Debt, nature, and indigenous rights: Twenty-five years of debt-for-nature evolution

Harvard Environmental Law Review

Volumn 36, Issue 1, 2012, Pages 79-122

  Knicley, Jared E ^a  

^a HARVARD LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

CONSERVATION MANAGEMENT; DEBT; DEVELOPING WORLD; ENVIRONMENTAL DEGRADATION; ENVIRONMENTAL ECONOMICS; ENVIRONMENTAL ISSUE; INDIGENOUS POPULATION; PARTICIPATORY APPROACH; SOCIAL JUSTICE; TREND ANALYSIS;

EID: 84864057660     PISSN: 01478257     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (115)

1. William Boyd, Ways of Seeing Environmental Law: How Deforestation Became an Object of Climate Governance, 37 ECOLOGY L. Q. 843, 860-61 (2010);
2. cf. Jedediah Purdy, American Natures: The Shape of Conflict in Environmental Law, 36 HARV. ENVTL. L. REV. 169 (2012) (highlighting the tensions between the providential republican and progressive management views of nature in American environmental dialogue and policy).
3. See Laurie P. Greener, Comment, Debt-for-Nature Swaps in Latin American Countries: The Enforcement Dilemma, 7 CONN. J. INT'L L. 123, 132-34 (1991) (noting that 100, 000 square kilometers is equal to the size of Austria).
4. Lydia Saad, Water Issues Worry America Most, Global Warming Least, GALLUP, Mar. 28, 2011, http://www.gallup. com/poll/146810/Water-Issues-Worry- Americans-Global-Warming-Least.aspx.
5. See KATRINA BROWN ET AL., GLOBAL ENV'T FACILITY, ECONOMICS AND THE CONSERVATION OF GLOBAL BIOLOGICAL DIVERSITY 3-5 (1993). The touted benefits of biodiversity are wide-ranging, with many focused on future human use.
6. See, e.g., DAVID HUNTER, JAMES SALZMAN, & DURWOOD ZAELKE, INTERNATIONAL ENVIRONMENTAL LAW AND POLICY 986-87 (4th ed. 2011) (listing wildlife uses, ecosystem services, agricultural and food security, drugs and medicines, and intrinsic and existence values as benefits of biodiversity);
7. F. Stuart Chapin III et al., Consequences of Changing Biodiversity, 405 NATURE 234, 239 (2000) ("Biodiversity and its links to ecosystem properties have cultural, intellectual, aesthetic and spiritual values that are important to society.").
8. Amanda Lewis, Comment, The Evolving Process of Swapping Debt for Nature, 10 COLO. J. INT'L ENVTL. L. & POL'Y 431, 432 (1999).
9. Michael S. Sher, Can Lawyers Save the Rain Forest? Enforcing the Second Generation of Debt-for-Nature Swaps, 17 HARV. ENVTL. L. REV. 151, 155 (1993).
10. (quoting Bill Bradley, Defusing the Latin Debt Bomb, WASH. POST, Oct. 5, 1986, at C2) (describing formal responses to the debt crisis by the International Monetary Fund and the World Bank).
11. Barbara J. Bramble, The Debt Crisis: The Opportunities, 17 ECOLOGIST 192, 192 (1987) ("The need to increase short-term economic productivity is, in many cases, reducing the potential for long-term sustainable development in agriculture, forestry, and fisheries, and increasing the future costs of correcting the environmental destruction inflicted now.").
12. Thomas Lovejoy III, Aid Debtor Nations' Ecology, N. Y. TIMES, Oct. 4, 1984, at A31 (urging private creditors to discount debts in exchange for debtor nation protection of forested lands).
13. Catherine Kilbane Gockel & Leslie C. Gray, Debt-for-Nature Swaps in Action: Two Case Studies in Peru, ECOLOGY & SOC'Y, Sept. 2011, available at http://www.ecologyand society.org/vol16/iss3/art13/ES-2011-4063.pdf ("Debt-for-nature swaps have been touted as a win-win solution to the problem of how to finance conservation in the developing world." (citations omitted)).
14. G. A. Res. 61/295, U. N. Doc. A/RES/61/295 (Sept. 13, 2007), available at http://www.un.org/esa/socdev/unpfii/documents/DRIPS-en.pdf.
15. Stein Hansen, Debt for Nature Swaps - Overview and Discussion of Key Issues, 1 ECOLOGICAL ECON. 77, 78 (1989) ("[D]ebt-equity swaps involve the conversion of external debt into some form of equity with foreigners holding a claim on debtor country resources⋯."). In some cases, DFN swaps can also be considered debt-expenditure swaps in which nongovernmental organizations "are interested in obtaining domestic currency at a discount which can be used for conservation-type expenditure or which they want the government to use for that purpose."
16. Timothy B. Hamlin, Comment, Debt-for-Nature Swaps: A New Strategy for Protecting Environmental Interests in Developing Nations, 16 ECOLOGY L. Q. 1065, 1068 (1989).
17. PERVAZE A. SHEIKH, CONG. RESEARCH SERV., RL31286, DEBT-FOR-NATURE INITIATIVES AND THE TROPICAL FOREST CONSERVATION ACT: STATUS AND IMPLEMENTATION (2010), available at http://cnie.org/NLE/CRSreports/10Apr/RL31286.pdf.
18. 22 U. S. C. § 2431 (2006).
19. Ross Buckley, Debt-for-Development Exchanges: The Origins of a Financial Technique, 2 LAW & DEV. REV. 52, 59 (2009).
20. William K. Reilly, Using International Finance to Further Conservation: The First 15 Years of Debt-for-Nature Swaps, in SOVEREIGN DEBT AT THE CROSSROADS: CHALLENGES AND PROPOSALS FOR RESOLVING THE THIRD WORLD DEBT CRISIS 197, 210-211 (Chris Jochnick & Fraser A. Preston eds., 2006) ("Debt swaps furthermore have proved to be an impetus for the growth and development of conservation groups⋯. In the Philippines, [the DFN program] has made NGOs stronger and financially conscious and fostered the greening of financial institutions⋯. It encouraged productive partnerships between government, local NGOs, and international NGOs." (internal quotation marks omitted)).
21. Steve Freeland & Ross P. Buckley, Debt-for-Development Exchanges: Using External Debt to Mitigate Environmental Damage in Developing Countries, 16 HASTINGS W. NW. J. ENVTL. L. & POL'Y 77, 92 (2010) (paraphrasing the Organisation for Economic Co-Operation and Development ("OECD") support for DFN swaps).
22. See MICHAEL GILLENWATER, GREENHOUSE GAS MGMT. INST., WHAT IS ADDITIONALITY? PART 2: A FRAMEWORK FOR A MORE PRECISE DEFINITION AND STANDARDIZED APPROACHES 3(2011), available at http://ghginstitute.org/wp- content/uploads/2011/03/Addition alityPaper-Part-2-ver2-FINAL.pdf ("Additionality occurs in cases in which a policy intervention actually causes an activity to take place. It is determined by assessing whether a proposed activity is distinct from its baseline⋯.");
23. see also MICHAEL GILLENWATER, GREENHOUSE GAS MGMT. INST., WHAT IS ADDITIONALITY? PART 1: A LONG STANDING PROBLEM 14(2011), available at http://ghginstitute.org/wp-content/uploads/2011/03/AdditionalityPaper-Part-1- ver2-FINAL.pdf (providing that additionality can be conceived of at the policy level - asking whether the "policy intervention cause[d] the proposed activity to take place?" - and the environmental quality level - asking "[h]ow much has the activity improved [environmental] performance?").
24. See Randall S. Abate & Todd A. Wright, A Green Solution to Climate Change: The Hybrid Approach to Crediting Reductions in Tropical Deforestation, 20 DUKE ENVTL. L. & POL'Y F. 87, 102-05 (2010) (evaluating the challenges in crediting REDD projects).
25. Priya Alagiri, Note, Give Us Sovereignty or Give Us Debt: Debtor Countries' Perspectives on Debt-for-Nature Swaps, 41 AM. U. L. REV. 485 (1992) (arguing that sovereignty interests of both debtor countries and indigenous groups plagued early implementation of DFN swaps).
26. See Bill Walker, Using Debt Exchanges to Enhance Public Accountability to Citizens, in DEBTFOR-DEVELOPMENT EXCHANGES: HISTORY AND NEW APPLICATIONS 297, 297 (Ross P. Buckley ed., 2011).
27. See Dal Didia, Debt-for-Nature Swaps, Market Imperfections, and Policy Failures as Determinants of Sustainable Development and Environmental Quality, 35 J. ECON. ISSUES 477, 481-82 (2001) (acknowledging that debt and tropical deforestation are "positively and significantly related", but nonetheless arguing that "tropical deforestation will continue as long as the institutions that can protect [tropical forests] are nonexistent or ineffective").
28. See NICOLE HASSOUN & MATT FRANK, ARE DEBT FOR CLIMATE SWAPS MORALLY PERMISSIBLE? 14(2010), available at http://repository.cmu.edu/cgi/viewcontent. cgi?article=1367 &context=philosophy ("If one agrees⋯ that traditional economic conditionality undermines human rights, one should agree that debt-for-climate swaps do so. For, the structure of debtfor-climate swaps is the same as the structure of traditional economic conditionality.").
29. LAWRENCE E. SUSSKIND & ISABELLE ANGUELOVSKI, PROGRAM ON HUMAN RIGHTS AND JUSTICE, MASS. INST. OF TECH., ADDRESSING THE LAND CLAIMS OF INDIGENOUS PEOPLES 12(2008), available at http://mit.edu/phrj/publications-phrj/indigenous- peoples.pdf (emphasizing that indigenous "livelihoods depend on maintaining control over their land's resources" and that land claims provide important "physical and symbolic borders" between indigenous and dominant cultures).
30. Catherine Potvin et al., The Role of Indigenous Peoples in Conservation Actions: A Case Study of Cultural Differences and Conservation Priorities, in GOVERNING GLOBAL BIODIVERSITY 160-61 (Philippe G. Le Prestre ed., 2002) (arguing that the "logical starting point for this question" of whether "indigenous people⋯ have the same conservation priorities as the international or scientific communities" is "representation - the place of nature and biodiversity in one's worldview" (emphasis omitted)).
31. Katrina Eadie Brandon & Michael Wells, Planning for People and Parks: Design Dilemmas, 20 WORLD DEV. 557, 564 (1992).
32. Press Release, World Wildlife Fund, Monumental Debt-for-Nature Swap Provides $20 Million to Protect Biodiversity In Madagascar (June 14, 2008), available at http://www.sciencedaily.com/releases/2008/06/080612170515. htm (providing an example where the fruits of the debt-for-nature swap were a part of "Madagascar's ambitious national effort⋯ to triple the size of the country's protected areas").
33. See Paige Mason, Note, Inadequacies of the Amazon Fund: Evaluating Brazil's Sovereignty in the Context of Promising Market Mechanisms and the Need for International Oversight to Protect the Amazon Rainforest, 13 TOURO INT'L L. REV. 116, 137 (2010) ("NGO involvement seems to be key to preserving one's sovereignty and will simultaneously monitor, fund and otherwise assist a broad-based Amazon protection scheme.").
34. See, e.g., JACK DONNELLY, UNIVERSAL HUMAN RIGHTS IN THEORY & PRACTICE 1 (2d ed. 2003) ("I do not, however, argue that human rights are timeless, unchanging, or absolute; any list or conception of human rights - and the idea of human rights itself - is historically specific and contingent.").
35. One example of real life effect of the classification of indigenous peoples manifests in the customary aboriginal subsistence whaling exceptions under the International Convention for the Regulation of Whaling ("ICRW"), Dec. 2, 1946, 62 Stat. 1716
36. U. N. T. S. 72. The ICRW does not define the term "aborigine", and the International Whaling Commission ("IWC"), despite establishing a working group, has failed to define the term as well.
37. See, e.g., The World Bank, Operational Manual: Operational Policies, Indigenous Peoples, OP 4.10 (3) (July 2005), available at http://go.worldbank. org/TE769PDWN0 ("Because of the varied and changing contexts in which Indigenous Peoples live and because there is no universally accepted definition of 'Indigenous Peoples', this policy does not define the term.").
38. See, e.g., Lünsman v. Finland, Human Rights Comm., U. N. Doc. CCPR/C/49/D/511/1992 (Oct. 14, 1993) (addressing the threat of logging to the indigenous rights of the Sami - the ethnic reindeer herders of Finland);
39. Bernard Ominayak & The Lubicon Lake Band v. Canada, Human Rights Comm., U. N. Doc. CCPR/C/38/D/167/1984 (Oct. 5, 1990) (dealing with the threats of oil and gas exploration to the way of life of the Lubicon Lake Band);
40. see also Brief for Ctr. for Human Rights and Env't & Ctr. for Int'l Envtl. Law as Amicus Curiae Supporting Respondents at 3, Ass'n of Lhaka Honhat Aboriginal Cmtys. v. Argentina (Sept. 19, 2000) ("[T]here is a recurring pattern throughout the world,⋯ including South American states, whereby⋯ large-scale development projects are undertaken which result in irreparable environmental harm to lands historically used, occupied, and claimed by indigenous peoples.").
41. Gillian Moon, The Human Rights Dimension in Exchanges, in DEBT-FOR-DEVELOPMENT EXCHANGES: HISTORY AND NEW APPLICATIONS, supra note 44, at 138, 147. As a result, "[t]he legal basis for many references to the rights of indigenous peoples (as distinct from human rights generally) will be found in equality concepts and guarantees of nondiscrimination. "
42. United Nations Declaration on the Rights of Indigenous Peoples, U. N. PERMANENT FORUM ON INDIGENOUS ISSUES, http://www.un.org/esa/socdev/unpfii/en/ declaration (last visited Jan. 7, 2012) (on file with the Harvard Law School Library).
43. Deborah F. Shmeuli & Rassem Khamaisi, Bedouin Communities in the Negev, 77 J. AM. PLANNING ASS'N. 109, 111 (2011) ("The issue for Israel's Bedouin, as it is for many indigenous peoples, is not political sovereignty as an independent state, but the type of territorially framed autonomy that is realistic.").
44. J. Eugene Gibson & Randall K. Curtis, A Debt-for-Nature Blueprint, 28 COLUM. J. TRANSNAT'L L. 331, 356 (1990).
45. Gretchen K. Muller, Debt-for-Nature Swaps, Forest Conservation and the Bolivian Landscape, in FORESTS AND SOCIETY: SUSTAINABILITY AND LIFE CYCLES OF FORESTS IN HUMAN LANDSCAPES 94, 96 (Kristiina A. Vogt et al. eds., 2007) ("The lack of participation on the part of indigenous groups living within the areas and the logging of 650, 000 ha triggered the Chimane Indian 'March for Dignity and Territory' in 1990.").
46. cf. Eve Burton, Debt for Development: A New Opportunity for Nonprofits, Commercial Banks, and Developing States, 31 HARV. INT'L L. J. 233, 241-43 (1990) (arguing that a fatal flaw in DFN swaps is that environmentalists inappropriately deemphasize sovereignty of state and non-state parties).
47. Pub. L. No. 101-624, 104 Stat. 3359 (1990).
48. see MELISSA D. HO & CHARLES E. HANRAHAN, CONG. RESEARCH SERV., R41072, INTERNATIONAL FOOD AID PROGRAMS: BACKGROUND AND ISSUES 2-6 (2010).
49. See Proyect Implementation, FUNDACION NATURA BOLIVIA, http://www.naturabolivia.org/proyectoI.htm (last visited Jan. 7, 2012) (on file with the Harvard Law School Library).
50. RICARDO BAYON & CAROLYN DEERE, INT'L UNION FOR THE CONSERVATION OF NATURE, FINANCING BIODIVERSITY CONSERVATION: THE POTENTIAL OF ENVIRONMENTAL FUNDS 9(1998), available at http://www.ibcperu.org/doc/isis/8343.pdf ("Furthermore, due to its close links to the Bolivian government, [Fundación Natura] has had to deal with governmental priorities changing when new governments are elected. In fact, [Fundación Natura] has encountered major problems in the last year or two, partly because it has attempted to address too broad a mandate.").
51. see also Africa's Pollution and Land Grab Threat from UN Carbon Market, INDIGENOUS PEOPLES, ISSUES, & RES., Mar. 1, 2011, available at http://indigenouspeoplesissues.com/index.php?option=com-content &view=article&id=9185 (detailing the risk of carbon markets to indigenous land rights);
52. Buying Farmland Abroad: Outsourcing's Third Wave, THE ECONOMIST, May 21, 2009, available at http://www.economist.com/node/13692889 (describing the developed-world land grab for agricultural land in Africa).
53. Pub. L. No. 105-214, 112 Stat. 885
54. (codified at 22 U. S. C. § 2431 (2006)).
55. See Innovative Financing for Forest Conservation and the Environment, U. S. AGENCY FOR INT'L DEV., http://www.usaid.gov/our-work/environment/forestry/ tfca.html (last visited Jan. 7, 2012) (on file with the Harvard Law School Library) ("[H]owever, only the TFCA has received appropriated federal funding in recent years. Without such appropriated funding, the EAI program will not undertake new agreements.").
56. Compare TFCA, 22 U. S. C. § 2431g (d)
57. with EAI, 7 U. S. C. § 1738k (2006)
58. (citing Global Environmental Protection Act of 1989 ("GEA"), 22 U. S. C. § 2283 (2006)).
59. (quoting Douglas Logsdon, Debt-for-Nature Evolves: The Enterprise for the Americas Initiative, 3 COLO. J. INT'L ENVTL. L. & POL'Y 635, 647 (1992));
60. see also GEA, 22 U. S. C. § 2283 (a) (9).
61. TFCA, 22 U. S. C. § 2431g (d) (6).
62. (citing 144 CONG. REC. S8155 (daily ed. July 14, 1998) (statement of Sen. Roberts)).
63. Compare 144 CONG. REC. H1314 (daily ed. Mar. 19, 1998) (statement of Rep. Vento)
64. with 144 CONG. REC. S8155 (daily ed. July 14, 1998) (statement of Sen. Lugar).
65. TFCA, 22 U. S. C. § 2431g (d) (5).
66. Walt Reid et al., A New Lease on Life, in BIODIVERSITY PROSPECTING: USING GENETIC RESOURCES FOR SUSTAINABLE DEVELOPMENT 1, 16 (Walt Reid et al. eds., 1993). Shiva claims that bioprospecting is an "inappropriate term" for the process described by Reid et al. Instead, Shiva argues that because "[t]he very concept of bioprospecting⋯ is based on patenting traditional knowledge" and "[a] patent is granted for inventions, which must be novel", bioprospecting's usurpation of already-existing traditional knowledge is "merely a sophisticated form of biopiracy."
67. See Vandana Shiva, Bioprospecting as Sophisticated Biopiracy, 32 SIGNS 307, 307-08 (2007).
68. Bangladesh: USAID's Response: Environment, U. S. AGENCY FOR INT'L DEV., http://www.usaid.gov/bd/programs/environ-response.html (last visited Jan. 7, 2012) (on file with the Harvard Law School Library).
69. See Current Project, ARRANAYK FOUND., http://www.arannayk.org/curproject- 1.php (last visited Jan. 7, 2012) (on file with the Harvard Law School Library). This proportion is all the more impressive considering that many of the other projects are non-invasive of indigenous rights; these pilot projects, designed to obtain, stockpile, and then propagate endangered and threatened plant species throughout their native ranges, were undertaken in a manner that required local approval.
70. See generally M. Rashiduzzaman, Bangladesh's Chittagong Hill Tracts Peace Accord: Institutional Features and Strategic Concerns, 38 ASIAN SURVEY 653, 656-62 (1998).
71. Pranab Kumar Panday & Ishtiaq Jamil, Conflict in the Chittagong Hill Tracts of Bangladesh: An Unimplemented Accord and Continued Violence, 49 ASIAN SURVEY 1052, 1052 (2009).
72. Itchari Community Reserve Forest Conservation Project, Khagrachari, ARRANAYK FOUND., http://www.arannayk.org/curproject-biram.php (last visited Jan. 7, 2012) (on file with the Harvard Law School Library).
73. ARANNAYK FOUND., CONSERVING FORESTS FOR THE FUTURE: ANNUAL REPORT 2009, at 25(2009), available at http://www.arannayk.org/docs/af-annualreport-2009.pdf.
74. Restoration of Hilly Bio-diversity through Community Based Bio-resource Management at Dighinala, Khagrachari, ARRANAYK FOUND., http://www.arannayk.org/ curproject-anando.php (last visited Jan. 7, 2012) (on file with the Harvard Law School Library).
75. ARANNAYK FOUND., supra note 144, at 25.
76. Press Release, Conservation Int'l, US to Forgive $30M Debt to Protect Sumatra's Forests (June 30, 2009), available at http://www.conservation. org/sites/gcf/news/Pages/debt-for-nature-sumatra.aspx.
77. Tom Wright, U. S. to Forgive Indonesian Debt in Exchange for Conservation Plan, WALL ST. J., July 1, 2009, at A10, available at http://online.wsj.com/ article/SB1246332046 76171767.html.
78. But see Danny Cassimon, Martin Prowse & Dennis Essers, The Pitfalls and Potential of Debt-for-Nature Swaps: A US-Indonesian Case Study, 21 GLOBAL ENVTL. CHANGE 93 (2011) (arguing, broadly, that the Indonesia-U. S. swap fails on several levels, including failing to reduce more debt than required to cover conservation fund expenses, failing to demonstrate additionality of the funding, and failing to be large enough to produce positive economic effects). Cassimon et al., however, do recognize that the DFN swap does "increase available resources to Indonesia at the country level" and "is very much in line with current national [environmental] policy."
79. See 22 U. S. C. § 2431g (a) (1) (2006) ("The Secretary of State is authorized⋯ to enter into a Tropical Forest Agreement⋯." (emphasis added)).
80. See 22 U. S. C. § 2431g (b);
81. see also EAI, 22 U. S. C. 2430g (b) (listing requirements for both EAI and TFCA agreements).
82. Press Release, U. S. Dep't of State, Second Debt-for-Nature Deal to Save Forests in Indonesia (Sept. 29, 2011), available at http://www.state.gov/r/pa/ prs/ps/2011/09/174803.htm.
83. Press Release, The Nature Conservancy, U. S. and Indonesia Announce $28.5 Million Debt Swap To Protect Borneo's Tropical Forests (Sept. 29, 2011), available at http://www.nature.org/newsfeatures/media/pressreleases/ nature-conservancy-borneo-debt-swap. xml.
84. See Press Release, U. S. Dep't of State, U. S.-Indonesia Environment and Climate Cooperation (Nov. 18, 2011), available at http://www.state.gov/r/pa/prs/ ps/2011/11/177385.htm.
85. see Global Members, LOCAL GOV'TS FOR SUSTAINABILITY, INT'L COUNCIL FOR LOCAL ENVTL. INITIATIVES, http://www.iclei.org/index.php?id=11454 (last visited Jan. 7, 2012) (on file with the Harvard Law School Library).
86. See CARLOS A. QUESADA MATEO, U. N. FOOD & AGRIC. ORG., DEBT-FOR-NATURE SWAPS TO PROMOTE NATURAL RESOURCE CONSERVATION 20 (1993) ("The [Bolivia-CI] agreement should have been made public immediately so that its specific terms could be understood.").
87. See, e.g., FRANCIS FUKUYAMA, THE END OF HISTORY AND THE LAST MAN (1992);
88. Henry Hansmann & Reiner Kraakman, The End of History for Corporate Law, in CONVERGENCE AND PERSISTENCE IN CORPORATE GOVERNANCE 33 (Jeffrey N. Gordon & Mark J. Roe eds., 2004).
89. See Tom R. Tyler, Psychological Perspectives on Legitimacy and Legitimation, 57 ANN. REV. PSYCHOLOGY 375, 375 (2006) ("Legitimacy is a psychological property of an authority, institution, or social arrangement that leads those connected to it to believe that it is appropriate, proper, and just.");
90. PETER UVIN, HUMAN RIGHTS AND DEVELOPMENT 178 (2004).
91. See, e.g., Biljana Macura et al., Local Community Attitudes Toward Forests Outside Protected Areas in India. Impact of Legal Awareness, Trust, and Participation, ECOLOGY & SOC'Y, Sept. 2011, available at http://www.ecologyandsociety.org/vol16/iss3/art10/ES-2011-4242.pdf (finding a "negative association between attitudes toward reserved forest and participation in forest management groups" and attributing such attitudes to "deep power structures incorporated into those [participatory] groups [that prevented] all voices [from] being heard properly").
92. For the seminal work defining the "ladder of participation" typologies in local and community planning, see Sherry R. Arnstein, A Ladder of Citizen Participation, 35 J. AM. PLANNING ASS'N 216 (1969).
93. See Tim O'Riordan & Susanne Stoll-Kleeman, Deliberative Democracy and Participatory Biodiversity, in BIODIVERSITY, SUSTAINABILITY AND HUMAN COMMUNITIES: PROTECTING BEYOND THE PROTECTED 87, 106-07 (Tim O'Riordan & Susanne Stoll-Kleeman eds., 2002) (arguing that "[s]haring knowledge and understanding is vital for the success of protected areas [because a]ll stakeholders have uniquely different perspectives as to what is a problem and what constitutes improvements").
94. Sean T. McAllister, Note, Community-Based Conservation: Restructuring Institutions to Involve Local Communities in a Meaningful Way, 10 COLO. J. INT'L ENVTL. L. & POL'Y 195, 202 (1999)
95. (citing Neil A. F. Popovic, The Right to Participate in Decisions that Affect the Environment, 10 PACE ENVTL. L. REV. 683, 691 (1993)).
96. Jenny Marusiak, Borneo Rainforest Conservation Banking on Indonesian Debt, ECO-BUSINESS. COM (Oct. 4, 2011), http://www.eco-business.com/features/ borneo-rainforest-conservation-banking-on-indonesian-debt. Thus, while the BOS swap may never see fruition, its theory is being applied in the most recent Indonesia-U. S. swap.
97. Christoph Sutter & Juan Carlos Parreño, Does the Current Clean Development Mechanism (CDM) Deliver on its Sustainable Development Claim? An Analysis of Officially Registered CDM Projects, 84 CLIMACTIC CHANGE 75, 76 (2007).
98. See Mary Finley-Brook & Curtis Thomas, Treatment of Displaced Indigenous Populations in Two Large Hydro Projects in Panama, 3 WATER ALTERNATIVES 269, 273-80 (2010)
99. cf. DUNCAN AUSTIN ET AL., WORLD RES. INST., HOW MUCH SUSTAINABLE DEVELOPMENT CAN WE EXPECT FROM THE CLEAN DEVELOPMENT MECHANISM? 2 (1999) (urging that in evaluating the success of the CDM, one must consider whether specific projects promote sustainability goals and whether those sustainability goals are consistent with developing nation priorities).
100. See Mark Cherrington, Indigenous Peoples and Climate Change, CULTURAL SURVIVAL Q., Summer 2008, available at www.culturalsurvival.org/publications/ cultural-survival-quarterly/none/indigenous-peoples-and-climate-change ("One of the cruelest ironies is that some of the biggest current threats to indigenous lands are efforts to alleviate global warming."). Prescriptive programs, which are necessary in sequestration schemes that attempt to maintain current floral and soil carbon stocks, are less likely to protect indigenous rights and this shift to carbon primacy threatens biodiversity, as the most successful carbon sequestration programs are monoculture plantings that provide little environmental or social benefit beyond carbon capture.
101. See Philip Ireland, Climate Change Adaptation Exchanges: An Exploration of the Possibilities and Risks, in DEBT-FOR-DEVELOPMENT EXCHANGES: HISTORY AND NEW APPLICATIONS, supra note 44, at 223-24.
102. ORG. FOR ECON. CO-OPERATION AND DEV., HANDBOOK OF MARKET CREATION FOR BIODIVERSITY: ISSUES IN IMPLEMENTATION 146 (2004).
103. See William Cronon, The Trouble with Wilderness; or, Getting Back to the Wrong Nature, in UNCOMMON GROUND: RETHINKING THE HUMAN PLACE IN NATURE 69, 80 (William Cronon ed., 1996) ("[W]ilderness serves as the unexamined foundation on which so many of the quasi-religious values of modern environmentalism rest⋯. Wilderness is the natural, unfallen antithesis of an unnatural civilization that has lost its soul⋯. Most of all, it is the ultimate landscape of authenticity.").
104. G. A. Res. S-26/2, U. N. Doc. A/RES/S-26/2 (Aug. 2, 2001), available at http://www.un.org/ga/aids/docs/aress262.pdf.
105. See Joffre Balce, The Philippines' Experience with Exchanges, in DEBT-FOR-DEVELOPMENT EXCHANGES: HISTORY AND NEW APPLICATIONS, supra note 44, at 167, 178-79.
106. See Ross P. Buckley, Debt-for-Security Exchanges, in DEBT-FOR-DEVELOPMENT EXCHANGES: HISTORY AND NEW APPLICATIONS, supra note 44, at 247, 247 (arguing that the DFD "mechanism has a largely untapped potential - to fund security-enhancing projects").
107. Emmanuel T. Laryea, Promoting Good Governance through ICT Systems: Improving Transparency and Reducing Corruption, in DEBT-FOR-DEVELOPMENT EXCHANGES: HISTORY AND NEW APPLICATIONS, supra note 44, at 260, 260 (proposing the use of DFD swaps that invest in "information and communication technology" to promote good governance in developing countries); Walker, supra note 44, at 305-10 (identifying lack of accountability as an "endemic cause of the debt crisis" and proposing "debt for local governance" swaps to promote accountable service provision).
108. See, e.g., TIMOTHY BEATLEY & KRISTY MANNING, THE ECOLOGY OF PLACE 4, 5 (1997) ("These definitions [of sustainability] share an emphasis on certain important concepts and themes. They stress the importance of living within the ecological carrying capacities of the planet, living off ecological interest, and protecting future generations.").
109. SUMUDU A. ATAPATTU, EMERGING PRINCIPLES OF INTERNATIONAL LAW 442 (2006)
110. June 5, 1992, 31 I. L. M. 818.
111. Mar. 3, 1973, 27 U. S. T. 1087
112. U. N. T. S. 243.
113. Members of the Coica, It's Our Rain Forest, MOTHER JONES, Apr.-May 1990, at 47.
114. AM. JUR. 2D Easements and Licenses § 90 (2011) (describing easements in gross).
115. Anil K. Gupta, Rewarding Local Communities for Conserving Biodiversity: The Case of the Honey Bee, in PROTECTION OF GLOBAL BIODIVERSITY: CONVERGING STRATEGIES 180, 180 (Lakshman D. Guruswamy & Jeffrey A. McNeely eds., 1998).