-NF

P.S. I discussed this phenomenon briefly in my latest article on soil conservation and the preservation of agrarian culture.  When poor and starving nations are selling or leasing their most productive farm land to foreign investors, the concept of food sovereignty becomes mighty interesting.

In addition to listening, government in a healthy democracy excels at moderating conflict and encouraging dialogue.  Government serves to unite disparate factions — or at least bring them closer together — not to deepen their divisions and incite further conflict.

Over the past few months — and especially over the past few weeks — the government in La Paz has violated these precepts.  The government is not listening to the people, it is refusing to modify its agenda in light of widespread opposition, and it is amplifying deep-seated social conflicts in a desperate attempt to save its hold on power.

As I mentioned in my last post, the past few weeks have seen mounting protests from virtually every sector save the cocaleros.  Health-care workers and medical students, university professors, unionized labor, transport workers, miners, TIPNIS residents and supporters – they’re all protesting government policies and, one might say, the basic attitude on display in La Paz.

Police clash with protestors in La Paz on May 9. Photo credit: El Dia.

Rather than acknowledging the criticism and engaging in real dialogue to find a solution, the government has hurled insults, launched gas into protesting crowds, and called upon the cocaleros and other die-hard MAS supporters to take to the streets in defense of the “process of change.”

This latest move is particularly disturbing.  Indeed, it is tantamount to inciting violence.  When Vice President Alvaro Garcia Linera labeled the health workers’ blockade-and-strike tactics “criminal” – the same tactics MAS used to bring down Goni a few years back — and then invited MAS supporters to take to the streets in counter march, he must have known that he was creating the conditions for violence. Although widespread violence has thus far been avoided (though La Paz did get a little crazy yesterday), the government’s approach has only heightened tensions.

The saddest part is that the government and those in support of MAS policies surely have legitimate arguments.  Some of the demands made by the protestors go too far, just as some of the policies advocated by the cocaleros go too far.  In times like this, the government should serve as a moderator.  Instead, this government is simply pitting one side (which now seems to be the minority) against another.

-NF

UPDATE:  Not surprisingly, Dario Kenner has some excellent coverage of the protests on Bolivia Diary.

• Medical sector v. government:  Doctors, medical students, nurses, and hospital workers have been on strike for the past few weeks over a new law that would increase hours without increasing pay.  The last week has seen massive blockades across the entire country.
• Transportation workers v. government:  This issue has been limited to Cochabamba, where a new law seeks to restrict cab-drivers’ access to downtown.
• TIPNIS residents and supporters v. government:  The second march in opposition to the freeway through TIPNIS is now underway.  The previous weeks saw President Morales visit several area villages bearing gifts, such as boat motors.  The visits were widely interpreted as the administration’s attempt to curry favor in support of the road.
• Labor v. government: Demanding reform to minimum-wage laws, union workers across the country have been waging an anti-government campaign.

Detecting a pattern here?  These days, it seems, the Morales administration can only count on the cocaleros and die-hard MASistas for support.  If it was too early to speculate on Evo’s downfall in October, the question has now become impossible to ignore.  I’m not suggesting it will happen — and I’m not even sure it would be a positive development, all things considered — but let’s just say you can feel something in the air.

-NF

P.S. Though it happened in May — just two days ago — I would be remiss if I failed to mention the government’s decision to nationalize the electrical grid, seizing power from Spanish firm Repsol SA.  More thoughts on this in the next day or two.

For those who have followed the TIPNIS story only casually, this may seem like good news for the opposition.  Perhaps that is the case, but many in Bolivia have their suspicions — and for good reason.  To make sense of this latest development, we must ask at least two questions: (1) Why is the government seeking to cancel the contract?; and (2) Does cancellation of the contract imply cancellation of the road project as a whole?

Is “Negligence” by OAS the Real Motivation?

From the vague statements available in the press, it is difficult to evaluate the government’s claim of negligence (i.e., substandard performance) by OAS.  Even if OAS’s performance has been less than ideal, however, there may be reason to question the sincerity of the government’s position.

As I explained in Foreign Affairs, the TIPNIS crisis in October sapped the government of its credibility, and the situation has only grown worse in the months since.  With another anti-road march in the works, the Morales administration knows that popular sentiment is against its effort to build the road through TIPNIS.

How does cancelling the contract with OAS serve the government’s interest in this conflict?  It is an important step in responding to the opposition’s procedural arguments.  Apart from the substantive arguments — that building a road through a national park and protected indigenous territory is illegal and a bad idea from an ecological perspective — opponents of the project have cited procedural irregularities.  Two of the more important irregularities are (1) the failure to conduct a prior consultation with the communities living in the park, and (2) failure to hold a public-bidding process prior to awarding the contract to OAS.

Cancelling the contract with OAS provides a nice response to both of these irregularities.  By starting from scratch, the government can conduct the prior consultation that never occurred the first time around (now scheduled for next month) and, assuming the project wins approval, select a new contractor through an open and transparent public-bidding process.

Cancellation of the Contract Does Not Imply Cancellation of the Project

As the foregoing implies, cancellation of the contract with OAS in no way implies cancellation of the overall project.  Though a few MAS opponents in the national legislature have suggested that the move might imperil Brazilian financing for the road — or even subject Bolivia to a lawsuit — the Bolivian government denies these predictions.

Certainly, the Morales administration has no plans to scrap the project if that can in any way be avoided. The long-awaited prior consultation with TIPNIS communities is set to occur in May, and Evo has been touring the area this week to curry favor with the local communities.

*****

Bottom line:  The indigenous communities opposed to the road have interpreted this latest move with accuracy.  For TIPNIS defenders, rescission of the contract with OAS is no cause for celebration.  It might not be bad news per se, but it’s certainly not good.

-NF

The news comes on the heels of FARC’s February promise to abandon kidnapping as a fundraising technique.   According to Colombian police, FARC kidnapped as many as 72 people during the first 11 months of 2011.

-NF

An inconvenient forum: Thoughts on the Chevron-Ecuador Case

by Nicholas A. Fromherz

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

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

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

Read the rest here.  And thanks again to TN’s Rhodri Williams for sharing his great site.

Given all the ink and vitriol this case has garnered, I was hesitant to write much on it.  Having identified what I hope is a relatively fresh angle, however, I’ve decided to give it a go.  Look for the post on Terra Nullius:  The Land, Housing, and Property Weblog.  Thanks to Rhodri Williams, TN’s host, for offering up the space.

-NF

Rather than asking each student to play the role of a different country, I drew up only five country patterns for my fifteen students.  Although this cut down on prep time, it also served a pedagogical purpose:  With three students taking on the role of Brazil, three the role of the United States, three the role of Sudan, three the role of Afghanistan, and three the role of Greece, we came to see how a nation faces the difficulty of organizing itself internally before it even gets the chance to advance an international agenda.

Here’s how it worked:  For each country, I set forth a series of challenges and opportunities, more or less based on reality.  For example, in the case of Afghanistan, I described its history of foreign occupations, tribal conflicts, human-rights abuses, weak democracy, and so forth.  Based on this fact pattern, I asked the student to rank the country’s international priorities from 1 to 10.  The ten campaigns from which they could choose were as follows:

• The fight against climate change
• The fight against HIV/AIDS
• Promoting regional integration (e.g., the European Union, UNASUR)
• Eliminating terrorism
• Ending world hunger
• Promoting human rights
• Promoting democracy
• Coordinating international disaster relief
• Encouraging foreign investment/reforming international loan frameworks
• Creating jobs*

*Even though job creation is often viewed as a domestic challenge, I included this to see whether the students would gravitate towards this over the other options (as we frequently see in the case of our governments).  By and large, it played out as expected.

*****

Though it largely panned out as expected, the results were nonetheless astonishing.  In brief, two points came through: (1) despite analyzing the same set of facts, disagreement as to a country’s priorities was far more common than agreement; and (2) of the five countries analyzed, no two had the same number-one priority.

Although these two basic results were consistent with the lesson I was trying to convey, they actually came through more strongly than I expected.  This was especially true with respect to point (1).  Two of the five countries yielded no absolute commonality as to any of their top three priorities (i.e., you could not identify a single priority that appeared in all three top-three lists).  For instance, in the case of Sudan, the results were as follows:

Sudan A

(1) The fight against climate change

(2) Promoting democracy

(3) Ending world hunger

Sudan B

(1) Promoting human rights

(2) Ending world hunger

(3) Eliminating terrorism

Sudan C

(1) Encouraging foreign investment

(2) Creating jobs

(3) The fight against climate change

*****

If anyone cares to see the fact patterns I used, please let me know in the comments.  I’ll be happy to post them or email them to you.

In sum, it was a fun and informative exercise.  If there are any international law/relations professors out there, you might consider something like this in your class.  And shoot me some ideas in return!  I have quite a few more classes to fill . . . .

-NF

For centuries, village leaders in Bolivia and other Andean nations have consulted coca leaves when administering justice.  In a ritual that has been honed over time, the men or women in charge of the matter spread the leaves out on a cloth and “read” them, divining guilt and innocence, and perhaps the appropriate punishment, from the leaves’ orientation.

Some scholars have defended this practice as satisfying due process.  According to these scholars, punishment based upon coca-reading does not violate human rights (at least in terms of due-process concerns).  Most have condemned the practice, finding it far too arbitrary to meet basic norms of fairness and reasonable decision-making.

Interesting, but fairly obscure stuff, right?  I mean, it’s not like the national courts are using this approach.  Or are they?

In a story that has captured the attention of the BBC, a judge of Bolivia’s highest court stated earlier this week that he reads coca leaves to decide the toughest cases.  He has since back-pedaled a bit, stating that he does not consult the leaves to determine specific outcomes, but only to make sure his rulings are consistent with a general spirit of justice and right action.

The news has created a heavy backlash against a court system that was already struggling to gain public confidence.  Though some have defended the judge’s practice as consistent with the pluralistic nature of the Bolivian Constitution, most (including the chief judge and legislature) find it deeply troubling.

While I’m willing to acknowledge that it’s not entirely black and white, I have to stand with the majority on this one.  I applaud the effort to incorporate notions of indigenous and community justice; Bolivia has been a real leader on this front, with its 2009 Constitution placing indigenous justice on an equal footing with traditional, state-sponsored justice.  Communal decision-making, alternative punishments (including punishments that give back to the community, and exile as the ultimate punishment) — these and other practices are rightly welcomed to the table.  But reading coca leaves to render decisions is going too far.

I would probably feel differently if the subject of the case agreed to such a process.  Absent that, I think this practice simply undermines the credibility of indigenous and community justice.  That is a shame.  These alternative systems already face a tremendous challenge in finding purchase with the international community.  They don’t need distractions like this getting in the way.

-NF

Here, a picture would do far more justice than words.  Even though the neighborhood I call home is relatively well-off, one has to walk three blocks to the nearest set of dumpsters.  The scene upon arrival is disturbing.  The dumpsters are constantly over-flowing — even though I have taken out the trash just once, I pass the dumpsters on a regular basis — converting an area half the size of a football field into a complete disaster.  The scattered refuse attracts stray dogs, who feed on the trash and add their own mess on top of it all.

Though I haven’t done any dedicated observation, I would be willing to bet that the dumpsters are picked up no more than once a week.   If that is the case, then the overflow should come as no surprise — three dumpsters for dozens and dozens of houses is simply not enough.

All this has me thinking these days about the global trash problem.  If there is any one issue that stresses the need for sustainability, this may be it.  Consider the following:

• Every year, Americans throw away enough paper and plastic cups, forks, and spoons to circle the equator 300 times.
• Our oceans now host “trash islands,” or floating garbage patches, created by the concentrating powers of tides and pressure systems.
• In Rio, illegal trash dumps proliferate and serve as one of the main sources of greenhouse gases.
• “In Beijing, about 170,000 migrant workers scour streets and rummage through trash bins for recyclable items they can sell. Some of them live among piles of trash at large recycling centers. A study of these workers found they process about one third of Beijing’s trash but most have criminal records and 70 percent have contracted infectious diseases such as dysentery, hepatitis and typhoid which they can pass on to others. “

-NF

P.S.  For more on the trash situation in Cochabamba, and conditions near the main dump in particular, check out this entry over at A Walk in Bolivia.