Environmental Law

20/05/2020

Citizen Sensing: towards a right to contribute to environmental information

Dr. Anna Berti Suman

On May 7, 2020, we engaged in a webinar “Citizen Sensing: towards a right to contribute to environmental information”, with more than 80 participants from all over the world. Citizen sensing, which I framed as grassroots-driven monitoring initiatives based on human senses often enhanced by sensor technologies, is increasingly entering environmental (risk) governance. Whereas the majority of studies on broader citizen science focus on the learning or participatory aspects, in the webinar we targeted the legal sides of environmental citizen sensing. The webinar – originally intended to be a workshop at the Tilburg Public Library LocHal supported by the Netherlands Network for Human Rights Research – soon became ‘virtual’ due to the Covid-19 crisis, as also went ‘digital’ my PhD defense the day after.

The webinar focused on two interrelated aspects emerged from the key findings of the PhD project “Sensing the risk. In search of the factors influencing the policy uptake of citizen sensing”:

• Whether a legal instrument for regulating citizen sensing is needed, specifically providing for different forms of integration of the practice into institutional settings;
• Whether such a legal instrument should include the recognition of a “right to contribute to environmental information” and a consequent obligation for competent authorities to listen to the sensing citizens and consider their evidence to take action.

I suggested that such a legal intervention could ensure that, if certain conditions are met, authorities are stimulated to (or even obliged to) use citizen-sensed data and insights for their decisions. Moreover, the recognition of a right to contribute to environmental information’ could both ‘legitimize’ citizen sensing and facilitate its policy uptake and also shield participants from adverse (legal) consequences associated with the exercise of the practice, such as strategic lawsuit against public participations.

The webinar addressed these two intertwined questions from a number of different academic and practice-based perspectives. Yet, numerous questions rest open, such as whether this right to contribute could be considered a new human right and, thus, what would be its relationship to the existing procedural human right to access environmental information under the Aarhus Convention, or how this new right could be implemented and enforced. In terms of regulating citizen sensing, avenues are still open as for what would be the preferable form, considering also the administrative level (e.g. local or national) and cross-country aspects (e.g. an EU-wide provision or per country). Future explorations should also address the question on whether this legal instrument would create just the ‘possibility’ for authorities to use citizen sensing or rather be ‘obliged’ to recur to such data, when certain conditions are met (e.g. information is inadequate from the official side). The discussion seems particularly needed both for academia and for practice as (legal) researchers are almost absent from this inquiry (with some pioneers excluded, and my forthcoming SensJus project) and that sensing citizens rarely ‘call in’ the law and rights in the discussion as they do not know how to ‘use’ them, or simply do not trust their enforcement.

In the webinar, we explored these questions from various perspectives, inviting to the (virtual) table citizens, experts and practitioners from different disciplines and standpoints. Communication scholar Yasuhito Abe, from Komazawa University, offered an historical journey into (nuclear) citizen sensing. Abe made a key argument noting: “from my fieldwork and historical studies, I am not saying that law instrument is the only resource that citizens use to make an effective argument concerning environmental policy, including decontamination in Japan, but I believe a legal instrument should be one of the key resources for citizen scientists to make a claim” [emphasis added]. Interestingly, Abe also noted that – in his fieldwork – only few citizens that he interviewed referred to the law, and nobody had a legal background among the citizen scientists he met. Even in his historical research on civic nuclear monitoring after Chernobyl, he did not find substantial evidence that citizens were concerned about a legal instrument. The law may thus be “invisible to some citizen scientists”, wisely noted Abe. To the question on whether a right to contribute to environmental information would be needed, Abe’s findings suggest that there are people who take action when necessary, regardless of the existence of a legal instrument, as they urgently need to know the levels of radiation for their health and safety after a disaster. Bringing in the issue of culture and temporality, Abe stressed that the necessity of a legal instrument and the shape thereof may change depending on the cultural and temporal context, so a ‘one fits all approach’ would not work, nor a ‘one-way communication’ between institutions and the citizens. Lastly, Abe warned us that we need to take into account how the institutionalization of citizen science and sensing under the name of law has potential chilling effects, for example missing the fact that the perception and application of the law differs very much according to culture, and – I add – that law risks to hamper innovation.

The conversation continued with the experience of three citizen sensing communities, each of them offered a brief statement on the questions from an applied perspective. The first speaker was Jean-Paul Close, co-founder of the AiREAS civic initiative aimed to monitor air quality in the city of Eindhoven. Close brought to the fore their ‘ideological approach’ to civic monitoring which entails going beyond a basic sensing infrastructure that is government’s responsibility, to reach an integrated infrastructures where health and wellbeing are the core, and even a multidisciplinary co-creation of human core values. Close stressed that – before being a sensing citizen – he is “primarily a human being, and a single father”. From that point of view, he addressed the local government saying that he wished to live in a healthy city. “The city wanted that too” argued Close. The citizens were “standing up” and taking their own responsibility, but they also needed the government to reach this objective and vice versa. “So they brought all people together, but that made the collaboration illegal, because government could not be intermingling in certain private companies activities, so they had to change laws for this” [emphasis added], tells Close. This suggests that the legal framework, as it is, may need to be adjusted to ensure that collaboration between the citizens, governmental and private actors is viable. Close also explored the opportunity to recognize the action of sensing a right. He noted: “You are smelling, tasting, seeing etc. on a daily basis, and if you want to extend that sensing by use of technology, you have to make it your basic right to do so. Therefore laws must be adapted.”

The second experience for practice was from computer designer and innovator René van der Weerd, who shared the story of the Meet Je Stad initiative originated in Amersfoort and entailing citizens’ measurement of temperature and humidity (also described in a piece by De Moor). From Amersfoort, the initiative soon landed in Tilburg where people started meeting at the city’s public library LocHal to make their own measuring instrument. This, according to van der Weerd, stimulated their curiosity towards the understanding of the implications from the collected data, and made them feel responsible towards assessing the issue. René stressed how there is no governmental interpretation of the raw data, which suggests the importance of keeping a certain independence while striving for integration. Despite the municipality provided some funding to deploy the sensing, the network is organized in a way that preserves integrity and autonomy from political oversight.

The third insight from practice was from Giorgio Santoriello, president of the COVA Contro Association and founder of the Analyze Basilicata citizen sensing initiative, which fights oil industry-related environmental crimes in the South of Italy. Giorgio stressed the need to ensure a legal protection in contexts, such as the Basilicata region, where conducting civic monitoring can be dangerous for the sensing citizens. Especially where the private sector is powerful as the government and it almost ‘substitutes’ appointed institutions, it is important that civic actors intervene to make fellow citizens and governments aware of the real impact of the oil industry. Giorgio also timely noted that designing laws to support the sensing citizens is only a part of the intervention, as it is essential that these legal provisions are actually enforced.

The perspective of the environmental activist was represented by Davide Scotti, high school teacher and ‘rebel’ with the environmental movement Extinction Rebellion Milan. Davide told us how Extinction Rebellion (XR), as a movement that wishes to change the system, is based non-violent civil disobedience (of which citizen sensing could be regarded as a manifestation). XR, declaring the climate emergency, wants to make people aware of the problem and push them to join forces, in order to force the government in a non-violent way to take action to halt the climate crisis. Whereas it may sounds paradoxical to ask the government for recognition of a right if XR is a movement that contests the system for not protecting the common good, Davide still sees the need for governmental intervention but in a drastic new way. As a matter of fact, XR asks the government to establish citizens’ assemblies where the citizens – selected in a demographically representative ways – can directly participate in the decision-making on the ecological crisis. This approach could stimulate the ‘legitimization’ of power and of the resulting decisions. Furthermore, participating in civic assemblies could enhance people’s awareness of the climate emergency. “If everyone would be aware of how deep we are into the crisis, everyone would be measuring”, argued Davide. The experience of Davide and of XR where numerous youngsters gather to voice their claims is also quite remarkable considering that, from my empirical analysis, I often noted that young adults are a minority in citizen sensing programs.

Two environmental law views joined the discussion. The first view was offered from practicing lawyer Veronica Dini, also founder of Systasis, study center for the governance of environmental conflicts also through mediation, who recently engaged in the topic of civic assemblies and of civic monitoring programs. When environmental issues are at stake, she noted, environmental information is often the source of controversies. Often, there is either insufficient information made available or readable to the people that are affected due to resistance and cultural aspects of the competent authorities. Sometime the information is lacking altogether. This may originate environmental conflicts. To address conflicts originated from information gaps, it is crucial that information is collected and shared in a correct way, grasping all its complexity, and that people can participate in this feeding in their ‘collective intelligence’. Conscious public participation can really improve shared decisions and deflate the environmental conflict, argued Dini. But we need to ensure that the active citizens receive feedback from the administration and feel that their contribution really influences the formation and the outcome of decisions. Providing a key point for the development of a new right, Dini noted that access to information is key to a real democracy and to rebuild a climate of trust between citizens and institutions. The (not only informed but) monitoring citizen, in fact, can play a fundamental role in enriching the debate with an aware, mature and participatory citizenship. We need, however, to avoid the risk described by philosopher Baudrillard that “the inflation of information produces deflation of meaning” (or, in other words, too much information and not enough meaning).

Also environmental law scholar Francesco Sindico, founder and developer of the Strathclyde Centre for Environmental Law and Governance, shared his experience starting from environmental monitoring and participation in Island states. For Sindico, the starting point is to wonder a number of questions such as “who needs to have the information?”; “who is the “island community?”; “to whom must the information be sent?”. Also the when, why (i.e. what to lobby for) and where to use the information are relevant as laws and rights always work in contexts. A regulation of the practice in China, Africa or in rural settings may substantially differ from Europe. If we discuss of a ‘new’ right, we need to define how do we enforce it, especially when larger fringes of society are not really interested in or do not care for the information. Lastly, also the aspect of “who is a scientist” and the mistrust in general science plays a role here. In terms of actual legal instrument to regulate citizen sensing, the guidelines that will be soon released based on a study of citizen science for environmental policy may be a benchmark and starting point in this direction as they could steer authorities, although they are non-binding. There seems to exist a trade-off in terms of how far we want to/can go with regulating citizen sensing. Non-legal avenues may be more suitable too, for example leaving completely the shaping of the practice to society. In any case, citizen sensing can never be made ‘mandatory’ because nobody can be obliged to do it. Participation should be open to everybody, but if people do not want to participate they should feel free to do so or not.

Legal and bioethicist researcher Carlo Botrugno shared his perspective from bioethics, developed at Florence University and as founder of the Research Unit on Everyday Bioethics and Ethics of Science (RUEBES). Botrugno guided us in the understanding of what citizen sensing can learn from a bioethical lens, starting from bridging the gap between biology and human values. Environmental bioethics in particular seems particularly fitting the debate for its link with public and environmental health, and also its connection with social justice. Especially an ‘everyday’ bioethics may be relevant here as it connects with daily monitoring practices that enter the lives of the sensing citizens. The transition from science to post-normal science grasped by such a lens seemed also important as it again stresses the complexity of the decision-making and the need for larger evidence bases. As science loses its credibility and validity in many people’s eyes, more citizens claims a right to become source of scientific data. In the end, all actors in society, including scientists, are “mutual and multidirectional” and they embed values in their assessments.

As last inputs, we could listen to the perspective of two sociology scholars. First, Michiel Van Oudheusden, Marie Skłodowska-Curie individual research fellow at the University of Cambridge on the relation between grassroots citizen science groups and formal institution. Van Oudheusden could bring in his (preliminary) experience on grassroots citizen science in non-EU contexts and “other democratic” countries, such as Japan and Uganda, or in China, where “people are not officially allowed to gather such data”. To the key question “is a regulating law needed for grassroots citizen sensing?”, Van Oudheusden’s answer in short, it all depends! Cultural differences (beyond time-related features mentioned by Yasuhito) have an important influence on answer. In Flanders, the Belgian civic sensing initiative CurieuzeNeuzen is a good example of an “activist movement tackling air pollution” which soon “became massive, [and] is now almost an export product in Europe.” The initiative managed to put pressure on the government (and – I add – also to the judiciary through the support of Greenpeace Belgium), but also on peer citizens as people moved to the coast because they realized that the air quality is better there. For such an initiative, in a country such as Belgium where “regulation is very much part of our culture/heritage”, “there should be some institutionalisation, perhaps not mandatory or official, but some institute that facilitates exchange in two directions, as a dialogue” [emphasis added].

The second perspective from the sociological lens was from Joke Kenens, PhD student at the KU Leuven, Centre of Sociological Research, and the Belgian Nuclear Research Centre. Kenens, throughout her PhD research, inquired the potential of grassroots-driven citizen radiation measuring organizations after Fukushima, taking into account historical and societal aspects of Japanese citizen science. Kenens stressed – again – the importance of contextual factors specific for a certain society. Indeed, in Japan, she witnessed “a general gap between citizens and governments”, where local authorities almost never refer to citizen-sensed data. Institutions do not believe in the standards used by the sensing citizens and also they are concerned that their activities are partisan (although often they are supported by scientists and even lawyers), but these data are not “wrong or right, they are just from another perspective!” At time, noted Kenens, citizen scientists’ data even end up in courts but often the ‘times’ of a court ruling are just too long for the civic desires of justice, and maybe alternative dispute resolution and environmental mediation may be more effective in offering relief to affected people.

   Images and poster’s credit: Alice Toietta

At the end of the webinar, Alice Toietta*, designer and illustrator and ‘rebel’ from XR Milan, created drawings for each perspective (now visible in the text), providing a visualization of each view point and displaying her artwork to the audience. The result was a telling poster compiling together all the different insights. She shared her experience illustrating the webinar: “We all have different ways of remembering and understanding: through observing, hearing, writing, or repeating, we learn. Drawing is my way of making sense of complex notions: by using metaphors, I strive to simplify concepts, and make them visible. […] There are so many points of view through which one can explore the topic of citizen sensing. During the webinar, […] speakers, coming from different areas of expertise, gave us participants a peek in each of their worlds, opening our minds to many questions and sparking our curiosity even further.” This approach of visualizing complex (legal) concepts through drawing will continue within the framework of the SensJus project.

[*you can reach Alice Toietta at greenpumpkingarden@gmail.com]

We also encouraged the audience to draw what they grasped from the discussion. A participant, for example, sent us the illustration below.

Image credit: Alice Bosma

After, we moved to a brief question and answer session, where some of the numerous questions raised could be addressed. Among the questions raised, I can mention a question about good examples on inclusion of citizen sensing. Van Oudheusden noted that it is important before considering good examples it is important to be careful to the question if striving for full inclusion is always desirable. Van Oudheusden mentioned the case of flu measurements in Belgium in the 2000’s and recently with Covid-19 where citizens described symptoms were integrated in official decision-making in a very top-down manner. The CurieuzeNeuzen initiative may be a good example of successful contribution to policy-making, however context and time are key to understand and build viable integration processes. In exploring such questions, it is relevant to understand varying “ecologies of co-creation”, and – as geographic information system scholar Muki Haklay suggests – every person may wish to be engaged in a different matter.

Another participant wondered how citizen sensing initiatives can ensure that the government takes a strong role in tackling environmental concerns without abandoning its responsibilities and transferring the responsibility to the local communities? Close from AiREAS stressed that their initiative’s approach in not about abandoning responsibilities but rather transforming them to a new format, that is, the co-creation stage underpinning the project. The issue of representativeness of the sensed data came to the fore. The civic group that gives input may be only a caring minority “which manages to wield strong influence in comparison to a silent majority”. Participation might in this sense be only apparently democratic but can revert to its opposite “if there is a cadre of ‘professional participators’ who […] dominate the discussion and gain influence.” Addressing the issue of (mis)representation of marginalised groups lacking the time or resources to conduct citizen sensing effectively (‘active’ participation, compared to ‘passive participation’ according to Close) seems a fundamental aspect when discussing a regulation of citizen sensing and a right to contribute to environmental information. As Abe stressed, in exploring the (in)equality of citizen sensing, also the issue of leadership in such initiatives should be addressed.

Also the aspect of data quality and precision in citizen sensing measurement emerged. A participant noted “I hear a number of speakers highlighting uncertainties. For instance […] René [from MeetJeStad] said ‘well the stations are not very precise, but they give an idea’. However, lawyers need more precision. A limit value is either exceeded or it is not, law is in that sense black and white. And if citizen sensing is transferred from the political to the legal arena, this tension comes up. Is it then a good idea to introduce legal rights and obligations on citizen sensing, if it cannot live up to the standards of precision?” [emphasis added]. Close addressed that question too and noted that, with their initiative, they are “not trying to legally fight the government” but “to use citizen engagement to share responsibility and […] participate, for instance by using their legal rights in [supporting] what citizens are doing”, also in terms of aligning to data quality standards. Other questions tackled the uptake of citizen sensing data by public institutions in specific areas of public policy, and the relevant data quality requirements; citizen sensing against scientific negationism; even a ‘right to sensing’ where the sensing is considered an instrument, not an objective, to reach the goal of better health and safety.

I wish to thank the engaged speakers, the fantastic illustrator, Alice Toietta, and the vibrant audience. A deep thanks also to Vicky Breemen and Mieke Sterken for the valuable notes.

06/05/2020

Sensing Covid-19 and Climate Change

This is the second blogpost in our series of blogposts related to the corona virus. The first one can be found here.

By Dr. Marie Petersman, Postdoctoral Research Fellow (Swiss National Science Foundation) based at the Copernicus Institute of Sustainable Development, Utrecht University, and Anna Berti Suman, PhD candidate Tilburg Law School

Over the past weeks, a plethora of articles explored the relations between the corona crisis and the climate catastrophe by framing the former as an opportunity to learn lessons for tackling the latter. Among the firsts was an essay by Bruno Latour, inviting us to address the current pandemic as a ‘dress rehearsal’ that incites us to prepare for climate change. Elsewhere, Latour argued that the pandemic had ‘actually proven that it is possible, in a few weeks, to put an economic system on hold everywhere in the world and at the same time, a system that we were told it was impossible to slow down or redirect’. Yet, despite the fact that both events constitute globally shared ‘collective’ experiences, immediate societal responses to them vary greatly. While both events are partially intertwined in their causes and effects, their differences in spatio-temporal scales and socio-ecological implications make socio-political responses to them difficult to compare.

Of course, this is not to say that links between the two events do not exist. The outbreak of the zoonotic coronavirus is entangled with multiple and often interacting ‘threats to ecosystems and wildlife, including habitat loss, illegal trade, pollution, invasive species and, increasingly, climate change’. On a positive note, we observed a widely shared enthusiasm among the climate scientific community when the measurements of the European Copernicus agency registered an unusual drop in nitrogen dioxide levels in February 2020, as analysed by NASA’s ground observation team. The coronavirus is indeed set to have caused the ‘largest ever annual fall in CO₂ emissions’, more than during any previous economic crisis or period of war. Studies also showed, inversely, that low levels of air pollution may be a key contributor to prevent Covid-19 deaths. Finally, the plunging demand for oil wrought by the coronavirus was said to have permanently altered the course of the climate catastrophe. As a result, after 2019 being coined ‘the year of climate consciousness’ with a ‘growing momentum’ for climate activism, the current drop of atmospheric pollution was welcomed as a windfall by many. A call for caution was, however, voiced by those who plead for more nuance and refrain from granting agency to the virus itself, pointing instead to the temporary retreat from capitalism’s ‘industrial production and its handmaidens’ to explain the current low emissions. Although praised by many as a ‘catalyst for transformation’ that brings about ‘an unprecedented opportunity to rethink how our beliefs, values, and institutions shape our relationships’, on the long run, the economic crisis triggered by the coronavirus may well lead to a suspension of adopted and prospective climate measures. Circular economists and de-growth advocates also pointed to the short-term risks that the pandemic may trigger by increasing the use of private transportation means or the consumption of single use plastic (including gloves, masks and disposable cups in bars). This has led certain cities, such as Amsterdam, to pro-actively consider the ‘“doughnut” model to mend the post-coronavirus economy’, bearing in mind that ‘calls for solidarity with the weak and disadvantaged must be part and parcel of [such] shifts’. Ultimately, the fact that even in a world that has come to a halt, we still fall short of the emission targets needed to keep global warming from surpassing 1.5 degrees Celsius above pre-industrial levels, shows the structural and systemic deficiencies we need to deal with and signal ‘how much further there is to go’.

Whether or not the corona crisis will be beneficial for tackling climate change on the long run beyond the immediate drop in atmospheric pollution remains, thus, a question open to debate, which outcome will dependent on the political will of states, corporations and citizens. Our purpose here is not to add one more proposal to the existing ‘menu’ of policy goals for the post-corona time to come. Neither do we wish to celebrate the environmental impact of the corona crisis, which feels inappropriate at a time when many are suffering from the disease and its related harms (from dead relatives that could not be buried, bodies that decomposed in trucks for overflow storage in funeral homes, unprecedented unemployment rates, soaring queues before food banks or unaffordable medical bills) and others are sacrificing themselves ‘at the front’ of the health emergency. Instead, our objective is to explore how the turn to sensing as a distinctive mode of engagement with socio-ecological issues can be productive to (re)imagine and address ongoing events such as the coronavirus and climate change. In line with Fleur Johns, ‘[s]ensing, in this context, refers to the work of eliciting, receiving, and processing impressions and information, both in the mode of intuitions or feelings, and in terms of data’ – it ‘includes all bodily faculties of perception, but is not restricted to corporeal sensation, individual or collective’. Sensing, as such, ‘is never just about the body, as distinct from the mind’ (Johns, at 60-61). In the next section, we start by theoretically defining and elaborating on the potential of sensing as a way to cope with events like the current pandemic and climate change, which call for a different (re)configuration of existence. We see the turn to sensing as responding to Donna Haraway’s invitation to ‘stay with the trouble’ of living and dying together on a damaged earth, perceived as more conducive to the kind of thinking that would provide means to build more liveable futures. We then turn to specific examples of ‘citizen sensing’ initiatives and conclude by questioning how the insights drawn from such ‘sensing practices’ can be fruitful to cope with the risks associated to the corona crisis and climate change.

Sensing the Unknown

Both the coronavirus and climate change are examples of ‘hyperobjects’ – a term coined by philosopher Timothy Morton to refer to entities that are so massively distributed in space and time that they defy not only our understanding but also our control. The coronavirus cannot be seen, yet its latent presence is everywhere. Gone pandemic, the coronavirus cannot be contained nor controlled, only its effects can be mitigated through specific ‘guidelines’ and ‘physical distancing’ (a survival tool revealing inequalities that span across class, gender, race and mental health dimensions). Similarly, climate change affects us all (unequally), despite it being ‘almost impossible for changes in climate to be perceived through individual experience’ (Bauer and Bhan, at 19). Both the coronavirus and climate change share the characteristics that Morton ascribes to hyperobjects: they are ‘viscous’ (they ‘stick’ to us); ‘nonlocal’ (their overall effects are globally distributed across space and time); ‘phased’ (we can only experience local manifestations of them at any one time and place) and ‘inter-objective’ (they are intertwined with other objects to which they cannot be reduced). Their reality and existence challenge human perception and imagination. The objects under concern remain, in other words, elusive or invisible, although their reality is unquestionable. While they defy, as a whole, immediate and unmediated human experience, we can, however, sense their existence and omnipresence.

Against this backdrop, speculative approaches dispense with necessary (phenomenological) correlations between knowledge and first-person experience, and recognize the limits of human thought and imagination to relate to events or entities that humans do not perceive directly. They invite us, instead, to empathically relate to such events and sense their effects even without unmediated access to them. While the realm of ‘experience’ is limited to ‘actual observations’ and the process of ‘learning by practical trial or proof’, the definition of ‘sense’ alludes to the ‘faculty of perception [and] feeling’. As such, it refers both to the detection of certain parameters and the emotions associated with what is revealed. Seen through this prism, sensing aspires to emotionally relate to the distress caused by certain events, whether the harm directly or only indirectly impacts us as human being. In other words, it is an invitation to engage creatively, imaginatively and speculatively with such events beyond immediate human representation and experience, in order to sense their constantly present and emerging effects in the sphere of the actual. As Morton puts it, the mere fact of thinking their existence – or sensing their effects – requires us to care about such hyperobjects.

From a governance perspective, a number of studies showed how a turn to sensing can be productive to re-envisage political perspectives and legal approaches to reconsider the more-than-human world we inhabit. As elaborated by David Chandler, sensing as a form of governance is based on correlation rather than causation, and depends on the disposition to ‘see things in their process of emergence or in real time’ (Chandler, at 22). The deployment of sensing through new technologies can play a decisive role in environmental politics, by inspiring awareness and mobilizing publics. These forms of ‘material participation’ can facilitate the capacity to detect the effects of relational interactions and cast them as either problems or possibilities. As such, ‘biosensory techniques’ can make ‘imperceptible harms perceptible’, ‘knowable’ and ‘measurable’ and permit ‘a growing awareness of planetary life’ (Johnson, at 284-285). By producing ‘forms of correlational sight’, the effects of interactions between entities are rendered perceptible, and enable ‘new forms of (datafied) relational awareness’ (Chandler, at 130). At a local level, the use of sensory technologies by individuals or communities allows for grassroots-driven, bottom-up and auto-empowering engagement with and responsivities to certain threats. Such engagements ‘“empower” citizens by shifting the infrastructures, technologies and practices of monitoring to less institutionalised arrangements’ (Gabrys, at 177). From this perspective, ‘sensing citizens’ are seen as part of ‘material-political arrangements and struggles over who generates, legitimizes, and has authority over data and how data is mobilized to make claims for environmental and other rights’ (Ruppert, Isin and Bigo, at 6). With the burgeoning trend towards a ‘digitalization of mainstream environmental and climate governance’ (Bettini et al., at 2), technology plays a key role in the constitution of socio-ecological assemblages, and promotes a novel ontology that changes the very nature of liberal governance (Beraldo and Milan, at 1). Citizens using sensing technologies are thereby recast as a ‘geo-socially networked community of sensors’ (Chandler, at 158). As such, they are able to ‘make visible politically masked risks’ and claim back their agency in shaping responses to the socio-ecological issues at stake. In the next section, we will explore how forms of ‘citizen sensing’ can facilitate individuals and communities who are sensitive to the material, interdependent world they are part of, to act as proactive agents in their own governance and through responsive care.

Citizen Sensing: From Sensing Radiations to Covid-19

In the immediate aftermath of the disastrous earthquake and tsunami that struck eastern Japan on 11 March 2011 and the subsequent meltdown of the Fukushima Daiichi Nuclear Power Plant, accurate and trustworthy radiation information was publicly unavailable. Against this backdrop, a volunteer-driven non-profit organization called Safecast was formed to enable individuals ‘to monitor, collect and openly share radiation measurements’ and other data on radiation levels. The initiative ‘mobilized individuals and collectives’ in response to risks that were perceived as extremely urgent to monitor, namely the post-Fukushima radiations burdens. Safecast can thus be regarded as a ‘shock-driven’ initiative that constitutes a ‘successful [example of] citizen [sensing] for radiation measurement and communication after Fukushima’. As this initiative grew quickly in size, scope and geographical reach, Safecast’s mission soon expanded to provide citizens worldwide with the necessary tools they need to inform themselves by gathering and sharing accurate environmental data in an open and participatory fashion. Through a form of ‘auto-empowerment’, Safecast participants were able to monitor their own homes and environments, thereby ‘free[ing] themselves of dependence on government and other institutions for this kind of essential information’. As described on Safecast’s website, this process gave rise to ‘technically competent citizen science efforts worldwide’.

(image credit: Safecast and Ushahidi (CC))

Following the outbreak of Covid-19, the Safecast collective engaged in a rapid response to the virus by setting up an information platform on the evolution of the crisis and a map of Covid-19 testing that provides a picture of where to obtain testing options in various locations (see covid19map.safecast.org). Over the years, Safecast had accumulated much experience and insights on ‘trust, crisis communication, public perception, and what happens when people feel threatened by a lack of reliable information’. Yet, the Safecast collective still struggles to be heard as ‘many scientists ignore their data’. Despite this scarce official recognition, Safecast took advantage of its experience and societal impact to rapidly respond to the current pandemic. As observed by Safecast volunteers, ‘[w]e find ourselves again trying to better understand what is happening’. In a webinar on ‘Lessons we are learning from the Covid-19 pandemic for radiological risk communication’, Azby Brown (as volunteer at Safecast and director of the Kanazawa Institute of Technology’s Future Design Institute in Tokyo) drew several links between the nature of ionising radiations and the coronavirus. By alluding to the invisible presence and constant risks posed by such hyperobjects, the invitation to the webinar started by highlighting that ‘[y]ou can’t see, smell, or taste it, but it may be a problem’, which applies equally to radiations as well as viruses. Elsewhere, Brown observed that:

 Fear of the unknown is normal, and radiation and viruses are both invisible threats that heighten anxiety. Most people have almost no way to determine for themselves whether they have come into contact with either of these threats, and they find themselves dependent on specialists, testing devices, and government and media reports. If the government and media do not provide clear, credible explanations and prompt communications, misinformation and mistrust can easily take root and spread.

For Brown, Safecast could provide a relevant risk communication perspective in the current Covid-19 context based on the experience gained after the Fukushima disaster. Despite major differences between ionising radiations and Covid-19, similarities in risks communications are worth exploring. Analogous governmental failures on risk communication were observed regarding, for example, shortcomings in rapidly conveying clear messages to the public and communicate strategies based on non-conflicting expert and policy opinions. The ambiguous and incomplete information received from the authorities generated a sense of uncertainty and distrust for many citizens dependent on single sources of official information. Against this backdrop, initiatives such as Safecast that enable people to control and monitor the presence and degrees of certain risks provide an alternative source of credible crowdsourced information. Beyond the immediate informational benefit for sensing citizens, such tools can further enable holding governments and officials into account.

At the time of writing, citizen sensing initiatives tackling Covid-19 are multiplying around the world (as listed here and here or exemplified here). Such citizen sensing practices ‘constitute ways of expressing care about environments, communities and individual and public health’ (Gabrys, at 175). As argued by Gabrys, these practices ‘are not just ways of documenting the presence of [threats]’ but are also ‘techniques for tuning sensation and feeling environments through different experiential registers’ (Ibid, 177). Granular monitoring by sensing citizens is seen as particularly valuable in times of emergencies, when governments are faced with urgent, massive and systemic risks of spatial and temporal scales that defy immediate control – such as the current pandemic. Civic ‘sentries’ can both offer relief to affected people through solidarity networks and provide resources to policy-makers and scientists through wider access to grassroots-driven and situated information ‘from below’. Citizen sensing initiatives also enable lay people, turned into ‘sensing citizens’, to retain a greater degree of agency over the production and use of the data assembled. Against the ever-increasing rise of ‘bio-surveillance states’ and the development of ‘symptoms-tracking’ and ‘contact-tracing’ apps, ‘bottom-up innovations’ might help to counter the acceleration of ‘digital surveillance’ that may be hard to scale back after the pandemic. Open access citizens’ sensed data may be considered more transparent and trustworthy by the public and convey important information on widely shared everyday lived experiences. By rendering data about real but invisible threats (and how these are perceived and felt) available through the intermediary of sensing citizens, a redistribution of (access to) information and agency in knowledge production is enabled. Finally, the increased ‘(datafied) relational awareness’ and ‘forms of correlational sight’ (Chandler, at 130) that are produced can create new appreciations of inherent yet invisible connections between human and non-human coexisting lifeforms.

Concluding thoughts

As hyperobjects, both the coronavirus and climate change defy not only our understanding but also our control. Their causes and effects are so massively dispersed across space and time that they evade unmediated appearance. The impacts of hyperobjects operate through forms of ‘slow violence’, which are ‘often attritional, disguised, and temporally latent, making the articulation of slow violence a representational challenge’ (Davies, at 2). Only partial, local and deferred manifestations can be captured through experience. Our way of relating and responding to such hyperobjects depends on temporal, spatial and emotional predicaments. The more temporally immediate, spatially proximate and emotionally tangible the threats of hyperobjects are, the greater and quicker our responses tend to be. Temporal, spatial and emotional scales are central to our ability to sense the presence of invisible threats such as viruses and changes in the climate.

While socio-ecological threats posed by climate change have been present for decades and increasingly materialized across the globe in recent years (for certain peoples more than others), responses remained relatively marginal in light of the risks at stake. Conversely, while the (health) threats posed by the coronavirus are of a relatively shorter-term (leaving aside the longer-term consequences of the socio-economic crisis it engendered), those risks triggered immediate and radical responses. The fact that the coronavirus is sensed as a ‘direct risk’ to individuals or vulnerable relatives prompts instant reactions. The sensed proximity (both temporal and spatial) of the invisible threat points to important questions. The current pandemic brought to light what climate activists deplored for long, namely that we tend to care more for risks posed to our individual conditions. A sense of emotional distance is generated by spatial and temporal gaps. This self-centred sentiment is reinforced by an anthropocentric appraisal that limits our ethics of care to the sole concern for the human species, instead of striving to ‘support the flourishing of other animals and natural things’ with which we are intrinsically entangled. While pessimistic projections on climate change have often been framed as triggering a sense of denial, paralysis or aporia, the current pandemic shows how emotions such as fear, anxiety and dread can also lead to mobilization, collective concern and action. Emotions are, ultimately, about social movement, stirring and agitation: the root of the word ‘emotion’ is the Latin emovere, which implies both movement and agitation. Despite serious risks of strategic exploitation of fear or despair by political actors instrumentalizing a ‘state of exception’, such emotions can also unleash an enhanced sense of solidarity and cohesion through increased awareness of our fragile state of coexistence and new forms of collective attachment. This is true at the human level – as we saw emerging a myriad of new forms of ‘social proximity’ – but also at a ‘more-than-human’ level, by inviting to be alert and attentive to ‘humans’ impact on and interdependence with the ‘natural’ world we are part of. Such sensibilities can give rise to a sense of cross-species shared vulnerability, where hope and grief enable to re-envision different forms of ‘collaborative survival’ (Tsing, at 4). In this short blogpost, we did not tackle any of these ethical questions in depth. More modestly, we explored how citizen sensing initiatives can help bridging the temporal, spatial and emotional distance between human (re)actions and present, yet invisible, threats through self-production of independent knowledge and agency. As Gabrys reminds us:

These practices are not just ways to rework the data and evidence that might be brought to bear on environmental problems. They are also ways of creating sensing entities, relations, and politics, which come together through particular ways of making sense of environmental problems (Gabrys, at 732).

We argued that, by recasting the actants and subjectivities involved, the technological and data-based sensors used by ‘sensing citizens’ have a world-making effect by facilitating awareness and intelligibility of certain threats. While physical isolation is being implemented (almost) globally, this doesn’t mean that we need to feel isolated and powerless. Daily citizen science is all about re-imagining scales and the potential of working together to provide a sense of connection and purpose. In reconfiguring the ‘distribution of the sensible’ – as a ‘system of self-evident facts of sense perception that simultaneously discloses the existence of something in common and the delimitations that define the respective parts and positions within it’ (Rancière, at 12) – new avenues are opened up for citizens to foresee, understand and visualize threats, and ‘(ac)count’ the damages caused (Bettini et al., at 6 and 8). Beyond the realm of immediate perception and individual or collective (re)actions, decentralized, grassroots-driven and cooperative sensing technologies may also redistribute agency to challenge more ‘official’ monitoring infrastructures and hold actors into account to galvanize appropriate political responses. Politics, ultimately, ‘revolves around what is seen and what can be said about it, around who has the ability to see and the talent to speak, around the properties of spaces and the possibilities of time’ (Rancière, at 13). These configurations of the sensible, we argue, provide an important terrain for rethinking the politics of hyperobjects such as the coronavirus and climate change.

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.

07/11/2018

Bilateral treaties and corporate impunity: the recent developments of the Chevron Ecuador case before the Permanent Court of Arbitration

By Anna Berti Suman (TLS)

In December 2016, we published a blog post on the Chevron’s Ecuador ‘saga’, presenting the case as an example of the failure of the global environmental justice system. We presented five different scenarios of the battle for justice that since 1993 the Ecuadorean indigenous plaintiffs fight against the Chevron oil giant. Among these fronts, we here zoom in on the scenario that sees Chevron Corporation and its subsidiary Texaco Petroleum Co. against the Republic of Ecuador, the so-called ‘Chevron III’ case [1]. The case was initiated in 2009 by the company under the U.S.-Ecuador Bilateral Investment Treaty (BIT) before the Permanent Court of Arbitration in The Hague [2]. Chevron requested the arbitral panel to declare the State of Ecuador (through Petroecuador, the oil public firm part of the Ecuadorean consortium in which Texaco operated) as the exclusively liable entity for any judgment issued in the Ecuadorean litigation, Chevron vs. Aguinda. Specifically, the arbitral panel was asked to invalidate the $ 9.5 billion dollars judgement rendered against Chevron in Ecuador in 2011 that found the company guilty for its oil dumping in the Ecuador’s Amazon region where Texaco (later acquired by Chevron) operated between 1964 and 1992. The judgement, issued in 2011 by the Ecuadorean Supreme Court, was recently confirmed by the Ecuadorean Constitutional Court [3]. Chevron’s argument is based on two grounds: first, the company lamented the violation of the U.S.-Ecuador BIT inasmuch as the State of Ecuador did not grant a fair trial to the company in the Ecuadorean judgment. In addition, Chevron defended that it was released from any liability by the Republic of Ecuador by signing an agreement with the State in 1998 absolving the company of any future responsibility for its past operations in Ecuador.

On August 30, 2018, the Permanent Court of Arbitration released an award in favour of Chevron, finding that the Republic of Ecuador violated its obligations to protect U.S. companies under the U.S.-Ecuador BIT and international law. The arbitral panel said that the 2011 Ecuador Supreme Court’s ruling had been obtained through fraud, bribery and corruption, thus violating Chevron’s right to a fair trial in Ecuador. The tribunal consequently held that the company is not obliged to comply with the $9.5 billion judgment [4]. In occasion of the Arbitration Court’s decision, Pablo Fajardo, lawyer of the Union of Affected People by ChevronTexaco (UDAPT) representing the 30.000 victims of the Chevron’s oil contamination, and Justino Piaguaje, President of the Secoya Indigenous people, visited Tilburg University. In a seminar organized by Professor Jonathan Verschuuren and Anna Berti Suman at Tilburg Law School on October 26, the guests discussed the Chevron-Ecuador case in light of the recent judgement, reflecting on the applicability of the award against the Ecuadorian plaintiffs and on the broader questions that such an award raises. Letty Fajardo Vera and Suzanne Hagemann, spokespersons of the UDAPT respectively in the Netherlands and in Switzerland, and Charlie Holt, legal counsel for Greenpeace International in Amsterdam, joined the seminar as discussants.

Mr. Piaguaje introduced the participants to the reality of life ‘on the side’ of the oil contamination left by Chevron and what this means not only for human health but also for the preservation of the unique indigenous culture and lifestyle. Mr. Fajardo continued the discussion with a focus on the legal questionability of the award. From a strictly legal point of view, Fajardo stressed that the allegedly violated U.S.-Ecuador BIT was signed on August 27, 1993, and entered into force on May 11, 1997, which is five years after the termination of Texaco’s operations in Ecuador. However, the arbitral panel applied the BIT retroactively to facts occurred prior to its entry into force. Secondly, it is pretentious that an arbitral panel can affect the Ecuadorean Aguinda ruling, because it cannot have any jurisdiction over the Aguinda plaintiffs that did not even appear in the arbitral trial. In addition, the alleged release from responsibility granted to the company by the Ecuadorean government when the company terminated its operations in Ecuador only regards government’s claims and not private parties’ claims like those of the Aguinda plaintiffs, as also stated in the 2011 Ecuadorean judgment [5].

The recent development of the case inspired a discussion on a number of aspects. First, the stand of the Permanent Court of Arbitration vis-à-vis victims of environmental crimes has been questioned.  As Fajardo stressed, it is inadmissible for an arbitral panel to order a State to invalidate a judgment issued in a judicial process between private individuals and ratified by all national judicial instances. The award puts the commercial interests of companies before the human rights of the affected communities. The risk that bilateral treaties may act as a shield protecting transnationals from accountability for human rights violations emerged. In addition, the ruling clearly undermines the sovereignty of the Ecuadorean State and its judicial independence. By asking Ecuador to invalidate the 2011 judgment, the arbitral tribunal is compelling the State to violate its constitutional norm, to disrespect the independence of functions, and to jeopardize the human rights of the Ecuadorian citizens. Overall, the dangerous precedent that this arbitral decision may set was manifested. As a matter of fact, the case risks to become a precedent for releasing from responsibility companies that, with the complicity of states, commit environmental crimes against human beings. The award represents a failure or lack of environmental justice in a system that appears rather dominated by corporate impunity.

Photo credits: seminar photos by Letty Fajardo Vera & UDAPT (bottom photo showing Pablo Fajardo, Charlie Holt, and Justino Piaguaje); Cuyabeno rainforest photo by Jonathan Verschuuren

[1] PCA Case No.2009-23, Chevron Corp. and Texaco petroleum Co. vs. the Republic of Ecuador.

[2] See Chevron’s Notice of International Arbitration Against Government of Ecuador.

[3] Case No. 174-2012, verbal proceeding No. 174-2012, Maria Aguinda Salazar y otros v. Chevron Corporation, Quito, November 12, 2013.

[4] For more information on the case see A universal obligation of enforcing environmental justice? The Chevron-Texaco case as an example of the actual system’s failure.

[5] Ruling of Presiding Judge Nicolas Zambrano Lozada, Provincial Court of Sucumbíos, 14 February 2011, pp.34, 176.