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Recognizing the Vital Role of Local Communities in International Legal Instruments for Conserving Biodiversity

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Recognizing the Vital Role of Local Communities in International Legal Instruments for Conserving Biodiversity UCLA UCLA Journal of Environmental Law and Policy Title Recognizing the Vital Role of Local Communities in International Legal Instruments for Conserving Biodiversity Permalink https://escholarship.org/uc/item/4js9c4hx Journal UCLA Journal of Environmental Law and Policy, 16(1) Author Maggio, Gregory F. Publication Date 1997 DOI 10.5070/L5161018932 Peer reviewed eScholarship.org Powered by the California Digital Library University of California Recognizing the Vital Role of Local Communities in International Legal Instruments for Conserving Biodiversity Gregory F. Maggio* I. INTRODUCTION This article analyzes legal approaches for meeting the needs and interests of local human communities that utilize biodiversity and inhabit areas important for their conservation. Effectively addressing these needs is a crucial area for international law con- cerned with the sustainable development of biological diversity.' This article further suggests directions that international law should take to promote realization of this objective. It draws upon the perspective of law as process.2 In this context, it recog- nizes that indigenous and other long-term occupant communities are participants 3 in the international system, and proposes that international political and legal structures must accommodate this reality in order to find adequate solutions to many challenges facing global society. The majority of existing international instruments have failed to provide a supportive legal environment for local resource de- * L.L.M., London School of Economics; Ph.D, Cambridge University. 1. The term "biological diversity" or "biodiversity" is generally understood to re- fer to variability among living organisms and the ecological communities which they inhabit. It encompasses three broad categories: genetic diversity, species diversity, and ecosystem diversity. See WORLD CONSERVATION MONITORING CENTRE, GLOBAL BIODIvERsrrY: STATUS OF =H EARTH'S LIvING RESOURCES xiii (Brian Groombridge ed., 1992). This meaning is reflected in the definition of the term in the Convention on Biological Diversity, June 5, 1992, 31 I.L.M. 818, 823 (1992). 2. For further discussion of this approach, see R. HIGGINS, PROBLEMS AND PRO- CESS. INTERNATIONAL LAW AND How WE USE IT 1-16 (1994). 3. This view is supported by various publicists. See, e.g., W. M. Reisman, Protect- ing Indigenous Rights in InternationalAdjudication, 89 AM. J. INT'L L. 350, 350-65 (1995); S. JAMES ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LAW 39-58 (1996). 180 JOURNAL OF ENVIRONMENTAL LAW [Vol. 16:179 pendent populations that would enable these populations to manage in a sustainable manner forests and other components of biodiversity which they utilize or over which they exercise effec- tive control. This state of affairs has devalued the worth of re- sources to local communities and has acted as a disincentive4 for them to promote sustainable development. It has interfered with the overall effectiveness of conservation regimes. Until very re- cently, conservation initiatives generally have ignored the follow- ing three components vital to meeting their purposes: recognizing resource access rights and security for local commu- nities; enabling local communities to participate effectively in re- source management decisions under the regimes; and requiring equitable sharing with local communities of benefits arising out of the use of natural resources. Realizing sustainable develop- ment of the world's remaining biodiversity requires that these imperatives be integrated into the relevant international instruments. The challenge for international law is either to modify existing conventions and other regimes dealing with conservation, or to create new, more appropriate instruments that accurately reflect the link between long-term occupants and conserving biodivers- ity. This concern applies particularly to those aspects of the bio- logical heritage lying outside of protected areas or in officially protected areas that are also the home and/or source of liveli- hood for local resource-user communities. 5 Some recent international texts generally reflect a changing perspective on the status of local communities in facilitating envi- ronmental protection and sustainable development. 6 Pronounce- ments in Agenda 21, 7 the UNCED Forest Principles 8 and the 4. See E.B. BARBIER, ET AL., ELEPHANTS, ECONOMICS AND IVORY 142 (1990); see also M. COLCHESTER, UNITED NATIONS RESEARCH INSTITUTE FOR SOCIAL DEVEL- OPMENT, SALVAGING NATURE: INDIGENOUS PEOPLES, PROTECTED AREAS AND Bi- ODIVERSITY CONSERVATION, (1994). 5. See, e.g., THE LAW OF THE MOTHER: PROTECTING INDIGENOUS PEOPLES IN PROTECTED AREAS 3-11, 61-68 (Elizabeth Kemf ed., 1993). 6. See, e.g., United Nations Commission on Human Rights Sub-Commission on Prevention of Discrimination and Protection of Minorities: Draft United Nations Declaration on the Rights of Indigenous Peoples 34 I.L.M. 541, 553 (1995); Art. XX, Draft Inter-American Declaration on the Rights of Indigenous Peoples, Sep- tember 2, 1995, OEA/Ser/L/V/II.90 doc.9, rev.1; Report of the United Nations Con- ference on Environment and Development, 26th Sess., Agenda Item 21, Vol. II at 104, paras. 15.4(g), 15.5(e), U.N. Doc. A/Conf.151126 (1992) [hereinafter Conference on Environment]. 7. See Conference on Environment, supra note 6, at chs. 26 and 32. 1997/98] THE VITAL ROLE OF LOCAL COMMUNITIES 181 Rio Declaration, 9 providing that governments should promote participation of local communities in the environmental protec- tion and development process, evidence this shift in focus. How- ever, much of the content of these instruments does not address the core issue of creating inducements for local communities to manage forests and other resources of biological diversity sus- tainably. This issue is not limited to the developing countries. It cuts across the North-South divide. In the United States, the controversy manifests itself between local (logging and fishing) communities and state and local authorities in the Pacific North- west over the management of old growth forests and salmon fisheries.' 0 The treaties and other instruments that constitute the interna- tional regimes for conserving living resources, by and large, em- phasize cooperation among states, and more recently international organizations," to achieve their objectives. Given the transboundary character of many major environmental threats, including biodiversity depletion, multilateral cooperation is both desirable and necessary for addressing these challenges. However, attention to the socio-economic needs and interests at the local level and, in particular, the concerns of local communi- ties, including traditional and/or long-term occupant communi- ties, has been distinctly absent or at best given only peripheral treatment in most existing conventions. For purposes of this discussion, the term "long-term occupant communities" includes those groups that have been variously de- scribed as First Nations or Native Americans, as well as aborigi- nal, indigenous, and tribal populations, peoples, or communities. However, the term "long-term occupant communities" also em- braces socio-cultural groups that may not fall easily under ex- isting definitions of "indigenous" or "tribal" peoples, but which 8. Non-Legally Binding Authoritative Statement of Principles for a Global Con- sensus on the Management, Conservation and Sustainable Development of All Types of Forests, 31 I.L.M. 881, 882 (1992). 9. United Nations Conference on Environment and Development, 31 I.L.M. 874, 880 princ. 22 (1992). 10. See CHARLES VICTOR BARBER ET At.., BREAKING THE LOGJAM: OBSTACLES TO FOREST POLICY REFORM IN INDONESIA AND THE UNITED STATES 57-58 (1994). 11. For example, at the conference for the adoption of the Agreed Text of the Convention on Biological Diversity, Resolution 1 on "Interim Financial Arrange- ments" provided that the Global Environment Facility ("GEF") administered by UNEP, UNDP and the World Bank, would operate the financial mechanism under Article 21 of the convention. See Conference for the Adoption of the Agreed text of the Convention on Biological Diversity, 31 I.L.M. 842, 843 (1992). 182 JOURNAL OF ENVIRONMENTAL LAW [Vol. 16:179 nonetheless have lived for long periods of time in particular areas and often depend upon the natural resources of those locales for their livelihood and sustenance.' 2 This article seeks to address the causes and/or consequences of biodiversity depletion facing long-term occupant communities in general. It will draw upon legal materials related specifically to "indigenous ' 1 3 peoples because of the relevance of these texts to the overall evolution of international law concerning the link be- tween long-term occupants and conservation. The issue of sus- tainable utilization of natural resources in the face of present accelerated resource consumption is a common concern affecting all of these groups, in relation to their national governments and the international community. II. THE CURRENT INTERNATIONAL FRAMEWORK The inability of extant international legal structures to deal ef- fectively with the socio-political and economic prerogatives of in- digenous communities and other non-state actors results from continued adherence by various vested interests to "classical" state-centered approaches. Contemporary international law and the institutions created to administer it are largely the products of classical statist theories. International society at present is not comprised exclusively of nation states.' 4 Increasingly,
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