Looking back to move forward: the status of environmental rights under the UN Declaration on the Rights of Indigenous Peoples

ABSTRACT

The 2007 UN Declaration on the Rights of Indigenous Peoples (UNDRIP) was adopted after contentious negotiations. When compared with the 1994 UN Draft Declaration on the Rights of Indigenous Peoples (Draft Declaration), article 29 of UNDRIP falls short on the definition of environment, its management and accountability for environmental violations. Therefore, the article analyses whether article 29 lacks effective environmental-rights protection, and what imprint the Draft Declaration has on UNDRIP? This article further examines the development of international law on business and human rights, sustainable development, climate change, and trade law after 2007. The consequence of ignoring this development is having tragic outcomes on indigenous peoples’ environmental rights upon which they depend for their subsistence, culture and development rights. Looking at indigenous peoples’ environmental rights through the Draft Declaration, therefore, will help to understand both the challenges faced by UNDRIP and gives the opportunity to discuss a potential free-standing environmental right under the Convention on the Rights of Indigenous Peoples, which would be the natural progression from the UNDRIP. Such a right could eliminate conflicts with indigenous peoples’ rights to development and culture. Also, it could bring coherence and integration between indigenous peoples’ rights and international law developed after 2007.

KEYWORDS:

• UNDRIP
• draft declaration
• indigenous peoples
• environmental rights
• international law
• convention on the rights of indigenous peoples

Acknowledgements

The author would like to thank Professor Timo Koivurova, Director of the Arctic Centre at the University of Lapland for his helpful comments and the anonymous reviewers for their comments on the previous version of this article. The faults, however, remain the author's. She also would like to thank Aino Berg for proofreading this article and Dr Karin Altenberg, Royal Literary Fund Fellow for editing the article.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributor

Adriana Giunta is currently working toward the completion of her PhD on ’Indigenous Peoples’ Environmental Right Protection under International Law’. She has worked extensively on human rights, equality and non-discrimination for more than 15 years in various capacities, including as Visiting Researcher at the NIEM/Arctic Centre, University of Lapland, Finland and as Visiting Lecturer at Brunel Law School, Brunel University London, United Kingdom. She has taught courses in international human rights law, criminal law and criminal justice. In addition to her academic work, she has worked for the human rights NGOs Amnesty International, the Equal Rights Trust and Toynbee Hall. She holds an LL.M in International Human Rights Law, as well a B.A. in Law and Human Rights from the University of Essex, United Kingdom. She has recently contributed to the edited book published by the United Nations Environment Programme – Giunta A., ‘Can an Ecocentric Approach Open New Frontiers for a Legally Binding International Environmental Right? A Study of Norway's Environmental Constitutional Right’ in New Frontiers in Global Environmental Constitutionalism eds. Erin Daly, Louis Kotze, James May and Caiphas Soyapi (United Nations Environment Programme, 2017), 62–78. Her interests include indigenous peoples, environmental rights, economic, social and cultural rights, sustainable development and equality and non-discrimination.

ORCID

Adriana Giunta http://orcid.org/0000-0002-2749-5184

Notes

1. See Resolution 61/295.

2. For a discussion on the change of position by Australia, Canada, New Zealand and the United States see Sheryl Lightfoot, Global Indigenous Politics: A Subtle Revolution (Abingdon, UK and New York, US: Rouledge, 2016).

3. Victoria Tauli-Corpuz, ‘Indigenous Peoples Are the Best Guardians of the World’, interview by David Hill, The Guardian, August 9, 2017, https://www.theguardian.com/environment/andes-to-the-amazon/2017/aug/09/indigenous-peoples-are-the-best-guardians-of-the-worlds-biodiversity (accessed January 4,  2019)

4. James Anaya, ‘Extractive Industries Operating within or near Indigenous Territories’, UN Special Rapporteur's Report, no. A/HRC/18/35, 11 July 2011.

5. The article does not enquire into the causes of environmental-climate change degradation, but take them as a fact.

6. Sheila Watt-Cloutier, The Right to Be Cold: One Woman's Story of Protecting Her Culture, the Arctic and the Whole Planet (Canada: Penguin Press, 2015); also Sheila Watt-Cloutier, ‘Petition to the Inter American Commission on Human Rights Seeking Relief from Violations Resulting from Global Warming Caused by Acts and Omissions of the United States’, (2005), 7, 13, 33. http://www.ciel.org/Publications/ICC_Petition_7Dec05.pdf (accessed January 4, 2019); Rachel Baird, ‘The Impact of Climate Change on Minorities and Indigenous Peoples’, Minority Rights Group International (2008).

7. Agata Durkalec, Chris Furgal, Mark W Skinner, and Tom Sheldon, ‘Climate Change Influences on Environment as a Determinant of Indigenous Health: Relationships to Place, Sea Ice, and Health in an Inuit Community’, Social Science and Medicine (2015): 136–7; James D. Ford, ‘Indigenous Health and Climate Change’, American Journal of Public Health 102, no. 7 (2012): 1260–66.

8. For instance, Inter-American Court of Human Rights (ICHR), ‘Garífuna Community of “Triunfo de la Cruz” and Its Members v. Honduras’, Series C, No. 305 (2015); also ‘Garífuna de Punta Piedra Community v. Honduras’, Series C, No. 304 (2015).

9. This article does not enquire into the right to participation, free, prior and informed consent.

10. See Chap. XVI. E/CN.4/Sub.2/1994/56.

11. Guiding Principles on Business and Human Rights, UN Doc. A/HRC/17/31 [thereafter Guiding Principles], 21 Mar. 2011.

12. UN Climate Change Paris Agreement [thereafter Paris Agreement], 4 November 2016.

13. Sustainable Development Goals 2015–2030, UN General Assembly no. A/RES/70/1, 25 September 2015.

14. IBA Climate Change Justice and Human Rights Task Force Report, Achieving Justice and Human Rights in an Era of Climate Disruption (London: IBA, 2014).

15. Emmanuel Macron, President of the French Republic, Global Pact for the Environment (presented to the United Nations General Assembly, September 2017).

16. See also John Knox, ‘Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment’, UN Special Rapporteur's Report, no. A/73/188, 19 July 2018.

17. See latest report of the Intergovernmental Panel on Climate Change, “Global Warming of 1.5°C, an IPCC Special Report on the Impacts of Global Warming of 1.5°C Above Pre-industrial Levels and Related Global Greenhouse Gas Emission Pathways, in the Context of Strengthening the Global Response to the Threat of Climate Change, Sustainable Development, and Efforts to Eradicate Poverty,” (2018), [thereafter IPCC SR1.5]. http://www.ipcc.ch/report/sr15/ (accessed January 4, 2019).

18. Timo Koivurova, ‘International Legal Avenues to Address the Plight of Victims of Climate Change: Problems and Prospects’, JELL 22, no. 2 (2007): 267–99; Stephen Humphreys, Human Rights and Climate Change (Cambridge: University Press, 2009); Sébastien Duyck, Sébastien Jodoin and Alyssa Johl, Routledge Handbook of Human Rights and Climate Governance (Routledge International Handbooks, 2018).

19. IBA, Achieving Justice, 43; Briefing Paper No 117, Climate Wrongs and Human Rights, (Oxfam Int’l, September 2008), 7.

20. Kirsten Manley-Casimir, ‘Reconciliation, Indigenous Peoples Rights and Offshore Oil and Gas Development in the Canadian Arctic’, Review of European Community and International Law 20 (2011): 32; Also Laura Bowman, ‘Sealing the Deal: Environmental and Indigenous Justice and Mining in Nunavut’, Review of European Community and International Law 20 (2011): 19.

21. Malgosia Fitzmaurice, ‘Tensions Between States and Indigenous People over Natural Resources in Light of the 1989 ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries and the 2007 UN Declaration on the Rights of Indigenous Peoples Including Relevant National Legislation and Case-law’, The Yearbook of Polar Law 3 (2012): 234–5.

22. https://dictionary.cambridge.org/dictionary/english/environment#dataset-cald4 (accessed January 4, 2019).

23. Adriana Giunta, ‘Can an Ecocentric Approach Open New Frontiers for a Legally Binding International Environmental Right? A Study of Norway's Environmental Constitutional Right’, in New Frontiers in Global Environmental Constitutionalism, eds. Erin Daly, Louis Kotze, James May, and Caiphas Soyapi (Nairobi: United Nations Environment Programme, 2017), 63. https://www.unenvironment.org/resources/publications/new-frontiers-environmental-constitutionalism (accessed January 4, 2019); See also Adriana Giunta, review of Achieving Justice and Human Rights in an Era of Climate Disruption by International Bar Association Climate Change Justice and Human Rights Task Force, Journal of Human Rights and the Environment 7, no. 1, (March 2016).

24. Giunta, ‘Achieving.’

25. Giunta, ‘Can an Ecocentric’, 77.

26. The Social and Economic Rights Action for Economic and Social Rights v. Nigeria Communication No. 276 (2003) [thereafter Ogoni v. Nigeria].

27. Environmental Rights Action, Amnesty International, and Friends of the Earth Europe, ‘Nigerian and International Civil Society Call for Clean-up of Oil Pollution in the Niger Delta to Finally Begin’, Index no. AFR 44/6411/2017, 2 June 2017; also see UNEP, ‘Environmental Assessment in Ogoniland’, 4 August 2011, http://postconflict.unep.ch/publications/OEA/UNEP_OEA.pdf (accessed January 4, 2019).

28. Susan Glazebrook, ‘Human Rights and the Environment’, Human Rights and Environment Report (2), Presented at the Conference ‘Strategies for the Future: Protecting Rights in the Pacific’, (Samoa, 27–29 April 2008): 54; Cherie Metcalf, ‘Indigenous Rights and the Environment: Evolving International Law’, Ottawa Law Review 35 (2003–2004); Leena Heinämäki, ‘Environmental Rights Protecting the Way of Life of Arctic Indigenous Peoples: ILO Convention No. 169 and UN Draft Declaration on Indigenous Peoples’, in Arctic Governance, eds. Timo Koivurova, Tanja Joona and Reija. Shnoro, (Juridica Lapponica 29, University of Lapland, 2004), 231–59.

29. Glazebrook, ‘Human Rights’, 30–1.

30. Metcalf, ‘Indigenous Rights’, 134.

31. Heinämäki, ‘Environmental Rights’, 255.

32. Mataatua District Māori Council v. The New Zealand Crown, New Zealand Waitangi Tribunal, 4 July 2017. http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2017/20170704_WAI-2607_application-1.pdf (accessed January 4, 2019).

33. IPCC Fifth Assessment Report (AR5), 2014.

34. See Thomson v. Minister for Climate Change Issues, High Court of New Zealand, CIV 2015-485-919 [2017] NZHC 733, judgement 2 November 2017; See also Magallanes Catherine Iorns, ‘Maori Cultural Rights in Aotearoa New Zealand: Protecting the Cosmology that Protects the Environment’, Widener Law Review 21, no. :2 (2015): 273–327.

35. See ‘Case of Thomson;’ See also Urgenda Foundation v The State of the Netherlands (Ministry of Infrastructure and the Environment), Case number 200.178.245/01, 9 October 2018 [thereafter the Urgenda 2018 case] and Case number: C/09/456689/HA ZA 13-1396, Judgment of 24 June 2015 [thereafter Urgenda 2015 case]; Juliana v. Unite States, 217 F.Supp.3d 1224, 1233 (D. Or.2016).

36. Giunta, ‘Can an Ecocentric’, 65.

37. IBA, Achieving Justice.

38. Heinämäki, ‘Environmental Rights’, 255–6.

39. See Françoise Hampson, ‘The Human Rights Situation of Indigenous Peoples in States and Territories Threatened with Extinction for Environmental Reasons’, UN Commission on Human Rights Working Group on Indigenous Populations, E/CN.4/Sub.2/AC.4/2004/CRP.1, 13 July 2004; Françoise Hampson, ‘The Human Rights Situation’, E/CN.4/Sub.2/2005/28, 16 June 2005; Françoise Hampson, ‘The Human Rights Situation’, E/CN.4/Sub.2/AC.4/2006/CRP.2, 30 June 2006.

40. Alexandra Xanthaki, Indigenous Rights and United Nations Standards (New York: Cambridge University Press, 2007).

41. Dianne Otto, ‘A Question of Law or Politics? Indigenous Claims to Sovereignty’, Syracuse J.Int’L L. & Com. 21, 65, 85 (1995): 93.

42. United Nations Conference on Environment and Development (UNCED), Rio de Janeiro, 3–14 June 1992.

43. The debate on environmental rights started in the 1970s following the adoption of the Stockholm Declaration.

44. For a discussion see: Alan E. Boyle and Michael R. Anderson, Human Rights Approaches to Environmental Protection (Oxford: Clarendon Press, 1996); Alan Boyle, ‘Human Rights or Environmental Rights? A Reassessment’, Fordham University Law School, March 2, 2007; Alan Boyle, ‘Human Rights and the Environment: Where Next?’, EJIL 23, no. 3 (2012): 642.

45. Koivurova, ‘International’; also Hari M. Osofsky and William C. Burns, Adjudicating Climate Change: State, National, and International Approaches (Cambridge University Press, 2009).

46. Humphreys, Human Rights, 317.

47. Randall S. Abate and Elizabeth Kronk Warner, Climate Change and Indigenous Peoples. The Search for Legal Remedies (Cheltenham Edward Elgar, 2013).

48. Hampson, ‘The Human Rights Situation’, 2004; Hampson, ‘The Human Rights Situation’, 2005; Hampson, ‘The Human Rights Situation’, 2006.

49. UN HRC, Report of the OHCHR on the Relationship Between Climate Change and Human Rights, UN Doc. A/HRC/10/61 [hereafter OHCHR 2009], 15 Jan. 2009, para. 70.

50. OHCHR, Analytical Study on the Relationship Between Human Rights and the Environment, UN Doc. A/HRC/19/34 [hereafter OHCHR 2011], 16 Dec. 2011, para. 64–73. 

51. OHCHR 2011, Analytical Study, para. 64-73. 

52. UN Human Rights Council (UN HRC) res. 16/11, ‘Human Rights and the Environment’, 24 Mar. 2011; UNHRC res. 19/12, ‘Human Rights and the Environment’, 20 Mar. 2012.

53. IBA, Achieving Justice.

54. IBA, Achieving Justice, 43. 

55. IBA, Achieving Justice, 117.

56. IBA, Achieving Justice, 43 [Emphasis added]. 

57. IBA, Achieving Justice, 62. 

58. IBA, Achieving Justice, 119. 

59. Article 1 of the Global Pact.

60. Article 2 of the Global Pact.

61. Article 3 of the Global Pact.

62. Knox, ‘Human Rights’, 13.

63. Glazebrook, ‘Human Rights’, 28.

64. Giunta, ‘Can an Ecocentric’, 63.

65. Kaliña and Lokono Peoples v. Suriname, Merits, reparations and costs, Series C, No. 309 (2015): para 175.

66. Philippe Sands, ‘The Environment, Community and International Law’, Harv. Int’l LJ 30 (1989): 393, 398.

67. Department of Economic and Social Affairs (Division for Social Policy and Development, Secretariat of the Permanent Forum on Indigenous Issues), ST/ESA/328, UN (2009), 89.

68. Guiding Principles, paras 73–4.

69. Guiding Principles, paras 73–4.

70. Environmental Rights Action, Amnesty International, and Friends of the Earth Europe, “Nigerian and International”.

71. IBA, Achieving Justice, 68.

72. Amnesty International, Injustice Incorporated: Corporate Abuses and the Human Right to Remedy (Amnesty International Ltd, 2014).

73. International Corporate Accountability Roundtable (ICAR), CORE, and the European Coalition for Corporate Justice (ECCJ), The Third Pillar: Access to Judicial Remedies for Human Rights Violations by Transnational Business, eds. Gwynne Skinner, Robert McCorquodale, Olivier De Schutter, and Andie Lambe (December 2013); See also Amnesty International, Injustice Incorporated.

74. Dinah. Shelton, Remedies in International Human Rights Law, 2nd ed. (Oxford University Press, 2006).

75. Glazebrook, ‘Human Rights’, 29.

76. SDGs 32.

77. The Rio Declaration on Environment and Development, UN DOC.A/CONF/151/4 (1992).

78. Giunta, ‘Can an Ecocentric’, 75.

79. See Tauli-Corpuz, ‘Indigenous Peoples’; However, the Greenlandic peoples’ worldview, perhaps, represent an exception to the principle of sustainable development contained in the Rio declaration, as they are focusing on achieving economic development before environmental and social development – see Bent Ole Gram Mortensen, ‘Mining and Pollution: Arctic Environmental Law in Greenland and the Mining Industry’, The Yearbook of Polar Law IV (2012): 673–88.

80. Giunta, ‘Can an Ecocentric’, 75–6.

81. Giunta, ‘Can an Ecocentric’, 75–7.

82. IPCC SR1.5, 2018, Chapter 5, 4.

83. Sébastien Duyck, Erika Lennon, Wolfgang Obergassel and Annalisa Savaresi, ‘Human Rights and the Paris Agreement's Implementation Guidelines: Opportunities to Develop a Rights-Based Approach’, Carbon and Climate Law Review 12, no. 3 (2018): 191–202.

84. IPCC SR1.5, Chapter 3, 166.

85. IBA, Achieving Justice, 63.

86. Philippe Sands, ‘Water and International Law: Science and Evidence in International Litigation’, ELM 20, (2010). http://www.ukela.org/content/doclib/190.pdf (accessed January 4, 2019); also OHCHR 2009, para 70.

87. Nunatukavut Community Council Inc v Canada (Attorney General), FC 981 (August 18, 2015): para 104.

88. ‘Case of the Nunatukavut Community’: para 303

89. Glazebrook, ‘Human Rights’, 28; see also IBA, Achieving Justice.

90. ICHR, ‘Cases of the Kaliña and Lokono’: para 174

91. ICHR, ‘Cases of the Kaliña and Lokono’: para 174.

92. ‘Cases of the Kaliña and Lokono; para 227. Similar argument was adopted in other cases: see ICHR, ‘Cases of the Garífuna “Triunfo de la Cruz”, the Garífuna de Punta Piedra’.

93. See Jérémie Gilbert, Indigenous Peoples’ Land Rights under International Law: From Victims to Actors, 2nd ed. (Online: Brill Publishers, 2016), 280.

94. Victoria Tauli-Corpuz, ‘Implementation of the United Nation Declaration on the Rights of Indigenous Peoples’, UN Special Rapporteur's Report, no. A/72/186, 21 July 2017.

95. Victoria Tauli-Corpuz, ‘The Impact of International Investment and Free Trade on the Human Rights of Indigenous Peoples’, UN Special Rapporteur's Report, no. A/70/301, 7 August 2015.

96. IBA, Achieving Justice, 75–6.

97. South American Silver Limited v. Bolivia, UNCITRAL, PCA Case No. 2013-15.

98. For a more complete analysis on the issue see: Victoria Tauli-Corpuz, ‘Promotion and Protection of all Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development’, UN Special Rapporteur's Report, no. A/HRC/33/42, 11 August 2016.

99. ‘Case of South American Silver’: para 106.

100. Tauli-Corpuz, ‘The Impact’, 11.

101. ‘Case of South American Silver’: para 238.

102. ‘Case of South American Silver’: paras 245–9.

103. Although, the ILA perceives that to an extent UNDRIP codified customary international law (CIL), the poor debate on the importance of indigenous peoples’ environmental rights, makes difficult to argue that article 29 has achieved CIL status - see ILA Committee on the Rights of Indigenous Peoples, Report ‘Implementation of the Rights of Indigenous Peoples’, (Johannesburg Conference, 2016).

104. Tauli-Corpuz, ‘Implementation.’

105. Elina Helandre-Renvall, ‘Relationship between Sami Reindeer Herders, Land, and Reindeer’, in Routledge Handbook of Human-Animal Studies, eds. Garry Marvin and Susan McHugh (New York: Routledge, 2014).

106. Baird, ‘The Impact’, 4.

107. Leena Heinämäki, ‘Protecting the Rights of Indigenous Peoples – Promoting the Sustainability of the Global Environment?’, International Community Law Review 11, no. 1 (2009): 3–68; Malgosia Fitzmaurice, Whaling and International Law (Cambridge University Press, 2015).