The biological diversity complex: a history of environmental government

The thesis understands biodiversity as a complex consisting of a form of environmentalism, a mode of governance for the global South, and a set of policy prescriptions all mobilized by the guiding idea of ‘genetic gold,’ the belief that biodiversity possesses significant latent economic value. The thesis primarily analyses the historical origins of biodiversity and the formation of a rationality of governing centred on genetic gold, deploying tools and methods from the work of Michel Foucault. It further applies these insights into the examination of two specific regulatory mechanisms developed within this project of environmental governance: the mechanism for securing access to genetic resources and the fair and equitable sharing of benefits arising from their utilisation, and local and indigenous community participation in biodiversity conservation and utilisation. The aim of this research is a dual critique. First, the unpacking of the complexity of the biodiversity concept and its integrative rendering of biodiversity loss as a governance problem constitutes a critique of environmental law’s enthusiastic acceptance and subsequent regulation of biodiversity as genetic gold. Secondly, the conception of a broader governance complex pervaded by non-legal forms of knowledge, expertise and practices challenges an international environmental law that continues to regard itself as the instrumental centre of environmental concern and discourse

Beyond the machinery metaphors: Towards a theory of international organizations as machines

This article builds upon the common metaphor of international organizations as the ‘machinery’ of international law to present a theoretical exploration of these institutions. This metaphor has remained unexamined, a reflection of the paradoxical status of international organizations as objects lacking theoretical attention. By tapping into the metaphor’s full theoretical potential and expanding it into a theory of international organizations as machines, this article introduces a new conceptualization of their role and operation. This is accomplished by applying a particular machine concept from social theory, as developed in the work of Felix Guattari and his collaboration with Gilles Deleuze. The proposed machinic perspective enables the casting of the relation between international organizations and states in a new light, building on the classical concerns with these entities’ attributed powers and granted international legal personality. It presents an image of these institutions as agents focused on the production of connections and links with external ideas and forces, in order to produce unforeseen powers and capacities

On the Relation between Scholarship and Action in Environmental Law: Method, Theory, Change

This chapter examines the intellectual phenomenon of theoretical aversion in legal scholarship, as it specifically manifests in environmental law. It first demonstrates how a proposed turn to methodology seeks to constrain theory within the strict contours of an epistemology that serves to support the scientific aspirations of legal scholarship. This notion of theory as epistemology is in turn linked to environmental law's overwhelming concern with controlling the relation between scholarship and action for the purpose of constituting itself as valid expert authority in the context of contemporary environmental discursive practices. Building on the critique of this view of theory as a pure research design element, the chapter articulates a different perspective, recovered from theoretical excess and inspired by the life and work of Michel Foucault, which merges the distinction between scholarship and action via the – correct – use of the metaphor of the 'tool box', often mishandled in Foucaultian scholarship. By reorienting this metaphor, the chapter argues that the contestation over the precise role of theory within environmental law relates to the historical evolution of the current role of the legal researcher who is expected to function solely as an expert on environmental change. The task of critical environmental law thus becomes to resist the assigned role within the established regime of environmental truth and to make novel and expansive contributions of the 'tool box' of environmental thought and practice

The historical roots of the North-South dynamic in biodiversity conservation and its imprint on the Convention on Biological Diversity

The formative years of biodiversity conservation in the 1980s were dominated by a series of essentialisms—population, rainforest, resource—that set the stage for a North-South dynamic built upon an orientalist pattern: the North proposed and the South reacted. This period also witnessed the formal entry of the concept of biodiversity into the corpus of international environmental law via the adoption of the Convention on Biological Diversity (CBD). This chapter examines the confluence of these two phenomena

Change and Subjectivity in International Environmental Law: The Micro-Politics of the Transformation of Biodiversity into Genetic Gold

There is no hope for international environmental law to be an engine for global social change, when it can no longer provide a compelling account of itself. This article presents a theoretical framework, constructed from the works of Michel Foucault, capable of tracing this loss of descriptive capacity, as well as the resultant prescriptive confusion. The analysis examines the challenges posed by the triptych of biodiversity, biotechnology and neoliberalism housed under the idea of genetic gold and calls for attention to micro-politics, in the shape of the apparatuses for the production of environmental subjectivity that operate outside the formal structures of the international legal sphere. The trope of genetic gold is revealed as an obsolete attempt to protect a fixed idea of biodiversity based on an outdated conception of environmental value. In response, the author argues for a mature confrontation with the end(s) of international environmental law

Community Participation in Biodiversity Conservation: Emerging Localities of Tension

The 1992 Convention on Biological Diversity has created a path of interaction between the local and the global, the consequences of which are now beginning to emerge. In a 2007 message, the executive secretary of the Convention characterized indigenous and local communities as ‘environmental managers with immense ecological knowledge’ and ‘crucial partners’ in both conservation and the sustainable use of biodiversity (Djoghlaf 2007).1 This statement reveals a belief that these communities can make a significant contribution to the project of biodiversity conservation. It also signifies the emergence of a new locality to form a significant part of the legal discourse produced by the Convention. Combining elements of natural-resource management and community participation, this new locality aspires to become a multi-stakeholder multiplicity of plants, animals and people. In fact it is a site of confusion in which meanings of environment, nature and community are at once imposed from above and contested from below. This chapter explores two significant, interrelated, aspects of the establishment of this link between ‘biodiversity’ and ‘community’. First, it argues that this link suggests a discursive and spatial shift in the focus of biodiversity conservation activities and debates,2 from the global and the North, towards the local and the South. These newly delineated discursive and spatial boundaries offer an alternative to the state regulation and, subsequently, market mechanisms which failed to deal with the complexities of the ‘environment and development’ debate (Li 2005). Second, this chapter argues that this linking of biodiversity to community is part of a tendency in environmental discourse to extend the management of biodiversity as a system of biological and genetic (biogenetic) resources: hence the ubiquitous use of the term ‘community-based natural resource management’ when referring to community approaches to conservation. Drawing these two arguments together, this chapter concludes that even as the conceptions of biodiversity and community are employed to include local, rural or indigenous communities within an emerging global environmental discourse, they may, through their inherent contradictions and conflicts, actually serve to exclude them. This is because, although this form of community participation discourse ascribes a political and cultural ‘otherness’ to the traditional community, symbolized by the image of the biodiversity ‘steward’, it also forcibly attaches a ‘managerial’ – biological and economic – approach to the environment. The first section outlines the ‘managerial’ approach that dominates current biodiversity thinking. Next, some of the difficulties posed by the entry of community-based approaches into biodiversity discourse are exposed. Finally, the last section describes three primary effects stemming from the link between biodiversity and community; effects that extend beyond the confines of the biodiversity discourse to pose questions regarding the role of a newly created locality in the development of international environmental law in the era of sustainable development

The Use of Biodiversity in International Law: A Genealogy of Genetic Gold

This book presents a legal genealogy of biodiversity – of its strategic use before and after the adoption of the Convention on Biological Diversity, 1993. This history of ‘genetic gold’ details how, with the aid of international law, the idea of biodiversity has been instrumentalized towards political and economic aims. A study of the strategic utility of biodiversity, rather than the utility of its protection under international law, the book’s focus is not, therefore, on the sustainable or non-sustainable use of biodiversity as a natural resource, but rather on its historical use as an intellectual resource. Although biodiversity is still not being effectively conserved, nor sustainably used, the Convention on Biological Diversity and its parent regime persists, now after several decades of operation. This book provides the comprehensive answer to the question of the convention’s continued existence. Drawing from environmental history, the philosophy of science, political economy and development studies, this book will be of interest to advanced undergraduate and postgraduate students in Environmental Law, International Law, Environmental Studies, and Ecology

Heterotopias of the environment: Law's Forgotten Spaces

This chapter presents a heterotopic overview of the three spaces of the natural reserve, the local community and the botanical institution, all of which are much discussed in environmental law. Heterotopology’ then becomes a general ‘systematic description of these different spaces, of these other places’, ‘finding out where, how and for whom difference erupts and maintains itself’. It has been suggested that Michel Foucault was never fully satisfied with the analytics of space represented by heterotopology, and largely abandoned it in favour of the geography of knowledge/power presented through the Panopticon of Discipline and Punish. One could distinguish between the heterotopia of the preface in The Order of Things and the subsequent heterotopias lecture on the basis that the former refers to discursive heterotopias, while the latter refers to real places. Heterotopias are social formations that counteract the abstraction of legal utopias that drives environmental discourse

Transversal Harm and Zemiology: Reconsidering Green Criminology and Mineral Extractivism in Cerro de Pasco, Peru

Green criminology has been advancing a focus on environmental crimes and harms. Extending this inquiry into avoidable and avertable environmental harms is a key function of both green criminology and zemiology. However, while the former seeks to expand regulatory frameworks, the latter contains within it the potential for a more holistic reimagining of the social world. Based on a methodology that combines qualitative methods (key informant interviews), a zemiological analysis, and the political ecology of Felix Guattari, we present a reconceptualization of harm inflicted by mineral extractivism in Peru’s Cerro de Pasco. The analysis utilizes the concept of transversal harm, which allows us to move beyond the criminal and civil damage of corporate crime and negligence, and to capture the collective and continuous impact of mineral extractivism. A discussion of transversal harm as a potential new avenue for expanding the conceptual boundaries of studying environmental harm concludes the article

Transversal Harm, Regulation, and the Tolerance of Oil Disasters

Law, through regulation, criminalization and litigation, provides key mechanisms for mitigating the harmful effects of oil disasters. At the same time, these mechanisms also enable the perpetuation of oil disasters under an extractivist imperative. This disaster tolerance is the point of departure for this paper’s examination of the legal response to the 2010 Deepwater Horizon disaster over the last decade. Based on a methodology that combines a social harm approach with the political ecology of Felix Guattari, we first present a reconceptualization of harms inflicted by oil corporations across three registers: environment, society, and subjectivity. We subsequently introduce the concept of transversal harm, which allows us to move beyond the criminal and civil damages of corporate crime and negligence and to capture the collective and continuous impact of oil extractivism, as opposed to the exceptional impact of oil disasters. Transversal harm opens new avenues for assigning corporate responsibility and reducing disaster tolerance as the by-product of environmental law