Contributed to the ISE Newsletter by Harry Jonas and Holly Shrumm

The Living Convention on Biocultural Diversity: A Compendium of Indigenous Peoples’ and Local Communities’ Rights Relevant to Maintaining the Integrity and Resilience of Territories and other Biocultural Systems contains a comprehensive compilation of international legal provisions organized into categories of rights that support the stewards of biocultural diversity.

The Living Convention is dedicated to all Indigenous peoples and local communities striving to realize the right to self-determination and to maintain the integrity of their territories, areas and ways of life. It is also in memory of Dr. Darrell Addison Posey, one of the founders of the ISE, whose collaborative work on traditional resource rights inspired the methodological approach to this publication.

It is intended to serve as a useful resource for Indigenous Peoples, local communities, NGOs and others who want to reference and use international law at the national and local levels. A first draft of the publication has been completed and we welcome its rigorous peer review.

The Problem
Hard fought UN negotiations are resulting in an ever-increasing amount of international law that is supportive of Indigenous peoples’ and local communities’ rights to self-determination and, among other things:

  • Traditional governance systems and customary laws,
  • Knowledge, innovations and practices,
  • Education and languages,
  • Development,
  • Non-removal from lands or territories,
  • Governance of territories, lands and natural resources,
  • Local agricultural systems,
  • Free, prior and informed consent relating to lands, waters and natural resources, and
  • Information, decision making and access to justice.

However, these rights are constituted from individual provisions that appear across the full range of international law, including from human rights, cultural, environmental, and agricultural instruments. Community members who want to know what their international right to, for example, respect for their customary laws, will have to consult a number of different international instruments to determine the substance and context of that right.

Local Effects
The diffuse nature of Indigenous peoples’ and local communities’ rights in international law constitutes an injustice in itself, as it inhibits communities from ascertaining and subsequently asserting those rights. Countries that agree to minimum standards at the international level but do not uphold them at the national and local levels should be held accountable.

Yet the often widespread lack of knowledge about international law by communities and their supporting organisations means that these issues are either not raised at all, or are raised imprecisely and ineffectively. Despite an increasingly number of provisions, the inaccessibility of international law itself further enables the marginalisation, discrimination, evictions, and other forms of abuses of power that Indigenous peoples and local communities continue to face.

Reimagining International Law
While we cannot at this stage change the deep structure of the international legal framework, we can reimagine the organisation of those laws and the relationships between provisions that address similar issues, albeit in different ways and in separate international instruments. Developing a new reading of the current legal landscape fundamentally changes our perceptions of the law and opens up new legal and political possibilities.

The Living Convention on Biocultural Diversity
A review of the full spectrum of relevant international law was undertaken, and the relevant provisions were reordered under a number of core rights, including self-determination, land tenure, non-removal from land, custodianship, customary uses of natural resources, control of traditional knowledge, and free, prior and informed consent. A community wanting to know about the right to customary uses of natural resources, for example, can now find all of the provisions that exist in international law – including from human rights, environmental, cultural, and land tenure-related instruments – in one place.

In addition to a published version of the Living Convention, we are developing a website dedicated to providing Indigenous peoples, local communities and other interested parties a range of resources for better using international law and supportive jurisprudence for constructive engagement at the local level. It will consist of an online and interactive version of the Living Convention, with links to every relevant international instrument. It will also contain a range of other relevant resources such as lists of which countries have ratified each international instruments, landmark regional and national judgments, declarations of Indigenous peoples and local communities, and legal empowerment methodologies and tools to enable the realisation of Indigenous peoples’ and local communities’ rights in practice.

Looking Ahead
The Living Convention seeks to begin to address the injustice of the complexity and inaccessibility of international law. Simplifying and demystifying the otherwise important rights contained in international law will better position Indigenous peoples and local communities to understand and use them. Legal empowerment will lead to social and environmental justice.

In the long term, the Living Convention constitutes one part of a broader effort to highlight the fact that the fragmented way in which laws are currently being developed (i.e. separate laws for land, wildlife, traditional knowledge, etc.) is further damaging the integrity and resilience of social-ecological landscapes. The Living Convention constitutes a new reading of the legal landscape – one that sets us on a new course of law-making and lawyering.

Please download the Living Convention on Biocultural Diversity and let us know what you think!

 

This illustration of the legal landscape, from Part 2 of the Living Convention, helps people to see how laws and institutional frameworks operate at the local level.