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Norms, Mobilization and Conflict: The Merowe Dam as a Case Study

Published online by Cambridge University Press:  18 July 2019

Nada Ali ,
Reilly Dempsey Willis ,
Asim El Moghraby  and
Mohammaed Jalal Hashim
Nada Ali
Affiliation:
University of East Anglia School of Law, Norwich (United Kingdom (UK)). Email: n.ali@uea.ac.uk.
Reilly Dempsey Willis
Affiliation:
University of East Anglia School of Law, Norwich (UK). Email: Reilly.Willis@uea.ac.uk.
Asim El Moghraby
Affiliation:
University of Khartoum (Sudan). Email: asim.mog@gmail.com.
Mohammaed Jalal Hashim
Affiliation:
Independent. Email: mjalalhashim@gmail.com.
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Abstract

This article investigates dynamics of mobilization over environmental and human rights norms in the context of undemocratic governments. We test the suggestion in norm diffusion theories that the success of domestic struggles in this context depends on the level of internalization of norms brought about by international pressure. We find that the internalization (or lack thereof) of global norms by the Government of Sudan does not explain its recognition of environmental justice claims in this case. Furthermore, the various litigation efforts pursued by affected people outside Sudan did not influence their campaign. However, a combination of the political climate in the country and a unique political interplay between the government and a distinct group of the affected people may have led to the singular success of their campaign. We use a combination of discourse analysis, legal analysis, norm mapping, and semi-structured interviews to reach conclusions.

Keywords

Spiral ModelNorm diffusionMobilizationEnvironmental litigationResettlementInternal displacement
Type
Article
Information
Transnational Environmental Law , Volume 8 , Issue 2 , July 2019 , pp. 217 - 245
Copyright
Copyright © Cambridge University Press 2019 

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Footnotes

This research was made possible by a grant from the Economic and Social Research Council (ESRC) and the Department for International Development (DFID), and benefited from research carried out in the United Arab Emirates from 2013 to 2015 under a previous grant.

References

1 Reference to the activists will be by using the letter ‘A’ coupled with the first letter of the name of the affected group: e.g., the activist from Manasir will be referred to as ‘AM’.

2 We will refer to this activist as the Justice Broker throughout the article and will use the acronym ‘JB’ to reference his interview contributions; we also refer to him by his name, Ali Askouri.

3 We will refer to them in the separate sections covering the case as the representatives of their respective INGOs or by their names where the same is appropriate.

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8 It has since been used to analyze responses to environmental justice issues: see, e.g., Hochstetler, K., ‘After the Boomerang: Environmental Movements and Politics in the La Plata River Basin’ (2002) 2(4) Global Environmental Politics, pp. 35–57CrossRefGoogle Scholar.

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11 Risse & Sikkink, n. 7 above.

12 Ibid.

13 While semi-structured interviews with relevant government officials would have offered further corroboration of the evidence collected in the norm-mapping exercise, we are yet to gain access to the GoS for this purpose.

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16 The WCD came into being in 2000 under the auspices of both the International Union for the Conservation of Nature (IUCN) and the World Bank (WB) and included a broad-based consultation in which multiple stakeholders between proponents and opponents of large dams were involved: for details see Dingwerth, K., The New Transnationalism: Transnational Governance and Democratic Legitimacy (Springer, 2007)CrossRefGoogle Scholar.

17 Dubash, N.K., ‘Global Norms through Global Deliberation? Reflections on the World Commission on Dams’ (2009) 15(2) Global Governance: A Review of Multilateralism and International Organizations, pp. 219–38CrossRefGoogle Scholar.

18 Dingwerth, n. 16 above, p. 59.

19 Ibid.

20 The World Bank, ‘Operational Manual OP 4.12 – Involuntary Resettlement’, adopted Dec. 2001 and revised in Apr. 2013, available at: https://policies.worldbank.org/sites/ppf3/PPFDocuments/Forms/DispPage.aspx?docid=1572&ver=current; The World Bank, ‘Operational Directive 4:30 – Involuntary Resettlement’, adopted 1 June 1990, available at: https://www.ifc.org/wps/wcm/connect/322d9d80488559f584b4d66a6515bb18/OD430_InvoluntaryResettlement.pdf?MOD=AJPERES.

21 See Adams, B., Green Development: Environment and Sustainability in a Developing World (Routledge, 2008)CrossRefGoogle Scholar; and de Chazournes, L. Boisson, ‘Policy Guidance and Compliance: The World Bank Operational Standards’, in Shelton, D.L. (ed.), Commitment and Compliance: The Role of Non-binding forms in the International Legal System (Oxford University Press, 2000), pp. 281–302Google Scholar.

22 Boisson de Chazournes, ibid.

23 Scheumann, W. and Hensengerth, O., Evolution of Dam Policies: Evidence from the Big Hydropower States (Springer Science & Business Media, 2014)CrossRefGoogle Scholar. and Dingwerth, n. 16 above.

24 UN Conference on Environment and Development, Rio de Janeiro (Brazil), 3–14 June 1992: see n. 35 below.

25 N. Schrijver, The Evolution of Sustainable Development in International Law: Inception, Meaning and Status (Brill/Nijhoff, 2009).

26 UN General Assembly, ‘Transforming Our World: The 2030 Agenda for Sustainable Development’ (21 Oct. 2015), UN Doc. A/RES/70/1, available at: https://www.un.org/en/development/desa/population/migration/generalassembly/docs/globalcompact/A_RES_70_1_E.pdf.

27 Schrijver, n. 25 above, p. 217.

28 Kent, A., ‘Implementing the Principle of Policy Integration: Institutional Interplay and the Role of International Organizations’ (2014) 14(3) International Environmental Agreements: Politics, Law and Economics, pp. 203–24CrossRefGoogle Scholar.

29 Askouri, A., Khazzān Al-Ḥammādāb: Namūzaj Al-Islam Al-Siyāsī Lil'ifq ār Wa'nahb Al-Mawārid [The Hamadab Dam: The Political Islam Model for Impoverishment and the Expropriation of Resources] (AJSP Printing Services, 2014)Google Scholar.

30 Presidential Decree No. (217) of 2005.

31 Scudder, T., The Future of Large Dams: Dealing with Social, Environmental, Institutional and Political Costs (Earthscan, 2005)Google Scholar.

32 See, e.g., the case of the MSLA in Sri-Lanka reported in Scudder, ibid.

33 Interviews with AM (15 Apr. 2017), AA (16 Apr. 2017) and AH (17 May 2017), respectively.

34 Sudan Environment Protection Act (2001) (EPA), available at: https://www.resourcedata.org/dataset/rgi-sudan-environment-protection-act-2001/resource/b7b21c00-019d-4e26-848b-fbcc27a68e71.

35 Adopted by the UN Conference on Environment and Development, Rio de Janeiro (Brazil), 3–14 June 1992, UN Doc. A/CONF.151/26/Rev.1 (Vol. I), 14 June 1992, available at: http://www.un.org/documents/ga/conf151/aconf15126-1annex1.htm.

36 Interim Constitution National Constitution of the Republic of Sudan (2005), available at: https://www.wipo.int/edocs/lexdocs/laws/en/sd/sd003en.pdf (emphasis added).

37 The 1930 Land Acquisition Act, together with the 1994 Civil Transactions Act and the Seventh Constitutional Decree of 1993 (Source: World Bank Group, ‘Sustainable Livelihoods for Displaced and Vulnerable Communities in Eastern Sudan: Resettlement Policy Framework’, Feb. 2016, available at: http://documents.worldbank.org/curated/en/890061469095513641/pdf/SFG2339-RP-P158066-Box396279B-PUBLIC-disclosed-7-20-16.pdf.

38 Askouri, n. 29 above.

39 Ibid.; and Hashim, M.J., Risālat Kajbār: Min Ajl Al-S ūdān, LāMin Ajl Qaryah: Qaḍāya Al-Sudūd Fil'sūdān [The Message of Kajbār: For the Sake of Sudan, Not a Village: Issues of Dams in the Sudan] (Shafuq.com, 2016)Google Scholar.

40 Askouri, n. 29 above; Hashim, ibid.

41 Activists from both the Manasir and Hamdab groups stated that they were engaged in talks with the GoS as early as the 1990s: ‘Committees were formed as early as the 1990s to look into possible resettlement locations … We started talking to the implementation unit in the mid-1990s’: interview with AM, 15 Apr. 2017; ‘I was involved in talks regarding resettlement from the early 1990s in my capacity as Chair of the Hamdab Student Body’: interview with AH, 17 May 2017.

42 Askouri, n. 29 above; Hashim, n. 39 above.

43 Interview with AH, 17 May 2017.

44 Interview with AM, 15 Apr. 2017.

45 Hildyard, Nicholas, ‘Neutral? Against What? Bystanders and Human Rights Abuses: The Case of Merowe Dam’ (2008) 37 Sudan Studies, pp. 19–38Google Scholar.

46 Bosshard, P. & Hildyard, N., A Critical Juncture for Peace, Democracy, and the Environment: Sudan and the Merowe/Hamadab Dam Project (International Rivers Network and The Coroner House, 2005)Google Scholar.

47 Askouri, n. 29 above. This was supported by the Hamdab activist who stated that ‘the Hamdab unanimously rejected Al-Multaga as a resettlement option, because of the obvious risk of desertification in the area’: interview with AH, 17 May 2017.

48 Interview with AH, 17 May 2017.

49 The letter is reproduced in Askouri, n. 29 above, p. 792.

50 Hashim, n. 39 above, p. 121.

51 Interview with AA, 16 Apr. 2017.

52 Askouri, n. 29 above.

53 Reproduced in Askouri, n. 29 above, p. 791.

54 Askouri, n. 29 above.

55 Interview with AM, 15 Apr. 2017.

56 Ibid.

57 These events are the subject matter of UN Security Council Resolution 1593 (31 Mar. 2005), UN Doc. S/RES/1593, referring the situation in Darfur to the International Criminal Court for investigation, available at: https://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/Darfur%20SRES1593.pdf.

58 9 Jan. 2005, available at: https://peaceaccords.nd.edu/sites/default/files/accords/SudanCPA.pdf.

59 Askouri, n. 29 above.

60 Interview with JB, 7 May 2017.

61 ‘Interview with Sudanese Humanitarian Affairs Minister’, Sudan Tribune, 20 May 2005, available at: http://www.sudantribune.com/spip.php?article9680.

62 Reproduced in Askouri, n. 29 above, p. 804.

63 On file with the authors.

64 Interview with AM, 15 Apr. 2017.

65 Askouri n. 29 above; Hashim, n. 39 above.

66 N. 62 above.

67 Askouri, n. 29 above.

68 Interview with AM, 15 Apr. 2017.

69 These conclusions are drawn from a large-scale review of several years of UN reports, from both the GoS and various UN bodies. A full list of the reviewed documents can be obtained from the authors on request.

70 Bratman, E.Z., ‘Contradictions of Green Development: Human Rights and Environmental Norms in Light of Belo Monte Dam Activism’ (2014) 46(2) Journal of Latin American Studies, pp. 261–89CrossRefGoogle Scholar.

71 UN Global Compact, ‘A Global Compact for Sustainable Energy: A Framework for Business Action’, Sept. 2011, available at: https://www.unglobalcompact.org/docs/publications/A_Global_Compact_for_Sustainable_Energy.pdf.

72 See UN Human Rights Council (HRC), ‘National Report submitted in accordance with Paragraph 5 of the Annex to Human Rights Council Resolution 16/21: Sudan’ (15 Feb. 2016), UN Doc. A/HRC/WG.6/25/SDN/1, available at: https://documents-dds-ny.un.org/doc/UNDOC/GEN/G16/025/86/PDF/G1602586.pdf?OpenElement; UN HRC, ‘Report of the Working Group on the Universal Periodic Review: Sudan (11 July 2016), UN Doc. A/HRC/33/8, available at: https://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/a_hrc_33_8.pdf.

73 Wutich, A. et al. , ‘Rules, Norms, and Injustice: A Cross-Cultural Study of Perceptions of Justice in Water Institutions’ (2013) 26(7) Society & Natural Resources, pp. 795–809CrossRefGoogle Scholar.

74 UN Global Compact, n. 71 above.

75 Sudan National Action Programme (SNAP), ‘A Framework for Combating Desertification in Sudan in the Context of the United Nations Convention to Combat Desertification’, Republic of Sudan Ministry of Agriculture and Forestry National Drought and Desertification Control Unit (NDDCU), 2006; UN Convention to Combat Desertification in Countries Experiencing Serious Drought and/or Desertification, particularly in Africa, Paris (France), 17 June 1994, in force 26 Dec. 1996, available at: http://www.unccd.int.

76 Nile Basin Initiative, Briefing Note 8: Restoring the Nile Basin, May 2015, available at: http://nileis.nilebasin.org/content/nile-story-briefing-note-8-restoring-nile-basin.

77 World Bank Group, ‘Sustainable Livelihoods for Displaced and Vulnerable Communities in Eastern Sudan: Resettlement Policy Framework’, Feb. 2016, available at: http://documents.worldbank.org/curated/en/890061469095513641/Resettlement-policy-framework.

78 H. Verhoeven & L.A. Patey, ‘Sudan's Islamists and the Post-Oil Era: Washington's Role after Southern Secession’, Middle East Policy Council, Vol. XVIII, No. 3, 2011, available at: https://www.mepc.org/sudans-islamists-and-post-oil-era-washingtons-role-after-southern-secession.

79 Verhoeven, H., ‘The Rise and Fall of Sudan's Al-Ingaz Revolution: The Transition from Militarised Islamism to Economic Salvation and the Comprehensive Peace Agreement’ (2013) 15(2) Civil Wars, pp. 118–40CrossRefGoogle Scholar.

80 This information was gleaned from initial reports from the DAPs, primarily from the first letter to the UN Special Rapporteur on the Right to Housing, and early litigation documentation.

81 The normative framework utilised by the transnational groups was illustrated by official reports and informal discussions as well as litigation documents accessed through the activists.

82 Interview with JB, 7 May 2017.

83 See Scudder, n. 31 above.

84 Interview with AM, 15 Apr. 2017.

85 Interview with AH, 17 May 2017.

86 Interview with AA, 16 Apr. 2017.

87 See the Sudan National Comprehensive Strategy of 1992–2002, referred to in UN Environment Programme, ‘Environmental Governance in Sudan: An Expert Review’, Nov. 2012, p. 19, available at: https://postconflict.unep.ch/publications/sudan/UNEP_Sudan_environmental_governance_review_2012.pdf.

88 Read together, the EPA 2001, the Interim Constitution 2005 and Sudan's National Water Policy of 1999 show that citizens have the right to live in a clean environment, and that the protection and conservation of national resources, including water, is a priority. The EPA adopts the language of sustainable development as reflected in the Rio Declaration on Environment and Development (1992). In addition, the Interim Constitution addresses environmental and human rights concerns, including with respect to displacement, and provides for the protection of property rights.

89 56th Session of CESCR. Note that the EIA referred to was never made available to the public: see Askouri, n. 29 above.

90 Sa'addin Ibrahim, contributor to the Hamdab, Makabrab and Local Option Studies, Chair of Al-Multaga Option Study (Workshop held 22 Aug. 2016 in Sudan).

91 Abdelhalim Al-Mutaafi (Governor of Khartoum (Sudan)), interview in Financial Times, 6 Mar. 2007.

92 ‘Interview – with Sudanese Humanitarian Affairs Minister’, Sudan Tribune, 20 May 2005, available at: http://www.sudantribune.com/spip.php?article9680.

93 N. 20 above.

94 1 Jan. 2009, Art. 8(2), available at https://www.refworld.org/docid/5a7aec3a4.html.

95 See Presidential Decree No. (353) of 2002 on appropriating lands affected by the Merowe Dam. The Decree relies on Art. 43 of the 1998 Constitution and the Appropriation of Land Act of 1930.

96 World Bank Group, n. 37 above.

97 World Bank Group, ‘Sustainable Livelihoods for Displaced and Vulnerable Communities in Eastern Sudan (SLDP): Final Evaluation Report’, prepared by EDGE for Consultancy & Research, Mar. 2016, available at: http://sldp.sd/files/docs/SLDP1-FinalEvaluationReport.pdf.

98 Note the concern expressed by the ACHPR on the lack of access to the judiciary and censorship: see ACHPR, ‘Concluding Observations and Recommendations on the 4th and 5th Periodic Report of the Republic of Sudan’, adopted at the 12th Extraordinary Session of the ACHPR, 29 July–4 Aug. 2012, Algiers (Algeria), available at: http://www.achpr.org/files/sessions/12th-eo/conc-obs/4thand5th-2008-2012/concluding_observation_.pdf.

99 Askouri is active within a wide transnational network of dam activists around the World: Interview with JB, 7 May 2017.

100 See ECCHR, ‘Case Report – The Lahmeyer Case: Construction with No Regard for the Human Cost’, Nov. 2015, available at: https://business-humanrights.org/sites/default/files/documents/Case%20Report%20Lahmeyer_20151127.pdf.

101 English translation available at: https://www.gesetze-im-internet.de/englisch_stgb.

102 Sources of the information regarding the legal basis for the case are the final decision of the prosecutor which was forwarded to us by ECCHR and the interview with their representative.

103 Interview with Claudia Müller-Hoff, ECCHR, 30 May 2017.

104 From the account of the Justice Broker as set out in his witness statement as shared by him.

105 See J. Stempel, ‘U.S. Judge Sentences Alstom in Bribery Case, $772 Mln Fine’, Reuters, 13 Nov. 2015, available at: https://www.reuters.com/article/alstom-corruption-sentencing-idUSL1N13820V20151113; and K. Guha, ‘German Group Put on Graft Blacklist’, Financial Times, 25 Feb. 2007, available at: https://www.ft.com/content/27577430-c503-11db-b110-000b5df10621.

106 The complaint included reference to ‘internationally generally recognizable standards in the industry’ and the ‘fulfilment of these standards [as being] part of the professional diligence of all stakeholders in projects which make resettlement procedures necessary’: Criminal Complaint due to Flooding, Coercion, Abandonment, etc. in the name and mandate of the human rights organization European Center for Constitutional and Human Rights (ECCHR) …, … and in the name and mandate of the aggrieved Sudanese citizen Ali Khaliefa Askouri, May 2010, p. 27, English translation available at: https://www.business-humanrights.org/sites/default/files/documents/Lahmeyer%2C%20Criminal%20complaint%20%28English%20translation%29%2C%202010-05.pdf.

107 Zeitoun et al., n 10 above, p. 137.

108 Interview with JB, 7 May 2017.

109 From a previous briefing note, available at: https://www.ecchr.eu/en/our_work/business-and-human-rights/lahmeyer-case.html.

110 Interview with Claudia Müller-Hoff, ECCHR, 30 May 2017.

111 Ibid.

112 Interview with JB, 7 May 2017.

113 The EIPR works on rights and freedoms in Egypt, and engages in strategic litigation before the African Court and the ACHPR. The CIHRS, also based in Egypt, works regionally across the Arab states and holds consultative status at the UN and observer status in the African Commissioner. Dejusticia is a Colombian-based applied research centre engaging in strategic litigation and has experience in working with populations affected by dam construction.

114 Interview with NGO representative, 9 May 2017.

115 Ibid.

116 Nairobi (Kenya), 27 June 1981, in force 21 Oct. 1986, available at: http://www.achpr.org/instruments/achpr.

117 ‘What is positive about the African Commission compared to other bodies is that you can bring in a big-picture problem … [that addresses] a number of different events over an extended period of time and that relate to the construction of two dams’: interview with NGO representative, 9 May 2017.

118 In similar cases adjudicated before the Inter-American Court of Human Rights (IACtHR) the rights afforded to indigenous people were extended, at least in part, to other communities affected by the construction of dams: see, e.g., Saramaka v. Suriname (IACtHR, 12 Aug. 2008), and Moiwana v. Suriname (IACtHR, 15 Jun. 2005).

119 Interview with INGO representative, 9 May 2017.

120 African Charter, n. 116 above, Arts 14, 16, 18. There is also a mention of the right to cultural development in Art. 22.

121 See e.g. ACHPR, Noah Kazingachire and Others v. Zimbabwe (Communication 295/04, 51st Ordinary Session), and ACHPR, Abdel Hadi, Ali Radi and Others v. Sudan (Communication No. 368/09, 54th Ordinary Session).

122 African Charter, n. 116 above, Arts 1, 3, 5, 7 (legal standing, due process and access to justice), and Arts 4 (life), 6 (liberty and security).

123 Interview with INGO representative, 9 May 2017.

124 Ibid.

125 Interview with JB, 7 May 2017.

126 Interview with INGO representative, 9 May 2017.

127 World Commission on Dams (WCD), Dams and Development (WCD, 2000), p. 279.

128 N. 20 above.

129 See D. Clark & A. Carothers, ‘Resettlement: The World Bank's Assault on the Poor’, Center for International Environmental Law, Brief, May 2000, available at: https://www.ciel.org/wp-content/uploads/2015/03/ResettlementBrief2.pdf.

130 N. 77 above.

131 In the case of the Merowe Dam, compensation was promised to be paid in instalments and, in many cases among the Manasir, it has not been paid: Askouri, n. 29 above, Ch. 14.

132 Informal discussion with AA in Nov. 2017.

133 Ibid.

134 From an informal canvassing of opinion in Sudan, very few people knew about the conflict.