Common Heritage of Mankind at the Expense of Indigenous People’s Rights? BBNJ Treaty and Beyond

Common Heritage of Mankind at the Expense of Indigenous People’s Rights? BBNJ Treaty and Beyond

Rafsi Albar*

Introduction

On June 19, 2023, the world celebrated the adoption of a historic international legal instrument, the Agreement on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction (BBNJ Treaty or the Treaty).[1] The Treaty lies at the intersection of many important, often controversial themes, from environmental protection to the economic exploitation of the ocean, and as such many had put high expectations on the Treaty.[2] It is a generational landmark of international law of the sea and a culmination of many actors’ collective work in building upon the 1982 UN Convention on the Law of the Sea’s (UNCLOS or the Convention) regime on areas beyond national jurisdiction (ABNJ).[3] Furthermore, with its detailed procedural mechanisms, presently administered by a secretariat under the UN Secretary-General, the Treaty’s significance can be seen from day one.[4]

The BBNJ Treaty appears ideal on the surface because it acknowledges a diverse array of interests, particularly those of Indigenous People and Local Communities (IPLC).[5] However, historical precedents reveal that legal rights and economic interests often find themselves at odds.[6] This Article delves into the likely negative repercussions the Treaty may have on the rights of IPLCs. The Article begins by elucidating the deep–rooted connection between IPLCs and the ocean, by highlighting IPLCs reliance on the ocean beyond mere economic considerations. This Article also identifies and analyzes potential misinterpretations of the Common Heritage of Mankind (CHM) principle and concludes with an examination of how international legal frameworks, including the BBNJ Treaty, often relegate IPLCs to the tokenistic role of “consultant” rather than active stakeholders, thus diminishing their authority and undermining their rights amidst dominant economic interests.

Indigenous People and Ocean Preservation

Indigenous peoples around the globe share intricate connections with nature, both on land and water, such that nature is often an inseparable facet of their identity.[7] Indeed, despite the prominence of Western science, the indigenous contributions to modern understandings of the natural world cannot be obscured.[8] These cultures, often characterized by a more holistic approach to science, frequently lay the groundwork for what is considered modern scientific knowledge.[9] For instance, ecological balance and sustainability principles, which are central to modern environmental science, have long been an inherent part of the practices and worldviews of indigenous communities.[10] Based on centuries of observation and interaction with nature, their methodologies, especially regarding the management of food and water systems, offer valuable insights and alternative perspectives that can significantly contribute to broader scientific understanding.[11]

This is especially true for conservation practices and the sustainable use of marine resources,[12] and indigenous people have even been called intergenerational stewards of the ocean.[13] This stewardship, like Indigenous knowledge of the natural world, is rooted in a holistic approach to resources, free from jurisdictional limitations. Abstract jurisdictional borders often fail to encapsulate the fluid, interconnected nature of marine ecosystems that indigenous practices inherently recognize and respect, thereby allowing for more comprehensive approaches to marine resource management.[14] The Māori people, for example, live by the principle of kaitiakitanga (environmental guardianship) to ensure the sustainability of resource extraction.[15] Knowledge from indigenous people, as demonstrated on small scales by small island states like Fiji, Vanuatu, and Kiribati, is shown to be a reliable inspiration to combat environmental problems and should be replicated on larger scales through international frameworks.[16] Other examples include the use of indigenous weather pattern monitoring to help in understanding climate change, and indigenous approaches to sustainable harvesting, which has helped maintain a steady and sustainable stock of fish like Salmon.[17]

The BBNJ Treaty sets a precedent through the involvement of IPLCs in the drafting processes that can be seen in discussions since the first intergovernmental conference.[18] This involvement was not—at least conspicuously—merely symbolic, but was a committed effort throughout the negotiations to bridge the IPLCs’ traditional knowledge and interests with the contemporary scientific understanding governing marine ecosystems.[19] Notably, the Treaty features numerous mentions of indigenous people and local communities (IPLCs).[20] It recalls the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), gives due regard to IPLCs, and specifically encourages governments to engage with them in policymaking.[21] Save for the preambles, IPLCs – or at least just indigenous people – are mentioned 31 times in 15 different articles, a considerably large portion.[22] While this is a positive sign of cooperation, it is necessary to preserve and make greater use of the sustainable systems of IPLCs, not just as consultants, but as rightful stewards with a wealth of knowledge, crucial to effective governance and conservation efforts.[23]

The Common Heritage of Mankind Principle, and its Potential as a Vehicle of Exploitation

The common heritage of mankind (CHM) principle stands as an important pillar within public international law generally, and even more prominently in the law of the sea.[24] Initially introduced by Ambassador Arvid Pardo of Malta in 1967, CHM later found formal recognition in UNCLOS.[25] Pardo fervently advocated for the revenue generated from marine exploitation to serve as a bridge diminishing the economic divide between affluent and impoverished nations.[26] This proposition swiftly garnered the endorsement of developing nations, representing a substantial portion of the attendees at the Third Conference, and positing that specified global commons are shared resources, to be managed collectively for the benefit of all humanity, ensuring equitable resource exploitation and benefit-sharing.[27] Today, the principle continues to permeate various domains of international law, symbolizing the global community’s efforts to move towards an era of greater egalitarianism.[28] Complete egalitarianism under international law of course still requires further work to be realized.[29]

However, given CHM’s flexible (or even inconsistent) materialization across regimes, concerns arise regarding the enforcement of this Treaty, vis-à-vis the potential adverse impacts on indigenous rights such as unfair treatment by outside groups.[30] Despite its very noble-sounding term, CHM is a double-edged sword for the global commons. One perspective of the principle, res communis, entails a shared sense of responsibility over the sea, while the other, res nullius, is a race to milk it dry.^[31] There remains uncertainty as to which is the right approach, as the practice varies across countries and treaty regimes, but the latter has resulted in tragedies by virtue of greed.^[32] The Convention on Biological Diversity (CBD) in 1993 sought to mitigate the challenges of the res nullius approach to the CHM of biological resources by introducing a benefit-sharing scheme, which brought an end to the previously unregulated exploitative market which resulted in the rampancy of biopiracy and loss of biological diversity.[33]

Deep-sea mining further exemplifies the challenges of the res nullius approach to CHM. With the current absence of an international code on the matter of material resource extractions other than the general provisions under UNCLOS, many states and corporations aggressively exploit the seabed, believing it to have limitless resources and disregarding long-term ecological consequences.^[34] The fishing industry also suffers the same fate, as the amount of fishing activities has reached an alarming level, such that the world’s fish supply is threatened.[35] IPLCs, who have an intrinsic connection to the natural world suffer the most from this kind of destruction, not only because of the loss of food sources but also their entire sense of livelihood and identity.^[36]

Within the BBNJ Treaty, a serious question on the exposition of CHM was raised. In the negotiations, economic considerations gained significant traction, primarily on benefit-sharing.^[37] When compared to the truly wide scope of CHM such as sustainability, the negotiations didn’t pay enough heed to other proponents of the principle—something we can see today in the adopted text with its emphasis on economic and economy-supporting benefits.[38] In the end, the parties came down to the classic question of how far can states exploit resources in the ocean, showing just how much we have not learned or are unwilling to learn from our mistake of egotistical, singular focus on capitalization rather than preservation of knowledge (of the IPLCs).[39]

Indigenous Rights and the Ineffective Global System

As previously noted, the main legal instrument for the recognition of indigenous people’s rights is UNDRIP, which, among other things, emphasizes procedural rights such as the right to participation.[40] In relation to the BBNJ Treaty, article 29 provides the right to conservation and protection of the environment and productive capacity of their lands or territories and resources.^[41] Articles 18 and 31 add nuances to that by respectively requiring participation in decision-making on matters affecting indigenous peoples’ rights and maintenance, control, protection, and development of their cultural heritage, traditional knowledge, and traditional cultural expressions.^[42] Other international instruments preceding the BBNJ Treaty, especially those pertaining to the environment, build upon these foundations. The CBD and the Paris Agreement are the most well-known of them.[43] The existence of these rights within international law indicates an emerging awareness on the part of the states of the potency and cooperative willingness of IPLCs to ensure the longevity of the nature from which their lives are sustained.[44]

Unfortunately, there is often a disconnect between decision-making at the treaty level and the actual implementation of state obligations on the ground as stipulated by international law. As shown by previous literature, many IPLCs perceive that discretionary decision-making by governments across levels does not take their interests into account enough.^[45] A sense of systemic injustice is consistently experienced at the domestic to international levels. An explanation for this, which correlates with the CHM problem, is the dilemma of prioritization between the fulfillment of indigenous rights and participation and the economic interests of the governing institutions.^[46] In many countries, especially those pursuing rapid development and home to large populations of IPLCs, exploitation of resources is usually “justified,” regardless of the expense to IPLCs .^[47] Such behavior is consistent with the tendencies of states at the global level, where economic benefit, not the fulfillment of human rights, is often used as the primary evaluation metric.^[48]

The way the BBNJ Treaty has been constructed sends the message that the IPLCs are to be involved so far as their interests do not conflict with the economic interests of powerful states or those in positions of authority. Instead of ensuring that the rights of IPLCs are actively promoted, IPLCs are viewed as “consultants” who will only be engaged in certain administrative processes like environmental assessment and scientific capacity-building.^[49] By default then, IPLCs become passive actors who speak only when spoken to. Additionally, there’s an absence of opinio juris, acknowledging these rights and specific obligations, notably the duties to cease and prevent over-exploitation and to actively promote the rights of IPLCs.[50]

The Way Forward

The BBNJ Treaty, regardless of its imperfections, is a milestone in the development of international law of the sea.^[51] The task now is to ensure that the Treaty doesn’t just become a tool to justify and propel economic exploitation while only including clauses related to IPLCs as tokens of inclusivity by making them guests in their own house. Rather, it should serve as a gateway to open new doors of scientifically informed collaboration on lawmaking and governance in general that allows for the sustainable advancement of humanity by pushing states to proactively advance recognized IPLCs’ interests.

* Rafsi Albar is a Bachelor of Laws candidate at Universitas Gadjah Mada, Indonesia with a concentration on public international law. He assists teaching in administrative law, conducts various public interest legal research, and serves as an editor at Juris Gentium Law Review, the country’s foremost student-run publication.

[1] Intergovernmental Conference on an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, Agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, U.N. Doc. A/CONF.232/2023/4 (June 20, 2023) [hereinafter Agreement under UNCLOS on Conservation].

[2] Id.; Press Release, General Assembly, Demonstrating ‘the Power of Multilateralism’, Intergovernmental Conference Adopts Historic New Maritime Biodiversity Treaty, U.N. Press Release SEA/2181 (June 19, 2023), https://press.un.org/en/2023/sea2181.doc.htm.

[3] Rachel Tiller et al., The once and future treaty: Towards a new regime for biodiversity in areas beyond national jurisdiction, 99 Mar. Policy 239, 239 (2019), https://doi.org/10.1016/j.marpol.2018.10.046. The Treaty’s history can be traced back to 2004 with the creation of the Ad Hoc Open-ended Working Group as a furtherance of UNCLOS; see G.A. Res. 59/24, (Nov. 17, 2004), arts. 73–76.

[4] Agreement under UNCLOS on Conservation, supra note 1, art. 50; see also G.A. Res. 59/24, supra note 3.

[5] Agreement under UNCLOS on Conservation, supra note 1, art. 13.

[6] See, e.g., Dominic Npoanlari Dagbanja, The Environment, Human Rights, and Investment Treaties in Africa: A Constitutional Perspective BT  – Handbook of International Investment Law and Policy 1903 (Julien Chaisse, Leïla Choukroune, & Sufian Jusoh eds., 2021), https://doi.org/10.1007/978-981-13-3615-7_88; Cristina Bodea & Fangjin Ye, Investor Rights versus Human Rights: Do Bilateral Investment Treaties Tilt the Scale?, 50 Br. J. Polit. Sci. 955 (2020), https://www.cambridge.org/core/article/investor-rights-versus-human-rights-do-bilateral-investment-treaties-tilt-the-scale/78A17F516ACEC393FC021237E7369836.

[7] Endalew Lijalem Enyew, International Human Rights Law and the Rights of Indigenous Peoples in Relation to Marine Space and Resources, in The Rights of Indigenous Peoples in Marine Areas 45 (Stephen Allen, Nigel Bankes & Øyvind Ravna eds., 1 ed. 2019).

[8] Siham Drissi, Indigenous Peoples and the nature they protect, UNEP (2020), https://www.unep.org/news-and-stories/story/indigenous-peoples-and-nature-they-protect [https://perma.cc/S9XX-DNBA].

[9] Maurizio Iaccarino, Science and culture. Western science could learn a thing or two from the way science is done in other cultures, 4 EMBO Rep. 220, 220 (2003).

[10] Drissi, supra note 8.

[11] Id.

[12] Mana Tugend, What Role for Traditional Knowledge in the Conservation of Marine Biodiversity in the Arctic High Seas?, The NCLOS Blog (2021), https://site.uit.no/nclos/2021/04/26/what-role-for-traditional-knowledge-in-the-conservation-of-marine-biodiversity-in-the-arctic-high-seas/ [https://perma.cc/T7WG-5JQP].

[13] Nathan J Bennett et al., Local marine stewardship and ocean defenders, 1 npj Ocean Sustain. 3 (2022), https://doi.org/10.1038/s44183-022-00002-6.

[14] Marjo K Vierros et al., Considering Indigenous Peoples and local communities in governance of the global ocean commons, 119 Mar. Policy 104039 (2020).

[15] Anne-Marie Jackson, N Mita & H Hakopa, Hui-te-ana-nui: Understanding kaitiakitanga in our marine environment., National Science Challenge: Sustainable Seas 11–14 (2017).

[16] Heather L. McMillen et al., Small islands, valuable insights: Systems of customary resource use and resilience to climate change in the Pacific, 19 Ecol. Soc. 44, 44 (2014).

[17] Vierros et al., supra note 14.

[18] Elisa Morgera et al., Summary of the First Session of the Intergovernmental Conference on an International Legally Binding Instrument under the UN Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biodiversity of Areas Beyond National Jurisdiction, Earth Negotiations Bulletin (2018), http://enb.iisd.org/oceans/bbnj/igc1/ [https://perma.cc/RX4Y-2UDP].

[19] Vierros et al., supra note 14.

[20] Agreement under UNCLOS on Conservation, supra note 1.

[21] Id., preamble; art. 7(j), 7(k), 13.

[22] See id., arts. 19, 24, 26, 35, 37, 41, 48, 49, 51, 52.

[23] Vierros et al., supra note 14.

[24] See generally John Hannigan, The Geopolitics of Deep Oceans (2015).

[25] United Nations, Official Records of the Twenty-Second Session of the United Nations General Assembly (1967), https://digitallibrary.un.org/record/800578?ln=en.

[26] He actively advocated the principle in the years following; see, e.g., Third world lecture 1984, 6 Third World Q. 559 (1984), https://doi.org/10.1080/01436598408419785.

[27] Alan Beesley, The Negotiating Strategy of UNCLOS III: Developing and Developed Countries as Partners: A Pattern for Future Multilateral International Conferences?, 46 Law Contemp. Probl. 183, 187 (1983).

[28] It is also used in the regimes governing outer space and Antarctica. See, e.g., Victor Alencar Mayer Feitosa Ventura & Eduardo Cavalcanti de Mello Filho, The Common Heritage of Mankind BT  – International Conflict and Security Law: A Research Handbook 67 (Sergey Sayapin et al. eds., 2022), https://doi.org/10.1007/978-94-6265-515-7_4.

[29] See, e.g., Muhammad Usman Askari & Muhammad Tahir, Sino-US rivalry in the South China Sea: A hegemonic stability theory perspective, 6 J. Polit. Int. Stud. 115 (2020).

[30] Alexandre Kiss, The Common Heritage of Mankind: Utopia or Reality?, 40 Int. J. 423, 440–41 (1985), http://www.jstor.org/stable/40202245.

[31] Scott J. Schakelford, The Tragedy of the Common Heritage of Mankind, 28 Stanford Environ. Law J. 109, 115 (2009).

[32] Id. For example, while a res communis perspective encourages the sharing of benefits enjoyed from the sea in the spirit of collective development as is tried to be implemented with regards to deep-sea mining by the International Seabed Authority, a res nullius view triggers a race for the most exploitation with whatever means necessary.

[33] Joseph Henry Vogel et al., Bounded openness: A robust modality of access to genetic resources and the sharing of benefits, 4 Plants, People, Planet 13, 13 (2022), https://doi.org/10.1002/ppp3.10239.

[34] Daniel Rosenberg, The Legal Fight Over Deep-Sea Resources Enters a New and Uncertain Phase, EJIL: Talk! (2023), https://www.ejiltalk.org/the-legal-fight-over-deep-sea-resources-enters-a-new-and-uncertain-phase/ [https://perma.cc/NNU4-8YYU].

[35] Amy McKeever & National Geographic Staff, How overfishing threatens the world’s oceans—and why it could end in catastrophe, National Geographic (2022), https://www.nationalgeographic.com/environment/article/critical-issues-overfishing [https://perma.cc/55D7-8D84]. The CBD has tried to address the issue through a number of instruments; see, e.g., C.O.P. Dec. X/29, Marine and coastal biodoversity (Oct. 29, 2010); C.O.P. Dec. XII/22, Marine and coastal biodiversity: ecologically or biologically significant marine areas (EBSAs) (Oct. 17, 2014).

[36] Andrés Cisneros-Montemayor & Yoshitaka Ota, For Indigenous Communities, Fish Mean Much More Than Food, The New Humanitarian (2017), https://deeply.thenewhumanitarian.org/oceans/community/2017/07/03/congress-is-relying-on-sleight-of-hand-to-attack-ocean-conservation [https://perma.cc/E2HN-4EEL].

[37] See, e.g., Dire Tladi, The Common Heritage of Mankind and the Proposed Treaty on Biodiversity in Areas beyond National Jurisdiction: The Choice between Pragmatism and Sustainability, 25 Yearb. Int. Environ. Law 113 (2014).

[38] Agreement under UNCLOS on Conservation, supra note 1, art. 14. It is also rather curious how benefit-sharing is posited directly after the article addressing traditional knowledge of IPLCs.

[39] IPLCs have long felt that their traditional knowledge relies on recognition through national legislation rather than international instruments; see, e.g., Ajeet Mathur, Who Owns Traditional Knowledge?, 38 Econ. Polit. Wkly. 4471 (2003).

[40] G.A. Res. 61/295, (Sep. 13, 2007), arts. 5, 18, 27, 41.

[41] Id. art. 29.

[42] Id. arts. 18, 31.

[43] Article 8(j) of the CBD pushes States to duly respect and work with the knowledge, innovations and practices of IPLCs for in-situ conservation; Article 7.5 of the Paris Agreement acknowledges the need for tailored approaches in climate adaptation actions based upon a number of factors including the (traditional) knowledge of IPLCs.

[44] Eugenia Recio & Dina Hestad, Indigenous Peoples: Defending an Environment for All (2022), https://www.iisd.org/system/files/2022-04/still-one-earth-Indigenous-Peoples.pdf [https://perma.cc/68ZL-9PAW].

[45] Meg Parsons, Lara Taylor & Roa Crease, Indigenous environmental justice within marine ecosystems: A systematic review of the literature on indigenous peoples’ involvement in marine governance and management, 13 Sustain. 4217 (2021).

[46] United Nations, State of the World’s Indigenous peoples: Vol. 5 (2021).

[47] Id.

[48] Brendan Adamczyk, Effectiveness of International Environmental Agreements: A Review of International Environmental Governance Theory (May 2020) (B.S. Thesis, University of Oregon).

[49] See, primarily, Agreement under UNCLOS on Conservation, supra note 1, arts. 21, 31, 44.

[50] Many domestic legal systems do not provide sufficient recognition of indigenous people’s rights if at all, resulting in continuous violations of their rights; see, e.g., Marcela Torres-Wong, Resource Nationalism and the Violation of Indigenous Rights in Mexico’s Oil Industry: The Case of a Chontal Community in Tabasco, 4 J. White Collar Corp. Crime 56 (2021), https://doi.org/10.1177/2631309X211051992; Lucas Ferrante & Philip Martin Fearnside, Military forces and COVID-19 as smokescreens for Amazon destruction and violation of indigenous rights, 151 DIE ERDE – J. Geogr. Soc. Berlin 258 (2020), https://www.die-erde.org/index.php/die-erde/article/view/PDF [https://perma.cc/M3R6-97AF]; Jo M Pasqualucci, The Evolution of International Indigenous Rights in the Inter-American Human Rights System, 6 Hum. Rights Law Rev. 281 (2006), https://doi.org/10.1093/hrlr/ngl004; Kathleen Mahoney, Indigenous Legal Principles: A Reparation Path for Canada’s Cultural Genocide, in Scholars, Missionaries, and Counter-Imperialists (2022).

[51] United Nations, Historic agreement adopted at the UN for conservation and sustainable use of biodiversity in over two-thirds of the ocean, 2023, https://www.un.org/sustainabledevelopment/blog/2023/06/press-release-historic-agreement-adopted-at-the-un-for-conservation-and-sustainable-use-of-biodiversity-in-over-two-thirds-of-the-ocean/ [https://perma.cc/T9HW-6R8M].