(2010) JLP 61: 171-204
Erika J. Techera
In the last two decades indigenous peoples have obtained a greater ‘voice’ at the international level while at the same time international laws have established the rights of indigenous peoples and drawn attention to their importance in environmental governance. A number of international legal instruments now make specific reference to indigenous peoples, customary law and traditional knowledge. However, they do not directly address the often complex issues involved in implementing law and policy in countries where multiple legal orders operate, and conflicts between customary and state-based legal norms and governance regimes often remain a significant issue. This paper explores the problem in the context of international environmental law and sustainable development, with particular reference to the small island developing states (SIDS) of the South Pacific.
International law was in the past the domain of states. With the establishment of the United Nations Working Group on Indigenous Populations in the 1980s, the interest generated following the International Year of the World’s Indigenous People in 1993, and the Decade of the World’s Indigenous People (from 1995), increasing attention has been given to indigenous peoples as non-state actors, and they now have an emerging legal personality in the international arena. Most independent post-colonial societies support equality and prohibit discrimination, but the right of indigenous peoples to self-determination is disputed, since it may entail a right of secession. Nevertheless many international instruments now acknowledge rights of indigenous peoples to protection and respect for their social, cultural, religious and spiritual values and practices, including rights in relation to customs and customary law. Many international law instruments which refer to the rights of indigenous peoples relate to sustainable development and natural resource management. In addition to international human rights law and international law in general, international environmental law has provided important rights and tools for indigenous peoples.
Special attention to the needs of SIDS led to the Declaration of Barbados and the Barbados Programme of Action (BPOA, 1994). The Declaration acknowledges that the “international community has a responsibility to facilitate the efforts of small island developing states to minimize the stress on their fragile ecosystems, including through cooperative action and partnership”. BPOA has identified priority areas and set out actions under each which are to be undertaken at each level by a tripartite partnership involving the international community, regional bodies and the state. It has noted the need to harmonise environmental law amongst the SIDS, and the importance of global and regional programmes to develop and implement national environmental legislation. It is argued, however, that generally there has been a failure to meaningfully engage with the issue of legal pluralism which hampers implementation of culturally appropriate laws in many states in the Pacific region. There is a need for a greater role for international institutions and agencies, but it is essential to ensure that indigenous people themselves fully participate at the international level. Further proposals are advanced for a new research agenda and a strengthening of existing programmes to achieve the previously identified outcomes.