Environmental Law

05/03/2019

Ethiopia’s New Civil Society Law

A few weeks ago, the Ethiopian Parliament adopted a new law governing civil society organisations (CSOs). It is hard to overstate what an important and remarkable step this is for the civil society sector, their beneficiaries and funders. It is an important step because, up until now, Ethiopian law has radically constrained and frustrated the work and political spaces of CSOs. It is a remarkable step because the adoption of a new CSO law was unforeseeable less than a year ago. In this blog post, we briefly outline some of the key features of the new law and the important ways in which this law differs from the old regulatory system.

A wave of protests in 2017, followed by the surprise resignation of the then Prime Minister, Hailemariam Desalegn, in February 2018 opened the way to what many see as a new political era in Ethiopia’s history. The new Prime Minister, Abiy Ahmed, has committed to a more democratic, transparent and accountable government and has taken some steps towards achieving this goal.

One of the first things the new Prime Minister committed to do was repeal and revise a series of repressive laws, some of which had been in force for nearly a decade. Among these was the Charities and Societies Proclamation of 2009. The 2009 Proclamation states that its purpose is to ensure the right to freedom of association, but in truth, the law largely consisted of different regulatory tactics to restrict and control the activities and funding of CSOs and to significantly increase state oversight of those operations.

Over the course of the past few months, a drafting committee was convened to revise the regulatory framework for CSOs. This committee included a number of CSO representatives. After various drafts as well as public consultations, the revised law was finalized and finally adopted by Parliament. Although the new law is awaiting publication and is not yet in force, it will soon replace the 2009 Proclamation and usher in a new era for civil society in Ethiopia.

In this blog post, we consider some of the key changes that will be introduced by the new 2018 Proclamation. We start with a brief overview of the current law before turning to a discussion of some of the important features of the new legislation.

The 2009 Charities and Societies Proclamation

Ignoring the rights and freedoms embodied in its Constitution, Ethiopia has deliberately and effectively restricted the political space for CSOs through legal measures that strictly regulate the funding, management and scope of work of these organisations. A key component of this has been the 2009 Proclamation.

The 2009 Proclamation categorises CSOs into three groups, namely Ethiopian Charities and Societies;Ethiopian Residents Charities and Societies; and Foreign Charities. Ethiopian Charities and Societies cannot raise more than 10% of their revenue from foreign sources and, as a result, many of these struggle to find funding sufficient to carry out their work or even to remain in operation. Ethiopian Residents Charities and Societies and Foreign Charities are allowed to receive funds from foreign sources but they are not allowed to engage in various kinds of work. In particular, they are prohibited from carrying out advocacy activities in relation to human rights; elections and democracy; gender and religious equality; children’s rights; or the promotion of justice and law enforcement services among other activities. These restrictions have historically been defended by the State as necessary to ensure that activities of a political nature are carried out ‘by the government in collaboration with its citizens’ and not ‘foreign agents’ or entities.

The 2009 Proclamation sought to transform large parts of civil society into a service sector. One of the ways it did this was by strictly regulating the ways in which these organisations could distribute and use their funds. Most importantly, the law required all organisations falling within the scope of its application, regardless of their classification as Ethiopian, Ethiopian Residents or foreign, to allocate an amount of not less than 70% of their budget to operational costs and to allocate not more than 30% to ‘administrative activities’. The so-called 70/30 regulation was meant to ensure that the bulk of CSO funding benefited those in need. However, the Proclamation defined ‘administrative activities’ so broadly that it included a wide range of costs that normally would have been considered part of program implementation costs.  As a result, organisations have been unable to conduct training of their staff, hire researchers or commission studies, network or collaborate, participate in workshops and other learning and sharing opportunities (among many other activities) without overspending their allocated 30%.

Perhaps the single greatest problem in the regulation of CSOs, however, is the oversight of their governance by a Charities and Societies Agency. This is a government entity that is established to oversee and administer the registration, reporting and other activities of CSOs. It has been seen by many in the CSO sector as bureaucratic, incompetent and, worst of all, generally opposed to civil society as a sector.  The Agency has had wide discretion in regard to the registration and closure of CSOs, as well as a range of decisions affecting the day-to-day operations of these organisations.

Through the Agency’s administrative acts and decisions, the restrictive regulatory regime under the 2009 Proclamation has become more cumbersome, constrained and antagonistic to CSOs.

The new 2018 Proclamation – a new era for CSOs in Ethiopia

Although the new 2018 Proclamation starts in a very similar manner to the old – by stating that it is enacted for the purpose of giving effect to the right to freedom of association – the law outlines an entirely new approach to the regulation of civil society organisations. This is unsurprising as the committee appointed to redraft the law included a number of civil society representatives and the drafting process included consultation with CSOs and members of the public.

The 2018 Proclamation departs from the previous funding and membership-based categorization system and refers only to local (or indigenous) and foreign civil society organisations. The law now explicitly provides that all organisations have the right to engage in any lawful activity to accomplish their objectives. In other words, foreign and foreign-funded organisations are no longer prohibited from engaging in activities such as advocacy and human rights work. In fact, a provision has been included to specifically encourage CSOs to engage in advocacy and lobbying in regard to laws and policies “which have a relationship with the activities they are performing”.

While the old categorization of organisations has been abandoned, along with the limits of the activities of foreign and foreign-funded organisations, a shadow of this old system is found in the limitation on “lobbying political parties.” The law states that foreign organisations and indigenous (local) organizations established by Ethiopian resident, foreign citizens may not lobby or influence political parties, nor may they engage in voter education and electoral observation unless otherwise allowed by law. (The law provides that Ethiopian resident foreign citizens could avoid this restriction by establishing CSOs jointly with Ethiopian citizens). This provision aside, the law now actively calls on all CSOs to contribute to democratization and promoting the rights of their members.

Given the role that CSOs played in the drafting of the law, one surprising development is that state control over the distribution of funds is still in place. The 70/30 rule has been replaced by an 80/20 rule – now only 20% of an organisation’s income can be spent on administrative costs. The rule applies to all organisations ‘established for the benefit of the general public or that of third parties.’ At first glance, this appears to be a setback rather than an improvement in the law. However, the law now seeks to define more precisely and unambiguously what constitutes an administrative cost. These costs include salaries of administrative employees, property rentals, bank fees, attorney fees among others. They do not include training, research, networking and other costs that fell under administrative activities in the old law. This is a significant improvement even if the degree of continued state oversight of spending seems excessive.

Under the current regulatory system, CSOs have complained that they were obliged to obtain a range of permissions from the Charities and Societies Agency. Over the past decade, the Agency has had significant power to suspend and shut down CSOs and the authority to decide whether organisations will be permitted to carry out basic activities. CSOs have reported that extraordinary bureaucratic delays, incompetence, high staff turnover and corruption has meant CSOs are forced to wait for weeks (and sometimes months) to open bank accounts, finalise contracts, purchase vehicles and so forth.

The new law also establishes a Civil Society Organisations Agency with powers to oversee the registration and reporting of CSOs. The Agency’s discretion in regard to whether or not an organization may be registered and the circumstances in which an organization can be penalized has been significantly limited. The new law sets time limits on the administrative duties of the Agency (such as requiring the agency to deliver an approval to a CSO to open a bank account within 5 days) but it is not unimaginable that incompetence, high staff turnover and corruption will impede the new Agency and render the time limits meaningless. Importantly, CSOs also now have greater recourse to justice to challenge the decisions of the Agency, something many do not have under the current 2009 Proclamation.

Under the new law, the Agency’s board will be more representative. Under the 2009 Proclamation, the Board comprises seven members all of whom are appointed by the government, including two members to be appointed from the CSO sector. The new law increases the representation of CSOs to three, and stipulates that they are to be selected by the Council of CSOs, and not by the government.

Perhaps one of the most important developments in the law is that it advances a self-regulatory system for CSOs. The new law defines this as ‘a regulatory system led by a voluntary code of conduct adopted by Organizations through the Council to govern themselves’. The Council is a new entity created under the law, to be established by CSOs, but convened by the Agency. The law seems to envision a CSO led entity but one established with the assistance of the State.

Once established, the Council’s primary tasks are to: a) Enact the code of conduct for the sector, and devise enforcement mechanisms in consultation with the Agency, donors and other stakeholders, b) advise the Agency on the registration and administration of organizations, and c) represent and coordinate the civil society sector.

This move to self-regulation marks a significant shift. In the past decade, the sector has been tightly and closely regulated by the State. The new law creates a mechanism for self-governance, and ensures state assistance in putting the mechanism into place. A number of questions remain about whether the Council can effectively represent a sector as large and diverse as the Ethiopian CSO sector, and one that will likely undergo significant changes in this new regulatory environment. Questions also arise as to whether a relationship of trust and good will can be maintained between the Council and the Agency and whether close collaboration between these entities jeopardizes the Council’s independence.

Without losing sight of the many questions that arise, however, the shift to self-regulation is an intriguing and promising one. It demonstrates a shift in the way CSOs are perceived. They are no longer seen by the State as untrustworthy and self-serving, but as an important sector, and one that is best positioned to ensure CSOs are accountable, transparent, committed to good governance and to achieving all they can for their beneficiaries.

This has been a brief introduction to some of the key developments in Ethiopia’s new CSO law. While many questions remain about the effectiveness and efficiency of the new system, the law marks an exciting and important shift in the regulation of CSOs and in the State’s attitude to the sector. With the adoption of this new law, Ethiopia appears to have bucked a global trend towards stricter regulatory controls of CSOs and shrinking political space, as it moves towards greater respect for the right to freedom of association and recognition of the value and importance of a thriving civil society sector.

EDIT: The impact of the new rules were discussed in a two day conference taking place in Mekelle, Ethiopia in May 2019 which attracted around 60 participants from various CSOs (on environment, socio-economic development, consumer protection), from legal aid centres and a legal training centre, from various government authorities and courts (the Charities and Societies Agency – now the CSOs Agency -, the Federal Environment Forest and Climate Change Commission, the Regional Environmental Protection Office, the Regional Bureau of Justice, and the Regional Supreme Court), from the media, and from various research institutes. The Forum for the Environment (FfE) made this booklet with the proceedings of the conference.

11/12/2018

Impact of Single Issue Funding on Sustainable Development CSOs

By: Nicky Broeckhoven & Dina Townsend (Post-doctoral researchers, Tilburg Law School)

Researchers from Tilburg University and Mekelle University are currently collaborating on a project that aims to investigate the role of civil society organisations (CSOs) in securing sustainable development in Ethiopia. In our first blog post, we looked at restricted civic space and the impact thereof on local CSOs.[1] In this blog post, we discuss some initial findings on the impact of single issue funding. This project is part of the ‘New roles of CSOs for Inclusive Development’ Programme which investigates the assumptions underlying the civil society policy framework ‘Dialogue & Dissent’ of the Dutch Ministry of Foreign Affairs. This research is funded by NOW-WOTRO.

Mekele (Photo: D. Townsend)

Over the course of the past six months, we have conducted a series of interviews with CSOs working in Ethiopia to better understand how these organisations adapt under a regulatory regime that radically constrains their funding and activities. While regulatory constraints affect the sustainability of these organisations, a recurring theme in our interviews concerns the considerable impact of ‘single-issue funding’. Single-issue funding includes grants and funding programmes that address problems and concerns in an atomistic and isolated manner.

Single-issue funding is particularly problematic for organisations working on complex environmental problems like sustainable development, climate change and food security. Both foreign and local CSOs reported that they have been forced to either shut down or shift their programme focus due to new funder priorities. The organisations we interviewed told us that funding opportunities over the past year or two have been concentrated in the area of migration and displacement. Work on food security and other resilience programmes do not meet the funding requirements for many of these grants.

One organisation described receiving funding from a Dutch Funder to address crisis relief in Ethiopia. With this funding, the organisation established a number of local initiatives focused on food security at a local, community level. In 2017, the Dutch funder changed the focus of that funding to address migration, and the organisation no longer qualified for funding. This resulted in a loss of years of built up expertise and good community relations. This is particularly problematic in the Ethiopian context where CSOs had been portrayed as self-serving and unreliable. It also affects the stability and resilience of the communities who had previously benefited from the work of the CSO. Productive and beneficial programmes are forced to either stop or shift their focus, as funding priorities follow the shifting political winds.

This example is particularly worrying from an environmental point of view as addressing concerns such as food security, sustainable development and climate change – which also may not fall under migration funding – generally require long term engagement and are rarely short term. In addition, an atomistic approach is in direct conflict with funders’ own aims and goals, as addressing environmental threats and ensuring food security are crucial components of addressing unsustainable levels of migration.

A shift in donor focus can also have a significant, and often overlooked, impact on the institutional set-up and human resource situation of a CSO. One organisation told us that, despite their extensive expertise in environmental issues, they no longer qualified for many grants. Donor priorities had shifted to migration and the organisation could not easily transfer the expertise they had to a new and different focus area. Another organisation described how changes in donor focus had had a serious impact on their financial stability, making it harder for the organisation to retain capable and qualified staff.

Our initial findings suggest that, while state regulation in places like Ethiopia may have a significant impact on CSOs, shifting funding priorities might also jeopardize their sustainability and undermine their efforts.

05/10/2018

Supporting Local Civil Society Organisations in Ethiopia

By: Nicky Broeckhoven & Dina Townsend (Post-doctoral researchers, Tilburg Law School)

Researchers from Tilburg University and Mekelle University are currently collaborating on a project that aims to investigate the role of civil society organisations (CSOs) in securing sustainable development in Ethiopia. This project examines how CSOs have evolved and changed in response to legislative limitations on their scope of work and funding, and how this has affected their ability to work on and promote sustainable development. In this blog post, we discuss some findings from interviews conducted with a range of organisations, based both in Ethiopia and abroad. This project is part of the ‘New roles of CSOs for Inclusive Development’ Programme which investigates the assumptions underlying the civil society policy framework ‘Dialogue & Dissent’ of the Dutch Ministry of Foreign Affairs. This research is funded by NOW-WOTRO.

In 2009, the Ethiopian government adopted a new proclamation that governs the civil society sector. At the heart of this law is a system of categorization of CSOs based on their sources of funding and the nationality of their members. The law creates three groups. The first are Ethiopian Charities and Societies who are locally registered, controlled by Ethiopians and receive no more than ten percent of their funding from foreign sources. The second group, Ethiopian Resident Charities and Societies, are organisations registered in Ethiopia and whose members all reside in Ethiopia, but who receive more than ten percent of their funding from abroad. The last group, Foreign Charities, consists of those organisations registered in another country and controlled by foreign nationals, who receive their funding from foreign sources. The significance of this categorization is that only organisations falling into the first group, Ethiopian Charities and Societies, can engage in work related to human rights and democracy, and only these organisations can work on policy advocacy and lobbying. Organisations falling in both the other groups are primarily limited to service-oriented activities.

This regulatory regime has received worldwide attention and has been heavily criticized for closing down the political space of the CSO sector. For the most part, however, this attention has been focused on the impact of the regulatory regime on foreign and foreign-funded organisations (groups 2 and 3).

Over the course of the past few months, we have been conducting a series of interviews with organisations working on and in Ethiopia, in all three groups. What this research seems to suggest is that the impact of CSO laws on local Ethiopian Charities and Societies (group 1 organisations) has been severe, but largely overlooked in current debates in both academic and political fora.

While Ethiopian Charities and Societies can engage in political and human rights work, their ability to do so is radically constrained by their limited access to funding and excessive administrative and reporting obligations. These organisations struggle to raise local funds in a country plagued by poverty and in a political environment that has long viewed CSOs as suspect and as self-serving. Those with the capacity to fund local organisations are reluctant to do so either because they do not want to be associated with a sector historically viewed as hostile by the government or because they feel these organisations lack legitimacy and effectiveness.

This lack of funding and local support means many Ethiopian Charities and Societies face high staff turnover and have been forced to radically downscale their activities, including reducing the scope of their work and the areas in which they work. Organisations working on environmental and development issues in remote and rural areas have often been forced to shut down regional offices. In one case, an organization informed us that it had to stop its programme on food security and related activities, and focused instead on single groups and rights issues, sacrificing the holistic, multi-faceted approach they had previously adopted and shifting their focus away from sustainable development priorities.

Ethiopia is in a moment of extraordinary political change. It is a moment of change that was almost unimaginable as recently as February this year when the government imposed yet another state of emergency in response to protests in the Oromia region. Under the leadership of the new Prime Minister, Abiy Ahmed, Ethiopia has taken huge strides towards greater political liberalization over the past few months, releasing political prisoners and welcoming back the exiled political opposition. Prime Minister Ahmed has made it clear that revising the regulation of CSOs is a priority on his list of reforms. A working committee, consisting of various stakeholders, has already been formed to propose reforms in regard to a range of controversial issues, including the Charities and Societies law. For many working in the civil society sector, this is a time of great excitement and hope.

Many of the CSO employees we have interviewed, however, saw an ongoing need for foreign funders and organisations to be closely and carefully regulated, even if they consider the current regulation to be excessive. They believe that legitimate concerns remain about foreign funding, donor agendas and the potential for foreign influence in policy-making through the CSO sector. Even if the new regulatory regime will allow Ethiopian organisations to attract a greater degree of funding from foreign sources, many issues remain. For example, it is possible that greater foreign funding may do more to harm their reputations in an already hostile social environment. Many organisations are working hard to establish their legitimacy with both local communities and local government authorities and it is far from clear that an injection of foreign-sourced funding will improve those relationships. What’s more, foreign-funded projects in the sustainability sector often fail to understand the unique and complex social and environmental context in Ethiopia, resulting in projects that risk doing more harm than good.

This raises an important question: What role could or should foreign funders play in supporting and assisting Ethiopian Charities and Societies, if any?

Our initial findings suggest that Ethiopian Charities and Societies need support of a number of kinds. These include support through research, networking, training and awareness-raising about their work and impacts. This is particularly important for those organisations working on environmental and sustainability matters who may need greater scientific input, or help communicating with farmers and communities in difficult to reach areas. This is work that can be done without directly funding these organisations and need not wait for regulatory change. Importantly, more efforts are needed to create and support sources of local funding, regardless of any changes that may come to the regulatory regime.

Our research thus far suggests that understanding the social environment in which these organisations operate is very important. In the next phase of our empirical research, we hope to extend our understanding of this environment by interviewing a range of social actors, including community-based organisations, church organisations, private sector actors, regulatory bodies and tertiary institutions.

Rural Ethiopia (All photos: Jonathan Verschuuren)

14/09/2017

Understanding and Enhancing the Contribution of International Law to Lion Conservation

As one of the world’s most iconic and charismatic megafauna, the lion, Panthera leo, is a species whose conservation attracts international concern from conservationists and the global public alike. However, lion range and numbers have declined markedly over the last two decades.

In a recent publication in the journal Nature Conservation, two members of the Tilburg Environmental Law Team (Arie Trouwborst and Melissa Lewis) collaborated with biologists and social scientists from the University of Oxford’s Wildlife Conservation Research Unit  (WildCRU) to assess the present and potential future role of international wildlife treaties in lion conservation.

Lionesses, Kruger National Park, South Africa (photo: M. Lewis)

Like other species of large carnivores, lions present a special set of conservation issues from a legal perspective due to their great spatial requirements, elevated human-wildlife conflict potential, and role as both keystone and umbrella species. For these reasons, and because of the transboundary nature of many lion populations and some of their threats, international law plays a distinct role.

Lion conservation has featured prominently on the agendas of certain wildlife treaties – including the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and, more recently, the Convention on the Conservation of Migratory Species of Wild Animals (CMS). In October this year, for instance, Parties to the latter Convention will decide whether to list the lion on one of the CMS’s appendices, and will further consider the adoption of several draft decisions of significance for lions and other African carnivores. Although sometimes less obvious, a range of other treaties also play a role in the endeavor to conserve the world’s remaining lion populations. For instance, 39 of the sites that are currently designated as Wetlands of International Importance under the Ramsar Convention, and 18 of the areas that have been designated as World Heritage Sites under the World Heritage Convention, are of actual or potential significance to lions.  A myriad of regional instruments are also relevant – examples including the African Convention on the Conservation of Nature and Natural Resources, the SADC Protocol on Wildlife Conservation and Law Enforcement, the various treaties establishing transfrontier conservation areas (TFCAs), and even the Bern Convention on the Conservation of European Wildlife and Natural Habitats.

Lion, Kruger National Park, South Africa (photo J. Lewis)

In this paper, we identify not only a substantial body of relevant international wildlife law, but also a significant potential for enhancing these instruments’ contribution to lion conservation. We argue that the time is right to invest in such improvements, and we provide both general and treaty-specific recommendations for doing so. With the 2017 CMS Conference of the Parties fast approaching, the paper’s support for augmenting this Convention’s role in lion conservation is especially noteworthy. The paper concludes that: 

“Given the fragmented collection of treaties which currently apply to lions and the absence of adequate international instruments and/or institutions for lion conservation in at least portions of the species’ range, an important role appears, in principle, to be reserved for the CMS, both in terms of coordination and gap-filling. Listing lions under the Convention would be a logical step in this regard … [and] would both signal the need to develop more elaborate species-specific frameworks for lion conservation and sustainable use and increase the avenues available for achieving this.”

It further provides recommendations for making optimal use of the Ramsar and World Heritage Conventions and TFCA agreements in sites of importance to lions; outlines possibilities for adjusting CITES’ restrictions on the trade in lions and their parts; and emphasizes the importance of maximizing range states’ participation in, and compliance with, wildlife treaties, and of promoting strategies which involve the local people who live alongside lions.

Arie Trouwborst, Melissa Lewis, Dawn Burnham, Amy Dickman, Amy Hinks, Timothy Hodgetts, Ewan A. Macdonald & David W. Macdonald (2017) “International law and lions (Panthera leo): understanding and improving the contribution of wildlife treaties to the conservation and sustainable use of an iconic carnivore“. Nature Conservation 21: 83-128.

05/03/2015

Unconventional natural gas in South Africa: regulating the nexus between energy security and water security – Aspects of a research proposal

South Africa faces the challenge of meeting the needs of its (still) growing human population, and of doing it in a sustainable way, namely without affecting the ability of future generations to meet their needs. Energy plays a central role in this challenge, both because of its significance to economic development and because of the number interfaces and impacts it has on other critical sustainability issues – such as water security, among others.[1] In its quest for energy security, the South African government has identified unconventional gas (shale gas and coal bed methane) as a potential alternative energy resource.[2]

Coal bed methane is already being extracted in the Waterberg area of South Africa and the country is also looking to extract shale gas from the Karoo area.[3] The development of unconventional gas, however, poses a number of new challenges to existing regulatory regimes worldwide, including South Africa. These challenges are particularly pertinent to water resources.[4] The development of unconventional gas is (like most other fossil and some renewable energy sources) heavily dependent on water access and use.[5] This is mainly due to the extraction method of hydraulic fracturing whereby large amounts of water is mixed with chemical additives and pumped down a horizontal well under high pressure to enable the extraction of the trapped gas.[6] Studies indicate that the use of horizontal wells during a typical hydraulic fracturing process can require up to five times the water used by vertical wells.[7] The withdrawal of large amounts of groundwater can lead to the depletion of aquifers, and the hydraulic fracturing fluids known as flowback water, poses risks to water quality.[8] Issues of water security relating to water quality, quantity and availability are therefore at stake.[9] Because of the interdependence between the energy and water sector, an increase or decrease in one sector (energy or water) will immediately affect the other. South Africa is already struggling to maintain security of both water and energy supply and hence the energy-water nexus is very much related to its goal of achieving energy and water security.[10]

A report by the World Economic Forum highlights the interrelated risks between energy and water security as a security problem.[11] In addition other nexus frameworks include the notion of security as a normative goal complementing or even replacing the notion of sustainability.[12] The “nexus approach” is a new way to frame the interconnected challenges in water and energy governance, including within sustainable development policy goals. What is new about the nexus approach is that it considers multiple sectors as equally important.[13] Common features of existing energy-water nexus frameworks are interdependency between policy sectors, the need for integrated management across sectors and scales, and a focus on promoting security.[14]

While large amounts of water is needed for producing almost all varieties/types of energy – for example, cooling, storage, biofuels, hydropower – it is the process of hydraulic fracturing within unconventional gas development that poses the biggest risk to water quality in South Africa.[15] Concomitantly large amounts of energy are needed for pumping, storing, transporting and treating (for example, desalination) of wastewater – such as wastewater created from the hydraulic fracturing process during unconventional gas development.[16] An increase or decrease in one sector (energy or water) will immediately affect the other – if water is in short supply during droughts it may well lead to energy crises.[17] As per the World Energy Council:[18] “freshwater is required for each step – energy extraction and production, refining and processing, transportation and storage, and electric-power generation itself.” Without water and energy it will neither be possible to satisfy basic human needs nor achieve economic growth.[19] Notably, energy and water security risks depend upon the balance between economic, social and environmental consequences.[20] The cost of attaining energy and water security could be economic (eg) building new or replacing old energy and water infrastructure), social (eg closing energy and water allocations to restrict demand) or environmental (the pollution and deterioration of freshwater systems to reduce the risk of water shortage etc).[21]

While the drivers of energy and water security risk include socio-economic factors (such as population growth and economic activity) and natural phenomena (such as natural disaster, climate change impacts) it is the policies of each sector that are the biggest cause of risk.[22] This is the result of spill over effects – for example, the creation of incentives to meet energy security objectives results in the distortion of the demand for water.[23] Managing energy and water security risks necessitates the managing of trade-offs between separate or sector policy instruments.[24] Uncoordinated policy aimed at security in one area may result in less security in another: for example, less water security may be at the cost of greater energy security through unconventional gas development. Law as a social regulatory instrument is used to change human behaviour – and to achieve certain outcomes. Although a number of instruments within any regulatory framework could be used to meet energy and water security target(s) it is direct regulatory instruments such as laws or regulations stipulating, for example, quality standards, bans on certain products or practices, requirements for the application of best available techniques, obligations to obtain authorisations that are representing the bulk of instruments used.[25]

The nexus between energy and water related security objectives are not routinely addressed nor fully understood.[26] While the existence of the interdependence between energy and water is acknowledged in energy and water security terms[27] it is not certain whether the nexus (between energy and water security) is reflected in the South African regulatory framework generally, and specifically with regard to the development of unconventional gas. Regulatory frameworks that do not reflect the nexus between energy and water security, could, instead of ensuring energy and water security, achieve the opposite, namely energy and water insecurity.[28] This is applicable to regulatory regimes worldwide, including that of South Africa. Therefore it may be necessary to determine how other countries regulate and facilitate unconventional gas development and production within an energy and water security nexus.

A focus on the environmental impact(s) that pollution and depletion of water resources from the process of hydraulic fracturing within unconventional gas development may have on energy security (being an essential element of the energy/water security nexus) may provide a reference point for a comparative study on how other countries manage the energy and water security nexus in their respective regulatory frameworks.

19/11/2013

Climate change and land grabbing in Africa

Since 2008, civil society groups and transnational networks have drawn attention to one discrete source of conflict that is on the rise in the wake of resource scarcity: transnational agro-investment (Oxfam 2011; GRAIN 2012; FOE 2012). In practice this form of investment revolves around the acquisition of large areas of land, usually located in the global South and on a doubtful legal basis, often labeled as ‘land grab’. Governments of poor states are eager to welcome investments, even though there is no clear sight on beneficial long-term effects of associated changes in land use (FAO, 2012; ILC, 2012). Most contracts for these long-term transactions are effectuated between foreign investments (often government driven) and national governments that control and own the land. Some (not all) foreign investors are driven primarily by reasons that are related to climate change (we can call this ‘climate induced transnational agro-investments’). First, countries that foresee reduced domestic availability of suitable land for food production due to climate change and rapid population growth try to avoid future food shortage and high prices by producing food overseas (China being an example here). Second, most developed countries have set targets in their energy policies in attempts to cap greenhouse emissions. To meet these targets they are searching outside their own jurisdiction for suitable and affordable land to grow crops for biofuels and forestation. There is, however, another link between land grabbing and climate change: intensified land use for the African host countries not only impairs immediate food and water availability at the local level, but also reduces local communities’ resilience to engage with future climate change (hence, reducing their adaptive capacities). This, in turn, leads to serious and often irreversible socio-economic impacts, such as the displacement of local communities. Climate-induced transnational agro-investment has been on the rise in several countries in Africa, such as Ethiopia and Uganda, where large areas of fertile farmland have already been earmarked for long-term transfer to foreign investors. Companies from China, Germany, India, Israel, Pakistan, Saudi Arabia, UAE, UK, The Netherlands, Norway and the USA have concluded land lease agreements for biofuel projects with government. Tensions and conflicts are looming as a result of discontent created by the marginalization and loss of property rights of the local communities as well as lack of their participation and a benefit-sharing scheme for use of resources. There already are numerous instances of displacements of the local population as well as clearing of forests and related resources on which the livelihood of the local population depend. These activities of the investors have caused widespread fear and threats to the livelihood of the local communities and have already led to conflict in some localities. An early example of such a conflict in Uganda is the so called FACE-case. The Forests Absorbing Carbon-dioxide Emissions Foundation (FACE) is a Dutch organization that entered a partnership with Uganda Wildlife Authority (UWA) to carry out a reforestation project in Mount Elgon National Park, commencing in 1994. The project involves planting of trees inside the boundaries of Mount Elgon National Park. The idea was that FACE assists with the planting of 25,000 ha of trees to absorb carbon dioxide so as to offset emissions from a new 600 MW coal-fired power station in the Netherlands. A year before the project started, the government declared Mount Elgon a National Park and the people living within its boundaries lost all their rights. People residing in the designated area were evicted without any compensation, and court cases aimed at protecting the community interests, did not yielded much. This resulted in conflicts, where communities deliberately destroyed the trees in the park. Evictions have continued throughout the 2000s, without compensation. Although there exists an assumption that the investment is legally secured by contract law, pertinent legal questions arise about the compatibility of property rights, environmental norms, human rights and participation rights. In general, five sources of law apply to foreign agro-investment: (a) National law of the host state; (b) Customary law of local and indigenous people; (c) International law (treaty and customary law, e.g. investment law); (d) Social responsibility norms and codes of conducts; (e) National law of the investor’s home state. It is unclear, however, how the legal norms of this complex multilevel system interact in practice. Such legal questions regarding changes in land change within the bigger climate change context have largely escaped the attention of environmental, human rights and investment lawyers to date. Legal analyses of the phenomenon of foreign direct investment and its impact on local communities’ rights are scarce. Moreover, evidence shows that legal entitlements and rights are not evenly distributed. In general it can be stated that while investors’ interests are legally enforceable and thereby protected, the interests of local and indigenous people are mostly regulated by ‘soft norms’- e.g. the principle of free prior and informed consent that in practice is extremely difficult to enforce. As climate change threatens to become an ever more acute and serious problem, and population pressure increases, foreign agro – investment is an increasing source of conflict. This being so, we can no longer postpone thinking about the legal nature and the legal implications of climate-induced foreign agro-investment. One promising legal pathway is to focus on the legal agreements through which long-term land deals are being completed. These contracts or bilateral investment treaties contain critical information that determines the scope and terms of the investment deal, including the distribution of risks among stakeholders. The nature of the parties signing the contract (private or public) and through what process, significantly impacts on the extent to which local communities are involved and can make their voices heard. Practice suggests that local communities and rural landowners are rarely consulted in negotiations. Likewise, the terms of the contracts could have profound and possibly irreversible consequences for food security and stability in the host countries. It is hence crucial that contractual arrangements also address both environmental and social issues (e.g. job creation, infrastructure development). This is an area where linking contract law to customary, national, and international law and codes of conduct is particularly important for a full understanding of the implications of the contracts. Recently, several codes of conduct and principles for responsible investment (e.g. World Bank, FAO, IFAD, the UNCTAD, OECD, IFC standards, Ruggie Principles in Responsible Contracts, etc.) have been added at the international level to the existing body of law regulating foreign agro-investments. Similarly, at the regional level there has been increasing activity concerning promoting responsible investment; the African Land Policy Framework and Guidelines Initiative that is being led by the African Union for example addresses the issue. However, how these soft norms relate to individual contracts is far from clear and needs to be explored. It appears that domestic practices throughout Africa are quite diverse, ranging from no relationship whatsoever, to, for example, an explicit coverage of responsible and sustainable investment clauses in all contracts and the duty to have each contract ratified by parliament, as is the case in Liberia. Zambia has largely regulated foreign agro-investments, with the aim to guaranteeing continued supply at fair prices to local markets and the use of local farmers who have to earn a decent salary. A search for best practices in Africa is a good way to start researching effective regulatory frameworks for responsible and sustainable transnational agro-investments!