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Law and Transboundary Conservation: Environmental Sovereignty and Insecurity in the Borderlands

by Elaine C. Hsiao Ph.D. Candidate

University of British Columbia

Institute for Resources, Environment and Sustainability

30 April 2016

This paper is being submitted in accompaniment with a poster session on ““Coercive Conservation for Peace?: Environmental Sovereignty and Insecurity in the Borderlands” at the “Borders, Walls and

Violence: Costs and Alternatives to Border Fencing” International Conference in Montréal, Québec, June 2-3, 2016.

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Introduction: Bordering Borders

The law and policy of transboundary conservation is about international peace and cooperation, environmental security and stewardship, collaboration and common interests; it is also about national sovereignty and territoriality, insecurity and militarization, armed conflict and violence. Transboundary conservation is in situ protection of habitats and species.1 A formal model of in situ conservation is protected area (PA) designation.2 Not all PAs can function on their own, they may be too small or vulnerable to threats, such as insecurity.3 Where animal populations within a PA are susceptible to the impacts of war or armed conflict, it helps to have a refuge area where animals may flee.4 Connectivity conservation is critical to species survival.5 In order to link broader land- and/or water-scapes, transboundary protected areas (TBPA) have been promoted worldwide.6 TBPAs are:

An area of land and/or sea that straddles one or more boundaries between states, sub-national units such as provinces and regions, autonomous areas and/or areas beyond the limits of national sovereignty or jurisdiction, whose constituent parts are especially dedicated to the protection and maintenance of biological diversity, and of natural and associated cultural resources, and managed co-operatively through legal or other effective means. 7

In places where there is a history of or on-going armed conflict, or where friendly relations between nations are to be celebrated, peace parks provide a sub-category of TBPA with an additional peacebuilding element. Peace parks are:

Transboundary protected areas that are formally dedicated to the protection and maintenance of biological diversity, and of natural and associated cultural resources, and to the promotion of peace and co-operation.8

Peace parks emphasize “a clear biodiversity objective, a clear peace objective, and co-operation between at least two countries or sub-national jurisdictions.”9 Arguably collaborative conservation has the capacity to promote environmental peacebuilding.10 Given the relationship between conflict and conservation in regions of insecurity, environmental peacebuilding may be as important for wildlife

1 Convention on Biological Diversity, 5 June 1992, 1760 U.N.T.S. 79, at art. 2. 2 Ibid. at art. 8. 3 Peter Shadie & Patricia Moore, Connectivity Conservation: International Experience in Planning, Establishment and

Management of Biodiversity Corridors (Gland, Switzerland: IUCN, 2007) at 2. 4 Andrew J. Plumptre et al., “Transboundary Conservation in the Greater Virunga Landscape: Its Importance for

Landscape Species” (2007) 134 Biological Conservation 279-287. 5 Lisa Naughton-Treves, Andrew Plumptre & Deo Kujirakwinja, Preliminary Findings on Transfrontier Biodiversity

Conservation Efforts in the Northern Albertine Rift (Madison, WI: University of Madison Wisconsin, 2005). 6 See Trevor Sandwich et al., Transboundary Protected Areas for Peace and Co-operation (Gland, Switzerland: IUCN

WCPA, 2001). 7 Ibid. at 3. 8 Ibid. 9 Ibid. at 4. 10 Saleem Ali, Peace Parks: Conservation and Conflict Resolution (2007).

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and habitat survival as connectivity.11 Peace parks are idyllic in theory, but challenging in practice. There are inevitably a diversity of

interests: For conservationists, they are an effective measure for protecting biodiversity; for private tourism companies, a basis for tourism development; for pharmaceutical companies, a source of genetic information for drug development; for oil and mining companies, an unexplored potential supply of revenue; for the military, a refuge and strategic target during times of violent conflict; and for surrounding local communities, [parks] can signify restricted access to livelihood resources, forced relocation, opportunities for income generation through tourism revenues, or a source of ecosystem services.12

Managing incongruent interests and maintaining conservation and peace are an iterative process. Where armed violence remains a protracted and pervasive problem, part of this process involves military collaboration and/or militarization of park administration. Militarization of PAs is coeval with the legal formation of PAs and as biodiversity becomes increasingly threatened, continues to be accepted as a necessary means of nature conservation.

The law that dominates the Central Albertine Rift Transfrontier Protected Area Network (CAR TFPA Network) is the law of coercion. The CAR TFPA Network is a series of ecological islands surrounded by large populations of economically impoverished humans that are highly dependent upon natural resources for livelihoods. They are kept out of the parks by paramilitary forces known as park rangers, yet the parks are blighted by armed groups, whether rebel forces or racketeers and marauding bandits. Well-armed, these groups exploit the region's high-value natural and human resources to perpetuate regimes of violence. In response to human and security pressures military forces populate unstable borders. Meanwhile there is limited political will in support of just conservation. Governments are keen on controlling PAs when there are valuable natural resources within, such as gold, rare earth, coltan, oil and gas, hardwoods, endangered species and other animal products (e.g., ivory and rhino horn). Under such circumstances environmental sovereignty and state monopoly over the use of force or violence conflate to produce coercive conservation.13 This is problematic to a peace park's peace objective, which mandates non-violent dispute resolution and promotes cultures of peace.

Nation-states and borders are problematic to peace. In Africa borders were “drawn by Europeans, for Europeans and, apart from some localized detail, paid scant regard to Africa, let alone to Africans.”14 As a result Africa's hinterlands are characterized by vulnerable populations and fragile

11 Rio Declaration on Environment and Development, 13 June 1992, 31 I.L.M. 874.; World Charter for Nature, 28 October

1982, 22 I.L.M. 455. 12 Anne Hammill, “Protected Areas and the Security Community” in Jeffrey A. McNeely, ed, Friends for Life: New

Partners in Support of Protected Areas (Gland, Switzerland: IUCN, 2006) 81, at 82. 13 Nancy Lee Peluso, “Coercing Conservation: The Politics of State Resource Control”, in Ronnie D. Lipschutz & Ken

Conca, eds, The State and Social Power in Global Environmental Politics (New York: Columbia University Press, 1993) at 47.

14 Ieuan Griffiths, The Scramble for Africa: Inherited Political Boundaries (1986), 152 The Geographic Journal 204-216, at 204.

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ecosystems. Borderlands are “by definition geographically marginal within a state,”15 but in Africa they are especially “weak,” what Griffiths calls “time-bombs waiting for a change of political circumstance to ignite the fuse.”16 The CAR TFPA Network is an unfortunate example of the confluence of arbitrary colonial borders, marginalized and divided ethnic communities, and natural land- and water-scapes threatened by socio-political forces and insecurity.

The role of law in the determination of rights and obligations of peoples in the CAR is inextricably tied to the construction of its “bordered” borders. The practice of boundary delineation and militarized territorial defense found in the CAR is a colonial paradigm. Europeans occupied foreign territories, drew administrative bounds (including parks and reserves), established mechanisms of control, and passed these on to their successors. Independent governments of decolonized territories continue colonial practices of fortress conservation and justify it under international principles of territorial and environmental sovereignty. The international community has supported the use of force in transboundary conservation, including through armament of unstable governments, turning a blind eye to the human rights abuses that follow. Are TBPAs and peace parks becoming battle grounds for an exception to international norms and principles on armed conflict and the environment, or human rights and international peace?

This paper seeks to undertake a critical socio-legal study of law and transboundary conservation in the context of the geopolitics surrounding postcolonial borders and the internal hegemony of national environmental sovereignty in insecure borderlands. In borderlands fraught with insecurity the study of law and geography has much to offer in understanding the interrelationships between law, space and people. The same is true of postcolonial legal theory. In the CAR in particular the histories of law, place and people are tied to colonialism. The CAR TFPA Network, a series of eight border-adjacent national parks (NP) – Virunga NP in the Democratic Republic of Congo (DRC); Volcanoes NP in Rwanda; and Semuliki, Kibale, Rwenzori Mountains, Queen Elizabeth, Bwindi Impenetrable and Mgahinga Gorilla NPs in Uganda – serves as the primary case study. The CAR TFPA Network is a story of hegemony in the borderlands – borderlands created by colonial dictate and maintained by colonial fetishism; borderlands protected for the free movement of wildlife; borderlands separating humans from nature. By presenting these distinct bordered conceptions of the CAR TFPA Network the multifaceted relationship between law, place and societies, can be nuanced and understood.

Going Native: A Few Words on Theoretical Framework and Methodology

After much debate within jurisprudential scholarship about the nature of law, its provenance,

rules of recognition, etc., a more socially pragmatic approach to legal research emerged – law and society. This is a movement that defies all arguments about the sanctity of purely internal theories of law. In fact it draws directly from theories, methodologies and expertise of disciplines outside of law (e.g., sociologists, historians and geographers) to examine law as “constructed, social creations...marked by complex interdependence” with societies.17 A movement to include society in empirical study of law began with American Legal Realists, who believed that law and legal decisions

15 Ibid. at 212. 16 Ibid. at 209. 17 Alan Hunt, “The Problematization of Law in Classical Sociology” in Benaker & Travers, eds, An Introduction to Law

and Social Theory (Oxford: Hart Publishing, 2002) 13, at 16.

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are influenced by non-legal norms and factors, and therefore legal scholarship should draw from social facts, social change and other disciplines outside of law.18

The study of law outside of books helps us understand the interrelation between law and social practice.19 One aspect of socio-legal research is “law in action,” or an examination of “the frequent failure of law to achieve its stated ends.”20 This includes an analysis of the intended and unintended consequences of law, which can sometimes be attributed to culture(s), geography or histories.21 It also includes a study of legal actors and institutions, the context in which they function and their influence upon law and society.22 Law no longer exists in a bubble of pure internal theories and inaccessible esoteric debate; it dwells in a muddle of cultures, place and politics.23

The complexities of the CAR as it exists today can be viewed as a by-product of genealogies past. According to Foucault's method of genealogy, law and society research could be described as a “history of the way in which things become a problem.”24 Transboundary conservation in the CAR TFPA Network actually arose in response to a very specific set of problems related to insecurity and environmental degradation. It has indeed benefited certain wildlife species and has endured throughout some of the darkest episodes of violent human conflict (e.g., the Rwandan genocide), but it has yet to absolve other violences perpetrated against peoples who live around the parks and whose security is intricately connected with park activities. Environmental peacebuilding through collaborative resource governance has not come easily in the Albertine and undoubtedly has a ways to go. However its accomplishments and challenges are much easier to understand when seen within the context of law, society, geography and colonial histories.

The integration of social and legal studies could lead to greater justice within legal systems.25 Indeed, socio-legal scholars seem to believe so. Hunt notes that traditionally modern state law is a “steering mechanism” for the dominant hegemonic politics of liberalism and social welfare, but the sociology of law has an alternative purpose, “to [free] itself from a preoccupation with state-law [to] discover and elaborate 'alternative legalities' and provide a source of resistance to hegemonic state projects.”26 He sees law as “both part of the problem and part of the solution.”27 Critical socio-legal research is an effort to illuminate the manners in which law is part of the problem, so that it may instead form part of the solution. Many law and society scholars are explicit in their intentions to provide “counterhegemonic stances of resistance” to universalized narratives and in particular, to give

18 Jack M. Balkin & Sanford Levinson, Law and the Humanities: An Uneasy Relationship (2006), 18 Yale Journal of Law

and the Humanities, 108, 105-115. 19 Austin Sarat et al., Crossing Boundaries: Traditions and Transformations in Law and Society Research (Evanston,

Illinois: Northwestern University Press, 1998), at 4. 20 Ibid. at 4. 21 Ibid.; See Paul W. Kahn, Freedom, Autonomy, and the Cultural Study of Law, 13 Yale Journal of Law & the Humanities

141.; See Nicholas Bloomley, Law, Space and the Geographies of Power (New York: Guildford Press, 1994).; See Partha Chatterjee, The Nation and its Fragments: Colonial and Postcolonial Histories (Princeton: Princeton University Press, 1993).

22 Sarat et al., supra note 18, at 6. 23 See Felix Cohen, Transcendental Nonsense and the Functional Approach (1935), 35 Columbia Law Review 809. 24 Michel Foucault, What Our Present Is (1988), in S. Lorringer & L. Hohroth eds., The Politics of Truth (New York

Semiotext(e), 1997), at 164. 25 Balkin & Levinson, supra note 17, at 114-115. 26 Hunt, supra note 16, at 28, 30. 27 Ibid. at 29.

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voice to marginalized and oppressed subaltern populations.28 Between November 2010 and August 2011 the author spent nine months living in the CAR

borderlands between the Democratic Republic of the Congo (DRC), Rwanda and Uganda. During this time the author interviewed park wardens and park rangers, villagers living near the PAs and international borders, officials from environmental ministries and agencies, local government officers, international and local NGOs, community-based organizations and enterprises, researchers and academics, intelligence security officers and military personnel, international aid workers, refugees and UN representatives. As a participant observer the author attended local meetings, community conservation activities (between park staff, local communities, local and/or international NGOs), and transboundary meetings of the CAR TFPA Network, including informal wardens' meetings. Living in and around the parks the author was able to observe law-in-society at park headquarters and outposts, as well as in neighboring villages and political centers.

Colonial Borders in the Central Albertine Rift

Borders may have begun as a customary practice, convenient for ordering territory and

resources, but with time they have become an increasingly violent construct.29 The 1648 Treaty of Westphalia and colonialism have often been credited for exporting the nation-state concept with fixed territorial boundaries and a sovereign with clear jurisdiction over people, lands and waters.30 Western European nations accustomed to fighting over lands, borders and resources carried their disputes to lands abroad. Some conflicts were settled by papal bulls, whereby the Pope divided lands, waters, resources and the “right to conquest” of heathen infidels amongst Christian kings and princes.31 This set the tone for dominion over “new” lands and peoples. It was based on a mentality and objective known as the civilizing mission. The civilizing mission is the philosophy of cultural difference or “otherness,” used by European imperialists to justify occupation of foreign lands and peoples. Colonized peoples were “not yet” civilized enough or political enough to enjoy self-determination.32 It was the colonizer's mission to administer and educate the uncivilized so that they could one day achieve political modernity in accordance with humanist Enlightenment ideals so modelly exhibited in Europe (cultural 'normalization').33

Self-righteous in their civilizing mission and blessed by the Pope's decree that subjugation of native peoples, their territories and resources was justified by whatever means for the purpose of

28 Margaret E. Montoya, Border/ed Identities: Narrative and the Social Construction of Legal and Personal Identities, in

Sarat et al. (eds.), Crossing Boundaries: Traditions and Transformations in Law and Society Research (Evanston, Illinois: Northwestern University Press, 1998), at 130.; E.g., Boaventura de Sousa Santos, Toward a New Legal Common Sense (London: Butterworths, 2002) (2nd ed.).; E.g., Linda Tuhiwai Smith, Decolonizing Methodologies: Research and Indigenous Peoples (London: Zed Books, 1999).; E.g., Dipesh Chakrabarty, Provincializing Europe: Postcolonial Thought and Historical Difference (Princeton: Princeton University Press, 2000).

29 Paul Ganster & David E. Lorey, Borders and Border Politics in a Globalizing World (Lanham, MD: SR Books, 2005). 30 Griffiths, supra note 13, at 204.; Abednego E. Ekoko, Boundaries and National Security, Lecture at Delta State

University, Abraka (25 March 2004 ), at 3. 31 E.g., P. de Noxeto, The Bull Romanus Pontifex (Nicholas V) (1455), in Frances Gardiner Davenport ed., European

Treaties Bearing on the History of the United States and its Dependencies to 1648 (Washington, DC: Carnegie Institution of Washington, 1917), at 20-26.

32 Chakrabarty, supra note 26, at 8. 33 Ibid. at 4.; Chatterjee, supra note 20, at 11.

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spreading Christianity, Western Europe tore into Africa in what scholars have called the “Scramble for Africa.” The Scramble for Africa and the CAR is largely associated with the Berlin Conference of 1884-1885. In meetings convened by German Chancellor Otto von Bismarck, Christian princes set rules for acquiring territories in Africa. The CAR was divided by the British and Belgians following the astronomical 30°E, but was somehow misplotted, so in 1910 an Anglo-Congo Boundary Commission redrew the line to follow the Semliki River and other living boundaries.34 The trinational peak of Mt. Sabinyo marks the division of the Virunga Massif, a chain of active and dormant volcanoes, into the three nations of DRC, Rwanda and Uganda. From Sabinyo the boundary divides DRC and Uganda along Ishasha River north through Lake Edward, tracing Lubilia River up and over the Rwenzori summits to Lamia River where it joins the River Semliki and empties into Lake Albert. Some renegotiations of the DRC, Rwandan and Ugandan borders have followed decolonization, but for the most part they exist as established by Europeans.35

The parks that form the CAR TFPA Network are a colonial vestige. Virunga NP (DRC) is the oldest NP in Africa, created by Belgian King Albert in his own name (Albert NP) in 1925.36 With decolonization its name was changed to Parc National des Virungas (Virunga NP).37 Contiguously to the south in northwestern Rwanda is Volcanoes NP. It was declared while part of the Belgian protectorate Ruanda-Urundi by order of the Governor of Ruanda-Urundi, an act that was later confirmed in a decree on August 18, 1927.38 In 1960 it was divided into Virunga NP in the north and Volcanoes NP in the south, reflecting the independence of DRC and Rwanda.39 Following the eastern boundary of Virunga NP from north to south are Semuliki NP, Kibale NP (not technically adjacent to Virunga NP, but east and contiguous with Queen Elizabeth NP), Queen Elizabeth NP, Bwindi Impenetrable NP, and Mgahinga Gorilla NP (which also shares a border with Rwanda's Volcanoes NP). All of the Ugandan NPs have roots in colonialism. Most of these territories were set aside as forest reserves by British colonists – Bwindi Impenetrable, Kibale and Semuliki were declared Forest Reserves in 1932; Mgahinga was actually created as a Gorilla Sanctuary in 1930 and then later designated as a Game and Forest Reserve in 1941; the Ugandan side of the Rwenzori Mountains were protected as a Forest Reserve in 1941; and Queen Elizabeth was designated a game reserve in 1934, then in 1952, as a NP, just two years after a visit from Queen Elizabeth II of England.40 Each of these 34 Annette Lanjouw et al., Beyond Boundaries: Transboundary Natural Resource Management for Mountain Gorillas in

the Virunga-Bwindi Region 1, 6 (Biodiversity Support Program, 2001).; Andrew Roberts, Uganda's Great Rift Valley 23 (2006).

35 See Wafula Okumu , “Resources and Border Disputes in Eastern Africa ” (2010) 4(2) Journal of Eastern African Studies 279-297.

36 Patricia Kameri-Mbote, Environmental Conflict and Cooperation in the African Great Lakes Region: A Case Study of the Virungas (Woodrow Wilson International Center for Scholars & UNEP, 2007) at 13.

37 Ordonnance-Loi 69-041 du 22 août 1969, online: Leganet <http://www.leganet.cd/Legislation/Droit%20administratif/Environnement/OL.69.041.22.08.1969.htm>.; Jose Kalpers, World Wildlife Fund, Volcanoes Under Siege: Impact of a Decade of Armed Conflict in the Virungas (Washington, DC: WWF, 2001) .

38 Andrew J. Plumptre et al., The Socio-Economic Status of People Living Near Protected Areas in the Central Albertine Rift (Albertine Rift: WCS, IGCP & CARE, 2004) at 14 .

39 Ibid. 40 Purna B. Chetri, Edmund G.C. Barrow & Alex Muhweezi, Securing Protected Area Integrity and Rural People's

Livelihoods: Lessons from Twelve Years of the Kibale and Semliki Conservation and Development Project (Nairobi: IUCN, 2004), at 24.; Plumptre et al., supra note 45, at 12.; Statutory Instrument 27 of 1991, amended by Statutory Instrument 3 of 1992, cited in Plumptre et al., supra note 45, at 13-14.; The Encyclopedia of Earth, UNEP-WCMC,

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PAs was elevated to NP status after Ugandan independence.41

Command-and-Control: Law and the Gun The role of law (not to be confused with the rule of law, which is still an enigma in much of this

region) in the boundaries of the CAR TFPA Network is less than straightforward. PAs are by definition: “A clearly defined geographical space, recognised, dedicated and managed, through legal or other effective means, to achieve the long-term conservation of nature with associated ecosystem services and cultural values.”42 They are legally determined and legally bounded physical spaces where laws regulate human activities which may impact upon conservation values. All of the Albertine parks have clearly delineated boundaries (although the borders of Virunga NP are highly contested and being renegotiated in some places) and share at least one border in common, generally the international boundary lines. Traditionally international borders are perceived as “a barrier to be maintained and preserved against 'leaks' which would weaken its social, legal, or territorial integrity.”43 In a sense these international borders are the most invisible, allowing for the free movement of wildlife (and to limited extent their conservators) between interconnected landscapes. They are akin to another view of borders as “a permeable membrane, through which symbiotic exchanges of people pass for the greater welfare of both sides.”44 In the CAR formal exchange is mostly between governments and PA management for the benefit of wildlife, but communities have long passed freely across its terrain. The exterior borders shared with local human communities are much less permeable, laden with strict legislation, regulations and by-laws governing the movement and activities of humans and goods.

TBPAs can be viewed as “bordered” borders where the barrier is shifted from the international boundary line outward to exterior park-community lines. For human communities the effective boundaries become those which divide local populations and wildlife areas. Featuring almost no buffer zones between park and community lands, these last remaining vestiges of nature intact are under constant siege by heavily resource-dependent communities (local, national and international). Communities surrounding the CAR TFPA Network have some of the world's highest population densities (200-600/km2). Natural resources within community lands are largely depleted, leaving PAs as the only source of livelihood essentials, such as fuelwood, construction and artisanal materials, medicinal plants, animal protein or even water. Park laws dictate conditions of human access to much needed resources.45 Prior to 1994 with the exception of fishing villages in Queen Elizabeth NP, communities living on or near the borders of the CAR TFPA Network had no legal access to resources

Rwenzori Mountains National Park, Uganda (July 1, 2009), online: Encyclopedia of Earth <http://www.eoearth.org/article/Rwenzori_Mountains_National_Park,_Uganda>.; UWA, Queen Elizabeth National Park (QENP) (2010), online: UWA <http://www.uwa.or.ug/queen.html>.; Uganda National Parks Trustees, Uganda National Parks Handbook (Kampala: Longman Uganda Ltd., 5th edition 1971) at 23.

41 Statutory Instrument 3 of 1992, supra note 48.; Lanjouw et al., supra note 39, at 20.; A. Vedder & W. Weber, Living with Wildlife: Wildlife Resource Management with Local Participation in Africa (A. Kiss ed., World Bank Technical Paper No. 130, 1990).

42 Nigel Dudley, Guidelines for Applying Protected Area Management Categories (Gland, Switzerland: IUCN, 2008) at 8. 43 Ellwyn R. Stoddard, “The Status of Borderland Studies: Sociology and Anthropology” (1975-76) 12-13 Social Sciences

Journal 34, at 34. 44 Ibid. 45 E.g., The Uganda Wildlife Act, 191996 (Uganda), c 200, s IV.

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within the NPs.46 Since then Uganda and Rwanda have opened limited access to resource-user groups.47

Enforcement of NP borders against poachers has been an on-going battle for PAs authorities.48 Communities outcast local rangers and their families, as well as anyone who reports illegal poaching.49 They intentionally sabotage PAs by setting fires or poisoning animals.50 DRC communities have pooled limited funds to recruit Mai-Mai militias to attack ranger camps and stations when park management attempted to remove them from encroached park lands or denied them access to natural resources.51 Local politicians take advantage of poor community-park relations during campaigns, promising to defend “their people” should park managers try to stop them from illegal activities inside the NPs.52 Park policy remains fortress conservation: humans out, wildlife in. Park rangers are armed and authorized to shoot to kill. Through restrictive laws these “bordered” borders have become sites of extreme social and environmental conflict. Few who live this reality have seen the laws which are applied to them or have taken part in their authorship. Issues of survival and livelihood are side-lined as community rights are determined first by park legislation drafted in distant capitals and secondly, by governments who prefer to arm rangers rather than provide alternatives.53

When Europeans divided Africa they set an example for territorial occupation by force. The General Act of the Berlin Conference required states to ensure sufficient “establishment of authority in the regions occupied by them.”54 In effect this meant delineating administrative boundaries, militarizing the outer limits to defend them against external challengers, and undertaking surveys and censuses that informed them of the natural and cultural (including human) resources under their control. This was the colonizer's “defence obligation,” the practice of protecting interests in Africa through

46 Henry J. Ndangalasia et al., “Harvesting of Non-Timber Forest Products and Implications for Conservation in Two

Montane Forests of East Africa ” (2007) 134 Biological Conservation 242-250, at 247.; David Tumusiime, Paul Vedeld & William Gombya-Ssembajjwe, “Breaking the Law? Illegal Livelihoods from a Protected Area in Uganda” (2011) 13 Forest Policy and Economics 273-283, at 274.

47 See Ndangalasia et al., supra note 54, at 247.; See Joseph Hitimana et al., Community-Based Natural Resource Management (CBNRM) Plan: Kinigi Area, Rwanda (Kigali: CARPE, IGCP & AWF: 2006).

48 Blomley et al., supra note 56, at vi-vii. 49 See ibid. at vii, 8-9. 50 See ibid. at 8-9.; Karen Archabald & Lisa Naughton-Treves, “Tourism Revenue-Sharing Around National Parks in

Western Uganda: Early Efforts to Identify and Reward Local Communities ” (2001) 28 Environmental Conservation 135-149, at 139.

51 Samantha N., “One Ranger Killed and Another Wounded in Attack by Rebels", Gorilla Blog (28 October 2007) The Official Website of Virunga National Park, DR Congo <online: http://gorillacd.org/2007/10/28/1-ranger-killed-1-injured-in-rebel-attack/>.; Joe Sterling, “Slain Congolese ranger called 'exceptional'”, CNN World (12 January 2009) <http://articles.cnn.com/2009-01-12/world/congo.slain.ranger_1_gorillas-ranger-mai-mai?_s=PM:WORLD>.; Emmanuel de Merode, “Rangers Wounded in Attack on Lake Edward, 3 Suspects Arrested”, (6 March 2011) online: The Official Website of Virunga National Park, DR Congo <http://gorillacd.org/2011/03/06/rangers-wounded-in-attack-on-lake-edward/>.

52 John Njoroge, “Uganda: Mad Rush for Lubigi Wetland”, The Monitor (17 May 2011) online: The Monitor <http://allafrica.com/stories/201105170937.html>.; Alfred Tumushabe, “Museveni halts eviction of wetland encroachers”, Daily Monitor (25 April 2011) online: Daily Monitor <http://mobile.monitor.co.ug/News/-/691252/1150308/-/format/xhtml/-/y9q6kvz/-/index.html>.

53 Protected areas are also increasingly being expected to provide basic services and development for local communities, placing severe social burdens on highly under-resourced protected areas authorities. Naughton-Treves et al., supra note 5, at 5.

54 General Act of the Conference at Berlin, supra note 38, at art. XXXV.

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“defence by diplomacy, defence by partition, defence by strategic planning and defence by warfare.”55 These practices have been continued by the independent African nations, but is now known as national security, or in the case of PAs, park security.

In order to maintain controversial colonial borders African states have invested heavily in arms. The presence of arms in Africa is linked to the presence of Europeans.56 Early African explorers often traded weapons for food and shelter when arriving in villages for the first time.57 Africa has become a dumping ground for obsolete weapons, particularly small arms and light weapons less useful to the North Atlantic.58 Periods of disarmament in the North freed up used arms to be sold or trafficked to Africa.59 The emergence of young nations with small budgets did little to stymy the accumulation of weapons. Between 1969-1978 it is estimated that military purchases accounted for 15-20% of the $250 billion African debt profile.60 Known for strong-arm governments Africa spends more on weapons than on education, health and social development combined.61 These are the “services” that African governments are providing their people.

In nations like the DRC, Rwanda and Uganda, disarmament follows civil conflict, but government arms seem to find their way back into the hands of ex-soldiers or even on to disadvantaged youth.62 Renner claims, “it may not be much of an exaggeration to say that we are witnessing an era in which, in a sense, armies are disarming while civilians are rearming.”63 Villages around Mikeno (including those across the border in Uganda), the southern sector of Virunga NP, are often attacked by local bandits. Some people affiliate the bandits with Interehamwe (remnants of Rwandan Hutu forces), but in actuality they have no political objective to overthrow the Rwandan government. Some of the armed bandits are local youth and men capitalizing on the fragility of the region to extort a livelihood out of threatening the physical and human security of local communities. In a region where protracted violence has devastated education, health and social infrastructure, uneducated young men are susceptible to unemployment and a paucity of opportunities. The price in time and money of education and technical training is often beyond their reach; the price of an old Soviet Kalashnikov (AK-47), however, is a much more easily raised $25USD a piece (nothing a quick ivory sale or attack on a local market will not recoup in short order). The more armed a society is, the more armed its security forces become. At the end of the day, a casual observer finds that the soldiers and law enforcement are armed, as are the rebels, militant groups, criminals, poachers, villagers, park rangers, and peacekeepers. Nations that are highly armed often find themselves feeling less secure and ultimately, caught in a vicious cycle of armament and insecurity.64

A philosophy of coercive conservation was applied by colonial conservators in Africa and excused as part of their civilizing mission. The civilizing mission was wrought with Enlightenment

55 Ekoko, supra note 34, at 4. 56 R. W. Beachey, “The Arms Trade in East Africa in the Late 19th Century” (1962) 3 The Journal of African History 451-

467 at 451. 57 Ibid. at 451. 58 Ibid. at 452. 59 Michael Renner, Small Arms, Big Impact: The Next Challenge of Disarmament (October 1997) at 6. 60 Ekoko, supra note 34, at 23. 61 Ibid. at 23. 62 Ibid. at 8. 63 Renner, supra note 68, at 7. 64 Ibid. at 7.

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ideals that rationality and order should be brought to “uncivilized” peoples and wild Nature.65 Early colonial perspectives of African nature saw it as a resource to be tamed, controlled and exploited for capitalist domination.66 European occupiers “'used guns, traps and poison to kill the wildlife, steel axes and ploughs to clear the land and turn the soil'; they also placed bounties 'on almost anything that walked, flew, swam or crawled'.”67 It was not until environmental degradation in colonized lands provoked alarm that imperialists thought to be concerned with conservation.68 Colonial conservation reflected two views: (1) romantic notions of Nature as an aesthetic and (2) scientific rational concepts of Nature managed for “human enjoyment and material benefit.”69 Under these rationales valued natural spaces were “cleared of their people for 'improvement'...or to create a landscape that [fit] an aristocratic aesthetic vision.”70 As a result colonial parks like Queen Elizabeth NP have been emptied of local inhabitants (e.g. Basongora pastoralists) and are overrun with invasive species like Lantana camara, a favorite of colonial wives.71

Colonial conservation made no effort to include local peoples or principles of indigenous cosmology.72 Influenced by conservation practices in the colonial peripheries (i.e., occupied territories), France and the U.K. passed environmental laws as early as the late 1700s in order to protect resources and landscapes.73 However these laws were crafted for hegemony by exclusion. Colonial laws protected nature, but primarily as game and forest reserves for the enjoyment and material benefit of Europeans.74 Hunting was allowed, but subsistence bushmeat killing was outlawed.75 Numerous travelogues report of animals being slaughtered by the hundreds during hunts by colonials or even extincted, but Africans were “denied the resort to game meat as a hedge against famine.”76 MacKenzie notes that the “inevitable concomitant of these two linked developments ['more extreme forms of game preservation and...imperial hunting'] was that attempts would be made to enforce prohibitions on African hunting.”77 Not only were Africans told that they could not hunt for survival,

65 William Adams & Martin Mulligan, Decolonizing Nature: Strategies for Conservation in a Post-Colonial Era (London:

Earthscan, 2003) at 3-5. 66 Ibid. at 4-5. 67 Thomas R. Dunlap, Nature and the English Diaspora: Environment and History in the United States, Canada, Australia

and New Zealand (Cambridge: Cambridge University Press, 1999) at 49, 51, cited in Adams & Mulligan, supra note 75, at 19.

68 Ibid. at 5. 69 Adams & Mulligan, supra note 75, at 8. 70 Ibid. at 8. 71 The Eye, “Pest Plants – Lantana Camara” The Insider's Guide to Uganda (21 April 2012), online: The Eye

<http://www.theeye.co.ug/pestplants.php.php>.; Geoffrey Howard, “The Invasive Species Initiative” IUCN (9 November 2011), online: IUCN ESARO <http://www.iucn.org/about/union/secretariat/offices/esaro/what_we_do/invasive_species/>.

72 Adams & Mulligan, supra note 75, at 8. 73 Grove, supra note 82, at 44-45. 74 Brian King, “Conservation Geographies in Sub-Saharan Africa: The Politics of National Parks, Community

Conservation and Peace Parks” (2009) 3 Geography Compass 1-14, at 1. 75 John MacKenzie, The Empire of Nature: Hunting, Conservation and British Imperialism (Manchester: Manchester

University Press, 1988) at 121, 149.; Roderick P. Neumann, Imposing Wilderness: Struggles Over Livelihood and Nature Preservation in Africa (Berkeley and Los Angeles, California: University of California Press, 1998) at 100.

76 MacKenzie, supra note 85, at 163. 77 Ibid. at 149.

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but they were removed from traditional hunting grounds.78 While Europeans directly perpetrated the very activities which necessitated environmental conservation, they forcefully prohibited Africans from engaging in much less harmful uses of wildlife.

Colonial rhetoric of cultural difference was used to justify this double-standard. In East Africa distinctions were made between hunter-gatherers, who were considered dependent upon bushmeat, and pastoralists or cultivators, who were not solely dependent.79 The colonialists believed that those who did not need to hunt, should not hunt. This was part of universalizing development; with economic development should come emancipation from savagery (i.e., hunting for food) and homogenization toward a civilized European future (i.e., hunting for sport or money).80 Restricting local access to natural resources was part of the colonizers' “aesthetic and moral priority,” something that the “uncivilized” were “not yet” capable of, but perhaps could someday learn under colonial tutelage.81 PAs in the CAR TFPA Network have never lost their colonial stigma. Ecotourism has changed little after decolonization. Most visitors are “mzungu” foreigners paying comparatively large sums of money for trophy hunting, wildlife safaris, or to see tribespeople dance and sing for their entertainment. Saying nothing of their capacity, some NPs or park agencies are run by men of European descent. Virunga NP is administered by Emmanuel de Merode, a Belgian prince, just one example of a colonial descendant criticized for colonial conservation practices.82 PAs remain vessels of colonial control.

Europeans in Africa created an oppressive legislative regime that needed to be maintained by force. As described by Adams, “colonialism approached its engagement with nature through regulation and coercion.”83 Its primary administrative structure was the colonial state, which as mentioned previously was premised upon a philosophy of defense and militarization. In nearby Kenya German forest reserves were managed “'under Teutonic discipline' (which included corporal punishment and confinement in chains.”84 These laws and practices were adopted by the British and formalized in the 1921 Forest Ordinances.85 Similar to royal hunting grounds in Europe, local peasants were kept out by law and by gun.86 In order to enforce park boundaries and laws paramilitary ranger forces patrolled against poaching and other encroachments.87 Anti-poaching patrols maintained the PA boundaries primarily against Africans.88 While European conservators were arming rangers to defend park lands and resources, European hunters were arming African villagers to help them kill rare and threatened species.89 The resulting “wildlife wars” justified further militarization of PAs and authorizations to

78 Ibid. at 163. 79 Ibid. at 164. 80 Ibid. 81 Grove, supra note 82, at 43. 82 Dan McDougall, “Race Against Time to Save Congo's Apes” The Guardian (31 August 2008) online: The Guardian

<http://www.guardian.co.uk/environment/2008/aug/31/endangeredspecies.congo>.; Greg Cummings, “Le Petit Prince” (22 April 2010), online: Tales From the Rift Valley <http://www.gorillaland.net/Gorillaland/Blog/Entries/2010/4/22_le_petit_prince.html>.

83 Adams & Mulligan, supra note 75, at 43. 84 Neumann, supra note 85, at 99. 85 Ibid. at 99-100. 86 MacKenzie, supra note 85, at 121. 87 Adams & Mulligan, supra note 75, at 39. 88 See MacKenzie, supra note 85. 89 MacKenzie, supra note 85, at 128.

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shoot poachers on sight.90 So began the cycle, arms beget arms (not conservation). The hegemony of colonial forms of conservation retained their dominion even in the

decolonized nations of Africa. The years prior to decolonization saw rampant proliferation of PAs being declared by colonial governments fulfilling part of what they saw as their responsibility to establish systems of governance of any kind that could then be taken over by African governments.91 King observes that after colonialism, “control of local landscapes and peoples by external actors” has expanded, with primary responsibility resting in the hands of the State.92 PAs were an opportune mechanism for decolonized African nations to assert new-found sovereignty. Development of PAs allowed newly emerging governments “to express control over societies and space.”93 These are the very acts, Neumann argues, “the process of mapping, bounding, containing and controlling nature and citizenry [that] make a state a state.”94 The colonists had already proven that resources within parks could be highly profitable.95 The means are most coercive when “resources are extremely valuable” or “when the state's legitimate control of the resource is questioned or challenged by other resource users.”96 In the CAR TFPA Network there is a plethora of high value natural resources (e.g., ivory, primates, hardwoods, gold, coltan, oil and gas, etc.), state legitimacy is highly tenuous in the DRC, state control of resources is challenged across the board, and poachers are “highly organized and heavily armed.”97 State-led conservation has inevitably involved an influx of military equipment including “automatic assault rifles, helicopters, and even sophisticated remote-controlled surveillance aircraft”; collaboration with armies and law enforcement; and a surge in military tactics used against park communities and poachers.98

Wildlife wars are arguably more severe in TBPAs along insecure borderlands. The reasons for militarization and mass armament abound – PAs are looted by heavily armed groups, borders are insecure and frequently transgressed, and the stakes are high. Governments rule by threads of legitimacy, struggling to maintain internal order while balancing demands of the international community. Park management in the CAR TFPA Network play a multi-layered role in protecting park resources. They must prevent international criminals from taking advantage of weak, corrupt governments. They must prevent armed groups (rebel or otherwise) from extracting natural resources so that they might continue their violent activities (including overthrowing their government). They must prevent small-scale villagers from poaching, whether for subsistence or for profit (potentially via connections with international criminal syndicates). They must prevent their central governments from allowing large-scale extraction of high-value resources (e.g., oil and gas). They must also prevent

90 King, supra note 82, at 5.; See Richard Leakey & Virginia Morrell, Wildlife Wars: My Fight to Save Africa's Natural

Treasures (New York: St Martin's Press, 2002). 91 Adams & Mulligan, supra note 75, at 40. 92 King, supra note 82, at 5. 93 Roderick P. Neumann, “Nature-State-Territory: Toward a Critical Theorization of Conservation Enclosures”, in R. Peet

& M. Watts eds., Liberation Ecologies: Environment, Development, Social Movements (London: Routledge, 2004), at 195-217.

94 Ibid. at 202. 95 See MacKenzie, supra note 85. 96 Ibid. 97 Roderick P. Neumann, “Moral and Discursive Geographies in the War for Biodiversity in Africa ” (2004) 23 Political

Geography 813-837, at 814.; Global Witness, Same Old Story: A Background Study on Natural Resources in the Democratic Republic of Congo (Washington, DC: Global Witness, 2004).

98 Neumann, supra note 108, at 814.

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government armies, law enforcement personnel and sometimes their own rangers from involvement in illegal poaching. Meanwhile, all of the people they are trying to stop are potentially better armed and much less hindered by the law or by borders.99 Armament of park forces becomes a matter of survival. Furthermore in the context of transboundary conservation in the CAR TFPA Network, “arming park rangers for anti- poaching patrols must be done in parallel in all countries involved, without explicit coordination or sharing of resources...at least in areas with a history of armed conflict. ”100 A long history of rebel and military groups moving between DRC, Rwanda and Uganda has led to serious national security concerns about movements of arms and armed personnel, even when discussing collaborative conservation.101 In other words, in TBPAs along insecure borderlands with a history of armed conflict and distrust, arms beget arms.

Environmental Sovereignty in the Borderlands

While colonial empires were developing militarized PAs and passing them on to new African governments, conservation and political delegates the world over were setting the international principles which would govern environmental protection for present and future generations. Just as the modern era of international environmental law began in the late 1960s and 1970s newly emerging states were flexing their sovereignty through diplomacy and international relations.102 Young governments signed multilateral environmental agreements (MEAs) as part of their early interactions with the international system. This affirmed their status as a nation-state and government capable of engaging in interstate relations on behalf of a defined territory and permanent population over which they exercised exclusive control.103 Between 1972-1992 (Stockholm to Rio) the number of MEAs more than doubled and each one of these was embedded with a sovereignty clause that read more or less, “States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.”104 Whether or not these young governments were actually in control of their territories and populations or had the resources to assert such jurisdiction was irrelevant – such assumptions were presumed.105

One could say cynically that these new states were signing on to MEAs not for their love of nature or altruistic concern for the deteriorating state of the environment at home or worldwide, but rather for purposes of fortifying their sovereignty, internationally and domestically.106 As Peluso 99 Naughton-Treves, Plumptre & Kujirakwinja, supra note 5. 100 Ibid. at 3. 101 Ibid.; See Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v.

Uganda) (2005), Final Judgment, PCIJ (Ser A/B) No 116. 102 Daniel Bodansky, Jutta Brunnée & Ellen Hey, The Oxford Handbook of International Environmental Law (Oxford:

Oxford University Press, 2007) at 31. 103 Montevideo Convention on Rights and Duties of States, 26 December 1933, 165 LNTS 19. 104 Bodansky et al., supra note 113, at 35.; Stockholm Declaration of the United Nations Conference on the Human

Environment, 16 June 1972, 11 I.L.M. 1416, at prin. 21. 105 Peluso, supra note 29, at 46. 106 See Antony Anghie, Imperialism, Sovereignty, and the Making of International Law (New York: Cambridge

University Press, 2004) at 10.

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writes, Third World states or state interests would “appropriate the conservation concerns of international environmental groups as a means of eliciting support for their own control over productive natural resources.”107 Control over natural resources was part of a state's right to self-determination, an exercise of particular import to decolonized peoples.108 It was also part of their colonial inheritance. Nature reserves that had been established by colonial occupiers were elevated to NP status to provide stricter legal protection and with the help of international organizations, staffed and equipped.109 Also with the help of the international community people were moved out and were removed and displaced and foreign extractive industries moved in.110 Despite pledges to national development it was the state's central elite who benefited most from state resource control.111

MEAs do not stipulate how new governments are to exercise environmental sovereignty internally within their borders, they merely recognize the right. Traditional state sovereignty in a post-Westphalian world means states have a right to be free of interference from other states (territorial integrity) and “freedom to do as they like within their own territory” (territorial sovereignty).112 In that sense environmental sovereignty means that a nation has a right to be free from interference from other states in their natural resources or environments and the freedom to do as they like with natural resources and environments within their own territory. The only preconditions are: (1) natural resources within a state's jurisdiction should be exploited for the development of its peoples and (2) development should be sustainable.113 In practice there are few mechanisms for enforcing even these basic ground rules. At times, North Atlantic nations have complained that Third World states are sacrificing the environment to irresponsible development. Third World nations retort that Western states had done the same not so long ago and even worse, had exploited the natural and human resources of the Third World for their own economic benefit.114 They had no moral high-ground from which to tell Third World nations how to develop.

The priority of post-colonial governments was to facilitate economic development so that they could provide services and infrastructure direly needed by their populations. African nations were supported by international law in their assertions. The first major MEA was the Stockholm Declaration of the United Nations Conference on the Human Environment, which stated in Principle 9 that “environmental deficiencies...can best be remedied by accelerated development.”115 The neoliberal agenda for conservation was set – economic development would protect nature for generations to come.116 Development in a resource rich nation, however, inevitably means extraction of high-value natural resources. Neoliberal economic development in the Third World meant nature was for sale in

107 Ibid. at 47. 108 Ibid.; Susan H. Bragdon, “National Sovereignty and Global Environmental Responsibility: Can the Tension Be

Reconciled for the Conservation of Biological Diversity?” (1992) 33 Harvard International Law Journal 381-392, at 382. 109 Peluso, supra note 29, at 51. 110 See e.g., Taimour Lay & Mika Minio-Paluello, A Lake of Oil: Congo's Contracts Escalate Conflict, Pollution and

Poverty (London, UK: PLATFORM, 2011). 111 Peluso, supra note 29, at 50. 112 Bodansky et al., supra note 113, at 9. 113 E.g., Stockholm Declaration, supra note 115, at prin. 5. 114 Mark Dowie, Conservation Refugees: The Hundred-Year Conflict Between Global Conservation and Native

Peoples (Cambridge, Massachusetts: The MIT Press, 2009).; Angie, supra note 117, at 208. 115 Stockholm Declaration, supra note 115, at prin. 9. 116 See Anghie, supra note 117.

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some form or another.117 Valid sale requires clear title. For this, permanent sovereignty over natural resources would suffice.118 National constitutions of many post-colonial nations include a stipulation that all natural resources found within the jurisdiction of the state is property of the state and that it is the state's responsibility to ensure the use of its resources for the development of the nation.119 Although Anghie argues that permanent sovereignty over natural resources was ultimately diluted by the hegemonic powers of Western nations exercising a system of international law developed by the West for the West, environmental sovereignty held sway domestically.120

As discussed in the previous section park control in hinterland border regions is not an easy task. “In Africa there must be a correlation between defence of the nation-state against external and internal threats and the national-exploitation of the natural resources for the advancement of the socio-economic wellbeing of the people.” 121 Environmental legislation is insufficient, governments also use coercive tactics to enforce command-and-control laws. Throughout the history of international conservation international pressure has been high on Third World governments to protect wildlife and natural resources.122 This has helped Third World states draw in much needed funding to support nature conservation,123 but according to Peluso it also allows them to:

Justify coercion in the name of conservation, often using violence. The state's mandate to defend threatened resources and its monopolization of legitimate violence combine to facilitate state apparatus-building and social control. 'Legitimate' violence in the name of resource control also helps states control people, especially recalcitrant regional groups, marginal groups, or minority groups who challenge the state's authority.124

Peluso alleges that state use of violent coercion is an indicator of “failed, incomplete or nonexistent legitimacy” of a government.125 Furthermore states that tend to engage in such practices often “apply the tools and equipment they use to establish their resource sovereignty beyond the conservation endpoints envisioned by international facilitators of conservation, and appropriate the moral ideology of global conservation to justify state systems of resource extraction and production.”126

This is indeed the situation in the CAR TFPA Network where all parks are highly militarized and the only legally permitted natural resource extraction is for a few resource users and multinationals like Tullow and Heritage Oil. Petroleum exploration and extraction in Uganda has been justified under national development rhetoric, which is claimed, will relieve park populations of endemic poverty and the need to resort to park resources for livelihoods. This argument is reminiscent of the cultural difference of hunting – bushmeat vs. sport. Oil exploration in the CAR has ignited (and will likely

117 Peluso, supra note 29, at 49. 118 Permanent Sovereignty Over Natural Resources, GA Res 1803, UNGAOR, 17th Sess, Supp No 17, UN Doc

A/5217 (1962). 119 E.g.,Constitución Política de la República de Nicaragua, LG, 4 July 1995, at art. 102. 120 Anghie, supra note 117. 121 Ekoko, supra note 34, at 9. 122 Neumann, supra note 108, at 824. 123 Ibid. at 827. 124 Peluso, supra note 29, at 47. 125 Ibid. 126 Ibid.

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provoke further) violent border conflict along an already contentious and insecure borderline.127 The fact that these activities are taking place inside of the CAR TFPA Network only further provoke heightened security along the international border and park boundary lines. President Museveni has ordered that the army (Uganda People's Defence Force) be stationed at the oil sites instead of private security companies, as is customary.128

Inspired, as well as pressured, by social justice movements demanding an alternative to imperial modes of conservation, the international environmental movement has recognized the need to foster more just conservation practices. International environmental law began to reflect this discourse by incorporating social justice and governance principles promoting intra- and inter-generational equity, access to environmental information, participation in environmental decision-making, decentralization of environmental governance, etc. In 1998 the European Community adopted the Aarhus Convention, which has set the standard for democratizing environmental governance and justice.129 In fact, the only law in China requiring public participation is found in its regulations on environmental impact assessment.130 Social and environmental justice movements the world over have taken advantage of these international environmental laws to assert new forms of environmental sovereignty (e.g., native sovereignty).131 It remains to be seen whether common concerns for the environment can truly erode state sovereignty. On-going debates about global environmental governance, including climate change negotiations, indicate that governments are still deeply entrenched behind the lines of territoriality. No matter how arbitrary the lines, their interests are bordered.

Conclusion: From Oppression to Emancipation

Thus far there is no law which mandates non-violent conservation. Principle 24 of the Rio Declaration reminds us that, “Warfare is inherently destructive of sustainable development. States shall therefore respect international law providing protection for the environment in times of armed conflict and cooperate in its further development, as necessary.”132 This statement of soft law speaks more to the negative impacts of armed conflict on sustainable development, of which environmental conservation is one of three pillars (social, economic and environmental). It suggests that the environment should be protected in times of armed conflict, but does not require that methods of protection be non-violent. In other words “wildlife wars” could be justified as a response to human wars.133 Principle 25 follows, “Peace, development and environmental protection are interdependent and indivisible.”134 At least it acknowledges the connection between peace (or non-violence) and 127 Ibid. 128 Benjamin Augé, “Border Conflicts Tied to Hydrocarbons in the Great Lakes Region of Africa”, in Jacques

Lesourne ed, Governance of Oil in Africa: Unfinished Business (Paris: Institut Français des Relations Internationales, 2009) 165, at 174.

129 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, 25 June 1998, 2161 UNTS 447.

130 Allison Moore & Adria Warren, “Legal Advocacy in Environmental Public Participation in China: Raising the Stakes and Strengthening Stakeholders” (2006) 8 China Environment Series 3-26.

131 See John Borrows, Recovering Canada: The Resurgence of Indigenous Law (Toronto: University of Toronto Press, 2002).

132 Rio Declaration, supra note 11, at prin. 24. 133 Leakey & Morrell, supra note 103. 134 Rio Declaration, supra note 11, at prin. 25.

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conservation, but again it does not go far enough to condone only non-violent forms of conservation. The World Charter for Nature makes a preambular statement: “Competition for scarce resources creates conflicts, whereas the conservation of nature and natural resources contributes to justice and the maintenance of peace and cannot be achieved until mankind learns to live in peace and to forsake war and armaments.”135 As a solution it promotes securing nature “against degradation caused by warfare or other hostile activities,” and does state that “military activities damaging to nature shall be avoided,” but this is considered a statement of preference for peace not war,136 and mainly targets military activities during warfare.137 The Earth Charter does its best to promote a Culture of Peace by encouraging “democratic societies that are just, participatory, sustainable, and peaceful,” and repeats World Charter language on avoidance of military activities which damage the environment.138 It also outlines ways to promote “a culture of tolerance, nonviolence, and peace,” but its approach to peace is targeted at national security and military forces, hearkening emphasis on the environmental impacts of war.139 All of these statements of international environmental law fail to make a clear mandate for non-violent mechanisms of conservation. Meanwhile the exigency of calls to protect nature against its many anthropogenic threats spur motivation to resort to uses of force, armament and militarization in PAs. Even if only as ultima ratio, violence is condoned.

Peace parks may be an exception to this rule. When governments negotiate peace park agreements they stipulate the terms by which they will govern a shared territory.140 In creating a peace park the parties agree to abide by all of the mandates – conservation, cooperation and peace, the latter of which requires non-violent resolution of disputes or conflicts.141 The CAR TFPA Network satisfies the definition of a peace park but its constituents do not consider it to be one.142 Some argue that they are wildlife officers, not peace officers, to which the author has asked “but what if peace is necessary or directly related to conservation?”143 If current colonial-style armament and defense strategy conservation continues in the CAR TFPA Network, assuming a peace mandate for non-violent means of conservation and conflict resolution would be paradigm-changing – or would it? International environmental law provides room for coercive conservation and the international community recognizes assertions of environmental sovereignty and territoriality, in fact, they even provide the means of coercion when it satisfies Western notions of romantic wilderness preservation. Are peace parks merely “bordered” borders militarized and armed to marginalize peoples and exploit valuable natural resources even if ultimately only for the economic benefit of a few political elite? If so, what of human rights in conservation?

135 World Charter for Nature, 28 October 1982, 22 ILM 455, at pmbl. 136 Ibid. at art. 5.; Harold Wood, “United Nations World Charter for Nature: The Developing Nations' Initiative to

Establish Protections for the Environment” (1984-1985) 12 Ecology Law Quarterly 977-996, at 982-983. 137 Commission on Human Rights, Human Rights and the Environment, UNESCOR, 46th Sess, UN Doc

E/CN.4/Sub.2/1994/9 (1994), at para. 99. 138 Earth Charter Commission, The Earth Charter (San José, Costa Rica: The Earth Charter Initiative, 2000). 139 Ibid. at prin. 16. 140 Elaine Hsiao, Peace Parks for Mountain Forests: The Law and Policy of Transforming Conflict to Stewardship

(LLM Thesis, Pace University School of Law, 2010) online: Pace Digital Commons <http://digitalcommons.pace.edu/lawdissertations/7/>.

141 Ibid. 142 Elaine Hsiao, Water Management in the Central Albertine Rift for Peace and Resilience (2011) [unpublished, on

file with author] at 14. 143 Ibid.

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Considered the “dark continent” with its millions of have-nots, Africa is home of fifty-four recognized nation-states; thirty-four (if we include South Sudan) of which are considered Least Developed Countries. In reality Africa is an incredibly rich continent, teeming with highly coveted natural and cultural resources. Its biological and cultural diversity is arguably unmatched by any other continent. Yet it is fraught with extreme poverty, disease, hunger, lack of education and services, corruption, crime and insecurity. Europe began its civilizing mission here centuries ago and continues on today in the form of international aid, neoliberal economics and trade, and military intervention. However, frequent political instability and severe dependency shows us that democracy and self-governance are not going to be the by-products of hand-outs, international efforts towards decolonization, and structural adherence to colonial administrative infrastructure (including administrative borders).

Insecurity or armed conflict has undoubtedly played a troubling role in Africa's PAs. As the saying goes, if you want to start a revolution, go to the bush. In the bush you will find natural cover, free game and resources for basic survival, and in a more organized outfit, natural resources for high-profit trafficking. These can then be exchanged for arms, munitions and equipment, or in the language of weak states, political power. Under these circumstances, PAs are not the romantic notion of wilderness that Thoreau and Muir poeticized. Instead, they are a site and support system for violence and environmental exploitation. Ekoko challenges us to another future. He observes that, “[Borders/Boundaries] divide and unite, bind the interior and link it with the exterior; (they) are barriers and junctions, walls and doors, organs of defence and attack. Frontier areas can be managed so as to maximise either of such functions. They can be militarised as bulwarks against neighbours, or made into areas of peaceful interchange.”144 He also claims that, “Africa must embrace a conceptual re-orientation of sovereignty and territorial integrity; of boundaries as bridges not barriers, as windows of opportunity for cooperation not walls of separation, and of agents of integration not instruments of exclusivity.”145

Unfortunately this paper does not tell the tale of a successful social movement aided by social justice-minded eco-sympathetic lawyers to ease the circumstances of borderland populations. It tells the story of oppressive laws and militarized environments, to which we are all connected by the very nature of globalization and international aid and trade. This paper is an exercise in identifying the laws of oppression by tracing their histories so that we may begin to collectively imagine how they may instead become laws of emancipation.146 The theory that transfrontier conservation promotes environmental peacebuilding must be illuminated by its past and present realities. This knowledge allows us to perceive beyond environmental romanticisms into complexities of resource control in insecure borderlands; with knowledge comes power to promote a more just conservation for all. Africa hosts a number of TBPAs like the CAR TFPA Network. If these are to become bridges of peace, the colonial legacy of sovereignty premised upon the use of force to defend territories, borders and resources, and of coercive conservation must be transformed from a history of oppression to one of emancipation.

144 R. Strassoldo, “Border Studies: The State of the Art in Europe” in Asiwaju and Adeniyi (eds.), Borderlands in

Africa: Multidisciplinary and Comparative Focus on Nigeria and West Africa (Lagos: University of Lagos Press, 1989). 145 Ekoko, supra note 34, at 21. 146 Boaventura de Sousa Santos, Toward a New Legal Common Sense (London: Butterworths, 2002) at 92-93.