Globalization, communities and human rights: community-based property rights and prior informed consent.

• Author: Magraw, Daniel Barstow

1. INTRODUCTION

   Globalization is placing increasing stress on individuals and communities, particularly in rural areas in developing countries. Increased trade and other economic activities, for example, result in higher demand for wood and other forest products, oil and other minerals, fish products, arable land, etc.--resources that indigenous and other local communities often depend upon for their livelihoods and cultures. Large-scale development projects such as dams, mines and highways often displace local populations, exploit their natural resource base, and interfere with or destroy their livelihoods and cultures. (2) Even new protected areas such as national parks--terrestrial and maritime--often displace local populations or restrict their access to land and resources on which they traditionally rely. (3)

   Local communities often are unable to protect themselves in the face of these pressures. There are various reasons for their vulnerability, ranging from limitations in resource mobilization or technical expertise to more structural issues of political opportunity and power dynamics. Many communities lack knowledge or experience in mobilizing resources to defend their rights, such as technical, scientific or legal expertise, or other helpful skills such as how to use the media. At the most basic level, communities may not have access to a base of resources, like a place to meet, money for basic supplies such as copying and telephones, or technology such as computers and the internet. (4)

   A more pervasive and structural problem is that rural people, while comprising a large majority in many developing countries, are frequently neglected, or even repressed, by national governments or local elites. A set of political variables, such as the openness of the political system, the State's capacity or propensity for repression, the stability of elite alignments, and the presence of elite allies all may influence the ability or limitations of a community to protect itself in the face of pressures. (5) Fundamental political and economic problems and the exploitation of the politically powerless often result in environmental injustices, including disparities in the benefits that flow from natural resources development. (6)

   A related concern is that many nations continue to mirror the policies and biases of their former colonial governments, including land laws. In many countries, including in much of Asia and Africa, the State claims ownership of vast areas, including areas traditionally occupied by indigenous groups. Since political independence was attained in the 1960s by many African nations, State assertions of ownership have actually been broadened and legally strengthened in many nations. (7) In Indonesia, the State's authority over its resources since its independence has also been maintained and expanded, and in 1980s the State classified over 75% of the total land area as State Forest, including over 90% of the Outer Islands. (8) Given this pattern of State control of land and resources, local communities are often vulnerable to losing access to their traditionally occupied lands or resources, and thus to their means of sustenance, way of life, and culture.

   This article addresses two related human rights norms that are emerging to counteract pressures being placed on vulnerable communities. The first of these is Community-Based Property Rights, which relate to the rights of long-established communities, especially indigenous ones, to manage and control natural resources they have traditionally utilized, and to maintain and adapt their often complex community rules and norms. The second is Prior Informed Consent by indigenous and other local communities with respect to the use of natural resources that they reside in or upon which they are otherwise dependent.

   Before describing these concepts, it is helpful first to recall the legal context in which these norms are emerging. The international legal system underwent a radical change at the end of World War II when the international community recognized the existence of human rights. This development was radical because for the first time subjects other than States had rights. Human beings had these rights solely by virtue of their being human. Moreover, they had these rights vis-a-vis their own State, for no longer could a State treat its nationals any way it liked with legal impunity.

   As is well known, these rights were first recognized in 1948 in a non-binding declaration of the United Nations General Assembly--the Universal Declaration of Human Rights. (9) They later were established in two binding agreements--with the solemn name "covenants"--one on civil and political rights, (10) and the other on economic, social and cultural rights. (11) These and other rights have also been enshrined in a multitude of regional and specialized international agreements, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, (12) the American Convention on Human Rights, (13) the African Charter on Human and Peoples' Rights, (14) the Convention concerning Indigenous and Tribal Peoples in Independent Countries (ILO No. 169), (15) the International Covenant on the Elimination of All Forms of Racial Discrimination, (16) the Convention on the Elimination of All Forms of Discrimination Against Women, (17) the Convention on the Rights of the Child, (18) and most recently, the Convention on the Rights of Persons with Disabilities. (19) Eventually, these human rights became recognized as customary international law, (20) some even reaching the status of jus cogens. (21)

   This area of human rights has continued to evolve over the half century since the Universal Declaration of Human Rights. For example, in the 1990s the international community finally recognized that these rights applied to women, not just men, (22) and human rights efforts have focused increasingly on rights of indigenous people. (23) More recently, the evolution of human rights has included environmental considerations, (24) recognizing, for example, that pollution can violate the rights to life and property. (25)

   In 1992, the international community took a bold step towards acknowledging the link between human rights and environment by recognizing sustainable development as the overarching paradigm for improving the quality of life of people around the world through the adoption of the Rio Declaration on Environment and Development (26) and Agenda 21. (27) The importance of sustainable development has been recognized many times since adoption of the Rio Declaration. (28) Sustainable development has four defining characteristics: the interests of future generations must be taken into account; the needs of the world's poor must be given priority; the environment must be protected; and social, environmental and economic policies must be integrated. (29)

   At about the same time, the environmental justice movement came to the fore in the United States when research by the Christian Science Monitor and others revealed that environmental hazards and pollution were disproportionately located in poor and minority areas, with race being the most significant predictor of the location of hazardous facilities. (30) There is widespread agreement in the environmental justice movement that disadvantaged communities have a right to participate in decisions affecting them, that they should not bear a disproportionate environmental burden, and that they should share in the benefits of environmental protection, such as clean drinking water, sanitation, and access to parks. Environmental justice should also be viewed as requiring effective and equal access to justice by those injured by environmental degradation, as well as the protection of the environment sufficient to maintain a healthy quality of life. (31)

   In 1991, the first national environmental justice event was held, in which environmental justice activists from the United States and other countries forged the "Principles of Environmental Justice", which are still looked to as a defining document of the movement. (32) The U.S. Environmental Protection Agency created an Environmental Justice office in 1992. The American Bar Association, which had endorsed sustainable development in 1992, adopted an environmental justice resolution in 1993. (33) Additionally, in 1994, President William J. Clinton signed an Executive Order on Environmental Justice, which declared that every federal agency should make "achieving environmental justice part of its mission by identifying and addressing.., disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations." (34)

   As the movements for sustainable development and environmental justice progressed, it became increasingly evident that they were inextricably linked since they both addressed the confluence of social, environmental and economic factors, both required that the environment be preserved at a level sufficient to maintain a healthy quality of life, and both considered justice implications of development projects and processes. (35)

   One set of instances where the search for environmental justice and sustainable development coincide is the treatment of long-established communities that are dependent on particular natural resources for their sustenance, their livelihood, their shelter, or their culture. This is the case, for example, with indigenous communities in the Amazon rainforest that depend on their surroundings for their way of life. In some communities in the Amazon, community members have reported using 30 different plant species for commercial sale alone, and many more forest materials for food and medicines, such as Brazil nuts for sale, palm fibers for clothes, seeds for oils, locust for medicine, heart of palm for food, etc., in addition to fishing and hunting...