1. INTRODUCTION
Infrastructure holds a central place in the undertaking of the practising environmental lawyer, yet it seldom captures the imagination of the environmental law scholar.Footnote 1 One reason, as proposed by Gupta, is that infrastructure ‘disappear[s] from consciousness’ in the sense that it is ‘often seen as solid, immovable objects’.Footnote 2 The fact that infrastructure is conceived as concerning the built Footnote 3 as opposed to the living environment – which has been the focus of environmental law scholarshipFootnote 4 – may go some way towards explaining the limited attention given to this subject matter. Infrastructure, however, has substantial environmental impact. This is evidenced, for example, by the environmental assessments that such projects require,Footnote 5 and questions of legal liability,Footnote 6 including the breach of environmental rightsFootnote 7 to which they may give rise.Footnote 8
Infrastructure holds a central role in modern life by creating markets that help to connect and support societies and economies.Footnote 9 It is unsurprising, therefore, that infrastructure is often framed in promotional, as well as global, terms where it is seen as enhancing connectivity between countries.Footnote 10 Yet, upon closer inspection, infrastructure sites are heavily dependent on and constitutive of local and geographical contextsFootnote 11 where ‘frictions’,Footnote 12 or disputes, emerge. We examine some of these frictions in this article with the aim of making infrastructure more visible in environmental law. As Fisher points out, environmental law scholars ‘are always thinking about, and writing about, place’,Footnote 13 and so examining infrastructure through an environmental law framework highlights the necessity of conceiving of infrastructure in terms of particular places and local communities. What is more, by zooming in on frictions that occur in the local spaces where infrastructure is built, we show the legal mechanism by which such disputes can be resolved. Courts play a key role in offering the parties involved a platform to voice their concerns, and in providing authoritative statements on the relevance of the legal issue in a way that grants permanence in settling the dispute. This shows the significance of both the judiciary and environmental law in the stabilizing efforts. As our case study, we examine frictions that have become manifest in climate change-related disputes arising from Belt and Road Initiative (BRI) projects in KenyaFootnote 14 and Pakistan.Footnote 15
The BRI, officially announced by Chinese President Xi Jinping in 2013,Footnote 16 has been hailed as the infrastructure project of the century.Footnote 17 As of October 2019 China had signed 197 BRI-related cooperation agreements with 137 countries and 30 international organizations.Footnote 18 Many of these are relatively poor, developing countries. Some commentators have described the undertaking as Beijing's attempt to ‘reclaim global centrality, with the hardware of its worldwide trade stretching across Asia, Africa, and Europe, all of it ultimately flowing back to the People's Republic (of China)’.Footnote 19 From this perspective, BRI infrastructure projects seek to ‘unlock foreign markets’Footnote 20 for Chinese companies. On the other hand, the Chinese leadership has emphasized the opportunities for promoting regional and global market connectivity through the BRI, which would benefit many developing countries that currently lack the capabilities to build major infrastructure projects on their own.Footnote 21
The significance of the BRI as one of the largest and most ambitious infrastructure projects in history makes it a critical case study for testing our propositions. A notable feature is its fluidity, which makes it, in Frankopan's estimation, ‘a moving target, loosely defined and ever expanding’.Footnote 22 Its precise geography and scope are difficult to circumscribe. Moreover, both Beijing (China) and BRI countries have asserted their commitment to promoting ‘green and low-carbon infrastructure construction and operation management, taking into full account the impact of climate change on [BRI] construction’.Footnote 23 We contrast the BRI's aspirations of enhancing global market connectivity and promoting ‘green development’ with the legal realities of infrastructure in the local contexts of BRI countries.
This article is structured as follows. In Section 2 we examine the prevalent narrative that infrastructure promotes global market connectivity. This narrative overlooks the frictions that emerge in the locality in which the infrastructure operates. We then examine, in Section 3, the BRI's rhetoric of global connectivity and green development. In Section 4 we juxtapose the BRI's aspirations to connectivity with legal frictions that have emerged in local host communities. Here, we focus on two cases of climate change-related disputes arising from BRI projects and brought before local courts in Pakistan and Kenya. This is followed, in Section 5, by an analysis of the implications of frictions that occur outside the legal system, such as public protests and demonstrations. We conclude that the law provides an important mechanism for stabilizing such friction.
It is necessary to note several caveats in our article. Firstly, although the article focuses on climate change-related disputes, it should be noted that BRI projects have given rise to other types of friction. For instance, the serious impact that BRI projects will have on biodiversity has drawn considerable attention, as have public procurement concerns.Footnote 24 Secondly, we would need interdisciplinary studies of particular geographical places and the impact of BRI projects on communities to capture what is happening on the ground.Footnote 25 Such an undertaking, which would involve fieldwork, is outside the scope of our current study. Thirdly, some have queried which court or institution could and should settle legal disputes that arise in relation to the BRI.Footnote 26 International investment law continues to be a key forum for hearing environmental claims,Footnote 27 although its suitability for settling such disputes is widely debated.Footnote 28 Moreover, new institutions for resolving BRI-related disputes are emerging,Footnote 29 though it remains to be seen whether environmental disputes will be brought before these institutions. These are all important questions that are left for future investigation.
2. BETWEEN GLOBAL MARKET CONNECTIVITY AND LOCAL COMMUNITIES
Infrastructure consists of a variety of networks used to provide services and facilitate communication and connections that are essential for the operation of societies and enterprises.Footnote 30 Despite the variety in their physical structures, infrastructure is generally understood to contribute to the creation of markets, especially at the global scale. Indeed, according to a common understanding of infrastructure, it facilitates ‘the flow of goods, people, or ideas and allow[s] for their exchange over space’.Footnote 31 In establishing this circulation, infrastructure acts not only as job generatorFootnote 32 but also as a mechanism of integration for peoples and economies.Footnote 33 Consider the ancient Silk Road, on which the BRI draws for its symbolism. When Ferdinand von Richthofen spoke of the Silk Road, it was to note:
[T]he ways in which people, cultures, and continents were woven together – and in doing so help us better understand the way that religions and languages spread in the past, showing how ideas about food, fashion and art disseminated, competed and borrowed from each other.Footnote 34
In a similar way, markets have been described as promoting global connectivity by breaking down ‘oppressive barriers among cultures, races, languages, and nations’.Footnote 35 Such a portrayal of markets partly explains why they were thought to be the obvious cornerstone of globalization in the 1980s–90s, which included the endorsement of ‘international free trade and the outlawing of protected or public domestic economies’.Footnote 36 Similarly, infrastructure has been seen as providing ‘the conditions for the emergence of another order’.Footnote 37 In the ‘coming together of engineering expertise, political will and economic ambition’, infrastructure is often considered a ‘modern ambition … deeply influenced by processes of neo-liberalization’.Footnote 38
At the same time, infrastructure exists as ‘state space’.Footnote 39 Anthropologists Harvey and Knox use that term to capture how physical infrastructure that is planned, executed, and owned by the state ‘[brings] that state into being, creating and recreating its territorial form and enacting its paradigms of ownership and control’.Footnote 40 This is highly visible in the Chinese context of infrastructure development and financing, both at the domestic level and in the case of the BRI. Since the 1990s, China has seen unprecedented levels of investment in infrastructure at various levels of government and the building of such infrastructure at an astonishing scale and pace, radically transforming many of China's urban and rural landscapes. Targeted infrastructure development in public–private projects is heavily deployed in the Chinese state's fiscal stimulus programmes to spur economic growth and as a poverty reduction strategy.Footnote 41 The concept of ‘state space’ is also reflected in the BRI infrastructure landscape, as Chinese state-owned and state-controlled companies and banks make up the bulk of infrastructure investments and contract projects to date.Footnote 42 Some have pointed to the Chinese state's strategic influence on the activities and operating environments of Chinese firms abroad, including the exercise of legal and regulatory powers.Footnote 43
This illustrates that infrastructure raises questions about the role of the state in supporting market connectivity. Yet, the law – the creation and enforcement of which is inextricably connected with the state – tends to be invisible in debates concerning such questions. One reason may be that infrastructure in many instances is discussed in promotional and global terms, rather than as a legal reality. As described by Reeves, infrastructure creates sites of ‘popular imagination and anticipation storing within them’.Footnote 44 On this view, infrastructure reflects a political vision, an open-ended process where ideas about the future are assembled into narratives.Footnote 45 These storylines hold together competing and diverging opinions, producing ‘a generalized sense of social good to which the majority of people subscribe’.Footnote 46 In fact, infrastructure is portrayed in such a way as to ‘enchant’Footnote 47 people, and promote visions of certain promised transformations, such as economic and social development, or international cooperation. This point is especially salient when examining the rhetoric surrounding the BRI, as reflected in Chinese President Xi Jinping's statement at the first high-level BRI Forum on International Cooperation in 2017: ‘Infrastructure connectivity is the foundation of development through [international] cooperation’.Footnote 48
These aspirations nevertheless depend for their realization on extensive social organization. As Fligstein explains, all types of infrastructure have transformed the economy through their connectivity capabilities. He further points out that none of the dynamism associated with infrastructure is possible without the deep involvement of the private sector actors which ‘operate against an extensive backdrop of common understandings, rules, and laws’.Footnote 49 The question is not, then, whether such market structures should be governed, ‘but … how they should be governed’.Footnote 50 We argue that law has an important role to play in addressing this question of ‘how’ with regard to the construction, organization, and operation of infrastructure.
Moreover, the aspect of global interconnectivity is commonly viewed in isolation from the local. As Tsing puts it, ‘globalist thinkers imagine the local as the stopping point of global circulations. It is the place where global flows are consumed, incorporated, and resisted’.Footnote 51 Anthropologists and social scientists have long called for understanding infrastructure as ‘analytically consequential’, which means that rather than constituting ‘monolithic blocs’, large-scale infrastructure projects are ‘achievements that remain fragile’.Footnote 52 The effects of any infrastructure depend on the local communities through which they run. This means that irrespective of its global market connectivity and political vision, infrastructure is heavily dependent on and constitutive of local geographical contexts.Footnote 53 What is more, ‘global’ and ‘local’ aspects do not always coexist in harmony. Rather, infrastructure can be viewed as ‘a terrain of power and contestation’Footnote 54 where questions concerning how and by whom decisions are made, and how resources are to be allocated are debated continuously, in a specific location where international, national, and local regimes apply.Footnote 55
The global and promotional rhetoric of infrastructure, particularly concerning the creation of market connectivity, has led to friction taking place in the local context being overlooked. Our approach in this article is to inquire into legal frictions that emerge in the particular places where a piece of infrastructure operates. Such frictions can manifest in many different forms.Footnote 56 In this study we focus on climate change-related disputes that have arisen in relation to the BRI infrastructure projects in Pakistan and Kenya. These disputes have played out before the highest-level judiciary and the Environmental Tribunal in those countries. The significance of environmental law in this context is to provide a forum where such disputes are vocalized and eventually stabilized through adjudication.Footnote 57 This stands in contrast to frictions that develop outside the legal systemFootnote 58 and manifest, for example, in various forms of protest. Before exploring these incidents in detail, we first turn to examine the political framing of the BRI as infrastructure that promotes global market connectivity, as well as ‘green development’.
3. THE BRI: INFRASTRUCTURE ‘PROJECT OF THE CENTURY’
When it comes to ‘visions’ of infrastructure creating global market connectivity, the BRI presents us with an opportune case study. It is the largest global infrastructure plan under way, with multi-trillion dollars of investments and loans in the construction of high-speed train lines, bridges, highways, ports, and pipelines across an overland ‘Silk Road Economic Belt’, and a ‘21st Century Maritime Silk Road’.Footnote 59 The original BRI policy document, issued by the State Council in March 2015, envisaged six major land corridors connecting China with the world.Footnote 60 Despite the designation of these official corridors, the BRI can be better described as ‘not a series of corridors and nodes but an open, multi-scalar spatial system’,Footnote 61 which underlines its dynamic and ever-changing nature.
Promoting global connectivity is central to the BRI narrative. This is accentuated in the 2015 BRI policy document which outlined five major BRI themes, centred around connectivity.Footnote 62 To start with, countries under the BRI are set to promote policy coordination through a range of intergovernmental bilateral and multilateral mechanisms. Secondly, infrastructure and connectivity through transport, energy, and communication are identified as a ‘priority area for implementing the [Belt and Road] Initiative’.Footnote 63 More precisely, the document urges BRI countries to ‘jointly push forward the construction of international trunk passageways, and form an infrastructure network connecting all sub-regions in Asia, and between Asia, Europe and Africa step by step’.Footnote 64 Thirdly, investment and trade are to be facilitated through improved market access, and the elimination of barriers to investment and trade. In a similar vein, and fourthly, the document calls for deepened financial integration in implementing the BRI, for example, by establishing new Chinese-supported multilateral institutions, such as the Asian Infrastructure Investment Bank (AIIB).Footnote 65 Finally, the document envisages greater people-to-people connectivity through, for example, cultural exchanges, education, and tourism.
Moving beyond China, the global market connectivity theme of BRI infrastructure projects is visible in the countries in which these projects are taking place. The East Coast Rail Link, one of Malaysia's largest rail projects to date, is an exemplary BRI infrastructure project seeking to create a ‘growth corridor’ across three relatively underdeveloped eastern states by way of a 640 kilometre railway, connecting these states with the more affluent west coast of Malaysia. The $20 billion megaproject is being built and financed by Chinese state-owned companies as part of a joint venture with Malaysia Rail Link (also a state-owned company). The project has been thought of as deepening trade and economic cooperation between China and Malaysia, resulting in more bilateral ties.Footnote 66 In Malaysia, the project is portrayed as a crucial component of ‘bridging the development gap’ between different parts of the country, bolstering economic growth, creating new jobs for local vendors and contractors, and providing a ‘platform for knowledge sharing and technology transfer’.Footnote 67 The vision of the BRI and its rhetoric of connectivity reflect the globalist, promotional lenses through which infrastructure is presented.
Importantly, the BRI also employs a narrative of ‘green development’. When describing the infrastructure connectivity dimension of the BRI, the aforementioned 2015 policy document adds that ‘efforts should be made to promote green and low-carbon infrastructure construction and operation management, taking into full account the impact of climate change on the construction’.Footnote 68
This green story about the BRI has become more pronounced in recent years. According to another official text, BRI projects should promote green and low-carbon infrastructure, ecological conservation, protection of biodiversity, and consider the climate change impacts.Footnote 69 More generally, the BRI's ‘vision of green development’Footnote 70 is portrayed as an opportunity for China and the BRI countries ‘to grow differently, to go on a clean way’.Footnote 71
China has clearly sought to incorporate environmentally sustainable strategies and objectives in a range of official policy documents and guidelines relating to the BRI, but these commitments are typically framed in general, abstract terms. For instance, a key BRI policy document, issued by the Chinese Ministry of Environmental Protection, emphasizes the ‘need to share the ecological civilization philosophy and achieve sustainable development’, to promote participation in ‘global environmental governance’ and the ‘green development concept’, and to ‘serve and forge communities of shared interests, common responsibility and common destiny’ by, for example, preventing and curbing environmental pollution and ecological damage.Footnote 72 Moreover, Beijing has linked the narrative of a green BRI to its implementation of international environmental treaties, including the Paris AgreementFootnote 73 and the United Nations (UN) 2030 Agenda for Sustainable Development.Footnote 74
The green aspirations of the BRI are evidenced also in the promotion of policy coordination on environmental protection between China and other BRI countries. For example, China has signed a Memorandum of Understanding with the UN Environment Programme (UNEP) on ‘greening the BRI’, as well as cooperation agreements on ecological conservation with over 30 countries.Footnote 75 Beijing has also formed ‘open, inclusive and voluntary’ international networks, such as the Belt and Road International Green Development Coalition, which seeks to bring together ‘the environmental expertise of all [relevant] partners to ensure that the Belt and Road brings long-term green and sustainable development to all concerned countries’.Footnote 76 The Coalition offers a platform for policy dialogue, information exchange, and facilitation of cooperation between 100 international and Chinese partner institutions, including environment ministries, UN agencies, research institutes, and non-governmental organizations to achieve these goals. Along similar lines, the aforementioned 2015 policy document stresses the importance of building ‘international green industrial cooperation platforms’ in order to secure green technology transfers and exchanges, as well as creating a platform of green supply chains for the BRI.Footnote 77
The narrative of a green BRI is similarly found in the so-called ‘green financing’ that this infrastructure project has received. For example, the Ministry of Environmental Protection and several quasi-official financial bodies have emphasized the importance of environmental risk management initiatives for China's overseas investments, which are thought to help:
Chinese financial institutions and enterprises … significantly accelerate progress towards key sustainability goals, such as the ‘greening’ of the Belt and Road Initiative, the fulfilment of the 2030 Agenda for Sustainable Development and the Paris Agreement on climate change, and the implementation of the ‘Guidelines for Establishing the Green Financial System’ enacted by the seven state ministries.Footnote 78
Despite these aspirations, practices on the ground have raised concerns about the substantial environmental risks and environmental problems with BRI projects. These include lax standards of environmental protection in relation to environmental impact assessment (EIA) with regard to pollution and biodiversity, as well as a lack of transparency.Footnote 79 What is more, environmental problems at the local level have led to the cancellation or suspension of some BRI projects, such as the Myitsone Dam in Myanmar.Footnote 80
It is climate change – a global environmental problem widely seen as ‘the single most important issue we face’ todayFootnote 81 – that has the potential to create large-scale local friction under the BRI, as we explore in more detail in the next section. According to BRI policy documents, China ‘should carry out cooperation in energy conservation and emissions reduction, and jointly respond to climate change’.Footnote 82 However, a recent review of data on bank loans and cross-border investments by the Silk Road Fund and Chinese enterprises revealed that most Chinese energy and transportation investments and projects financed in BRI countries were tied to carbon-intensive sectors, such as coal power.Footnote 83 This raises obvious worries about the BRI and its alignment with low-carbon priorities of the host countries’ nationally determined contributions (NDCs) committed to under the Paris Agreement.Footnote 84 Another study provides some similarly concerning figures:
By the end of 2016, China had been involved in 240 coal-fired power projects in 25 of the 65 countries along the Belt and Road … At present, 52 of these projects are in the pipeline (planned or signed projects) … accounting for 12.66% of coal-fired power projects in the pipeline globally; 54 projects are under construction … accounting for 17.59% of coal-fired power plants under construction globally; 114 projects are in operation … accounting for 4.48% of the coal-fired plants in operation globally.Footnote 85
Some critics have even accused China of exporting its surplus of coal-related equipment and technology ‘to countries desperate for industry’ with the risk of ‘locking countries that currently have little to no coal capacity to coal dependency’.Footnote 86 Others have sought to justify such projects by referring to the ‘poverty relief benefits’ associated with improving energy access in poorer BRI host countries, where ‘coal is simply the cheapest available source of power’.Footnote 87 These still uncertain impacts of the BRI on global carbon emissions will, inevitably, be a focus of future studies on climate change.Footnote 88
The crucial upshot of the discussion so far is that the prevailing narratives of the BRI promote global connectivity, market creation and economic development through infrastructure, all with a green ‘twist’. The lack of attention to issues of locality, especially those such as climate change with the potential to generate major frictions, is nevertheless noteworthy. We examine in the next section how such frictions can be made visible and – more importantly – stabilized, through environmental law.
4. MAKING INFRASTRUCTURE VISIBLE: CLIMATE CHANGE FRICTION AND STABILIZATION
Climate change is an archetypal transnational environmental problem, and in legal terms, as Fisher, Scotford and Barritt explain, it is ‘disruptive’ in at least two ways.Footnote 89 Firstly, it has spurred the development of myriad new legal regimes at multiple governance levels, resulting in a fragmented legal and regulatory architecture.Footnote 90 It is also disruptive of adjudication in numerous ways, including:
when courts are required to determine whether or not to decide a dispute; when the issues presented fit awkwardly into existing and well-honed grooves of legal reasoning; and when there are legal disputes about the nature and operation of bespoke climate change regimes. In all such cases, climate change requires lawyers and scholars to reconcile any legal disruption with the fundamental role that adjudication plays in maintaining the stability of the legal orders.Footnote 91
Climate change raises hard questions about the scope of adjudication, and it demands robust legal reasoning. What is more, court judgments can act as authoritative statements on the relevance of a legal matter, as well as provide permanence and authority to climate change-related disputes.Footnote 92 Adjudication can thus help to stabilize such conflicts. This is partly why environmental law scholars have been ‘obsessed’ with climate change litigation.Footnote 93
We share this obsession to some extent in the sense that we see the judiciary as a ‘critical forum’Footnote 94 in which climate change, as a legal conflict, can be voiced, settled and thereby stabilized. It should be noted – though it is less relevant to our study – that climate change litigation can be the trigger point for mobilizing the enactment of laws to address climate change and thereby redress institutional failure.Footnote 95 Our current focus, however, is on judiciaries insisting on the enforcement of environmental laws already in place, which is the case for climate change cases in developing countries.Footnote 96 Examining infrastructure by focusing on the specific applicable environmental legal provisions, we underline the need to view infrastructure in terms of locality. In scholarship on climate change law and climate change litigation, multi-level perspectives are often given,Footnote 97 which aligns with our view that infrastructure – which is often spoken about in terms of markets and global connectivity – must also be conceived in terms of the particular place and the local communities. Environmental law, in this way, makes infrastructure fully visible.
Examining climate change-specific frictions arising from the BRI is particularly interesting, as it provides a testing ground for the ‘green’ promises expressed in relation to the development of the BRI. China has traditionally been a reluctant player in international climate change negotiations.Footnote 98 Given historical factors and the fact that the country has long been used as an outsource point for carbon emissions, China has benefited from the principle of common but differentiated responsibilities that underpinned the international climate change framework.Footnote 99 China's position has since changed with the shift in approach at the international level. The international approach has moved from the top-down emissions reduction commitments – namely, the steps initially taken under the umbrella of the UN Framework Convention on Climate Change (UNFCCC)Footnote 100 – to the current bottom-up approach under the Paris Agreement.Footnote 101
In line with the Paris Agreement, China has adopted a national climate action plan. While it remains the world's largest emitter of greenhouse gases (GHGs),Footnote 102 China's NDC includes:
• achieving the peak of carbon dioxide (CO2) emissions by around 2030, and making the greatest possible effort to achieve the peak early;
• lowering CO2 emissions per unit of gross domestic product by 60% to 6% compared with 2005 levels;
• increasing the share of non-fossil fuels in primary energy consumption to around 20%; and
• increasing the forest stock volume by around 4.5 billion cubic metres compared with 2005 levels.Footnote 103
To achieve some of these goals, China in 2017 launched the world's largest carbon-trading scheme covering 1,700 coal- and natural gas-based power-generating companies.Footnote 104
It is worth noting that the BRI passes through countries almost all of which have either signed or acceded to the Paris Agreement.Footnote 105 Given the risks that we highlighted earlier, the extent to which the BRI may spark climate change-related conflicts is an open question.Footnote 106 It is also important to keep in mind that not all BRI countries have a judiciary open to the type of climate change litigation seen in, for example, the United States and Australia, where government policies and institutional failures can be judicially challenged,Footnote 107 or in Kenya and possibly Pakistan, where the courts are enforcing environmental laws in a robust way. As Zhao, Lyu and Wang have argued, courts in ‘an authoritarian country with a civil law tradition’ (such as China)Footnote 108 play a ‘seemingly insignificant’ role in legitimizing the concern for climate change and, as such, they enjoy limited power in pushing for collective climate action. Similar observations have been made regarding the Russian judiciary.Footnote 109 Furthermore, climate-specific laws and regulations in BRI countries are currently either scarce or inadequately enforced.Footnote 110
Legal culture and context therefore matter. The cases explored in the next section are examples of jurisdictions where BRI-related climate change litigation is possible as a result of the existence of strong environmental laws and courts that have both the power and the will to insist on their enforcement. These two conditions are key – though not necessarily exclusive – in reconciling the global and market-focused discourses with issues of locality, both of which are central to the realities of infrastructure, as discussed here.
4.1. BRI and Climate Change Friction
In investigating climate change-related frictions that have arisen under the BRI, we zoom in on two cases. The first is Lamu, which was decided by the Kenyan National Environmental Tribunal on 26 June 2019. The second case, Ali v. Pakistan, is pending before the Supreme Court of Pakistan at the time of writing. Admittedly, reliance on a small number of cases, in selected jurisdictions, offers a limited picture of disputes to which infrastructure, and specifically the BRI, give rise. Indeed, our study provides a snapshot as opposed to an exhaustive account of climate change-related friction linked to the BRI. Nonetheless, this narrow focus is a useful entry point for investigating how global market aspirations (often connected with infrastructure) and local concerns can be voiced, settled and thereby stabilized by mechanisms provided by environmental law.
4.2. Climate Friction Illustrated: The Cases of Lamu and Ali
The legal challenge in Lamu is directed at the EIA underpinning the plan to construct Kenya's first coal-fired power plant station. The development is earmarked as a $2 billion BRI project funded by China,Footnote 111 and forms part of the Lamu Port-South Sudan-Ethiopian Transport Corridor, which aims to connect inland coal mining, undertaken by Chinese companies, and the port in Lamu.Footnote 112 Together, the constructions are part of the long-term blueprint for the country, entitled ‘Kenya Vision 2030’, which aims to create ‘a globally competitive and prosperous country with a high quality of life by 2030’.Footnote 113 The idea is that the coal-fired power plant alone is likely to ‘increase revenue and investment in the country … enhance availability of markets for local products and increase tax revenue’.Footnote 114
In the second case, Ali v. Pakistan, coal-field development and the construction of multiple coal-fired power plants, forming part of a China-Pakistan Economic Corridor (CPEC), are being challenged before the Supreme Court of Pakistan. The CPEC is considered ‘by far the largest and most ambitious part of the BRI’,Footnote 115 and is built with the vision to ‘improve the lives of people of Pakistan and China by … promoting bilateral connectivity, construction … trade, logistics and people to people contact for regional connectivity’Footnote 116 through a portfolio of energy and transport infrastructure projects with an aggregate estimated value of $62 billion. In many ways, the CPEC is the ‘bellwether’ for this broader global initiative.Footnote 117 However, many of the attendant projects, if realized, will drive Pakistan towards increasing reliance on coal for electricity. The Pakistani government itself has estimated that the share of coal in the country's power generation mix will rise from approximately 3% in June 2017 to approximately 20% in June 2025.Footnote 118
The large number of coal-fired power plants under the CPEC list of priority energy projects has resulted from the combination of ‘pull’ and ‘push’ signals from Pakistan and China respectively.Footnote 119 The ‘pull’ from Pakistan relates to its long-standing desire to exploit its vast coal reserves and expand the share of domestic coal in its power generation mix, as well as to provide an affordable solution to ongoing power shortages, which the former Sharif administration promised to end. On the ‘push’ side from China, Beijing needed to alleviate its over-capacity in some industries, such as coal power generation equipment, which largely resulted from domestic policies to decrease the role of coal and increase the role of renewables in China's new power generation capacity. Chinese companies in coal-related sectors were encouraged to find new markets abroad and Chinese state-owned financial institutions were urged to facilitate the export of such sectors overseas.Footnote 120
In Lamu, a community-based organization ‘representing the interests and welfare of Lamu and whose membership [is] comprised of individuals and several community groups within Lamu’,Footnote 121 has challenged the BRI project. The applicant in Ali v. Pakistan is a seven-year-old individual:
who is deeply concerned for the millions of citizens who are presently being adversely impacted by a destabilized Climate system and catastrophic Climate Changes in Pakistan that are caused by the continual increase of greenhouse gas (‘GHG’) emissions, particularly Carbon Dioxide (‘CO2’) pollution from the burning of fossil fuels, and for the future generations who will have to endure the inherited Environment degraded by the choices made by current generations.Footnote 122
Here, the applicant underlines that Pakistan ‘sits atop one of the world's largest Coal reserves’Footnote 123 and that the planned BRI project, which demands utilization of those reserves, would exponentially increase Pakistani coal production and thereby its GHG emissions.Footnote 124 The applicant argues that:
[b]y choosing to develop Coal as an energy source instead of renewable, non-fossil fuel resources, the Respondents are ignoring the long-term adverse consequences they are bringing upon both current and future generations of Pakistanis, in violation of their Fundamental Rights.Footnote 125
Additionally, the applicant claims that public trust is at risk and that Pakistan's commitments under the Paris Agreement, particularly its NDC to ‘promote and support low-carbon, climate resilient development’Footnote 126 would be breached by the development of the set infrastructure.
The applicants in Lamu similarly base their claim on constitutional rights, which in the case of Kenyan constitutional law includes an obligation on the part of the state to establish a system of EIA.Footnote 127 The applicant contends that the EIA carried out lacked proper participation by the public,Footnote 128 and that the public is therefore in a position to demand that the construction of the coal-fired power plant be brought to a halt. Lamu is an excellent example of how infrastructure, irrespective of its global visions, is anchored in and can cause friction in the local communities in which it is situated. The benefit of legal adjudication is that it makes these frictions visible and is able to stabilize them. The judgment in Lamu demonstrates this in the following three ways.
Firstly, it sees the Tribunal debating whether the case falls within its jurisdiction, which is significant for establishing which type of dispute permits adjudication. Here, the Tribunal finds that it can review only ‘matters relating to EIA licenses’, leaving the assessment of the economic viability of the BRI project to ‘policy makers and the Energy Regulatory Commission’.Footnote 129
The Tribunal then clarifies the role of adjudication in resolving disputes in the set context. It does so by defining the scope of justiciability for EIA processes, explaining that ‘contrary to popular belief the purpose of environmental audits is not to hinder development but to ensure [that] economic progress in a country takes into account environmental impacts of such proposed economic activity’.Footnote 130 On a similar note, the Tribunal asserts that it does not rule on ‘the wisdom [in identifying] coal energy as one source of possible energy source for [Kenya]’Footnote 131 but rather on whether the relevant EIA-specific processes have been correctly applied.
Thirdly, the Tribunal underscores the significance of local communities and their concerns to be heard in relation to development projects like the BRI. It explains that for the sake of efficiency ‘it is not a must that every person must support the project … but it is vital that even the most feeble of voices be heard and views considered’.Footnote 132 In the case of Lamu, the national authority's ‘complete disregard of the people of Lamu, and their views’ rendered the EIA ‘non-existent and in violation of the law’.Footnote 133 What is more, the Tribunal found that ‘Climate Change issues are pertinent in projects of this nature and due consideration and compliance with all laws relating to the same [are required]’.Footnote 134 As such, the national authorities are required to consider climate-related concerns, as well as the provisions of the Kenyan Climate Change Act 2016, and the impact of the BRI development project on Kenya's commitment under the Paris Agreement – even if their ultimate effect was unknown at the time of approving the BRI-project.Footnote 135
Ultimately, what these legal frictions show is that environmental law provides mechanisms through which disputes can be voiced and resolved. The significance of providing a platform for local communities to vocalize their concerns relating to development projects is emphasized in Lamu:
[P]ublic participation in an EIA Study process is the oxygen by which the EIA study and the report are given life. In the absence of public participation, the EIA study process is a still born and deprived of life, no matter how voluminous or impressive the presentation and literal content of the EIA may be.Footnote 136
In Lamu, EIA serves as a mechanism by which local communities can hold authorities accountable. In the case of Ali v. Pakistan, the applicant seeks admissibility to the Supreme Court of Pakistan by relying on the doctrine of public trust, as well as fundamental rights which, the applicant argues, are violated by coal exploitation linked to BRI projects.Footnote 137 Although the latter case is still pending, the point here is that accountability mechanisms may take different forms in different jurisdictions; what matters is that environmental law is taken seriously.
5. DISRUPTIONS OUTSIDE THE LEGAL SYSTEM?
The fact that the disputes investigated above emerged in Pakistan and Kenya may not be surprising. Both countries have developed rigorous environmental laws and have installed a judiciary willing to enforce these and related laws. Kenya revised its Constitution in 2010 to include the right ‘to have the environment protected for the benefit of present and future generations’,Footnote 138 and an obligation on the part of the state to ‘establish systems of EIA’.Footnote 139 As Soyapi remarks, this ‘recognises that the country's quest for economic development needs to consider possible environmental degradation’.Footnote 140 Additionally, Kenya has adopted a rich body of environmental laws,Footnote 141 including climate change commitments following the Paris Agreement. Its Environment and Land Court (ELC), in operation since 2013, has ruled on several groundbreaking cases and developed robust jurisprudence on environmental protection.Footnote 142
In the case of Pakistan, the judiciary has set out pioneering case law, especially regarding the interrelation of human rights and environmental protection in the context of climate change. The applicant in Ali v. Pakistan argues that ‘the apex Courts are the most effective forum for remedying violations of Fundamental Rights and the Doctrine of Public Trust and achieving protection of the Environment’.Footnote 143 In as early as 1994, the right to life was interpreted by the Supreme Court of Pakistan to include environmental safeguarding:
[The right to life] does not mean nor can it be restricted only to the vegetative or animal life or mere existence from conception to death. Life includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally.Footnote 144
The applicant in Ali v. Pakistan relies on this case.Footnote 145 In more recent jurisprudence, the Pakistani judiciary has further submitted that climate change is a serious threat to water, food, and energy security, and as such infringes the right to life.Footnote 146
The importance of analyzing climate change litigation cases like Lamu and Ali v. Pakistan in the context of local friction arising from transnational infrastructure cannot be understated. Two factors to consider are the presence of local environmental laws, which have a crucial bearing on these disputes, and the role of the domestic judiciary in permitting adjudication.
Admittedly, our findings rely on a small number of cases. What is more, the Supreme Court of Pakistan has yet to decide on the admissibility of the claims raised in Ali v. Pakistan. Even when disputes are heard and resolved by the court, the resolution offered may seem futile. In the case of Lamu, for example, the Tribunal's judgment has sent the EIA back to the relevant national authority where the necessary approval for the project in question can be reinstated – this time, however, by the requisite procedures outlined in the applicable environmental laws. Whether this will contribute to true ‘greening’ of the BRI projects beyond the high-level rhetoric may be doubted. This is all to say that there are obvious limits to environmental law. Still, the mechanisms it provides to resolve friction, as discussed here, are significant, especially when considering the alternatives.
Indeed, friction may instead express itself through demonstrations and acts of civil disobedience, as exemplified by the Extinction Rebellion movement, which has made the following declaration:
When government and the law fail to provide any assurance of adequate protection of and security for its people's wellbeing and the nation's future, it becomes the right of citizens to seek redress in order to restore dutiful democracy and to secure solutions needed to avert catastrophe and protect the future. It becomes not only our right but our sacred duty to rebel.Footnote 147
Climate action, on this view, must take place outside the parameters of law. Climate risks associated with BRI projects can give rise to friction manifested outside the legal system, with potentially adverse political and social consequences. This is recognized in a report by several State Council bodies and the UN Development Programme:
The environmental impacts of Chinese enterprises’ overseas investment projects will, to a large extent, determine the feasibility and economic viability of the projects themselves. Moreover, the chain effects caused by environmental problems often go beyond an enterprise's control, escalating into incidents involving domestic politics and international relations.Footnote 148
Climate risks can give rise to these chain effects, causing pushbacks and protests by local communities in host countries and potentially affecting China's relations with host country governments.
The Chinese-led AIIB, which invests in numerous BRI projects, saw a public demonstration held by climate activists and civil society groups from various countries, including BRI countries, outside its annual meeting in Luxembourg in July 2019. The AIIB has fashioned itself as ‘clean and green’, with an Environmental and Social Framework that vows to prioritize ‘investments promoting greenhouse gas emission neutral and climate resilient infrastructure’.Footnote 149 However, the rhetoric has not been reflected in practice, with 20% of the AIIB's direct investments to date going into fossil fuels and only 8% into renewables.Footnote 150 The protesters, among them representatives of Extinction Rebellion, called for the AIIB to live up to its green promise and stop financing fossil fuel projects, committing to a time-bound climate action plan. A civil society representative from Bangladesh at this protest conveyed the concerns of local communities about the AIIB's fossil fuel projects in Bangladesh, one of the countries that are most vulnerable to climate change, and whose coastal zone is ‘already facing adverse impacts from climate change’.Footnote 151 These demonstrations, like the considerable number of protests that have occurred so far in BRI host countries over various environmental issues,Footnote 152 are warning signs of local frictions arising from BRI infrastructure projects that are not stabilized by law. This is not to say that litigation exhausts the need for demonstrations and other acts of civil disobedience. Our point is rather that adjudication offers a much-needed platform where local and global infrastructure-related visions and concerns can be vocalized and potentially resolved.
6. CONCLUSION
The ancient Silk Road, by comparison with which the BRI attempts to gain a symbolic aura, emphasizes global connectivity. As Han and others point out, however, the name ‘Silk Road’ is misplaced, in that it focused on:
small volume, high value trade that was enjoyed only by the elite … obscur[ing] the fact that much of the exchange across Asia in antiquity – and indeed since then – was more intensive between individual towns and their hinterlands, and between neighbouring towns themselves, than it was across thousands of miles or between imperial rulers and their capitals.Footnote 153
Narratives surrounding the BRI similarly stress global market connectivity and overlook the locality through which infrastructure runs and where disputes erupt.
Examining the BRI through an environmental law lens makes these frictions visible, as this body of law and its scholarship inevitably deal with questions of ‘place’.Footnote 154 Infrastructure is thus a relevant site of investigation for environmental law scholars. In this study we focus on climate change-related disputes arising from the BRI, which are predicted to multiply in the future, both within and between countries.Footnote 155 As shown here, such frictions could be voiced, resolved and stabilized through environmental law and before formal legal channels, such as courts. This is to underline the significance of both environmental law and the judiciary in such stabilizing efforts. Otherwise, there is a real risk that such frictions will unfold outside the legal system, with the potential result of political and social instability.
