Category Archives: Participation

The Need for an Interdisciplinary Approach to Norm Diffusion: The Case of Fair and Equitable Benefit-sharing (L. Parks and E. Morgera)

Authors

Louisa Parks and Elisa Morgera

Keywords

benefit-sharing, international law, environmental law, human rights law, human rights, oceans law, regulation, national law, regional law, indigenous peoples, local communities, norm diffusion, scholarship, conservation, sustainability, natural resources, power asymmetry

Abstract

No systematic study discusses the evolution of fair and equitable benefit-sharing across various areas of international law (environment, human rights, oceans), as well as at different levels of regulation (regional and national laws and guidelines, private law contracts, transboundary codes of conduct, customary laws of indigenous peoples and local communities). This article explores the usefulness of an interdisciplinary approach to the study of norm diffusion for understanding how and why fair and equitable benefit-sharing is articulated in different sites. The article discusses mechanisms, actors and frames in norm diffusion, drawing on literature from sociology, international relations and law. The article uncovers underlying similarities in scholarship on norm diffusion across the disciplines considered. It also reflects on the value of an interdisciplinary approach that encourages legal scholars to consider the implications of power structures in the diffusion of law, while the nuances of legal knowledge may lead other social scientists to revisit accepted findings on norm diffusion. These findings appear particularly useful for informing an assessment of the potential of fair and equitable benefit-sharing to promote the conservation and sustainable use of natural resources in a fair and equitable manner in the face of power asymmetries.

Citation

(2015) 24:3 Review of European, Comparative and International Environmental Law 353-367

Paper

The Need for an Interdisciplinary Approach to Norm Diffusion: The Case of Fair and Equitable Benefit-sharing

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Indigenous Rights and the Environment: Evolving International Law (C. Metcalf)

Author

Cherie Metcalf

Keywords

indigenous rights, international law, international environmental law, environmental rights, cultural integrity model, self-determination, recognition, autonomy, state sovereignty, participation, sustainability, sustainable environmental management

Abstract

This paper explores the relationship between indigenous peoples’ rights in international law and international environmental law. Two models underlie the protection of indigenous environmental rights. A “cultural integrity” model recognizes indigenous peoples’ environmental rights as a corollary to the protection and preservation of indigenous culture. In the alternative ‘self-determination” model, indigenous peoples’ environmental rights flow from their recognition as distinct communities with an inherent degree of autonomy and control over their own development. Both models have the potential to transform international environmental law. Recognition of indigenous peoples’ rights allows principles of international environmental law to pierce the veil of state sovereignty. The cultural integrity model offers the potential to broaden the legal framework of international environmental law
through the inclusion of human rights instruments. The self-determination model may lead to indigenous peoples’ independent participation in international agreements addressing environmental concerns. There is a crucial difference between the models. The cultural integrity model incorporates a connection between indigenous rights and sustainable environmental management while the self-determination model is based on indigenous peoples’ right to choose their own environmental policy. There is no inherent relationship between recognition of indigenous rights and sustainable environmental management in the latter model. The implications for international environmental law are more uncertain.

Citation

(2003) Ottawa Law Review 35 (1) 103-40

Paper

Indigenous Rights and the Environment: Evolving International Law 

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Bringing Local Voices to the Global Negotiation Table: Norm Dissemination and Consensus Building on Tropical Forests and Climate Change (M. G. Rodrigues)

Author(s)

Maria G. Rodrigues

Keywords

transnational advocacy networks, norm dissemination, Amazonia, Brazil, REDD + , climate change

Abstract

Initially rejected by the parties to the Kyoto Protocol, efforts to protect tropical forests are now an accepted strategy to mitigate the impact of climate change. Inspired by long-standing demands of Amazonia’s forests peoples, the notion of Reducing Emissions from Deforestation and Forest Degradation (REDD +) has been embraced in global arenas. What accounts for this shift in perceptions about the relation between forests and climate change? Answers lie in the efforts of a transnational advocacy network (TAN) at norm dissemination and consensus-building within Brazil and in the Kyoto Protocol. This study highlights the importance of domestic activism unfolding in democratizing societies to enhance the influence of transnational advocacy networks in norm dissemination and consensus building in global arenas. It enlarges the explanatory power of normative approaches by documenting a case in which the idea and set of values being globally propagated do not emanate from a Western liberal tradition.

Citation

(2015) New Global Studies 9(2) pp. 125–157

Paper

Bringing Local Voices to the Global  Negotiation Table: Norm Dissemination  and Consensus Building on Tropical  Forests and Climate Change

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The Right to Free, Prior and Informed Consent: Indigenous Peoples’ Participation Rights Within International Law (T. Ward)

Author(s)

Tara Ward

Keywords

Indigenous Rights, United Nations, Human Rights, International Labour Organisation, Self-Determination

Abstract

The right of indigenous peoples to free, prior, and informed consent (FPIC) in relation to development, infrastructure, and resource extraction projects is currently being debated within international law. Particularly contentious is the question of whether the right to FPIC is an existing customary international legal principle and if so, whether this constitutes a full veto right for the affected peoples. This article examines this question by analyzing the development of FPIC within international law and applying the current international standards to two distinct case studies. The first is the Lubicon Cree in Alberta, Canada, and the second is that of the Mayan Communities of Sipakapa and San Miguel Ixtahuacan, Guatemala. Ultimately, these two cases demonstrate how similar violations of indigenous peoples rights can occur in two very different contexts.

While the most explicit expression of FPIC is found in the United Nations Declaration on the Rights of Indigenous Peoples, by examining the jurisprudence of the United Nations Human Rights system, International Labour Organisation Treaty system, and Inter-American Human Rights system, it is clear that the various treaty bodies are interpreting existing rights to culture, property, and non-discrimination as the right of indigenous peoples to participate in decisions that impact their lands or resources. Although it is clear that as of yet the right to full FPIC is not part of customary international law, there is a well-defined consensus that States at a minimum have an obligation to consult with indigenous peoples in good faith with regard to any projects found within their lands or which impact traditionally used resources.

Furthermore, this analysis, which consists of both of the above-mentioned case studies and international human rights jurisprudence, highlights the extent of the gap that exists between the standards being developed and current State practice. In the end, this article finds that in order to effectively implement the FPIC and other participation rights, consultations must be recognised as expressions of the right to self-determination and not merely as administrative procedures.

Citation

(2011) 10 Northwestern Journal of International Human Rights 54

Paper

The Right to Free, Prior and Informed Consent: Indigenous Peoples’ Participation Rights Within International Law

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Human Rights, Human Development, and the Right to a Healthy Environment: An Analytical Framework (M.J. Rogge)

Author(s)

Malcom James Rogge

Keywords

Human Rights, Development, Human Right to a Healthy Environment, Public Participation,

Abstract

This paper provides a framework for understanding the profound interrelationship of human rights, human development, and the right to a healthy environment. The author argues that concerted public action in environmental affairs is necessary for true advancement in human development, and for the broad attainment of the whole range of human rights in society. Human dignity consistent with the realization of human rights is only possible where steps are taken to protect the environments on which people depend for their basic needs. The author links the normative position implied in human rights theory to the practical and prescriptive ideas of human development. In conclusion, the author argues that improving environmental conditions goes hand in hand with improving levels of human development and in promoting human rights.

Citation

(2001) 22 Canadian Journal of Development Studies 33-50

Paper

Human Rights, Human Development, and the Right to a Healthy Environment: An Analytical Framework

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