Rethinking International Law from Amazonian Onto-epistemologies: the Kukama People and the Amazonian Waterway Project

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Cristina Blanco, PhD candidate at the School of Law, University of Essex, was awarded the PhD Fieldwork Grant 2021-22 by the Socio-Legal Studies Association (SLSA). Cristina’s research focuses on the interactions between Amazonian onto-epistemologies, international law (IL) and human rights in the context of an investment project.

In the Amazonian rivers, water flow varies significantly with the seasons. During the dry season, low water levels hinder the navigation of large vessels. Although the peoples inhabiting the Amazon rainforest have travelled and traded using these rivers over centuries, the fluctuating navigability prevents uninterrupted large-scale transport. This is the main reason why the Peruvian state is promoting the “Amazonian Waterway”, an infrastructure project that consists of removing sediments from the bottom of the main Amazonian rivers.

The Amazonian Waterway is far from being an isolated project. It rather reflects the neoliberal developmental paradigm favoured by IL (Escobar 2011, Pahuja 2011, Eslava 2019). In addition to generating serious socio-environmental impacts, the project hides a profound conflict of ways of understanding the world.

The Amazonian indigenous peoples conceive the territory as a space inhabited by human and non-human entities, a conception that challenges the very definition of what we call “nature”. The sharp distinction between humans and non-humans that governs the Western world and underlies modern (international) law is not necessarily present in Amazonian cosmologies (Viveiros de Castro 2004, De la Cadena 2010, Descola 2013).

For the Kukama-Kukamiria people, for instance, the territory is inhabited by different “categories of people” living in a “plurality of worlds” (Tello 2014). The river is an (aquatic) world in itself, inhabited by beings endowed with their own subjectivity and intentionality (Rivas 2011). Therefore, thinking from the Amazon means not only standing in a geographically different place but also thinking onto-epistemically different.

In this scenario, the main problem the research seeks to explore is that IL does not take this onto-epistemic diversity seriously. Instead, it frames the issue as a cultural question of relevance to indigenous collective rights. While such rights play an indispensable role in protecting indigenous worldviews, they are insufficient to prevent their elimination.

This, in turn, has important implications in areas as critical as the Amazon. Trying to make sense of IL from the Amazon, this case study provides the opportunity to explore how to move from the impact of IL in the Amazon (historically aimed at its internationalisation) to enable the influence of Amazonian epistemologies on IL. This exercise of “Amazonising IL” enables us to reveal the epistemological richness of the Amazonian cosmovision and explore its potential for rethinking IL.

The research has three main methodological components. Substantively, it is a socio-legal research that takes as the unit of analysis the interactions between IL, human rights and the Amazonian worldview relevant to the case study. In analytical terms, it has an interdisciplinary approach theoretically informed by Amazonian studies and critical approaches to IL. As for the empirical component, it uses a case study method based on qualitative analysis of documentary and visual information, as well as in-depth semi-structured interviews.

The fieldwork was possible thanks to the valuable support of the SLSA.

Bibliographic references

De la Cadena, M. (2010). “Indigenous cosmopolitics in the Andes: Conceptual reflections beyond “politics”.” Cultural anthropology 25(2): 334-370.

Descola, P. (2013). Beyond nature and culture, University of Chicago Press.

Escobar, A. (2011). Encountering development: The making and unmaking of the Third World, Princeton University Press.

Eslava, L. (2019). The Developmental State: Independence, Dependency, and the History of the South. In: The Battle for International Law: South-North Perspectives on the Decolonization Era. J. von Bernstorff and P. Dann, Oxford University Press: 71-100.

Pahuja, S. (2011). Decolonising international law: development, economic growth and the politics of universality, Cambridge University Press.

Rivas Ruiz, R. (2011). Le serpent, mère de l’eau: chamanisme aquatique chez les Cocama-Cocamilla d’Amazonie péruvienne, Paris, EHESS.,Klecteurweb,D2.1,E192cfbd9-1f1,I250,B341720009+,SY,QDEF,A%5C9008+1,,J,H2-26,,29,,34,,39,,44,,49-50,,53-78,,80-87,NLECTEUR+PSI,R95.151.73.225,FN

Tello, L. (2014). “Ser gente en la Amazonía, fronteras de lo humano: aportes del pueblo kukama.” Amazzonia indigena e pratiche di autorappresentazione. Milano, Franco Angeli: 39-48.

Viveiros de Castro, E. (2004). Perspectivismo e multinaturalismo en la América indígena. Tierra adentro: territorio indígena y percepción del entorno. A. Surrallés and P. Hierro. Copenhague, IWGIA: 37-82.

New Legal Protections for the Environment in Relation to Armed Conflict

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By Professor Karen Hulme (School of Law, University of Essex) and Elizabeth B. Hessami (Johns Hopkins University)

Nature and conservation are inevitably harmed during armed conflict. The laws of armed conflict do provide some measure of legal protection for nature, but these rules are limited and vague. The recent adoption by the International Law Commission (a legal body within the United Nations) of a set of Draft Principles for environmental protection in relation to armed conflict is to be lauded. This post will briefly examine some of the main additions to the law in this area.

Armed conflict pollutes and destroys the environment, often leaving a permanent scar on the landscape and biodiversity of affected states. The Russian conflict in Ukraine, for example, demonstrates the devastation caused to fauna and flora when states engage in warfare on a massive scale in areas rich in biodiversity. It also witnessed a horrifying few weeks as the world saw what happens when warfare takes place in a nuclear-powered state. Thus, from the destruction of targets in forests or protected areas, to collateral harm caused by oil spills in the marine or desert environment, toxic chemical pollution from abandoned munitions, destruction of agricultural lands, and destruction of wildlife – armed conflict inflicts a multitude of harms on the natural world.

The WCEL Specialist Group on Peace, Security and Conflict has, therefore, been following closely the work of the International Law Commission (ILC) on its programme of work on the Protection of the Environment in relation to Armed Conflict. In May 2022 the ILC adopted the final version of its recommended 27 Draft Principles, sending them to the General Assembly for final consideration before adoption. Many of the Draft Principles are already rooted in international law, while some provide best practice guidance.

The culmination of over ten years work, there is no doubt that the Draft Principles represent a significant moment in the advancement of legal protection of the wartime environment. Before the creation of the Draft Principles, the current ILC Special Rapporteur, Ambassador Marja Lehto, opined that there was no “coherent legal framework for the protection of the environment in relation to armed conflict”. The approval of the ILC mandate by states, therefore, reflected an acceptance that the law in this area was inadequate, ill-defined and outdated. Certainly, there are limited treaty rules protecting the war-torn environment, particularly in civil wars – the most prevalent type of conflict. Thus, the Draft Principles draw together an extensive body of rules covering both international armed conflicts as well as civil wars (non-international armed conflicts) and are addressed to a wide range of non-state actors.

Two key dimensions of the ILC’s analysis warrant fanfare. Innovative was the decision to take a holistic approach, ensuring analysis of the legal protections afforded not just during conflict, but prior to the outbreak of conflict and post-conflict. Methodologically unique, this temporal approach allowed for the second innovative approach, namely a focus beyond the laws of armed conflict. Any area of law today is a complex web of interactions between hitherto distinct areas of law. Throwing off the shackles of a pure laws of armed conflict analysis, the ILC undertook a comprehensive analysis of the issues, drawing from areas such as environmental law, human rights law, arms control and business and human rights obligations. Having said that, it is still less than clear how these other legal regimes apply during the combat phase of conflict.

The Draft Principles are, thus, a blend of treaty law, including the laws of armed conflict, and novel guidance or best practice (known as ‘progressive development’) – which states and other actors are encouraged to follow. For example, Draft Principle 16 reiterates the clearly established treaty rule that pillage of natural resources is prohibited (effectively theft during conflict), and Draft Principle 14 the equally clear application of the foundational laws of armed conflict to the environment, such as the principles of distinction, proportionality and precautions. Novel rules are included on cooperation for post-conflict environmental assessments and remedial measures (DP 24) for example. A key one of which is the obligation for removal of toxic or other hazardous remnants of war (DP 26).

The novel structure has certainly helped the Special Rapporteurs to approach the issues from new angles, highlighting novel issues for consideration. One example being the post-conflict part, which analysed obligations of environmental remediation, liability and cooperation – issues which are generally omitted from legal instruments and are proving rather elusive in the current Russia-Ukraine conflict.

The recent humanitarian crisis created by the Russian invasion of Ukraine, when added to the plethora of other events causing people to flee their homes and lands, such as climate-related events, has pushed the number of IDP’s and Refugees above an estimated 100 million people globally according to UNHCR. Thus, displaced people must be considered during armed conflict, as must the environment that they are inhabiting. Environmental protection of lands housing displaced persons is, therefore, a welcome addition to the Draft Principles, particularly in a world where displacement is increasing at a dramatic pace. Draft Principle 8 on Human Displacement takes a novel look at the issue, recommending that states not only ‘protect the environment where they are located’, but also provide ‘relief and assistance for such persons and local communities’. Importantly, environmental protection also extends to areas of transit.

Draft Principles 10 and 11 on Corporate Due Diligence and Corporate Liability respectively require that states ensure business enterprises ‘exercise due diligence and protect the environment and human health’ in conflict-affected areas. These two provisions are an important addition to the field to deter corporate actors from preying on local populations and natural resources during such turbulent times, and preventing conflict financing through the exploitation and trade in such commodities.

Implementation of the Draft Principles will be the final step with states expected to implement them through domestic law and military manuals. They present a concise statement of law in one document, undoubtedly expanding the law on certain issues. Thus, the Draft Principles will undoubtedly serve as a point of dialogue for states to further the discussion of how to protect the environment during the conflict cycle.

Fernando Bordin wrote “Codification conventions and draft articles completed by the International Law Commission are often – and increasingly – invoked by courts, tribunals, governments and international organizations as ‘reflections of customary international law’.”

The Draft Principles, therefore, represent, an important opportunity to make a tangible, meaningful difference in the lives and environment of people caught in the crosshairs of conflict.

This article was first published on the website of the International Union for Conservation of Nature (IUCN) and is reproduced on the ELR Blog with permission and thanks. You can read the original piece here.

More about the authors:

Professor Karen Hulme, School of Law, University of Essex, UK, specializes in the legal protection of the environment during armed conflict. She has published on environmental human rights, environmental security, post-conflict obligations, the legality of specific weapons, as well as climate change, biodiversity/nature protection, oceans and protected areas. Karen is Chair of the IUCN WCEL Specialist Group on Environmental Security and Conflict Law.

Elizabeth B. Hessami

Elizabeth B. Hessami, J.D., LL.M. (Environmental Law), is a licensed attorney and Faculty Lecturer of International Environmental Policy and Environmental and Natural Resources Security for Johns Hopkins University. She has also served as a Visiting Attorney for the Environmental Law Institute (remote) for several years.

The New Harmful Communications Offence and the Online Safety Bill

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By Prof. Lorna Woods and Dr. Alexandros Antoniou, University of Essex, School of Law

There has been much discussion about the threshold at which the new offence in cl 151 of the Online Safety Bill (OSB) might bite. We demonstrate here that the threshold is, as it is intended to be, very high, a long way above mere hurt feelings. Indeed, this new offence would tighten up considerably the regime currently in force – to strike it out would maintain a lower threshold.

The Online Safety Bill, in addition to the regulatory regime, introduces a number of criminal offences, including two communications offences which are a reformulation of the existing s 127 Communications Act 2003 offences. They are not novel but rather seek to ensure that the criminal law is better fitted to the current online environment, and are focussed on the harm caused by these communications.

There are three communications offences, in addition to the cyber-flashing offence (cl 157):

  • Harmful communications offence (cl 151)
  • False communications offence (cl 152)
  • Threatening communications offence (cl 153).

This blog focuses on the first of these – the harmful communications offence.

What does it do?

It is a general harm-based communications offence to replace the current offences under s 1 of the Misuse of Communications Act 1988 and s 127(1) of the Communications Act 2003. It shifts focus from the content of a communication to its potentially harmful effects.

For a person to be prosecuted, there is a three-fold test to apply:

  1. there must have been a “real and substantial risk” that the message “would cause harm to a likely audience”
  2. the person sending the message intended that harm; and
  3. the defendant had no reasonable excuse for sending the message.

These elements must all be proven by the prosecution. The Government has tabled an amendment (NC13) which would exempt a ‘recognised news publisher’ (as defined in cl 50) from the offence in cl 151. At the time of writing, the amendment has not yet been debated.

How does this affect the threshold for criminal liability?

In its proposals to the Government, the Law Commission was clear that the new offences would set a higher threshold for criminal liability than the current rules do (para 1.35, para 2.82), though it may catch some material that would not have been caught but arguably should have been caught (the technically legal; see in particular para 1.5 and 1.6).

The Law Commission justifies raising the threshold not because it would necessarily be illegitimate to criminalise the content, but because it was unnecessary where there is a regulatory regime that deals with ‘harmful but legal’ content (para 2.9). There seems then to be a link between the higher criminal threshold and the existence of the legal but harmful provisions in the Online Safety Bill.

Looking at the threshold, cl 151(4) defines ‘harm’ as “at least serious distress”. According to the Law Commission, the use of the word “serious” was to indicate this raising of the threshold for the criminal offence. In its view, “serious” does not simply mean “more than trivial”. It means a “big, sizeable harm“.

The Law Commission notes that the term “serious distress” already features in the criminal law which allows “the courts to use existing experience and understanding” (para 2.52) as a starting point (the Law Commission expressly noted that this offence should not be bound to the harassment case law, para 2.81). It seems the threshold will be less than that of a ‘recognised medical condition’; nor need it have a substantial adverse effect on a person’s usual day-to-day activities. The Law Commission has also suggested that (once the offence is enacted) non-statutory guidance be given providing a non-exhaustive list of factors to be taken into account (para 2.83).

The Law Commission also views the fact that the offence requires that there be a risk of harm means that the offence is limited to where the harm is foreseeable by the defendant (as opposed to the possibility of actual harm no matter how unlikely). This means that there must be more than a mere risk or possibility of harm.  The requirement that there be a likely audience means that the risk of harm can be assessed in relation to the particular characteristics of the audience.

The other two elements noted above also operate to limit the scope of the offence. The DCMS has produced a factsheet on the new offence and provided clarification of how the harmful communications offence is intended to work. The intent to harm – or rather the lack of it – could be seen in the case of a call on Zoom to a doctor during which upsetting medical news is broken. There, the doctor was not intending to cause distress but to inform the patient of the facts.

The factsheet also suggests that political satirical cartoons would be unlikely to be caught by the offence: there is no evidence that the individual intended to cause at least serious distress; moreover, given the importance of political speech, it is likely that the cartoonist would be seen as having a reasonable excuse for sending the message. A similar point could be made about images from warzones.

It also gives the example of a tweet sent to the followers of the person tweeting, which says “I want to make my position on this issue clear, I do not believe that trans individuals are real women.” According to the factsheet, the person tweeting was contributing to a political debate, albeit a controversial one. This means that the person sending the communication has a reasonable excuse for sending it.

Our 2022 Essex Law Research Blog Prizes

The results for the Essex Law Research (ELR) Blog Prizes are in and the Law School’s Research Visibility Team is delighted to announce the winners for 2021-22.

This academic year, the ELR Blog published several pieces highlighting colleagues’ outstanding research and celebrating their funding successes. Thank you to all our contributors for your fascinating and insightful pieces. And, special thanks to our readers who follow along with the blog, seeing what ideas we have up our sleeves week after week.

The prize winners are those whose blog pieces attracted the highest number of views in the 12 months leading up to the Law School’s Research Away Week in July 2022.

Our contributors distinguished themselves in the following three categories.

Most viewed original blog post (sponsored by Hart Publishing)

Police and Crime Commissioners: A Dislocated Expectation? by Dr. Simon Cooper

Most viewed blog post written by a doctoral candidate

Prescripted Living: Gender Stereotypes and Data-Based Surveillance in the UK Welfare State by Laura Carter

Congratulations to all!

Understanding Administrative Law in the Common Law World: a Conversation

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Earlier this year, in March 2022, the Law School’s Public Law Cluster held a fascinating meeting to discuss Prof. Paul Daly’s book Understanding Administrative Law in the Common Law World, published by Oxford University Press.

Prof. Daly (Faculty of Law, University of Ottawa) talked about the fresh framework his book offers for understanding the core features of contemporary administrative law and distinguished guests commented on the book’s contribution:

Prof. John Bell (Emeritus Professor of Law, University of Cambridge) identified several questions that a comparative lawyer interested in European legal systems might have in reading this book.

Prof. Peter Cane (Senior Research Fellow of Christ’s College, University of Cambridge and Emeritus Professor, Australian National University College of Law) remarked that ‘divergence is just as important as convergence when it comes to either explaining or understanding administrative law across the common law world’. He pointed out that Prof. Daly has done an excellent job in tracing the convergences. 

Prof. Giacinto della Cananea (Bocconi University) described Prof. Daly’s work as ‘a healthy antidote to the recurring view that administrative law is no more than a deviation from the (supposedly) orthodox rules of law’. He made a series of useful points on Prof. Daly’s comparative approach to Common Law jurisdictions and continental European legal systems.

Prof. Daly’s response to the comments of the esteemed scholars can be accessed on the webpage of the British Association of Comparative Law here.