“The worst victims of environmental harm tend also to be those with the least political clout, such as members of racial and ethnic minorities, the poor, or those who are geographically isolated from the locus of political power within their country”
– Caroline Dommen
The global scale at which modern multinational corporations (MNCs) operate inevitability results in widespread environmental harm.[1] This article contends that international law must be developed to hold MNCs accountable for transboundary environmental harm as well as to offer protection to those upended by such harm.
Developing the international system
Poorly regulated and substandard MNC activities have resulted in numerous accidents such as water contamination, deforestation, soil erosion, and the exploitation of natural resources by oil, mining, and forestry companies.[2] Domestic recourse is the preferred avenue for preventing environmental abuses by MNCs.[3]This, however, is a largely ineffective as it presents an orthodox view of law wherein states are the principle actors in the global order and state sovereignty is paramount.[4] This disregards the fact that MNC operations in the host country have the potential to affect that state’s environment as well as that of other countries, as was the case in Ecuador and Peru with regards to MNC water contamination.[5] Additionally, this ignores the very real influence MNCs have on governments, especially developing states and the threat this presents to domestic enforcement.[6]For example, the Nigerian state relies on oil MNCs as its major source of revenue, granting these corporations enormous influence and control.[7]
The current international legal order is, however, not well equipped to address transboundary environmental harms.[8]One solution is the development of international jurisprudence to recognise a universal substantive environmental right, under which companies can be held accountable.[9]This long-term approach should be supplemented by short term enforcement by economic superpowers such as the United States, where many MNCs are incorporated.[10]
The dual potency of a substantive environmental right
Some scholars and legal experts find universal acceptance of substantive environmental rights at the national, regional, and international levels.[11]However, most of these instruments that address environmental protection and economic development are criticised as being non-binding, soft- law agreements, many of which are worded so broadly that they provide little or no guidance to states or MNCs.[12]The current international instruments do not sufficiently combine environmental protection and human rights or establish a substantive environmental right.
If drafted, or phrased, and implemented correctly, the two main goals of a universal substantive environmental right should be: i) to prevent environmental harm; and ii) to protect those forced to leave their home region due to sudden or long-term changes to their local environment, that is environmental migrants, post-harm.
Transboundary environmental degradation, including that perpetrated by MNCs, can impact millions at a time and the current international legal architecture does not offer any substantive protection for those displaced by this degradation.
The body of international human rights law does not effectively protect against displacement and migration which result from environmental degradation because it has not evolved to keep pace with the rapid advance of economic globalisation and the privatisation of resources.[13]The current lack of a universal provision means that at best, a substantive environmental right preventing harm and protecting migrants is to be derived from other existing rights, significantly weakening the position of those advocating for the protection of climate migrants and for the regulation of MNC activity.
It is therefore paramount that a universal substantive environmental right is developed to prevent of situations of environmental change as such as to promote reduction of greenhouse gas emissions and the prohibition of transboundary damage as well as to mitigate the consequences of such harm, including especially the equal protection of all environmental migrants.
Human Rights Pulse core team member and Earth Refuge Archivist Vaughn is passionate about sustainability and human rights, his scholarship and writing focuses on international law, climate change and transitional justice.
[3] E. Prudence Taylor ‘From environmental to ecological human right: A new dynamic in international law?’ (1990) 10 Georgetown International Environmental Law Review 309 350.
[4] A Shinsato ‘Increasing the accountability of transnational corporations for environmental harms: The petroleum industry in Nigeria’ (2005) 4 Northwestern Journal of International Human Rights 194.
[11] U.N. ECOSOC, Comm. on Human Rights, Sub-Comm. on Prevention of Discrimination and Prot. of Minorities, Review of Further Developments in Fields with which the Sub-Commission Has Been Concerned, Human Rights and the Environment: Final Report, ¶ 240, U.N. Doc. E/CN.4/Sub.2/1994/9 (July 6, 1994).
[12] Joshua P. Eaton, The Nigerian Tragedy, Environmental Regulation of Transnational Corporations, and the Human Right to a Healthy Environment, 15 B.U. INT’L L.J. 261, 297 (1997).
[13] Dinah Shelton, Human Rights, Environmental Rights, and the Right to Environment, 28 STAN. J.INT’L L. 103, 123 (1991).
Climate change is generating far-reaching effects on some of the most fragile populations and ecosystems on earth. Despite contributing the lowest carbon emissions per capita, climate-sensitive regions have been forced to bear the brunt of severe weather conditions and chronic biophysical changes in the environment.
Malawi, a landlocked country situated in Sub-Saharan Africa, remains one of the most vulnerable regions in the world affected by anthropogenic climate change. The land and the communities existing within it continue to be ravaged by extreme climate variability and environmental degradation, resulting in increased limitations in human mobility.
Throughout the past two decades, distinct inconsistencies in seasonal weather patterns have made it difficult for small-scale farmers and communities dependent on subsistence farming methods to maintain their livelihood. 1 The worsening irregularities in seasonality have exacerbated issues of food insecurity and disease, whilst intensifying the pervasive sense of poverty that plagues a majority of the nation.
The country’s socioeconomic well-being is actively tied to agricultural output, with 80% of its rapidly expanding population occupying rural land through small-scale farming. 2 A vast proportion of Malawian farmers depend on rainfed cultivation involving stable rainfall cycles to support agricultural production. This system heightens the risk of damage to annual crop yields, and limits the possibility of growth during dry seasons. Due to extreme financial affliction, the use of artificial water channeling remains particularly low, with less than 5 percent of farmers adopting irrigation methods. 3 The reliance on cyclical rainfall patterns amplifies the population’s susceptibility to the adverse effects of climate variability, such as flooding and drought.
Climate assessments reveal that seasonal dry and rainy conditions have become less predictable and more intense. During the 2016/2017 season, Malawi experienced extensive drought that led to acute crop failure and a sharp decline in agricultural production. 4 Simultaneously, crop yields had already dropped by 30 percent in the previous 2013/2014 season, adding to lingering issues of food insecurity and severe malnutrition. 5 Across the country, an estimated 6.5 million people – 39% of the population – including 3.5 million children are projected to have fallen below the annual minimum food requirements. 6 This has produced disturbing health effects on young and developing children, including issues of physical and cognitive impairment. More than 37 percent of children under the age of five (over 1 million) are stunted due to food insecure conditions. 7
Consecutive dry spells have prevailed in succeeding seasons, driving starvation rates. During the 2018/2019 season, 2.8 million people were identified as in crisis, with 450,000 people in immediate need of food. 8 The 2020 dry season brought prolonged drought to the Central and Southern regions of rural Malawi, resulting in limited crop production. The subsequent spread of the COVID-19 pandemic slowed the economy and drove steep rises in commodity prices, affecting the livelihoods of both rural and urban districts. 9 It is predicted that approximately 2.6 million people will require aid to combat food insecurity throughout the 2020/2021 season. 10
Widespread flooding in Malawi has also increased in magnitude and frequency in recent years. In 2019 alone, two major tropical cyclones decimated the country, leaving 731,879 people in immediate need, 99,728 people displaced, and 975,588 facing adverse effects. 11
Changes in rainfall characteristics have made flooding more intense and destructive, exposing some of the poorest districts in the country to environmental displacement. Communities living in Nsanje, a marginalized region deeply prone to climate fluctuations, have been heavily displaced by recent flooding. 12 Many are driven to evacuation camps after finding their homes, livestock, and community infrastructure dismantled by the floods.
These conditions disproportionately amplify the protection risks of women and children because they hold very little social autonomy or access to legal safeguarding services. An Oxfam report revealed that “women may well have little option but to resort to prostitution in order to get income to feed their children. In Bwemba, the women estimate that in between five and seven out of every 10 households the woman might resort to selling sex for food during the critical months of December to February.” 13
Environmental disaster and displacement also force women and young girls to travel further distances to retrieve water, leaving them vulnerable to rape and assault. These measures simultaneously fuel the spread of HIV and AIDs, resulting in greater poverty and weakness within the population. 14
A growing concern is that Malawi’s highly climate-sensitive economy is not equipped to adapt to the impending challenges of climate change. The compounding effects of heavy flooding in conjunction with extensive dry spells will result in increased mortality rates and environmental displacement on a national scale. In order to combat the various challenges presented by severe climate variability, it will be critical for mitigation and adaptation strategies to be implemented at a local level. Utilizing localized knowledge can help provide better insight into developing a strong adaptation framework that prioritizes the needs of those most deeply affected.
It is vital to recognize that the most destitute regions in the nation, and on earth, remain those most insidiously neglected and adversely affected by the impacts of climate change. The ongoing climate crisis in Malawi will continue to deteriorate if its effects on highly vulnerable communities are left unchecked. In developing deeper awareness of the present and forthcoming threats of climate instability, we must mobilize greater urgency to move towards a more climate-resilient future.
Rachel Aronoff recently graduated from UC Santa Barbara with a degree in English, and a specialization in Literature and the Environment. She is also certified in health and wellness coaching, personal training, and in the process of becoming a yoga instructor.
4. Climate Change Impacts in Malawi. (2020). Assessing the impacts of climate change on the agriculture sectors in Malawi, Food and Agriculture Organization of the United Nations. Retrieved April 27, 2021.
7. Kumchulesi, G. (2018). Persistence of Child Malnutrition in Malawi: Explanations from Demographic and Health Surveys. Journal of African Development,20(1), 69-75. Retrieved April 27, 2021.https://www.jstor.org/stable/10.5325/jafrideve.20.1.006
13. Climate change connections to HIV and AIDS. (2009). The Winds of Change: Climate change, poverty and the environment in Malawi, Oxfam International. Retrieved April 27, 2021.https://www.oxfam.org/en/research/winds-change
14. Climate change connections to HIV and AIDS. (2009).
On March 30th, 2021 the Migrants and Refugees (M&R) Section and the Dicastery for Promoting Integral Human Development released a booklet entitled “Pastoral Orientations on Climate Displaced Persons” (POCDP). It provides guidelines on how the Church will respond to migration caused by climate change, promoting solidarity between individuals and urging the international community to care for this crisis through immediate action.
In the document’s preface, the Pope points out that displacement due to an uninhabitable environment might seem like a process of nature when it is in fact the result of “poor choices and destructive activity, selfishness and neglect.” The climate crisis we are now facing comes to no surprise as our environment has been decaying continuously since the start of the Industrial Revolution. While this crisis is a global one, the ones facing the most consequences are those who have contributed the least. Today, we witness the rapid acceleration of climate migration for which there needs to be immediate global responses.
“Come, let us talk this over. If you are ready to listen, we can still have a great future. But if you refuse to listen and to act, you will be devoured by the heat and the pollution, by droughts here and rising waters there” (cf. Isaiah 1:18-20) the Pope quotes. This message, although one of faith, strongly reflects how this crisis has been ignored by many players in the global community. It emphasizes the importance for those in power to listen and acknowledge the distressing position of climate migrants by taking necessary measures to mitigate its impact.
The POCDPbegins with a general introduction on the climate crisis and how it plays a role in the displacement of many. It is then followed by nine steps that deal with the various aspects of climate migration. They are the following:
Acknowledging the climate crisis and displacement nexus
Promoting awareness and outreach
Providing alternatives to displacement
Preparing people for displacement
Fostering inclusion and integration
Exercising a positive influence on policy-making
Extending pastoral care
Cooperating in strategic planning and action
Promoting professional training in integral ecology
Fostering academic research of CCD (Climate Crisis and Displacement)
Local church leaders and congregations were asked to develop these guidelines, particularly those who witnessed first-hand climate-related incidents or displacement, such as archbishop Claudio Dalla Zuanna from Beira, Mozambique. In 2019, the city of Beira was critically hit by Cyclone Idai causing massive flooding, the destruction of 90 percent of its buildings and the displacement of hundreds of thousands of people. Having witnessed the emergency response to this natural disaster, the archbishop stated that it is not enough to solely resettle people. It is important to take additional measures by putting in place the conditions necessary to welcome climate migrants and to provide them with essential services.
Between 2008 and 2018, 253.7 million people were displaced by climate disasters. The document states that in the first half of 2020 only, 9.8 million people were displaced because of droughts, floods and other climate-related events. The number of climate migrants is still growing and is expected to reach 200 million by 2050. With those numbers in mind, the Vatican’s policy guidelines offer possible ways to raise awareness on climate migration and promote the importance of conversations between governments and policy makers. The M&R Section also encourages churches around the world to welcome displaced people, offer support and integrate them within their new society.
The POCDP is an important move towards a solution-based approach in the confrontation of the climate migration crisis. By calling for international help and action, the Catholic Church takes a stance in an important debate, which could bring positive changes to our current migration policies. While the primary message of this document relies on a message of faith, it extends a hand to climate migrants, making them feel seen and supported, a step most governments have not yet taken.
Flora Bensadon is an Earth Refuge Archivist with a degree in History and International Development Degree from McGill University. Through her studies, her culturally diverse background and her travels, Flora has taken a profound interest in the problems of migration, specifically those of climate refugees.
International responses to growing conflict in nations struggling to overcome the consequences of imperialism, capitalism, and neoliberal policy are hypocritical and hyperbolic at best, and deplorable at worst.
The provision of foreign aid in the Democratic Republic of Congo (DRC) is extended myopically. It securitizes sexual violence[i], lacks structures supportive of restitution, and fails to ameliorate the legitimate losses of community safety, institutional rights, and welfare post-conflict. In this essay, focus will be placed on two areas within DRC: international aid and its distribution and the implications for the community safety, human rights, and welfare of its citizens.
The provision of international aid in DRC focuses on addressing gender-specific threats, and gender-based violence in particular. This paper employs an intersectional eco-feminist approach to explore the issues of women’s experiences of education inequality, gender-based violence, and environmental injustice to explain why it is necessary to create multi-pronged approaches to mitigate sexual violence in DRC.
This work serves to clarify and underscore the lack of interconnectedness in the policies governing the provision of international aid with regard to education inequality, gender-based violence, and education inequality. In critically exposing the links and inequalities within and between the three, this work implores a policy direction that does not utilize a singular focus but rather encompasses these facets in tandem. In sum, this approach urges a view of the gender-based violence of women as a nodal point [ii] in which each of the aforementioned facets receives the appropriate and necessary support within a nexus of complex and intertwined – as opposed to independent – human rights issues.
BACKGROUND
Gender-based violence takes center-stage in the context of international aid, feminist thought, and conversation on equality. The effort to recognize gender-based violence, threats, and insecurities on an international scale has been thoroughly documented. Established as a war crime in 1919, rape was first tried in 1997. The trial of Jean Paul Akayesu was the first to prosecute rape as a war crime and act of genocide. His trial correlates with the emergence of indictments and trials of rape.[iii]
Hansen[iv] recognizes that the pursuit of rape-related indictments in the historical context of former Yugoslavia as an important step in the international codification of rape during wartime as a humanitarian problem during the early 1990’s. When the United Nations Security Council adopted resolution 1820 in 2008[v], it was celebrated as a success for the effort of feminists to place gender-based violence, gender specific insecurities, and threats women face on the international stage. Resolution 1820 explicitly recognizes sexual violence as a weapon of war and a threat to international peace and security.
However, this was not without significant effort from the academy. Sara Merger’s article on the Fetishization of Sexual Violence in International Security[vi]provides great insight on the feminist background and context of gender-based violence in international security. The feminist literature of international conflict-related sexual violence has understood and conceptualized two camps as explanatory variables within the context of gender inequality, military culture, and armed conflicts.[vii]
The ‘opportunistic’ camp asserts that conflict-related sexual violence stems from soldiers’ masculine identity and claim to power; soldiers will rape because they are men, or because they are soldiers, or because they are men and soldiers.[viii],[ix] The widely adopted ‘weapon of war’ perspective argues that conflict-related sexual violence is used strategically by combatants for specific objectives “such as accessing and extracting material resources or undermining enemy morale.”[x],[xi] As it stands now, sexual violence as a weapon of war is recognized in “at least 12 Security Council resolutions passed since 2000 rivaling nuclear and biological weapons, terrorism, arms proliferation for receiving the most attention among security actors.”[xii]
This securitization of sexual violence is seen as an accomplishment amongst feminists, which gives it incredible political value, and deliberately frames sexual violence as a commodified item similar to that of arms or biological weapons. However, it is arguable that this commodification enables a conceptual – and forceful – mutation of our understanding of sexual violence that obfuscates feminist values and understandings of sexual violence, the gendered hierarchies, dimensions, inequities that inform it, and ultimately obscures the structures, power dynamics, and social consequences that underpin everyday sexual violence. According to Merger, securitization effectively decontextualizes and homogenizes sexual violence, augments aid strategies, and creates a political economy of sexual violence. These unintended effects shamefully neglect the intersections of institutional inequality that perpetuate perpetration during conflict and under normal conditions. Little distinction is made between and amongst perpetrators of sexual violence, between and amongst victims, and between the purposes of sexual violence in this framework.[xiii]
In decontextualizing and homogenizing the experience of sexual violence to fit neatly into the securitization framework, incidences of gender-based violence are relieved of their unique contexts and heterogeneity. We must remember that gender-based violence is an interaction, that it is nourished by narratives that render causal connections unclear, and also presents a manipulation of power that can grow to become symbolic. In this paradigm, however, perpetrators in armed groups or civilians are seen as one and the same, victims are given aid as though their experiences are uniform and indivisible, and the causal explanations for sexual violence are relieved of their nuance and complexity.
In the context of this characterization, a “vast majority of aid funds for sexual violence in armed conflict are directed toward treating victims of rape with only about a quarter of international funding directed toward preventing sexual abuse.”[xiv]In fact, findings reveal some organizations received more aid than necessary to “treat victims of sexual abuse, while they lacked funding to implement other crucial projects”[xv]. Strikingly, “funding earmarked for conflict-related sexual violence is nearly double the budget for all security sector reform activities.”[xvi]Security sector reform activities can include environmental protections, institutional development, and protections of education since these are also women’s issues that are gendered and – as will be explored – at their confluence, have high rates of gendered violence. Unfortunately, current aid programs target sexual violence singularly and tend to neglect general forms of violence.[xvii],[xviii],[xix] Funds narrowly provide support for healthcare in response to gender violence but can be limited to emergency responses, and are predominantly appropriated for treating victims of rape, disregarding other forms of sexual harm.[xx]The potential lost in developing aid strategies that may address root causes of conflict and insecurity rather than just one of its symptoms is incredible. Today, we are seeing aid funds specifically directed toward conflict-related sexual violence at the expense of broader programs that could address the structural causes of this form of abuse, or the structural causes of violence more generally.
On the other hand, the skewed nature of aid and its foregrounding of sexual violence as a global security threat has enabled its perpetration, and encouraged an exploitation of the victimization narrative. Merger’s article highlights a few sources that note this problem. Autessere[xxi] finds that the disproportionate focus on conflict-related sexual violence in eastern DRC “raised the status of sexual abuse to an effective incentive and bargaining tool”, whereby armed groups employ sexual violence strategically to break down morale as well as to leverage sexual violence as symbol of strength and dominance. Rebel groups were motivated to engage in “gang rape” by the prospect of seeing their names in headlines, and the increased negotiating power this provided them. Eriksson Baaz and Stern[xxii] note how the international focus on sexual violence against women and girls contributed to “a process in which allegations of rape are perceived as, and become, a particularly effective bargaining, and ultimately quite effective income-earning strategy”. Douma and Hilhorst[xxiii] note individual women in DRC have exhibited “shopping behavior,” whereby they “exchange information on the organizations that offer most or free assistance and by consequence prefer to go there”. There are also reports of “women that admit that they had not been raped, but fabricated a story to obtain services they needed but were only available to rape victims”. Further, stories of community workers that “lure women into saying that they have been raped with the promises for material and financial assistance” prosper. Allegations of rape have “become increasingly entangled in disputes over land, income and property”.[xxiv] Merger describes the confluence of these interactions as a political economy that situates a currency of sexual violence wherein aid organizations, victims, and perpetrators “all find material benefit in the commercial trade in this violence.[xxv]
In the context of DRC, gender-based violence is directly related to environmental justice and educational equity. An expansion of international aid and policy can address these three issues in tandem. Outside of a paradigm of securitization that creates a debilitating political economy around sexual violence,[xxvi] a policy shift recognizing the unique confluence of education inequality, environmental justice, and gendered violence is not only reflective of an eco-feminist approach to policy but would recognize the intersection of education, the environment, and violence. The eco-feminist approach to policy deviates from the co-opted feminist approach that serves to obfuscate humanitarian issues whilst linking it to the environment. In order to elucidate this further, this paper will outline gender-based violence in relation to issues of education inequality and gendered violence with a similar argumentation related to ecology, and particularly natural resource extraction.
I.EDUCATION INEQUALITY, WOMEN, AND CHILDREN
Education Inequality
Education inequality is cited as the number one indicator of social immobility in DRC. It is “a key factor in determining socio-economic status in the DRC, whereby the higher the education level of the head of the household is, the less likely it is for the family to be poor.”[xxvii] Along the lines of gender, girls face a greater rate of inaccessibility to education[xxviii]: they make up more than 54% of the non-schooled population in the world. More broadly, “in sub-Saharan Africa, over 12 million girls are at risk of never receiving an education”[xxix].
Education as a social institution provides safety, access to food, social mobility, and ingratiation into society for orphans and children of rape that are debilitated by gender-based violence which is influenced by conflict. Without policy that reflects the nuances of gender-based violence and its impact on these factors, a deplorable neglect of these children in the name of the application of obfuscated and myopic feminist policy occurs to their detriment.[xxx]
The pointed lack of child protection and child welfare systems in tandem with the underdevelopment of educational institutions is alluded to throughout this paper. According to DeHerdt and Titeca[xxxi], drop out rates and repetition rates were high on average across the country. Primary education was costly for parents and families to afford,[xxxii] and public finance of education went from $150 per pupil to $10 per pupil in 2006. At the same time, the number of primary and secondary teachers on government payroll was cut by half, and salaries were reduced by 25%. Since Tshesikedi has taken office, DRC embarked on a large reform measure to introduce free primary education. The goal was to reduce expenses for the poorest families. The World Bank approved $8 million in grants and loans to promote free primary education in eastern and central provinces.[xxxiii]Since September of 2019, this has been in effect.
Unfortunately, teachers complain they have not received wages which has led to protest. Teachers marched in Bukavu, South Kivu to voice this grievance reflecting failures in the implementation of this policy. Some teachers have abandoned their jobs or are absent with schools in response to the lack of wages. Children are left without supervision in these cases.[xxxiv] Compounded onto this, parents are still required to pay for their children’s uniforms or other decent clothes and learning materials.[xxxv] These impediments are directly affecting children’s access to education and teacher’s rights to timely pay. Overcrowding due to the displacement of refugees has complicated the issue as existing schools are unable to accommodate an overflow of refugee children.
Without a universal primary education or child welfare system, children in DRC are more likely to be exploited by exposure to violence, child mining operations, or by working as servants for families. Primarily, orphaned or children of gender-based violence experience this. They are “excluded from their communities, which causes them to experience severe trauma and distress. This causes a phenomena known as “street children”[xxxvi] ; their vulnerability so normalized as to have name. This paper will explore in depth the reality of a significant number of school-aged children working in mines. The work is extremely dangerous in nature, and these children are exploited due to the political economy of the region. Those more vulnerable –street children, orphans, and children of rape– have higher participation rates.[xxxvii] Orphaned children, for example, are experience dispossession and abandonment. Such vulnerability may be exploited by armed groups and militias to increase their capacity both as working units and operators of mines.
The confluence of these issues is a consequence of gender-based violence, violence in general, and the failure of international aid to recognize these multi-dimensional aspects of conflict. In delivering aid towards narrow and singular focuses, support counter-intuitively and unintentionally exacerbates the current context and impedes the development of approaches that are multifaceted and can target these issues and their intersections. For example, the lack of a developed child-welfare system or child-protection system in DRC, along with education inequality, forces children, particularly ‘street children’ into a an even more vulnerable position by preventing their access to an education as they experience higher rates of exploitation. Moreover, the weakened structure of educational institutions exacerbate the circumstances of these children by the absence of ability to accommodate orphaned children or children of gender-based violence. Yet, funding – as Merger’s analysis pointed out – does not recognize the multiplicity and intersectionality that a multidimensional approach would employ.
The Direct Link Between Education and Violence
Since the international paradigm is one that encourages the predominant narrative of DRC’s humanitarian crisis as one of sexual violence, we can follow that narrative to further illuminate the link between education as an institution and sexual violence to highlight the need for multi-dimensional policy reform. While DRC’s characterization as the rape capital of the world is not a direct misnomer, it ignores institutional, structural, and other causal factors that inform or fail to prevent violence; in particular, the lack of a child welfare-education system as well as a cursory application of feminist objectivity in international policy.
According to Article 34 of the Convention on the Rights of the Child[xxxviii]
“Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse.
For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:
a) The inducement or coercion of a child to engage in any unlawful sexual activity;
b) The exploitative use of children in prostitution or other unlawful sexual practices;
c) The exploitative use of children in pornographic performances and materials.”
‘Multilateral’ and ‘bilateral’ are keywords here. Multilateral approaches would consider the necessity of an education system and child-welfare system that protects children from intercommunal disputes, everyday rape, and rape as a weapon of war[xxxix].
Sexual violence generally occurs at high rates; during conflict, however, we see more pronounced links between gender-based violence and education inequality, outcomes, and child protection. While girls are already at risk of not receiving an education as aforementioned, during conflict the use of communities as a point of leverage puts girls, children, and the institution of education at risk.
To elaborate, as armed groups and national security forces violently negotiate control over natural resource-rich territories, 5.2 million children have gone without an education. In 2016, conflict in the Greater Kasai region displaced 1.8 million children in urgent need of education (HNO, 2019).[xl] Further, in the Tanganyika province, “a resurgence of violence resulted in the destruction of more than 300 schools while in Kasai region damaged infrastructure forced 150,000 children out of school.”[xli] Targeting of community infrastructure, and in particular educational institutions, contributes to the displacement of children and their access to and mobility within the already tenuous education institution in DRC.
The implications of this type violence are many. First, with a resurgence of violence during conflict, and the appeal to armed groups to leverage and negotiate the safety of individuals and communities for strategic gain, we see a similar political economy of war encouraging the destabilization of communities. Second, the violence inhibits the linear development of a social institution. Under ‘normal’ conditions, the progress of students and the social mobility they would experience as a result, would not be interrupted by egregious acts of violence. These acts of violence not only threaten their safety, but also the constitution of their academic identities: their emotional well-being, academic achievement, and academic progression.[xlii] In the upcoming example, it is clear how gender-based violence interdicts successful educational attainment, but destabilizes the structural integrity and continuity of education as an institution. Third, on the international stage, the violence occurring at the confluence of international education and gendered violence is neglected in the international security framework due to the sole focus of funds being provided to institutions for emergency responses, or general responses to gendered violence. Fourth, children that may need an education institution as a provisional space of security, in particular orphaned children and children of rape, are made increasingly vulnerable due to the high rates of exploitation. Together, these implications point to the need for change in international security frameworks to remedy the neglect of the intersection of violence, gender-based violence and education inequality.
Attacks against education institutions cannot be decontextualized. To illustrate the urgency behind a change in policy, we must bear witness to the human losses and victimizations at the confluence of education inequality and gender-based violence.
“On 31 August 2020 unidentified armed men attacked and raped female students at an examination centre hosting 35 final year students, 16 boys and 16 girls in Isiro town in Haut-Uélé province the night before exams. The students went on to take their exams the next day. Also on 31 August 2020 in South Kivu province, about 700 students and their teachers fled after fighting near an exam centre. On 27 August 2020, at least two students and one teacher were reported to have been killed in Masisi area of North Kivu province following a confrontation between security forces and an armed group near an exam centre. The students were killed while sitting the second day of the National Primary End-of-Studies Test in Ngoyi Primary School.[xliii]
Education inequality, child welfare, violence, and security purely and incontrovertibly intersect. Yet, this is not reflected in international policy and aid. In addition to violent and traumatizing victimization, there are further consequences of the lack of recognition of these intersections.
Important consequences of this, outside of violent and traumatizing victimization are many. First, a victimization influenced disruption of education which may prevent successful educational attainment exacerbating long-term educational equity and social mobility. As students endure, anticipate, or avoid violent interactions in school, their potential for educational attainment is impacted. Second, violence inhibits the fortitude of the educational structure and the support it offers. A curtailment of a ‘normal’ socialization process and access to essential services and support networks[xliv] occurs further harming the academic and personal progression of these students. Third, there are intergenerational impacts due to the intensity of the trauma, school dropout rates increase leading to structural disadvantages for future generations. Fourth, this violence largely affects women exacerbating present and significant gender inequality in the education sector and at large.[xlv] Fifth and finally, as these individuals experience sexual violence there is potential for increases in early pregnancy for girls that furthers the disruption in access to education that would otherwise occur during normal conditions.[xlvi]
Appropriating aid funding and security reform funding towards education and child welfare institutionally would greatly benefit and impede the use of sexual violence as a tool both under ‘normal’ conditions and during conflict. The benefits of a stronger, more protected education system and sound child-welfare system include a weakened pipeline to exploitation that armed groups and civilians can exploit, a reduction in the amount of street children and at-risk behavior amongst youth in vulnerable positions, multigenerational impacts related to social mobility for those with and without parental units, and a reduction in gendered inequalities in education. Building, rehabilitating, and most importantly securitizing these institutions would impede gender-based violence holistically.
Fortunately, the World Bank’s funding strategy is working towards this. Within the $800 million dollar aid Emergency Equity and System Strengthening in Education (EESSE) plan,[xlvii] are a multitude of goals focused on school safety, inclusion, fee reduction, and increase in accessibility. Unfortunately, the project development objectives and context lack a multi-dimensional analysis of inequality and gender-based violence in DRC. There is an avoidance of the link between gender-based violence, conflict, and education. The project indicates sexual violence with the same connotation as the international securitization framework. The component related to safety is “Disbursement Linked Indicator[xlviii] 4: Create Safe and Inclusive School Environments”, which is contingent on three Disbursement Linked Results. The Disbursement Linked Results[xlix] are unrelated to the potential for violence by armed groups and militias. There is a complete absence of funding for security reform for schools or an allusion to the incidence of conflict related Gender-based violence in schools.[l] This suggests a significant opportunity missed in a large funding package to create fortified institutions or to implement preventative measures that could withstand the potential of violence.
The United Nations[li] report does not emphasize the intersections of sexual violence in terms of locations, or with specific focus on educational institutions. Sexual violence is instead decontextualized and homogenized as instances of conflict-based sexual violence, rather than contextualized in terms of location, hierarchy, and gender inequality as feminist theory and praxis would advise.
II.RESOURCES AND ENVIRONMENTAL INJUSTICE
Ecofeminism
Ecofeminism finds its roots in an ethic that recognizes the conceptual connection between environmental justice and feminism. The feminist philosophy argues that a deeper understanding of environmental issues and vice-versa is achieved through an analysis of the domination of nature by human beings in relation to the domination of women and children. The logics that dominate the earth are inextricably linked to the logics that dominate women. Feminist scholarship and environmental ethic are deeply connected.[lii],[liii]Gwen Hunnicutt argues that there is a pervasive logic of domination that explains many aspects of exploitation, extraction, and domination of both women and the earth. Donna Haraway[liv] describes ecofeminist thought as ascribing agency and a constructed reality to the earth enabling it as an actor in the story of man’s domination. In connection to women, Haraway articulates a perspective of feminist thought that describes women’s battle as one in which women, in opposition to a male-dominated society, are agentic actors within socially constructed realities that are devoid of essentialist and misogynistic thought that epitomizes patriarchy. This logic of domination extends from Marxist theory describing man’s domination of nature as a requisite of capitalism. Extending this to the domination of women reveals the link between the domination of nature and the domination of women.
Its conceptualization is strengthened by the incorporation and delineation of intersectional ecofeminism. Intersectional ecofeminism takes into consideration multiple forms and conversations of feminism including Indigenous Feminist thought, Indian Feminist thought, Latin American feminist thought, and African feminist thought. Ecofeminism bridges together the different tenets that link together the rights of the environment and the rights of the humans that inhabit it.[lv],[lvi],[lvii]As Mallory describes, there is much to gain from an “ecofeminist analys[is] of the material and conceptual intersections between the oppression of women, people of color, indigenous peoples, the poor, and other marginalized human groups and the degradation of natural places.”
Further, the many lived experiences of these marginalized groups, the analyses that stem from them, and their shared historical contexts make up the fabric of the fluid quilt that is ecofeminism; rather than existing as a theory to be debated and contested, ecofeminism exists as an inclusive discourse, encouraging the incorporation of new perspectives as Kings and Glazebrook describe.[lviii]
Incorporating this into our analysis of the provision of aid in relation to gendered-violence in DRC means considering the communal-industrial-governmental intersections, and applying the theoretical considerations of environmental and feminist ethic. This is in stark contrast to the one-dimensional approach that considers eliminating sexual violence as the panacea for safety, protection, and mobility for the Congolese civilians.
Political Economies of Resources, Territory, and Sexual Violence
The political economy of sexual violence is intrinsically connected to the political economy of territory and the claim to natural resources in eastern DRC. Environmental justice and natural resource extraction are explicitly linked. While community members lack the agency over their native environments and bear the brunt of the resultant socio-economic consequences, their environments endure significant harm. Experienced in tandem, social inequities that exist within these communities are exacerbated by the presence of harmful extractive activities such as mining. Experiences of volatility, instability, and boom-bust economic cycles as commodity prices shift are characteristic for communities that home extractive activity.[lix] Further, structural problems within these areas occur within the larger landscape of the nation. For instance, persistent poverty is a consistent theme in these areas due to the loss of local economic control to multinational firms.[lx]
The consequences go beyond the structural and environmental. In relation to the political economy of sexual violence, territory and claims to resource-rich land exacerbates the use of sexual violence as a tool of leverage and control. Territory, in particular, impacts the ability of communities to utilize their environment as they would under normal conditions. The contours of territory in the political economy of sexual violence and conflict at large impacts the safety of women and children – arguably this is safety they would experience under normal conditions. Under such conditions, according to Kings, “it is most often women who bear the brunt of the extra burdens created by climate change and environmental degradation.” For example, it is women that bear the brunt of having to travel further to collect water or food each day[lxi]. These travels would be, under normal conditions, considered a typical part of daily life. Under the conditions of conflict and within the political economy of sexual violence, these travels are precarious in DRC. Women and children are more vulnerable to government forces and rebel groups that are alleged to have engaged in heinous acts of sexual violence as a deliberate method to gain territory and disseminate fear. According to the Enough Project’s Interrupting Silence Report:
“…rebel and state army commanders oversaw or orchestrated rape and sexual enslavement while in effective control over their subordinate troops with knowledge that they were committing rape in the context of civilian attacks, triggering their liability for war crimes and crimes against humanity. The International Criminal Court recently heard arguments by Chief Prosecutor Fatou Bensouda alleging that … commander Bosco Ntganda oversaw and ordered troops to rape civilians. Bensouda argued that the FPLC used rape to terrorize non-ethnic Hema civilians under Ntganda’s command, and in one instance Ntganda ordered his bodyguards to rape three women in an apartment where he was staying.”[lxii]
At the intersection of territory and sexual violence, there is a threat to the local economic structure of communities. Policy should reflect the violence in the context of a strategic military tool to manipulate the psychology of communities and gain control over a particular areas and regions with connections to the harm mineral extraction. Policy of this caliber would set environmental regulations in regions and areas where there exist protections against extraction and its detrimental effects; in other words, policy would reflect the reality of the environmental implications of the political economy of sexual violence.
Further, both ecology and sexual violence are not issues to be securitized in tandem. To avoid the risk of further decontexualization, environmental regulations should be developed and implemented in the context of armed group and militia exploitation, economic disruption and use of sexual violence. Not only would this policy reflect a desire to prevent environmental degradation and the aforementioned economic consequences of harmful extractive policies, it would also respect the ownership of those native to their land and variety of harms they experience. Sexual violence on the other hand must be securitized with respect to the social organization in which it occurs as mentioned. Indeed there is an intersection between ecology and violence that cannot be disregarded and must be reflected in policy. Though, distinctively, there must be a respect for the complexity of both issues as occurring in a liminal space. There is a boundary between the sexual violence and environmental violence that occurs in Eastern Congo. Where one meets the other there is certainly overlap and the two human rights atrocities must be contextualized with respect to where there is mutual exclusivity. Experienced by women, men, boys, and girls by civilians, armed groups, military soldiers, and family members, sexual violence is reported to occur on paths to forge for food, it is experienced in the privacy of homes, and experienced on schools sites. Further, according to Claudia Seymour, there is an invisible violence that occurs that is not recognized or understood. The social organization of violence, its social consequences, and the obfuscation of the international human rights provision in its securitization process serves to work against progress in the region. While environmental degradation, exploitation, is experienced where mining cites are present,[lxiii] sexual violence is also the tool or rather vehicle by which familial disruption, morale destruction, and painful invisible violence occurs.[lxiv] Sexual Violence, therefore, shapes the contours of the social reality and organization of the individuals, communities, and provinces experiencing it. Research and policy must reflect this and deviate from a decontextualized conflict perspective that understands sexual violence as a condition or symptom. It is a condition while also being conditional. It requires microscopic observation and analysis to wholly understand and prevent.
The framework of environmental justice reconciles community protection and sustainability with environmental protection and sustainability. Policy that reflects this connection can influence outcomes in the following example. In certain cases,
“crimes involving SGBV [sexual and gender-based violence] involving SGBV also undermine authority figures traditionally meant to protect women and children in the community.[lxv] Furthermore, sexual violence both drives and stems from forced displacement: when soldiers and rebels rape civilians, civilians often flee out of fear of repeat attacks or stigmatization. Internally displaced persons and refugees are in turn disproportionately vulnerable to sexual violence in part because they live in IDP and refugee camps that lack security and rule of law.”[lxvi]
In the framework of environmental justice and feminist ethic, social equity and harm prevention are emphasized as values driving policy. In establishing protections for territory, there is recognition of the community impact related to the location of that community and its environment. Practically speaking, environmental considerations in regulatory reforms relating to territory at the national and provincial level would reflect the “precautionary principle; erring on the side of human safety and wellbeing rather than industrial development.”[lxvii] In the next section, we will explore what this may look like.
III.CHILD LABOR
Exploring the linkages between feminist thought and environmental ethic exposes multiple junctures that necessitate policy upheaval and reform. Previously articulated is the necessity to include environmental protections to territory to further dissuade a critical juncture wherein the rights of vulnerable human and non-human life are magnified and accentuated. Unfortunately, without such policy, the rights of the child in Eastern DRC are exploited to a heinous extent. These children are neglected due to international and national focus that homogenizes humanitarian issues related to conflict.
Child Labor and Forced Labor Reports reveal that no advancements were made in efforts to eliminate the worst forms of child labor.[lxviii] Despite the aforementioned initiatives such as universal primary education, anti-trafficking in persons law, and the finalization of a five-year strategy to combat human trafficking, there are still large gaps and inequities in the delivery of these programs, and the violence that occurs in spite of these policies, as well the complicity of factions of the military means that children continue to be forced into labor and sexual slavery.[lxix]
Although the national government has taken steps to eliminate the worst forms of child labor– the exploitation of children sexually, militarily, and in relation to mining– complicity within factions of the military prevents full implementation and adjudication of crimes related to child labor legislation. While there is legislation prohibiting forced labor, child trafficking, and commercial sexual exploitation of children, non-state armed groups continue to kidnap, recruit, or use children in armed conflict and mining operations in 2019.[lxx] For example, a North Kivu military court sentenced an Allied Forces of the Democratic Republic of Congo (FARDC) colonel to life imprisonment for child soldier recruitment. Also, the Bukavu Garrison Court in South Kivu condemned three members of the Raia Mutomboki militia of systemic child soldier recruitment in 2018. They were sentenced to 15 years to life imprisonment.[lxxi] However, during the proceedings, the government was found liable for failing to take all necessary steps and measures to prevent the crimes, and was ordered to pay reparations.[lxxii]
Military and government complicity has long standing consequences. The government consistently failed to prosecute perpetrators to the fullest extent, sometimes repositioning them, effectively treating perpetrators with impunity. For instance, the FARDC was linked to two cases of exploitation of children in two roles – as concubines and forced labor. The responsible perpetrator was redeployed to a different regiment in 2019.[lxxiii]Further exemplifying this impunity is the case of Colonel Ramazani Lubinga, former commander of 601st Regiment of FARDC. A warrant was issued for his arrest for recruiting child soldiers, yet his military superiors refused to comply.[lxxiv]
RECOMMENDATIONS
Overall, what is required is a “breakdown of the intellectual silos that isolate topics of conflict economics and security in Congo from gendered violence and women’s empowerment”[lxxv] that then includes environmental justice and feminist ethics.
Children, Education, and Labor
As aforementioned, children outside of school face detrimental consequences to their future mobility, the worst consequence of which is vulnerability to child labor. Thus, social programs and the enhancement of access and reintegration into, and continued pursuit of education for children of vulnerable groups, orphans and those exploited by child laborers is a necessary preventative step.[lxxvi] Outside of social programs, another recommendation would be the socialization of the mining industry. An example of this already exists within the state-owned mined artisanal “strategic minerals”. This means more locally controlled and smaller-scale mining projects have been socialized, removing precarious middlemen which enables greater price stability. Volatility in price affects the local economic context, and is a contributor to persistent poverty while creating devastatingly regular instability in these regions.[lxxvii], [lxxviii] The removal of middlemen also decreases the potential for child labor. Monitoring of the supply chain carried out by a separate body ensures that children and other vulnerable populations are not employed in the mining sites.
Ecofeminism
The incorporation of the environmental-feminist ethic of ecofeminism implies the application of procedural justice, and the inclusion of the most vulnerable groups in the decision-making process. This entails that community leaders – particularly those that have been subject to the harms of extractive policies, child labor, and the complicity of the government – will have the opportunity to authentically and materially participate in the decision-making process regarding price stability, labor supply, and redistribution of revenue in the development of state-owned mining companies. State-owned mining companies must allow and enable community members and stakeholders to hold decision-making power. This is essential to rectifying the injustices of the extractive industry. Top-down approaches and governmental solutions are incomplete without the voice and conversation of those directly impacted by the mining industry, its environmental, and very real human rights consequences. Whilst harsher, more stringent penalties, prosecutorial judgements, and accountability processes are also necessary to serve as a deterrent, reparations and accountability should have an effect beyond that of financial compensation. Procedural justice, equity, and empowerment should be primary goals in social and economic policy recommendations and reforms; procedural equity can also serve to support communities during the disinvestment of mining companies and the negotiations between armed groups, communities, and the government in the elimination of child labor.[lxxix]
Procedural Equity
Community involvement in the deliberation, development, execution, and possible removal of mining operations or other concerns of environmental justice must become a component of international and national efforts to resolve conflict in eastern DRC. Enforcement and protection of procedural equity must be ensured in order to maintain its effectiveness. Its implementation must occur to ameliorate the harsh economic, environmental, and community impacts of extraction to prevent a recurrence of similar consequences in the future.
Securitizing the protection and process of procedural inequity would ensure communities have a stake and claim in the processes that affect their local economies and environmental surroundings. Unfortunately, due to the securitization of sexual violence, the development of procedural equity receives less funding and less priority than explicit efforts to reduce and mitigate rape. Prioritizing and securitizing procedural inequity and increased security reform in this area would alongside efforts to reduce sexual violence and reduce child labor would reflect the true nature of the structural components informing sexual violence, and respecting its relation to the environment.
Policy Implications
Following the recommendations of multiple policy reports[lxxx] on the rights of children and education policy, 1) international aid should reflect the need for the development of a national child welfare system and become an urgent priority 2) Increasing the age required for children to go to school would promote the enrollment of students in school; this also enables the protection of students from exploitation. 3) The socialization and implementation of government funded institutions located throughout Eastern Congo,[lxxxi] in conjunction with the initiatives of birth certificate registration, school enrollment, and the rehabilitation educational institutions, a national child welfare institution should be prioritized.
Policy recommendations for international aid that center procedural equity, or go as far as securitizing procedural inequity, as a deliberate objective in the development of state-owned mining operations or companies, the dissolution of, removal of, or insertion of multinational mining companies. Consideration of the needs of the community, particularly those in conflict zones. During negotiations with armed groups, procedural equity for communities must be considered.
And lastly, on the international stage, the consequential narrative of DRC as the rape capital of the world must be deconstructed and delineate the complex, multifaceted nature of the cultural, social, institutional, political-economics, and influence of conflict compared to ‘normal’ conditions in the massive rates of sexual violence. International aid should move away from the silo of sexual violence and work more broadly towards education equality, child welfare, and environmental justice.
CONCLUSION
The decontextualization and homogenization of sexual violence and conflict economics render the structural and contextual factors that influence the incidence of sexual violence invisible. The resultant narrative of rape as the most pressing humanitarian issue in DRC obfuscates these factors. A new narrative must delineate the multifaceted nature of the cultural, social, institutional, political-economics, and influence of conflict in these rates. International funds and NGOs – both abroad and on the ground – must reflect this change by engaging sexual violence discourse, and directing aid delivery away from unilateral guidelines that isolate access in their administration of aid.
Furthermore, deliberately moving attention away from sexual violence and shifting the contours of international aid to reflect the intersection of the aforementioned dimensions that influence the rate of sexual violence would reduce its compounding counterproductive effects. These include the influence of NGOs on the political economy of sexual violence, the perpetuation of rape as a weapon of war, and the increasing the rate at which individuals create false narratives to access health services and NGO support.
This will enable an appropriation of funds that would better support a response reflective of the multidimensional aspects of violence. If, “in DRC, funding earmarked for conflict-related sexual violence is nearly double the budget for all security sector reform activities,”[lxxxii] it is clear that delineating and contributing aid to the multiple structural components that contribute to this harm would be a better use of international support. Projects such as the full implementation of universal education, child welfare, and implementation of enforced procedural equity are all necessary steps to combat the instability that is globally perceived as symptomatic of an epidemic of sexual violence.
Finally, it is clear from an intersectional ecofeminist perspective that sexual violence never occurs in a vacuum. Considering the structural and institutional influences that contribute to, inform, and could potentially dissuade acts of exploitation and sexual violence is necessary to combat it. Ultimately, by contextualizing and acknowledging the heterogeneity of sexual violence deep institutional and social issues are observable and thus solvable. Through an ecofeminist understanding, the political economy of sexual violence and territory can be scrutinized with the goal of implementing solutions that reflect a departure from the “effacement of critical feminist insights regarding the importance of the domestic, the personal, and the ‘every- day.”[lxxxiii] As a consequence, the “rape capital of the world” is relieved of this reductive, sensationalist, and myopic characterization.
Elias Nepa is a Rising Senior at UC Berkeley studying Sociology with a minor in Gender and Women’s Studies.
References
[i] Merger, Sara. “The Fetishization of Sexual Violence in International Security.” International Studies Quarterly, vol. 60, no. 1, Mar. 2016, pp. 149-159. EBSCOhost, doi:10.1092/isq/sqw003
[iii]The Uncondemned. Directed by Michele Mitchell, Nick Louvel, performances by Pierre-Richard Prosper and Sara Darehshori, Film at Eleven Media, 2015
[iv] Lene Hansen (2000) Gender, Nation, Rape: Bosnia and the Construction of Security, International Feminist Journal of Politics, 3:1, 55-75, DOI: 10.1080/14616740010019848
[v] UN Security Council. 2008. Resolution 1820 (2008) [On Sexual Violence in Conflict and Post-Conflict Situations] (S/RES/1820). 5916th meeting. June 19, 2008
[vi] Merger, Sara. “The Fetishization of Sexual Violence in International Security.” International Studies Quarterly, vol. 60, no. 1, Mar. 2016, pp. 149-159. EBSCOhost, doi:10.1092/isq/sqw003
[vii] Ibid
[viii] Kirby, Paul. 2012. “How is Rape a Weapon of War?.” European Jounral of International Relations 19(4): 797-821
[ix] Merger, Sara. “The Fetishization of Sexual Violence in International Security.” International Studies Quarterly, vol. 60, no. 1, Mar. 2016, pp. 149-159. EBSCOhost, doi:10.1092/isq/sqw003
[x] Leatherman, Janie L. 2011. Sexual Violence and Armed Conflict. Cambridge: Polity Press.
[xi] ANDERSON, LETITIA. 2010. “Politics by Other Means: When does Sexual Violence Threaten International Peace and Security?” International Peacekeeping 17(2): 244–60.
[xii] Merger, Sara. “The Fetishization of Sexual Violence in International Security.” International Studies Quarterly, vol. 60, no. 1, Mar. 2016, pp. 149-159. EBSCOhost, doi:10.1092/isq/sqw003
[xiii] Ibid
[xiv] Ibid
[xv] Autesserre, Severine. 2014. 141 Peaceland: Conflict Resolution and the Everyday Politics of International Intervention. New York: Cambridge University Press.
[xvi] Douma, Nynke, and Dorothea, Hilhorst. 2012. Fond de commerce? Sexual Violence Assistance in the Democratic Republic of Congo. Disaster Studies Occasional Paper 02. Wageningen, Netherlands: Wageningen University.
[xvii] Ibid
[xviii] Autesserre, Severine. 2014. 9-138 Peaceland: Conflict Resolution and the Everyday Politics of International Intervention. New York: Cambridge University Press.
[xix] Eriksson Baaz, Maria, and Maria Stern. 2013. p. 97 Sexual Violence as a Weapon of War? Perceptions, Prescriptions, Probems in the Congo and Beyond. London: Zed Books.
[xx] Merger, Sara. “The Fetishization of Sexual Violence in International Security.” International Studies Quarterly, vol. 60, no. 1, Mar. 2016, pp. 149-159. EBSCOhost, doi:10.1092/isq/sqw003
[xxi] Autessere, Severine. 2012. “Dangerous Tales: Dominant Narratives on the Congo and Their Unintended Consequences.” African Affairs 111 (443) 202-22; p 205
[xxii] Eriksson Baaz, Maria, and Maria Stern. 2010. p. 52 The Complexity of Violence: A Critical Analysis of Sexual Violencei nthe Democratic Republic of Congo (DRC). Sida Working Paper on Gender Basedviolence. Uppsala, Sweden: Nordiska Afrikainstitutet (The Nordic Africa Institute).
[xxiii] Douma, Nynke, AND Dorothea Hilhorst. 2012. p. 48 Fond de commerce? Sexual Violence Assistance in the Democratic Repblic of Congo. Disaster studies Occasional Paper 02. Wageningen, Netherlands: Wageningen University.
[xxiv] Demmers, Jolle. 2014. “neoliberal Discourses on Violence: Monstrosity and Rape in Borderland War.” In Gender, Globalization and Violence: Postcolonial Conflict Zones, edited by Sandra Ponzanesi, 27-44, p. 41. New York: Routledge.
[xxv] Merger, Sara. “The Fetishization of Sexual Violence in International Security.” International Studies Quarterly, vol. 60, no. 1, Mar. 2016, pp. 149-159. EBSCOhost, doi:10.1092/isq/sqw003
[xxxi] Herdt, Tom & Titeca, Kristof. (2016). Governance with Empty Pockets: The Education Sector in the Democratic Republic of Congo: Governance with Empty Pockets in the DRC. Development and Change. 47. 472-494. 10.1111/dech.12235.
[xxxiii] n/a. “‘When I Grow up, I’ll Be a Teacher’ – The New Ambitions of Congolese Schoolchildren Now That School Is Free.” World Bank, World Bank Group , 16 June 2020,
[xxxv] N/a. ACAPS, 2020, Education & Child Protection Challenges in Eastern DRC; Impact of COVID-19, Conflict and Policy Reform,
[xxxviii] UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3, available at: https://www.refworld.org/docid/3ae6b38f0.html [accessed 10 February 2021]
[xxxix] Prashad , Jennifer. “Children of Democratic Republic of the Congo.” Humanium, 30 May 2020, www.humanium.org/en/democratic-republic-congo/.
“Sexual violence is largely associated with widespread rape, a method of violence used by combatants and military forces. Conflict in the Eastern region is a critical issue for children as they experience high levels ofsexual and gender-based violence, and researchers have found that survivors of sexual violence under the age of 18 in this region were more likely to experience gang rape and assault than adults were;” “Despite domestic laws in place to protect children fromsexual violence and the presence of the issue on the UN Security Council’s agenda, no real protection is afforded to children in peacetime and in period of conflict.”
[xli] N/a. ACAPS, 2020, Education & Child Protection Challenges in Eastern DRC; Impact of COVID-19, Conflict and Policy Reform,
[xlii] Breetzke et. al in their study of the proximity of sexual violence to schools note that “Schools are, however, necessary and permanent neighborhood institutions which feature prominently in the urban environment. Schools themselves, and the spaces around them should engender feelings of safety and security among learners and be conducive to positive social engagement and interaction. Any incidence of crime in these spaces should be of great concern since crime and violence in and around schools has been shown to affect learners physical and emotional well-being (Muschert and Peguero 2010; Espelage et al. 2013), levels of academic achievement (Wang et al. 2014), and academic progression (Ncontsa and Shumba 2013).”
Breetzke, Gregory & Fabris-Rotelli, Inger & Modiba, Jacob & Edelstein, Ian. (2019). The proximity of sexual violence to schools: evidence from a township in South Africa. GeoJournal. 10.1007/s10708-019-10093-3;
Muschert, G. W., & Peguero, A. A. (2010). The Columbine effect and school anti-violence policy. In M. Peyrot & S. L. Burns (Eds.), New approaches to social problems treatment. Research in social problems and public policy (Vol. 17, pp. 117–148). Bingley: Emerald Group PublishingLimited;
Espelage, D. L., Hong, J. S., Rao, M. A., & Low, S. (2013). Associations between peer victimization and academic performance. Theory into Practice, 52(4), 233–240;
Wang, W., Vaillancourt, T., Brittain, H. L., McDougall, P., Krygsman, A., Smith, D., et al. (2014). School climate, peer victimization, and academic achievement: Results from a multi-informant study. School Psychology Quarterly, 29(3), 360–377;
Further Nconsta and Shumba find that a loss of concentration; poor academic performance; bunking of classes; and depression result from the presence of various forms of violence in a school setting. The analysis of the effect of rape on educational outcomes is not present.
Ncontsa, V. N., & Shumba, A. (2013). The nature, causes and effects of school violence in South African high schools. South African Journal of Education, 33(3), 1–15.
[xliii] N/a. ACAPS, 2020, Education & Child Protection Challenges in Eastern DRC; Impact of COVID-19, Conflict and Policy Reform,
[xlv] Duflo, Esther, Pascaline Dupas, and Michael Kremer. “The Impact of Free Secondary Education: Experimental Evidence from Ghana.” Working Paper, October 2019
Disbursement Linked Indicators are the basis of disbursement for Investment of Project Funds in the framework of the World Bank’s Aid. These must indicators must be tangible, transparent, verifiable, under government’s influence. They can be scalable to progress. This progress can be actions that lead to outputs, intermediate outcomes, and outcomes.
[li] Karashima, Noboru. “General Assembly.” Trends in the Sciences, vol. 7, no. 8, 2002, pp. 44–45, doi:10.5363/tits.7.8_44. Quotes from: (l) Take all necessary measures to prevent sexual violence and, when it occurs, bring the perpetrators to justice, provide victims with comprehensive care and facilitate their access to remedies for redress; (n) Strengthen national institutions and mechanisms responsible for coordinating human rights and monitoring the implementation of the recommendations of United Nations mechanisms. With no reference to the specifics of institutions.
[lii] Chaone Mallory. “What’s in a Name? In Defense of Ecofeminism (Not Ecological Feminisms, Feminist Ecology, or Gender and the Environment): Or “Why Ecofeminism Need Not Be Ecofeminine—But So What If It Is?”.” Ethics and the Environment 23, no. 2 (2018): 11-35. Accessed March 29, 2021. https://www.jstor.org/stable/10.2979/ethicsenviro.23.2.03.
[liii] Hunnicutt, G. (2019). Gender Violence in Ecofeminist Perspective: Intersections of Animal Oppression, Patriarchy and Domination of the Earth (1st ed.). Routledge. https://doi.org/10.4324/9781351026222
[liv] Haraway, Donna. “Situated Knowledges: The Science Question in Feminism and the Privilege of Partial Perspective.” Feminist Studies 14, no. 3 (1988): 575-99. Accessed March 29, 2021. doi:10.2307/3178066.
[lv] A.E. Kings. “Intersectionality and the Changing Face of Ecofeminism.” Ethics and the Environment 22, no. 1 (2017): 63-87. Accessed March 29, 2021. doi:10.2979/ethicsenviro.22.1.04.
[lvi] Glazebrook, Trish. “Karen Warren’s Ecofeminism.” Ethics and the Environment 7, no. 2 (2002): 12-26. Accessed March 29, 2021. http://www.jstor.org/stable/40339034.
[lvii] Chaone Mallory. “What’s in a Name? In Defense of Ecofeminism (Not Ecological Feminisms, Feminist Ecology, or Gender and the Environment): Or “Why Ecofeminism Need Not Be Ecofeminine—But So What If It Is?”.” Ethics and the Environment 23, no. 2 (2018): 11-35. Accessed March 29, 2021.https://www.jstor.org/stable/10.2979/ethicsenviro.23.2.03.
[lviii]A.E. Kings. “Intersectionality and the Changing Face of Ecofeminism.” Ethics and the Environment 22, no. 1 (2017): 63-87. Accessed March 29, 2021. doi:10.2979/ethicsenviro.22.1.04; Glazebrook, Trish. “Karen Warren’s Ecofeminism.” Ethics and the Environment 7, no. 2 (2002): 12-26. Accessed March 29, 2021. http://www.jstor.org/stable/40339034.
[lix] Stephanie A. Malin, Stacia Ryder & Mariana Galvão Lyra (2019) Environmental justice and natural resource extraction: intersections of power, equity and access, Environmental Sociology, 5:2, 109-116, DOI:10.1080/23251042.2019.1608420
[lx] Ibid
[lxi] Ibid; UN Security Council. 2008. Resolution 1820 (2008) [On Sexual Violence in Conflic and Pos-Conflict Situations] (S/RES/1820). 5916th meeting. June 19, 2008
[lxiii]Laudati, Ann, and Charlotte Mertens. “Resources and Rape: Congo’s (Toxic) Discursive Complex.” African Studies Review, vol. 62, no. 4, 2019, pp. 57-82., doi:10.1017/asr.2018.126
[lxiv] Claudia Seymour (2012) Ambiguous agencies: coping and survival in eastern Democratic Republic of Congo,Children’s Geographies, 10:4, 373-384, DOI: 10.1080/14733285.2012.726073
[lxv] Human Rights First, “Dr. Denis Mukwege: Fighting Sexual Violence in the Democratic Republic of Congo,” video, October 23, 2013, available at https://www.youtube.com/watch?v=r-OrOE4eq2w – t=74.
[lxvii] White, Rob. (2013). Resource Extraction Leaves Something Behind: Environmental Justice and Mining. International Journal for Crime, Justice and Social Democracy. 2. 10.5204/ijcjsd.v2i1.90.
[lxxviii] White, Rob. (2013). Resource Extraction Leaves Something Behind: Environmental Justice and Mining. International Journal for Crime, Justice and Social Democracy. 2. 10.5204/ijcjsd.v2i1.90.
[lxxxii] Douma, Nynke, and Dorothea, Hilhorst. 2012. Fond de commerce? Sexual Violence Assistance in the Democratic Republic of Congo. Disaster Studies Occasional Paper 02. P. 35. Wageningen, Netherlands: Wageningen University.
[lxxxiii] Merger, Sara. “The Fetishization of Sexual Violence in International Security.” International Studies Quarterly, vol. 60, no. 1, Mar. 2016, pp. 149-159. EBSCOhost, doi:10.1092/isq/sqw003
In recent weeks, an increasing surge of migrants have attempted to cross the U.S.-Mexico border, many of them being unaccompanied minors. Authorities have placed these minors in overcrowded detention centers. American lawmakers cast blame for the inhospitable facility conditions across the partisan aisle. Congress has been unable to pass any legislation to change their country’s immigration system. Meanwhile, thousands of bald eagles have begun their pre-breeding migratory season. They are crossing the U.S.-Canada border by the thousands to build their nests in the trees of the Prairie Provinces and British Columbia.
We are led to believe that our material reality exists in an orderly fashion, that what we call nature organizes itself through confinement. Certain things belong in certain places. Any movement outside of these confinements is an anomaly. What is foreign is invasive. Sonia Shah, in her recently published book The Next Great Migration: The Beauty and Terror of Life on the Move, points to a dynamic world (increasingly so with the impacts of climate change), and the enduringly migratory humans that, only recently, have placed abstract obstacles between one another.
A Faulty Science
A large portion of Shah’s book uses an appeal to nature when it comes to the inherent migratory function found in almost all species. Originally, our collective science of taxonomy was based on location. We thought of habitats as closed containers, where each species has a specific function to fulfill and can grow only based on the availability of resources within that closed space. Early scientists believed ecosystems were in a constant stasis, and therefore, any species leaving one location and entering another spelled disaster. They saw migration as a threat to the balance, where according to Gause’s Law of Competitive Exclusion, if two species are competing for resources within a closed space, one will always destroy the other.
It isn’t difficult to follow the threads of these beliefs through the history of racial discrimination and immigration law, and the conflation of those laws as ethics. The father of taxonomy, Carl Linnaeus, based his 18th century classifications on the distinctions between species and perpetuated that certain racial distinctions between humans invoked a hierarchy. As pseudoscientific racial science gathered support in Western countries, certain racial traits were deemed undesirable, nonexistent borders between races were arbitrarily parsed, and new immigration laws based on the prevention of racial mixing surged. These sentiments carry into modern-day immigration law with Linnaean nationalism and neo-Malthusian practices underlying modern reactionary anti-immigrant rhetoric, (e.g., American right-wing nationalism and Italy’s Five Star Movement).
No Vivarium in Nature
Of course, these beliefs are not centered in much scientific ground. No ecosystems functions as a closed system. Individuals move in and out of populations and environments constantly. Invasive species are often more common and less malevolent than people think. What scientists nowadays are adopting is an ecology not based on origin, but one based on traits and contributions to an ecosystem. According to Shah, the reasons for migration are a complex myriad of genetic and environmental factors, but she stresses the question we need to ask shouldn’t be why people choose to migrate. Rather, we need to ask why migration inspires terror in natives. Migration is written into the essence of our species. We have been migrating as long as we have been around, for opportunity and for survival. And as Shah finds, migrating peoples are not inherently more violent, nor less intelligent, nor unhealthier, nor a constant hindrance on a host country’s long-term economy. What remains is the ideological and immaterial borders we construct at the cost of the real suffering of people.Despite titling her work The Next Migration, Shah spends the majority of her book investigating the past and affords little time speculating about the future. If one were to build off of her findings and predict the future of migration, one needs to keep in mind the expiration date on xenophobia. There is no such thing as a closed system, and as assimilation increases and distinctions between people diminish, people holding on to some idealized figment of a place will find their environment change around them.
Benjamin Chappelow is a writer and narrative designer in the Appalachian mountains, United States. As an immigration researcher and former Narrative Writer for the Climate Resilience Toolkit, he is focused on how the stories we tell dictate our behavior in an ecological crisis. When he is not writing, Benjamin is trying to teach his cat how to type so he won’t have to.
When you think of environmental contamination, what comes to mind? You’d be right to list examples of a polluted river, a skyline darkened by smog, or an oil leak in the ocean. These capture headlines, and they are an important part of the equation, but these viscerally visual images embody only a small part of the crisis we face. Much of the damage to the environment is harder to see and it is hiding in plain sight all over the nation. Take, for instance, Industri-Plex.
Early History
Industri-Plex is a 245-acre plot of land in Woburn Massachusetts, and it is emblematic of New England’s industrial heritage. This seemingly small plot of land is iconic as both the climax and the new beginning of a story stretching back hundreds of years. It is the tale of a small 1600s settlement, which would rise to an 1800s industrial powerhouse, become the fifth-most contaminated site in the country by the 1980s, and emerge anew in 2010s as a symbol of hope for a revitalized environment.
Nowadays, Woburn is a city of just over 40,000 inhabitants, with a diverse economic sector, but it wasn’t always so. For much of Woburn’s early history – as was the case with many cities, towns, and settlements in the 1600s – it was reliant on agriculture as its primary economic opportunity. Woburn began its first steps into its modern identity in 1648 with the opening of its first tannery. Shoemakers began opening up shop and, not long after, the demand for shoe leather led to the opening of more tanneries. To this day, Woburn’s school sports teams are called the Tanners, in recognition of this history.
Woburn’s location was a massive selling point for industry; it was just 12 miles north of Boston, and it had a large and steady supply of clean water from the Aberjona River. But circumstances improved even further for the City in 1803, with the opening of the Middlesex Canal and the Boston & Lowell Railroad in 1835; both created new means of transportation to and from Boston. Around the same time, just a few miles to the north, the American Industrial Revolution really kicked off in Lowell with the opening of large textile mills.
That industrial spirit was quick to spread across New England, and in 1853, Woburn Chemical Works was built in what would later be part of the Industri-Plex Superfund Site. The company manufactured chemicals used by tanneries and the textile and paper industries. Business was good at this time; the ease with which products could be transported to and from Woburn strengthened the economy and spurred industrial growth. With the onset of the American Civil War, the demand for shoes and boots skyrocketed and Woburn supplied that demand, further bolstering its economic success.
As the nation greeted the twentieth century, the tanning and chemical industries had cemented themselves as two hallmarks of Woburn’s industrial legacy. By 1875, Woburn had risen to be New England’s largest producer of leather and in 1901, a Woburn man by the name of Henry Thayer invented the process of chrome tanning. This revolutionary new process is faster than previous tanning methods and could cure leather in a single day. The process involved soaking leather in chromium sulfate, a mixture of chromium salts and acid produced by Woburn’s own chemical companies. The process also resulted in significant environmental damage as spilt chromium would leach into the ground and groundwater.
Companies in Woburn were also involved in the creation of glue. The process involved cooking raw animal hide and waste from chrome-tanned hide to extract the glue. The discarded hides and residues were dumped in various spots around the Industri-Plex site and would eventually become known as the four “hide piles.”
While companies came and went, the waste remained and continued to contaminate the land. Between the 1850s and the 1950s, the original Woburn Chemical Works was purchased and succeeded by a long chain of other chemical companies. The chain concluded with Stauffer Chemical Company purchasing Consolidated Chemical Company in the 1950s. Stauffer remained in operation until 1969.
In 1968, the Mark-Phillip Trust entered the scene with high ambitions of building a large industrial park over the yet-to-be-deemed Industri-Plex Superfund Site. They began purchasing parcels of land, which had been subjected to over one hundred and twenty years of industrial operations, and eagerly got to work on redeveloping the land. Development included the excavation of the old hide piles, which released noxious odors. What became known as the “Woburn Odor” was so bad that passersby on the highway, as well as residents from multiple nearby towns, would complain of the smell.
Creation of the Environmental Protection Agency and Superfund
Around this time, the country was beginning to take more notice of environmental contamination. Concerns over air, water, and land quality sparked then President Nixon to create the Environmental Protection Agency in 1970. National dialog around the environment reached a fever pitch in 1978, when the federal government purchased the homes and evacuated hundreds of people residing near Love Canal in Niagara Falls, New York. The horror of Love Canal was a significant factor in the 1980 creation of the Superfund program, which authorized the EPA to locate, investigate, and clean up the most hazardous materials nationwide.
Children are particularly at risk for adverse health effects from contamination. Image retrieved from Living on Earth
The Superfund program was and is an incredibly comprehensive response to one of the most complicated problems modern America has to face. It includes regulations on 761 substances, with almost 600 of them still in active use by industry around the nation. Superfund also includes one of the most aggressive liability frameworks possible under US law. This allows EPA to go after responsible parties and force them to clean up the mess they’ve left behind.
Over the next few years, EPA set out to identify the parties potentially responsible for the cumulative contamination within the Industri-Plex Site. Numerous tests and studies were conducted on the site, revealing heavy metals, organic wastes, and volatile organic compounds. These various forms of contamination weren’t just in the ground; they continued to move in the groundwater and were released into the air, posing a significant public health risk.
With the situation as dire as it was, the EPA settled on a plan to remediate the site in 1986. The plan involved negotiating with thirty-four past and present owners of land within the site to secure funding from them to clean up the contamination. While it might seem obvious at first glance that the corporations that contaminated the land would be held liable for cleaning it up, this was not the case at the time. EPA relied heavily on its new powers under Superfund to retroactively hold parties liable for the harm they left behind. In fact, Industri-Plex was a somewhat defining case for EPA.
Cleaning up Industri-Plex
Such significant contamination meant that the cleanup was going to be expensive, and some of the parties, including the Mark-Phillips-Trust, did not have the money to pay for their share in it. To resolve this problem, the Trust agreed to sell its land on site to reimburse the government for fronting some of the cleanup costs. Critically, this meant that it was the corporations, not the public, that were going to pay the cleanup.
As for the cleanup itself, under consent orders from EPA and the Massachusetts Department of Environmental Quality Engineering (DEQE, now renamed the Massachusetts Department of Environmental Protection or DEP) – Stauffer Chemical conducted numerous site assessments and studies of the surrounding geology. Their results confirmed the presence of organic and inorganic compounds in the soil. The results also showed that these contaminants continued to pose risks as they were migrating in the ground water and being released into the air as vapors.
Some of these hazardous materials could be treated on site, some could be consolidated and moved to a permanent disposal facility, but others were too expensive, too dangerous, or simply incapable of being removed or treated. Take, for example, the East Hide Pile. The hides would constantly release vapors, but when they were moved, the release of vapors (including the “Woburn Oder”) would substantially increase. Wherever you put a giant stinking pile of old animal parts, its going to cause problems.
So, environmental engineers devised a different solution. They installed what is called a “cap” over the hide pile, which would prevent the vapors from releasing into the air. On top of the cap, they placed a layer of top soil and planted grass on it to help root it in place. They then drilled monitoring wells and installed a vapor collection system so that they could make sure the protections were holding, and prevent leaching of contaminants into the groundwater.
Another hide pile on site. Below the grass, top soil, and clay cap the hide waste still remains. This is not a hill; this is mound of discarded animal parts. Image was taken by author in March, 2021.
Similar strategies were used for other hard-to-remove contamination on the site. As for the ground water, the responsible parties were obligated to capture and treat the ground water to prevent it from spreading the contamination further. This is a long and difficult process and is heavily reliant upon the availability of good data, and available methods of removal, as well as the geology itself.
In 1989, EPA, DEP, the City of Woburn, and the current and former landowners created the Site Remedial Trust and the Site Custodial Trust. These Trusts helped organize partnerships with private and public actors to help businesses return and remain on site during cleanup. Nowadays, Industri-Plex is diverse commercial and industrial area. The City’s largest employer, Raytheon, is set up within the borders of the Indusri-Plex Site. 45 other businesses also reside on site and cumulatively, the current Industri-Plex businesses generate $210 million in employment to the city annually, as well as property and sales taxes.
Industri-Plex Today
In 2020, a portion of the Industri-Plex Site was removed from the National Priorities list. Much of it remains under active monitoring and is subject to five-year reviews. The story isn’t over, but it has entered a new chapter. Woburn has been on the pulse of the American industrial experience since the beginning. When the industrial spirit swept the region, it was there that innovative new techniques for the production of leather and chemicals were created. It captured the quintessential nature of the American Dream, that a person with an idea and ambition could build something greater, and it helped vault America forward into the position it is in today. Of course, it was also there when the costs of that untamed ambition and the lack of understanding of the consequences, caught up to it and as a result, it was also on the front lines of America’s reckoning with environmental contamination. Today, Woburn continues to be on the cutting edge, standing as an example of what is possible when we commit ourselves to environmental revitalization.
New construction within the Industri-Plex Site. Investment continues to flow into the once fifth-most contaminated site in the nation. Image was taken by author in March, 2021
To be clear, despite the inspiring thread, this story is woven by over a hundred years of contamination. Over that time, people got sick, workers were taken advantage of, employers prioritized profits over people, chemicals were produced that contributed to contamination elsewhere, and millions upon millions of dollars were spent over decades ($70 million in the initial 7-year remediation alone) to get us to where we are today. Furthermore, the industrial practices that led to this reckoning are not gone. Corporations continue to attempt to subvert the government’s attempts to protect people and the environment. Agencies like EPA are a great improvement, but they alone will not solve the crisis facing our planet. And yet, this was an insanely complicated and dangerous situation, and people did come together to respond to it. Industri-Plex today should be seen as an example that change is possible, that absurd and creative solutions can work, and that the rewards of a healthy environment are worth the effort.
A picture is worth a thousand words; I believe this one is worth a lot more. Below is a field of solar panels, residing directly on top of the East Hide Pile. Quite literally, the present, standing atop the past, looking up towards the future.
The East Hide Pile was and is the largest such pile on site. Today it remains as a humbling reminder of the past, as well as a beacon of hope for the future. Image retrieved from Google Earth, Street view: 99 Breed Ave. Woburn, MA (March, 2021)
This article is part of our Spring 2021 collaboration with students from the International Human Rights Clinic at the Western New England University.
Andrew Hanna has always been fascinated by the “why” questions in relation to human behavior. That fascination pushed him to study psychology, sociology, and philosophy during my undergraduate studies. He concentrated in mental health services and worked for two and a half year as residential counselor. The work was transformative, traumatic, and ultimately marred by layers of structure issues which negatively impacted the health of the children he worked with. The frustration he felt with the mental health system pushed him to apply to law school. Andrew is now a 2L at Western New England University School of Law. It is his hope that through legal training, he can find a way to improve the systems that offer services to those in need.
Wildfires are not something most businesses on the United States’ West Coast can easily prepare for. They often occur with little to no warning, as they spread rapidly, and their path can be unpredictable. Even if a place of work itself is not at risk, employees’ homes and commuting roads are often damaged. On either side of highways, there are usually expensive fields and farmlands which have the capacity to burn rapidly. When highways, and railways, shutdown, employees often cannot make it to work. Once the fires have passed, the roads may remain closed due to the pavement’s temperature and the debris blocking the paths. When neighborhoods and towns are evacuated, employers lose a majority of their workforce, making it difficult for them to run their business. [1]
The Farming Industry
During the start of the COVID-19 pandemic, farmers were considered essential workers, which meant that they could continue to operate, but often under less-than optimal conditions. Due to the overlap between the pandemic and fire season, many migrant workers had left the California farming areas, which made for a scarcity of available employees. This meant a heavier workload and less productivity for the remaining workers. Once fruits and vegetables are ready to be harvested, there is usually only a window of a few days within which to pick them before they are rendered unmarketable.[2] This is what happened to a lot of products in California this season because the workforce was just not available.
The workers who were still farming faced a harsh reality. They often worked in temperatures over one hundred degrees Fahrenheit, for shifts spanning twelve-hours or more.[3] There was also a K-95 mask shortage, which risked the safety of the employees and the products being harvested. Many workers suffered heat-related injuries due to the extreme heat and the physical toll of the labor.[4] Farmers were often woken up in the middle of the night because they needed to move their cattle somewhere safer or because they themselves needed to evacuate.
When smoke and flames do destroy fields, the chemical composition of the soil is changed. Farming becomes more challenging and can even change the quality of the plants that are able to grow. The destruction of pastures also presents a challenge for farmers as it is the main source of sustenance for the livestock. Buying alternative food sources for livestock is expensive and oftentimes not worth the expense, forcing ranchers to slaughter early to avoid unnecessary expenses.[5] In the event that pastures are saved, herding the cattle can be difficult. The fires can destroy fences, some of which are multiple miles long (to fulfil the purpose of the enclosure of large plots of land). Transporting thousands of animals back to safe pasture is time-consuming, expensive, and physically demanding.[6] Rebuilding the fences is also a costly endeavor and time-consuming, but it must be done as quickly as possible so that the cattle are not lost.[7]
The Timber Industry
Scientists say that fossil fuels create a more considerable fire risk which could lead to the end of the timber industry, hurting many rural families who depend on the forests for a living.[8] Oregon is the number one producer of lumber in the United States (US), but even their trees take a very long time to grow. It can take over thirty years before a tree reaches a size appropriate for cutting.[9] A wildfire in Oregon destroyed a plot of 25-year-old trees at the Seneca Sawmill. Almost all of their younger trees were wiped out, and 25 years of work and care went to waste.[10] While many people heat their homes with oil and alternative energy, many Americans – especially those in rural areas – rely on lumber to stay warm in the winter. It is also used to make homes, furniture, and other products. The newly planted trees will take about 40-60 years before they can be harvested, which could create future layoffs and economic setbacks for the timber industry.[11] The logging industry will also be impacted, as with any issue of supply and demand: shortages will create a hike in prices and a more competitive industry, especially when up against timber yards in other states that are not facing wildfires.[12]
The Restaurant Industry
The restaurant industry has also suffered as the result of the smoke from wildfires, and the impact of COVID-19 preventative measures. Both of these factors have led to a reduction in tourism, which is what many of the smaller restaurants in California and Oregon rely on for businesses. COVID-19 regulations forced many restaurants to close their doors to inside seating and instead open up to outside seating. However, the smoke from the wildfires made the air outside unsafe as well. Even when the fire diverts and does not physically destroy buildings, the smoke makes the air quality in surrounding areas unsafe.[13] Restaurants in San Francisco have often had to close over the weekend, despite it being their busiest and most profitable time, because the air quality was too poor to safely host outdoor dining.[14]
It is important to note that restaurants and cafes that are Asian-run, or that serve Asian food have faced an increased decline in business since the start of the pandemic in February of 2020 due to a myriad of circumstances.[15] Travel restrictions and tax season meant that people had been eating out less, but COVID-19 misinformation surrounding the origins of the virus in China has also played a large role in increased xenophobia and discrimination towards the Asian community and restaurants. For instance, the Liang’s who own a small noodle bar to consider closing their doors.[16] They faced over a 50% drop in orders within just two weeks, and their situation is not unique – they are one of many businesses impacted in this way.
While customer orders were down, some restaurants kept busy feeding those who were protecting the community.[17] Tyler Florence, a chef from the World Food Kitchen, joined local chefs in Sonoma County, California to help feed those in need during the shutdown. While the restaurants were not open for business, they helped feed first responders and people forced to evacuate.[18] On one Sunday, they served over 6,000 meals to people in the area, including firefighters who spent over 12 hours working a shift and were too exhausted to cook. [19]
Fighting wildfires and the pandemic simultaneously have created competing risk analyses. Controlled burns are one way in which the government attempts to prevent wildfires. It helps in removing debris and other materials that could spread wildfires by burning them under close supervision. Even if under control, this is still a fire, and creates smoke which intensifies the already poor air quality in California’s valleys.[20] This can cause complications for older citizens and those with lung conditions. Poor air quality has led to an increase in hospitalizations, when health providers are already stretched thin due to COVID-19.[21] In response, the US Forrest Service decided to halt planned controlled burns so as not to worsen air quality conditions. However, the Bureau of Land Management continued their control burns as planned to prevent more wildfires in the future.[22] There are trade-offs to all of the decisions being made, but the public’s safety remains the top priority.
Conclusion
Restrictions on dining, travel, and social distancing have taken their toll on businesses. The pandemic safety precautions combined with environmental disasters – such as the wildfires and resulting smoke – have increased the struggles of many citizens living on the West Coast of the US. Farmers have had incurred extra costs trying to repair the damage to their soil, property, and crops/ livestock. This increases the risk of food shortages and farmer’s leaving the profession for a more economically sustainable career. The timber industry has suffered setbacks with the burning of their trees, which will take decades for them to recover, creating shortages in the not-too-distant future. Many Americans rely on wood to build and heat their homes. No industry has seem to escaped unscathed as the restaurant industry has also struggled with Coivid-19 protocols as outside dining is no solution when the outside air is unsafe.
This article is part of our Spring 2021 collaboration with students from the International Human Rights Clinic at the Western New England University.
Jennifer Fields is a second year Law Student at Western New England School of Law in Springfield, MA. She is on the Dean’s List and is working on a concentration in International and Comparative Law to complement her passion for justice. In college, she worked for Beit Ha’Gefen in Haifa, Israel, creating a safe, multicultural space for refugees settling into Israeli life. Currently, she is active in her community as a trained legal observer for the National Lawyers Guild and does Pro Bono work with the ACLU. When the season is right, she enjoys skiing and spending time on the water.
[2] Kelly Haddock, California Wildfires Effect on Agriculture, (Aug. 25, 2020), https://georgia.growingamerica.com/features/2020/08/california-wildfires-affect-agriculture
The seemingly insuperable nature of the boundaries between human and non- human beings carried throughout bodies of literary work evokes issues regarding the substantiality of land and animal ethics. The projection of human characteristics onto the natural world is exemplified through both fictional and authentic accounts of anthropological consciousness in relation to non-human sentience. In order to redefine the divisions between humans and the environment, it is imperative to transgress egocentric perceptions of consciousness. The theoretical framework presented in Aldo Leopold’s essay, Land Ethic, manifests a rich representation of the deep interconnections between human ideology and environmental degradation; while J.M. Coetzee’s novella, The Lives of Animals, materializes the necessity of surpassing conventional notions of consciousness to establish climate responsibility. Each of these works posits the significance of advancing ethical thought beyond the limited scope of human egoism, and illustrates the possibility of bridging the divide between human and non-human realms through the emergence of an ecological conscience.
I. The Fragmentation of Anthropocentric Philosophy
Coetzee offers an earnest interrogation of the partitions between human and animal subjectivity in order to challenge the traditional discourse surrounding collective ethics. He positions novelist Elizabeth Costello as the mouthpiece that serves to reassess anthropocentric views of morality. Her main role is to reframe rationalist theology, and dissolve the ethical grounds sustaining human-centric values. Costello suggests that the foundation of humanist philosophy rests upon the use of reason as the main differentiator between human and non-human sentience. She proposes a critique of common modalities of thinking, and argues that principles of reason do not afford humans a privilege of superiority. In a lecture on the complexity of non-human rights, she tells her listeners that
“Reason looks suspiciously to me like the being of human thought; worse than that, like the being of one tendency in human thought. Reason is the being of a certain spectrum of human thinking” 1
The idea that reason itself is a product of the mind serves to destabilize its use as a guiding compass. The reduction of reason to the abstract sphere of a “spectrum” implicitly diminishes its intellectual significance. An inversion of rationalist theory may reveal that the fundamentals of reasoning are flawed in nature, and can be transformed to encapsulate logic beyond our own self- interest. Jan-Harm de Villiers’s research on animals’ “literary voice” touches on the tendency to use reason to support the notion of humanist superiority. He remarks on Costello’s awareness of the human ability to recognize animal suffering, whilst remaining morally passive to one’s own involvement in it.
“Costello locates the root of this passivity in the rationalist tradition’s privileging use of reason above all other human faculties as a capacity or criterion to justify subjugation” 2
It may be possible to rupture one’s personal indifference through the engagement of discourse that falls outside of the realm of traditional thought. In order to disrupt the framework upholding hierarchical structure, it becomes necessary to interact with the concept of suffering. The idea of mental and bodily suffering incurred by human action may serve to provoke a profound change in our views of land ethics. The question of whether or not humans can cultivate a sense of awareness strong enough to manifest an ecological conscience comes to the forefront of this discussion.
Redirecting Humanist Thought
The basis of rational thought must rest on the premise that humans and the natural world are deeply interconnected, rather than divided. In his essay, Land Ethic, author Aldo Leoplod evokes the significance of developing moral conscientiousness of the environment. He suggests that a collective disconnection to the land results in a lack of ethical regard for ecological systems, and creates stagnancy within the conservation movement. He posits that
“Obligations have no meaning without conscience, and the problem we face is the extension of the social conscience from people to land. No important change in ethics was ever accomplished without an internal change in our intellectual emphasis, loyalties, affections, and convictions.” 3
The notion that change must take place on a more intimate level conjures both an individual and collective call to action. A shift in “intellectual emphasis” must occur in order to bridge the boundaries between sustainable living and human indifference. Although many view the natural world through a hierarchical lens, it is important to acknowledge human reliance on the land. In order to materialize ethical consideration for the land, one must experience its complexity through personal immersion. In her essay, Compassionate Coexistence, Uta Maria Jürgens elaborates on the importance of recognizing the interdependent relationship between humans and the natural world. Her research on environmental psychology explains that “the one-on-one encounter with particular animals, plants, and landscapes that, collectively, constitute Nature is the mediating link between personal responsibility and actual land-ethical conduct” 4 In developing a degree of affinity with the land, one can begin to comprehend their own moral responsibility to care for it. This approach requires a massive transition in the way humans view non-human subjectivity. Jürgens comments on the significance of “personalizing” other beings: respecting their inherent right to exist and be perceived as autonomous. In order to mobilize moral responsibility for the land, it is necessary to establish non-human ecosystems as independent entities, and foster intentional relationships with the natural world. A fragmentation of the divisions between human and animal sentience may serve to catalyze this shift in thought.
II. The Core of Environmental Disconnection
The idea that animals possess consciousness must be integrated into social thought in order to destabilize the psychological boundaries that disconnect humans from the natural world. Coetzee pushes deeper into dissolving these philosophical demarcations, and offers the use of one’s “sympathetic imagination” as a conduit for engaging with the state of another being. Costello suggests that “to be alive is to be a living soul. An animal, and we are all animals, is an embodied soul.” 5 Through the use of the mind, humans can immerse in the experience of inhabiting the body of another. This practice allows for recognition of the idea that humans do not possess authority over our animal counterparts. She argues that there is “no limit to the extent to which we can think ourselves into the being of another.” 6 The “sensation of being” in itself constitutes a fundamental part of all life. The cognitive awareness of bodily existence pertains to both humans and animals, and can be seen as the equalizing agent of the two realms. This notion serves to diminish justifications for manipulating the environment on the basis of humanist superiority. It emphasizes that human intellect does not exemplify consciousness, and acts to invalidate the bounds between human and non-human ecosystems.
The main purpose of Costello’s claim to the power of embodiment is to engage with the concept of non-human consciousness, and unravel deeply-rooted rationalizations for environmental disconnection. The absence of an ecological conscience creates invisible barriers between human and non-human realms, resulting in chronic detachment from the land. Simultaneously, this separation generates a lack of ethical regard for natural biomes. Although the scarcity of land ethics may seem trivial, it translates to the root of various inadequacies embedded in environmental policy and regulation. This generational dysfunction manifests into major ecosystem degradation, involving extreme weather events and climate-induced displacement on a global scale. In her report The Silent Violence of Climate Change, María José Méndez expands upon this issue, and draws attention to the lack of legal protections currently in place for those affected by environmental disaster. She touches on the unobtrusive nature of climate suffering, and the way in which it prevents exceedingly vulnerable populations from receiving proper rights and recognition. Her field work exhibits that “asylum seekers must parade the psychological and physical wounds that scar their bodies or those of their loved ones, and even then, they are not guaranteed immigration relief.” 7 In order to be considered a refugee, an individual must supply compelling proof of imminent violence or persecution in their homeland.
Concurrently, there remains no official language that effectively defines and protects environmental migrants under international refugee law. The existing policies neglect the adversity of those experiencing devastating financial and agricultural losses due to the prolonged effects of climate change, such as rising sea levels and extensive drought. Méndez remarks on the sensationalist quality of modern thinking that drives legal policy, and inherently subdues less explicit forms of suffering. She finds that “asylum policy, like much mainstream news coverage, favors stories of brutal death or injury and suppresses the economic and ecological harms that also drive people to leave home.” 8 It can become immensely difficult to provide evidence of the acute rationale for climate migration, as these issues have developed and worsened over decades of time. The rise in population displacement and reduced human mobility will continue to intensify with increased environmental degradation.
Collective Outlook
The need for greater accountability and awareness falls on both private corporations and governmental institutions alike. In order to advance ecological responsibility, it is necessary to create a deeper sense of collective obligation to the environment, and those existing within biotically fragile regions. This idea reinvites Leopold’s conceptualization of a framework that prioritizes deeper commitment to the land, and favors an internal shift in our ways of thinking. Leopold brings us back to the assertion that ethical management of the environment must “reflect the existence of an ecological conscience, and this in turn reflects a conviction of individual responsibility for the health of the land.” 9 It is essential to reinvent global protection efforts in order to preserve the existence of both human and non-human realms. Through the facilitation of enhanced climate awareness, it is possible to redefine our connection to the natural world.
The evolution of environmental progress rests on the prospect of bridging the divide between human and non-human ecosystems. It is crucial to advance beyond egocentric thought in order to transgress socially constructed boundaries of consciousness, and compose a stronger sense of responsibility for the land. In developing an ecological conscience, we can generate a call for change to prevent ecosystem collapse, and ameliorate the health of both human and non-human environments.
Rachel Aronoff recently graduated from UC Santa Barbara with a degree in English, and a specialization in Literature and the Environment. She is also certified in health and wellness coaching, personal training, and in the process of becoming a yoga instructor.
1. Coetzee, J M, and Amy Gutmann. The Lives of Animals. Princeton, N.J: Princeton University Press, 2001. Print.
2. Villiers, J. H. (2019). Prolegomenon on the Role of the Polyphonic Novel for (Animal) Law: J.M. Coetzee’s The Lives of Animals, the Voice of Refusal, and the Subversive Performativity of the Novel. Law & Literature, 31(3), 2019.
3. Leopold, Aldo. A Sand County Almanac, and Sketches Here and There. New York: Oxford Univ. Press, 1949. Print.
4. Jürgens, Uta Maria. “Compassionate Coexistence: Personizing the Land in Aldo Leopold’s Land-Ethic.” Sept. 2014. Journal of Evolution & Technology, vol. 24, no. 3.
5. Coetzee, The Lives of Animals, 33.
6. Coetzee, The Lives of Animals, 35
7. Méndez, M. J. (2020). The Silent Violence of Climate Change in Honduras. In NACLAReport on the Americas (Vol. 52, Issue 4, pp. 436–441).
8. Méndez, The Silent Violence of Climate Change in Honduras. (Vol. 52, Issue 4, pp. 436–441).
9. Leopold, A Sand County Almanac, and Sketches Here and There.
As climate change and subsequent environmental disasters continue to force people to leave their homes, policymakers and aid organizations must acknowledge that relocation is more difficult for vulnerable populations and low-income communities. Climate migrants are “involuntary movers,” but it is important to investigate the traumas and challenges of “involuntary stayers” in the context of climate crises as well in order to create robust support networks.
In instances of climate-induced displacement, the ordinary stresses of moving are compounded with the stresses of an environmental catastrophe. Not only must migrants account for the significant financial, social, and physical tolls of moving, but also consider the specific implications of the crisis facing their home. Flooding, fires, and other disasters related to climate change require rapid evacuation, forcing migrants to make split-second decisions about their material possessions in order to survive. A 2016 study by the U.S. Global Change Research Program found that many people who are exposed to climate disasters experience a plethora of serious mental health consequences, including depression, anxiety, and post-traumatic stress disorder. The same study also indicated that children, older adults, and economically disadvantaged individuals are at a higher risk for mental health consequences as a result of exposure to climate disasters. These groups face an additional factor of compounding stress as a result of forced migration which can create additional barriers to relocation that are particularly problematic when an environmental catastrophe posits immediate danger.
The social, political, and economic factors that hinder flight in the aftermath of an environmental crisis are apparent in Flint, Michigan, where the 2014 decision to reroute the city’s water supply through the lead-contaminated Flint River has left the city in an ongoing water crisis. This disaster exacerbated an exodus of residents that has left particularly vulnerable populations behind. The city has seen a population decrease of over 23% since 2000, a lingering symptom of long-term disinvestment that stems from the collapse of Detroit’s auto industry in the late 1960s. As auto industry jobs left the area, affluent white families fled Flint and moved into the suburbs, a textbook example of white Flight. Flint’s low-income residents and communities of color had limited pathways to relocation due to redlining, a racially discriminatory zoning policy that was widely practiced in mid-century America, economic barriers and were left with no choice but to stay. Financial distress has plagued Flint since this collapse: the 2020 average median income was almost $25,000 below the Michigan state average, which is already about $5,000 less than the national average. Buying enough bottled water to meet the weekly needs of your family is a mandatory and significant expense in Flint that tightens budgets and sets the ordeal of moving out of reach for many.
Money is not the only thing that forces people to become “involuntary stayers”. The daily burden of the water crisis has a time cost, for cooking, cleaning, and showering with bottled water require countless errands and energy. “The rhythm of the family is disrupted,” says Dr. Tam Perry, a professor of social work and anthropology at Wayne State University in Detroit. Dr. Perry has been studying the impact of the Flint water crisis on older adults since 2014. Through her ethnographic approach to research in Flint, she has observed the ways in which everyday rituals and cultural practices have been altered to demand more effort, such as the process of cooking collard greens, a vegetable with great historical and traditional significance in Black culture going back to the American civil war. Preparing collard greens is a “source of comfort” and a way for people to “hold onto their cuisine in the face of a crisis,” says Max Smith, a social worker and research assistant to Dr. Perry. However, due to the resource-intensive preparation process, the sheer number of plastic water bottles needed to wash and boil collard greens makes the recipe prohibitive for those who need to conserve water in order to literally survive. This illustrates the cultural damage that can be created by environmental catastrophes for “involuntary stayers” and “involuntary movers” alike, as migrants may also experience feelings of cultural severance upon moving.
Though the contamination of Flint’s water supply was not the direct result of climate change, it stands as a pertinent example of environmental racism and neglect of human rights in a low-income community that is akin to many places currently confronting climate-induced displacement. Warming climates and gradually rising sea levels will produce evacuations over a long-term scale and in this way, Flint provides an important case study to inform future community displacement planning and migration patterns. The burden of the climate crisis will continue to fall most heavily upon low-income areas and communities of color. Governments, NGOs, and other organizations working at the forefront of these issues must consider this disparity in their mitigation approaches to ensure that there is adequate support for vulnerable populations that may not otherwise see relocation as financially, politically, or physically feasible, even in the face of a climate disaster.
Emma Cooper is a Michigan native currently studying at the University of California, Berkeley. This discussion of the cultural toll of environmental disasters builds upon an interview with Dr. Tam Perry, a professor at Wayne State University in Detroit, Michigan who has been conducting research on the social impact of the Flint Water Crisis since 2015, and Max Smith, a social worker in the Detroit area, who served as a research to Dr. Perry on several projects.
We are looking ahead, as is one of the first mandates given to us as chiefs, to make sure every decision we make relates to the welfare and well-being of the seventh generation to come, and that is the basis by which we make decisions in council. We consider: Will this be to the benefit of the seventh generation. This is a guideline.
The 2019 student ‘Strikes 4 Climate Action’ in Australia were a testimony to the urgency of redirecting the climate change discourse to the foreground of political and judicial decision-making. The current warming trend, as was outlined in the IPCC Fifth Assessment Report, is significant because “most of it is extremely likely to be the result of human activity since the mid-20th century and proceeding at a rate that is unprecedented over decades to millennia”.[2] The scientific evidence is unequivocal. If natural habitats are not protected to the extent that the integrity of all their ecological functions are maintained, we are facing a dim future. As existing in a temporal dimension, precautionary action to protect the ‘right to a healthy environment’ must be taken in the face of uncertainty.
Thousands of primary and secondary school students marched the streets in cities across Australia, attesting that “the youth are rising, we are not compromising”.[3] And they certainly shouldn’t. The judiciary has a prevailing role in responding to their plea. It is with this contention that this paper will argue that all generations – including children and legitimate representatives of future persons – should be regarded as co-equal in court procedures. In extending the common law rules of standing to all generations, climate litigation will finally have its place in court. This form of intergenerational equity will set new enforceable standards for governments to act as fiduciary trustees in the protection of our shared environment. The outcome will be the reduction of CO2 emissions and slowed or reversed species endangerment.
Scope and Definitions
I will narrow my analytical scope to the role of domestic courts in common law jurisdictions, with an emphasis on Public Law in the United Kingdom. For argumentative purposes, this paper will heavily draw ideas, decisions and principles from other jurisdictions as climate change is a phenomena with consequences that transcend institutional boundaries. The analysis will mostly be anchored in legal philosophy, and will thereby be less technical in nature. The first section of the paper will address our relationship to the environment, followed by our relationship to future generations and lastly to governments. This essay purports to humbly act as a policy paper in appealing to judges, particularly in the United Kingdom, to amend the common law rules of standing. Judgements that contemplate intergenerational elements not only bolster environmental standards, but also exert a persuasiveness that eclipses state borders.
PART I: OUR RELATIONSHIP WITH THE ENVIRONMENT
All of our actions and inactions affect the global ecosystem and its intricate webs. As humans, we have the capacity to shape and destroy our own natural habitat. According to the I=PAT equation, the environmental impact (I) is caused by a very large and ever-increasing human population, the increase in economic growth per capita affluence (A) and the application of resource-depletion and pollution technology (T).[4] The results exposed that the environmental change sweeping the world is occurring at a much faster pace than previously thought. The United Nations High-level Panel on Threats, Challenges and Change has officially cautioned environmental deterioration as one of the ten most serious threats to the human race.[5] Efforts must be made on all fronts to counteract the irreversible damage done to Earth – a planet we all call home.
Impact of Climate Change
The current statistics concerning climate change are alarming and “no longer academic”.[6] We are confronted with the depletion of our resources, the destruction of entire ecosystems and habitats, the extinction of wildlife and a distressing increase in air pollution. The Global Environmental Outlook’s Regional Assessments paint a bleak picture of the severity of the issue. In Latin America, “nitrous oxide emissions increased by 29% between 2000-2010”.[7] In the Pan-European region, they found that “land-use related emissions, nitrogen oxides and particulate matter persist at high levels and are still increasing”.[8] While overall greenhouse emissions have reduced, the increasing per-capita consumption of final goods and services still remains a “major obstacle to a low-carbon economy”.[9] On a global scale, around half of the world’s original forests have disappeared, despite their integral role in producing oxygen. Due to their ability to act as a carbon sink, it is estimated that 15% of greenhouse gas emissions are the result of deforestation.[10] The quality of our natural atmosphere is severely affected by these changes.
This unbalanced relationship with the environment has led to a “decline in agricultural productivity; increased risk of floods and droughts; threats to food security; increased demand for water; and negative effects on biodiversity”.[11] In North America, global warming “exacerbated the five year drought in Texas by 15-20%” and the 2010 heatwave in the northern hemisphere resulted in 54,000 cumulative excess deaths”.[12] Climate change is exerting multiple interlinked pressures and health threats upon society and “it is clear that the frequency of such events will increase as the climate warms”.[13] Rising temperatures are shifting our planet into an ominous state that is rapidly becoming less hospitable to human life. Costello described climate change as the “largest health threat of the 21st Century”.[14] In this way, all members of the human family “have an interest, and a responsibility, to act to ensure we protect what we all value: a healthy future for both people and nature”.[15] The global average temperature cap has been set by the United NationsParis Agreement to be well below 2°C.[16] Remaining under this stipulated standard is the crux of the challenge.
Right to a Healthy Environment
A right ensuring that such a future is attainable can appear in many different forms and may be invoked in circumstances where a specific environmental violation incurs serious health consequences. There is a universality claim to such an argument, as our relationship with the natural environment is part and parcel of our existence. A right formed on such a basis transcends cultural relativism, political ideologies, and social constructs. Nature is fundamental, if not indispensable to our survival (at least until we invent an artificial alternative). Ergo, this paper is written on the premise that even if the terminology adopted differs across contexts, the right to a sustainable environment is enshrined in our laws in one format or another. Since this right is a natural right we enjoy as members of the same species, in the case that it is only vaguely construed, there is a strong presumption that it should be read in favor of its existence. Therefore, despite the United Kingdom not expressly providing for a positive right to a healthy environment, an individual claim to a violation brought on these grounds is still reasonable due to its universal potency.
References to rights that have an indirect bearing on the environment can be found in both domestic and international legal instruments. Whilst the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the International Covenant on Civil and Political Rights (ICCPR) do not explicitly mention the right to a healthy environment per se, it can still be inferred through a liberal analysis of the language adopted. An example is the ‘right to life’ mentioned in Article 6 of the ICCPR.[17] In the Indian case Subhash Kumar v State of Bihar, the judges extracted the environmental element in declaring “that the right to a healthy environment was an integral part of the right to life”,[18] enshrined in Article 21 of their Constitution.
Another strand of evidence in support of its universality can be found in United Nations’ sponsored declarations and conferences. The Stockholm Convention on Persistent Organic Pollutants expressly announced in 1972 that “humans have the fundamental right to freedom, equality and adequate conditions of life in an environment of a quality that permits a life of dignity and well-being”.[19] Twenty years later, the Rio Declaration on Environment and Development similarly stated that “human beings are entitled to a healthy and productive life in harmony with nature”.[20] Such a long-standing standard in customary international law upholds the assumption that despite the lack of a well-defined right, all persons merely by virtue of their humanity are entitled to an ecologically sound environment and the natural resources it offers. As Sax pointed out, “certain interests are so particularly the gifts of nature’s bounty that they ought to be reserved for the whole of the populace”.[21]
Other manifestations to a right to a healthy environment have also developed in the course of judicial decision-making. In a famous judgement in 1997 concerning the Gabcikovo Nagmaros Project, it was held that due to the global development of new environmental norms, both states, namely Hungary and Slovakia, “are equally entitled to the preservation of their human right to the protection of their environment”,[22] for “it is a sine qua non for numerous human rights such as the right to health and the right to life itself”.[23] Likewise in Columbia and South Africa, domestic courts held the right to a healthy and sustainable environment to be categorically absolute.[24] The Colombian Constitutional Court coined it as being a “precondition to life itself and must be guaranteed even in the face of uncertainty as to the risk of violating the right”.[25] From these examples flows the rationale that a right to a healthy environment is universal and imprescriptible in nature. Accordingly, its legal force can also triumph in the United Kingdom.
Finally, all generations should enjoy equal access to its benefits. Future inhabitants are in this instance defined not as an abstraction, but as consisting of individuals, that are human beings; that is, we can safely assume that they share the same properties to humans today.[26] Their mere incapacity to legally invoke the right to a robust environment, does not affect the existence of such a right. It is thereby not only universal, but also intergenerational. This paper is not committed to the claim that “future generations by definition do not exist now and they cannot now, therefore, be the present bearer or subject of anything, including rights”.[27] Instead it will adopt an unconstrained view that the human right to healthy environment is applicable to all of mankind; past, present and future.
PART II: INTERGENERATIONAL JUSTICE
The previous section established the extremity of the climate change crisis. Naturalist David Attenborough goes so far as to suggest that “the collapse of civilization is on the horizon”.[28] It also concluded that all of mankind has a right to a healthy environment. How this affects our relationship to future generations will be addressed below.
Two initial points must be made. First, due to the fact that the most destructive effects of climate change are yet to come, children and future generations will experience its most lethal impacts. As they too have a right to a secure environment, adequate climate action is just as much, if not more, their concern than it is ours. Despite this, the voices of children and future generations are mostly left unheard. This paper makes an attempt to address this issue.
Second, a correlating duty to protect the environment naturally derives from the inference that a right to a healthy environment exists. Domestic courts can fulfill this duty in setting stringent environmental standards through public interest litigation. At its core is the “right to demand protection from public authorities in case of any breach or compromise or right”.[29] With such a judicial system in place, measures are available to the public if authorities mishandle the pursuance of a sustainable ecosystem. Provided that the “right to effective judicial protection is one of the cornerstones of societies governed by the rule of law and judicial access is a key aspect of that right”,[30] it has immense power to effectively serve the best interests of the public.
Issue of Standing
It is of great concern that domestic courts in the United Kingdom are currently unable to hear climate change cases on the ground that there is no clear correlation between a plaintiff and the injury caused by rising temperatures. It is either a) that the intended plaintiff does not have sufficient interest in the particular injury, or b) that those who will suffer the injury are unable to be identified as plaintiffs. The issue at hand is one of legal standing (locus standi), which refers to the ability of a particular individual or pressure group to bring legal action in a court of law. It is a matter of “threshold inquiry in the determination of the appropriateness of judicial intervention”.[31] In other words, locus standi is “a place of standing; standing in court; a right of appearance in a justice or before a legislative body on a given question”.[32] Fundamentally, it is about the right to be heard.
The Injury
The first issue is concerned with linking the injury to the legal or natural person. Section 31(3) of the Supreme Court Act 1981 in the United Kingdom provides that “no application for judicial review shall be made… unless… the applicant has sufficient interest in the matter to which the application relates”.[33] This is interpreted more liberally for pressure groups like Greenpeace and Friends of the Earth amongst others. Individuals must demonstrate that they have a sufficient interest in the decision they are preparing to challenge.
There is an inherent inability to prove interest in a case where the violation is concerned with environmental degradation or climate change. Due to its complex nature, it is extremely difficult to prove how exactly the ‘injury’ has affected an individual. The applicant must normally “show that the challenged conduct has caused that injury in fact”.[34] However, as there are many different layers of impact, responsible public bodies may not be held accountable for a specific course of action that has the capacity to cause serious consequences for a large group of people in the future.[2]
The presence of this obstacle is clear in the following cases. In Balmer-Schafroth and Others v Switzerland, “applicants failed to show that the operation of the power station at issue exposed them personally to a danger that was not only serious but also, specific, above all, imminent”.[35] A similar conclusion was drawn in Stichting Greenpeace v EC Commission in which the Court of First Instance declared Greenpeace’s action inadmissible, as it was not directly involved with the controversy in question. It was held that “while environmental protection is one of the fundamental objectives of the community”,[36] it does not automatically confer a right on a natural person that is enforceable by law. The environmental violations were not only too remote, but also not deemed to be an issue of public importance at the time.
The difficulties in establishing a causal link between the commission or omission of the public body and the individual or group can lead to courts declaring a case inarguable. Given the inability to establish a direct aggrievance, actions of environmental degradation which are practiced and condoned can be overlooked by the judicial branch on the ground that the violation itself has not yet manifested into a danger grave enough for the party in question to allow court proceedings to commence. As per Lord Denning, “the court would of course not listen to a mere busybody who was interfering in things which did not concern him”.[37]
The Plaintiff
The second issue is concerned with the inability of the standing doctrine to link environmental harm to children and future generations. Despite the inevitable impact of climate change circumventing generational boundaries, youth without representation and the unborn are unable to voice their complaints in court. The future person does not fit into the “regular” concept of a legal person, as the law does not yet have the capability to address and represent an entity which does not yet exist.[38] In the case of Faroque v Bangladesh for example, the court whilst weighing the issue of a pollution-free environment, did not grant locus standi to future generations, simply on the grounds that the Constitution of Bangladesh does not expressly provide them with any rights.[39]
The shortcoming of the courts in articulating the definition of a non-subject has meant that there is no enforceable duty of care for the health and wellbeing of future generations. In this legal reality, the right to a healthy environment, which one pertains by virtue of being a person, cannot be invoked insofar as there is no actual person who may benefit from it. This strict view of the principle that legal personhood is “based on the biological birth and death of the human being”[40] violates the basic fundamental assumption that there will, all singularities aside, be a future generation. In the face of climate change, this narrow understanding of locus standi – that the ‘individual’ in the Supreme Court Act 1981 is merely defined as legal construct rather than a legal person – must be overcome, This will allow room for alternative interpretations.
locus standi for Future Generations
The way in which both of these encumbrances can be addressed appropriately when considering climate change is through the integration of intergenerational justice into the domestic law of the United Kingdom. It will not only urge “agents to act now on the basis that the antecedent will at some point in the future come true”,[41] but will also establish a link between the plaintiff and the injury so that legal representatives of future generations will be granted the capacity to institute and commence legal proceedings. In recognizing that justice must be achieved across generations, courts can effectively play a role in preserving the future state of the environment from current impairment. This is a normative discussion and will be based on the premise that “in order to care about the future it is necessary that there be a future”.[42]
Philosophy of Intergenerational Justice
To avoid animosity, I will address the ethical element of intergenerational justice and ask whether we have a moral duty to ensure that the right to a healthy environment will also be enjoyed by future generations; otherwise it may be difficult to justify a sacrifice for the sake of a future which has not yet manifested.[43] While there is a strong presumption that there is such a duty, it must first be briefly defended that there is also a general willingness to support the preservation of the existence of humankind. I will base my value judgement on two grounds: that the “human species should survive, and that future generations are entitled to live in dignity”.[44] This notion fortunately “strikes a deep chord with all cultures, religions and nationalities”.[45]
First, from a moral standpoint, it can be assumed that the ‘human species should survive’. As Professor Weiss argued, “the interest in survival is deeply rooted in the thinking of all peoples”.[46] In this way, there is a greater moral force than a mere obligation of present generations.[47] As discussed in the previous section, it has become apparent that humans now have the capacity to shape their natural surroundings on such a scale that warrants scrutiny. We are changing our global environment irreversibly, with “profoundly damaging effects on the robustness and integrity of the planet”.[48] To an extent, humans can now “collectively decide to let the human race peter out”.[49] In the past we only had little discretion over the natural process in which humans replenished the earth. These developments in our powers inevitably changed the nature of human action.[50] With the fate of mankind in our hands, comes the moral responsibility to ensure its survival, at least in part.
Secondly, it also seems fair to assume that ‘future generations are entitled to live in dignity’. For this quality of life to manifest, three basic principles of intergenerational equity must be satisfied according to Weiss: the conservation of options, conservation of quality and conservation of access.[51] If left ignored, we are “threatening the survival of humankind under conditions worthy of human beings”.[52] The reason that we are morally obliged to play an implicit role in shaping their future is that there exists an unspoken “partnership among those who are living, those who are dead and those who are to be born”,[53] as was phrased by Edmund Burke. At present we are holding the earth on trust for all generations to come, just as previous generations did for us, and it is by virtue of this relationship that we must “realize and protect the welfare and well-being of every generation”.[54] As Weiss elegantly put it, “all generations are inherently linked to other generations, past and future, in using the common patrimony of earth”,[55] and it is with this regard that we can say that the right to a healthy environment spans across all generations.
Intergenerational Justice in International Law
Intergenerational justice is not only normative in nature, as versions of it can also be found in international treaties and conventions. The UN Framework Convention on Climate Change (UNFCCC), for example, has a clear provision for the principle of intergenerational equity. Article 3 states that “the parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities”.[56] Similarly, the Brundtland Commission maintains that “sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs”.[57] It was only a year before this report was released that there was a quest for “all Governments and peoples of the world to discharge their historical responsibility, collectively and individually, to ensure that our small planet is passed over to future generations in a condition which guarantees a life in human dignity for all”.[58] Evidently, the concept of intergenerational equity is not novel, and is instead deeply anchored in customary international law.
Intergenerational Justice in Case Law
The above analysis creates a strong argument for the introduction of intergenerational equity into domestic bodies in the United Kingdom. Internationally, some cases have already been successful in pleading the interest of future generations. In Diego Cali & Figli Srl v Servizi Ecological Porto Di Genova SpA, the ECJ stated that the prevention of pollution serves the interests of not only current, but also future generations.[59] In Nauru v Australia, the ICJ linked the rights of future generations to the liability for environmental damages. [60] Most importantly, in Minors Oposa v Department of Environment and Natural Resources in the Philippines,[61] the courts allowed a claim based directly on the concept of intergenerational responsibility. These cases show that there is already a willingness to contemplate the welfare of all generations in court decisions.
I will briefly focus on the Minors Oposa case, as the decision by the Philippines Supreme Court has the conceptual capacity to serve as a transferable model to common law jurisdictions. The facts of the case are as follows: the plaintiffs sought an order from the government to discontinue timber licensing agreements, as the grave environmental damages resulting from deforestation were “causing adverse effects, disastrous consequences, serious injury and irreparable damage … to the Plaintiff minor’s generation and to generations yet unborn”.[62] In response, the judges held that future generations should also be warranted legal personhood in the eyes of the court. They reasoned that “we find no difficulty in ruling that they can, for themselves, for others of their generation and for succeeding generations, file a class suit. Their personality to sue in behalf of succeeding generations can only be based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned”.[63] Intergenerational environmental interests were deemed sufficiently worthy of judicial protection.
In taking this strong position, the Philippines has thus welcomed climate litigation into its legal narrative. In doing, it plays an active role in reducing the detrimental effects of climate change. In granting locus standi to legitimate representations of future generations the Supreme Court has successfully imputed the missing link between the plaintiff and the injury. Applicants are now affected by the violation in question and thus have sufficient interest in the matter. Further, the next generations who will bear the brunt of the climate change impact will have a voice in court so that representatives will be granted the ability to defend the right to a healthy environment in their name.
Climate change is forcing a paradigm shift in the way that our eco- and legal-systems cooperate. The judgement passed down by the Philippines Supreme Court is a commendable decision in whereby the courts effectively responded to emerging norms. This paper encourages all common law jurisdictions to follow in their footsteps. It is only if future generations can hold public bodies accountable that climate change can be addressed with the judicial attention it deserves.
Government and Intergenerational Equity
Once intergenerational responsibility is enshrined as a legal principle, in which all three parties (non-voting youths, adults and future generations) are contemplated as co-equal, a stricter standard for the government to protect the environment can then emerge. As per the Public Trust Doctrine, the sovereign holds the environment on trust for public use and owes the public the fiduciary duty to protect and maintain the natural resources it provides.[64] When a “state holds a resource which is available for the free use of the general public, a court will look with considerable skepticism upon any governmental conduct which is calculated … to subject public uses to the self-interest of private parties”.[65] Some interests, such as that of a healthy environment, are so intrinsically important to every citizen that “a government may never alienate trust property by conveying it to a private owner and that it might not affect changes in the use to which that property has been devoted”.[66] There is no reason why this judicial protection of public resources we enjoy today should not also extend to those who will be forced to bear environmental devastations greater than what we can realistically comprehend today. With such an observation in mind, it is imperative that future generations are given a voice in court proceedings, because it is only then that the preservation of the environment will be treated equitably alongside economic or short-term exploitations.
Offering future generations locus standi not only invites climate litigation into the courtroom but will also put pressure on governments acting as trustees to abide by higher environmental protection standards. In Australia, the judges in Gray v The Minister for Planning actively extracted the meaning of intergenerational equity from the Environment Protection and Biodiversity Conservation Act 1999 [67] and used it to assert the responsibility of the government to “ensure the health, diversity and productivity of the environment”.[68] Evidently, the intergenerational preservation of the environment is already being consulted across various authoritative institutions, both domestically and internationally. Implementing the principle of intergenerational equity into legal proceedings in the United Kingdom would in theory be no more than a natural extension of the courts’ compliance with climate action.
PART III: LIMITATIONS
Reservations about the consequences of allowing future generations to legitimately gain entry into the sanctuary of the courts must also be made. Before judges can even begin their attempt in accurately predicting the particular consequences of climate change that will violate the ‘right to a healthy environment’, the courts will have to unanimously agree that future agents will in fact exist and what their identity will be. They must set aside the view that “unborn people cannot have anything as they do not exist”.[69] Without much deliberation, there is certainly an inherent difficulty in deducing steadfast conclusions from mere predictions. This is a very substantial flaw in the theory of intergenerational justice.
Sanklecha provides three requirements that must be fulfilled before intergenerational justice can be considered in its full capacity. Firstly, we must assume that there will “be agents who exist in the future at all”,[70] because if there were none, it would not be possible to assign a duty to present inhabitants of the planet to preserve it for the next. Secondly, these agents “must be of a certain sort”[71] that will demand rights that are synonymous to what understand to be fundamental. This means that the courts will have to predict their interests. Are the unknown unborn entitled to the exact same biological diversity that we currently enjoy? While for example, “depriving future generations of breathable air … would indeed be a violation of their moral obligations to posterity”, “depriving them of the opportunity to see live Dodos” might not be.[72]
Furthermore, their needs for survival may be drastically different to those we classify as necessities today. Lastly, the courts must make an assumption about the number of agents. Only if meaningful conclusions can be drawn from these predictions of the future of mankind will we be able to justify the duties that the people of today will have towards the people of tomorrow.
CONCLUSION
Tackling this environmental crisis rests upon the commitment to equality across generations. Quoting the 1972 Stockholm Conference on the Human Environment, we have a “responsibility to protect and improve the environment for both present and future generations.” At a time when children are protesting across the globe in the name of climate action, institutions are urged to finally define and implement their promise. It is not merely about sporadic protective measures, but about a long-term solution to the destabilization of the earth’s climate system. As Albert Einstein said, “we cannot solve problems by using the same kind of thinking we used when we created them”.[73] Holding his words in high esteem, we must finally allow future generations an opportunity to voice their preferences for the future in the courts of law. What the foregoing shows is that intergenerational equity is not only a moral postulate but a legal framework for environmental change.[74] Enshrining this principle in the United Kingdom as an element of locus standi has the power to reflect an ethos that is planetary in scope.
Stephanie Hader is the Co-founder and Director of Earth Refuge. She is a Penn LLM Graduate with experience in drafting government reports for both the Australian and German Parliament. Stephanie also holds a Juris Doctor from the University of Hong Kong.
[3] Albeck-Ripka, L. (2018) Climate Change Protest Draws Thousands of Australian Students, New York Times
[4] Sherbinin, A., Carr, D. Cassels, S. & Jiang, L. (2009) Population and Environment, Annu Rev Environ Resour, Vol 32
[5] Lonergan, S. (1998) The Role of Environmental Degradation in Population Displacement, Environmental Change and Security Project Report, Issue 4, 11
[6] Weston, B. and Bach, T. (2009) Recalibrating the Law of Humans with the Laws of Nature: Climate Change, Human Rights, and Intergenerational Justice, Vermont Law School Legal Research Paper Series, No. 10-06, 60
[7] UN Environment (2016) Latin American Region, Global Environment Outlook 6 Regional Assessments, 35
[8] UN Environment (2016) Pan-European Region, Global Environment Outlook 6 Regional Assessments, 66
[11] Kebede, A.S., Dunford, R., Mokrech, M., Audsley, E., Harrison, P.A., Holman, I.P. and Wimmer, F. (2015) Direct and indirect impacts of climate and socio-economic change in Europe: A sensitivity analysis for key land-and water-based sectors, Climatic Change 128(3-4), 1
[12] Safronov, A., Fokeeva, E., Rakitin, V., Grechko, E. and Shumsky, R. (2015) Severe wildfires near Moscow, Russia in 2010: Modeling of carbon monoxide pollution and comparisons with observations
[14] Costello, A., Abbas, M., Allen, A., Ball, S., Bell, S., Bellamy, R., Patterson, C., Friel, S., Groce, N., Johnson, A. et al. (2009) Managing the health effects of climate change, The Lancet
[15] Carrington, D. (2014) Earth has lost half of its wildlife in the past 40 years, says WWF, The Guardian
[16] United Nations Framework Convention on Climate Change (2018) The Paris Agreement
[17] United Nations (1966) Article 6 of the International Covenant on Civil and Political Rights
[18]Subhash Kumar v State of Bihar (1991) High Court of Judicature at Patna Criminal Miscellaneous No 55717
[19] UNEP (1972) Stockholm Convention Protecting Human Health and the Environment from Persistent Organic Pollutants
[20] UNESCO (1992) The Rio Declaration on Environment and Development
[21] Sax, J.L. (1969) The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, Michigan Law Review, Vol. 68, 484
[22]The Gabcikovo Nagmaros Project Hungary/Slovakia (1997) Reports of Judgements, Advisory Opinions and Orders, International Court of Justice
[24]Fundepublico v Mayor of Bugalagrande and Others (1991) held in favor of the right to a healthy environment as a fundamental human right. The court made reference to rights contained in the Colombian Constitution and also to “recent developments in international law”. In South Africa, Wildlife Society of Southern Africa and Others v Minister of Environmental Affairs and Tourism of the Republic of South Africa and Others (1996), the right to healthy environment was affirmed in that the court stated that the applicants had locus standi to bring the action pursuant to sections 7(4)(b) and 29 of the Interim Constitution of 1993.
[25]Fundepublico v. Mayor of Bugalagrande and Others (1991) Judgment No. T-4 15/92, First Chamber of Appeal, Constitutional Court, Santafe de Bogota, Colombia
[26] Weiss, E.B. (1990) Our Rights and Obligations to Future Generations for the Environment, The American Journal of International Law, Vol. 84, No. 198, 205
[27] De George, R. (1981) The Environment, Rights, and Future Generations, In Responsibilities to Future Generations, Environmental Ethics, New York: Prometheus Books, 161
[28] Carrington, D. (2018) David Attenborough: Collapse of Civilization is on the Horizon, The Guardian
[29] Pecaric, M. (2012) Public Interest and the Question of locus standi, Belgrade Law Review, No. 3, 318
[34] Lee, J. (2000) The Underlying Legal Theory to Support a Well-defined Human Right to a Healthy Environment as a Principle of Customary International Law, Journal of Environmental Law, 331
[35]Balmer-Schafroth and Others v Switzerland (1997) European Court of Human Rights
[36]Stichting Greenpeace v EC Commission (1998) European Court of Justice
[37]R v Paddington Valuation Office ex parte Peachey Property Corporation Ltd (1965) 2 All ER 836
[38] Haaf, L.T. (2016) Future Persons and Legal Persons: The Problematic Representation of the Future Child in the Regulation of Reproduction, Laws Vol. 5, No. 10
[39]Farooque v Government of Bangladesh (2001) National High Court, Source UNEP
[41]Sanklecha, P. (2017) Our obligations to future generations: the limits of intergenerational justice and the necessity of the ethics of metaphysics, Canadian Journal of Philosophy, Vol. 47, Issue 2-3, 232
[44] Gündling, L (1990) Our responsibility to future generations, American Journal of International Law, Vol. 84, Issue 1, 209
[45] Weiss, E.B. (1992) In Fairness To Future Generations and Sustainable Development, American University International Law Review, Vol. 8, Issue 1, 20
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