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  • Vaishnavi Salimath and Tejas Sateesha Hinder

Persistence of Deadlocks at COP27: Viability of Employment of Traditional Knowledge?

And Indigenous Practices as Means to Food Security?


This is an editorial piece authored by Vaishnavi Salimath, third year student of law, and Tejas Sateesha Hinder, fifth year student of law, National Law Institute University, Bhopal.


Background

According to a recent report by the Intergovernmental Panel on Climate Change (IPCC), agricultural productivity has decreased by 21% as a result of global warming, along with other factors like unfavourable weather patterns and deteriorating soil quality. This means that climate change continues to pose a threat to food security. This happens at a time when there is a greater demand due to an expanding global population, which includes an increase in the number of individuals who are hungry. The COVID-19 effect, increasing food prices globally, and supply-side pressure from the continuing crisis in Ukraine have only made matters worse.


Although one of the main agenda items at the 27th Conference of Parties (hereinafter “COP27”) summit in Sharm el-Sheikh, Egypt, was food security, the roundtable discussion on November 7 only received a muted response and no significant announcements were made, which could have helped resolve one of the most important problems we are currently facing. The discourse however indicated at employing traditional knowledge and indigenous practices from indigenous groups in other countries can help mitigate the unfavourable situation.


This brings to light the question of possible expropriation of cultural and religious rights of the indigenous people, whose practice would be employed by the international community in the process of ensuring food security. This article looks at the possible claims that could arise in lieu of such claims surrounding human rights, and attempts to deconstruct such claims, legally justifying the greater good.


The conundrum of cultural and religious rights


Incorrectness of a prospective human rights based claim

States from whom traditional knowledge and indigenous practices are borrowed cannot claim as an injured State,[1] as human rights obligations are only owed to individuals.[2] Further, the ICCPR and ICESCR do not create obligations erga omnes partes between the parties.[3] This is limited to treaties that are intended to protect a collective interest.[4] Comparatively, the broad human rights treaties, as mentioned above, focus on States’ relationship with individuals.[5] Futher, religious and cultural rights are not erga omnes obligations owed to the whole international community.[6]

That status only attaches to a narrow category of obligations.[7] There is insufficient State practice or opinio juris indicating that religious or cultural rights should be included in this category.[8]


Article 2(1) of the ICCPR limits States’ obligations to individuals in their territory or subject to their jurisdiction.[9] While the ICESCR contains no equivalent provision, its scope is similarly limited.[10] ‘Jurisdiction’ is primarily territorial,[11] and only applies extraterritorially in exceptional circumstances.[12] Under the ICCPR, this has been when a State’s agent violates an individual’s rights when acting abroad,[13] or when the State has effective control over the other State’s territory.[14] These are situations of purposeful action outside the State’s territory — a limit consistent with the exterritorial application of the Convention on Racial Discrimination,[15] and the interpretation of specific rights by the Economic and Social Committee.[16] There is no basis to extend extraterritorial application to the current, incidental transboundary situations.


Absence of speculative breach of cultural and religious rights

The ICESCR recognises the right to cultural life.[17] While States have an obligation to facilitate and fulfil this right,[18] States using traditional knowledge is only obligated to take “appropriate” steps.[19]


The ICCPR protects the freedom to hold a religion and the freedom to manifest a religion.[20] Religious rituals are part of the manifestation of religion.[21] However, this right is a “freedom”. It defends individuals from direct interference,[22] but does not impose further positive obligations on the State.[23] This interpretation is supported by the fact that other ICCPR rights, in contrast, expressly require active measures by the State.[24]


Appropriateness allows consideration of other protected rights.[25] Food security is a humanitarian necessity, and providing such security is part of a State’s non-derogable minimum obligations.[26] Halt in food production will regress the right to health, which there is a strong presumption against.[27]


Religious and cultural rights are validly limited

Freedom to manifest one’s religion and the right to cultural life can be subject to limitations.[28] There are three requirements for justified limitations.[29] First, that limitations must be prescribed by law that is clear and accessible.[30] Second, limitations must be for a legitimate purpose, as prescribed by the relevant treaty. Food Security protects health globally. This meets the purpose of ‘public health’ under the ICCPR,[31] and promoting the “general welfare” under the ICESCR.[32] The final requirement is that the limitation is necessary and proportionate.[33] The largescale risk to the health of the public means that any possible hunting or cultivation laws meet this criterion.[34]


Impending treaty obligations


The Convention on Biodiversity and benefit sharing

Article 8(j) deals with traditional knowledge. It uses qualified language; States are only required to act “subject to their national legislation” and only to “encourage” benefit sharing.[35] Accordingly, the provision does not impose substantive benefit sharing obligations for the use of traditional knowledge.[36] No other articles of the CBD impose applicable requirements, except under Art. 15(7) of the CBD only deals with benefit sharing for the use of the genetic resource.


Customary international law requires “virtually uniform” state practice and opinio juris, belief their conduct is rendered obligatory.[37] Developments in benefit sharing norms in the indigenous rights field have been exclusively limited to misappropriated land or physical resources.[38] While benefit sharing for traditional knowledge has occurred, there is insufficient opinio juris. Benefit sharing requirements are established to be in conformity with the CBD regime, not because of a belief that a rule existed beyond this.[39] Examples outside the treaty’s scope are for non-legal reasons, such as media pressure,[40] or as an internal policy decision.[41] Moreover, States that act inconsistently and do not enforce benefit sharing are not considered in breach of international law.[42]


Obligations of due diligence and equitable use

Equitable use requires a balance between the State’s sovereign right, the interests of other States in the shared resource, and environmental protection.[43]

Countries using traditional knowledge have a customary obligation to ensure that any activity within its jurisdiction did not cause significant transboundary harm to the country’s territory from whose tribal or primitive groups knowledge is being used.[44] A State has a sovereign right to exploit its resources pursuant to its own environmental policies.[45] However, States are required to act with due diligence in preventing significant transboundary harm resulting from activities in its territory.[46] This obligation is one of conduct, not result; hence countries using traditional knowledge are not required to prevent the harm in fact.[47]


Sources:


[1] International Law Commission Draft Articles on Responsibility of States for Internationally Wrongful Acts 53 UN GAOR Supp (No 10) at 43, A/56/83 (2001), art 42(a); James Crawford, Alain Pellet and Simon Olleson (eds) The Law of International Responsibility (Oxford University Press, Oxford, 2010), 942.


[2] HRC General Comment 31, [9]; HRC General Comment 24, [17]; Charles T Kotuby and Luke A Sobota General Principles of Law and International Due Process: Principles and Norms Applicable in Transnational Disputes (Oxford University Press, New York, 2017) p. 19, 106.


[3] International Law Commission Draft Articles on Responsibility of States for Internationally Wrongful Acts 53 UN GAOR Supp (No 10) at 43, A/56/83 (2001), ASR, art 48(1)(a); Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) [2012] ICJ Rep 422, [68]; Prosecutor v Blaškić (Judgment) ICTY Appeals Chamber IT-95-14, 29 October 1997 [26].


[4] Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) [2012] ICJ Rep 422, [69]; Third report on State responsibility, by Mr. James Crawford, Special Rapporteur A/CN.4/507 (2000), [92].


[5] Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) [2012] ICJ Rep 422.


[6] Barcelona Traction, Light and Power Company Ltd (Belgium v Spain) [1970] ICJ Rep 3, [33]; International Law Commission Draft Articles on Responsibility of States for Internationally Wrongful Acts 53 UN GAOR Supp (No 10) at 43, A/56/83 (2001), ASR, art. 48(1)(b).


[7] Christian J Tams Enforcing Obligations Erga Omnes in International Law (Cambridge University Press, Cambridge, 2005), 117. This includes aggression, slavery, racial discrimination (Barcelona Traction, [34]), genocide (Armed Activities (Congo v. Rwanda), [71]), and self-determination (East Timor, [29]).


[8] North Sea Continental Shelf Cases (Federal Republic Of Germany v Denmark; Federal Republic of Germany v Netherlands) [1969] ICJ Rep 3, [74].


[9] Human Rights Council Analytical study on the relationship between human rights and the environment A/HRC/19/34 (2011), [69]; HRC General Comment 31, [3].


[10] Concluding Observations of the Committee on Economic, Social and Cultural Rights: Israel E/C.12/1/Add.90 (2003), [31].


[11] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory [2004] ICJ Rep 136, [109]; Al-Skeini and Others v The United Kingdom (55621/07) Grand Chamber, ECHR 7 July 2011 [131].


[12] Advisory Opinion OC-23/17 (2017) IACrtHR Series A No. 23, [104].


[13] Human Rights Committee Communication No. 52/1979 Delia Saldias de Lopez v Uruguay CCPR/C/OP/1 at 88 (1984); Human Rights Committee Communication No. 56/1979 Lilian Celiberti de Casariego v Uruguay CCPR/C/OP/1 (1981).


[14] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory [2004] ICJ Rep 136, [110]; Loizidou v. Turkey (15318/89) Grand Chamber, ECHR 18 December 1996, [52].


[15] Application of the International Convention on the Elimination of all Forms of Racial Discrimination (Georgia v. Russian Federation) (Provisional Measures) Order of 15 October 2008 ICJ Rep 353, [109].


[16] Committee on Economic, Social and Cultural Rights, General Comment No. 23 On the Right to Just and Favourable Conditions of Work E/C.12/GC/23 (2016), [70]; Committee on Economic, Social and Cultural Rights, General Comment No. 20 Non-discrimination in economic, social and cultural rights E/C.12/GC/20 (2009); Committee on Economic, Social and Cultural Rights, General Comment No. 19 The right to social security E/C.12/GC/19 (2018); Committee on Economic, Social and Cultural Rights, General Comment No. 14 The Right to the Highest Attainable Standard of Health E/C.12/2000/4 (2000), [39].


[17] ICESCR, art 15(1)(a).


[18] Committee on Economic, Social and Cultural Rights, General Comment No. 21 Right of everyone to take part in cultural life (art. 15, para 1(a), of the International Covenant on Economic, Social and Cultural Rights) E/C.12/GC/21 (2009), [6], [48].


[19] ICESCR, art 2(1).


[20] ICCPR, art 8(1); Human Rights Committee, General Comment No. 22 Article 18 (Freedom of Thought, Conscience or Religion) CCPR/C/21/Rev.1/Add.4 (1993), [3]; Report of the Special Rapporteur on Freedom of Religion or Belief, Asma Jahangir A/HRC/6/5 (2007), [10]; Heiner Bielefeldt, Nazila Ghanea-Hercock and Michael Wiener Freedom of Religion or Belief: An International Law Commentary (Oxford, United Kingdom, 2016), 22.


[21] HRC General Comment 22, [4].


[22] For example, prohibiting prisoners from practising their religion (Boodoo v. Trinidad and Tobago; Poltoratskiy), making manifestations illegal (Malakhovsky v Belarus; Prince v. South Africa; Leven v. Kazakhstan), or directly interfering with natural resources used in religious rituals (Ogiek Decision, [166]).


[23] Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (Kehl, Germany, 2005) (2005), 411; Charles T Kotuby and Luke A Sobota General Principles of Law and International Due Process: Principles and Norms Applicable in Transnational Disputes (Oxford University Press, New York, 2017), 22. See also ICJ Judge Sir Kenneth Keith’s comments in Mendelssohn v A-G, [14] and [16].


[24] ICCPR, arts 6(1), 17(2), 23(1), and 24(1).


[25] Committee on Economic, Social and Cultural Rights, General Comment No. 21 Right of everyone to take part in cultural life (art. 15, para 1(a), of the International Covenant on Economic, Social and Cultural Rights) E/C.12/GC/21 (2009), [17].


[26] ICESCR, art 12; Committee on Economic, Social and Cultural Rights, General Comment No. 14 The Right to the Highest Attainable Standard of Health E/C.12/2000/4 (2000), [43.d]; Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health A/61/338 (2006), [56].


[27] Committee on Economic, Social and Cultural Rights, General Comment No. 3 The Nature of States Parties’ Obligations (Art. 2, Para. 1, of the Covenant) E/1991/23 (1991), [9].


[28] ICCPR, art 18(3); ICESCR, art 4.


[29] Olivier De Schutter International Human Rights Law (2nd ed, Cambridge University Press, United Kingdom, 2014), 339.


[30] The Siracusa Principles on the Limitations and Derogation Provision in the Covenant on Civil and Political Rights’ (1985) 7 Human Rights Quarterly 3, [17]; The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights adopted in Maastricht on 2-6 June 1986, [50]; Metropolitan Church of Bessarabia v Moldova (45701/99) Grand Chamber, ECHR 12 December 2001, [109].


[31] The Siracusa Principles on the Limitations and Derogation Provision in the Covenant on Civil and Political Rights’ (1985) 7 Human Rights Quarterly 3, [25]–[26].


[32] ICESCR, art 4.


[33] The Siracusa Principles on the Limitations and Derogation Provision in the Covenant on Civil and Political Rights’ (1985) 7 Human Rights Quarterly 3, [10]; Committee on Economic, Social and Cultural Rights, General Comment No. 21 Right of everyone to take part in cultural life (art. 15, para 1(a), of the International Covenant on Economic, Social and Cultural Rights) E/C.12/GC/21 (2009), [19]; Human Rights Committee, General Comment No. 22 Article 18 (Freedom of Thought, Conscience or Religion) CCPR/C/21/Rev.1/Add.4 (1993), [8]; Human Rights Committee, General Comment No. 31 The Nature of the General Legal Obligation Imposed on State Parties to the Covenant CCPR/C/21/Rev.1/Add.13 (2004), [8].


[34] Human Rights Committee Communication No. 1474/2006 Mr. Gareth Anver Prince v South Africa CCPR/C/91/D/1474/2006 (2007), [7.3].


[35] VCLT, art 31(1).


[36] Patricia Birnie, Alan Boyle and Catherine Redgwell International Law and the Environment (3rd ed, Oxford Press, Oxford, 2009), pp. 627–628; Chidi Oguamanam International Law and Indigenous Knowledge: Intellectual Property, Plant Biodiversity, and Traditional Medicine (University of Toronto Press, Toronto, 2006), 81; Michael Bowman and Catherine Redgwell (eds) International Law and the Conservation of Biological Diversity (Kluwer Law International, London, 1996), 266; Silke von Lewinski Indigenous Heritage and Intellectual Property: Genetic Resources, Traditional Knowledge and Folklore (2nd ed., Kluwer Law International, the Netherlands, 2008), 133; Francesco Francioni Biotechnologies and International Human Rights (Hart Publishing, Oxford, 2007), 206; Michelle F Rourke “Who are ‘Indigenous and Local Communities’ and What Is ‘Traditional Knowledge’ for Virus Access and Benefit-sharing? A Textual Analysis of the Convention on Biological Diversity and Its Nagoya Protocol” (2018) 25 JLM 707, 711–712.


[37] North Sea Continental Shelf Cases (Federal Republic Of Germany v. Denmark; Federal Republic of Germany v. Netherlands), [1969] ICJ Rep 3, [74] and [77].


[38] Saramaka People v. Suriname, (2007) IACrtHR Series C No. 185, [138]–[140].


[39] OAU Model Law, Preamble; Andean Pact, art 5(1); Brazil: Law 13.123, art 5 XIII; IFPMA Guidelines, Objective.


[40] The Hoodia Case (see Secretariat of the CBD (2008), 27).


[41] Natura, Brazil (see, Secretariat of the CBD (2008), 79–82).


[42] Certain Activities Carried Out By Nicaragua in the Border Area (Costa Rica v Nicaragua) (Compensation) [2018] ICJ Rep 1, [186].


[43] Pulp Mills on the River Uruguay (Argentina v Uruguay), [175]; Patricia Birnie, Alan Boyle and Catherine Redgwell International Law and the Environment (3rd ed., Oxford Press, Oxford, 2009), 202; Lilian del Castillo-Laborde Equitable Utilisation of Shared Resources (2010) MPEPIL (2010), [25].


[44] Trail Smelter Arbitration (United States of America v. Canada) (1941) 3 UN Rep Int'l Arb Awards 1905, 641; Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica) [2015] ICJ Rep 665, [104]–[105]; Advisory Opinion OC-23/17 (2017) IACrtHR Series A No. 23, [95], [97].


[45] Leslie-Anne Duvic-Paoli and Jorge E Viñuales “Principle 2” in Jorge E Viñuales The Rio Declaration on Environment and Development: Commentary (Oxford University Press, 2015) 107, [2.1.2.2]; Permanent Sovereignty Over Natural Resources UNGA Res 1803 (XVII) (14 December 1962).


[46] Trail Smelter Arbitration (United States of America v Canada) (1941) 3 UN Rep Int'l Arb Awards 1905; Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, [29]; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgment) [2007] ICJ Rep 43, [430]; Pulp Mills on the River Uruguay (Argentina v Uruguay) [2010] ICJ Rep, [187]; Respect to Activities in the Area (Advisory Opinion) [2011] Seabed Disputes Chamber ITLOS, [110]–[111], [223]; Advisory Opinion OC-23/17 (2017) IACrtHR Series A No. 23, [103]– [104]; International Law Association Study Group on Due Diligence in International Law: First Report (2014) 76 International Law Association Rep Conf 947, 974.


[47] Pulp Mills on the River Uruguay (Argentina v Uruguay) [2010] ICJ Rep 14, [187]; Respect to Activities in the Area (Advisory Opinion) [2011] Seabed Disputes Chamber ITLOS, [110].

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