Rural Local Communities as Holders of Human Rights: From Aboriginal Subsistence Whaling to Small-Scale Local Community Whaling?

ABSTRACT

This article examines the status of rural local communities within the international framework of human rights. The adoption in 2018 of the United Nations Declaration on the Rights of Peasants and other People Working in Rural Areas (UNDROP) has made the theme particularly topical. The UNDROP is an instrument designed to advance the recognition of human rights with specific relevance for rural communities and to develop locality as a factor contributing to stakeholdership in the international human rights system. Rural local communities consist of both indigenous and non-indigenous people, the legal status of whom can be quite different from each other. A practical example used for demonstrating this is the international legal regime governing whaling. With respect to attempts to revise the whaling regime to be more inclusive while benefiting both indigenous and non-indigenous populations involved in small-scale hunting of whales, the UNDROP has interesting potential.

KEYWORDS:

• rural local communities
• UNDROP
• whaling
• indigenous peoples

1. Introduction

Rural populations have been subject to historical marginalisation in multiple ways, and new challenges such as climate change could further deteriorate their living conditions and position in the world economy. The United Nations Declaration on the Rights of Peasants and other People Working in Rural Areas (UNDROP)¹ is designed to promote the interests of rural local communities. It was largely the result of the work of transnational agrarian movements, particularly a network called La Via Campesina (LVC) that represents peasants and smallholder farmers. Peasant rights had been discussed within the LVC since the early 2000s, culminating in the adoption of the 2009 Declaration of Rights of Peasants – Women and Men.² This declaration served as the basis of the formal negotiations for the UNDROP, which commenced within the UN Human Rights Council (HRC) in 2012.³ The HRC adopted the UNDROP declaration in September and the General Assembly in December 2018.⁴

The UNDROP recognises, inter alia, rural communities’ right to natural resources and protection of their labour and economic activities. Most of its provisions do not attempt to establish new rights but to improve the implementation and sharpen the content of existing ones in order to address the specific needs of peasants. The UNDROP definition of a ‘peasant’ (Art. 1.1) allows wide application:

a peasant is any person who engages or who seeks to engage alone, or in association with others or as a community, in small-scale agricultural production for subsistence and/or for the market, and who relies significantly, though not necessarily exclusively, on family or household labour and other non-monetized ways of organizing labour, and who has a special dependency on and attachment to the land.

The UNDROP also applies to ‘any person engaged in artisanal or small-scale agriculture, crop planting, livestock raising, pastoralism, fishing, forestry, hunting or gathering, and handicrafts related to agriculture or a related occupation in a rural area’ as well as to ‘dependent family members of peasants’ (Art. 1.2).

Furthermore, it applies to ‘indigenous peoples and local communities working on the land, transhumant, nomadic and semi-nomadic communities, and the landless, engaged in the above-mentioned activities’ (Art. 1.3) as well as to ‘hired workers’ (including migration workers) and ‘seasonal workers, on plantations, agricultural farms, forests and farms in aquaculture and in agro-industrial enterprises’ (Art. 1.4).

The concept of ‘peasantness’ thus extends to all rural workers, their families, and communities dependent upon nature and natural resources. The UNDROP also mentions indigenous peoples, but places them on equal footing with other rural populations. While far from being homogeneous, these populations all depend on natural resources and/or agriculture for their livelihood.

In practice, a second common characteristic is the experience of situations of political disempowerment, socio-economic exclusion, and discrimination.⁵ As the UNDROP emphasises, peasants are vulnerable, suffering ‘disproportionately from poverty, hunger and malnutrition’.⁶ Many current global developments, including environmental degradation and climate change,⁷ place particular pressure on food security, traditional lifestyles, and modes of livelihood of peasants. At the same time, several factors make it difficult for peasants ‘to make their voices heard, to defend their human rights and tenure rights, and to secure the sustainable use of the natural resources on which they depend’.⁸ The UNDROP brings a new kind of visibility to the structural discrimination that rural communities face in this world.

Another important instrument, the UN Declaration on the Rights of Indigenous Peoples (UNDRIP),⁹ was adopted over a decade earlier, in 2007. It was the first international instrument to recognise collective human rights to natural resources. In many respects the UNDRIP and the UNDROP contain quite similar provisions, yet they also reflect the different conceptions related to indigenous and non-indigenous people. For instance, a close, even integral connection with nature is more typically associated with indigenous populations,¹⁰ which is also evident in the more advanced endeavours towards legal protection of the indigenous socio-ecological relations. As discussed later in this article, a major difference is the obligation to obtain people’s ‘free, prior and informed consent’ (FPIC) to development projects affecting them; this is recognised in the UNDRIP (Art. 32.2) but not in the UNDROP. Many rights accorded to indigenous peoples by the UNDRIP appear in a less explicit and less obligatory form in the UNDROP. While the differential treatment (or positive discrimination) of indigenous populations can be well justified, on particular occasions it may nevertheless be seen as unfair towards non-indigenous people.

This article examines the emerging recognition of rural local communities’ rights, in comparison with the particular rights of indigenous populations. The aim is by no means to contest indigenous peoples’ rights, but to ponder the possibilities that international law may offer for rural communities to foster their often quite similar interests and corresponding rights. Some rural communities are indigenous and some are not, while many include both indigenous-identifying individuals and non-indigenous-identifying individuals. In such mixed communities, the rights that people have may vary significantly depending on their background.¹¹ When the everyday life of people is very similar yet their rights differ on the basis of indigeneity, this may generate conflicts and experiences of injustice.

The right to hunt whales under international law will be examined below as an example of the human rights complexity related to rural local communities. The regime based on the 1946 International Convention for the Regulation of Whaling (ICRW)¹² acknowledges indigenous communities’ traditional right to whale. Non-indigenous communities, on the other hand, have no similar right – not even those with long histories and cultural traditions in whaling. This dichotomy is also evident in attitudes towards small-scale whaling. Many states and animal rights organisations, for instance, strictly oppose all whaling activities, including small-scale coastal whaling, except whaling conducted by indigenous peoples. Indigenous communities with whaling traditions may even get support for their whaling activities from states and human rights organisations. The status of indigenous and non-indigenous local communities is thus quite different in this respect, and appears to contradict many rights claimed in the UNDROP.

In addition to the ICRW regime, the other major component of the international legal system pertaining to whaling is the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).¹³ With a total of 183 ratifications, the CITES has provided full protection to several species of whale.¹⁴ Interestingly, local communities have gained a particular status within the CITES regime¹⁵ while indigenous communities have not. Unfortunately, the CITES cannot be examined in this article in more detail.

2. A History of Locality-based Stakeholdership

The UNDROP is not the first international instrument recognising some kind of stakeholder position for local communities. References to environmental interests or even rights of local communities can be found in several conventions adopted in the 1970s. Although these instruments are legally binding, they are sporadic and often not very explicit in their inclusion of local populations, allowing a variety of interpretations. For instance, pursuant to 1972 Convention Concerning the Protection of the World Cultural and Natural Heritage (Art. 5.1),¹⁶ states parties must ‘endeavor, in so far as possible, and as appropriate for each country to adopt a general policy which aims to give the cultural and natural heritage a function in the life of the community and to integrate the protection of that heritage into comprehensive planning programmes’ (emphasis added). Despite their ambiguity, such early instruments serve as a basis for the current attempts to improve the acknowledgement of local stakeholders in international law.

Interestingly, the older conventions do not make a clear distinction, if any, between indigenous and other local people. In the context of the World Heritage Convention, the possible indigeneity of a ‘community’ does not appear to have any significance. The 1979 Convention on the Conservation of Migratory Species of Wild Animals (CMS)¹⁷ and the 1973 Agreement on Conservation of Polar Bears and their Habitats (ACPB)¹⁸ are more specific in terms of ‘local exemptions’, but neither explicitly refers to indigenous populations. Instead, they talk about ‘local people using traditional methods in the exercise of their traditional rights’ (ACPB Art. III.1) and the ‘needs of traditional subsistence users’ (CMS Art. III.5.c).¹⁹

Over the following decades, local populations began to gain more explicit rights, particularly concerning participation in decision-making. An early example is the 1982 UN World Charter for Nature,²⁰ which refers, still relatively ambiguously, to the right of ‘all persons’ to participate ‘in the formulation of decisions of direct concern to their environment’.²¹ The 1992 Rio Declaration on Environment and Development²² noted that ‘[e]nvironmental issues are best handled with the participation of all concerned citizens, at the relevant level’ (Principle 10). Accordingly, certain legally binding instruments negotiated alongside the Rio Declaration provide stakeholder status to local populations.

The 1992 Convention to Combat Desertification²³ refers to the importance of ‘local implementation of action programmes in affected areas’ (Preamble, para. 16) and requires states to ‘ensure that decisions on the design and implementation of [action] programmes […] are taken with the participation of populations and local communities’ (Art. 3(a)). The 1992 Convention on Biological Diversity (CBD)²⁴ requires each state party, ‘as far as possible and as appropriate’ and ‘[s]ubject to its national legislation’, to ‘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 utilisation of such knowledge, innovations and practices’ (Art. 8(j)).²⁵

The adoption of the 1998 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters was a milestone in the establishment of rights of participation in general.²⁶ It has contributed significantly to the participatory rights of all local communities in environmental decision-making. What’s more, many convention regimes (the CITES being one), which originally contained no reference to participatory rights, have later been adjusted to be more respective of local populations in one way or another.²⁷

A practical reason for the increasing recognition of local communities is their significant role in the successful implementation of conservation regimes.²⁸ Another explanation is the increasing acknowledgement of the rights of indigenous peoples. Yet local populations with no indigenous background have not gained an equally solid position as holders of rights. In particular, the development of local communitieś rights beyond those of participation is still in the early stages. Participatory rights, albeit important, are procedural requirements which do not entail more substantive rights.²⁹ Moreover, rights of participation under different legal regimes vary considerably.

3. The International Whaling Commission Regime

Whales are considered a global natural resource and, for their management, states have established an International Whaling Commission (IWC),³⁰ in accordance with the ICRW (Art. III). The ICRW was signed in 1946 and entered into force in 1948.³¹ It governs two types of whaling: commercial and scientific. A specific regulatory framework for the hunting of whales is established by the ICRW Schedule,³² which is an additional, legally binding instrument integral to the Convention (ICRW Art. I.1). The Schedule sets hunting quotas for specific species of whales in specific regions and is regularly amended by the IWC.³³

The ICRW/IWC regime was initially designed to secure the economic viability of the global whaling industry. For decades, whales were the target of mass-scale commercial hunting; until the 1960s, catches continually increased, in tandem with a constant decrease in whale stocks. Eventually the IWC had to restrict whaling to allow whales to recover, and thus enable economically profitable hunting to continue. The restrictions adopted were insufficient to prevent the collapse of whale stocks, however.³⁴

Alongside with the agony of whales, environmental values began to dominate within the international community.³⁵ Environmental and animal rights organisations started to conduct effective lobbying at IWC meetings. They encouraged non-whaling states to join the IWC in order to increase the number of states parties in favour of cessation of commercial whaling.³⁶ As general levels of income also increased, the value of whales in production became outweighed by their conservation value.³⁷ Consequently, the IWC ended up adopting in 1982 a moratorium banning commercial whaling from the 1985/86 whaling season onwards. This was done by setting zero-catch quotas for all species listed in the Schedule. Many indigenous populations, however, had been exercising small-scale whaling since time immemorial; to allow them to continue their whaling traditions, the IWC established an Aboriginal Subsistence Whaling (ASW) system as an exception to the moratorium.

In the ICRW itself, there is no provision on ASW: the Convention only regulates commercial and scientific whaling, while the Schedule establishes the ASW catch limits (para. 13). In practice, indigenous whaling communities need to make a request to the IWC for a permission to whale. However, this can be done only via the state within which the indigenous community resides – meaning that indigenous whalers can be effectively blocked by their territorial state from even addressing the IWC with an ASW request. If the government supports the request, it must submit a ‘Needs Statement’ to the IWC describing the subsistence needs of the indigenous population. The IWC makes decisions on ASW whaling quotas in six-year blocks on the basis of advice on safe catch limits from the IWC Scientific Committee.³⁸ Thus far, the IWC has recognised four regions in which ASW can be practised.³⁹

On balance, the ICRW/IWC system has transformed from a ‘whalers’ market’ to a regime of nature conservation and indigenous whaling. As no state has conducted scientific whaling within the IWC regime since the Japanese withdrawal from the IWC in 2019,⁴⁰ the only type of IWC whaling practised today is aboriginal subsistence whaling.⁴¹ Although the basic right of indigenous populations to carry out their whaling traditions is seldom explicitly challenged, discussions within the IWC reveal a broad spectrum of attitudes among states towards indigenous whaling. Some see the current ICRW/IWC regime as an indigenous monopoly.

4. Whaling by Local Communities

The ICRW/IWC regime does not recognise local communities beyond the ASW system. If a local community is not considered an indigenous population deserving whaling rights both by its territorial state and the IWC, it cannot have any right to hunt whales under the ICRW/IWC regime. Yet indigenous populations are not the only local communities with whaling traditions.⁴²

For instance, certain coastal communities in Japan conduct traditional small-scale whaling – not on indigenous grounds but as an expression of cultural-spiritual diversity. Apparently, the Japanese have been hunting whales for thousands of years, during which very distinctive social and even religious practices have evolved with relation to whales and whaling.⁴³ Before Japan left the IWC in 2019, it had unsuccessfully attempted to change the ICRW/IWC regime in many ways, including a suggestion for a kind of an intermediate legal category of Small-Type Coastal Whaling.⁴⁴

Other local non-indigenous communities for whom small-scale whaling is a living tradition include the Faroe Island whalers.⁴⁵ Their pilot whale⁴⁶ hunting has raised much attention internationally: it has been considered cruel and generated continuous protests from animal rights organisations.⁴⁷ Poor soil conditions on the islands have underlined the need to harvest marine resources,⁴⁸ and the Faroese whaling activities are bound into local traditions and culture.⁴⁹ Given the significant improvements in food security on one hand and the toxic levels of contaminants found in pilot whales on the other (leading to official advice to limit consumption),⁵⁰ the hunting of pilot whales would likely have ceased by now were it not for the focal socio-cultural importance of the hunt for the local people.

In the following section, the basic reasons for small-scale whaling by indigenous and non-indigenous local communities are briefly examined. After that, the potential of the UNDROP to support whaling by all local communities will be studied in more detail.

4.1. Nutrition, Raw Materials, and Income

Especially in the Arctic, where sources of nutrition are scarce, whale meat has been essential for human survival.⁵¹ Whaling has also provided people with valuable raw materials such as bones and oil. There still exist communities for whom whales are a focal source of nutrition, particularly in remote areas, such as Greenland and Siberia (the indigenous populations of which have successfully based their ASW requests to the IWC on nutritional needs).⁵² Whales as a source of food and materials can serve all whaling communities equally, irrespective of their indigeneity.

Whaling, even on a small scale, can also provide an important a source of income. Within the ICRW/IWC regime, only subsistence whaling is allowed. Unfortunately, the regime provides no definition for the term ‘aboriginal subsistence whaling’. In contrast to commercial whaling, it is generally understood as whaling to satisfy the alimentary requirements of indigenous people and to provide them with materials for subsistence production.⁵³ In practice, drawing a line between commercial and subsistence whaling has been a constant problem – particularly in case of Arctic indigenous peoples, whose culture and values are typically rooted in modes of sociality, such as sharing the harvest of the hunt beyond the ‘household’ among the entire community⁵⁴ (in some cases even taking on a communal responsibility to provide food to all of its members).⁵⁵ Similar practices exist outside indigenous societies: in the Faroe Islands, for instance, the meat of whales caught is distributed not only among hunt participants but the entire local community, pursuant to detailed long-standing norms.⁵⁶ Many local communities whale for money, too. In Greenland, communities allocated ASW quotas have been accused of whaling for commercial purposes, and hence violating the ICRW/IWC system.⁵⁷

4.2. Whaling as Culture

In addition to serving as a resource of food, materials, and income, whaling can constitute an element of culture and heritage – for indigenous communities and those with no indigenous identity. Whaling as culture is not merely about traditional food or culturally meaningful products derived from whales; it is also about sustaining practices and cultural-spiritual traditions related to whales and whaling.⁵⁸ Keeping communal whaling traditions alive maintains social networks,⁵⁹ community solidarity, and collective security.⁶⁰ Cultural whaling and whaling as a source of nutrition and materials are intertwined: a traditional livelihood is typically a focal element of culture and identity formation.

Within the current ICRW/IWC framework, whaling is primarily considered a way to implement the right to indigenous cultural integrity.⁶¹ Cultural human rights are based on the most focal instruments of international human rights law, including the ICESCR, Article 15.1(a) of which requires states to ‘recognize the right of everyone […] to take part in cultural life’. However, populations with no indigenous background may also have whaling traditions over many generations, and whale meat, for instance, can be an essential part of the local food culture. Whaling may constitute an element of self-identity even for non-indigenous people. A whale hunt cannot be carried out alone, and so whaling, often conducted in accordance with long-standing traditions, has an important social function. In essence, whaling can be an essential manifestation of cultural-spiritual traditions for a local community, irrespective of its indigeneity.

As the ICESCR puts it, the right to take part in cultural life belongs to everyone. However, a community’s right to practice its whaling traditions depends on many external factors. The ICRW/IWC regime denies that whaling is an element of culture for non-indigenous communities. They can practise whaling if their territorial state has made suitable reservations to the ICRW or stays outside the regime. Indigenous communities are likewise allowed to practise whaling within the ICRW/IWC framework only if supported by their territorial state and the IWC.

5. The UNDROP and Whaling by Local Communities

The UNDROP can help local communities to promote their interests in many ways, but this article concentrates on positioning small-scale local whaling in the context of the UNDROP. Unlike the problems of artisanal fisheries, those related to artisanal whaling were not apparent in the negotiations leading to the UNDROP. Nevertheless, as examined above, whaling can be seen and justified from numerous perspectives; the potential of the UNDROP from the point of view of local whaling communities can therefore also be multifaceted. The most relevant aspects in this respect include participatory rights; rights to natural resources and resource-based livelihoods; food security and food sovereignty; cultural rights; and the role of local communities within their socio-ecological systems.

5.1. Participatory Rights

The most well-established human rights with particular relevance for local communities pertain to participation in decision-making. The UNDROP also provides for rural people’s general right to ‘active and free participation […] in the preparation and implementation of policies, programmes and projects that may affect their lives, land and livelihoods’ (Art. 10.1). States must promote such participation directly or through representative organisations of the people (Art. 10.2).⁶² The need to promote participation in ‘the preparation and implementation of food safety, labour and environmental standards that may affect them’ is specifically mentioned (Art. 10.2). Furthermore, Article 11 promulgates the right of rural people to ‘seek, receive, develop and impart information’ as well as the respective duty of states to guarantee access to adequate and understandable information ‘through means adequate to their cultural methods so as to promote their empowerment and to ensure their effective participation in decision-making in matters that may affect their lives, land and livelihoods’.

For local whaling communities, the right to participate in decision-making concerning their environment, lives, and livelihoods is obviously focal. The general goal of empowerment of rural populations, who are often in a subordinate position compared with other societal groups, is most welcome. Although participatory rights are generally grounded in the idea of affectedness,⁶³ combining the objective of local empowerment with the right to information also acknowledges the special vulnerability of the communities concerned.⁶⁴ Furthermore, in guaranteeing access to information, the UNDROP explicitly requires states to resort to means suitable to the cultural methods of the population. Access to information cannot always be secured merely by using the local language, for instance, but may necessitate more substantive understanding of, inter alia, the communication culture familiar to the local population. Mere dissemination of information is clearly not enough: participatory processes need to be designed so that they respect the people concerned and facilitate their active participation and genuine interaction. This may require consideration of very practical factors such as the timing of hunting seasons and so on.

Notably missing from the UNDROP is the obligation to obtain ‘free, prior and informed consent’ (FPIC) of people to development projects that affect their lands, territories, or resources. FPIC is a central element of the UNDRIP,⁶⁵ which thus provides indigenous peoples more advanced rights in this respect. FPIC was in fact initially included in the draft UNDROP as well,⁶⁶ but dropped shortly before the adoption of the final text of the instrument⁶⁷ due to ‘fierce opposition by States’.⁶⁸ Although the participatory rights that the UNDROP does contain may to some extent compensate for the missing requirement of FPIC, they cannot change the fact that no FPIC provision exists in the UNDROP and, moreover, that it was intentionally removed during the drafting process.⁶⁹ On balance, the participatory rights included in the UNDROP are indeed merely rights of participation: they do not grant any veto right as there is no obligation to obtain consent from the people concerned.

5.2. The Right to Resources and Livelihoods

Pursuant to UNDROP Article 5.1, rural people ‘have the right to have access to and to use in a sustainable manner the natural resources present in their communities that are required to enjoy adequate living conditions’ and ‘the right to participate in the management of these resources’. In order to implement these rights, states need to conduct social and environmental impact assessments and consultations in good faith (Art. 5.2(a-b)).

The right of people to ‘work, which includes the right to choose freely the way they earn their living’ is guaranteed in Article 13.1. States ‘facing high levels of rural poverty and in the absence of employment opportunities in other sectors’ are specifically required to ‘take appropriate measures to establish and promote sustainable food systems that are sufficiently labour-intensive to contribute to the creation of decent employment’ (Art. 13.4)

Article 16.1 recognises the right to adequate standards of living of rural people, and the practical need to facilitate ‘access to the means of production necessary to achieve them'. Most importantly, the article states explicitly that rural people ‘have the right to engage freely, individually and/or collectively, in association with others or as a community, in traditional ways of farming, fishing, livestock rearing and forestry and to develop community-based commercialization systems’.

For rural communities engaged in whaling, access to and sustainable management of marine resources is obviously vital. Impact assessments and consultations provide important tools for securing environmental and social sustainability; otherwise the freedom to choose livelihood options could remain quite theoretical. Such processes also facilitate an understanding of adequacy and sustainability from the point of view of local communities, hence providing a crucial opportunity to advance their particular interests and values. The specific requirement addressed to states with considerable rural poverty and few employment opportunities to advance sustainable food systems is relevant for many governments with local whaling communities: in remote Arctic areas, for instance, both food and employment options tend to be scarce. Given the limited possibilities in terms of livelihoods available and the particular value of traditional ways of living, the right to engage in such activities is indispensable.

Collective rights are crucial for practising whaling as a livelihood and living tradition: no one can hunt whales alone. The collective aspect also includes the processing and distribution systems that are distinctive to more or less all traditional whaling communities. As described above, sharing prey among community members to ensure the survival of all is a general practice in the Arctic. Most research pertaining to communal hunting traditions of sharing has dealt with indigenous communities, but similar practices exist in non-indigenous societies (as in the Faroe Islands). Within the ICRW/IWC regime, the interpretation of subsistence whaling in the context of indigenous traditions of sharing has created controversies: traditional indigenous economies do not fit well the Western dichotomy of capitalist markets on one hand and household production on the other. Interestingly, a major difference between the ASW system and the rights envisioned in the UNDROP is their attitude towards markets. Pursuant already to the definition in UNDROP Article 1, a ‘peasant’ can be engaged in ‘small-scale agricultural production for subsistence and/or for the market’. ‘Production for the market’ is thus explicitly included in the scope of application of the UNDROP. This also is evident in Article 16, for instance, which explicitly recognises the right ‘to develop community-based commercialization systems’. Thus, a local community’s whaling activities may involve market-based production as well as the development of the community’s own communal systems without conflicting with the UNDROP.

5.3. Food Security – Food Sovereignty

The right to natural resources and autonomy in livelihood and production choices is closely linked to considerations of food security and food sovereignty. Food security means physical and economic access to sufficient, safe, and nutritious food that meets the dietary needs and food preferences of the people concerned.⁷⁰ Problems with access to local, culturally appropriate food can perpetuate a cycle of food insecurity,⁷¹ as it increases dependence on the imported food – which is often expensive and may have modest nutritional value – and on the global food markets in general.⁷² Alongside the gradually improving stability of food systems, the socio-political, ethical, and human rights dimensions of food security are becoming increasingly important.⁷³

While the concept of food security pays no attention to food’s production or delivery, the concept of food sovereignty does refer extensively to local control over food systems. In addition to the right to healthy and culturally appropriate food, it includes the right to define food production, consumption, and distribution reflecting local values.⁷⁴ The relationship between food security and food sovereignty is anything but clear, however, and has generated considerable debate.⁷⁵

Although many of the rights claims of the UNDROP also exist in other (sometimes legally binding) instruments, the right to food sovereignty is a relatively recent innovation. Its specific formulation in the context of rural peasant communities constitutes a significant step forward.⁷⁶ UNDROP Article 15 aims not merely at food security but also at food sovereignty. It gives rural people the ‘right to adequate food and the fundamental right to be free from hunger’, including ‘the right to produce food and the right to adequate nutrition, which guarantee the possibility of enjoying the highest degree of physical, emotional and intellectual development’ (Art. 15.1). In turn, states are obliged to ensure that rural people

enjoy physical and economic access at all times to sufficient and adequate food that is produced and consumed sustainably and equitably, respecting their cultures, preserving access to food for future generations, and that ensures a physically and mentally fulfilling and dignified life for them, individually and/or collectively, responding to their needs. (Art. 15.2)⁷⁷

Most importantly, Article 15 contains an explicit reference to food sovereignty: rural people should be allowed to ‘determine their own food and agriculture systems, recognized by many States and regions as the right to food sovereignty’ (Art. 15.4). The UNDROP further specifies that food sovereignty includes ‘the right to participate in decision-making processes on food and agriculture policy and the right to healthy and adequate food produced through ecologically sound and sustainable methods that respect their cultures’ (Art. 15.4). States and rural people are expected to work together to formulate public policies that ‘advance and protect the right to adequate food, food security and food sovereignty and sustainable and equitable food systems’ (Art. 15.5).

Opposition from states during the drafting process of the UNDROP led to a somewhat moderated formulation of the concept of food sovereignty in the final text of the instrument. Nevertheless, the food sovereignty of rural communities is one of the UNDROP’s most focal elements. From the point of view of local whaling communities, the recognition of the importance of traditional food systems – including those of non-indigenous people – is particularly valuable. The obligation posed to states to ensure access to food that is produced and consumed in a culturally respectful manner and ensures a life that is ‘mentally fulfilling and dignified’ can serve as a strong justification for whaling as part of the local culture. In (sharp) contrast, the current ICRW/IWC regime completely ignores non-indigenous whaling communities: as they are not allowed to hunt whales, no right to whale meat as culturally valuable food exists, nor to traditional production, consumption or distribution of such food.

5.4. Whaling as Culture and an Element of Identity

As examined above, more or less explicit references to cultural aspects can be found in several provisions of the UNDROP. Additionally, the right to culture is expressly guaranteed in Article 26.1, pursuant to which rural people

have the right to enjoy their own culture and to pursue freely their cultural development, without interference or any form of discrimination. They also have the right to maintain, express, control, protect and develop their traditional and local knowledge, such as ways of life, methods of production or technology, or customs and tradition.

The same article guarantees the right for rural people ‘individually and/or collectively […] to express their local customs, languages, culture, religions, literature and art’ (Art. 26.2). States are obliged to respect, recognise, and protect rights ‘relating to their traditional knowledge, and eliminate discrimination against the traditional knowledge, practices and technologies of peasants and other people working in rural areas’ (Art. 26.3).

These explicit references manifest the culturalization of rural agrarian communities, which constitute culture-possessing populations to some extent similar to indigenous populations.⁷⁸ They are significant provisions for local communities with whaling traditions but no indigenous status, because they place all small-scale whalers on an equal footing to each other. The continuity of tradition is particularly important for communities and individuals, from various perspectives. Generational knowledge is essential for conducting small-scale whaling: if whaling activities are not allowed, it is not possible to pass on this knowledge and cultural practice to future generations. It will also eliminate whaling as a local livelihood and make whale-related food sovereignty impossible.

Whales and whaling may also be relevant from the point of view of self-identification and existence of socio-ecological systems. A general problem with international human rights law is its Western colonial history, due to which the UN human rights framework has had major difficulties in recognising, let alone appreciating, the values of other kinds of human societies – indigenous, above all, but also those of many non-indigenous rural communities.⁷⁹ This is evident, for instance, in the apparently complete ignorance of the older UN human rights treaties of the relationship between humans and nature, even though that relationship has existed since time immemorial and is still indispensable for many. The ‘Western’ conception perceives humans as individuals separate from and superior to nature, which is purely a resource for human material betterment.⁸⁰

Indigenous peoples have been challenging this separation for decades, and little by little they are beginning to get their voice heard. Instead of viewing the surrounding nature as their ‘environment’, indigenous populations tend to consider themselves as part of it: they are members of a socio-ecological system in which humans are interactively embedded in nature.⁸¹ Typically, the human–nature relationship is also an elementary starting point for indigenous populations’ rights, not least in the international whaling regime. Whales and whaling are part and parcel of the social-ecological system within which indigenous whaling communities exist.

However, certain non-indigenous communities also have close connections to the surrounding nature, particularly among hunters and gatherers.⁸² Their livelihoods and even the entire existence of their community may depend on it. They may have lived among nature and utilised its resources within the regenerative capacity of the entire socio-ecological system, in compliance with community-based control of resource activities.⁸³ The idea of treating land and natural resources as commodities in capitalistic markets suits such worldviews and values poorly. Accordingly, those individuals and societies have in many respects ended up as outsiders in the global capitalist economy and as the ‘other’ in the international human rights system.⁸⁴

The UNDROP constitutes a significant step forward in acknowledging the typical dependence of rural communities on their surrounding nature and the resources it provides – and in addressing the related shortcomings in the existing human rights framework. As early on as its Preamble (para. 6), the UNDROP recognises the ‘special relationship’ and interaction of rural communities with land, water and nature ‘to which they are attached and on which they depend for their livelihood’.⁸⁵ It makes no distinction between indigenous and other rural communities, nor does its idea of rural communities’ ‘special relationship’ with nature differ much from that of the socio-ecological conceptions typically related to indigenous communities.

Accordingly, states should be very careful not to establish (directly or indirectly, domestically or internationally) restrictions affecting traditional whaling activities because they may disrupt the particular relationship of local communities with the surrounding nature. Furthermore, as whales and activities related to them are considered to form a fundamental element of identity for indigenous whaling populations, it does not appear fair to deny the possibility of whales having an at least somewhat similar role in the lives of non-indigenous communities with long traditions in whaling. All the more so given the several references in the UNDROP to equality: the very first paragraph of its Preamble starts by emphasising the ‘inherent dignity and worth and the equal and inalienable rights of all members of the human family as the foundation of freedom, justice and peace in the world’.

6. The Legal Status of the UNDROP

As a General Assembly declaration, the UNDROP is not a legally binding instrument. During the negotiation process, the European Union (EU) and the United States repeatedly underlined their position that the UNDROP could not create new human rights.⁸⁶ They argued that all human rights that are needed already existed, and should only be implemented better.⁸⁷ Indeed, many provisions of the UNDROP contain existing rights already codified in legally binding international instruments.⁸⁸ It also clearly draws on the language of other binding and non-binding instruments, particularly those related to indigenous peoples, such as the UNDRIP.⁸⁹ The UNDROP has actually been described as intended for interpretation and application ‘as an instrument complementary to and synergetic with UNDRIP’.⁹⁰ Given that the UNDRIP is increasingly treated, domestically and internationally, not as a mere declaration but as a legal instrument expected to be implemented,⁹¹ the notable similarities between the two instruments might serve as a factor strengthening the normative status of the UNDROP.

The significance of the UNDROP is that it designates and reinforces rights already recognised in international human rights law within the particular context of people working in rural areas. Its implementation can also facilitate re-interpretation of existing norms in order to reflect changing conceptions.⁹² Over time, the UNDROP may further develop human rights by contributing to the creation of customary international law⁹³ or by underlining the need for international treaties to establish new rights.⁹⁴ The right to food sovereignty, for instance, has the potential to be recognised as a new collective human right.⁹⁵

Even with no direct legally binding effect, the UNDROP can be considered as establishing best practices or defining a moral imperative for states,⁹⁶ and hence generating at least social pressure to encourage compliance with it.⁹⁷ The lengthy negotiations and the adoption of the Declaration by a significant number of states cannot be ignored.⁹⁸ The fact that the negotiations included various representatives beyond states is likely to further enhance the normative legitimacy of the UNDROP.⁹⁹ It may be considered as establishing UN standards that are expected to be respected,¹⁰⁰ recommendations,¹⁰¹ or a normative model for governments.¹⁰² In order to be effective, it is in any case essential that the UNDROP is implemented at national, regional, and international levels.¹⁰³

7. Conclusion

In many states, certain local communities have practised small-scale whaling for generations. In some states such hunts are legal, while in others they would violate domestic legislation and/or the international obligations of the state. Within the international regime of the ICRW/IWC, the only type of whaling generally considered legitimate is indigenous subsistence whaling. This is justified by food security and cultural values, and requires approval by both the territorial state and the IWC.

Local communities with non-indigenous background can have similarly long histories in whaling. In addition to serving as a livelihood, whales and whaling may form an essential element of their culture and even their identity. Yet such people cannot have any whaling rights under the ICRW/IWC regime. In practice, many states with local whaling communities are not parties to the ASW system. The exclusion of non-indigenous small-scale whaling from the ICRW/IWC regime is thus a factor contributing to fragmentation of the international regulatory system pertaining to whaling.

The dichotomy between indigenous and non-indigenous populations with respect to whaling can be framed within the larger discourse of stakeholdership of local communities. This is no innovation: local communities have been recognised by human rights and environmental law instruments for decades already, but very inconsistently. The UNDROP has an important function in trying to make this stakeholdership more concrete by compiling into a single instrument the various rights particularly relevant to rural communities. At the same time, it is challenging the colonial and neoliberal structures of the global human rights system.

The UNDROP has the potential to affect the current ICRW/IWC perception of legitimate whaling as an indigenous activity only. Just as the UNDRIP has served as an essential justification for the ASW regime enabling whaling for indigenous communities, the UNDROP might serve as a justification for a new regime strengthening the vitality and international legal status of non-indigenous whaling communities. Of course, the UNDROP’s status is not as well-established as that of the UNDRIP. Nevertheless, were the rights drafted in the UNDROP to be taken seriously, the prospects of local non-indigenous whaling communities could change dramatically. They could be lifted to a position similar to that of indigenous peoples in the context of small-scale whaling.

From the point of view of indigenous whalers, who are recognised by the ICRW/IWC regime, the role of the UNDROP can be twofold. On one hand it could blur the specific legal status of indigenous communities and even diminish their possibilities for whale hunting by allowing competing whaling activities. If whaling quotas are allocated on the basis of considerations of environmental conservation, which are in turn based on Western science, presumably the greater the number of whalers the smaller the quotas allocated to each. On the other hand, the dichotomy between indigenous and other local whaling communities was created by the global whaling industry and the ICRW/IWC regime, not by the small-scale whalers themselves. Besides, the UNDROP was drafted not to generate conflicts (now or in the future) with the rights of other stakeholders, explicitly including indigenous peoples. Pursuant to Article 28.1, ‘[n]othing in the present Declaration may be construed as diminishing, impairing or nullifying the rights that peasants and other people working in rural areas and indigenous peoples currently have or may acquire in the future’.¹⁰⁴ It should not therefore constitute any kind of a threat to indigenous populations.¹⁰⁵ This is of utmost importance for indigenous rights, but also for the legitimacy and acceptability of the UNDROP.

In fact, the UNDROP may serve rather than threaten the interests of indigenous whaling communities. The notion of food sovereignty in particular has been able to unite small-scale farmers and indigenous communities with fishing, hunting, and gathering traditions, providing them with a stronger common standing to claim their rights.¹⁰⁶ The UNDROP can even provide a new leverage for indigenous ASW requests within the ICRW/IWC regime. Thus far, cultural aspects have served as the main justification for ASW requests granted, but the UNDROP also strongly supports argumentation based on the right to food, natural resources, and livelihoods. Unlike the current ICRW/IWC regime, the UNDROP accepts whaling even for monetary gain, thus overriding the problematic commercial/subsistence dichotomy.¹⁰⁷

Overall, the UNDROP is in sharp contrast with the ICRW/IWC. The complete denial of whaling rights for non-indigenous local communities contradicts many rights claimed in the UNDROP. The ASW system is also based on much narrower perceptions concerning indigenous whaling activities than the UNDROP. It remains to be seen how this imbalance will be taken up within the IWC, and whether the result will be new controversies or solutions. If states take the UNDROP seriously, small-scale whaling may turn into a livelihood and manifestation of culture available beyond the current select group of indigenous populations, without endangering their rights. This would be a significant contribution to the empowerment of local whaling communities as holders of human rights.

Notes

1 UN Doc. A/RES/73/165 (17 December 2018); adopted with 121 votes in favour, 8 against and 54 states abstaining.

2 Accessible at <https://viacampesina.org/en/wp-content/uploads/sites/2/2011/03/Declaration-of-rights-of-peasants-2009.pdf> (accessed 1 December 2021).

3 See Claeys P., The rise of new rights for peasants. From reliance on NGO intermediaries to direct representation, (2019) Transnational Legal Theory: 1-14, 4-7, and Pacheco Rodriguez, M.N. – Rosales Lozada, L.F., The United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas: One Step Forwards in the Promotion of Human Rights for the Most Vulnerable, Research Paper No. 123 (South Centre, Geneva 2020), 6–8.

4 UN Doc. A/HRC/RES/39/12 (28 September 2018). About the HRC drafting process, see <www.ohchr.org/EN/hrbodies/hrc/ruralareas/Pages/WGRuralAreasIndex.aspx> (accessed 1 December 2021) and Pancheco Rodriguez and Rosales Lozada (note 3), 10–29.

5 Ibid., 1.

6 Preamble, para.8. Circa 80% of people living in extreme poverty live in rural areas. The State of Food Security and Nutrition in the World 2021, Transforming food systems for food security, improved nutrition and affordable healthy diets for all, Rome (FAO 2021), 101.

7 Both these factors are explicitly mentioned in the UNDROP Preamble, para.9.

8 Preamble, para.15.

9 UN Doc. A/RES/61/295 (13 September 2007).

10 For example, Salmón, E., Kincentric Ecology: Indigenous Perceptions of the Human-Nature Relationship, (2000) Ecological Applications 10(5) 1327–1332.

11 A local population may consist of several categories of people with long histories in the area and very similar nature-dependent lifestyles and culture. See Kuper, A. ‘The Return of the Native’ (2003) Current Anthropology 44(3) 389–395, 392. The categories of people may also overlap to the extent that making reasonable distinctions between them (and allocating special rights related to indigenous identity) is not easy. Errico, S. Claeys, P. ‘Human Rights and the Commons: Exploring Approaches to the Governance of Land and Natural Resources beyond Indigenous Peoples’ Rights. The Case of Peasants’ (2020) IJGR 27(1) 1–33, 18.

12 161 UNTS 72.

13 993 UNTS 243.

14 See the checklist for CITES species: <https://checklist.cites.org/#/en> (accessed 1 December 2021). However, the whaling states of Japan, Norway, and Iceland have lodged several reservations against the CITES listings of whale species.

15 On the status of local communities vis-à-vis CITES listings, see Sellheim, N. ‘The Evolution of Local Involvement in International Conservation Law’ (2018) YIEL 29(1) 77–102, 91–95.

16 1037 UNTS 151.

17 1651 UNTS 333.

18 13 ILM 13 (1974).

19 However, the absence of terms ‘aboriginal’, ‘native’, or ‘indigenous’ may also be due to political reasons or the fact that terms such as ‘traditional’ have been intrinsically understood as referring to indigenous populations. Sellheim (n15), 83.

20 UN Doc. A/RES/37/7 (28Oct1982).

21 Para. 23. The Charter also provides that ‘due account shall be taken on the long-term capacity of natural systems to ensure the subsistence and the settlement of the populations concerned’ (para.8).

22 31 ILM 874 (1992).

23 United Nations Convention on Combatting Desertification in Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, 1954 UNTS 3.

24 1760 UNTS 79.

25 Despite or because of the far-reaching formulation of the requirement to respect the interests of indigenous and local communities, interpretation of the provision has raised significant controversies.

26 2161 UNTS 447.

27 See Sellheim (note 15), 89–95. The Conference of the Parties to the United Nations Framework Convention on Climate Change (1771 UNTS 107) also established in 2018 (COP24) a web portal, ‘Local Communities and Indigenous Peoples Platform’, to facilitate the engagement of indigenous and local communities in climate action: <https://lcipp.unfccc.int/> (accessed 1 December 2021).

28 Sellheim (note 15), 86.

29 See Heri, C. ‘Justifying New Rights: Affectedness, Vulnerability, and the Rights of New Peasants’ (2020) GLJ 21(4) 702–720, 707.

30 The IWC currently has 88 member states: <https://iwc.int/members> (accessed 1 December 2021).

31 On the history of international regulation of whaling, see Fitzmaurice, M. Whaling and International Law (Cambridge 2015), 7–28.

32 Accessible at <https://archive.iwc.int/pages/view.php?ref=3606&k> (accessed 1 December 2021).

33 The ICRW/IWC system regulates the hunting of ‘great whales’, including all baleen whales and the sperm whale (belonging to toothed whales). Jurisdiction of the IWC over small cetaceans has long been debated, for it is not explicitly determined anywhere. However, the IWC has acknowledged the need to cooperate on the conservation of small cetaceans and provides countries with scientific advice on them. Its Scientific Committee has had a subcommittee on small cetaceans since 1979. See Fitzmaurice (note 31), 50–51. The IWC also has a Small Cetaceans Conservation Research Fund.

34 For a detailed analysis, see Schneider, V., Pearce, D. ‘What Saved the Whales? An Economic Analysis of 20th Century Whaling’ (2004) Biodiversity and Conservation 13 543–562.

35 Peterson, M.J. ‘Whalers, Cetologists, Environmentalists, and the International Management of Whaling’ (1992) International Organization 46 (1) 147–186, 147.

36 Sweden was the first state whose main motivation to join the IWC (in 1979) was to oppose commercial whaling. See Sellheim, N. International Marine Mammal Law (Springer 2020) 94–95.

37 Schneider and Pearce (note 34) 560.

38 Earlier, an ASW request always required approval by three-quarters of the IWC members. In 2018, the IWC accepted a request made by indigenous whaling communities (and their national governments) for a substantially revised ASW management system, including automatic renewal of the Schedule (and thereby all the existing ASW catch quotas) at the end of each block period. The automatic renewal always depends on sustainability evaluation by the Scientific Committee. If the IWC receives a request for a change in the catch limits based on change in need, an automatic renewal is not possible. Proposal for a Schedule Amendment on Aboriginal Subsistence Whaling (IWC/67/01, later IWC/67/01 Rev.1), Report of the 67th Meeting (Chair’s Report plus meeting annexes), IWCRep2018 (Chair 67) ID7592.

39 Alaska and Washington State in the USA (people of Inupiat and Siberian Yupik); Chukotka in Russia; Greenland; St Vincent and the Grenadines (people of Bequia). See <https://iwc.int/aboriginal> (1 December 2021).

40 In 2018, Japan introduced a set of proposals for the IWC, essentially to block the moratorium (IWC/67/08 Rev01). Report of the 67th Meeting, IWCRep2018 (Chair 67) ID7592, 27–30. The Japanese proposals were rejected. Consequently, Japan withdrew from the IWC (and resumed commercial whaling) in 2019.

41 Norway and Iceland, despite being IWC member states, continued commercial whaling in their Exclusive Economic Zones: Norway had submitted an objection to the 1982 moratorium decision, while Iceland made a reservation to the moratorium when rejoining the IWC in 2001 (after having left it in 1992). For a list of commercial catches of IWC members since the moratorium: <https://iwc.int/table_objection> (1 December 2021).

42 Significant indigenous whaling also takes place outside the IWC context – for instance in Canada, which withdrew from the ICRW in 1982. See Fitzmaurice (note 31) 261–264.

43 On Japanese whaling traditions, see ibid., 130–137; Sellheim (note 36) 46–49. Interestingly, Japan also has indigenous Ainu communities with traditions in whaling. Nevertheless, Japan has never submitted a Needs Statement to enable whaling by its Ainu population. This presumably relates both to the historical marginalisation of the Ainu as well as to Japanese nationalism and conceptions of the ICRW/IWC as a kind cultural of imperialism. Fitzmaurice (note 31) 135–136.

44 Sellheim (note 15), 87. The long-standing controversies that Japan has had with the ICRW/IWC regime extend far beyond questions pertaining to small-scale whaling. On the assessment by the International Court of Justice of the Japanese scientific whaling program JARPA II, and the effects of the judgement (Whaling in the Antarctic; Australia v. Japan, New Zealand Intervening; 2014 ICJ Rep. 226), see Fitzmaurice (note 31) 87–119.

45 In addition to Japan and the Faroe Islands, non-indigenous whaling based on cultural diversity is conducted also in Iceland, Norway, and possibly other states. See ibid., 138–143.

46 The Faroese mostly hunt long-finned pilot whales. The numbers of other species hunted have been very low: in 2020, for instance, the Faroese small cetacean catches consisted of 530 pilot whales and eight Atlantic white-sided dolphins. Simmonds, M.P., McLellan, F., Entrup, N., Nunny, L. ‘Whaling in Europe: An Ongoing Welfare and Conservation Concern’ (2021) <www.oceancare.org/wp-content/uploads/2021/04/UNDER-PRESSURE_Chapter-05_whaling_low-res_web.pdf> (accessed 1 December 2021) 67. Accordingly, it came as a shock for many that, in September 2021, more than 1400 dolphins were suddenly killed in a single hunt. Faroe Islands: Anger over killing of 1,400 dolphins in one day, BBC News (14 Sept ember 2021), <www.bbc.com/news/world-europe-58555694> (accessed 1 December 2021).

47 The Sea Shepherd Conservation Society is the most visible of them: <https://seashepherd.org/> (accessed 1 December 2021).

48 Sellheim (note 36) 41.

49 See Fitzmaurice (note 31) 143–147. For a detailed analysis of Faroese pilot whaling, see Singleton, B.E., Fielding, R. ‘Inclusive Hunting: Examining Faroese Whaling Using the Theory of Socio-Cultural Viability’ (2017) Maritime Studies 16(6).

50 Pursuant to the Dietary recommendation on the consumption of pilot whale meat and blubber (2011) by the Faroese Food and Veterinary Authority (<www.whaling.fo/media/1043/hfs-uk_0.pdf> accessed 1 December 2021), adults should eat no more than one meal of pilot whale meat (max. 250 g) and blubber (max. 50 g) per month. Kidneys and liver should not be eaten at all. Females should refrain entirely from eating blubber as long as they are still planning to have children; women who are breastfeeding, pregnant, or planning pregnancy within the next three months should also refrain from eating the meat.

51 Sellheim (note 36) 37–39.

52 Heinämäki, L. ‘Protecting the Rights of Indigenous Peoples – Promoting the Sustainability of the Global Environment?’ (2009) ICLR 11(1) 3–68, 43.

53 On the numerous attempts over time to define ‘subsistence whaling, see Fitzmaurice (note 31) 247–251.

54 Sellheim (note 36) 37–39.

55 Keske, C. ‘Boreal Agriculture Cannot Be Sustained Without Food Sovereignty’ (2021) Frontiers in Sustainable Food Systems 5(673675) 4. Obviously, the sharing of whale products in reciprocal networks reduces social differentiation. Godoy, R., Reyes-García, V., Byron, E., Leonard, W.R., Vadez, V. ‘The Effect of Market Economies on the Well-Being of Indigenous Peoples and on Their Use of Renewable Natural Resources’ (2005) Annual Review of Anthropology 34(1) 1–41, 16. See also Kulchyski, P. ‘Aboriginal Rights are not Human Rights’ (2011) Prairie Forum 36, 33–53, 38, about food sharing and socially extended responsibilities as cultural practices typical of gathering and hunting peoples.

56 See Singleton, Fielding (note 49) 8–12.

57 On discussions concerning the difficulties in separating commercial and indigenous whaling in the context of Greenland in particular, see Fitzmaurice (note 31) 252.

58 The various connections among humans and nature can be physical and material but may also relate to spiritual dependence, fundamentally affecting the psychological and emotional well-being of people. See Matzke, J.P. ‘Humans as “Part and Parcel of Nature”: Thoreaús Contribution to Environmental Ethics’ (2014) Ethics in Progress 5(2) 170–186, 173–176.

59 Fitzmaurice (note 31), 135; Godoy et al. (note 55), 16.

60 Coté, C., ‘Indigenizing food sovereignty. Revitalizing indigenous food practices and ecological knowledges in Canada and the United States’ (2016) Humanities 5(3) 57, 10.

61 It has long been argued that the merely nutritional needs of whaling populations can be met by other types of food, and that other materials can replace whale-originating ones. See, for example, 1982 Report of the Nutrition Panel in IWC Aboriginal/Subsistence Whaling Reports of the IWC, Special Issue 4: 1982, SI04/AboriginalSub/1982/ID464, 30.

62 In practice, the wide scope of the UNDROP definition of peasants may lead to problems in the implementation of requirements of participation in the absence of representative organisations, for instance. Errico, Claeys (note 11) 28.

63 Heri (note 29) 707–708.

64 Affectedness and vulnerability are separate concepts that can both be used as justification of rights. Often they are relevant simultaneously, yet affectedness does not automatically entail vulnerability. For a detailed treatment of these concepts in the context of peasant-specific rights in particular, see ibid.

65 Pursuant to UNDRIP Art. 32.2: ‘States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilisation or exploitation of mineral, water or other resources’. However, consent is actually required only in cases of the relocation of indigenous peoples (Art. 10) and the storage or disposal of hazardous materials in their territories (Art. 29.2). On interpretation of the UNDRIP FPIC, see Newman, D. ‘Interpreting FPIC in UNDRIP’ (2019) International Journal of Minority and Group Rights 27(2) 233–250.

66 The 2009 LVC Declaration of Rights of Peasants already contained several provisions including ‘the right to reject’ (corresponding to the FPIC). A draft adopted by the UN HRC in 2013 (UN Doc. A/HRC/WG.15/1/5, 20 June 2013), contained a requirement that peasants cannot be ‘forcibly evicted from their lands and territories’: relocation would be possible only with ‘free, prior and informed consent of the peasants concerned and after agreement on just and fair compensation and, where possible, with the option of return’ (Art. 4.5).

67 Ido, V. and Munoz Tellez, V. Towards the Adoption of a UN Declaration on the Rights of Peasants and Other People Working in Rural Areas, South Centre Analytical Note (2018), 6.

68 Errico and Claeys (note 11) 27.

69 Heri (note 29) 715.

70 Rome Declaration on World Food Security, World Food Summit Plan of Action, 1996, para.1.

71 Lack of access to adequate food that ‘conforms with the beliefs, culture, traditions, dietary habits and preferences’ of people has also been explicitly recognised by the UN Food and Agriculture Organization and the World Health Organization as a factor contributing to malnutrition. Rome Declaration on Nutrition, ICN2 2014/2, para.5.b.

72 See Keske (note 55) 2–3.

73 Edelman, M., Weis, T., Baviskar, A., Borras Jr., S.M., Holt-Giménez, E., Kandiyoti, D., and Wolford, W., ‘Introduction: critical perspectives on food sovereignty’ (2014) Journal of Peasant Studies 41(6) 911–931, 914.

74 In practice, this necessitates close collaboration between the local communities and the state. See Keske (note 55) 1–2.

75 There exist also numerous and overlapping definitions of both concepts. Edelman et al. (note 73), 914. Food sovereignty can also be seen as a precursor to food security. Ibid.

76 See Heri (note 29) 714–715. The rights to land and seeds are also among the innovative (yet controversial) rights that the UNDROP contains.

77 The term ‘adequate’ is used in several provisions of the UNDROP. As the formulation ‘sufficient and adequate food’ indicates, adequacy is not to be interpreted only as sufficiency. The CESCR (in the context of the International Covenant on Economic, Social and Cultural Rights) has pointed out that the right to adequate food should ‘not be interpreted in a narrow or restrictive sense which equates it with a minimum package of calories, proteins and other specific nutrients’ (para. 6). Adequacy also implies that the food should be ‘acceptable within a given culture’ (para. 8), so ‘the precise meaning of “adequacy” is to a large extent determined by prevailing social, economic, cultural, climatic, ecological and other condition’ (para.7). General comment 12: The right to adequate food, E/C.12/1999/5UN.

78 Edelman, M., and James, C. ‘Peasants’ rights and the UN system: quixotic struggle? Or emancipatory idea whose time has come?’ (2011) Journal of Peasant Studies 38(1) 81–108, 95.

79 Monsalve Suárez, S. ‘Re-grounding human rights as cornerstone of emancipatory democratic governance’ (2021) Development 1–2. International human rights can even be perceived as an instrument of Western interventionism (ibid., 4) or justification for trumping the rights of indigenous people. See Kulchyski (note 55) 43.

80 Matzke (note 58) 171.

81 Social relations can be seen as a subset of ecological relations. Ingold, T. The Perception of the Environment: Essays on Livelihood, Dwelling and Skill (Routledge 2000) 60.

82 See ibid., 53–60.

83 Monsalve Suárez (note 79) 2.

84 Heri (note 29) 703.

85 As discussed above, the definition of ‘peasant’ in Article 1 also refers to a ‘special dependency and attachment to the land’.

86 Ido and Munoz Tellez (note 67) 2&6. The EU also tried to prevent the use of the word ‘right’ in the Declaration. Ibid., 3.

87 The EU argued that accepting new rights applicable only to rural populations would undermine the universality of human rights. See Heri (note 29) 718–719. The EU and the United States particularly objected the creation of new collective rights, considering them as a threat to the foundations of human rights. Errico and Claeys (note 11) 11. The setting appears similar to the fundamental incongruity between the universalism of the UN human rights system on one hand and rights based on cultural distinctiveness and genuine indigenous values on the other (where the latter always remain subsidiary). See Kulchyski (note 55).

88 Including the ICESCR, the 1965 International Convention on the Elimination of All Forms of Racial Discrimination (660 UNTS 195), the 1966 International Covenant on Civil and Political Rights (99 UNTS 171), the 1979 Convention on the Elimination of All Forms of Discrimination against Women (1249 UNTS 13), and the 1990 International Convention on the Protection of the Rights of All Migrant Workers and their Families (2220 UNTS 3).

89 The aim of the peasants’ movement was indeed that the UNDROP would be an instrument comparable to the UNDRIP. Edelman and James (note 78), 81.

90 Errico and Claeys (note 11) 32.

91 See Newman (note 65) 235.

92 See, for example, Monsalve Suárez (note 79) 3.

93 It may provide an element of opinio juris. See Newman (note 65) 246.

94 In the development of international human rights law, the typical (yet far from automatic) pattern is first the adoption of a UN General Assembly declaration on the issue, to be possibly followed by a binding UN treaty at some point. Heri (note 29) 712. This has been also the goal of the peasants’ movement. Edelman and James (note 78) 81–82.

95 Claeys, P., ‘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’ (2014) Globalizations 12(4) 2. There have already been proposals for institutionalizing the right to food sovereignty in the form of an international convention. Ibid., 5. However, the fact that such influential (and generally human-rights-friendly) states as the US and EU countries deny the ability of the UNDROP to create new human rights is likely to at least delay general acceptance of food sovereignty as a new, binding human right.

96 Ido and Munoz Tellez (note 67) 1.

97 Edelman and James (note 78) 97.

98 It has been argued that the negotiations on UNDRIP were ‘treaty-like in character’ and hence the instrument should be interpreted as if it were a treaty. Newman (note 65) 248.

99 Ibid. The involvement in the negotiation process of civil society, experts, and peasant representatives as well has been described as unique. Pancheco Rodriguez and Rosales Lozada (note 3) 4–5, 42.

100 Sellheim (note 15) 99.

101 Newman (note 65) 246–247.

102 Edelman and James (note 78) 84. Even the non-mandatory provisions of an international instrument can be made part of binding legislation domestically.

103 See Pancheco Rodriguez and Rosales Lozada (note 3) 40. In order to ensure effective implementation, the UNDROP also explicitly requires that states protect rural people against abuses by non-state actors (Arts. 18.5 and 2.5).

104 At the same time, the UNDROP also recognises the potential problems related to cultural group rights with respect to human rights of individuals by providing that ‘[n]o one may invoke cultural rights to infringe upon the human rights guaranteed by international law, nor to limit their scope’ (Art. 26.1).

105 Nor is the UNDRIP aimed at subordinating the rights of other human beings to those of indigenous populations. Instead, it tries to protect the rights of indigenous peoples due to their vulnerability and the multifaceted systemic injustice they have faced. In order to achieve this, the UNDRIP builds on the idea of coexistence and cooperation based on mutual respect.

106 Coté (note 60) 8.

107 See Sellheim (note 15) 100.