indigenous rights, international law, international environmental law, environmental rights, cultural integrity model, self-determination, recognition, autonomy, state sovereignty, participation, sustainability, sustainable environmental management
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.
(2003) Ottawa Law Review 35 (1) 103-40
Indigenous Rights and the Environment: Evolving International Law
James T. McClymonds
international human rights, right to a healthy environment, environmental crisis, international environmental law, state sovereignty, human values, environmental protection, development practices
This note examines the development of the international human right to a healthy environment by both determining the extent to which the right has emerged in recent years and by outlining the scope and content of the right as it has emerged. In the first section, the mounting environmental crisis and its effects on human values are described. The second section explores the extent to which explicit recognition of the right to a healthy environment has emerged as a binding international legal principle. The emerging right to development and current developments regarding the principle of state sovereignty are explored as well. In the third section, current international environmental law is examined to glean the emerging principles that define the scope and content of the right. This note concludes in the fourth section by suggesting that although several important elements of the right have emerged under international law, other critical elements have not-particularly those relating to effective implementation and the individual’s ability to bring claims. In addition, this note argues that ultimately the countervailing right to development does not present an obstacle to the emergence of the right to a healthy environment because the growing awareness of the interrelationship between development and ecological health has already led to the incorporation of environmental-protection policies into development practices. Rather, the unwillingness of governments to concede sovereign authority presents the greatest barrier to the growth of the right. Until nation-states are willing to relinquish some measure of state sovereignty, the right to a healthy environment will remain unrealized.
(1992) 37 New York Law School Law Review 583.
The Human Right to a Healthy Environment: An International Legal Perspective