Review of Crossing boundaries: Legal and policy arrangements for cross-border pastoralism by Jonathan Davies, Claire Ogali, Lydia Slobodian, Guyo Roba, Razingrim Ouedraogo

Book details

Jonathan Davies, Claire Ogali, Lydia Slobodian, Guyo Roba, Razingrim Ouedraogo

Crossing boundaries: legal and policy arrangements for cross-border pastoralism

FAO, IUCN, Rome, 2019

110 pp.

Editors: Gregorio Velasco-Gil and Natasha Maru (Pastoralist Knowledge Hub of the Food and Agriculture Organization of the United Nations (FAO)

ISBN 978-92-5-131112-7

Introduction

Governance is commonly at its weakest at borders (Hammond 2019). Where governance is present, in a global setting of increasing concerns about human mobility, it often takes the shape of security and immigration control rather than service provision or protection of rights and economic freedoms. Closure of borders has severe impacts on the livelihoods of the many people who cross borderlands for a variety of reasons and with mixed profiles and demographics, as well as impacts on the management of resources and the economic vitality of broad regions.

This report offers the possibility of thinking about borders and frontier lands in a different way. It gives options, tools, and examples of experiences of alternative border management approaches and relationships among nation states, neighbouring communities, and international actors. The report explicitly addresses the movement of pastoral groups, the mobility of which, although functional for many reasons, has been increasingly restricted by conflicts and the imposition of national borders and settlement schemes, among other factors.

The report mainly targets practitioners, governmental and non-governmental actors, who wish to take a stance in support of mobile pastoralism, and it gives them a toolkit (a list of principles, acts, frameworks, conventions, and the like) for the development of improved border legislation. Nonetheless, the report remains a good resource also for scholars who are interested in an overview of current policy instruments and conventions supporting pastoralists or, more generally, for those concerned with available legal frameworks for border management. It is organised in five sections that give the reader a broad review of various legal and policy arrangements which support transboundary pastoral mobility, outlined in the remaining parts of this review.

The importance of transboundary mobility, its challenges and opportunities

The first two chapters of the report introduce pastoral mobility and its current challenges and opportunities. The report starts by bringing together three decades of debates and re-evaluations of pastoralism and pastoral mobility. Advances in the science of rangeland ecology, coupled with changing attitudes towards indigenous groups, have altered the traditional view of pastoralism as a cause of land degradation (Hardin 1968) and pastoralists as a “thrown-back to a past era” (cf. discussion in Chatty 2006, 1), or lazy and engaging in irrational economic practices (cf. discussion in McCabe 1994). As clearly stated by the authors, “pastoralism provides high-value livestock products while simultaneously protecting vast areas” (p.2, emphasis added). Pastoralism does not necessarily damage the environment; it can also protect and construct landscapes—less “visibly” than farmers, through canals and irrigated fields, or town dwellers, through the construction of roads and other infrastructure. Pastoralists modify the landscapes they occupy through the relation between human beings, livestock, and land—a relationship centred around mobility.

A central feature of sustainable pastoralism is the management of herd mobility (and in some cases, human mobility too) which allows the use of ephemeral resources (Krätli 2015), while at the same time building economic and social ties among widely spread communities, seeking security, managing risks, and diversifying economic resources through trade (Nori 2019). One important factor that shapes pastoral mobility is the imposition of borders along migratory corridors and areas of transhumance, discussed in the second chapter of the report. Natural frontiers have been transformed into states’ frontiers, and rangelands and other pastoral resources (including water, markets, extended families) have been split by international or domestic boundaries (Nori et al. 2008). The authors explain how this has severely impacted not only the livelihoods of millions of pastoralists (in some cases leading to conflicts) but also the protection of biodiversity and sustainability of rangelands and local and national economies.

The report shows, with a careful language which does not fall into the rhetoric of harshness, scarcity, and traditionality, how there is a growing recognition of both pastoralism and pastoral mobility, even across borders and even in policy spheres (for example, by the FAO’s Voluntary Guidelines on the Responsible Governance of Tenure of Land, the African Union Policy Framework for Pastoralism in Africa, and the Economic Community of West African States (ECOWAS) regulations on transhumance, as well as several bilateral agreements to facilitate transhumance). Nonetheless, the report warns that many countries and their governments still treat pastoralism as an undesirable activity and are still deliberately settling pastoralists. The report speaks to policy-makers in those countries, having the crucially important goal to convince them to support transboundary movements and tells them how in the following three chapters.

Pastoral legal-scapes: The making of transboundary legislation

The remaining chapters of the report concentrate on what we see as a “legal-scape”, or namely the articulate body of existing legislation, including legal principles, instruments, and practices available for developing alternative border legislation about transboundary mobility. Chapters 3, 4, and 5 aim to show that another “legal-scape” is possible. In so doing, the chapters seed everywhere, in boxes or woven in the text, successful examples and case studies from different parts of the world, which anchor legal principles to existing experiences.

Chapter 3 introduces legal principles which the authors consider critical to understand pastoral governance, such as “bundle of rights”, the “commons”, and “customary law”, given the particularities of pastoral societies made of complex and flexible interactions among people, animals, and various socio-economic environments. Chapter 4 reviews existing legal arrangements, at international, regional, national, and local levels, which can be taken as inspiration for those actors involved in changing restrictive legislation for pastoralists—showing the historical evolution towards a progressive acceptance of pastoral mobility as a legitimate and desirable form of land use. At the same time, the report warns against gaps, overlaps, and conflicts in legal provisions. It henceforth emphasises the importance of a thorough review of the context-specific “legal-scape” across various sectors related to pastoralism: forests, land use, livestock, agriculture, water, decentralisation, biodiversity, protected areas, and the like. Chapter 5 goes then into explaining different types of legal arrangements which could be adopted (bilateral treaties, regional mechanisms, national legislation, local arrangements by civil societies) and summarises their content: definition of norms, rights, requirements, certificates, permits, etc.

Though problematics emerge with the examples of alternative legislations, the report primarily focuses on the “good” aspects, intentions, and features—it wants to build momentum for a legal revolution. Nonetheless, as the authors say, this is just a starting point. Indeed, when reading this report, an immediate question arises: why things do not change?

Resistance to change

The end of pastoralism has been predicted for decades by governments and international agencies. And yet, this report shows that many pastoral herding groups are constantly evolving, adapting, and opportunistically re-organizing livelihoods to access new cash-based opportunities (wages) and livestock-focussed resources, all by means of mobility. What the report is not able to fully explain is then: Why? Why is there such resistance among governments, the aid industry, and third sector organisations to understand mobility and pastoral herding society in drylands?

In the presentation of successful case studies and examples of favourable legislations, the report bypasses discussions about the politics of border management. Indeed, a great deal of resistance to change can be explained by institutional inertia, as the report alleges. Nonetheless, it is largely the consequence of political resistance. Many of the conventions presented in the report as good examples for what they aspire and claim, still adopt a political language which reiterates old myths about pastoralism (Krätli 2013). The underlying narrative of most of these initiatives is informed by the vision of pastoral lands as empty, degraded, unproductive, and in need of development. Customary rights are often poorly recognised, and sedentarisation is inherently still favoured to mobility. More recently, climate change narratives, reinforcing old views of desertification, contribute to reiterate control-oriented measures and engineering solutions (destocking, green belts, forest planting) rather than working with the structural variability of drylands (Behnke and Mortimore 2016). These critiques to current policy-making in drylands appear only mildly from the pages of the report, which therefore remains incomplete in the storyline it provides.

Resistance to change can also be explained by technical reasons—which eluded the report. Technical difficulties of policy implementation presented in the report relate for example to the fact that experiences are difficult to translate from one context to another, as the social and cultural aspects surrounding pastoralism change consistently from one place to another, meaning lessons and practices seem difficult to be transferred. In this respect, more attention to the inherent problematics of some of the regulations presented in the report would complete the picture—the other side of the coin—especially when it comes to implementation, commitment, and political will, negotiation, and economic interests. The report, in short, leaves the reader with curiosity to know more about implementation practices. How is it working on the ground? How are the legislations described in the report applied? How does the legal machine work more practically? Inevitably, doubts arise about how many of these legislations on papers have been moved along to the ground with herds and stock crossing borders.