to bring such claims. To support this conclusion, the article first examines how past courts have applied the parens patriae standing doctrine, focusing on the United States Supreme Court’s decisions in Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez (Snapp) and Massachusetts v. EPA (Massachusetts). Next, the article will consider the application of “traditional” Article III analysis, as described by the Court in Lujan v. Defenders of Wildlife (Lujan), to claims such as the one brought by Kivalina. The article then discusses why, given the foregoing, the parens patriae standing doctrine is applicable to Native Nations, such as Kivalina. Finally, the article will briefly conclude with why the application of the doctrine of parens patriae to claims similar to the one brought by Kivalina has potentially broader implications for both the fields of federal Indian law and environmental law.
This Note focuses on Reducing Emissions from Deforestation and Forest Degradation (REDD), an international framework that aims to curb carbon emissions by reducing deforestation. While international negotiators discuss the environmental benefits of REDD, which will likely be implemented in the Kyoto Protocol’s post-2012 commitment period, forest-dwelling indigenous communities worry that REDD will destroy their livelihoods. Countries with high deforestation rates, such as Brazil and Indonesia, have already implemented a number of voluntary REDD pilot projects and are currently creating legal frameworks to address the complexities of REDD. This Note compares the legal frameworks of Brazil and Indonesia in terms of how well they protect indigenous rights. Ultimately, the lives of indigenous peoples will be most affected by national laws that govern the implementation of REDD. Accordingly, this Note provides suggestions on how to build a legal framework that capitalizes on the environmental and economic benefits of REDD while protecting the rights and livelihood of indigenous peoples.
Global climate change has triggered a period of great instability in the Arctic. Indigenous communities are experiencing rapid social and cultural transformation: changes in the physical landscape are contributing to the relentless pressures on their traditional ways of life, which, in large part, are dependent on the persistence of snow and ice. This paper is an exploration of what a 'human rights approach' to climate change can offer Inuit communities. It analyzes the potential contribution of the human right to housing, which recognizes that housing must be culturally adequate; that its location must allow access to employment and social facilities; and that certain services, materials, facilities and infrastructure must be available to the dwellers. This right takes on particular significance for the Inuit because of the iconic nature of their traditional homes and building materials and the location and climate specific nature of their ways of life. But can this right be harnessed to respond to the threats climate change poses to the ways of living of the Inuit without appealing to a static, traditional view of indigenous culture, a view that poses its own risks to the survival of their unique identity?The paper mounts a critical analysis of the prospects and boundaries of the right to housing, so that the human rights strategies - both discursive and legal - that the Inuit are beginning to employ in the face of climate change can be pursued with greater awareness of their implications, and thus with greater prospects for success. Emerging attempts to link climate change with human rights around the globe give the issues addressed in this paper significance for other marginalized communities considering rights strategies in response to climate change, from Alaska to Bangladesh.
The indigenous rights regime fully recognizes the special relationship that indigenous peoples have with their ancestral lands. While it is clear that, before implementing development projects on these lands, states must consult the indigenous peoples concerned, doubts remain as to whether they also have the legal obligation to obtain their consent before taking any such action. Determining the actual meaning of the principle of free, prior and informed consent (FPIC) is crucial to answer this question. This article will argue that a flexible approach to FPIC is gaining increasing recognition internationally. This understanding of FPIC has its normative foundations in the UN Declaration on the Rights of Indigenous Peoples and has been further elaborated by the Inter-American Court of Human Rights.This is a pre-print version of the article published in the International Journal of Human Rights (details above). Please cite to the final published version.
The rapid pace of climate change in the Arctic poses serious challenges for the Inuit peoples living there. A petition filed with the Inter-American Commission on Human Rights in December 2005 on behalf of Inuit in the United States and Canada claims that U.S. climate change policy violates their rights. This essay explores intersectional nature of this petition in order to engage what might constitute progress on climate change and indigenous peoples' rights. In particular, the piece relies upon two conceptual approaches to dissect the petition: (1) a law and geography perspective and (2) an exploration of the limits of dialectical analysis. The essay concludes with some reflections on the extent to which this kind of advocacy strategy in general - and this petition in particular - can be part of much-needed progress in protecting the rights of indigenous peoples. It discusses the ability of this petition to address legitimacy problems embedded in interactions between the international legal system and indigenous peoples, and what might constitute a win in this context.
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