Tag Archives: stewardship

Rights with limits: biocultural rights – between self-determination and conservation of the environment (Sajeva)

Author

Guilia Sajeva

Keywords

Biocultural rights, conservation of the environment, indigenous peoples, local communities, stewardship

Abstract

Kabir Bavikatte has recently argued that a new ‘basket’ of group rights is emerging from the interpretation of multilateral environmental agreements, domestic law and case law, and from shifts in the development discourse and the struggles of communities. He refers to this new set of rights as ‘biocultural rights’ and defines them as being all the rights of indigenous peoples and local communities required to secure their stewardship role over their lands and waters. Biocultural rights build on two foundations: the self-determination and cultural diversity of indigenous peoples and local communities, and the conservation of the environment. This article suggests that the second foundation is what makes biocultural rights potentially more appealing than other human rights but that it is also the reason for their sui generis potential. Unlike human rights generally, biocultural rights seem to be aimed at protecting not only the interests of their right-holders, indigenous peoples and local communities, but also seem to protect a general interest of humankind in the conservation of the environment through the impositions of stewardship duties on rights-holders. Therefore, it is suggested that while biocultural rights provide a promising instrument for the promotion and protection of the interests of indigenous peoples and local communities, they also require such peoples and communities to be conscious of the fact that they, as biocultural rights-holders, take on a potentially inequitable duty towards environmental sustainability that limits their self-determination interests. The article explores some of the conceptual tensions emerging from this possibility and from the fact that indigenous peoples and local communities are presented as co-referents for the same umbrella of rights.

Citation

(2015) 1 Journal of Human Rights and the Environment 30-54

Publication

Rights with limits: biocultural rights – between self-determination and conservation of the environment

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Community stewardship: the foundation of biocultural rights (Bavikatte and Bennett)

Author(s)

Kabir Sanjay Bavikatte and Tom Bennett

Keywords

Biocultural rights, stewardship, property, environment, law, nature, indigenous people, customary law, commodity, post-development, political ecology, commons, Convention on Biological Diversity, Nagoya Protocol, traditional resource rights

Abstract

The term ‘biocultural rights’ denotes a community’s long established right, in accordance with its customary laws, to steward its lands, waters and resources. Such rights are being increasingly recognized in international environmental law. Biocultural rights are not simply claims to property, in the typical market sense of property being a universally commensurable, commodifiable and alienable resource; rather, as will be apparent from the discussion offered here, biocultural rights are collective rights of communities to carry out traditional stewardship roles vis-à-vis Nature, as conceived of by indigenous ontologies.

Citation

2015 1 Journal of Human Rights and the Environment 7-29

Paper

Community stewardship: The foundation of biocultural rights

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Water Privatization Trends in the United States: Human Rights, National Security, and Public Stewardship (C.A. Arnold)

Author

Craig Anthony Arnold

Keywords

Water, privatization, property, commodification, watersheds, human rights, national security, public rights, stewardship, fiduciary, public utilities, sustainability, environment, ecology, equity, public trust, state ownership, usufructuary, conservation

Abstract

This article examines 3 aspects of water privatization in the United States: 1) the privatization of public water services and systems; 2) the dominance of private property rights in water amid a complex legal regime of mixed public and private characteristics of water; and 3) the cultural framing of water as a consumer commodity. These trends raise significant humanrights issues, not unlike global debates over humanrights to water, and also critical national security issues related to conflict and scarcity, foreign control over domestic water supplies, and vulnerability to terrorism. More importantly, though, the article critiques the sustainability of the privatization and commodification of water in terms of the ecological, temporal, geographic, socio-ethical, policy, and economic integrity and sustainability of waters and watersheds.

The article concludes that humanrights legal theories lack the capacity to resolve concerns about meeting the human need for water. Likewise, national security policies are too limited to address larger issues of long-term water governance to ensure secure, stable, and sustainable water supplies for the public.

The article proposes an alternative concept: public stewardship of water. This concept is based on the public ownership and control of water (i.e., the state ownership doctrine), subject to private property interests in water that are usufructuary in nature and regulated by the government for the public interest. These property interests in water should be seen as part of a “web of interests” defined by the unique and multi-faceted characteristics of water, including its role in sustaining all life. However, the government should be held to 6 fiduciary duties with respect to all water resources, moving beyond the traditional public trust doctrine: 1) the duty of security; 2) the duty of conservation; 3) the duty of sustainability; 4) the duty of equity; 5) the duty of investment; and 6) the duty of long-range, place-based planning. All stakeholders, including the public, should share in the government’s responsibility for acting on these duties.

Citation

(2009) 33 William & Mary Environmental Law and Policy Review 785

Paper

Water Privatization Trends in the United States: Human Rights, National Security, and Public Stewardship

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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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Should trees have standing? (M. Warnock)

Author

Mary Warnock

Keywords

Conflicts of interests, ethics, interests, romanticism, sentience, speciesism, standing, stewardship, wilderness

Abstract

The author argues that relevant distinctions between humans, animals and plants should be taken into account when considering the extension of standing to elements of the environment. She argues that the question of standing should not be confused with the question of whether animals or elements of the environment have ‘intrinsic value’ and that recognising and protecting intrinsic value does not entail or require the granting of standing. Furthermore, Singer’s alternative equal rights/anti-discrimination approach also fails to justify the extension of standing to elements of the environment – indeed, the Bentham/Singer ‘sentience’ approach would disqualify trees from the award of standing as having no interests in the relevant sense. This conclusion, however, does not render insensible the notion of plants/trees having ‘interests’ rendering them worthy of being taken morally into account when making decisions about their destruction or preservation, but the author cannot see how one can proceed beyond this point to the grant of legal standing. While this conclusion may be taken to give priority to human interests over all others, a stewardship conception of environmental responsibility has the virtue of embracing not only the inescapable fact that it is human beings who make decisions concerning the destruction, preservation and the value-meaning of the natural world, but of simultaneously acknowledging and responding to the interests of nature itself. However, certain problems remain, such as complex conflicts of interest concerning the difficult task of assigning value, and it is difficult to see how such problems are assisted or solved by the grant of standing to environmental entities or elements.

Citation

(2012) Issue 0 Journal of Human Rights and the Environment 56-67

Paper

Should trees have standing?

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