Jump to ContentJump to Main Navigation
Natural Resources and Human RightsAn Appraisal$

Jérémie Gilbert

Print publication date: 2018

Print ISBN-13: 9780198795667

Published to Oxford Scholarship Online: November 2018

DOI: 10.1093/oso/9780198795667.001.0001

Show Summary Details
Page of

PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2020. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 07 August 2020

Cultural Rights and Natural Resources

Cultural Rights and Natural Resources

Cultural Heritage, Traditional Knowledge, and Spirituality

Chapter:
(p.118) 5 Cultural Rights and Natural Resources
Source:
Natural Resources and Human Rights
Author(s):

Jérémie Gilbert

Publisher:
Oxford University Press
DOI:10.1093/oso/9780198795667.003.0006

Abstract and Keywords

This chapter examines the connections between cultural practices, cultural rights, and natural resources, and focuses on three different approaches. The first examines the human rights discourse on cultural diversity and how international human rights law has developed a link between the rights of minorities’ and indigenous peoples’ cultural practices and natural resources. The second focuses on cultural heritage and explores how the legal framework of cultural heritage is relevant to protecting certain traditional cultural practices and knowledge connected to the use of natural resources. The third concerns the connection between spirituality, religion, and natural resources, and examines how the human rights protection of religious practices and spirituality could be linked to a spiritual connection to natural resources.

Keywords:   cultural rights, cultural heritage, religion, spirituality, intellectual property rights, cultural diversity

For the indigenous communities, the relationship with the land is not merely a question of possession and production, but rather a material and spiritual element that they should be able to enjoy fully, including to preserve their cultural legacy and transmit it to the future generations.

Case of the Mayagna (Sumo) Awas Tingni Community v Nicaragua, Merits, Reparations and Costs, Judgment, Series C No. 79 (2001), para. 149

1. Introduction

Social and artistic expressions, behaviour patterns, arts, and beliefs that are characteristic of a community or population, and the customary beliefs, social forms, and material traits of a racial, religious, or social group, all fall under the umbrella of ‘culture’.1 The UNESCO Universal Declaration on Cultural Diversity defines culture as a ‘set of distinctive spiritual, material, intellectual and emotional features of a society or a social group, [which] encompasses, in addition to art and literature, lifestyles, ways of living together, value systems, traditions and beliefs’.2 These elements are all relevant to the connection between peoples and natural resources, which not only have a market value, but also important cultural values for many, especially rural communities. Additionally, culture encompasses traditional practices related to use of natural resources, including food production, e.g. rotational farming, pastoralism, artisanal fisheries, hunting.

(p.119) This chapter focuses on the connections between cultural practices and natural resources and explores the correlation between them. Cultural rights represent an important element of international human rights law (IHRL), and several international and regional human rights treaties promote cultural rights.3 These rights include the right to take part in cultural life, the right to enjoy one’s own culture, the right to enjoy the benefits of scientific progress, the right to education, and the right of authors and inventors to the protection of their moral and material interests.4 These different approaches to cultural rights all are relevant to natural resources. This chapter is not restricted to discussing international human rights treaties, per se, but also examines some of the relevant aspects of international law on cultural heritage. It includes instruments developed under the auspices of the United Nations Educational, Scientific and Cultural Organization (UNESCO) and the World Intellectual Property Organization (WIPO). Indeed, cultural rights over natural resources includes cultural heritage, biocultural heritage, protection of traditional knowledge, and intellectual property rights (IPR), all of which overlap with the work of these specialized international institutions. However, while the chapter engages with other relevant fields of international law, it focuses on the human rights-based approach to culture and natural resources.

It analyses the connection between cultural rights and natural resources using three different approaches. Firstly, via the human rights discourse on cultural diversity it examines how IHRL supports the rights of minorities and indigenous peoples to perpetuate cultural practices and manage natural resources. It also explores how the developing legal framework on the promotion of cultural diversity could have some potential beneficial impact on the perpetuation of specific cultural practices connected to these uses of natural resources. Secondly, it explores how the legal framework governing cultural heritage protects certain traditional cultural practices and traditional knowledge connected to the use of natural resources. Lastly, it discusses the connection between spirituality, religion, and natural resources to IHRL.

2. The Diversity Approach: Natural Resources as a Way of Life

In the context of a way of life of specific groups or communities, cultural rights refer to the anthropological meaning of culture, which includes any social activity or expression specific to a given population, including any customs or practices connected to natural resources. In terms of IHRL, this definition forms part of the treaties and (p.120) jurisprudence supporting the right to enjoy one’s own culture. Traditionally, IHRL was more concerned with culture in the sense of intellectual and artistic expressions, rather than in the sense of a way of life.5 However, this approach has been largely extended and developed to include cultural rights, resulting in a more developed legal doctrine that connects minority rights and cultural rights to the right to a specific way of life. This approach also unites minorities and indigenous peoples with the larger integration of a human rights-based approach to cultural diversity that includes recognizing the diversity of cultural practices over natural resources.

2.1 Minorities’ way of life: indigenous peoples and cultural survival

When the international architecture of IHRL was developed after the Second World War, the rights of minorities were meant to be one of its strong and specific components, along with the adoption of a specific treaty to protect minorities;6 however, this treaty never materialized.7 This does not mean that there is no protection for minority rights under international law, as several regional treaties and instruments have since been adopted and a strong jurisprudence has emerged to protect minority rights.8 It is within this legal framework protecting minority rights that a strong connection between cultural rights and natural resources has developed.

This approach appeared under a progressive interpretation of the minority rights provision in the International Covenant on Civil and Political Rights (ICCPR) where Article 27 of the ICCPR declares that:

[i]n those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.9

While nothing in this article mentions natural resources, the right of minorities to enjoy their own culture has been progressively interpreted as embracing specific usage of natural resources, especially for indigenous peoples. The connection (p.121) between cultural rights and indigenous peoples constitutes one of the strong features of the Human Rights Committee’s (HRC) interpretation of Article 27 of the ICCPR. In an often-quoted General Comment on Article 27, the HRC stated that:

[w]ith regard to the exercise of the cultural rights protected under article 27, the Committee observes that culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law.10

Since then, the connection between cultural rights and cultural practices connected to the use of natural resources has been at the heart of several concluding observations and decisions on individual communications of the HRC.11 There have been several individual complaints by indigenous peoples throughout the 1990s, and some of these decisions, e.g. Ominayak v Canada,12 Lansman v Finland,13 and Lovelace v Canada,14 have become key elements of the international jurisprudence and doctrines regarding the connection between cultural rights and a traditional way of life.15 All these recommendations and decisions highlight the fact that traditional cultural activities which form an essential element of indigenous peoples’ culture should be protected under the minority protection offered by Article 27 of the ICCPR.

The use of the terms ‘traditional activities’ and ‘traditional way of life’ have led to some controversies, notably concerning the definition of what constitutes a ‘traditional usage’ of natural resources. Some governments have raised the fact that some of the activities undertaken by indigenous peoples are no longer ‘traditional’ as they use modern technology, e.g. the use of skidoos and helicopters by Sami reindeer herders in Finland. In addressing such objection, the HRC noted ‘that the authors may have adapted their methods of reindeer herding over the years and practi[sing] it with the help of modern technology does not prevent them from invoking article 27 of the Covenant’.16 Likewise, in Apirana Mahuika et al., the HRC reaffirmed ‘that article 27 does not only protect traditional means of livelihood of minorities, but allows also for adaptation of those means to the modern way of life and ensuing technology’.17 Apirana Mahuika et al. debated the modern use of fishing nets (p.122) rather than traditional Maori fishing techniques, and in adopting this approach, the HRC highlighted that the notion of culture is not static, and while it does protect ‘traditional’ cultural practices, these practices may have evolved over the centuries. Importantly, by avoiding the danger of adopting a very rigid or ‘frozen’ approach to the meaning of cultural activities, the HRC has consistently stated that indigenous peoples who adapt their traditional cultural activities over the years with the help of modern technology are not prevented from invoking international covenant protections.18

This ‘non-frozen’ rights approach is also reflected in that adopted by the African Court on Human and Peoples’ Rights in its 2017 decision concerning the Ogiek community in Kenya (the Ogiek Case). The Ogiek Case raised the issue of ‘authenticity’ of cultural practices, with the court stressing ‘that stagnation or the existence of a static way of life is not a defining element of culture or cultural distinctiveness. It is natural that some aspects of indigenous populations’ culture such as a certain way of dressing or group symbols could change over time’.19 These decisions are important as they highlight the fact that IHRL does not adopt a rigid and frozen approach to cultural practices and ‘authenticity’, as this type of approach would make it irrelevant to most communities who have adapted their traditional cultural use of natural resources to modern living.20 Wolfe analyses the danger of ‘repressive authenticity’ in his study of Australian aboriginal people forced to prove their ‘authentic’ and ‘traditional’ ways of using natural resources in order to establish native title claims.21 According to (former) Australian Aboriginal and Torres Strait Islanders Social Justice Commissioner, ‘the right to enjoy a culture is not “frozen” at some point in time when culture was supposedly “pure” or “traditional”. The enjoyment of culture should not be falsely restricted as a result of anachronistic notions of the “authenticity” of the culture.’22

Another debate concerning this legal approach relates to defining whether activities that have an economical aspect could qualify as traditional cultural practices. Some States have argued that economic activities should not been regarded as traditional cultural activities, but rather as economic activities. For example, when the HRC examined Ivan Kitok regarding reindeer herding by a Sami community in Sweden, one of the arguments developed by the government was that reindeer herding was more an economic, rather than a purely cultural, activity. Here, the HRC noted that, while ‘the regulation of an economic activity is normally a matter for the State alone’, if ‘that activity is an essential element in the culture of an ethnic community, its application to an individual may fall under article 27 of the Covenant’.23 (p.123) The point of the HRC here is that ultimately, if for the concerned communities such an activity is part of their cultural way of life, then States should recognize it as such, even if such cultural activity has an economical element. This decision was later reaffirmed in other cases in which the HRC declared that economic activities might come within the realm of Article 27 if they constitute an essential element of the culture of an indigenous community, e.g. fishing, herding, hunting.24 However, to the contrary, the HRC has also rejected cultural claims, for example, J.G.A. Diergaardt (late Captain of the Rehoboth Baster Community) et al., concerning cattle herders in Namibia (the Rehoboth community), where it did not find a violation of Article 27. In its decision, it stated that although ‘the link of the Rehoboth community to the lands in question dates back some 125 years, it is not the result of a relationship that would have given rise to a distinct culture’.25 In their concurring opinion, HRC members Evatt and Quiroga further clarified that point, arguing that:

the authors have defined their culture almost solely in terms of the economic activity of grazing cattle. They cannot show that they enjoy a distinct culture which is intimately bound up with or dependent on the use of these particular lands, to which they moved a little over a century ago, or that the diminution of their access to the lands has undermined any such culture. Their claim is, essentially, an economic rather than a cultural claim and does not draw the protection of article 27.26

The distinction between cultural and economic activities has also been an issue examined by the Inter-American Court of Human Rights (IACtHR). In Saramaka People, the IACtHR analysed the impact of logging and mining activities undertaken on indigenous territory and to what extent these extractive activities affected the traditional use of natural resources essential to the cultural survival of the concerned community. The IACtHR declared that ‘the members of the Saramaka people have not traditionally used gold as part of their cultural identity or economic system. Despite possible individual exceptions, members of the Saramaka people do not identify themselves with gold nor have demonstrated a particular relationship with this natural resource.’27 More generally, it is difficult to demonstrate a cultural attachment to sub-soil resources, notably primary resources exploited by the mining industry.28

The IACtHR also declares that ‘another crucial factor to be considered is whether the restriction amounts to a denial of their traditions and customs in a way that endangers the very survival of the group and of its members’.29 The Court noted that ‘survival’ entails much more than physical survival. It also includes a people’s need to (p.124) ‘preserve, protect and guarantee the special relationship that [they] have with their territory’, so that ‘they may continue living their traditional way of life, and that their distinct cultural identity, social structure, economic system, customs, beliefs and traditions are respected, guaranteed and protected’.30 This does not mean that any restriction on access to natural resources is prohibited, but rather that these restrictions should not affect the ‘cultural survival’ of the concerned communities,31 and this notion of ‘cultural survival’ has been affirmed in several other rulings of the court.32 This approach is also consistent with Article 8 of UNDRIP, which provides that States shall effectively prevent and provide redress for ‘any action which has the aim or effect of depriving [indigenous peoples] of their integrity as distinct peoples, or of their cultural values or ethnic identities; [and] [a]ny action which has the aim or effect of dispossessing them of their lands, territories or resources’.

Overall, IHRL recognizes that the protection of cultural practices and traditional methods of using natural resources is essential to ensure the cultural survival of indigenous peoples. This link between cultural practices using natural resources and a specific ‘minority way of life’ falls under the umbrella of indigenous peoples’ rights, which also has been expanded to Afro-descendant communities in Latin America.33 For example, the IACtHR recognized this link in Moiwana Village and Saramaka People.34 It is still undecided as to whether this approach might extend to other minorities under the broader framework of cultural diversity.

2.2 Cultural diversity, natural resources, and identity

Traditional and cultural use of natural resources can constitute an important element of a particular group’s or community’s culture. Traditional ways of using natural resources constitute an important factor in maintaining nature’s biodiversity as well as humanity’s cultural diversity. Recently, international law has increasingly supported and promoted cultural diversity.35 The preamble of the 2001 UNESCO Universal Declaration on Cultural Diversity declares that ‘culture should be regarded as the set of distinctive spiritual, material, intellectual and emotional features of society or a social group [that] … encompasses, in addition to art and literature, lifestyles, ways (p.125) of living together, value systems, traditions and beliefs’.36 The 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions affirms that cultural diversity can be protected only if human rights are guaranteed, including the right to cultural expression (Art. 2.1).37 Prior to that, the 2003 Convention on the Safeguarding of Intangible Cultural Heritage included specific references to community participation, cultural practices, and knowledge, including oral traditions and expressions.38 Several UNESCO instruments have adopted a similar approach highlighting that cultural practices, traditions, and traditional knowledge should be protected and promoted to support cultural diversity.39

In terms of IHRL, references to cultural diversity’s connection to natural resources have appeared in the work of some of the international human rights treaty bodies.40 The whole approach of the HRC regarding cultural rights of minorities and their traditional practices related to the use of natural resources is based on the rationale of protecting specific minority ways of life.41 The HRC declares that the purpose of such protection is ‘enriching the fabric of society as a whole’.42 The echo of this notion appears in the decision of the African Commission on Human and Peoples’ Rights (ACHPR) in the Endorois Case against Kenya, where the Commission states that ‘Article 17 of the Charter is of a dual dimension in both its individual and collective nature, protecting, on the one hand, individuals’ participation in the cultural life of their community and, on the other hand, obliging the state to promote and protect traditional values recognised by a community’.43 It added that Article 17 requires governments to take measures ‘aimed at the conservation, development and diffusion of culture,’ such as promoting ‘cultural identity as a factor of mutual appreciation among individuals, groups, nations and regions; … [and] promoting awareness and enjoyment of cultural heritage of national ethnic groups and minorities and of indigenous sectors of the population’.44

Outside the field of indigenous peoples’ rights, the CESCR has highlighted the importance of natural resources in its General Comment on cultural rights. The CESCR acknowledged that access to cultural life covers the right of everyone (alone, in association with others, or as a community) to follow a way of life associated with (p.126) the use of cultural goods and resources, e.g. land, water, and biodiversity.45 It is noteworthy that the CESCR refers to ‘everyone’ and not only indigenous peoples or minorities. It also stated that the right includes the ‘availability of nature’s gifts, such as seas, lakes, rivers, mountains, forests, and nature reserves, including the flora and fauna found there, which give nations their character and biodiversity’.46 Again, the rights-holders are ‘everyone’ and not any particular group. In its approach, the CESCR confirms that these cultural connections to using natural resources help protect humanity’s cultural diversity.

One specific approach concerns the realization of the right to food; the CESCR noted that this right includes the protection of specific cultural forms of food production. In its General Comment on the right to food, the CESCR stressed that the core content of the right to adequate food implies ‘the availability of food in a quantity and quality sufficient to satisfy the dietary needs of individuals, free from adverse substances, and acceptable within a given culture’.47 Adequate food means that it is produced according to local cultural practices. The CESCR also noted that this includes cultural or consumer acceptability which ‘implies the need also to take into account, as far as possible, perceived non-nutrient-based values attached to food and food consumption and informed consumer concerns regarding the nature of accessible food supplies’.48 Similarly, in its General Comment on the right to water, the CESCR paid specific attention to the cultural values and traditions attached to water usage. It noted that water is essential to enjoying certain cultural practices and that ‘water should be treated as a social and cultural good’.49 It particularly noted that States should not arbitrarily interfere ‘with customary or traditional arrangements for water allocation’.50 Overall, whether related to access to water or to food production, the approach of the CESCR is based on supporting the diversity of cultural use of natural resources.

The importance of cultural diversity, and its expression via different uses of natural resources, is recognized in other international instruments. For example, the FAO guidelines on small-scale fisheries declares that:

States, in accordance with their legislation, should ensure that small-scale fishers, fish workers and their communities have secure, equitable, and socially and culturally appropriate tenure rights to fishery resources (marine and inland) and small-scale fishing areas and adjacent land, with a special attention paid to women with respect to tenure rights.51

At the regional level, the European Union Land Policy Guidelines state that:

(p.127)

[l]and constitutes an asset and a source of wealth for families and individuals as well as for communities, with strong links to cultural and spiritual values . … The interrelated social, institutional, and political factors involved in land make it an asset different from all others. Land is never just a commodity. It combines being a factor of production, with its role as family or community property, a capital asset and a source of identity.52

However, it is necessary to note that cultural practices connected to the use of natural resources are not necessarily beneficial, and could lead to violations of human rights, e.g. the prohibition of lower caste Dalits in India from using water wells used by higher castes. In many rural localities across India, access to water is still restricted for Dalits as their physical proximity or touch is meant to ‘defile’ the natural resource, thus becoming unfit for consumption by upper castes.53 In 2016, the Special Rapporteur on minorities undertook a specific report on the issue of caste and descendent-based discrimination, specifically noting the restriction on access to water. She noted that:

[i]n Bangladesh and India, Dalits are often systematically excluded from access to water and sanitation. Reports indicate that Dalits may be prohibited from fetching water; have to wait in different queues when accessing wells; and, in the event of water shortage, must give non-Dalits priority. Dalits may be subjected to large-scale violence and physical attacks by members of the dominant caste when attempting to access facilities in areas inhabited by them. Dalit women are particularly vulnerable to physical violence from members of the dominant castes while collecting water from public wells and taps.54

More generally, the Special Rapporteur on the human right to safe drinking water and sanitation highlighted the potential stigma associated with lower castes accessing water, as these lower-caste people are often restricted in their access to shared or common water and sanitation facilities.55 The CESCR General Comment on water declares that ‘[w]ater and water facilities and services must be accessible to all, including the most vulnerable or marginalized sections of the population, in law and in fact, without discrimination on any of the prohibited grounds’.56

Negative cultural practices connected to using natural resources may also result in discrimination against women and restricted women’s access and use of some natural resources.57 These violations have been addressed by international human (p.128) rights treaty bodies. In its General Recommendation No. 34, CEDAW recalls States’ obligations to take measures to ‘achieve substantive equality of rural women in relation to land and natural resources’, including communal lands, ensuring that customary systems do not discriminate against them. Legislation should also guarantee ‘women’s rights to land, water and other natural resources on an equal basis with men, irrespective of their civil and marital status’.58 In General Recommendation No. 21, CEDAW further recommends that States respect women’s equal rights in the context of agrarian reform or redistribution of land.59 Other potential clashes between certain communities’ cultural way of life and their use of natural resources could include environmental damages, e.g. traditional indigenous whale-hunting communities.60 All these potential clashes are not unusual in IHRL. The right of everyone to take part in cultural life is closely linked to the enjoyment of other rights recognized in international human rights instruments. For example, Article 4 of ICESCR gives States the possibility to limit the enjoyment of the rights in the Covenant. This limitation is on the condition that it is determined by law, that it is compatible with the nature of these rights, and that it is solely for the purpose of promoting the general welfare in a democratic society. The CESCR states that ‘applying limitations to the right of everyone to take part in cultural life may be necessary in certain circumstances, in particular in the case of negative practices, including those attributed to customs and traditions, that infringe upon other human rights’.61 The CESCR added that ‘a violation also occurs when a State party fails to take steps to combat practices harmful to the well-being of a person or group of persons … including [harmful practices] attributed to customs and traditions’.62 In general, IHRL strives to offer a flexible balance between the protection of communities’ cultural practices and respect for the fundamental rights of individual members of these communities. Allowing for any potential clashes and finding resolutions on a case-by-case basis provides enough flexibility for long-term social and cultural changes, rather than top-down approaches that could lead to further discord.63 Ultimately, allowing such flexibility is part of the recognition of cultural diversity.

(p.129) 3. The Cultural Heritage Approach: Traditional Knowledge and Natural Resources

There is no single and authoritative definition of what constitutes cultural heritage, but the international legal framework governing cultural heritage has evolved considerably in recent decades.64 Although distinctions are often made between tangible, intangible, and natural heritage, these three interconnected categories are all relevant to examining connections between cultural heritage, natural resources, and IHRL. For example, intangible cultural heritage includes traditional knowledge connected to ancestral methods of food production, such as swidden agricultural methods,65 or cultural knowledge about gathering natural resources. It also includes biocultural heritage, e.g. cultural use of seeds and plants. The overall international legal framework governing cultural heritage law is extremely complex and fragmented as it is composed of instruments and norms across different legal fields, including cultural heritage law, intellectual property law, and traditional knowledge and folklore heritage norms. All these different elements of what constitutes cultural heritage law are relevant to natural resources.66 Although IHRL is a latecomer to the field, cultural heritage is increasingly becoming an important element of IHRL.67 In terms of cultural heritage and natural resources, IHRL has engaged in two main ways with the other fields of international cultural heritage. First, it supports a better inclusion and recognition of indigenous peoples and local communities’ rights over their own cultural heritage sites, notably when these natural areas are classified as ‘humanity’s cultural heritage’. Secondly, it does so via the emergence of a human rights-based approach to the protection of traditional knowledge and practices connected to natural resources.

3.1 ‘World Heritage Sites’, natural resources, and human rights

The main global treaty on ‘world heritage’ is the 1972 Convention Concerning the Protection of the World Cultural and Natural Heritage.68 This convention addresses both cultural heritage (such as sacred sites, monuments, or buildings) and natural (p.130) heritage (such as biodiversity hotspots or outstanding geological formations).69 Its goal is to ensure the identification, protection, conservation, presentation, and transmission of cultural and natural heritage of ‘outstanding universal value’ future generations. However, this approach is still largely based on the difference between ‘cultural’ and ‘natural’ heritage, where the latter is defined as (more or less) ‘pristine’ natural sites that leave little space for interaction between humans and nature.70 For many indigenous peoples and local communities, this dichotomy does not correspond to their reality, where centuries of interaction between nature and cultural practices have shaped their cultural heritage.71 The UN Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) notes that, for indigenous peoples, cultural and natural values are inseparably interwoven and should be managed and protected in a holistic manner.72 The division between ‘natural’ and ‘cultural’ heritage does not integrate such a holistic approach to cultural heritage. UNESCO and related cultural heritage agencies have tried to build a bridge between ‘culture’ and ‘nature’ to address this dichotomy; it is possible for sites to be listed as ‘mixed sites’ if they fulfil both natural and cultural criteria for inscription on the World Heritage List. Moreover, in 1992, the category of ‘cultural landscape’ was added to include places where manifestations of the interaction between people and their natural environment are considered of outstanding universal value.73 However, despite these efforts, the gap still exists between what is seen as ‘cultural’ and ‘natural’ heritage when it comes to the classification and nomination of heritage sites. Disko’s in-depth analysis on the issue shows that the approach to declaring World Heritage Sites is still dominated by a distinction between cultural and natural criteria.74 This results in a divorce between indigenous peoples’ and local communities’ holistic perception of cultural and natural elements, with the international legal approach favouring ‘culture’ and ‘nature’ as two distinct entities.

The other significant issue in terms of human rights relates to the nomination process of sites of ‘outstanding universal value’. There is often a serious lack of (p.131) regulation to ensure the meaningful participation from the most concerned communities living on sites nominated to become World Heritage Sites.75 The process is usually dominated by governments, heritage experts, and bureaucrats, with a lack of integration of other less ‘expert’ opinions of heritage sites, notably those of indigenous peoples and local communities. The nomination of a World Heritage Site as a place of ‘outstanding universal value’ takes place via a process that often leaves no room for the concerned local communities. Sites are nominated by States, although the World Heritage Committee has the final say on whether a site is inscribed on the World Heritage List. As Lixinski suggests, very little place is made for communities’ involvement in protecting heritage, and in determining what their heritage actually is, as under the dominant legal system, peoples and local communities ‘are assumed to be fairly represented by States in the Convention’s processes’.76

This is representative of the overarching legal process for nomination, management, and control of World Heritage Sites.77 As Disko suggests, while the World Heritage Committee ‘has over the years increasingly recognized the importance of involving local communities in the protection of World Heritage Sites, and included several references to local communities (and more recently also to indigenous peoples) in the Operational Guidelines, their involvement continues to be largely seen as a means to an end, rather than an end in itself’.78 Aside from the problematic issue of lack of participation in itself, the disregard for local communities negatively effects their rights to access to their own cultural heritage. In many situations, classification as a World Heritage Site has meant a loss of control over these natural resources and restrictions on traditional uses of them.79 It is this lack of participation, loss of access rights, and disregard for indigenous peoples’ rights over their land and natural resources that has led IHRL to engage more directly with the process governing World Heritage Sites.

Traditionally, IHRL has not engaged with the specific process established by UNESCO, but recent human rights violations have changed this dynamic.80 For example, listing Kenya’s Great Rift Valley Lake System on the World Heritage List in 2011 led to clashes between cultural heritage law and human rights. The listing of Lake (p.132) Bogoria National Reserve as part of this process occurred without the involvement of the indigenous Endorois community upon whose ancestral land the reserve is located. Lake Bogoria has been at the centre of an ongoing dispute between the Endorois community and the public authorities for decades, leading to a 2010 decision by the ACHPR supporting indigenous peoples’ rights.81 Consequently, in 2011, the ACHPR took the unusual decision of adopting a specific resolution condemning the inscription of Lake Bogoria National Reserve in Kenya on the World Heritage List,82 noting its concern that the classification of the reserve had occurred in violation of the human rights of the Endorois community. Outside the specific case of Lake Bogoria, the ACHPR also chose to highlight a general lack of integration of, and respect for, the human rights of indigenous peoples concerning the inscription of ancestral territories on the World Heritage list. The resolution notes ‘with concern that there are numerous World Heritage Sites in Africa that have been inscribed without the free, prior and informed consent of the indigenous peoples in whose territories they are located and whose management frameworks are not consistent with the principles of the UN Declaration on the Rights of Indigenous Peoples.’ The fact that the ACHPR chose to highlight the issue through the adoption of such a resolution is indicative of a common lack of respect for the rights of indigenous peoples in the implementation of the World Heritage Convention. The resolution is also an indication of the general lack of integration of and understanding on the rights of indigenous peoples in the context of World Heritage.

Because of this, the UN specialized human rights institutions working to support the rights of indigenous peoples have called for reforms in the way the World Heritage Convention and its related processes ignore the rights of indigenous peoples.83 In its General Comment on Cultural Rights, the CESCR highlighted that States should ‘allow and encourage the participation of persons belonging to minority groups, indigenous peoples or to other communities in the design and implementation of laws and policies that affect them. In particular, States parties should obtain their free and informed prior consent when the preservation of their cultural resources, especially those associated with their way of life and cultural expression, are at risk.’84 More generally, international human rights monitoring bodies have called for better inclusion and respect of indigenous peoples’ rights in the process of designing and managing World Heritage Sites.85 From this perspective, IHRL has clearly started to engage more systematically with the process governing World Heritage Sites. Lixinski notes that this gives a more ‘human’ dimension to cultural heritage law, (p.133) but that it should also be taken with a ‘pinch of salt’, as ultimately the process is still very much dominated by States, international organizations, and heritage experts.86

3.2 Intangible heritage, traditional knowledge, and human rights

There is a direct correlation between intangible heritage and natural resources. According to the 2003 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage, intangible cultural heritage refers to ‘practices, representations, expressions, knowledge, skills, … that communities, groups and, in some cases, individuals recognize as part of their cultural heritage’.87 This includes ‘knowledge and practices concerning nature and the universe’, including traditional knowledge which emerged from the interaction between communities and groups with their natural environment.88 The term ‘traditional knowledge’ refers to a living body of knowledge that is developed, sustained, and passed on through generations within a community, often forming part of its cultural and spiritual identity.89 Traditional knowledge also includes cultural practices on the use of natural resources, for example, agricultural knowledge or knowledge associated with genetic resources. The international legal protection of traditional knowledge is emerging from several legal fields, including cultural heritage,90 protection of biodiversity,91 desertification,92 food and agriculture,93 health,94 and sustainable development.95 Once again, IHRL is a latecomer, and has arguably been influenced by the developments taking place under other legal frameworks.96

(p.134) Probably one of the most significant international legal frameworks concerning traditional knowledge and natural resources emerges from the Convention on Biological Diversity (CBD), which specifically acknowledges traditional knowledge and practices of indigenous peoples and local communities.97 Its emphasis is on the obligations to ‘protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements’.98 In this context, traditional knowledge is protected insofar as it is relevant to the conservation of biological diversity.99 It is important to note that the impact of the CBD on traditional knowledge goes beyond the objectives of conservation and biological diversity. A significant element of the process put in place relates to the direct participation, control, and management of traditional knowledge by the most concerned communities. The 2010 Nagoya Protocol, which was adopted to complement the CBD, includes several provisions supporting the rights of indigenous peoples and local communities over their traditional knowledge.100 Drawing on the UNDRIP and IHRL, the protocol calls for the respect of the prior and informed consent of indigenous and local communities before any outside use of traditional knowledge associated with genetic resources.101 It includes a number of defences against outsiders accessing indigenous and local communities’ traditional knowledge and the obligation for ‘not restricting the customary use of genetic resources and associated traditional knowledge within and among indigenous communities.’102

Conversely, IHRL has increasingly been integrating recognition of traditional knowledge as an important element of indigenous peoples’ rights.103 Article 31 of UNDRIP proclaims that:

Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, (p.135) seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts.104

Article 31 has been instrumental in supporting the rise of a more developed human rights-based approach to the recognition of indigenous peoples’ traditional knowledge over their natural resources.105 Significantly, this language has been directly integrated in the General Comment adopted by the CESCR on the right of everyone to take part in cultural life, which states that:

Indigenous peoples have the right to act collectively to ensure respect for their right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literature, designs, sports and traditional games, and visual and performing arts.106

The reference to genetic resources, seeds, knowledge of the properties of fauna and flora is particularly noteworthy. This approach is not only limited to norms and declarations, but is also integrated in the case law and jurisprudence.107 In several of its cases on indigenous peoples’ rights, the IACtHR has highlighted how traditional knowledge over natural resources forms an essential element of indigenous peoples’ right to cultural identity. For example, in Yakye Axa Indigenous Community, the IACtHR acknowledged the importance of traditional knowledge over natural resources, noting that ‘[b]ased on their environment, their integration with nature and their history, the members of indigenous communities transmit this non-material cultural heritage from one generation to the next, and it is constantly recreated by the members of the indigenous groups and communities’.108

In Sarayaku, the IACtHR considered that the failure to consult indigenous peoples before undertaking development on their lands ‘affected their cultural identity, since there is no doubt that the intervention in and destruction of their cultural heritage entailed a significant lack of respect for their social and cultural identity, their customs, traditions, worldview and way of life, which naturally caused great concern, sadness and suffering among them’.109 A similar approach was adopted in the decisions of the African Commission and the ACHPR highlighting the connection between traditional knowledge and natural resources.110 Overall, there is now (p.136) a substantial body of IHRL supporting the protection of indigenous peoples’ traditional knowledge over their natural resources.111

The other relevant field of international law is the specialized legal framework governing food production, food security, and agriculture developed under the leadership of the Food and Agricultural Organization (FAO). Of particular relevance is the Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), which calls for the protection of farmers’ traditional knowledge relevant to plant genetic resources for food and agriculture.112 While the treaty is principally concerned with ensuring food security through the conservation, exchange, and sustainable use of genetic resources, it puts forward the importance of the rights of small-scale farmers. It highlights ‘the enormous contribution that the local and indigenous communities and farmers of all regions of the world, particularly those in the centres of origin and crop diversity, have made and will continue to make for the conservation and development of plant genetic resources which constitute the basis for food and agriculture production throughout the world’.113 It calls on governments to protect the traditional knowledge relevant to plant genetic resources for food and agriculture. This treaty was one of the first international legal instruments to formally put forward the rights of farmers to their traditional knowledge, but since then, IHRL has slowly started to address the issue as well. International human rights institutions are increasingly mentioning the rights of small-scale farmers and peoples working in rural environments over their traditional knowledge. For example, in 2017 the HRC adopted a resolution highlighting the importance of traditional sustainable agricultural practices, e.g. traditional seed supply systems, for many smallholder and subsistence farmers.114 The current negotiations for the eventual adoption of the UN Declaration on the Rights of Peasants and other people working in rural areas include many direct references to traditional knowledge over natural resources.115 The draft text puts forward the right to seeds and traditional agricultural knowledge and practice, as well as the right to the protection of local agricultural values.116 This is part of a larger movement of peasants and rural peasants’ organizations increasingly pushing IHRL to recognize their rights over their traditional agricultural knowledge, including a specific right over their traditional seeds.117

Finally, the field of IPR is slowly beginning to focus on traditional knowledge, specifically on protecting traditional knowledge holders against third-party abuse. (p.137) However, the international legal framework governing IPR tends to focus quite heavily on elite forms of knowledge to capture the complexity of local communities’ traditional knowledge. As traditional knowledge over natural resources has ancient roots and is often oral, it is usually not well protected by conventional intellectual property systems. Gibson notes that ‘the symbiotic relationship between community and its resources, inextricable from knowledge and expression emanating from that community, is not readily compatible with intellectual property models which induce an objectification of knowledge in ways inconsistent with traditional knowledge development and dissemination’.118 However, innovations based on traditional knowledge may benefit from patent, trademark, and geographical indication protection, or be protected as a trade secret or confidential information. In 2000, the WIPO established an Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), to serve as a forum to discuss the intellectual property issues that arise in the context of access to genetic resources (GR).119 The issue of protecting traditional knowledge over natural resources forms an important element of the negotiations to develop international instruments for the protection of traditional knowledge, traditional cultural expressions, and genetic resources.120 Furthermore, these discussions on IPR are also touching on another field of the law regarding bio-piracy and trade patents on use of plants and seeds. However, the dominant regime remains extremely top-down and heavily focused on market-orientated patents. Dodson notes that ‘Western constructs of intellectual property focus on individual knowledge and creativity, rather than communal trans-generational knowledge’.121 Nevertheless, it is clearly an area where IHRL can have a beneficial impact to expand the protection of IPR to local communities’ traditional knowledge over natural resources. In terms of IHRL, there is an increasing significant focus on these issues.122 Probably one of the most significant encounters between the two fields concerns the rights of indigenous peoples, and there has been some impact of the UNDRIP in the current negotiations to improve the system of patents.123 There is nonetheless still a long way for IHRL to fully develop in order to protect traditional small-scale farmers and local communities’ (p.138) IPR over their seeds and plants as the rights and views of the large agribusiness corporations are still largely dominant.124

4. The Spiritual Approach: Sacred Sites, Sacred Practices, and Natural Resources

For many local, rural, and indigenous communities, natural resources constitute an important part of their belief systems and cosmology. Berkes discusses how sacred, spiritual, and cosmological knowledge and connection with natural resources constitute an important element of traditional ecological knowledge.125 Ecological knowledge also includes sacred knowledge of plants, prayers, chants, and performances connected to certain natural resources, as well as of sacred species of plants, animals, microorganisms, and minerals.126 This cultural knowledge can also include spiritual aspects of healing practices connected with use of certain plants. IHRL is increasingly recognizing these sacred, spiritual, and cosmological connections to natural resources. The closest reference to ‘spirituality’ in human rights treaties comes under the right to freedom of thought, conscience, religion, or belief. Even if the right to freedom of religion has been controversial and often underdeveloped,127 it potentially offers an avenue to recognize spiritual ties to natural resources. One of the first breakthroughs connecting freedom of religion, or belief, and natural resources came via indigenous peoples who have convinced legal institutions to recognize the importance of ‘sacred natural sites’ as part of their right to freedom of religion. The second significant advance concerns the recognition of specific sacred practices as forms of spiritual expression that are protected under cultural and property rights.

4.1 Freedom of religion, sacred natural sites, and spirituality

The notion of ‘sacred sites’ refers to areas that symbolize or pertain to religious and spiritual beliefs, practices, or customs. Sacred natural sites includes ‘areas of land or water having special spiritual significance to peoples and communities’.128 For many communities across the globe sacred natural sites include mountains, rivers, forests, and other natural resources that are at the genesis of their spirituality.129 (p.139) Many indigenous peoples’ representatives have highlighted that the spiritual life of indigenous peoples is ‘different from that of monotheistic faiths in that they are “geosophical” or earth-centred, rather than “theosophical” or god-centred’.130 Graber notes that, for many indigenous peoples, these traditional forms of cultural expressions ‘fulfil indicative and liturgical functions and are closely related to landscape, ancestors and custom’,131

These connections between natural sites and religion are not included as such in international human rights treaties. However, in its General Comment on the Right to Freedom of Thought, Conscience and Religion, the HRC advocates for a wide understanding of religion, including the right to hold ‘theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief.’132 The HRC also highlights that the terms ‘belief’ and ‘religion’ are to be broadly construed and should not be limited to traditional religions or to religions and beliefs with institutional characteristics.133 Regarding religious practices, the HRC noted that ‘[t]he freedom to manifest religion or belief in worship, observance, practice and teaching encompasses a broad range of acts’. Hence, while there is no direct mention of ‘sacred sites’ or ‘sacred practices’ connected to natural resources, the approach is opened to all forms of spirituality. Bielefeldt suggests that freedom of religion or belief ‘recognizes all human beings in their deep convictions and conviction-based practices, instead of privileging the homo religiosus in any narrow sense …’.134

The connection between freedom of religion, or belief, and natural sites has emerged under the rights of indigenous peoples. This has taken place at two levels: normative and jurisprudential. In terms of the normative development, Article 25 of the UNDRIP declares that:

Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.135

Likewise, the ILO Convention No. 169 affirms that, in applying the Convention, ‘governments shall respect the special importance for the cultures and spiritual values of the peoples concerned of their relationship with the lands or territories, or both as applicable, which they occupy or otherwise use, and in particular the (p.140) collective aspects of this relationship’.136 This approach has also been integrated in the interpretation of the mainstream human rights treaties. In its General Comment No. 21, the CESCR especially emphasized that State parties must ‘respect the rights of indigenous peoples to their culture and heritage and to maintain and strengthen their spiritual relationship with their ancestral lands and other natural resources traditionally owned, occupied or used by them, and indispensable to their cultural life’.137 The HRC has also made references to the connection between indigenous peoples’ rights and spirituality over natural sites. For example, in its Concluding Observations on Australia in 2000, the HRC expressed ‘its concern that securing continuation and sustainability of traditional forms of economy of indigenous minorities (hunting, fishing and gathering), and protection of sites of religious or cultural significance for such minorities, which must be protected under Article 27, are not always a major factor in determining land use’.138

At the regional level, the connection between freedom of religion, natural resources, and sacred sites has been examined in detail by the African human rights system. In its Article 8, the ACHPR guarantees the right to practise religion. This article was invoked when the Endorois community of Kenya lost access to their ancestral territory—an area including Lake Bogoria, which was used for tourism and wildlife protection. In their claim, the Endorois declared that access to Lake Bogoria was of fundamental religious significance since religious ceremonies are regularly held there, including an annual religious ritual that occurs when the lake undergoes seasonal changes.139 For the African Commission, the issue was to determine whether the Endorois’ spiritual beliefs about the lake constituted religion under the African Charter and international law. After having examined all the arguments put forward by the community relating to their spiritual connection to the lake, the Commission endorsed their claim, recognizing that ‘the Endorois spiritual beliefs and ceremonial practices constitute a religion under the African Charter’.140 In its 2010 decision, the African Commission concluded that the government had violated Article 8 in interfering with the Endorois’ right to religious freedom and removed them from the sacred grounds essential to the practice of their religion. In terms of the legal argumentation, this claim put forward a direct violation of the right to practice religion in connection to access to a natural site, hence opening a new legal avenue between the human rights to freedom of religion and natural resources.

In 2017, a similar issue was brought to the ACHPR in the Ogiek Case, in which the traditionally hunter-gatherer community had put forward the argument that (p.141) their forced eviction from their ancestral forests constituted a violation of the right to practise their religion. The Ogiek people highlighted that they could not access significant sacred places in the Mau Forest, such as caves, hills, and specific trees which were of importance to their spiritual beliefs. Adopting a similar line of reasoning connecting Article 8 on Freedom to Practice Religion and Natural Sites, the ACHPR noted that ‘in the context of traditional societies, where formal religious institutions often do not exist, the practice and profession of religion are usually inextricably linked with land and the environment. In indigenous societies in particular, the freedom to worship and to engage in religious ceremonies depends on access to land and the natural environment.’141 This jurisprudence emerging from the African system of human rights establishes a direct connection between the right to practise a religion and access to traditional sacred sites allowing the exercise of traditional practices connected to natural resources. Adding to this approach, the African Commission adopted a specific resolution on the issue of sacred natural sites in 2017 in its ‘Resolution on the Protection of Sacred Natural Sites and Territories’. Here, the African Commission made direct connection between human rights and States’ obligations to protect and respect natural sacred sites and called on ‘States Parties to recognise sacred natural sites and territories, and their customary governance systems, as contributing to the protection of human and peoples’ rights’.142 Overall, the African human rights system has clearly engaged in the recognition of sacred natural sites and practices connected to the natural resources as a form of spirituality covered by the right to freedom of religion. However, until now, other regional systems have not yet embraced such an approach and have instead focused on other human rights, e.g. property and cultural rights.143

4.2 Sacred practices and indigenous peoples’ ‘cosmovision’

This section focuses on the protection of spiritual connections under cultural and property rights, rather than freedom of religion. The Inter-American system of human rights, both Commission and Court, have recognized the right of indigenous peoples to their spiritual connection to natural sites and natural resources, but mainly under their rights to property and culture. In Case of the Mayagna (Sumo) Awas Tingni Community, the IACtHR declared that:

the close relationship that the communities have with the land must be recognised and understood as a foundation for their cultures, spiritual life, cultural integrity and economic survival. For indigenous communities, the relationship with the land is not merely one of possession and production, but also a material and spiritual element that they should fully (p.142) enjoy, as well as a means through which to preserve their cultural heritage and pass it on to future generations.144

This approach has been reaffirmed in many of the cases examined by the IACtHR, and highlights the importance of spiritual ties to a territory as an important element of the right to property.145 This approach has been grounded into Article 21 of the American Convention protecting property rights rather than freedom of religion. This is part of a larger jurisprudence on the collective and cultural rights of indigenous peoples over their land and territories, rather than a sole focus on the right to freedom religion. For example, in Case of Yakye Axa Indigenous Community, the IACtHR declared that ‘the culture of the members of the indigenous communities directly relates to a specific way of being, seeing, and acting in the world, developed on the basis of their close relationship with their traditional territories and the resources therein, not only because they are their main means of subsistence, but also because they are part of their worldview, their religiosity, and therefore, of their cultural identity’.146 In Case of the Kichwa Indigenous People of Sarayaku, the IACtHR also acknowledged the importance that sites of symbolic value have for the cultural identity of the community. It noted that ‘for the Sarayaku, the destruction of sacred trees, such as the Lispungu tree, by the company entailed a violation of their worldview and cultural beliefs’.147 In many of its decisions, the IACtHR referred to the concept of ‘cosmovision’ as a way of capturing the connection between natural sites, natural resources, and indigenous peoples’ spirituality, declaring that such ‘cosmovision’ should be protected as part of indigenous peoples’ property rights over their land and natural resources.148 For example, in Rio Negro Massacres, the Court emphasized that connection to natural sites and natural resources is an ‘integral part of their cosmovision, religious beliefs and, consequently, their cultural identity or integrity, which is a fundamental and collective right of the indigenous communities that must be respected’.149

This link between sacred sites, sacred practices, and natural sites is also recognized under the right to access ancestral burial grounds. The HRC has examined this link in its individual opinion in Francis Hopu and Tepoaitu Bessert, regarding two Polynesians’ rights over traditionally important spiritual land where the authorities had authorized building of a hotel.150 The contested land contained a traditional burial ground and a fishing lagoon, and the HRC concluded that the construction (p.143) of a hotel on the traditional Polynesian burial grounds interfered with the right to privacy and family life, which was neither reasonable nor justified. The HRC highlighted that relationship to their ancestors was an essential element of their identity and played an important role in their family life.151 A similar approach can also be found in the approach of the Inter-American Commission associating family life with access to ancestral burial grounds. In Maya Indigenous Communities of the Toledo District, the IACHR highlighted that ‘the concept of family and religion within the context of indigenous communities, including the Maya people, is intimately connected with their traditional land, where ancestral burial grounds, places of religious significance and kinship patterns are linked with the occupation and use of their physical territories’.152 The connection between property rights, burial ceremonies, and burial grounds was also at the heart of the decision from the IACtHR in Case of the Moiwana Community.153 The IACtHR declared that the lack of access to their traditional territories did not allow ‘the community to appease the angry spirits of their deceased family members and purify their traditional land’.154

Despite these evolutions in the international jurisprudence, many indigenous peoples still face challenging legal frameworks at the national level. There have been many cases where indigenous peoples’ spiritual connection to land and natural resources have been ignored or rejected as not constituting ‘proper’ religious practices. An infamous example includes the US Supreme Court in Lyng v Northwest Indian Cemetery Protective Association, which refused to recognize the specific religious relationship between the indigenous community and their land and natural resources.155 In this case a road was being built on public land that had specific religious significance for the plaintiffs who argued that the road would destroy the tranquillity necessary for the religion that had been practised on the land for generations.156 As pointed out by Kingsbury, in this case the judge did not take into consideration such historical and cultural issues and decided that the Indian had the same religious right as any other citizen that would not extend to controlling the use of public lands.157

Other challenging issues for indigenous peoples concern the complexity of having to divulge sacred spiritual connections to the outside world, despite (p.144) traditional prohibition of such divulgation. An example of such a situation concerns the Kumargank, or Hindmarsh Island, dispute in South Australia.158 In this case, an Aboriginal community was forced to reveal a secret practice to challenge the building of a bridge over their traditional territory.159 This case is often referred to as the ‘Ngarrindjeri women’s secret business,’ as the concerned practices connected to this specific land were sacred to Aboriginal women, and such business was not to be divulged outside women’s circles.160 However, to get protection of their cultural attachment to their land, the community had to reveal ‘the secret women’s business’ in front of a public commission.161 In the end, the project went ahead and the bridge was built, as the Aboriginal women’s business was regarded as being ‘fabricated’.162

Another significant issue concerns the exploitation of some of the traditional spiritual practices for trade or tourism. Many communities have seen their spiritual and sacred connection with natural resources used for commercial purposes, in tourism, by cultural industries, in the mass media, or as part of showcasing national culture, without proper authorization or shared benefits. This link between spiritual connection to land and natural resources and artistic and spiritual expression of this connection has been extensively documented in the context of Aboriginal art in Australia.163 As Graber notes, in such a context, human rights could play a substantial role in pushing for a better recognition of the spiritual, cultural, and sacred values of indigenous peoples’ connection to natural resources, notably to challenge the fragmentation of international law on the issue of copyrights.164 However, there is still a lot of progress to be made as IHRL is still only starting to engage in these issues.

(p.145) 5. Conclusion

This chapter has discussed the connection between cultural rights and natural resources that is taking place under three main different but complementary approaches. The first relates to the protection of cultural diversity and notably the rights of minorities. Under this approach, the most developed jurisprudence concerns the rights of indigenous peoples to practise their traditional way of life, including traditional use of natural resources. Despite being embedded within a minority rights framework, this approach applies to indigenous peoples to ensure their ‘cultural survival’. There are traces of expansion of this recognition under the larger heading of cultural diversity, e.g. the CESCR highlighting that the right to food and water is based on the recognition of cultural practices regarding the use of the concerned natural resources. The second important legal lens used to examine cultural rights and natural resources comes under the banner of cultural heritage law, a field largely dominated by the UNESCO and other specialized agencies mandated to focus on cultural heritage. The role of IHRL as latecomer to this field has mainly been to challenge the very top-down and expert approach to cultural heritage, which has tended to divide ‘cultural’ and ‘natural’ heritage. This particularly concerns the nomination of natural sites as World Heritage Sites, a process often resulting in the encroachment upon indigenous and local communities’ human rights.

On a more encouraging note, IHRL plays an increasingly significant role in supporting the development of a strong international legal framework to protect and promote indigenous and local communities’ traditional knowledge over natural resources. Here, the interaction between the different fields of international law has resulted in a positive working relationship between cultural heritage, intellectual property, biodiversity, and IHRL. However, the process for patents and protection of IPR over natural resources, notably seeds and plants, is still largely dominated by market and economic capacity, rather than local and small-scale traditional knowledge holders. From this perspective, the engagement of IHRL in this field is both important and urgent. Hopefully, a stronger recognition of the importance of traditional knowledge over natural resources by indigenous, local, and small-scale rural communities will allow IHRL to play a more significant role in the development of the international legal framework on these issues.

Lastly, in focusing on spiritual and religious relationships with natural resources, this chapter examined the potential connection between freedom of religion and natural resources, although this connection is still tenuous and has mainly developed under the auspices of the African human rights system for indigenous peoples. Other regional human rights institutions still rely on other rights-based approaches, e.g. property rights and the right to family life, again in the context of indigenous and tribal peoples’ rights only. These rights over natural resources for other groups and communities are not yet well developed or addressed by IHRL.

Overall, via cultural diversity, cultural heritage, and spirituality, IHRL recognizes natural resources as an important element of cultural rights. Traditional knowledge, traditional cultural activities, and the way natural resources are used all form essential (p.146) parts of the cultural rights of many local communities . However, the fragmented legal specialized regimes on cultural heritage, cultural diversity, traditional knowledge, IPR, and religious rights could, via a more holistic approach, be integrated into international legal norms to govern cultural rights and cultural heritage. From this perspective, the divided international legal framework between specialized fields that governs cultural rights and cultural heritage could benefit from a more integrated human rights-based approach to cultural rights over natural resources. This approach will provide a significant entry point to ensure that a more holistic and comprehensive legal framework is adopted.

Another benefit to a more holistic and comprehensive human rights framework supports a less State-centric approach to cultural rights. Most of the processes for the protection of cultural diversity and cultural heritage work from the top down; however, in this State-centred system, IHRL is starting to develop norms to ensure a more direct participation of the concerned communities. Here, IHRL can ensure that indigenous, local, and rural communities are included in the protection and management of their own cultural heritage. The African Commission on Human and Peoples’ Rights relies on the term ‘custodian communities’ in defining how local populations (rather than States) are better suited to protecting and guarding their cultural heritage. This approach is part of a larger emerging connection between cultural rights and environmental protection, labelled ‘biocultural rights’,165 which links the dramatic loss of biodiversity with the loss of cultural diversity.166 By recognizing the fundamental human rights of the local communities over their cultural practices, traditional knowledge, and management of their natural resources, cultural rights over natural resources then become part of environmental law, another significantly expanding field of international law, which is examined in Chapter 6.

Notes:

(1) See Rodolfo Stavenhagen, ‘Cultural Rights: A Social Science Perspectives’. In: H. Nieć (ed.), Cultural Rights and Wrongs (UNESCO, 1988), pp. 1–20.

(2) UNESCO Universal Declaration on Cultural Diversity, Preamble, para. 5. See also Fribourg Declaration on Cultural Rights, Art. 2(a) (definitions); (d) ‘the sum total of the material and spiritual activities and products of a given social group which distinguishes it from other similar groups [and] a system of values and symbols as well as a set of practices that a specific cultural group reproduces over time and which provides individuals with the required signposts and meanings for behaviour and social relationships in everyday life’.

(3) Article 27 of the Universal Declaration of Human Rights; Article 15 of the International Covenant on Economic, Social and Cultural Rights; Article 17 of the African Charter on Human and Peoples’ Rights; Article 13 of the American Declaration of the Rights and Duties of Man. For analysis, see Elsa Stamatopoulou, Cultural Rights in International Law (Brill, 2007); Ana Vrdoljak (ed.), The Cultural Dimension of Human Rights (OUP, 2013).

(4) See Dominic McGoldrick, ‘Culture, Cultures, and Cultural Rights’. In: Mashood Baderin and Robert McCorquodale (eds), Economic, Social and Cultural Rights in Action (OUP, 2007), pp. 447–73; Elsa Stamatopoulou, Cultural Rights in International Law (Brill, 2007); Francesco Francioni and Martin Scheinin (eds), Cultural Human Rights (Martinus Nijhoff, 2008).

(5) See Julie Ringelheim, ‘Cultural Rights’. In: Daniel Moeckli, Sangeeta Shah, and Sandesh Sivakumaran (eds), International Human Rights Law, 2nd edition (OUP, 2014), pp. 286–302.

(6) See Patrick Thornberry, ‘Self-Determination, Minorities, Human Rights: A Review of International Instruments,’ 38(4) International and Comparative Law Quarterly, 1989, 867–89; Patrick Thornberry, International Law and the Rights of Minorities (Clarendon Press, 1991); John Humphrey, ‘The United Nations Sub-Commission on the Prevention of Discrimination and the Protection of Minorities’, 62 American Journal of International Law, 1968, 869, 872

(7) However, see David Keane and Joshua Castellino, ‘Is the International Convention on the Elimination of All Forms of Racial Discrimination the De Facto Minority Rights Treaty?’. In: Carla Buckley, Alice Donald, and Philip Leach (eds), Towards Convergence in International Human Rights Law: Approaches of Regional and International Systems (Brill, 2017).

(8) See Gaetano Pentassuglia, Minorities in International Law: An Introductory Study (Council of Europe Publications, 2002); Li-Ann Thio, Managing Babel: The International Legal Protection of Minorities in the Twentieth Century (Martinus Nijhoff, 2005); Kristin Henrard and Robert Dunbar (eds), Synergies in Minority Protection: European and International Law Perspectives (CUP, 2008).

(9) International Covenant on Civil and Political Rights opened for signature 16 December 1966, 999 UNTS 171, Art. 27.

(10) Human Rights Committee, General Comment No. 23, Art. 27 (50th Session, 1994), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.1 at 38 (1994), para. 7.

(11) See Fergus MacKay, ‘Indigenous Peoples and United Nations Human Rights Treaty Bodies’, Vol. 5 (Forest Peoples Programme, 2011–2012).

(12) UN Doc. CCPR/C/60/D/549/1993/Rev. 1, Communication No. 549/1993.

(13) UN Doc. CCPR/C/52/D/511/1992, Case No. 511/1992.

(14) A/36/40, Annex 7(G) (1998).

(15) For analysis, see Martin Scheinin, ‘The Right to Enjoy a Distinct Culture: Indigenous and Competing Uses of Land’. In: Theodore S. Orlin, Allan Rosas, and Martin Scheinin (eds), The Jurisprudence of Human Rights Law: A Comparative Interpretive Approach (Institute for Human Rights, 2000), pp. 163–4.

(16) Ilmari Länsman et al. v Finland, Communication No. 511/1992, UN Doc. CCPR/C/52/D/511/1992 (1994), para. 9.3.

(17) Apirana Mahuika et al. v New Zealand, Communication No. 547/1993, UN Doc. CCPR/C/70/D/547/1993 (2000), para. 9.4.

(18) Ilmari Länsman et al. (n 16).

(19) African Commission on Human and Peoples’ Rights v Republic of Kenya, Application No. 006/2012 (2017), para. 185 (the Ogiek Case).

(20) See John Borrows, ‘Frozen Rights in Canada: Constitutional Interpretation and the Trickster’, 22(1) American Indian Law Review, 1997, 37–64.

(21) Patrick Wolfe, Settler Colonialism and the Transformation of Anthropology: The Politics and Poetics of an Ethnographic Event (Cassell, 1999).

(22) Report of the Aboriginal and Torres Strait Islanders Social Justice Commissioner to the Attorney General, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2000.

(23) Ivan Kitok v Sweden, Communication No. 197/1985, CCPR/C/33/D/197/1985 (1988), para. 9.2.

(24) See Apirana Mahuika et al. v New Zealand, Communication No. 547/1993, UN Doc. CCPR/C/70/D/547/1993 (2000).

(25) J.G.A. Diergaardt (late Captain of the Rehoboth Baster Community) et al. v Namibia, Comm. No. 762/1997, UN Doc CCPR/C/69/D/760/1997 (2000), 7.

(26) Ibid., Concurring Opinion, Evatt and Quiroga.

(27) Ibid., para. 155.

(28) However, see the Constitutional Court of South Africa, Alexkor v Richtersveld Community, 2003 (12) BCLR 1301; in this case the community managed to prove a traditional usage of copper (see para. 61 and ss).

(29) Case of the Saramaka People v Suriname, Preliminary Objections, Merits, Reparations and Costs, Judgment. Series C No. 172 (2007), para. 128.

(30) Ibid., paras 125–7.

(31) Ibid., para. 128: ‘the State may restrict the Saramakas’ right to use and enjoy lands and resources only when such restriction complies with the aforementioned requirements and, additionally, when it does not deny their survival as a tribal people’.

(32) See, for example, Case of the Kichwa Indigenous People of Sarayaku v Ecuador, Series C No. 245 (2012), 146; and see Rio Negro Massacres v Guatemala, Series C No. 250 (2012), 177.

(33) See Ariel E. Dulitzky, ‘When Afro-Descendants Became “Tribal Peoples”: The Inter-American Human Rights System and Rural Black Communities’, 15 UCLA Journal of International Law and Foreign Affairs, 2010, 45; IACHR, Indigenous Peoples, Afro-Descendent Communities, and Natural Resources: Human Rights Protection in the Context of Extraction, Exploitation, and Development Activities, OEA/Ser.L/V/II., Doc. 47/15 (2015).

(34) Moiwana Village v Suriname, Series C No. 124 (2005); Saramaka People v Suriname, Series C No. 172 (2007).

(35) See Lilian Richieri Hanania (ed.), Cultural Diversity in International Law: The Effectiveness of the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions (Routledge, 2014).

(36) Universal Declaration on Cultural Diversity, adopted 2 November 2001, UNESCO Gen. Conf., 31st Session, UNESCO Doc. CLT.2002/WS/9 (2002), Preamble.

(37) Convention on the Protection and Promotion of the Diversity of Cultural Expressions, adopted 20 October 2005, 33d Session, Art. 2(1), UNESCO Doc. CLT/CEI/DCE/2007/PI/32 (2005).

(38) Convention for the Safeguarding of the Intangible Cultural Heritage 2003, Art. 2.

(39) For review and analysis, see Silvia Borelli and Federico Lenzerini (eds), Cultural Heritage, Cultural Rights, Cultural Diversity: New Developments in International Law (Martinus Nijhoff, 2012).

(40) See Yvonne Donders, ‘Do Cultural Diversity and Human Rights Make a Good Match?’ 61(199) International Social Science Journal, 2010, 15.

(41) General Comment No. 23, The Rights of Minorities (Art. 27), UN Doc. CCPR/C/21/Rev.1/Add.5.

(42) Ibid., para. 9.

(43) African Commission on Human and Peoples’ Rights: Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya (February 2010), para. 241.

(44) Ibid., para. 246.

(45) General Comment No. 21: Right of Everyone to Take Part in Cultural Life (Art. 15, para. 1(a), of the International Covenant on Economic, Social and Cultural Rights), UN Doc. E/C.12/GC/21, para. 15b.

(46) Ibid., para. 16(a).

(47) CESCR, General Comment No. 12 (1999), E/C.12/1999/5, para. 8 (emphasis added).

(48) Ibid., para. 11.

(49) CESCR, General Comment No. 15 (2003), E/C.12/2002/11, paras 6, 11.

(50) Ibid., para. 21.

(51) FAO, Voluntary Guidelines for Securing Sustainable Small-Scale Fisheries in the Context of Food Security and Poverty Eradication (Small-Scale Fisheries Guidelines), 2014, Guideline 5.3 (emphasis added).

(52) EU Task Force on Land Tenure, ‘EU Land Policy Guidelines: Guidelines for Support to Land Policy Design and Land Policy Reform Processes in Developing Countries’, November 2004, at 2 (emphasis added).

(53) See Rakesh Tiwary and Sanjiv J. Phansalkar, ‘Dalits’ Access to Water: Patterns of Deprivation and Discrimination’, 3(1) International Journal of Rural Management, 2007, 43–67; and Rakesh Tiwary, ‘Explanations in Resource Inequality: Exploring Scheduled Caste Position in Water Access Structure’, 2(1) International Journal of Rural Management, 2006, 85–106.

(54) Report of the Special Rapporteur on Minority Issues, UN Doc. A/HRC/31/56 (2016), para. 82 (references omitted).

(55) See UN Doc. A/HRC/21/42, para. 12.

(56) Para. 12(c)(iii).

(57) See Bernadette Resurreccion and Rebecca Elmhirst (eds), Gender and Natural Resource Management: Livelihoods, Mobility and Interventions (Earthscan, 2008); Ruth S. Meinzen-Dick, Lynn R. Brown, Hilary Sims Feldstein, and Agnes R. Quisumbing, ‘Gender, Property Rights, and Natural Resources’, 25(8) World Development, 1997, 1303–15; Ann Whitehead and Dzodzi Tsikata, ‘Policy Discourses on Women’s Land Rights in Sub-Saharan Africa: The Implications of the Return to the Customary’, 3(1) Journal of Agrarian Change, 2003, 67–112.

(58) CEDAW, General Recommendation No. 34 on the Rights of Rural Women, CEDAW/C/GC/34, para. 58–59.

(59) CEDAW, General Recommendation No. 21 on Equality in Marriage and Family Relations, para. 27 (contained in A/49/38, Chapter I, A).

(60) See Nancy C. Doubleday, ‘Aboriginal Subsistence Whaling: The Right of Inuit to Hunt Whales and Implications for International Environmental Law’, 17 Denver Journal of International Law & Policy, 1988, 373; Chris Wold, ‘Integrating Indigenous Rights into Multilateral Environmental Agreements: The International Whaling Commission and Aboriginal Subsistence Whaling’, 40 Boston College of International & Comparative Law Review, 2017, 63.

(61) General Comment No. 21, Right of Everyone to Take Part in Cultural Life, UN Doc. E/C.12/GC/21 (2009), para. 19.

(62) Ibid., para. 64.

(63) For further analysis, see Johanna Gibson’s in-depth analysis: Community Resources: Intellectual Property, International Trade and Protection of Traditional Knowledge (Routledge, 2016).

(64) See Janet Blake, ‘On Defining the Cultural Heritage’, 49(1) International & Comparative Law Quarterly, 2000, 61–85; and Report of the Independent Expert in the Field of Cultural Rights, Farida Shaheed, UN Doc. A/HRC/17/38 (2011).

(65) Swidden agriculture, also known as shifting cultivation, refers to a technique of rotational farming in which land is cleared for cultivation (normally by fire) and then left to regenerate after a few years.

(66) See Helaine Silverman and D. Fairchild Ruggles (eds), Cultural Heritage and Human Rights (Springer, 2007); Michele Langfield, William Logan, and Mairead Nic Craith (eds), Cultural Diversity, Heritage and Human Rights: Intersections in Theory and Practice (Routledge, 2009).

(67) As highlighted in the report of the Special Rapporteur in the Field of Cultural Rights (A/HRC/17/38), the right of access to and enjoyment of cultural heritage forms part of IHRL. See Report of the Independent Expert in the Field of Cultural Rights, Farida Shaheed, UN Doc. A/HRC/17/38 (2011). See also Borelli and Lenzerini (n 39).

(68) The Convention Concerning the Protection of the World Cultural and Natural Heritage, 16 November 1972, 11 International Legal Materials, 1972, 1358.

(69) See Human Rights Council, Promotion and Protection of the Rights of Indigenous Peoples with Respect to their Cultural Heritage, Study by the Expert Mechanism on the Rights of Indigenous Peoples, 19 August 2015, A/HRC/30/53.

(70) See David Lowenthal, ‘Natural and Cultural Heritage’, 11(1) International Journal of Heritage Studies, 2005, 81–92.

(71) See Stefan Disko, ‘World Heritage Sites in Indigenous Peoples’ Territories: Ways of Ensuring Respect for Indigenous Cultures, Values and Human Rights’. In: Dieter Offenhäußer, Walther Ch. Zimmerli, and Marie-Thérèse Albert (eds), World Heritage and Cultural Diversity (German Commission for UNESCO, 2010), p. 167.

(72) Study by the Expert Mechanism on the Rights of Indigenous Peoples, Promotion and Protection of the Rights of Indigenous Peoples with Respect to their Cultural Heritage, UN Doc. A/HRC/EMRIP/2015/2 (2015).

(73) See Kathryn Whitby-Last, ‘Article 1: Cultural Landscapes’. In: Francesco Francioni and Federico Lenzerini (eds), The 1972 World Heritage Convention: A Commentary (OUP, 2008), pp. 51–62; Ken Taylor, Archer St. Clair, and Nora J. Mitchell (eds), Conserving Cultural Landscapes: Challenges and New Direction (Routledge, 2015).

(74) See Stefan Disko, ‘Indigenous Cultural Heritage in the Implementation of UNESCO’s World Heritage Convention: Opportunities, Obstacles and Challenges’. In: Alexandra Xanthaki, Sanna Valkonen, Leena Heinämäki, and Piia Nuorgam (eds), Indigenous Peoples’ Cultural Heritage: Rights, Debates, Challenges (Brill, 2017), pp. 39–77.

(75) See Nicolas Adell, Regina F. Bendix, Chiara Bortolotto, and Markus Tauschek (eds), Between Imagined Communities and Communities of Practice: Participation, Territory and the Making of Heritage (Universitätsverlag Göttingen, 2015).

(76) Lucas Lixinski, ‘Heritage for Whom? Individuals’ and Communities’ Roles in International Cultural Heritage Law’. In: Federico Lenzerini and Ana Filipa Vrdoljak (eds), International Law for Common Goods: Normative Perspectives on Human Rights, Culture and Nature (Hart Publishing, 2014), pp. 193, 196.

(77) With few exceptions, when States’ authorities willingly decide to include indigenous or local communities in the process. For illustrations and analysis, see Stener Ekern, William Logan, Birgitte Sauge, and Amund Sinding-Larsen (eds), World Heritage Management and Human Rights (Routledge, 2016).

(78) Stefan Disko (n 74), pp. 74–5.

(79) See Stefan Disko and Helen Tugendhat (eds), World Heritage Sites and Indigenous Peoples Rights (International Work Group for Indigenous Affairs, 2014).

(80) See Rosemary J. Coombe and Joseph F. Turcotte, ‘Indigenous Cultural Heritage in Development and Trade: Perspectives from the Dynamics of Intangible Cultural Heritage Law and Policy’. In: Christoph Graber, Karolina Kuprecht, and Jessica Lai (eds), International Trade in Indigenous Cultural Heritage: Legal and Policy Issues (Edward Elgar, 2012), pp. 272–305.

(81) See Korir Sing’Oei Abraham, ‘Ignoring Indigenous Peoples’ Rights: The Case of Lake Bogoria’s Designation as a UNESCO World Heritage Site’. In: Disko and Tugendhat (n 79), pp. 163, 171.

(82) Resolution on the Protection of Indigenous Peoples’ Rights in the Context of the World Heritage Convention and the Designation of Lake Bogoria as a World Heritage Site, adopted at the ACHPR’s 50th Ordinary Session held from 24th October to 5th November 2011.

(83) For references, see Study by the Expert Mechanism on the Rights of Indigenous Peoples, Promotion and Protection of the Rights of Indigenous Peoples with Respect to their Cultural Heritage, UN Doc. A/HRC/EMRIP/2015/2 (2015).

(84) (n 61) para. 55.

(85) For analysis and references, see Disko and Tugendhat (n 79).

(86) Lucas Lixinski, ‘Heritage for Whom? Individuals’ and Communities’ Roles in International Cultural Heritage Law’. In: Federico Lenzerini and Ana Filipa Vrdoljak (eds), International Law for Common Goods: Normative Perspectives on Human Rights, Culture and Nature (Hart Publishing, 2014), p. 213.

(87) UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage (2003), Art. 2.

(88) Ibid.

(89) As noted by WIPO, traditional knowledge refers to ‘the know-how, skills and practices that are developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity’. See Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, ‘List and Brief Technical Explanation of Various Forms in which Traditional Knowledge May be Found’, 17th Session, WIPO/GRTKF/IC/17/INF/9 (November 2010), para. 3.

(90) See UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2007), 2440 UNTS 311, Preamble at 8.

(91) Convention on Biological Diversity (1992) 1760 UNTS 79 [‘CBD’] Arts 8(j) and 10(c).

(92) UN Convention to Combat Desertification in Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (1994) 1954 UNTS 3 [‘UNCCD’], Art. 18.2(b).

(93) International Treaty on Plant Genetic Resources for Food and Agriculture (2001) 2400 UNTS 303 [‘ITPGR’], Art. 9.2(a).

(94) World Health Organization Declaration of Alma-Ata, International Conference on Primary Health Care, Alma-Ata, (1978), Art. VII.7.

(95) See Rio Declaration on Environment and Development (1993) A/Res/48/190, Principle 22; and Agenda 21, in Report of the United Nations Conference on Environment and Development (1992) A/CONF.151/26/Rev.1, Vol. 1, 9, at 26.3(a)(iii).

(96) See Anja Meyer, ‘International Environmental Law and Human Rights: Towards the Explicit Recognition of Traditional Knowledge’, 10(1) Review of European Community and International Environmental Law, 2001, 37–46.

(97) Under Article 8(j) of the Convention on Biological Diversity, States shall ‘respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices’.

(98) Article 10(c) CBD.

(99) This is examined in more detail in Chapter 6, which focuses on the connection between environmental protection and IHRL.

(100) Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilization to the Convention on Biological Diversity 2010 (Nagoya Protocol), Arts 5(2), 12(1), and 12(2).

(101) See Kabir Bavikatte and Daniel F. Robinson, ‘Towards a People’s History of the Law: Biocultural Jurisprudence and the Nagoya Protocol on Access and Benefit Sharing’, 7 Law, Environment and Development Journal, 2011, 35.

(102) Ibid., Art. 12.4.

(103) See Rosemary J. Coombe, ‘The Recognition of Indigenous Peoples’ and Community Traditional Knowledge in International Law’, 14 St Thomas Law Review, 2001, 275–85; Silke von Lewinski, Indigenous Heritage and Intellectual Property: Genetic Resources, Traditional Knowledge and Folklore (Kluwer Law International, 2008).

(104) United Nations Declaration on the Rights of Indigenous Peoples, General Assembly, UN Doc. A/RES/61/295, Adopted on 13 September 2007, Art. 31.

(105) For analysis on the drafting of this article and the evolution of indigenous biodiversity rights, see Alexandra Xanthaki, Indigenous Rights and United Nations Standards: Self-Determination, Culture and Land (CUP, 2007), pp. 224–6,

(106) (n 61) para. 37.

(107) See also specific article on traditional knowledge in the American Declaration on the Rights of Indigenous Peoples (Art. 28).

(108) Case of the Yakye Axa Indigenous Community, Merits, Reparations and Costs. Series C No. 125 (2005), para. 154.

(109) Case of the Kichwa Indigenous People of Sarayaku (n 32) para 220.

(110) See African Commission on Human and Peoples’ Rights: Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya (February 2010); ACHPR v Kenya, Judgment, Application No. 006/2012 (2017) (the ‘Ogiek Judgment’).

(111) See Sarah A. Laird (ed.), Biodiversity and Traditional Knowledge: Equitable Partnerships in Practice (Routledge, 2010); Laura Westra (ed.), Environmental Justice and the Rights of Indigenous Peoples: International and Domestic Legal Perspectives (Earthscan, 2012).

(112) Treaty on Plant Genetic Resources for Food and Agriculture (2001), Art. 9.

(113) Ibid.

(114) Human Rights Council, UN Doc. A/HRC/34/L.21 (2017).

(115) See Open-Ended Intergovernmental Working Group on a United Nations Declaration on the Rights of Peasants and other People Working in Rural Areas. Available at: http://www.ohchr.org/EN/HRBodies/HRC/RuralAreas/Pages/WGRuralAreasIndex.aspx.

(116) Draft Declaration on the Rights of Peasants and other People Working in Rural Areas, presented by the Chair-Rapporteur of the Working Group, UN Doc. A/HRC/WG.15/4/2 (2017); see Arts 5 and 9.

(117) See Priscilla Claeys, ‘Food Sovereignty and the Recognition of New Rights for Peasants at the UN: A Critical Overview of La Via Campesina’s Rights Claims over the Last 20 Years’, 12(2) Globalizations, 2015, 452–65.

(118) Johanna Gibson, Community Resources: Intellectual Property, International Trade and Protection of Traditional Knowledge (Routledge, 2016), Ch. 9.

(119) For analysis, see Daphne Zografos Johnsson and Hai-Yuean Tualima, ‘Cultural Heritage, Traditional Knowledge and Intellectual Property Rights’. In: Alexandra Xanthaki, Sanna Valkonen, Leena Heinämäki, and Piia Kristiina Nuorgam (eds), Indigenous Peoples’ Cultural Heritage Rights, Debates, Challenges (Brill, 2017), pp. 218–28.

(120) At the time of writing the negotiations are still ongoing. For updates see WIPO’s website at: http://www.wipo.int/tk/en/igc/.

(121) UN Permanent Forum on Indigenous Issues, Report of the Secretariat on Indigenous Traditional Knowledge, prepared by Special Rapporteur M. Dodson, UN Doc. E/C.19/2007/10 (2007), para. 20.

(122) See Laurence R. Helfer and Graeme W. Austin, Human Rights and Intellectual Property: Mapping the Global Interface (CUP, 2011).

(123) See Mauro Barelli, ‘The United Nations Declaration on the Rights of Indigenous Peoples: A Human Rights Framework for Intellectual Property Rights’. In: Matthew Rimmer (ed.), Indigenous Intellectual Property: A Handbook of Contemporary Research (Edward Elgar Publishing, 2015).

(124) See Olivier De Schutter and Gaëtan Vanloqueren, ‘The New Green Revolution: How Twenty-First-Century Science Can Feed the World’, 2(4) Solutions, 2011, 33–44.

(125) See Fikret Berkes, Sacred Ecology, 4th edition (Routledge, 2017), Chs 1 and 2.

(126) See Daniel J. Gervais, ‘Spiritual but not Intellectual: The Protection of Sacred Intangible Traditional Knowledge’, 11 Cardozo Journal of International and Comparative Law, 2003, 467, 469–90.

(127) See Malcolm David Evans, Peter Petkoff, and Julian Rivers (eds), The Changing Nature of Religious Rights Under International Law (OUP, 2015), pp. 1–9.

(128) Robert Wild, Christopher McLeod, and Peter Valentine, Sacred Natural Sites: Guidelines for Protected Area Managers (No. 16. IUCN, 2008); World Conservation Congress Resolution 4.038 (2008, Barcelona); and World Conservation Congress Recommendation 5.147 (2012, Jeju).

(129) See Bas Verschuuren, Robert Wild, Jeffrey McNeely, and Gonzalo Oviedo (eds), Sacred Natural Sites: Conserving Nature and Culture (Routledge, 2010).

(130) See Katja Mikhailovich and Alexandra Pavli, Freedom of Religion, Belief, and Indigenous Spirituality, Practice and Cultural Rights (Australian Institute of Aboriginal and Torres Strait Islanders Studies, 2011).

(131) Christoph Beat Graber, ‘Using Human Rights to Tackle Fragmentation in the Field of Traditional Cultural Expressions: An Institutional Approach’. In: Christoph Beat Graber and Mira Burri-Nenova (eds), Intellectual Property and Traditional Cultural Expressions in a Digital Environment (Edward Elgar, 2008), p. 111.

(132) Human Rights Committee, General Comment No. 22: The Right to Freedom of Thought, Conscience and Religion (Art. 18), UN Doc. CCPR/C/21/Rev.1/Add.4, para. 2.

(133) Ibid.

(134) Heiner Bielefeldt, ‘Privileging the Homos Religiosus? Towards a Clear Conceptualization of Freedom of Religion or Belief’. In: Malcolm David Evans, Peter Petkoff, and Julian Rivers (eds), The Changing Nature of Religious Rights Under International Law (OUP, 2015), p. 22.

(135) United Nations Declaration on the Rights of Indigenous Peoples, General Assembly, UN Doc. A/RES/61/295, Adopted on 13 September 2007, Art. 25.

(136) ILO Convention 169, Art. 13.

(137) (n 61) para. 49(d).

(138) Concluding Observations of the Human Rights Committee: Australia. 28/07/2000. CCPR/CO/69/AUS. (Concluding Observations/Comments), paras 9–12. For analysis, see Leena Heinämäki and Thora Martina Herrmann, ‘The Recognition of Sacred Natural Sites of Arctic Indigenous Peoples as a Part of Their Right to Cultural Integrity’, 4(2) Arctic Review on Law and Politics, 2013, 207–33.

(139) African Commission on Human and Peoples’ Rights: Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya (February 2010), para. 77.

(140) Ibid., para. 168.

(141) African Commission on Human and Peoples’ Rights v Republic of Kenya, Judgment. Application No. 006/2012 (2017), para. 164.

(142) Resolution on the Protection of Sacred Natural Sites and Territories, ACHPR/Res. 372 (LX) 2017.

(143) For analysis of the shortcomings of European and American systems, see Dwight Newman, Elisa Ruozzi, and Stefan Kirchner, ‘Legal Protection of Sacred Natural Sites Within Human Rights Jurisprudence: Sápmi and Beyond’. In: Leena Heinämäki and Thora Martina Herrmann (eds), Experiencing and Protecting Sacred Natural Sites of Sámi and other Indigenous Peoples (Springer, 2017), pp. 11–26.

(144) Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Reparations and Costs, Judgment. Series C No. 79 (2001), para. 149.

(145) See Newman, Ruozzi, and Kirchner (n 143), 11–26.

(146) Case of Yakye Axa Indigenous Community v Paraguay (n 108) para. 135.

(147) Case of the Kichwa Indigenous People of Sarayaku, (n 32) para. 218.

(148) ‘The term cosmovision has to do with basic forms of seeing, feeling and perceiving the world. It is made manifest by the forms in which a people acts and expresses itself.’ See Jorge Ishizawa, ‘Affirmation of Cultural Diversity: Learning with Communities in the Central Andes’, 2 Development Dialogue, 2009, 105–39, 118. Note that the IACtHR also uses the term ‘world vision’ (see Kaliña and Lokono Peoples v Suriname, Merits, Reparations and Costs. Series C No. 309 (2015), para. 164).

(149) Rio Negro Massacres (n 32) at 160.

(150) Francis Hopu and Tepoaitu Bessert v France, Communication No. 549/1993, UN Doc. CCPR/C/60/D/549/1993/Rev.1. (1997).

(151) However, see dissenting individual opinion by Committee members David Kretzmer and Thomas Buergenthal, co-signed by Nisuke Ando and Lord Colville, which highlights that this was the case due to France’s reservations regarding Article 27.

(152) Inter-American Court of Human Rights, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District, 12 October 2004, para 155.

(153) Case of the Moiwana Community v Suriname, Preliminary Objections, Merits, Reparations and Costs, Judgment (2005).

(154) Ibid., para. 118.

(155) Lyng v Northwest Indian Cemetery Protective Association, 485 US 439 (1988).

(156) For analysis, see René Kuppe, ‘Religious Freedom Law and the Protection of Sacred Sites’. In: Thomas G. Kirsch and Bertram Turner (eds), Permutations of Order: Religion and Law as Contested Sovereignties (Ashgate, 2009), pp. 49–66.

(157) Benedict Kingsbury, ‘Reconciling Five Competing Conceptual Structures of Indigenous Peoples’ Claims in International and Comparative Law’. In: Philp Alston (ed.) Peoples’ Rights (OUP, 2001), p. 74. See Kristen Carpenter, ‘A Property Rights Approach to Sacred Sites Cases: Asserting a Place for Indians as Nonowners,’ 52 UCLA Law Review, 2005, 1061.

(158) See James F. Weiner, ‘Religion, Belief and Action: The Case of Ngarrindjeri “Women’s Business” on Hindmarsh Island, South Australia, 1994–1996’, 13(1) The Australian Journal of Anthropology, 2002, 51–71.

(159) See Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996), 189 Commercial Law Review 1—High Court of Australia.

(160) See Diane Bell, Ngarrindjeri Wurruwarrin: A World That Is, Was, and Will Be (Spinifex Press, 1998).

(161) See the cases from the Supreme Court of South Australia: Aboriginal Legal Rights Movement v South Australia (26 July 1995); Aboriginal Legal Rights v South Australia [No. 1] (1995) 64 S.A.S.R. 551; Aboriginal Legal Rights v South Australia [No 2] (1995) 64 S.A.S.R. 558; Aboriginal Legal Rights v South Australia [No 3] (1995) 64 S.A.S.R. 566.

(162) See Mark Harris, ‘The Narrative of Law in the Hindmarsh Island Royal Commission’, 14(2) Law in Context, 1996, 115. See also Kartinyeri v The Commonwealth (1998) H.C.A. 22; and Mark Harris, ‘another box of tjuringas under the bed”: The Appropriation of Aboriginal Cultural Property to Benefit Non-Indigenous Interests’. In: Joshua Castellino and Niamh Walsh (eds), International Law and Indigenous Peoples (Martinus Nijhoff, 2005), p. 133.

(163) See Ronald M. Berndt and Catherine H. Berndt, Aboriginal Australian Art (Methuen, 1982); Ronald M. Berndt and Catherine H. Berndt, The World of the First Australians—Aboriginal Traditional Life: Past and Present (Aboriginal Studies Press, 1996), pp. 367–446; Howard Morphy, Aboriginal Art (Phaidon, 1998); Michael L. Blakeney, ‘Protecting the Spiritual Beliefs of Indigenous peoples: Australian Case Studies’ 22 Pacific Rim Law and Policy Journal, 2013, 391.

(164) Christoph Beat Graber, ‘Using Human Rights to Tackle Fragmentation in the Field of Traditional Cultural Expressions: An Institutional Approach’. In: Christoph Beat Graber and Mira Burri Nenova (eds), Intellectual Property and Traditional Cultural Expressions in a Digital Environment (Edward Elgar, 2008), p. 98.

(165) See Kabir Sanjay Bavikatte and Tom Bennett. ‘Community Stewardship: The Foundation of Biocultural Rights’, 6(1) Journal of Human Rights and the Environment, 2015, 7–29.

(166) See J. Peter Brosiusand and Sarah L. Hitchner, ‘Cultural Diversity and Conservation’, 61(199) International Social Science Journal, 2010, 141–68.