In February 2002, the Supreme Court of India passed an order prohibiting state governments and also tribals and other traditional forest dwellers from removing dead, dying trees and grasses and trees felled by winds.
This was followed by a handbook being distributed by the Ministry of Environment, Forests and Climate Change (MoEF&CC) prohibiting tribals and other forest dwellers from utilizing forest produce for their livelihood needs.
In 2004, a Central Empowered Committee (CEC) was appointed by the Supreme Court mandated to prevent any foliage removal in protected forests such as in sanctuaries and national parks. In this, instead of negotiating and protecting forest dwellers and tribals and defining their rights over forests, tribals and forest dwellers were declared by the CEC as encroachment and recommended their immediate eviction.
The Centre for Equity Studies (2007) reports that India’s protected areas are inhabited by about 4 million people in total, who depend on the forests for crucial livelihood needs such as food and firewood. Here, instead of eviction, protecting forest dwellers and their rights over forests can become a more important issue in policies regarding forest conservation.
Legislation in India for Forest Conservation
The chief legislative document in India for forest conservation is the Forest Conservation Act, 1980, which was enacted on October 25th, 1980 (GoI, 2013). This was followed by many amendments to the Act, a framework provided in the form of Forest Conservation Rules, 2003 and also various guidelines which have been issued from time to time. The Forest Conservation Act, 1980 is also supported in forest conservation in India by other legislative documents such as the Wildlife Protection Act, 1972 and the National Forest Policy, 1988.
The Act is said to provide for the conservation of forests over the entire territory of India except for the state of Jammu & Kashmir. The Act provides for extensive powers for the Centre over State Governments in the case of forest conservation. State Governments would require prior permission from the Centre to derecognize reserved forests, use forest land for non-forestry purposes, assign forest land by lease to private entities, and to clear forests for re-afforestation. The Centre appoints an advisory committee to deal with matters relating to forest conservation under the provisions of the Act. This allows the MoEF a more streamlined framework with which to approach forest conservation.
The enactment of the Forest Conservation Rules, 2003 succeeded the Forest Conservation Rules set up in 1981 (GoI, 2013). The Forest Conservation Rules, 2003 established a detailed framework for interpreting the various provisions of the Forest Conservation Act, 1980. This is accompanied with guidelines, one of which concerns the development of forest land occupied by tribal populations.
The guidelines say that settlements of forest dwelling communities should be treated at par with revenue villages, which is a step back against considering some of these communities as an intrinsic part of the forest.
Dr. V. K. Bahuguna, Inspector General of Forests, differs with the MoEF&CC view, in that he explicitly mentions that the conflict between the State Governments and forest dwelling communities over forest resources is not in the interests of forest conservation for the MoEF, who instead tend to separate forest dwellers from the rest of the forest. Bahuguna instead says that the development of tribal communities and protecting forest dwellers should be included as an essential part of forest conservation (V.K. Bahuguna, 2013).
Forest Conservation and Protecting Forest Dwellers
After the 2002 Supreme Court order that banned forest dwellers from gathering dead, dying trees and grasses and trees felled by winds, the MoEF&CC rescinded to draft a Bill that would define minor forest produce and provide for their acquisition by forest dwellers.
The MoEF in 2004 announced the introduction of a draft Bill named the State/Union Territory Minor Forest Produce (Ownership of Forest Dependent Community) Act, 2005 (The Hindu, 2004). The Bill has however, has remained a draft Bill, especially with the introduction of the Forest Rights Act, 2006, which opened up a new framework of providing rights to tribal communities and protecting forest dwellers.
The draft Bill introduced by the MoEF aims to provide for the acquisition of minor forest produce, thus protecting forest dwellers’ daily livelihood activities in gathering essential resources from forests. By minor produce, what is specifically defined is all non-timber produce from forests as notified by the home State/Union Territory as minor produce.
This can include items like honey, wax, lac, tusser, etc and excludes the unrestricted cutting of wood as firewood. It also excludes the hunting of wild animals, especially protected species, although animal products such as honey and wax can be extracted, apart from domesticating certain animal species.
The identification of candidates for endowment under this Act is dependent on the State / Union Territory Government’s identification of forest dependent communities, who can also make rules for carrying forward the provisions of the Act. The Act also permits trade in this minor forest produce, which is a practise common among many forest dwelling communities.
The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 however, has become the watershed legal document in terms of guaranteeing rights to tribals and other forest-dwelling communities. The Act recognizes the rights of occupation of forest lands by forest dwelling and tribal communities even when their rights are not recorded, with the stipulation however that the occupant must have lived in the forest with at least 3 generations of lineage since 13.12.2005, with one generation being 25 years.
The Act fixes a maximum area of 4 ha for occupation of forest land, including rights for lands falling under national parks and sanctuaries. The Act allows for self-cultivation of forest land and usufructuary rights over minor forest produce falling under the aforementioned area for forest-dwellers belonging to the Scheduled Tribe category. The Act provides for in-situ rehabilitation of Scheduled Tribes who have been evicted or displaced from their forest-dwelling habitats.
These rights are heritable but not transferable and importantly stipulated that no member of any forest-dwelling Scheduled Tribes can be evicted or removed from the area the person holds rights in, which although is subject to verification. The Act recognizes Gram Sabhas as competent authorities for initiation of procedures for rights under this Act.
The Act is a huge landmark, for it for the first time clearly demarcates the rights of tribal communities in India over forest land. This makes the Act invaluable in preserving the cultures of tribal communities in India and also in correcting the historic alienation of tribal communities from land that has in many instances left them with a diminished identity.
The Bill became an Act in 2007, but for most forest dwellers, their rights are yet to be recognized. There is persistent conflict over the Act between the Ministry of Tribal Affairs (MoTA) and the Ministry of Environment and Forests (MoEF).
On the one hand, MoTA is trying to protect the rights of forest dwellers, while on the other hand, erratic resource extraction in forests by forest dwellers is earning them the MoEF’s wrath. Evictions are happening in many areas in India, with the state of Assam recording the eviction of about 40,000 families alone.
The Supreme Court’s 2002 order in effect is also having a detrimental effect for example, on the livelihood needs of people living in the Forests of Don in the Harnatand Range, turning traditional forest dwellers into encroachers into the forests. India’s national parks and sanctuaries were declared protected areas after the 2002 Supreme Court order as per an amendment in the Wildlife Protection Act, 1972, where animal resource extractions from these areas without permissions would be encroachments by forest dwellers and tribal communities.
The current quagmire presents a conflict of interest between protecting forest dwellers and working for their welfare and with forest conservation.
The Forest Rights Act, 2006 is also frequently accused of leading to the destruction of forests by conservationists. In a study carried out by the Energy and Resources Institute (TERI), the Forest Rights Act, 2006’s provision of allowing cultivation on forest land has led to the conversion of tracts of forest into agricultural farms. This is accompanied with the provision of rights over the ownership and disposal of minor forest produce in forests based on their traditional methods.
The study utilized GIS technology to carry out satellite assessments of land in Maharashtra. TERI also claimed that these practices had led to a reduction in the carbon sequestration capacities of land under forests in India. An assessment was made of the impacts of the change in land use on ecosystems and the vulnerability of the people.
According to the Parliamentary Committee on Petitions, 16th Lok Sabha in their 9th and 18th Report, the implementation of the Forest Rights Act, 2006 has led to an encroachment of about 16.21 lakh ha of forest land.
Many conservationists claim that the Forest Rights Act, 2006 will prevent the demarcation of inviolate spaces in nature free from human interference, which is necessary for wildlife conservation sometimes, with tiger conservation being a case in point. Although the Forest Right Act, 2006 lays out a procedure for resettling of people when required in order to protect wildlife, often the problem is a lot of arbitrariness in implementation along with changing habitats for animals.
Many conservationists also see the clause of allowing cultivation in forest land as an elaborate land distribution scheme that can also be appropriated by people who are not genuine forest dwellers. One could argue that allowing cultivation in forest land might encourage people to encroach less on wildlife habitats, but food habits are most likely to be largely defined by tradition notwithstanding the conditions imposed by modern civilization. In this light, the MoEF’s plan to define non-timber minor forest produce narrowly among populations that adhere more to tradition than modern machinations is bound to be incredibly inconsistent.
What has happened is that the cultivation enabled by the Forest Rights Act, 2006 has created a windfall for otherwise very poor and marginalized populations without ownership or access to land in mainstream agricultural locations.
Given that that the tribal question is one of identity, any legislation regarding protecting forest dwellers and tribal communities must offer a cohesive and structured approach that is balanced to all the peculiarities that might arise in dealing with forest dwelling populations. When the dynamic quality of tradition arises out of its peculiarities, an all encompassing modern legal instrument can only create certain ambiguities interpreted in terms of its affiliations to the modern superstructure.
For example, allowing commercial dynamics in non-timber minor forest produce might impose an unfair economic model instead of protecting forest dwelling populations and their right to consume forest resources, who might be motivated instead to participate in an unfair balance of trade, moving instead towards exploitation of forest resources than traditional subsistence livelihoods.
On the one hand cultivation of forest land under the Forest Rights Act, 2006 might place stresses on forest ecosystems due to excess extraction of forest water for example, while the food habits determined by tradition are likely to remain the same. On the other hand, limitations placed by being able to extract only non-timber minor forest produce while commercially activating these at the same time might mean legal commercial exploitation of forests while in the informal space traditional ways of life, although suppressed, could conti
Both point towards one important thing – protecting forest dwellers means synchronization of policy with their tradition as regards their habitat. This synchrony is possible if policy abandons unilateralism and a balance is found between policy, the traditions of forest dwellers and the forest habitat and ecosystem. The more synchrony is achieved, the better the chances for conservation of both forest ecosystems and forest dwellers, which only a balanced and equitable policy environment can provide.
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The United Nations has shaped so much of global co-operation and regulation that we wouldn’t recognise our world today without the UN’s pervasive role in it. So many small details of our lives – such as postage and copyright laws – are subject to international co-operation nurtured by the UN.
In its 75th year, however, the UN is in a difficult moment as the world faces climate crisis, a global pandemic, great power competition, trade wars, economic depression and a wider breakdown in international co-operation.
Still, the UN has faced tough times before – over many decades during the Cold War, the Security Council was crippled by deep tensions between the US and the Soviet Union. The UN is not as sidelined or divided today as it was then. However, as the relationship between China and the US sours, the achievements of global co-operation are being eroded.
The way in which people speak about the UN often implies a level of coherence and bureaucratic independence that the UN rarely possesses. A failure of the UN is normally better understood as a failure of international co-operation.
We see this recently in the UN’s inability to deal with crises from the ethnic cleansing of the Rohingya Muslims in Myanmar, to civil conflict in Syria, and the failure of the Security Council to adopt a COVID-19 resolution calling for ceasefires in conflict zones and a co-operative international response to the pandemic.
The UN administration is not primarily to blame for these failures; rather, the problem is the great powers – in the case of COVID-19, China and the US – refusing to co-operate.
Where states fail to agree, the UN is powerless to act.
Marking the 75th anniversary of the official formation of the UN, when 50 founding nations signed the UN Charter on June 26, 1945, we look at some of its key triumphs and resounding failures.
Five successes
1. Peacekeeping
The United Nations was created with the goal of being a collective security organisation. The UN Charter establishes that the use of force is only lawful either in self-defence or if authorised by the UN Security Council. The Security Council’s five permanent members, being China, US, UK, Russia and France, can veto any such resolution.
The UN’s consistent role in seeking to manage conflict is one of its greatest successes.
A key component of this role is peacekeeping. The UN under its second secretary-general, the Swedish statesman Dag Hammarskjöld – who was posthumously awarded the Nobel Peace prize after he died in a suspicious plane crash – created the concept of peacekeeping. Hammarskjöld was responding to the 1956 Suez Crisis, in which the US opposed the invasion of Egypt by its allies Israel, France and the UK.
UN peacekeeping missions involve the use of impartial and armed UN forces, drawn from member states, to stabilise fragile situations. “The essence of peacekeeping is the use of soldiers as a catalyst for peace rather than as the instruments of war,” said then UN Secretary-General Javier Pérez de Cuéllar, when the forces won the 1988 Nobel Peace Prize following missions in conflict zones in the Middle East, Africa, Asia, Central America and Europe.
However, peacekeeping also counts among the UN’s major failures.
2. Law of the Sea
Negotiated between 1973 and 1982, the UN Convention on the Law of the Sea (UNCLOS) set up the current international law of the seas. It defines states’ rights and creates concepts such as exclusive economic zones, as well as procedures for the settling of disputes, new arrangements for governing deep sea bed mining, and importantly, new provisions for the protection of marine resources and ocean conservation.
Mostly, countries have abided by the convention. There are various disputes that China has over the East and South China Seas which present a conflict between power and law, in that although UNCLOS creates mechanisms for resolving disputes, a powerful state isn’t necessarily going to submit to those mechanisms.
Secondly, on the conservation front, although UNCLOS is a huge step forward, it has failed to adequately protect oceans that are outside any state’s control. Ocean ecosystems have been dramatically transformed through overfishing. This is an ecological catastrophe that UNCLOS has slowed, but failed to address comprehensively.
3. Decolonisation
The idea of racial equality and of a people’s right to self-determination was discussed in the wake of World War I and rejected. After World War II, however, those principles were endorsed within the UN system, and the Trusteeship Council, which monitored the process of decolonisation, was one of the initial bodies of the UN.
Although many national independence movements only won liberation through bloody conflicts, the UN has overseen a process of decolonisation that has transformed international politics. In 1945, around one third of the world’s population lived under colonial rule. Today, there are less than 2 million people living in colonies.
When it comes to the world’s First Nations, however, the UN generally has done little to address their concerns, aside from the non-binding UN Declaration on the Rights of Indigenous Peoples of 2007.
4. Human rights
The Human Rights Declaration of 1948 for the first time set out fundamental human rights to be universally protected, recognising that the “inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”.
Since 1948, 10 human rights treaties have been adopted – including conventions on the rights of children and migrant workers, and against torture and discrimination based on gender and race – each monitored by its own committee of independent experts.
The language of human rights has created a new framework for thinking about the relationship between the individual, the state and the international system. Although some people would prefer that political movements focus on ‘liberation’ rather than ‘rights’, the idea of human rights has made the individual person a focus of national and international attention.
5. Free trade
Depending on your politics, you might view the World Trade Organisation as a huge success, or a huge failure.
The WTO creates a near-binding system of international trade law with a clear and efficient dispute resolution process.
The majority Australian consensus is that the WTO is a success because it has been good for Australian famers especially, through its winding back of subsidies and tariffs.
However, the WTO enabled an era of globalisation which is now politically controversial.
Recently, the US has sought to disrupt the system. In addition to the trade war with China, the Trump Administration has also refused to appoint tribunal members to the WTO’s Appellate Body, so it has crippled the dispute resolution process. Of course, the Trump Administration is not the first to take issue with China’s trade strategies, which include subsidises for ‘State Owned Enterprises’ and demands that foreign firms transfer intellectual property in exchange for market access.
The existence of the UN has created a forum where nations can discuss new problems, and climate change is one of them. The Intergovernmental Panel on Climate Change (IPCC) was set up in 1988 to assess climate science and provide policymakers with assessments and options. In 1992, the UN Framework Convention on Climate Change created a permanent forum for negotiations.
However, despite an international scientific body in the IPCC, and 165 signatory nations to the climate treaty, global greenhouse gas emissions have continued to increase.
Under the Paris Agreement, even if every country meets its greenhouse gas emission targets we are still on track for ‘dangerous warming’. Yet, no major country is even on track to meet its targets; while emissions will probably decline this year as a result of COVID-19, atmospheric concentrations of greenhouse gases will still increase.
This illustrates a core conundrum of the UN in that it opens the possibility of global cooperation, but is unable to constrain states from pursuing their narrowly conceived self-interests. Deep co-operation remains challenging.
Five failures of the UN
1. Peacekeeping
During the Bosnian War, Dutch peacekeeping forces stationed in the town of Srebrenica, declared a ‘safe area’ by the UN in 1993, failed in 1995 to stop the massacre of more than 8000 Muslim men and boys by Bosnian Serb forces. This is one of the most widely discussed examples of the failures of international peacekeeping operations.
On the massacre’s 10th anniversary, then UN Secretary General Kofi Annan wrote that the UN had “made serious errors of judgement, rooted in a philosophy of impartiality”, contributing to a mass murder that would “haunt our history forever”.
If you look at some of the other infamous failures of peacekeeping missions – in places such as Rwanda, Somalia and Angola – it is the limited powers given to peacekeeping operations that have resulted in those failures.
2. The invasion of Iraq
The invasion of Iraq by the US in 2003, which was unlawful and without Security Council authorisation, reflects the fact that the UN is has very limited capacity to constrain the actions of great powers.
The Security Council designers created the veto power so that any of the five permanent members could reject a Council resolution, so in that way it is programmed to fail when a great power really wants to do something that the international community generally condemns.
In the case of the Iraq invasion, the US didn’t veto a resolution, but rather sought authorisation that it did not get. The UN, if you go by the idea of collective security, should have responded by defending Iraq against this unlawful use of force.
The invasion proved a humanitarian disaster with the loss of more than 400,000 lives, and many believe that it led to the emergence of the terrorist Islamic State.
3. Refugee crises
The UN brokered the 1951 Refugee Convention to address the plight of people displaced in Europe due to World War II; years later, the 1967 Protocol removed time and geographical restrictions so that the Convention can now apply universally (although many countries in Asia have refused to sign it, owing in part to its Eurocentric origins).
Despite these treaties, and the work of the UN High Commission for Refugees, there is somewhere between 30 and 40 million refugees, many of them, such as many Palestinians, living for decades outside their homelands. This is in addition to more than 40 million people displaced within their own countries.
While for a long time refugee numbers were reducing, in recent years, particularly driven by the Syrian conflict, there have been increases in the number of people being displaced.
During the COVID-19 crisis, boatloads of Rohingya refugees were turned away by port after port. This tragedy has echoes of pre-World War II when ships of Jewish refugees fleeing Nazi Germany were refused entry by multiple countries.
And as a catastrophe of a different kind looms, there is no international framework in place for responding to people who will be displaced by rising seas and other effects of climate change.
4. Conflicts without end
Across the world, there is a shopping list of unresolved civil conflicts and disputed territories.
Palestine and Kashmir are two of the longest-running failures of the UN to resolve disputed lands. More recent, ongoing conflicts include the civil wars in Syria and Yemen.
The common denominator of unresolved conflicts is either division among the great powers, or a lack of international interest due to the geopolitical stakes not being sufficiently high. For instance, the inaction during the Rwandan civil war in the 1990s was not due to a division among great powers, but rather a lack of political will to engage.
In Syria, by contrast, Russia and the US have opposing interests and back opposing sides: Russia backs the government of the Syrian dictator Bashar al-Assad, whereas the US does not.
5. Acting like it’s 1945
The UN is increasingly out of step with the reality of geopolitics today.
The permanent members of the Security Council reflect the division of power internationally at the end of World War II. The continuing exclusion of Germany, Japan, and rising powers such as India and Indonesia, reflects the failure to reflect the changing balance of power.
Also, bodies such as the IMF and the World Bank, which are part of the UN system, continue to be dominated by the West. In response, China has created potential rival institutions such as the Asian Infrastructure Investment Bank.
Western domination of UN institutions undermines their credibility. However, a more fundamental problem is that institutions designed in 1945 are a poor fit with the systemic global challenges – of which climate change is foremost – that we face today.