It is often stated that attention to and action on indigenous peoples' rights in connection with the CBD is barred by state sovereignty. This assertion is incorrect. Because all states-parties to the CBD have ratified one or more human rights treaties and are bound by customary international law, they are legally obliged to recognise indigenous peoples' rights, including rights to land and resources. A new legal briefing explains why.
The legal briefing 'The CBD: State Sovereignty and Indigenous
Peoples' Rights' has been prepared by the Forest Peoples Programme and endorsed by 14 IPOs and NGOs. It is one of a series of legal briefings available from www.fern.org and www.forestpeoples.org.
The brief explains that the CBD's Conference of Parties (COP), its subsidiary bodies and the states-parties must reflect a legally correct understanding of sovereignty. In light of contemporary international law, state sovereignty does not and cannot preclude attention to and respect for indigenous peoples' rights. On the contrary, the principle of sovereignty over natural resources in international law 'includes the duty to respect the rights and interests of indigenous peoples and not to compromise the rights of future generations' (Schrijver 1997).
Sovereignty is not Absolute
Sovereignty is a principle of international law that in essence provides that a state may - subject to any limitations prescribed by international law - freely determine and apply laws and policies governing the people and territory under its jurisdiction. State sovereignty is limited by the UN Charter and by other principles of international law, such as human rights treaties. Therefore, state sovereignty does not amount to absolute political or legal freedom.
The UN Charter does prohibit interference in states' internal political affairs. However, it is accepted legal practice within the UN that this provision does not apply to human rights, which are deemed of international concern and are therefore not solely within the internal sovereign sphere of states. The UN adopted the Universal Declaration of Human Rights to elaborate upon and specify the Charter's human rights provisions and obligations.
The UN Charter and its Relation to the CBD
The CBD was adopted under the auspices of the UN, and has been ratified by member-states of the UN. Article 103 of the UN Charter states unequivocally: 'In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international instrument, their obligations under the present Charter shall prevail'. The CBD must be read consistently with the superior authority of the UN Charter and the Universal Declaration of Human Rights as an authoritative interpretation of the UN Charter.
Indigenous Peoples' Rights
There are a number of legally binding UN instruments including the Conventions on the Rights of the Child and on the Elimination of All Forms of Racial Discrimination which also recognise and protect indigenous peoples' rights. The majority of states-parties to the CBD have ratified these conventions. The CBD's COP must therefore respect indigenous peoples' rights, as must the vast majority of its states-parties when giving effect to the Convention at the domestic level.
Implementation of many of the CBD's provisions may impinge upon indigenous peoples' relationship with their lands and resources. This is especially the case for those dealing with identification, establishment and management of protected areas. States-parties need to recognise that indigenous peoples' rights to participate in and consent to activities that affect them are well established in international human rights law.
Reference:
Schrijver, N (1997) Sovereignty over Natural Resources: Balancing Rights and Duties. Cambridge University Press
|
