Session 2: Competing Tensions between Tradition and Conventions
10th Global Conference
Friday 8th July 2011 – Sunday 10th July 2011
Mansfield College, Oxford, United Kingdom
The Dark Matter of traditional knowledge and complementary medicine in law; prospects and challenges in developing countries
Al Hanisham Mohd Khalid
Newcastle Law School, UK
Traditional Knowledge has spur international debate in last few decades, although it comes with different terms, some of which loaded with controversial and sometimes racist insanitation. Nevertheless it is irrefutable that traditional knowledge plays an important part in our civilisation which encompasses diverse ranges of traditional based innovation and creation which helps daily human livelihood.
Western Science has long being deep rooted and attained a dominant position in societies now days. The imposition of western scientific ideas and methods has brought enlightenment to mankind in developing the world for past few centuries. However we cannot ignore the fact that other valid knowledge systems exist. Although there are tensions between western science and traditional knowledge, but if effort in bridging between the two rivalries; the outcome would be beneficial for present and future generations.
Alternatively, traditional knowledge and complementary medicine (TKCM) is a promising field to be developed as cohabitation between western science and traditional knowledge. Since there are lots of plant genetics resources origin from developing countries, by developing TKCM would be beneficial for developing countries socially and economically. However some issues need to be tackled before TKCM could be manifested for example in area of law. This paper will focus prospects and challenges in introducing TKCM law. By selecting Malaysia as case study, this paper will examine the law which will introduce by the government as part of its approach for traditional knowledge preservation and the benefits for Malaysian societies.
Download Draft Conference Paper (pdf)
The Environmental Justice of water (re) Distribution: An institutional analysis of the inter-basin transfer of the Sao Francisco River in Brazil
Philippe Roman
Université de Versailles Saint-Quentin-en-Yvelines, France
Beginning in 2007, a project is in progress to divert part of the waters of the São Francisco River to the semi-arid region of northeast Brazil (“Projeto de Integração do Rio São Francisco com Bacias Hidrográficas do Nordeste Setentrional”). First envisioned in the 19th century, the project long remained a technical utopia. Fiercely opposed because of its potential environmental impacts and very high expense, it was always postponed due to engineering problems. The project was nevertheless pulled from the shelf under the Lula president, who made the project a personal commitment to bring development to the Northeast sertão (backlands). Indeed, the alleged purpose of this ‘megaproject’ is to relax the water restrictions constraining the development of the Northeastern region, to bring freshwater to poor households of the ‘semi-árido’, and to democratize access to water. While priority is supposed to be given to municipal uses, probably more than 90% of the total amount of water diverted will supply high yield export-oriented agricultural activities (e.g., sugar cane, mango, shrimp farming). The only democratic water management institution linked to the São Francisco river, the São Francisco river basin committee (Comitê da Bacia Hidrográfica do Rio São Francisco), was also the only one to formally express serious concerns about the impacts of the transfer (impacts on the fauna and flora of the river, increasing land concentration, increase in the price of water, high energy requirements to convey water through hilly regions…). The committee’s opinion was overlooked by the government and the project was approved in 2005.
The diversion will undoubtedly entail huge (re)distributive effects where the rationale behind ‘mega-transfers’ is questionable; there is uncertainty whether these redistributive projects are truly aligned with the principles of environmental justice (bringing water to regions where it is scarce in order to level social and geographic disparities). In order to analyse the actual social and geographic distributive dimensions of the project, we propose an approach combining institutional and regulation based insights (following the precedent of the French École de la Régulation) with the concept of a ‘hydrosocial contract’. The hydrosocial contract, as defined by Anthony Turton, is a contract between the public and the government that exists when the public is unable to supply its own water necessitating government assistance. What kind of hydrosocial contract is being implemented in contemporary Brazil, at a time when historic polarizing development patterns, still in force, combine with an economic upsurge implying fast-growing resource needs?
Evaluation of the interlinking between the social, political and economic aspects of the São Francisco river project will enable us to determine if the project will actually enhance environmental justice for the people of Brazil.
Why should we obey the rules of climate change regimes?
Dong Il Kim
University of Warwick, UK
This question is a philosophical question in establishing environmental governance and its law, which must be answered before all other practical discussions about the governance.
This question cannot be explored by a theory of justice but by a theory of obligation. While the former discusses how a social organisation can be just in distributing benefit and burden, the latter examines why individuals of an organisation should follow the rules of the organisation.
The principle of fairness asserts that individuals who benefit from a cooperative scheme of others have an obligation to do their share in accordance with the rules of the scheme; so called the fairness obligation. Individuals can benefit from climate change regimes either in a prospective sense that the regimes provide them with better environmental atmosphere or in a retrospective sense that their pollution is rectified by the regimes and the burden that they should have carried is borne by the regimes. The principle of fairness identifies retrospective beneficiaries as having the fairness obligation.
Being based on the idea of retrospective benefits, the principle of fairness is preferable to other theories of obligation. Consent theory may be strong in binding individuals who have consented to the rules; however, while climate change regimes are urgent, individuals are too rational to consent to the restrictions. Natural duty theory holds that it is sufficient for the rules to be (reasonably) just in order to compel individuals to follow the rules; however, why do they have to obey the rules of a particular organisation? The principle of fairness employs the basic idea of the normal justification proposed by Raz, i.e., beneficiaries can better do their share by following the rules rather than their own judgements. However, the principle does not follow the normal justification in legitimising the authority of the rules by appealing to the efficiency of the rules, which preempts the judgements by individuals.
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