Tag Archives: Bolivia

Back to the tyranny of the majority in Bolivia’s TIPNIS dispute

by Rhodri C. Williams

After much equivocation, President Evo Morales of Bolivia has returned to his original position that the population of both departments abutting the Isiboro Secure Indigenous Territory and National Park (‘TIPNIS’ in Spanish) – rather than the residents of the Park themselves – should decide on his long-running ambition to build a road directly through its center:

… Morales said on Tuesday that it made sense for everyone in Beni and Cochabamba to vote on the road because the residents of these two departments would be the ultimate “beneficiaries.”  In contrast, according to Evo, polling the residents of TIPNIS would potentially allow “small groups” of opponents to veto the desires of the majority (perhaps not within the park itself, but within the two departments that would be connected by the road).

Nicholas Fromherz reflects on this news from a procedural justice perspective at South American Law, pointing out that President Morales’ repeated failure to respect the rules on consultation he himself gave constitutional status represents a fundamental injustice.

Granted, the millions who live in Cochabamba and Beni would, as Morales indicates, be the prime beneficiaries of this project.  But would they also suffer the severest of its consequences?  When deciding who should have a say in the matter, we would presumably agree that it would be improper to hand the decision over to the potential “winners” while muzzling the “losers.”

One of my current academic works focuses on this very topic.  Like all big public projects, environmentally-sensitive projects – roads, dams, power plants, etc. – imply winners and losers.  It is my contention that the upsides of these projects are often quite diffuse, inuring to the benefit of large regions or even entire nations.  The downsides, in contrast, are often concentrated in relatively small areas.

This analysis links what have been two of the core concerns discussed in this blog in relation to disputes over land and territory. First, there is the principle, widely accepted in theory and almost as widely flouted in practice, that those forced to bear the direct burden of development projects should end up in in no less favorable a position then they would have been had the project not been carried out.  As Natalie Bugalski observed in these pages, in relation to the Asian Development Bank’s involuntary resettlement policy, fifteen years of practice has brought limited progress:

The rationale behind the policy was a shift away from the perception that development-induced displacement and attendant harms suffered by those physically and economically displaced is a “sacrifice” some people have to make for the larger good. It is apparent, however, that despite the adoption of increasingly progressive and rights-oriented policies, the utilitarian view of development-induced displacement continues to dominate the culture and individual staff views of the ADB and many other aid and development institutions.

Second, the stakes in such controversies are even higher when the parties at the business end of development projects constitute minority groups, and particularly indigenous peoples. In such cases, the failure to give special weight to the concern of such groups can lead not only to the destruction of their livelihoods, but also the loss of their identity. The idea that indigenous peoples whose territory has been incorporated into larger states should be permitted to defend it against the whims of a political community they did not choose to be part of is integral to texts such as the UN Declaration on the Rights of Indigenous Peoples. As I noted in my own first stab at analyzing the TIPNIS imbroglio, resort to majority rule may be tantamount to revoking TIPNIS’ status:

The rationale for recognizing the territories of indigenous peoples is typically the need to protect them – as minorities – from the effects of democratic decision-making processes they can never win. This is what makes both the failure to consult with the affected communities in advance and the proposal for a referendum now more than dubious. Even at the regional level, a majority can surely be found that would prefer commerce with Brazil to the less tangible benefits of living next to some of the world’s last functioning indigenous societies. At the national level, support for the road may be even stronger. Mr. Morales may be indigenous, but he is also an elected politician.

The controversy will no doubt rumble on, particularly given that the plight of the indigenous minorities resident in TIPNIS appear to have captured the sympathy of the broader public. However, the abandonment of progressive principles by a President elected on the strength of his commitment to equitable development and accountability through consultation indicates just how much work remains to be done.

Guest posting announcements and updates – Focus on Somalia, Colombia, Kosovo, Bolivia and Ecuador

First of all, I am very pleased to announce that repeat TN guest author and independent consultant Shane Quinn will shortly be providing some observations on recent proposals to stabilize Somalia by providing autonomy to its regions. I am also expecting follow-up pieces by Brookings collaborator Roberto Vidal on property issues in Colombia, and by legal aid team leader Massimo Moratti on property claims in Kosovo.

In the meantime, I also wanted to provide some follow-up on two recent guest-postings contributed by Nicholas Fromherz of the South American Law and Policy blog. First, Nicholas has provided an update to his earlier observations in TN on the controversy over plans to build a road through the TIPNIS nature reserve in Bolivia. Once again, it seems that the appearance of government restraint in the matter may be deceiving.

Second, a further comment on litigation over oil extraction-related damages in Bolivia by Chevron-associated law professor Doug Cassel on Opinio Juris – as well as the associated comments – highlight some of the key issues Nick raised in his guest-posting on the same topic – and its associated comments. Particularly interesting are questions related to tensions between the merits of the case and the behavior of the parties. However, Dr. Cassel also defends the engagement of human rights actors in favor of even big corporate plaintiffs like Chevron as necessary to demonstrate a level of consistency and impartiality necessary to convince such firms to sign onto voluntary human rights guidelines.

See Shane’s posting here:
– Local governance in Somalia – New emperor in old clothes? (18 April 2012)

 

An inconvenient forum: Thoughts on the Chevron-Ecuador Case

by Nicholas A. Fromherz

As a student of environmental law, resident of the Andes, and former clerk for two federal judges, I have followed the Chevron-Ecuador case with increasing interest—and, of late, increasing concern.  No matter which side we believe, it is clear that the people and ecology of Ecuador’s Lago Agrio region have been affected by the operations of Chevron (or, perhaps more accurately, those of predecessor Texaco and the state-owned Ecuadorian firm Petroecuador).

But that will always be the case with extractive industry—more important factors for purposes of litigation are to what extent and what, if anything, was done in the way of prevention and/or mitigation. This post will not attempt to answer those questions.  More informed individuals and groups have offered a range of answers as to these very points (see here and here), and my own speculation on the matter would only add to what has become a morass of conflicting information.

Instead of analyzing the merits of the case, I would like to discuss two issues that have received less than complete coverage: (1) the unintended and unlikely consequences of Chevron’s effort to remove the case from U.S. federal court on grounds of forum non conveniens; and (2) the institutional and socio-political factors that must be considered when analyzing Chevron’s claims of judicial corruption by the Ecuadorian courts.

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Waking from a dream in Bolivia: The TIPNIS victory that never was

by Nicholas A. Fromherz

Caption: Highlands indigenous leaders prepare for a hunger strike in Cochabamba, showing their support for the lowland tribes fighting against the road through TIPNIS. Photo credit: Nicholas A. Fromherz

On October 24, 2011, Bolivians breathed a collective sigh of relief.  After a two-month struggle, culminating in massive protests in front of the Presidential Palace in La Paz, Evo Morales signed a bill declaring the Territorio Indígena y Parque Nacional Isiboro-Secure (TIPNIS) “untouchable.”

The controversial road connecting Villa Tunari with San Ignacio de Moxos would not pass through the national park and protected indigenous territory.  The peoples’ cry to defend TIPNIS had been heard; “Evo Pueblo” had lived up to his moniker, even if only under extreme pressure, and had listened to his constituents.  He even said so himself:  “The TIPNIS issue is resolved,” he declared. “This is governing by obeying the people.”

Or so we thought.  Though many were probably skeptical from the start, many others—myself included—thought the case was closed.  The government would still likely construct a road between Villa Tunari and San Ignacio de Moxos, but the new law dictated that it would skirt the park.  That, not prohibition of a road altogether, had always been the goal.

As the last few weeks have shown, however, the victory dance was premature.  On February 10, 2012, President Morales signed a new law bringing back from the dead the possibility a road through TIPNIS.  Three-and-a-half months after declaring the park “untouchable,” Morales signed a law calling for a “prior consultation” to determine whether the road should go forward as originally planned. How did this happen, and how can we make sense of it?

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Nicholas Fromherz to guest post on the Bolivia TIPNIS debate

by Rhodri C. Williams

Land issues in Bolivia made their debut on TN last Fall, when a dispute over President Evo Morales’ plan to run a road straight through the center of the the  Isiboro-Secure Indigenous Territory and National Park (TIPNIS in Spanish) came to light. Commentators fastened on the seeming irony of Bolivia’s first emphatically indigenous head of state’s decision to compromise the integrity of indigenous land without even observing the constitutional necessity of prior consultation. At the time, I contrasted the problem of lack of democratic accountability in simultaneous land riots in China with the problem of overreliance on majority rule in Bolivia:

The rationale for recognizing the territories of indigenous peoples is typically the need to protect them – as minorities – from the effects of democratic decision-making processes they can never win. This is what makes both the failure to consult with the affected communities in advance and the proposal for a referendum now more than dubious. Even at the regional level, a majority can surely be found that would prefer commerce with Brazil to the less tangible benefits of living next to some of the world’s last functioning indigenous societies. At the national level, support for the road may be even stronger. Mr. Morales may be indigenous, but he is also an elected politician.

 As subsequent analysis would in fact demonstrate, “indigenous peoples” are no more a monolithic category in Bolivia than minority groups are anywhere, and many of the key backers of the road were also indigenous groups with diverging economic agendas and political links to the President. Accordingly, even as protesters forced the government to negotiations by October, the outcome of the issue remained uncertain. At that point, I quoted an interesting commentary in Foreign Affairs chronicling the “tremendous damage” the mishandling of the TIPNIS issue had done to President Morales’ credibility. Unbeknownst to me, the author, Nicholas Fromherz, was a fellow blogger at South American Law & Policy. When Nicholas later picked up on a TN piece on Colombia, I began to realize how much good, locally informed analysis is out there on the TIPNIS controversy.

As a result, I am very grateful to Nicholas for agreeing to post on TN with an update on TIPNIS that will pull together some of the threads from the various media and blogosphere sources Nicholas covers. To update the story a little since TN’s last coverage, South American Law has chronicled the progress of the protesters, their arrival in La Paz, Morales’ initial acquiescence to their demands, and the adoption of a bill in late October quashing the road project. However, by December proponents of the road had organized, leading to legislative reconsideration of the TIPNIS bill and a decision by Morales to revisit the issue in consultation with all affected parties. Nicholas also provided an analysis of the requirement to consult in the Bolivian Constitution, linking it with broader research he is undertaking on whether resettlement standards should require actors to merely seek or actually secure informed consent.UPDATE: Please see Nicholas’ guest-posting here.

Week in links – week 42/2011: land disputes in Bolivia, India, Kyrgyzstan and the UK

This week, we have a few updates on recent stories covered in TN:

First, the indigenous protesters marching against the construction of a road through the Tipnis national park in Bolivia have reached the capital La Paz and are settling in to force the Government to negotiate on the issue. Nicholas Fromherz of Foreign Affairs provides an analysis of the tremendous damage the mishandling of this issue has done to President Evo Morales’ credibility.

Having recently taken China to task for its stereotypically stilted response to public outrage over crooked land takings, as well as its stereotypically draconian response to community resistance to being evicted, I am now presented with the classic counter-stereotype in India, where public acquisition of rural land to facilitate large-scale investment is also a pressing issue. Having adopted a new ‘light footprint’ policy on facilitating purchases of land for industrial use after protests last spring and summer, the government of the Uttar Pradesh province now faces a court decision ordering the return of previously acquired land and compensation for parcels investors already built on. Without taking a position on the actual case, it is a classic instance of the great BRIC dichotomy, with India a trickier business environment than China, but frequently for the right reasons.

More dispiriting follow-up to the ethnic mayhem in Kyrgyzstan last year, this time in OpenDemocracy. First, Bruno de Cordier gives a bleak overview of structural violence in Central Asia in the form of rentier politics and patronage societies. Then Elmira Satybaldieva portrays how these patterns are reflected in the fragmented and untransparent politicking in the leadup to Kyrgyzstan’s 30 October elections. With the land disputes and other grievances underlying last year’s violence still unresolved, the prognosis is worrisome.

FAO has described how Sweden, notwithstanding its past ambiguity on the right to water, is funding a highly innovative scheme to help farmers in eastern Kenya develop greater resilience in the face of climate instability, in part through better water management techniques. IRIN, for its part, reports on how poorly Kenya fares in general in advance mitigation of disasters, whether of the natural variety or man-made examples such as last month’s appalling pipeline fire.

And just to recall that housing and land issues remain relevant in the Global North, the New York Times reports on the messy beginnings of the eviction of a traveler community from the Dale Farm encampment they have occupied for years in Essex, UK – while the Guardian documents the surprisingly peaceful end of the process. On OpenDemocracy, Justin Baidoo-Hackman explores the issue of whether the evictions qualify as ethnic cleansing (my take: forced evictions are already plenty bad).

Bolivia road protests continue

by Rhodri C. Williams

Following up on my earlier post on indigenous peoples’ protests against a road project in Bolivia, it seems there have been further developments. In brief, the minister responsible for the violent removal of the protesters has now resigned and the march to La Paz has resumed. The fate of Bolivia’s Isiboro Secure Indigenous Territory and National Park (‘Tipnis’ in Spanish) continues to hang in the balance.

In addition to providing updated coverage of the issue, the BBC has also recently provided a useful analysis of why President Morales, himself both indigenous and an advocate of the rights of indigenous peoples, would persist in backing the proposed road (“Bolivia Amazon protesters resume Tipnis road march”, 01 October 2011). The analysis merits quoting at length: Continue reading