GLOBAL FUNDER, GRASSROOTS LITIGATOR –
JUDICIALIZATION OF THE ENVIRONMENTAL MOVEMENT IN THAILAND
Why do activists commit themselves to pursuing law in the cause of human rights? The question has long been posed by left critics skeptical of law’s effectiveness even in developed societies, where law has great legitimacy and successful legal entrepreneurs regularly enter the power elite.2 In societies where politics undermine the legitimacy of law and courts are much weaker, the question is still more compelling.3 Activist lawyers, lawyers for social causes pose the most compelling question: why devote a career to risky and rarely successful symbolic remedies for problems of social and political organization? Personal values may provide a partial explanation for commitment and sacrifice. But a career which sustains advocacy for human rights or other social causes over a long period of time requires another sort of biographical explanation. A career requires opportunities for legal entrepreneurship, and resources to pursue them, as well as intangible rewards. Even where activist lawyers have emerged within legal systems that offer less protection and fewer advantages than the politics and courts of developed democracies, concerned observers have puzzled over the effectiveness of law and even whether turning to law weakens movements for fundamental political reform by affirming the legitimacy of undemocratic constitutional regimes and weak courts. The “judicialization” of human rights, a goal advocated by some human rights advocates, and considered the gold standard established by civil rights lawyering in the United States, has encountered growing skepticism abroad as promising relative weak groups a quicker route to reform while actually undermining the value and strength of grassroots mobilization.4 Critics agree, however, that this complex question must
be better understood by western advocates for the development of cause lawyering in the Global South.
My essay presents a case study of the relationships between lawyer activism, personal experience and opportunity, global funding for litigation, and indigenous legal development in Thailand. Parts II through IV provide background. Through the story of one grassroots environmental litigator’s career, in Parts V and VI, I observe factors that influence the lawyer’s choice of career, the methods and goals of his law practice, the purposes for which he invokes law, and his success as an advocate for the development of human rights and democracy. The case study is selected from over one hundred in depth interviews with cause lawyers (and their clients) in Thailand, and is informed by interviews with judges, academics and government officials. Following the case study, in Parts VII through IX, I return to the concept of “judicialization” to raise further possible meanings of the term which will move us away from condemnation or praise in abstract terms and toward a more complex and useful understanding of the functions of courts in developing societies and the opportunities and risks they pose for those who desire political change.
- Setting the scene: Funding the litigator
In 1999, the New York based Blacksmith Institute announced that it was prepared to fund an environmental litigation project in Thailand.5Blacksmith is the creation of Richard Fuller, CEO of Great Forest, a business consulting firm which profits from environmental sustainability consulting.6 Services encompass both consulting on green construction and LEEDS7 compliance, as well as ISO standards8, and energy management, and include brokering energy supply contracts to maximize profits. Clients comprise a cross section of major developers in America and own more than half the office space in Manhattan, giving Fuller access to a vast array of potential corporate donors.
Fuller gathered grants and donations through his contacts to fund the Blacksmith Institute in 1999, the same year that the Thai RFP was released.9 Fuller dedicated Blacksmith to cleaning up of the world’s pollution “hot spots.” Strategies include transfering “know-how” to local institutions to build capacity to cope with ongoing and “legacy” pollution problems. A network of “scientists, public health experts, environmental engineers, and academics and other experts” rounds out its support for local institutions.10 In Thailand, where for decades the Ford, Rockefeller, and Carnegie Foundations,11 and more recently the Open Society Institute have become well-known as funders, no one had heard of Blacksmith, an anonymity which continues today. Thailand is on the radar of international organizations concerned about the environment, including the United Nations Environment Program (UNEP)12, the World Bank13, and the Asia-Pacific Centre for Environmental Law (APCEL).14 Like Blacksmith, the websites of these programs list a variety of environmental problems created by rapid development – air quality, pollution from pesticides, deforestation, marine eco-system mismanagement, and general degradation of environmental quality. International conventions, to which Thailand is a party, require species preservation and forbid trafficking in wildlife.15 Further, a number of privately funded international NGOs have been active for decades to preserve wildlife and reinforce international regimes protecting wildlife, waterways, and natural environments in Thailand.16 Partly a result of international pressure, Thailand has had law on the books addressing many of these problems for some time.17 The transnational perspective on environmental concerns in Thailand and other developing countries communicated by the discourse of these governmental and international agencies is about the spillovers from development which affect the natural environment – the global commons. The goal of “sustainable resource management” embraced by each of these agencies, Great Forest, and Blacksmith itself, reflects central concerns of the movement for environmental quality in the US and Western Europe.
1. Professor of Law, New York Law School.
I am especially indebted to the generous and patient Thai lawyers and others who consented to be interviewed for this study. For valuable advice and assistance I owe particular thanks to Pipob Udomittipong, Somchai Homla-or, Thawinadee Bureekul, and Professor Paisit Panitchkul, as well as the entire faculty of law of Chiangmai University who welcomed me and generously offered advice about many aspects of the project. My Thai research assistants have been invaluable, Duean Wongsa in Chiangmai, Worranwan Kalyanamitra, Peerawich Thoviriyavej, and Suriwan Lapsomboornanon in Bangkok, and Nuanchan Singkran and Poonrit Kuakul at Cornell University and later in Bangkok. At New York Law School, my assistants have contributed valuable research, helpful insights, and camaraderie. They include research assistants Cory Blitz, Charles Messina, Scott Baldessano, Sharon Sorkin, Ahmed Sana, Rena Malik, Andrew Jenkinson, and Renee Rivas and transcribers Johara Tucker, Ashley Emerson, Alexandra Sims, Trent Swift, Danny Jiminian, and Stephen Meinscheim. In the interests of space I omit names of numerous, and excellent, Thai translators I have employed. The Thai Ministry of Education generously provided information as did the Lawyers Council of Thailand. Funding for this research came from a generous grant from the Law School Admissions Council and a New York Law School faculty summer research grant.
2. The classic criticism of reliance on rights for social and political transformation is Stuart Scheingold, The Politics of Rights: Lawyers, Public Policy, and Political Change (2d ed., Univ. of Michigan Press 2004).
3. See infra Part III and references.
4. The case for independent courts and judicial review is made by Tom Ginsburg, Judicial Review in New Democracies (Cambridge Univ. Press 2003) and Martin Shapiro & Alec Stone Sweet, On Law, Politics, and Judicialization (Oxford Univ. Press 2002). For critique, see infra Part III.
5. Interview with Pipob Udomittipong, a recipient of the email distributed by Blacksmith. See also Blacksmith Institute website http://184.108.40.206/projects/display/26 (last visited 9/6/09).
6. Great advertizes itself as a “a leader in sustainability consulting and program management for clients in the property management, finance, government, retail, restaurant, and hotel sectors, active since 1989. While focusing on our clients' profitability, our success is in designing, implementing and managing programs that also enhance the public good.” See http://www.ecofirms.org/ECO-SERVICES/Waste-Management/2-100-0-1665-0-0-GREAT-FOREST-INC.html (last visited 10/3/09). Fuller has an impressive success story. Fuller, who holds an engineering degree from the University of Melbourne, left his job at IBM in Australia in 1988 to work on rainforest preservation in Brazil. Two years later, he founded Great Forest, a “sustainability consulting company,” which has become one of the giants in the industry. A brief biography of Fuller appears on the website of the Blacksmith Institute, discussed below. See infra note 9 and accompanying text.
7. The Leadership in Energy and Environmental Design (LEED) Green Building Rating System is a widely accepted set of standards developed by the U.S. Green Building Council for evaluating environmental design. See http://www.usgbc.org/displaypage.aspx?CMsPageID=222.
8. The International Organization for Standardization is a nongovernmental network of the standards institutes in over 160 countries, which establishes international standards in the area of business, governance, and public services. See http://www.iso.org/iso/iso_14000_essentials and http://www.iso.org/iso/iso_catalogue/management_standards.htm.
9. The latest reported annual budget is just over three million dollars. See http://www.blacksmithinstitute.org/.
10. The stable includes such internationally recognized environmental law scholars as NYU’s Professor Richard Stewart.
11. Robert Muscat, Thailand and the United States: Development, Security, and Foreign Aid (Columbia Univ. Press 1990).
12. See http://www.unep.org/.
13. See http://web.worldbank.org/WBSITE/EXTERNAL/TOPICS/ENVIRONMENT/EXTEEI/0,,contentMDK:21024221~menuPK:1187810~
14. See http://law.nus.edu.sg/apcel/.
15. United Nations Framework Convention on Climate Change; United Nations Convention on Biological Diversity.
16. Two of the larger and better-funded INGOs are the World Wildlife Foundation (WWF) and the International Union for Conservation of Nature (IUCN). WWF embraces a science-based approach to “sustainable development” emphasizing species and habitat preservation. See http://www.worldwildlife.org/who/. IUCN is a government and NGO member organization which promotes peer pressure for development of cooperative systems for preservation and compliance with international standards and conventions. See http://www.iucn.org/about/.
17. The United Nations Conference on Environment and Development held in Rio de Janeiro in 1992 promoted practices of sustainable development, including government management of the environmental impact of development. See http://www.un.org/geninfo/bp/envirp2.html (last visited 9/6/09). In 1992, Thailand was particularly sensitive to human rights issues, having just experienced a bloody confrontation between military dictators and pro-democracy demonstrators. Further, it’s newly installed civilian government faced an increasingly powerful middle class environmental movement at home. In view of these external and internal factors, the 1992 date of its first comprehensive environmental legislation is not likely to have been a coincidence. See Douglas L. Tookey, Southeast Asian Environmentalism at its Crossroads: Learning Lessons from Thailand’s Eclectic Approach to Environmental Law and Policy, 11 Geo. Int’l Envtl L. R. 307 (1999). See the Enhancement and Conservation of National Environmental Quality Act B.E. 2535 (NEQA 1992), available at http://www.pcd.go.th/info_serv/en_reg_envi.html (last visited 8/30/09).