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Adaptation, Climate Change, Climate In/Justice, Development, Environmental Justice, Environmental Law, Environmental Protection, Environmental Rights, Equality, Human Rights, Indigenous Rights, International Law, Policy Issues, Politics and International Relations, Self-Determination, Socio-Economic Rights, Water

Climate Change and Indigenous Peoples: The Search for Legal Remedies (eds. R. S. Abate and E. A. Kronk)

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Editors

Randall S. Abate and Elizabeth Ann Kronk

Keywords

environment, climate change, environmental law, law – academic, environmental law, human rights, law and development, politics and public policy, human rights, Asia, Kenya, Arctic, South America, Pacific Island Nations, Australia, New Zealand, Africa, indigenous rights, sovereignty, climate justice, adaptation, equality, water rights, Aboriginal communities

Abstract

Indigenous peoples occupy a unique niche within the climate justice movement, as many indigenous communities live subsistence lifestyles that are severely disrupted by the effects of climate change. Additionally, in many parts of the world, domestic law is applied differently to indigenous peoples than it is to their non-indigenous peers, further complicating the quest for legal remedies. The contributors to this book bring a range of expert legal perspectives to this complex discussion, offering both a comprehensive explanation of climate change-related problems faced by indigenous communities and a breakdown of various real world attempts to devise workable legal solutions. Regions covered include North and South America (Brazil, Canada, the US and the Arctic), the Pacific Islands (Fiji, Tuvalu and the Federated States of Micronesia), Australia and New Zealand, Asia (China and Nepal) and Africa (Kenya).

PART I INTRODUCTORY CONTEXT AND PRINCIPLES
1. Commonality among unique indigenous communities: an
introduction to climate change and its impacts on indigenous
peoples 3
Randall S. Abate and Elizabeth Ann Kronk
2. Introduction to international and domestic climate change
regulation 19
Deepa Badrinarayana
3. Introduction to indigenous peoples’ status and rights under
international human rights law 39
Lillian Aponte Miranda
4. Introduction to indigenous sovereignty under international
and domestic law 63
Eugenia Charles-Newton and Elizabeth Ann Kronk
5. Climate change and indigenous peoples: comparative models
of sovereignty 79
Rebecca Tsosie
6. Indigenous environmental knowledge and climate change
adaptation 96
Maxine Burkett

Climate change and indigenous peoples
PART II GLOBAL PERSPECTIVES
International Organizations
7. REDD+: its potential to melt the glacial resistance to
recognize human rights and indigenous peoples’ rights at the
World Bank 123
Leonardo A. Crippa
South America
8. REDD+ and indigenous peoples in Brazil 151
Andrew Long
9. REDD+: climate justice or a new face of manifest destiny?
Lessons drawn from the indigenous struggle to resist
colonization of Ojibwe Forests in the nineteenth and twentieth
centuries 178
Philomena Kebec
Lower 48 States of the United States of America
10. Natural resource development and indigenous peoples 199
Sarah Krakoff and Jon-Daniel Lavallee
11. Climate change and tribal water rights: removing barriers to
adaptation strategies 218
Judith V. Royster
Arctic
12. Canadian indigenous peoples and climate change: the
potential for Arctic land claims agreements to address
changing environmental conditions 243
Sophie Thériault
13. America’s Arctic: climate change impacts on indigenous
peoples and subsistence 263
Peter Van Tuyn
14. The Saami facing the impacts of global climate change 287
Irina L. Stoyanova
15. Complexities of addressing the impacts of climate change on
indigenous peoples through international law petitions: a case
study of the Inuit Petition to the Inter-American Commission
on Human Rights 313
Hari M. Osofsky

Pacific Island Nations
16. Climate change, legal governance and the Pacific Islands: an
overview 339
Erika J. Techera
17. Fiji: climate change, tradition and Vanua 363
Victoria Sutton
18. Islands in the stream: addressing climate change from a small
island developing state perspective 377
Clement Yow Mulalap
19. The rising tide of international climate litigation: an
illustrative hypothetical of Tuvalu v Australia 409
Keely Boom
Asia
20. The impacts of climate change on indigenous populations in
China and legal remedies 441
Wenxuan Yu, Jingjing Liu and Po Dong
21. Changing climate and changing rights: exploring legal and
policy frameworks for indigenous mountain communities in
Nepal to face the challenges of climate change 468
J. Mijin Cha
Australia and New Zealand
22. Climate change impacts to Aboriginal and Torres Strait
Islander communities in Australia 493
Megan Davis
23. Negotiating climate change: Māori, the Crown and New
Zealand’s Emission Trading Scheme 508
Naomi Johnstone
Africa
24. Climate change, law and indigenous peoples in Kenya:
Ogiek and Maasai narratives 535
Patricia Kameri-Mbote and Elvin Nyukuri

Citation

2013. Climate Change and Indigenous Peoples: The Search for Legal Remedies, eds. Randall S. Abate and Elizabeth Ann Kronk. Cheltenham: Elgar.

Paper

Climate Change and Indigenous Peoples: The Search for Legal Remedies

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Environmental Protection, Globalisation, Indigenous Rights, Self-Determination

Indigenous Peoples and the Environment: Convergence from a Nordic Perspective (L. Watters)

Author

Lawrence Watters

Keywords

indigenous rights, environment, legal systems, globalisation, internationalization, Sami, sovereignty

Abstract

Part I of the article introduces the larger picture and the process of transition in which indigenous peoples like the Sami are found. The discussion focuses on both the convergence of legal systems generally which influence the protection of indigenous peoples in international and domestic law and the concomitant impacts related to the concentration of new forces from trade, technology and communications, or, in a word, globalization. These dynamics, in concert with the ‘internationalization’ of the environment, have special consequences for indigenous peoples.

Part II considers the Sami heritage, prior to contemporary conflicts. The evolution of their status is highlighted with developments
in the law at the domestic level. Part III moves from the past, considering the topography of the protection for indigenous
peoples like the Sami in international conventions, emphasizing the emerging, shared perspective of states toward the special status
of indigenous peoples. This includes the process of change in traditional notions of sovereignity as states recognize new imperatives on behalf of the environment, culture and human rights. Part IV shifts from consideration of the larger framework to its
contemporary implementation in Norway concerning the Sami, natural resources and the environment. Part V examines the outcome of this process in a preliminary critique, assessing the implementation of the principles and standards for the protection of the Sami as well as the next stage in the resolution of issues relating to governance within the context of sovereignity and
self-determination.

Citation

(2002) UCLA Journal of Environmental Law and Policy 20 pp. 237-304

Paper

Indigenous Peoples and the Environment: Convergence from a Nordic Perspective

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Development, Environmental Law, Health, Regulation, Trade

Beyond the Ban – can the Basel Convention adequately Safeguard the Interests of the World’s Poor in the International Trade of Hazardous Waste? (A. Andrews)

Author

Alan Andrews

Keywords

Abidjan, Basel, Ban, capacity, compliance, hazardous, prior informed consent, sovereignty, trade, waste.

Abstract

The Basel Convention was intended to prevent developing countries from being used as a dumping ground for the world’s toxic waste, a phenomenon often described as ‘toxic colonialism’. However, as the Abidjan disaster in 2006 demonstrated, the Convention is failing to prevent industrialised countries from exporting their hazardous waste to developing countries which lack the capacity to safely dispose of it.

Whilst environmental NGOs, the European Union and many developing nations continue to advocate a blanket ban on trade in hazardous waste, this is a misguided response which has proved difficult to enforce.

The Basel Convention contains the basic procedural mechanisms and institutional structures within which international trade of hazardous waste can be based. However, some key institutional reforms and far greater financial resources are urgently required if it is to adequately safeguard the world’s poor in the international trade of hazardous waste. These reforms need to be based on a recognition that the Prior Informed Consent procedure is inadequate in the context of north-south hazardous waste trade, where competition for crucial foreign revenue puts pressure on the governments of developing countries to consent to imports of waste that they do not have the capacity to manage without incurring potentially disastrous harm to human health and the environment.

Citation

(2009) 5(2) Law, Environment and Development Journal 167

Paper

Beyond the Ban – can the Basel Convention adequately Safeguard the Interests of the World’s Poor in the International Trade of Hazardous Waste?

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Environmental Justice, Human Rights, Trade

Sovereignty and developing countries: current status and future prospects at the WTO (H. Mahncke)

Author

Hans Mahncke

Keywords

Developing countries, dispute resolution, international law, free trade areas, sovereignty, tariff preferences, World Trade Organisation, human rights, environmental protection

Abstract

Reviews “Redefining Sovereignty in International Economic Law”, 2008, edited by W. Shan, P. Simons and D. Singh, and “WTO Law and Developing Countries”, 2007, edited by G.A. Bermann and P.C. Mavroidis. Discusses both books’ analysis of the competing approaches to sovereignty in international trade, highlighting key features of the Westphalian and post-Westphalian viewpoints. Considers, with reference to free trade areas, the generalised system of preferences and dispute resolution, whether common ground exists in respect of sovereignty within the World Trade Organisation. The paper also asks the question whether trade measures such as import bans or higher tariffs be used on the basis that another country is harming the environment or perpetrating human rights abuses?

Citation

(2009) 22(2) Leiden Journal of International Law, 395-409.

Paper

Sovereignty and developing countries: current status and future prospects at the WTO.

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Commons, Global Commons, Human Rights

The Concept of the Common Heritage of Mankind in International Law (K. Baslar)

Author

Kemal Baslar

Keywords

Conceptual Foundations, Concept of the Common Heritage of Mankind, Philosophical Bases, Elements, Stewardship, Sovereignty, Mankind, International Law, Outer Space, Law of the Sea, Antarctica, International Environmental Law, International Human Rights Law, Legal Status

Abstract

The concept of the common heritage of mankind is one of the most extraordinary developments in recent intellectual history and one of the most revolutionary and radical legal concepts to have emerged in recent decades. The year 1997 marks the thirtieth anniversary of the advent of the concept in the domain of public international law. Ever since its emergence, it has become evident that no other concept, notion, principle or doctrine has brought as much intensive debate, controversy, confrontation and speculation as the common heritage phenomenon did. This is because it is a philosophical idea that questions the regimes of globally important resources regardless of their situation, and requires major changes in the world to apply its provisions. In other words, the application and enforcement of the common heritage of mankind require a critical reexamination of many well-established principles and doctrines of classical international law, such as acquisition of territory, consent-based sources of international law, sovereignty, equality, resource allocation and international personality.

This book aims to explore the legal theory and implications of the concept of the common heritage of mankind. It addresses almost all aspects of the concept in the light of the experience of three decades. The author takes into account the elements of the common heritage concept in the fields of jurisprudence, outer space law, the law of the sea, the law of Antarctica, international environmental law, human rights and general principles of public international law. It tries to develop a normative framework through which the concept may offer alternatives for the governance of the global commons.

Citation

Kemal Baslar, The Concept of the Common Heritage of Mankind in International Law (Kluwer Law, The Netherlands 1998)

Book

The Concept of the Common Heritage of Mankind in International Law

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