Recognizing the vital role of local communities in international legal instruments for conserving biodiversity.

• Author: Maggio, Gregory F.

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 concerned with the sustainable development of biological diversity.(1) 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 recognizes 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 dependent 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 effective control. This state of affairs has devalued the worth of resources to local communities and has acted as a disincentive(4) for them to promote sustainable development. It has interfered with the overall effectiveness of conservation regimes. Until very recently, conservation initiatives generally have ignored the following three components vital to meeting their purposes: recognizing resource access rights and security for local communities; enabling local communities to participate effectively in resource management decisions under the regimes; and requiring equitable sharing with local communities of benefits arising out of the use of natural resources. Realizing sustainable development 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 biodiversity. This concern applies particularly to those aspects of the biological heritage lying outside of protected areas or in officially protected areas that are also the home and/or source of livelihood for local resource-user communities.(5)

Some recent international texts generally reflect a changing perspective on the status of local communities in facilitating environmental protection and sustainable development.(6) Pronouncements in Agenda 21,(7) the UNCED Forest Principles(8) and the Rio Declaration,(9) providing that governments should promote participation of local communities in the environmental protection and development process, evidence this shift in focus. However, 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 sustainably. 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 Northwest over the management of old growth forests and salmon fisheries.(10)

The treaties and other instruments that constitute the international regimes for conserving living resources, by and large, emphasize cooperation among states, and more recently international organizations,(11) 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 communities, including traditional and/or long-term occupant communities, 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 described as First Nations or Native Americans, as well as aboriginal, indigenous, and tribal populations, peoples, or communities. However, the term "long-term occupant communities" also embraces socio-cultural groups that may not fall easily under existing definitions of "indigenous" or "tribal" peoples, but which 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.(12)

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"(13) peoples because of the relevance of these texts to the overall evolution of international law concerning the link between long-term occupants and conservation. The issue of sustainable 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 effectively with the socio-political and economic prerogatives of indigenous 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.(14) Increasingly, non-state actors or non-state personalities are important and effective participants in the international system. These non-state international actors include not only international organizations, some of which have now been accorded many of the rights and privileges of states under international law,(15) but also individuals, non-governmental organizations, indigenous peoples, and other local communities, as well as transnational business enterprises and other groups interested in or advocating on behalf of various issues and constituencies. This reality was acknowledged in Agenda 21,(16) which recognized that the achievement of sustainable development requires the participation of a spectrum of players.(17) That text identified nine major categories of non-state actors, including indigenous peoples and "farmers," as fundamental in this process.(18) As a "soft law"(19) document, Agenda 21 is not legally enforceable. However, it is a leading instrument suggesting the progressive development of international law through its promotion of legal frameworks for securing the interests of local communities in conserving biodiversity.

1. The Classical Statist Approach

   An early proponent of the "classical" statist view was the 18th century Swiss legal theorist Vattel,(20) who espoused the idea of a separate body of law concerned exclusively with nation-states and who averred that states are the legitimate "subjects" of international law. Out of this approach developed the notion that all other socio-political groupings are merely considered "objects" of international law. Because states are the only players in this paradigm, only states can create and employ international law. According to this view, although a state may have obligations to its own citizens and those of neighboring states that its activities may harm, arguably it does not formally owe any duty to international society as a whole, including non-state participants.(21)

   This "classical" view of international law continues to be reflected in the writings of important contemporary publicists.(22) It remains deeply embedded within the dominant political and economic attitudes of those who head nation-states and in international legal structures and institutions.(23) It is premised on ideas regarding the "sovereign equality of states," a duty of non-intervention on the part of states in the internal affairs of other states, and state consent to international obligations.(24) It effectively excludes the direct and official participation of other types of actors(25) who have expertise and concerns that can help make the international system more broad-based, democratic, fair, and responsive to concerns arising outside of the official Purview of nation-states and national governments.

   Since the end of the Second World War, international organizations--namely, the organs of the United Nations system-and regional political and economic entities such as the Organization of American States ("OAS"), the European Communities (now "European Union"), and military/security bodies such as the North Atlantic Treaty Organization ("NATO") have emerged as supra-national personalities. International organizations, particularly the multilateral development institutions, as well as transnational commercial enterprises, religious movements, and nongovernmental organizations ("NGOs"), play a major role in shaping international society and the attitude and behavior of states.(26) For example, much global economic activity and many resulting environmental and human rights controversies involve transnational commercial enterprises, both legal and illegal, which have a major impact on global stability and security.

2. Deficiencies in the Classical Approach and Challenges to its Continuation

   Prevailing notions concerning the purpose and operation of international law appear ill-suited to finding adequate solutions for the myriad problems that are transnational in scope.(27) Among these are global warming, ozone depletion, over-fishing, deforestation, marine...