Mahesh Rangarajan and Ghazala Shahabuddin, in their paper on government displacement of people from Project Tiger reserves, published in Conservation and Society (2006), connect the dismal results and frequent injustices of current policy on conservation and displacement in India to a fundamental incoherence in the very framing of this policy. Towards the end of their paper, the gloom of their accounts of the recent and the distant past is alleviated by the hopeful conjecture that the broadening of participation within Indian democracy may soon propel the adoption and implementation of policies, on these issues, that are more holistic, comprehensive, rational, and just. Our paper addresses the issues they raise from the standpoint of international law and institutions.
Since no global social bargain exists under which proposed tradeoffs between conservation and displacementcan be evaluated and disadvantaged interests compensated, human rights normative texts have frequently embodied a deontological rights model. According to this model, rights provide particularly powerful or weighty reasons, which override social aims or reasons of other sorts, as illustrated in Ronald Dworkin’s metaphor of rights as ‘trumps’. The World Bank practice on displacement presents a risk model as an alternative to the rights model prevalent in human rights institutions. Indeed, this terminological shift (from rights to risks) may attenuate the focus on the rights of the displaced persons. Nevertheless, neither the rights model favored in human rights law, nor the risks model favored in the World Bank for operational purposes, have proven very effective in safeguarding the rights and interests of persons threatened with conservation induced or development-induced displacement. Rights models tend to degrade into subjective balancing formulas at the point of application, producing erratic outcomes that may protect neither people nor conservation areas. Risks models with their instrumentalist calculations may better reflect operational considerations but tend to degrade the deontological importance of human dignity.
These difficulties often lead to a characteristic legal ‘solution’—to focus on procedures through which policies are determined and implemented, rather than on normative language and substantive values. These procedural guarantees include ex-ante requirements of opportunities of full participation, access to information, notice, fair hearings, reasoned decisions with opportunities to seek review, and fairness in rule-making and decision- making processes. They also include basic norms such as non-discrimination, non-arbitrariness, and independence of decision-makers. Ex-post, they require mechanisms of accountability, and effective remedies. Procedural approaches drawing on administrative law principles, currently being assessed in the ‘Global Administrative Law’ research project, can act as an instrument of resistance and change.
Legal institutions such as courts, when faced with the challenge of actually implementing a human rights normative framework in the context of development induced displacement, have frequently focused on more procedural issues, and have adopted a balancing approach. The Supreme Court of India’s 2000 ruling concerning the Sardar Sarovar Project (SSP) illustrates this tendency. Rather than first establishing the boundaries and essence of the fundamental rights of the tribal people that were at stake and then assessing the extent to which these rights could properly be infringed because of conflicting public interests advanced by the SSP, these public interests were viewed as competing values within the scope of the rights in question, potentially restricting their legal vindication.
Whether it is desirable to juridify the political process, with courts using a procedure-oriented global administrative law approach and balancing among conflicting interests, is a hotly contested issue. It is possible that participatory and procedural requirements will help open up the deliberative space and shape outcomes in the ways Rangarajan and Shahabuddin hope, but this is likely to differ depending on precise politico-institutional circumstances, including the presence of flourishing social movements, and an open institutional culture in which the various critiques are heard and seriously considered. Should human rights advocates strive to challenge the setting altogether and take up a position outside it? Conversely, should they follow the strategy of initial resistance—triggering some eventual change in attitudes among the establishment institutions— but then eventually reengage in these institutions? And if so, to what extent should it be embedded in a democratic setting, one in which the process of translation is bound to democratic constraints of accountability, transparency and participation and informed review? As the experience in the Indian context attests, human rights advocates often try to mobilise to win on the balancing ground, by proceeding cautiously, experimentally, guided by local knowledge rather than grand design. Such attempts might change the institution or strive to challenge the balance of force as it is embedded in current power relations in the field. Does the move of NGOs from resistance to institutionalised petitions and briefs signal a narrowing down of the political space? The Global Administrative Law paradigm does seem, in some cases of development-induced or conservation-induced displacement of people, to have provided NGOs with the essential ‘took-kit’ to become the watchdogs of international institutions such as the World Bank, and to have enabled these NGOs to exercise some influence through domestic courts. At the same time, cases such as the Narmada controversy bring to the fore the price of the institutionalisation and juridification of the struggle.
Originally published as:
Lustig, D. and B. Kingsbury. 2006. Displacement and Relocation from Protected Areas: International Law
Perspectives on Rights, Risks and Resistance. Conservation and Society 4(3): 404–418.
