Book review of "Incorporating Indigenous Rights in the International Regime on Biodiversity Protection

Access, Benefit-sharing and Conservation in Indigenous Lands" by Federica Cittadin

Giacomini, Giada

English

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Traditional knowledge and customarylawRecognizing indigenous peoples for environmentalconservationGiada Giacomini 2020-06-25T09:00:44While the world’s 370 million of persons belonging to an Indigenous people accountfor less than five percent of the total human population, they hold tenure over 25percent of the world’s land surface. These lands represent about 80 percent ofthe global biodiversity. This blog post critically reflects on the role of Indigenouspeoples in the conservation of the environment, considering the legal analysisof the biodiversity conservation regime provided in Federica Cittadino’s bookdiscussed within this book symposium. It serves a twofold purpose: on the onehand, it highlights the crucial legal aspects mentioned in the book and relates themto the inclusion of Indigenous peoples in the Convention on Biological Diversity(CBD) context. On the other hand, it seeks to put Cittadino’s critical aspects in adifferent light mainly by considering issues of legal pluralism and the inclusion ofnon-Westernized governance systems. My approach focuses more on the politicalsciences than on the legal perspective of the topic. This comprises the considerationof power dynamics and imbalances, historical exclusion and indirect perpetuations ofcolonial dynamics.Cittadino’s book provides a punctual and exhausting analysis of the CBD regime withregard to the incorporation of Indigenous peoples’ rights. In the first part of the book,the author duly presents a detailed analysis of past and current developments in thehuman rights realm aimed at the protection of Indigenous’ rights with a stimulatingfocus on the interplay between human rights and the environment. The authoremphasizes the constant tension between States’ prerogatives, such as the principleof sovereignty over national resources, and Indigenous rights. In fact, Indigenouspeoples – having their own culture, languages and territories – might qualify asnations within the borders of the State they live in. Legal regimes aiming to protectIndigenous peoples might foster the concern of States about a possible loss ofterritorial sovereignty.The author gives evidence that the core rights intended to shield the culturalsurvival of Indigenous peoples, namely right to self-determination, right to landand resources, and Free Prior and Informed Consent, are by no means intendedto provoke a secession of Indigenous nations from States. Historically, they are aresult of the negotiations between Indigenous leaders and States that led to suchcompromises. Rather, they aim at granting the collective right to existence as apeople and to maintain cultural distinctiveness.Legal Interplay of Different Regimes- 1 -The book analyses the interplay between and coexistence of international humanrights law and biodiversity and conservation law, considering the necessityof preserving Indigenous prerogatives in the context of access to TraditionalKnowledge (TK), conservation projects and benefit-sharing. Cittadino appliesa human rights approach in the interpretation of the norms contained in theConvention on Biological Diversity (CBD) and in the Nagoya Protocol and voluntaryguidelines, highlighting their complementary and mutually enhancing function. This“interpretative approach”, as defined by the author, seeks to read the conservationregime together with current developments in international human rights law, andvice-versa, ensuring the respect of the highest standards possible for Indigenouspeoples’ rights.Throughout her book Cittadino points to different critical aspects of the CBD regimeregarding the protection of Indigenous peoples’ rights. From my own perspective,particularly significant are the debates around recognition of Indigenous TK andthe “legal pluralistic fashion” put forward in the Nagoya Protocol (p. 199). Anothercrucial theme concerns the participation of Indigenous peoples in the negotiationsof Mutually Agreed Terms (MATs) in relation with access to genetic resources andbenefit sharing, in light of the fact that the Protocol “delegate[s] to state partiesindividually to develop model contractual clauses and voluntary standards” (p. 228).However, practical issues concerning the meaning and challenges in theactualization of such provisions are not addressed in the book – for example,the conceptual underpinnings of Indigenous legal pluralism in light of this broadmanoeuvring space left to States. Indigenous peoples’ distinctive cosmovisions andnon-anthropocentric conceptions of law consistently differ from Westernized legalsystems. Thus, Indigenous narratives need to be addressed when considering theconcept of legal pluralism. How has the recognition of Indigenous legal pluralism andTK enshrined in the Nagoya Protocol to be interpreted in light of these blind spots ofthe CBD regime?Some Light on the Blind Spots of the Nagoya ProtocolIn response to this question, the next sections of the blog post suggest aninterpretation of the Nagoya Protocol to curb current problems of globalenvironmental governance. It considers the challenges deriving from the recognitionof Indigenous TK and customary law in Western legal systems.Presently, the profound, varied and locally rooted Indigenous knowledge can helpto improve biodiversity conservation, managing protected areas and even tacklingclimate change impacts. Whilst their important role is recognized and enhancedthrough the CBD regime, Indigenous peoples still face dramatic issues of forcedrelocation, misappropriation of their lands, cultural losses due to modernisationprocesses and generalised violations of their human rights, including disrespectof the obligation to obtain consent and killing of environmental defenders. It isparticularly pressing to consider global justice and ethical aspects when dealing withquestions of Indigenous peoples’ rights.- 2 -The incorporation of non-Western legal systems in national and internationalgovernance mechanisms is crucial in terms of meaningful participation of Indigenouspeoples in environmental governance, as prescribed by international humanrights law and by the CBD regime. The author addresses the issue of participationChapter Four by providing a detailed analysis of the CBD Programme of Work onProtected Areas. However, meaningful participation is by no means a straightforwardprocess and poses constitutional and legal questions. It would require accepting andincluding Indigenous views in a positivistic system of law that traditionally consideredcustomary law as a non-law, or at least hierarchically inferior to Western law.In fact, the State-centred structure of the CBD system, although recognizingcustomary law and community protocols as legitimate sources of law, could inpractice result in a translation of different levels of recognition between States andnon-State legal subjectivity. States acting “in accordance with domestic law” rely onlegal sources that follow fixed criteria. In this case, Indigenous legal systems aresubjected to the positivistic rule of law as a standard to determine what must beconsidered law.The term “customary law” has been rejected by Indigenous peoples when appliedto their living law. Such definition might imply a certain degree of denigration oftheir legal regimes and subordination to the positive law of the State. This is dueto the legacy of colonial and post-colonial regimes and their logic of subordinationof Indigenous culture and its unfair consideration as ‘primitive’. Customary law isnot, indeed, at the basis of all Indigenous law, which may also be in written from,positivistic-derived or based on natural law. The term customary law is wrongfullyapplied to all types of Indigenous peoples’ legal systems, but this referencecontinues to be used by contemporary legal scholars, Indigenous representativesand academics, playing a significant role in international negotiations. Seeminglythe book adopted a general definition of Indigenous customary law, without delvinginto considerations stemming from other disciplines such as legal anthropology.However this aspect is made clear in the introduction, where the author states:“From a methodological perspective the questions asked and the tools used in thisresearch are perfectly in line with a classic approach to international law, as a lawmade by States for States […]this book is mainly concerned with the classic sourcesof international law and the parallel obligations incumbent on States” (p. 5).Non-anthropocentric Approaches to the EnvironmentAnother concern that arises from the previous considerations, regards the integrationand translation in Western systems of law of Indigenous peoples’ worldviews andcosmologies. Whilst it is out of the scope of the book to address such themes, it iscentral to consider that Indigenous customary law is often intrinsically embedded intheir ancestral lands, spirituality and culture. This underlying connection is due tothe particularity of Indigenous cosmovisions that perceive the territory and naturalelements as sacred; thus, the law is not man-made but derived from the naturalworld, which human beings have the duty to preserve. For example, in Yaneshacosmology, the landscape is seen as “sacred” because forests, mountains and othergeographical sites represent the physical places where Yanesha ancestors lived,- 3 -and still watch over their children. The preservation of forests is seen as a dutytowards present and future generations.Indigenous law and TK denote a non-anthropocentric conception of the environment,prescribing communal and collective aspects of ownership grounded in a spiritualvalue system that includes the rights of future generations. In many Indigenouscosmovisions, natural resources and landscapes are not something to “own”. On thecontrary, they are “inherited” from ancestors and they need to be preserved avoidingthe long-term effects of environmental degradation for the use of present and futuregenerations. The challenge ahead is to find ways and best practices to mediate andreconcile States and Indigenous legal conceptions in order to guarantee a fair benefitsharing and respect of the rights of Indigenous peoples when accessing their TK.A possible way to achieve this objective is represented by the institution of redressmechanisms. According to the Nagoya Protocol, States must take into considerationcustomary law even in the resolution of disputes. But the actualization of thisdisposition in practice poses several challenges, like proof and application ofcustomary law and ensuring ways of securing access to justice. Cittadino addressesthese challenges in Chapter Three, dealing with the tools for reconciliation providedby the CBD regime, arguing for the auxiliary function of the UN Declaration onIndigenous Peoples Rights within the MATs and benefit-sharing contexts. Suchissues need to be faced through cooperation with and participation of Indigenouspeoples in decision-making procedures in order to protect TK from inappropriateand predatory use. By using these tools, the risk of inequitable transitions amongIndigenous peoples, States and third-party users of TK would be avoided.In light of these considerations, the book certainly offers a thorough and consistentlegal analysis of the CBD regime in light of fundamental Indigenous rights. It showshow the environmental conservation regime provides a superior protection toIndigenous peoples’ rights compared to the instruments of international humanrights law – for example, with regards to TK. It offers an outstanding legal basis forfuture research and advocacy work for the protection of Indigenous peoples’ rights inrelation to TK and biodiversity conservation. Similarly, the book provides interestinglegal insights for what concerns participatory rights of Indigenous peoples, whichcould be analysed by taking into consideration the non-anthropocentric approach ofIndigenous customary law suggested in this post, not only in the CBD context butalso in the climate change law realm. Giada Giacomini is a researcher in International Order and Human Rights at LaSapienza University of Rome. She recently completed her Ph.D. degree with aresearch project entitled Indigenous Peoples and Climate Change: AddressingEnvironmental Injustice. She was appointed as Visiting Researcher for two academicsemesters at the Strathclyde Centre for Environmental Law and Governance,respectively in 2018 and 2019. She completed an investigation project in Peru withYanesha Indigenous communities, hosted by the Indigenous NGO Chirapaq, inOctober and November 2018. She also worked as invited scholar at Nottingham- 4 -Trent University (UK) and Temuco Catholic University (Chile). Giada’s background inin International Cooperation (M.A.) and Political Sciences (B.A.). Cite as: Giada Giacomini, “Traditional knowledge and customary law– Recognizing indigenous peoples for environmental conservation”,Völkerrechtsblog, 25 June 2020.- 5 -

Traditional knowledge and customary law: Recognizing indigenous peoples for environmental conservation

Book review of "Incorporating Indigenous Rights in the International Regime on Biodiversity Protection
Access, Benefit-sharing and Conservation in Indigenous Lands" by Federica Cittadin

Giada Giacomini

Archivio della ricerca- Università di Roma La Sapienza

Traditional knowledge and customary law
Recognizing indigenous peoples for environmental conservation

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Traditional knowledge and customary law: Recognizing indigenous peoples for environmental conservation

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