Volume 21/1
David Njagi Ngonge, Dr. Kariuki Muigua & Dr. Elvin Nyukuri
Ripples of Conflict: Drivers and Resolutions of Water Resource Disputes - A Case Study of Lake Turkana Basin of Kenya
Historically, the semi-arid and dry regions of the Kenyan borders have experienced perennial conflicts that revolve around the scarce water-related resources both on land and in water but spread around Lake Turkana, the largest desert lake in Africa. Lake Turkana, located in the Turkana Basin of Kenya, is a critical resource for the region. Covering an area of approximately 6,405 square kilometres, it is the largest permanent desert lake in the world. Besides, with its unique ecological and socio-economic implications, Lake Turkana has become a central point for studying the dynamics of conflicts resulting from water-related resource scarcity. The study sought to identify specific drivers of water use related resource conflicts in Lake Turkana basin of Kenya. Through a descriptive study design, the research applied a convenience sampling method targeting 90 respondents across all three sites, seeking about 30 participants per region. The study findings demonstrate that drivers of conflicts within the Lake Turkana Basin are not just locally domesticated, but also have external factors and influences including dynamics associated with inflammatory political speeches, economic, as well as environmental factors resulting in harsh climate. This is in addition to water management issues, high illiteracy and cultural pressures, ethnic tensions, historical grievances, scarce critical resources which are only concentrated in few locations, and geopolitical interests of neighbouring countries which contribute to conflicts in the region. The management of these conflicts therefore are best solved if these drivers of conflict are carefully understood as was the case for this study.
Maria Sanchez
Sustaining the Future Through Addressing the Past: the transitional justice functions of biocultural community protocols
Biocultural Community Protocols (BCPs) represent legal mechanisms for indigenous peoples and local communities (IPLCs) to assert collective regulatory rights to genetic resources associated with traditional knowledge. BCPs inherently speak to power asymmetries between state and subnational actors. Yet the literature on BCPs has insufficiently engaged with questions of whether, how, and the extent to which BCP author communities utilise these protocols to demand redress for past harms which have constituted those asymmetrical power conditions. Seeking to connect scholarship on BCPs with the transitional justice literature, I explore three hypotheses positing mechanisms by which IPLCs are leveraging BCPs to assert transitional justice demands. I then evaluate these hypotheses through analysis of the 34 BCPs registered with the United Nations ABS Clearing House.
Paul Kimani
Leveraging Carbon Trading for a Just Energy Transition in Kenya
This article explores how Kenya’s carbon trading framework can be leveraged to support a Just Energy Transition (JET) that aligns climate action with socio-economic equity. While Kenya is a leader in Africa’s voluntary carbon market, exemplified by its regulatory innovations and nature-based projects, serious concerns persist regarding community marginalisation and inadequate benefit-sharing. The article critically examines Kenya’s Climate Change Act 2016, the Carbon Markets Regulations 2024, and emerging frameworks for internationally transferred mitigation outcomes (ITMOs) under article 6 of the Paris Agreement. It identifies key challenges, including complex approval procedures, institutional overlap, weak enforcement mechanisms, and limited capacity for community participation. The analysis proposes a suite of legal and institutional reforms: recognising carbon credits as financial instruments, expanding project eligibility to include blue carbon and urban planning, clarifying institutional mandates, and strengthening community safeguards through mandatory Free, Prior, and Informed Consent (FPIC). It also advocates for streamlined regulatory processes and targeted capacity building. By embedding equity into the design and implementation of carbon markets, Kenya can transform carbon trading into a tool for inclusive development. The article contributes a critical legal perspective to the discourse on climate justice and offers policy recommendations for aligning carbon finance with constitutional values and sustainable development goals.
Viviana Morales Naranjo
Constitutionalism of Nature
Tensions Between Rights of Nature Defenders and Ecuadorian Constitutional Court
In 2008, Ecuador became the first country in the world to recognize the rights of nature (RoN) in the Constitution. Seventeen years later, it is necessary to analyze the work carried out by nature defenders and Ecuadorian Constitutional Court to develop jurisprudential lines about the foundations, content, and limits of RoN. This research has two objectives. On the one hand, we will identify the historical periods in which nature defenders filed the most lawsuits demanding protection and reparation of Nature at the Constitutional Court and the responses they have received. On the other hand, this research will explain the periods in which the Constitutional Court issued the most jurisprudential lines to explain the foundations, content, and limits of RoN and the degree of judicial independence that has existed in each composition of judges of the Constitutional Court from 2008 to 2025. This analysis will allow us to understand whether Ecuador has a Constitutionalism of Nature, that is, a Constitution and constitutional jurisprudential development that materializes Nature as a subject with rights and not a commodity.
Prerna Yadav, Sruthi Pillai & NC Narayanan
Institutional and Regulatory Constraints of Governing Water in India: An Illustration through Groundwater Regulation and Pollution Abatement
Water governance involves multiple challenges that are difficult to address with a single solution. This complexity in governing water resources in India, which makes it a wicked problem illustrated through two cases – first, groundwater exploitation situated within the existing legal framework that enables unregulated resource appropriation. The inconsistencies in the role of the state with assistance for groundwater irrigation through different subsidies such as farm electricity supply, and the incentive structure for cultivation of water-intensive crops such as the paddy-wheat cropping systems reflects the paradox of groundwater exploitation problem. Second cases elaborates on water pollution, especially by municipal sewage and the limited enforcement of environmental regulations, inadequate monitoring, and weak penalties for noncompliance. These cases call for a nuanced understanding of complexity in water resource problems for formulation and implementation of more sustainable pathways. This understanding is drawn from the analytical framework constitutive of path-dependency and wicked problem concepts. The paper traces the path-dependence in emergence of these wicked problems – groundwater exploitation and water pollution. It elaborates on how the efforts to modernise water governance and for irrigation expansion within the contextual factors and institutional legacies have led to unintended consequences. This understanding is crucial for undertaking legal and institutional reforms that could introduce flexibility, continuous evaluation, and robust accountability mechanisms.
Agustin Grijalva
Rights of Nature and the right to a healthy environment: Jurisprudence of the Ecuadorian Constitutional Court
In this essay I analyze some relationships among the rights of nature and the human right to a healthy environment. I show these relationships describing several rulings of the Ecuadorian Constitutional Court, and specially the Los Cedros judgement, which is a ruling on mining concessions granted within a cloud forest located in a highly biodiverse area. Judges must impartially examine the arguments and evidence presented by the parties involved. However, to issue a ruling, they must ultimately adopt a position based on their own interpretation of the law and understanding of the facts. The author of this essay served as the rapporteur judge for the Los Cedros ruling when I was a member of Ecuador’s Constitutional Court. During this judicial process and afterward, I have reflected on the relationship between the rights of nature and the right to a healthy environment. While drafting the ruling and later, after leaving the Court, analyzing it as an academic—considering its precedents, context, and consequences—I have developed several scholarly arguments that are expressed in this essay.
Rika Fajrini
Lessons from a Decade of Indonesia Environmental Litigation: Accommodating Public Interests in Civil Liability Cases
This paper analyses 321 civil environmental cases in Indonesia from 2009 to 2022, identifying patterns and trends over the past decade. The findings reveal a growing public interest dimension in these civil cases, marked by the rise of public interest litigation, the expansion of legally recognised harms as liability base and the shift toward restorative remedies. Despite the presence of a specialised environmental law, the cases are still trialled within a mix of private law framework, which has its limitation in accommodating public interest. The cases show the needs for a harmonious coexistence between public and private law in environmental liability.
Book Reviews
Advanced Introduction to International Water Law
by Owen McIntyre (Edward Elgard Advanced Introductions Series, 2023)
Reviewed by Sujith Koonan
