Community Participation in Development

A remarkable series of legal reforms and private innovations has given municipalities, indigenous peoples, and other local groups vital opportunities to influence development projects and secure economic benefits. This Article demonstrates the existence of this global trend and offers a model for explaining how and why it has manifested, as well as why--despite impressive gains--many communities still lack what they would consider sufficient influence or benefits. First, the Article argues that all of the formal rights and powers that local interests have secured in recent years result from pressure by communities and their supporters and are designed to address specific deficiencies in higher-level decision making. Second, while higher authorities have made a number of concessions, they have consistently tailored any new community rights and powers to avoid giving local interests outright control over development, for reasons both self-interested and grounded in legitimate public policy concerns. Third, communities are increasingly turning to private mechanisms to supplement their formal rights and powers. These mechanisms offer a number of advantages, but their viability ultimately depends on communities possessing--and effectively leveraging--robust public sources of influence

The Participation Principle and the Dialectic of Sovereignty-Sharing

States around the world are ceding authority to international institutions, devolving powers to lower-level political subdivisions, and granting forms of autonomy to Indigenous peoples and other minority groups. At the same time, states are increasingly offering groups and individuals “participation rights”: opportunities to participate in sovereign prerogatives without exercising control. These opportunities range from providing input into environmental decision-making, to collaborating with law enforcement in community policing programs, to receiving a share of natural-resource revenues. This Article contends that all of these developments represent a dividing up of the collection of rights known as sovereignty, and that participation rights reflect an emerging international norm that considers these rights essential to the legitimate exercise of governmental authority. This Article also argues that the international and domestic forms of sovereignty-sharing stimulate one another in a dialectical process. This helps explain how power allocations and participatory avenues have changed so rapidly in recent decades—and sometimes in ways that states never could have anticipated

Foreign Investment and Indigenous Peoples: Options for Promoting Equilibrium between Economic Development and Indigenous Rights

The quotations above refer to distinct conflicts that are widely separated by time and geography but remarkably similar in other respects. The first describes events leading to the Black Hills War of 1876, in which the U.S. Army forced the Lakota Sioux and Northern Cheyenne onto reservations to make way for gold mining by non-Indians. The second describes a violent episode in a conflict between native groups and the Peruvian government, which began in 2009 when the government took steps to expand mining and oil operations by multinational enterprises (MNEs) in the Peruvian Amazon. In both cases, outside commercial interests discovered valuable natural resources on native lands and sought to exploit them despite opposition from local indigenous peoples. And in both cases, a national government sided with commercial interests and used military force to quash the opposition and secure access to the resources. It is tempting to conclude, therefore, that the history of the Old West is repeating itself in the rainforests of South America. Yet it is too simplistic to view these events in Peru-or other recent encroachments onto the lands of indigenous peoples elsewhere-as a throwback to any particular time or place. The factors these conflicts have in common have manifested countless times over the centuries, all over the world. They are therefore best seen as forming part of a broad, global pattem of encroachment of private commercial interests onto the lands of indigenous peoples, facilitated by national governments, which began long ago and has never stopped. From Peru to Papua New Guinea, from Siberia to Sudan, indigenous peoples have suffered, and continue to suffer, the loss of their lands, the erosion of their cultures, and even the decimation of their populations as a result of this pattern. At one time, the commercial interests seeking access to indigenous resources generally originated in jurisdictions claiming sovereignty over the territory in question. Today these actors often hail from countries that make no such claims, and their activities represent a form of foreign direct investment (FDI). Investments of this nature pose unique threats. Many of the indigenous peoples that have managed to retain their distinct identity into the twenty-first century have done so in large part because they inhabit remote and challenging terrain, the resources of which domestic outsiders lack the means to exploit. MNEs, by contrast, frequently do have those means and, due to increasing global resource scarcity, are being drawn to ever more remote areas in search of resources. Moreover, FDI can lead to scale effects (that is, cumulative environmental or social impacts from the increasing scale of industrial activity), even if domestic actors are involved in similar activities. FDI thus presents both threats and opportunities to indigenous peoples. Unfortunately, the former all too often predominate over the latter because governments tend to prioritize economic development over indigenous rights, and existing domestic and international legal frameworks are incapable of appropriately balancing the two. This Article identifies the specific deficiencies in those frameworks and outlines options for promoting equilibrium

Foreign Investment and Indigenous Peoples: Options for Promoting Equilibrium between Economic Development and Indigenous Rights

The quotations above refer to distinct conflicts that are widely separated by time and geography but remarkably similar in other respects. The first describes events leading to the Black Hills War of 1876, in which the U.S. Army forced the Lakota Sioux and Northern Cheyenne onto reservations to make way for gold mining by non-Indians. The second describes a violent episode in a conflict between native groups and the Peruvian government, which began in 2009 when the government took steps to expand mining and oil operations by multinational enterprises (MNEs) in the Peruvian Amazon. In both cases, outside commercial interests discovered valuable natural resources on native lands and sought to exploit them despite opposition from local indigenous peoples. And in both cases, a national government sided with commercial interests and used military force to quash the opposition and secure access to the resources. It is tempting to conclude, therefore, that the history of the Old West is repeating itself in the rainforests of South America. Yet it is too simplistic to view these events in Peru-or other recent encroachments onto the lands of indigenous peoples elsewhere-as a throwback to any particular time or place. The factors these conflicts have in common have manifested countless times over the centuries, all over the world. They are therefore best seen as forming part of a broad, global pattem of encroachment of private commercial interests onto the lands of indigenous peoples, facilitated by national governments, which began long ago and has never stopped. From Peru to Papua New Guinea, from Siberia to Sudan, indigenous peoples have suffered, and continue to suffer, the loss of their lands, the erosion of their cultures, and even the decimation of their populations as a result of this pattern. At one time, the commercial interests seeking access to indigenous resources generally originated in jurisdictions claiming sovereignty over the territory in question. Today these actors often hail from countries that make no such claims, and their activities represent a form of foreign direct investment (FDI). Investments of this nature pose unique threats. Many of the indigenous peoples that have managed to retain their distinct identity into the twenty-first century have done so in large part because they inhabit remote and challenging terrain, the resources of which domestic outsiders lack the means to exploit. MNEs, by contrast, frequently do have those means and, due to increasing global resource scarcity, are being drawn to ever more remote areas in search of resources. Moreover, FDI can lead to scale effects (that is, cumulative environmental or social impacts from the increasing scale of industrial activity), even if domestic actors are involved in similar activities. FDI thus presents both threats and opportunities to indigenous peoples. Unfortunately, the former all too often predominate over the latter because governments tend to prioritize economic development over indigenous rights, and existing domestic and international legal frameworks are incapable of appropriately balancing the two. This Article identifies the specific deficiencies in those frameworks and outlines options for promoting equilibrium

Recovering Protection and Security

Among the most persistent controversies in international investment law is the nature of the \u27protection and security standard found in most investment treaties. Some tribunals contend that the standard requires nothing more than physical protection of covered investments, while others maintain that it requires legal security as well. Some insist that it is entirely distinct from the fair and equitable treatment standard that is often expressed in the same sentence or paragraph, while others effectively conflate the two standards. These conflicting decisions are undermining the legitimacy of investment treaty arbitration, but this Article seeks to resolve the controversies underlying them by employing the full range of interpretive tools offered by the Vienna Convention on the Law of Treaties. It explores the text, structure, and purpose of the relevant treaties; identifies a norm of protection and security in customary international law; and traces its evolution over time. This inquiry reveals that treaty drafters have long understood protection and security as requiring a specific--and limited--form of legal security. It also reveals that fair and equitable treatment was derived from the same customary norm, but that the two standards have evolved to become conceptually distinct. The Article then employs the interpretation suggested by this analysis to critique modern treaty jurisprudence and the current U.S. approach to drafting investment treaties

Technologies for Ubiquitous Supercomputing: A Java Interface to the Nexus Communication system

We use the term ubiquitous supercomputing to refer to systems that integrate low- and mid-range computing systems, advanced networks and remote high-end computers with the goal of enhancing the computational power accessible from local environments. Such systems promise to enable new applications in areas as diverse as smart instruments and collaborative environments. However, they also demand tools for transporting code between computers and for establishing flexible, dynamic communication structures. In this article, we propose that these requirements be satisfied by introducing Java classes that implement the global pointer and remote service request mechanisms defined by a communication library called Nexus. Java supports transportable code; Nexus provides communication support and represents the core communication framework for Globus, a project building infrastructure for ubiquitous supercomputing. We explain how this NexusJava library is implemented and illustrate its use with examples

Potential for Monitoring Snow Cover in Boreal Forests by Combining MODIS Snow Cover and AMSR-E SWE Maps

Monitoring of snow cover extent and snow water equivalent (SWE) in boreal forests is important for determining the amount of potential runoff and beginning date of snowmelt. The great expanse of the boreal forest necessitates the use of satellite measurements to monitor snow cover. Snow cover in the boreal forest can be mapped with either the Moderate Resolution Imaging Spectroradiometer (MODIS) or the Advanced Microwave Scanning Radiometer for EOS (AMSR-E) microwave instrument. The extent of snow cover is estimated from the MODIS data and SWE is estimated from the AMSR-E. Environmental limitations affect both sensors in different ways to limit their ability to detect snow in some situations. Forest density, snow wetness, and snow depth are factors that limit the effectiveness of both sensors for snow detection. Cloud cover is a significant hindrance to monitoring snow cover extent Using MODIS but is not a hindrance to the use of the AMSR-E. These limitations could be mitigated by combining MODIS and AMSR-E data to allow for improved interpretation of snow cover extent and SWE on a daily basis and provide temporal continuity of snow mapping across the boreal forest regions in Canada. The purpose of this study is to investigate if temporal monitoring of snow cover using a combination of MODIS and AMSR-E data could yield a better interpretation of changing snow cover conditions. The MODIS snow mapping algorithm is based on snow detection using the Normalized Difference Snow Index (NDSI) and the Normalized Difference Vegetation Index (NDVI) to enhance snow detection in dense vegetation. (Other spectral threshold tests are also used to map snow using MODIS.) Snow cover under a forest canopy may have an effect on the NDVI thus we use the NDVI in snow detection. A MODIS snow fraction product is also generated but not used in this study. In this study the NDSI and NDVI components of the snow mapping algorithm were calculated and analyzed to determine how they changed through the seasons. A blended snow product, the Air Force Weather Agency and NASA (ANSA) snow algorithm and product has recently been developed. The ANSA algorithm blends the MODIS snow cover and AMSR-E SWE products into a single snow product that has been shown to improve the performance of snow cover mapping. In this study components of the ANSA snow algorithm are used along with additional MODIS data to monitor daily changes in snow cover over the period of 1 February to 30 June 2008

Relationship Between Satellite-Derived Snow Cover and Snowmelt-Runoff Timing in the Wind River Range, Wyoming

MODIS-derived snow cover measured on 30 April in any given year explains approximately 89 % of the variance in stream discharge for maximum monthly streamflow in that year. Observed changes in streamflow appear to be related to increasing maximum air temperatures over the last four decades causing lower spring snow-cover extent. The majority (>70%) of the water supply in the western United States comes from snowmelt, thus analysis of the declining spring snowpack (and resulting declining stream discharge) has important implications for streamflow management in the drought-prone western U.S

Changing Snow Cover and Stream Discharge in the Western United States - Wind River Range, Wyoming

Earlier onset of springtime weather has been documented in the western United States over at least the last 50 years. Because the majority (>70%) of the water supply in the western U.S. comes from snowmelt, analysis of the declining spring snowpack has important implications for the management of water resources. We studied ten years of Moderate-Resolution Imaging Spectroradiometer (MODIS) snow-cover products, 40 years of stream discharge and meteorological station data and 30 years of snow-water equivalent (SWE) SNOw Telemetry (SNOTEL) data in the Wind River Range (WRR), Wyoming. Results show increasing air temperatures for.the 40-year study period. Discharge from streams in WRR drainage basins show lower annual discharge and earlier snowmelt in the decade of the 2000s than in the previous three decades. Changes in streamflow may be related to increasing air temperatures which are probably contributing to a reduction in snow cover, although no trend of either increasingly lower streamflow or earlier snowmelt was observed within the decade of the 2000s. And SWE on 1 April does not show an expected downward trend from 1980 to 2009. The extent of snow cover derived from the lowest-elevation zone of the WRR study area is strongly correlated (r=0.91) with stream discharge on 1 May during the decade of the 2000s. The strong relationship between snow cover and streamflow indicates that MODIS snow-cover maps can be used to improve management of water resources in the drought-prone western U.S