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Unpacking the concept of transnational ecological conflicts

D. Alejo[1]; L. Lizarazo Rodriguez[1,2]; A. Lopes Fabris[2][3]; and T. Hashe[4]

1. ERC Research Project Curiae Virides, Brussels School of Governance (Vrije Universiteit Brussel)

2. MSC Postdoctoral Project Mother Earth, Brussels School of Governance (Vrije Universiteit Brussel)

3. UMR 7206 Eco-Anthropologie CNRS/MNHN/UPC

4. Faculty of Law, Universiteit Gent

This blogpost presents some insights from the presentations and discussions held during the first day of the expert workshop: Opening the Black Box of Transnational Ecological Conflicts: Methods, Concepts and Transformations organised by the ERC Curiae Virides Research Project of the Brussels School of Governance of the Vrije Universiteit Brussel (VUB).

1. Defining Transnational Ecological Conflicts

Several regulatory and academic approaches attempt to capture and define some aspects of the nature and scope of ecological conflicts. This is the case with international environmental law, European law, private self-regulatory initiatives, environmental science, climate attribution, and environmental justice literature, among others. Despite these efforts, there is no global consensus about what an ecological conflict is, its multiple dimensions, and its consequences. This is mainly because the spectrum of possible expressions of ecological conflicts is vast, and a global definition requires examining complex socio-ecological and regulatory dynamics. Furthermore, although ecological conflicts are typically rooted in specific geographic locations and jurisdictions, they often involve transnational components, complicating conceptualizations, analyses, and potential resolutions.

Transnational ecological conflicts (TECs) can arise directly or indirectly due to environmental degradation, natural disasters, or competition to obtain access to natural resources. These conflicts can involve diverse stakeholders and legal systems or transcend geographical and temporal scales. For instance, they can be triggered by cross-border environmental degradation, impact large ecosystems spanning multiple states, or involve transnational non-state actors such as international banks, transnational corporations, or non-governmental organizations (NGOs). TECs do not only emerge after a harmful event or material damage has been felt. They can also arise preemptively when stakeholders or rightsholders mobilize to prevent potential social or environmental harms. For example, some actors initiate social or legal disputes aiming to halt what they perceive as hazardous or risky economic activities or projects, such as fracking or the construction of a dam.

While a global definition of TEC is not within the scope of this blog post, we aim to illustrate the different dimensions and complexities inherent in TECs. The next paragraphs describe the multiple fragmentations and uncertainties within which TECs are embedded and present two case studies from Brazil and Japan. First, the Mariana dam disaster showcases the difficulties in holding transnational companies accountable for environmental and social damages, the fragmented legal channels for claiming rights, and the diverse understandings of damages and victims. Second, the discharge of contaminated water into the Pacific Ocean from the Fukushima nuclear power plant illustrates the uncertain environmental and social consequences of activities with transboundary impacts and the conflicting roles, interests, and motivations of the actors involved in the conflict.

2. Understanding Transnational Ecological Conflicts’ fragmentations and uncertainties

Transnational ecological conflicts are characterized by fragmented and uncertain social, economic, and legal contexts, leading to the absence or inadequacy of environmental regulations and protection. These complexities arise from several factors:

First, there are multiple understandings of what constitutes a TEC and who is involved. Second, diverse interpretations exist regarding the roles and forms of intervention of stakeholders, rightsholders, and allegedly responsible actors. Third, many economic actors involved in TECs operate within fragmented and complex Global Value Chains (GVCs). Fourth, legal frameworks are fragmented across international, national, public, private, judicial, or non-judicial mechanisms. Fifth, the identification of victims or affected persons, as well as the methods for accessing justice and remedies remains uncertain and occasionally contradictory.

In this complex and fragmented scenario, some guiding questions can contribute to identify, analyze, and understand what TECs are:

· Who is involved and what is at stake?

· Who can be considered as affected or victim?

· Who is claiming remedies and what type of remedy?

· How do actors describe their perceived injurious experiences?

· Where and how do actors raise their complaints?

· How do actors mobilize to seek resolution?

· What mechanisms exist and are used to get access to justice?

3. The multiple impacts of environmental damage in the life of communities: the case of Mariana – Brazil

The Mariana Dam disaster is considered to be the most devastating environmental catastrophe in the history of the mining sector in Brazil. The disaster was caused by the collapse of a mining dam operated by Samarco Mineração SA, a joint venture between the Brazilian mining giant Vale and the Anglo-Australian company BHP. The collapse of the dam released toxic mining waste into the Doce River, affecting waterways for more than 600 km and destroying the town of Bento Rodrigues. According to IBAMA (Brazilian Institute of Environment and Renewable Natural Resources), the Doce River will take approximately a decade to recover from the disaster. Some researchers argued that the repercussions were so widespread that a full recovery of the entire ecosystem is difficult to forecast. The impacts of the disaster not only provoked water pollution and ecological devastation. Local populations were confronted with the loss of their food supply and livelihoods as the disaster affected their homes, land, and even cultural heritage.

Courts grappling with the case faced numerous challenges, including the complex task of comprehending the full extent of people’s losses and determining appropriate remedies. This undertaking holds particular significance in the ongoing legal proceedings in Brazil because individual losses were assessed in economic terms. A Brazilian judge established specific monetary values for incurred damages using a compensation matrix, though without considering individual circumstances. For instance, all washerwomen were offered a compensation of R$80,000 (=15,000€) for all the harm caused by the disaster, with the condition that they would relinquish all further and future claims for reparation. This type of compensation was criticized by lawyers, prosecutors, and victims alike because not all the harms can be inferred or fully grasped in monetary terms. They argued that a comprehensive investigation involving direct engagement with affected communities is necessary to understand the full range of the impacts. Without this, courts are likely to continue showing shortcomings in the methods they use to grant adequate remedies.

In 2018, members of the community, with the assistance of an international law firm, brought the case against the Anglo-Australian company BHP to a UK court. The claimants argued that the redress achieved in Brazil was inadequate, with BHP largely protected from legal consequences. The claimants asserted their right to pursue the case against BHP in England, where the company is domiciled. The case was initially struck out in 2020 but, in 2021 a landmark ruling re-opened it, giving victims hope for justice and compensation. The proceedings are still ongoing despite the company's attempts to deny liability and halt the legal process.

4. The disposal of radioactively contaminated water from the Fukushima Daiichi Nuclear Power Plant into the Pacific Ocean

The Fukushima nuclear power plant disaster that occurred in 2011, is still at the center of international attention. Since the accident, power plant operator Tokyo Electric Power Company (Tepco), has been pumping in water to cool down the melted fuels (debris) of three reactors because of the damage to the power plant cooling system. The company has stored and treated the water used in the cooling process in over 1,000 tanks to prevent the release of toxic radioactive elements into the ocean. However, in line with Japan’s plans to safely decommission the Fukushima plant, the wastewater has to be released into the sea as the storage capacity is reaching its limits. The Japanese government asked the International Atomic Energy Agency (IAEA) to assess and support the discharge plans. Recently, Japan started to release wastewater into the ocean with IAEA’s approval. According to IAEA experts, the water discharge is safe and the radioactive elements, especially tritium contained in the water are well below international safety standards. Nevertheless, many experts criticize the proceedings of the IAEA and warn about the scientific uncertainty regarding the discharges.

Japan’s decision to release contaminated water into the sea has received strong reactions from international actors and residents within Japan and neighbouring countries. Local fishers' cooperatives, NGOs, and residents are concerned and protest against the plans due to the adverse impacts on marine environments and local livelihoods. In addition, international experts and NGOs such as Greenpeace Japan have indicated that the project lacks scientific evidence about the low impacts on the ocean bed, marine life, and humans. They also oppose Japan’s decommission plans and the disregard of alternative options to securely store and treat contaminated water. Governments in neighbouring countries have also reacted to Japan’s plans. China has imposed bans on Japanese seafood imports and has strongly criticized Japan’s decommissioning project. On the contrary, South Korea's government has not raised objections to the plan, despite facing strong opposition and protests from its citizens.

Japan’s discharge plan also raises questions about the country’s obligations under international environmental law. The country has declined to conduct an environmental impact assessment of its decommissioning activities which would be in breach of the United Nations Convention on the Law of the Sea (UNCLOS). Article 206 requires impact assessments for activities that may cause substantial pollution or significant and harmful changes to the marine environment. In addition, some specialists consider that Japan is required to comply with international law and the International Maritime Organization (IMO) treaties and guidelines that prohibit significant transboundary environmental harm, both to the territory of other states and to areas beyond national jurisdiction. Japan’s projects also seem to disregard the precautionary principle regarding the uncertain impacts on marine ecosystems and local populations, as well as overlooking human and environmental procedural rights in the decision-making process.

5. Concluding remarks

Despite numerous attempts to define, categorize, and analyze transnational ecological conflicts in regulatory and academic spheres, a comprehensive framework allowing the examination of the myriad expressions of such conflicts is still lacking. This difficulty arises from several fragmentations and uncertainties inherent in TECs. The cases of the Mariana Dam in Brazil and the discharge of contaminated water from the Fukushima power plant serve to illustrate this complexity. They showed how various transnational actors are involved in environmental conflicts, their reactions and interests, as well as how environmental impacts can transcend legal regimes, national borders, and timeframes. They also highlighted the challenges in identifying victims or affected parties, determining appropriate remedies, and establishing methods for accessing justice. Furthermore, while both cases initially stemmed from industrial disasters and ecological harms, TEC can also emerge in response to risky or hazardous projects, as demonstrated by the wastewater discharges plans from the Fukushima case. In conclusion, defining and analyzing TECs remains a complex task. However, by unpacking the concept and posing significant questions about TEC’s nature and characteristics, valuable insights and avenues for further research can be discovered.

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